Mr Justice Munby :
- I have been hearing care proceedings in respect of a number of children. One of the adults has been convicted in the Crown Court of an offence which because of its nature has attracted, at least locally, more than the usual amount of publicity in both the print and the broadcast media. In short succession I have heard applications, first, by the Crown Prosecution Service for disclosure of papers in the care proceedings for use in the criminal proceedings and, secondly, by the local authority for an order imposing reporting restrictions.
- This is, I am quite satisfied, a case where more than usually vulnerable children require a greater degree of protection from media intrusion into their lives than the law would automatically afford. I am, however, confined in what I can say because, were the full family circumstances to be set out even in this deliberately anonymised judgment, I would run the very real risk of defeating the very object of the exercise. I recognise that this judgment is necessarily more enigmatic than I would have wished but I hope that I have successfully avoided the trap of making it incomprehensible: see Lord Browne of Madingley v Associated Newspapers Limited [2007] EWCA Civ 295 at para [5].
The background
- On 3 March 2006 the local authority began care proceedings in respect of A, B and C (these are not their true initials). They are the three children of Mr X, who I will refer to as "the Defendant," and his wife, Mrs X. On 21 August 2006 another child, D, was born. The local authority began care proceedings in respect of D on 25 September 2006. Both sets of care proceedings were still on foot at the time these applications came before me, though the care proceedings in respect of D were likely to be finally concluded in the very near future.
- The family proceedings, as I shall refer to them, have at all stages been heard in private. So the privacy and confidentiality of the family proceedings is and will continue to be protected by section 12 of the Administration of Justice Act 1960 and, at least for the time being (see Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83), by section 97(2) of the Children Act 1989.
- For reasons I have already hinted at I do not propose to go into any great detail about the family proceedings. It suffices for present purposes to say that the proceedings are more than usually complex – they are, after all, in the High Court – and that they exhibit various features which make them unusual (if unhappily far from unprecedented) even in the High Court. The family, both in its history and in its circumstances at the time when the first care proceedings were begun in March 2006, was deeply troubled. A, B and C are all afflicted in differing respects with various social, educational and emotional difficulties. All four children, as I have said, are, in their various ways, more than usually vulnerable.
- To give some idea of the scale of the family proceedings I should say that the trial bundle extended to no fewer than thirteen lever arch files. The expert evidence, with its associated documentation, runs to over 900 pages; the other evidence to over 450 pages.
- On 20 October 2006 the Defendant attacked the principal social worker in the case with a knife. It appears that he stabbed his victim many times, inflicting very grave and indeed life-threatening injuries from which, unhappily, it would seem that she is never likely to make either a full physical or a full psychological recovery. On 13 February 2007 he pleaded guilty at the Crown Court to a charge of attempted murder. He was in custody awaiting sentence at the time these applications were before me. The principal issue at that time was whether he should be sentenced to imprisonment or made the subject of a hospital order. The next hearing before the Crown Court had been fixed for 15 May 2007.
- Subsequent to his pleading guilty to the offence of attempted murder, evidence emerged in the family proceedings indicating that the Defendant had committed other very serious offences against one of the children. Although he had not yet been charged it seemed to me that I must, at least for the time being, proceed on the footing that further charges would follow in due course. The nature of these offences, which I do not propose to describe, is such that further extensive publicity in the media is bound to follow any future proceedings in the Magistrates' Court and thereafter in the Crown Court – publicity which is likely to be all the more intense and intrusive because of the nature of the existing criminal proceedings.
- The Defendant is, of course, a party to the family proceedings. He has throughout had separate solicitors and counsel acting for him in the family proceedings and in the criminal proceedings. Those who act for him in the criminal proceedings do not have access to the papers in the family proceedings. Nor, of course, does the CPS.
The applications
- In anticipation of a hearing of the family proceedings which was due to take place before me on 26 March 2007, the CPS gave informal notice to the family court on 21 March 2007 of an application for disclosure to the Crown Court of documents in the family proceedings. On 26 March 2007 I adjourned that application for a hearing by video-link on 30 March 2007, directing that the CPS was to file a skeleton argument by 29 March 2007 setting out what documents it was seeking to have disclosed, the purpose of such disclosure, the identity of those individuals to whom it sought to disclose the documents and how it would seek to protect the confidentiality of the documents and the children if disclosure took place.
- At that point the representatives of the CPS withdrew and the hearing of the family proceedings continued in private. By the end of the hearing of the family proceedings on 26 March 2007 it had become clear not merely that the CPS was seeking disclosure of papers for use in criminal proceedings which were due to return to the Crown Court in the near future (no doubt with renewed media attention) but also that the proceedings in respect of D were likely to conclude in the very near future – with the consequence that although D would continue to have the protection of section 12 of the 1960 Act he would, because of Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, lose the protection of section 97(2) of the 1989 Act.
- It was in these circumstances that the local authority indicated it was minded to make application for a reporting restriction order. To enable the local authority to formulate the relief it was minded to seek, I adjourned further consideration of the matter until the hearing by video-link already fixed for 30 March 2007.
- Counsel instructed on behalf of the CPS filed a very clear and most helpful skeleton argument on 29 March 2007. At the same time the local authority filed a preliminary draft application for a reporting restriction order.
- At the video hearing on 30 March 2007 I first gave directions with a view to a substantive hearing of the CPS's application, again by video-link, on 30 April 2007. Included amongst those directions was a direction that there was to be discussion between the advocates in the family proceedings as to which documents in the family proceedings ought to be disclosed to the CPS and how, if at all, those documents should be edited. A further direction provided for the local authority then to file and serve a list (agreed if possible) of the documents considered appropriate to be disclosed, together with suggestions as to how (if necessary) they should be edited. Other directions made it clear that the involvement of those acting for the Defendant in the criminal proceedings was most desirable, both in the course of preparation for and indeed at the hearing on 30 April 2007.
- I then turned to consider the local authority's application. It seemed to me desirable that it should be listed for hearing after the determination of the CPS's application but before the next hearing in the Crown Court. The hearing was accordingly fixed for 4 May 2007. Mindful of what had been said on the point in Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and in Re William Ward (A Child), BBC v Cafcass Legal [2007] EWHC 616 (Fam), and mindful of the need for compliance with section 12(2) of the Human Rights Act 1998, with the President's Practice Direction (Applications for Reporting Restriction Orders) [2005] 2 FLR 120 and with the Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications For Reporting Restriction Orders) [2005] 2 FLR 111, I gave directions that the local authority was to serve its application and supporting evidence in accordance with the Practice Direction by 18 April 2007 (which it did) and that any media organisation wishing to appear and resist the application should give notice and serve any evidence and skeleton argument by 25 April 2007. In the event the only media organisation which sought to take part was the Press Association, which served a most helpful skeleton argument dated 23 April 2007. Understandably the Press Association felt no need to attend the hearing itself.
The hearings
- The hearing of the application by the CPS took place by video-link on 30 April 2007. The Defendant, with my permission, filed further written submissions on 1 May 2007. On 4 May 2007 I made the order the material parts of which are set out in paragraph [53] below.
- Having made that order I then proceeded on 4 May 2007 to hear the local authority's application. On 8 May 2007 I made the order the material parts of which are set out in paragraph [74] below.
- I now (29 June 2007) hand down judgment explaining my reasons for making those two orders.
- Although it is convenient to deal with both applications in the one judgment I propose to deal separately with the applications by the CPS and the local authority, turning first to deal with the application by the CPS.
The legal framework
- First, however, it is convenient to refer briefly to those general principles of law which govern both applications.
- Inevitably, in a case such as this, there are a number of different and often competing interests involved, some private and some public. Typically, these interests will be protected by one or more of Articles 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- The exercise of the judicial discretion which arises in these cases thus requires consideration of a very wide range of factors. In the final analysis it involves a balancing exercise in which the judge has to identify, evaluate and weigh those factors which point in favour of the disclosure (or restriction) sought against those factors which point in the other direction. There is, therefore, a balance to be struck between the various competing interests.
- Since the coming into effect of the Human Rights Act 1998, that balance has to be struck having regard to the various rights and interests protected by the Convention which are engaged. And the balance has to be struck in accordance with the principles explained by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at para [17], and by Sir Mark Potter P in A Local Authority v W [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, at para [53]. That is, by a 'parallel analysis' of the various rights protected by the Convention which are engaged, leading to an 'ultimate balancing test' reflecting the Convention principle of proportionality. This, as Lord Steyn emphasised in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at para [17], necessitates "an intense focus on the comparative importance of the specific rights being claimed in the individual case." As Sir Mark Potter P put it in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, at para [64], "such applications fall to be decided not on the basis of rival generalities but by focussing on the specifics of the rights and interests to be balanced in the individual case."
- It is important to recognise that in this balancing exercise the interests of the children involved, although obviously important, are not paramount. That principle was already established before the Human Rights Act 1998 came into force: see Re X (Disclosure of Information) [2001] 2 FLR 440 at para [23]. It has now been reinforced by the subsequent Convention jurisprudence.
The application by the CPS
- Counsel for the CPS identifies the purpose of the disclosure which is sought as being purely in order to inform the Crown Court as to the most appropriate form of disposal in relation to the offence of attempted murder to which the Defendant has pleaded guilty. The CPS does not accept the Defendant's account of the circumstances in which he committed that offence and, as it was put in its skeleton argument, suggests that the Defendant "planned the actual offence with full intent and understanding of his actions and has since that date cynically manipulated those around him, including family members and medical practitioners, to achieve a disposal perceived by him to be the least onerous." Thus the CPS sought, for example, disclosure of any material in the family proceedings indicating that the Defendant's medical condition is not as significant as may be suggested in the materials disclosed to the experts instructed on his behalf in the criminal proceedings; and disclosure of any material in the family proceedings which would suggest inconsistencies between accounts given by the Defendant during the course of the family proceedings and the stance he was adopting in the criminal proceedings. (I deliberately confine myself to examples, for further elaboration would not be in the interests of the children.)
- Subject to the process of disclosure being appropriately controlled by the family court, Mrs X (who, I might add, is currently in the process of divorcing the Defendant) supports, and the various guardians acting for the children either support or do not oppose, the application by the CPS. They recognise the merits of the application inasmuch as it seeks disclosure that is both relevant and necessary.
- The Defendant resists any disclosure of any documents from the family proceedings, submitting, as his counsel put it in her skeleton argument, that to accede to the application for disclosure would undermine the principles of privacy, confidentiality and frankness in family proceedings and deny the Defendant the protection of section 98(2) of the Children Act 1989 in circumstances where there is, as she would have it, no countervailing public or other interest in ordering disclosure.
- The basic principles governing disclosure are to be found in the decisions of the Court of Appeal in In re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346, In re Manda [1993] Fam 183, and, in particular, In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. They were summarised in a well-known passage at page 85 in the judgment of Swinton Thomas LJ in the latter case as follows:
"In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case:
(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
(2) The welfare and interests of other children generally.
(3) The maintenance of confidentiality in children cases.
(4) The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s 98(2) applies. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.
(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
(7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
(9) In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
(10) Any other material disclosure which has already taken place."
- In a situation such as the one I am considering there are, in particular, the various different and competing interests, some private and some public, which were identified in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194. There is the private interest of the Defendant in securing a fair trial in the Crown Court and, he no doubt hopes, a hospital order rather than what is likely to be a long sentence of imprisonment. There is the public interest that there should not be a miscarriage of justice in the criminal proceedings. And that, as I pointed out in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, at para [13], is as much an interest in ensuring that there should not be a wrongful acquittal (or, I would add, an over-lenient sentence) as in ensuring that there should not be a wrongful conviction (or an over-severe sentence). There are the private interests not merely of the parties in the family proceedings but also of the children (whose protection must naturally be a major concern) in ensuring the continuing privacy and confidentiality of the family proceedings. And, last but by no means least, there is the public interest in maintaining the integrity of the family justice system, a compelling public interest that in relation to proceedings involving children typically calls for the maintenance of the privacy and confidentiality of such proceedings. These are all, of course, interests protected either by Article 6 and/or by Article 8 of the Convention.
- These competing interests pull in different directions.
- There are, on the one side, powerful interests, both private and public, which point away from disclosure. In the first place a witness or other person caught up in legal proceedings has under Article 8, with its guarantee of the right to respect for private life, a private – a personal – interest which may, in appropriate circumstances, require the court to preserve the confidentiality of information about him or the confidentiality of information supplied by him in the course of the proceedings, just as it may require the court to protect his anonymity: see Doorson v The Netherlands (1996) 22 EHRR 330 and Z v Finland (1998) 25 EHRR 371. This is well recognised in the context of family proceedings: see, for example, A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed [2001] EWCA Civ 2014, [2002] 1 FLR 1045), Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 and Re William Ward (A Child), BBC v Cafcass Legal [2007] EWHC 616 (Fam).
- These are powerful interests that can be and are prayed in aid in support of Mrs X and, in particular, of the children. The children, who are wholly innocent in all this, who have found themselves swept up in family proceedings which have already been very stressful for them and who are now the helpless spectators of the criminal proceedings, plainly have a very strong call on the protection of the court. There is a powerful argument for saying that their privacy should be preserved and that the intensely personal details of their fractured family life and damaged private lives should remain private and confidential. Similar arguments can be prayed in aid by Mrs X who is also, in many respects, a victim. The Defendant is in a much weaker position to pray in aid his rights under Article 8: compare Re X (Disclosure of Information) [2001] 2 FLR 440 at paras [13], [34].
- Moreover, and as the Defendant's counsel has correctly observed, pointing to what I said in Re X (Disclosure of Information) [2001] 2 FLR 440 at para [24], in addition to the purely personal interests of the children and Mrs X (and, for what it is worth, the Defendant) in maintaining the confidentiality and privacy of the family proceedings – what Balcombe LJ referred to in In re Manda at page 195 as the "curtain of privacy" – there are also wider public interests which may point in favour of privacy and anonymity for witnesses and others involved in family proceedings:
i) First, there is a public interest in encouraging frankness in children's cases. It is in the public interest that potential witnesses in such proceedings are not deterred from giving evidence by the fear that their private affairs or privately expressed views will be exposed to the public gaze.
ii) Secondly, there is a public interest in encouraging co-operation from independent experts and other professionals.
iii) Finally, there is a public interest in preserving faith with those who have given evidence to the family court in the belief that their evidence or their identity would remain confidential.
All this said, however, and as I pointed out in Re William Ward (A Child), BBC v Cafcass Legal [2007] EWHC 616 (Fam) at para [29], it has to be borne in mind that whilst persons who give evidence in child proceedings can perhaps assume that their evidence will remain confidential – an assumption which in the light of more recent developments is probably less justified now than it was in the early 1990s – they are not entitled to assume that it will remain confidential in all circumstances.
- So there are powerful interests, public interests as well as private interests, which can be prayed in aid against authorising the disclosure the CPS is seeking.
- As against this, and pointing in the other direction, there is the powerful public interest in ensuring the proper administration of criminal justice, the public interest in ensuring, so far as possible (and, I would add, without unnecessary let or hindrance by the family court), that the innocent are not wrongly convicted and, more to the point in the present case, that the guilty are rightly convicted and appropriately sentenced. (I refer to the public interest because here, in contrast to the situation in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, the Defendant does not seek to rely upon his private interests in this regard. On the contrary, he resists the disclosure being sought by the CPS, relying essentially, as counsel for Mrs X points out, on the public interest in maintaining the privacy and confidentiality of the family proceedings – an argument which she characterises, adopting a phrase I used in Re X (Disclosure of Information) [2001] 2 FLR 440 at para [13], as nothing more than "sanctimonious humbug" when deployed by the Defendant.)
- In my judgment, and notwithstanding the vulnerability of these children, the balance in the particular circumstances of this case quite plainly comes down in favour of there being disclosure, albeit initially limited disclosure and, moreover, disclosure subject to appropriate conditions designed to protect, to the extent necessary to protect their rights, the privacy and other interests of those – the children in particular – who might otherwise be prejudiced by the disclosure I have in mind.
- Indeed, as counsel for the CPS points out, referring to what I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, at para [13], "the children, precisely because they are the [Defendant's] children, themselves have a direct and important interest in ensuring that there is no miscarriage of justice in the criminal trial and in ensuring that the truth, whatever it may be, comes out." I went on: "In this as in other respects, better for the children that the truth, whatever it may be, comes out." In the present case, as counsel for the CPS correctly observes, and the point was picked up and adopted by counsel for Mrs X, it is important for the future welfare of the children that the Defendant is dealt with for his crime in the most appropriate manner and on the basis of an accurate rather than a distorted view of the relevant facts. So the children themselves have an interest in there being proper disclosure. As counsel for Mrs X pithily observed, it is in the interests of the children that the Defendant receives a fair and just sentence. I agree.
- It has to be borne in mind that the choice for the court is not confined to either ordering or refusing to order disclosure. The court has power to impose appropriate conditions where that is necessary to hold the balance fairly and in a Convention-compliant manner.
- Sometimes (as in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194) it will be quite clear what document(s) need to be disclosed and there will be no need for the family court to impose any limitations or conditions upon their subsequent use. Sometimes there may be uncertainty as to precisely which documents should be disclosed. (After all, the person seeking disclosure, if not a party to the proceedings in the family court, may not know what documents there are which might appropriately be disclosed and the family court may have a less than perfect understanding of the other proceedings.) In such a case a 'step by step' approach may be appropriate, the family court directing the disclosure of the documents which seem to be most immediately relevant but on the basis that the applicant can always make a supplementary application for the disclosure of further documents. Sometimes (as in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673) it may be appropriate – indeed essential, if rights protected by the Convention are not to be breached – to impose more or less stringent limitations or conditions upon the use of the documents. In particular, it may be appropriate for the family court to retain control over any further dissemination of the documents (or of the information contained in the documents) especially if there is a prospect of the documents (or the information) entering the public domain. Sometimes it may be appropriate to disclose only parts of certain documents or to disclose documents in an edited or redacted form.
- In the present case a cautious approach is required. In the first place there is room for possible differences of view as to precisely which documents or parts of documents ought to be disclosed. The parties to the family proceedings (with the sole exception of the Defendant) are agreed as to which documents require to be disclosed, and as to the appropriate editing of those documents, if the wishes of the CPS are to be met, as they all (with the sole exception of the Defendant) agree they ought to be met, in a sensible yet proportionate manner. I agree with their appraisal, whilst recognising that the CPS, once it has had an opportunity to examine the initial batch of documents, may legitimately wish to seek the disclosure of further documents or the disclosure of those parts of documents which are going to be disclosed in an edited or redacted form. In that event, a further application can be made and will be considered on its merits.
- At the same time it is quite clear in my judgment that this is a case where the sensitivities and the needs in particular of the children are such that the family court must keep a tight control over the use that may hereafter be made of the documents which are to be disclosed (and of the information contained in them). In particular, proper compliance with the requirements of the Convention demands that the family court must be involved in any decision to put any of these documents (or the information contained in them) into the public domain: see the analysis of the Strasbourg jurisprudence in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673. And in this case, as in that case, this necessary objective is appropriately achieved by my making an order modelled on the order which I made in that case. Hence the terms of the order set out in paragraph [53] below.
- I should emphasise that my making of an order containing these conditions does not indicate any lack of confidence on my part with those concerned in the criminal proceedings, let alone any lack of confidence in the extremely experienced Circuit Judge who is conducting the proceedings in the Crown Court. On the contrary, it is only right for me to record that the Circuit Judge has, throughout the criminal proceedings, imposed and maintained in place an order made under section 39 of the Children and Young Persons Act 1933. My concern is simply that those concerned with the criminal proceedings must inevitably see things from that perspective. Not being, as I am, immersed in the family proceedings, they may not appreciate all the implications for the children (and indeed for Mrs X) of the deployment in that context of some seemingly innocuous piece of information. As against that, I am acutely conscious of the fact that my own understanding of the criminal proceedings is necessarily far from complete – which is why both the CPS and the Defendant's own representatives must be free to return to the family court for the purpose of obtaining either the disclosure of further documents or the relaxation of the conditions which I have attached to my order.
- Picking up a point made by Swinton Thomas LJ in the passage in his judgment in In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 which I have already set out, it is important in this kind of situation that the family court and the Crown Court work together in co-operation to achieve the proper administration of justice in both jurisdictions. That is what I have sought to do. My purpose has been to extend all proper assistance to the Crown Court and to those involved in the criminal proceedings. I can only hope that the stringent terms of the order I propose do not make their important tasks more difficult.
- In principle, therefore, I am persuaded that the documents which have been identified for this purpose ought to be disclosed to the CPS, though only if the CPS is willing (as it is) to submit to the terms of the proposed order. Fairness and equality of arms demands, of course, that anything disclosed to the CPS must at the same time also be disclosed, on the same terms, to those acting for the Defendant in the criminal proceedings.
- In addition to his argument that there should be no disclosure at all, the Defendant argued in the alternative that certain documents to which he took particular exception should not be disclosed. For reasons which I have already explained I do not propose to condescend to what might be inappropriately revealing detail. Some of the objections were based on the assertion that particular documents were simply not relevant to the only remaining issue in the criminal proceedings. I do not agree. The documents are all, in my judgment, relevant for the purpose for which their disclosure is sought. But there are two categories of document in particular to which I can and ought to refer in more detail.
- In the first place the Defendant challenged the disclosure of letters he had written to his wife and to some of the children whilst in prison on remand, asserting correctly that they were of their very nature especially private and sensitive. Notwithstanding that, these are documents which in my judgment ought to be disclosed. They are relevant. Their disclosure is not challenged either by Mrs X or by the guardians acting for the relevant children. And unless the family court is persuaded on some future occasion to relax the strict limitations on their use imposed by my order, they will only ever be seen by a very small group of people and for very specific purposes.
- Secondly, the Defendant sought to resist the disclosure of certain documents on the basis that their use against him in criminal proceedings was prohibited by section 98(2) of the 1989 Act. So far as material for present purposes this provides that:
"A statement or admission made in [any proceedings in which a court is hearing an application for an order under Part IV of the Act] shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury."
- I am far from persuaded that the documents in question in fact contain or evidence any "statement or admission" within the meaning of the section but I am content for present purposes to assume (though I emphasise without deciding) that they do. Be that as it may, the argument does not in any event avail the Defendant.
- In the first place, section 98(2) gives protection only against the use of such statement or admission "in evidence." It does not, for example, protect against use in a police inquiry into the commission of an offence: see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 at page 85. So it does not, in my judgment, protect the Defendant from disclosure of the documents to the CPS in the manner and for the purpose that is here contemplated. Moreover, given the limitations and conditions upon the use of the documents (and the information contained in them) imposed by my order, the documents cannot be used against the Defendant in open court without the prior sanction of the family court. Given that the Crown Court sits in public, it is therefore difficult to see how they can be used "in evidence" against him without a further order of the family court having first been obtained. Furthermore, the order which I propose to make specifically confines the use of the documents to the present criminal proceedings, so they cannot be used by the CPS for any purpose in connection with any future criminal proceedings.
- Secondly, it is to be noted that putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements "against" him within the meaning of the section: Kent County Council v K [1994] 1 WLR 912 at page 916 followed in Re L (Care: Confidentiality) [1999] 1 FLR 165 at page 167.
- Thirdly, and finally, it is of course ultimately for the judge in the Crown Court who is conducting the criminal proceedings, and not for the judge in the family court who is conducting the family proceedings, to decide whether or not and to what extent section 98(2) applies in any particular situation. And in this connection, as Johnson J pointed out in Re L (Care: Confidentiality) [1999] 1 FLR 165 at page 168, "It would clearly be wrong for a judge hearing care proceedings to make any order that might be thought to trespass on the jurisdiction of the judge conducting the criminal trial."
- For all these reasons there is, in my judgment, nothing in section 98(2) to prevent my ordering the disclosure which would otherwise be appropriate.
- Accordingly on 4 May 2007 I made an order in the following terms:
"UPON THE APPLICATION of the Crown Prosecution Service ("the CPS") for disclosure of certain documents filed in care proceedings … currently being conducted in private in the Family Division of the High Court of Justice such disclosure being sought for the purpose of or in connection with criminal proceedings … against [Mr X] ("the Defendant") in the … Crown Court
…
AND UPON Counsel for the Defendant submitting and the Judge agreeing that any documents to be disclosed to the CPS should also and at the same time be disclosed to Messrs [XYZ] ("XYZ") the solicitors acting for the Defendant in the criminal proceedings
AND THE JUDGE stating that:
(1) it is an express condition of the disclosure of the documents listed in the First Schedule to this order permitted by paragraph 1 of this order ("the documents") that the CPS and [XYZ] and any person to whom the CPS or [XYZ] in accordance with the terms of this order hereafter discloses any of the documents or any information contained in them shall unless otherwise authorised or directed by order of this court at all times comply with the provisions of the Second Schedule to this order; and
(2) subject only to the express terms of this order all the documents are and remain subject to the provisions of section 12 of the Administration of Justice Act 1960 (as amended)
AND UPON the CPS by its counsel and [XYZ] by counsel for the Defendant (being their counsel for this purpose) undertaking
(a) to comply at all times with paragraphs (1) (2) (3) and (5) of the Second Schedule to this order; and
(b) to serve a copy of this order at the same time upon any person to whom any of the documents or any information contained in them is disclosed or communicated in accordance with paragraph (3) of the Second Schedule to this order; and
(c) to bring the terms of this order to the attention of the Judge conducting the criminal proceedings in the Crown Court
AND WITHOUT PREJUDICE to
(a) section 12 of the Administration of Justice Act 1960 (as amended);
(b) section 97(2) of the Children Act 1989 (as amended); and
(c) any order under the Children and Young Persons Act 1939 that may have been or may hereafter be made by the Crown Court;
AND FURTHER WITHOUT PREJUDICE to section 98(2) of the Children Act 1989 (as amended)
IT IS ORDERED THAT:
1 There be leave to the local authority to disclose to the CPS and to [XYZ] and the local authority is hereby directed to disclose to the CPS and to [XYZ] within 7 days of the making of this order copies of the documents listed in the First Schedule to this order provided that the local authority shall prior to disclosing the same to the CPS and to [XYZ] delete from the documents the names of the Defendant's wife and of the children the subject of the care proceedings and substitute therefor the initials … respectively.
2.1 The CPS and [XYZ] and any of the persons referred to in paragraph (3) of the Second Schedule to this order are to be at liberty to apply with a view to the discharge or modification (i) of the provisions of the Second Schedule to this order and (ii) in the case of the CPS and [XYZ] also of their undertakings.
2.2 Any such application shall be made to a judge of the Family Division of the High Court of Justice (Mr Justice Munby if available and for this purpose he is not to be treated as not being available merely because he is not sitting at … or is sitting elsewhere than in the Family Division).
THE FIRST SCHEDULE
[Details omitted in the interests of anonymity]
THE SECOND SCHEDULE
(1) The documents listed in the First Schedule to this order ("the documents") are and shall remain at all times confidential.
(2) Save with the prior leave of this court:
(a) no part of the documents shall be read into the public record or otherwise put in the public domain;
(b) nothing shall be published that might lead to the identification of any of the persons (other than the Defendant) referred to in the documents; and
(c) no information contained in the documents shall be disclosed at any public hearing or published in any public record of the proceedings of the Crown Court.
(3) Save with the prior leave of this court the CPS and [XYZ] shall not disclose any of the documents or communicate any information contained in them to any person other than:
(a) any barrister solicitor or other advocate acting for the Crown or for the Defendant (as the case may be); or
(b) any psychiatrist or other expert instructed to advise or give evidence on behalf of the Crown or the Defendant (as the case may be);
in relation to the sentencing of the Defendant in the existing criminal proceedings … against him in the … Crown Court.
(4) Save with the prior leave of this court no person to whom any of the documents or any information contained in them has been disclosed or communicated in accordance with paragraph (3) above shall disclose or communicate the same to any other person.
(5) Save with the prior leave of this court neither the CPS nor [XYZ] nor any person to whom any of the documents or any information contained in them has been disclosed or communicated in accordance with paragraph (3) above shall make any use of the same for any purpose other than for or in connection with the sentencing of the Defendant in the existing criminal proceedings … against him in the … Crown Court (including any 'Newton' hearing conducted in relation thereto).
(6) Nothing in paragraphs (3) and (4) above shall prevent the CPS or [XYZ] or any person to whom any of the documents or any information contained in them has been disclosed or communicated in accordance with paragraph (3) above disclosing or communicating the same to the Judge conducting the sentencing of the Defendant in the existing criminal proceedings … against him in the … Crown Court (including any 'Newton' hearing conducted in relation thereto)."
The application by the local authority
- The local authority's case, supported by Mrs X and by the guardians of all four children, is simple. These are all, albeit in their individual and different ways, unusually and exceptionally vulnerable children. The concern is to protect the children from damaging exposure to possibly salacious publicity, particularly A, B and C who are all of an age to be aware of any media attention.
- It is said that any identification of the children would place enormous pressure and strain upon each child and upon the family unit as a whole. Any publicity about the children would serve to undermine the efforts of the local authority to protect and support the children who remain in the care of Mrs X. Mrs X has herself suffered greatly, and any further strain could lead to her being unable to continue her vital role in caring for them. This is a family which has been through a great deal and there is much to repair. Public interest in the family (in contrast to legitimate public interest in the Defendant) could destabilise the placement, leading to a very real likelihood of the family being split up. The consequences for the children of any further family breakdown could be devastating. Whilst accepting that the public has a right to know what goes on in the Crown Court, there is, it is said, no public interest in causing the children unnecessary suffering and jeopardising their future lives as a result of the Defendant's wrongdoing.
- This is a case, in my judgment, in which it is very clear that the children need to have protected and kept confidential their identities and (see paragraph 5 of the order set out in paragraph [74] below) their connection with the Defendant and his crimes and the fact that they have been involved in care proceedings. Paragraphs 4 and 5 of that order, which follow very closely what can conveniently be called the 'standard' form of order used in this situation in the Family Division are, I am satisfied, a necessary and proportionate means of giving effect to the children's privacy interests protected by Article 8, just as I am satisfied that an order in the terms of those paragraphs properly holds the balance between the children's interests and all the other interests in play.
- I recognise the sceptical views expressed in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, both by the President (at para [51]) and by Wall LJ (at para [145]) as to the likely need for specific orders protecting a child's identity beyond the conclusion of the proceedings. As Wall LJ said, "there are unlikely to be many cases in which the continuation of that protection will be required." But the present is an untypical case. These are, to repeat, more than usually vulnerable children. They are, in my judgment, exceptionally vulnerable children. The criminal activities of the Defendant have already led to considerable publicity in the media in circumstances where there is a distinct likelihood that further criminal proceedings will lead to further extensive publicity which, as I have said, is likely to be all the more intense and intrusive because of the existing criminal proceedings.
- The children, in my judgment, have a strong claim to the ongoing preservation of their anonymity. That claim outweighs, and outweighs very heavily, any contrary argument that they should be exposed to the risk of being identified (and thus linked to the Defendant, who has already been publicly identified and named in the media) merely because the automatic protection conferred on them by section 97(2) of the 1989 Act either has fallen or may shortly fall away.
- The much more difficult problem arises out of the very fact that the Defendant has been identified and named in the media and, moreover, in the context of criminal proceedings in the Crown Court. This is the aspect of the case that, understandably and appropriately, particularly exercises the Press Association.
- The Press Association's concern is simply that it – in common no doubt with other organs of the media – should be allowed to report the criminal proceedings against the Defendant without being subject to any additional reporting restrictions.
- Appropriately the Press Association places heavy reliance upon what Lord Steyn said in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, just as it relies also upon the decision of Sir Mark Potter P in A Local Authority v PD and another [2005] EWHC 1832 (Fam).
- In In re S at para [30] Lord Steyn said:
"A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law"
Earlier (at para [18]) Lord Steyn had referred to "the ordinary rule … that the press, as the watchdog of the public, may report everything that takes place in a criminal court." He added:
"this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under Article 8."
- In essence the submission of the Press Association is that there are absent in the present case the "unusual or exceptional circumstances" which alone can justify the grant of an injunction restricting the reporting of criminal proceedings held in open court.
- I am quite satisfied that, in principle, the media must be free to report the criminal proceedings in whatever way they wish and without being subjected to reporting restrictions imposed by the family court. (The imposition of any reporting restrictions by the Crown Court is, of course, a matter for the Judge conducting the proceedings in the Crown Court to decide.) The media must be entitled to identify the Defendant and (if they wish) to publish his photograph. Assuming that these details are referred to in the course of the proceedings in the Crown Court, the media must likewise be entitled to identify his victim and her occupation. Furthermore the media must be entitled to publish anything said in the course of the criminal proceedings as to the circumstances in which the Defendant committed the offence. In other words, this is not a case where the children's interests can possibly justify the anonymisation of the Defendant. The public is entitled to know who the man is who committed this savage attack on the social worker.
- The children will have to endure the misery of reading about the Defendant in the print media and, no doubt, watching televised reports of the criminal proceedings. But that, I am afraid, is something from which, in accordance with the principles to be distilled from In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, they cannot legitimately claim to be protected.
- It is, when all is said and done, merely an unhappy fact of life, and a reflection of the reality that none of us can choose our parents, that whilst most children live 'normal' lives away from the glare of media interest, the children of the famous may have to endure the dubious privilege of living in the reflected media glow surrounding their parents whilst the children of the infamous may be forced to endure the painful experience of having to try to shelter themselves from the more merciless attentions of the media.
- Accordingly, the order contains (in paragraph 6(a)) an 'open court' proviso.
- In the particular circumstances of this case that proviso requires to be qualified in one respect. The effect of the earlier order I had made on 4 May 2007 was, of course, to restrict the amount of material about the children and about (or derived from) the care proceedings that can be disseminated. But there was nothing in that order to prevent reference in open court in the criminal proceedings either to the names of the children or to the fact that they had been involved in care proceedings. And those are the very things which as I have already explained (see paragraph [56] above) require to be kept out of the public domain. Now it may well be that none of these matters will in fact be referred to in open court during the hearing of the criminal proceedings, but that is not something I can safely assume. Accordingly in my judgment this is a case where the interests of these exceptionally vulnerable children require, but only, I emphasise, in this one limited respect, a qualification to the usual form of 'open court' proviso.
- This is, in the sense in which Lord Steyn used the words in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, a case where there are "exceptional circumstances," but even so those circumstances justify only this very modest invasion of the media's otherwise unqualified right to report the proceedings in the Crown Court. Any such invasion can be justified only if the circumstances are "unusual or exceptional," but even then, of course, the particular invasion must be proportionate and must go no further than is strictly "necessary" (in the Convention sense) to protect the other interests that are engaged. I am satisfied that this limited qualification to what would otherwise be the appropriate form of 'open court' proviso is indeed necessary, but I am wholly unpersuaded that any further qualification can be justified.
- The drafting of orders such as the one I propose to make is inevitably a matter of some difficulty and those, lawyers, journalists or others, who are not entirely familiar with the nuances of the form may readily be forgiven if they do not find the effect of paragraphs 4, 5 and 6(a) immediately obvious. It is accordingly desirable that the order should spell out, as it does in paragraph 6(b), that nothing in the order prevents the media or anyone else publishing in relation to the criminal proceedings against the Defendant:
"(i) particulars of the offence with which he has been charged and to which he has pleaded guilty (including the name and occupation of his victim … but not the fact that she was involved with the care proceedings) (ii) the fact that at the time of the offence [the Defendant] was living at [name of township] (but not the precise address) and (iii) any information referred to in any public sitting of the Crown Court as to the circumstances in which he committed that offence."
- That serves also to emphasise what is fundamental, that although the 'open court' proviso in paragraph 6(a) is qualified, that limited qualification (as I believe it to be) does not prevent what is in substance full reporting of the proceedings in the Crown Court.
- It will be noted from paragraph 6(b) that although there is no restriction on reporting the name of the township in which the Defendant lives, his precise address may not be reported. The children and Mrs X are still living there and their interests require in my judgment that the precise address not be included in any reporting of the criminal proceedings. I recognise that this involves a restriction on the reporting of something that may be referred to in open court in the Crown Court, but the restriction is necessary in order to give proper protection to these exceptionally vulnerable children. It is also proportionate. The public interested in criminal proceedings in the Crown Court have an interest in knowing that a defendant comes from the township of Hampden (I pluck a name at random) but they will not necessarily need in every case to know his precise address – in some cases, of course, there may very well be such a need. Be that as it may, in the circumstances of the present case any public interest in knowing the Defendant's precise address, as opposed to the name of the township in which he lives, is outweighed by the pressing need of the children that the precise address not be disclosed.
- As it happens the address is in the public domain, having been included in previous reports of the criminal proceedings. I recognise that it is a strong thing to qualify the 'public domain' proviso which is a characteristic feature of the 'standard' form of order. But it is clear that the court has power to do so in an appropriate case: see, for example, Re X, Y (Children) [2004] EWHC 762 (Fam), [2004] EMLR 607, at paras [48]-[49]. As I have already said there is a pressing need to ensure that the precise address is not included in any further reporting of the criminal proceedings. The order will therefore contain a 'public domain' proviso in the usual form, qualified only to the limited extent set out in paragraph 6(e) of the order.
- Accordingly on 8 May 2007 I made an order in the following terms:
"1 This Order is made without prejudice to
(a) section 12 of the Administration of Justice Act 1960 (as amended);
(b) section 97(2) of the Children Act 1989 (as amended);
(c) any order under the Children and Young Persons Act 1939 that may have been or may hereafter be made by the Crown Court; and
(d) any other prohibition or restriction implied by law.
2 Duration
This Order shall have effect until further Order.
3 Who is bound
This Order binds all persons, including [Mr X] (whether acting by themselves or by their servants or agents or otherwise howsoever) and all companies (whether acting by their directors or officers, servants or agents or otherwise howsoever) who know that the Order has been made.
4 Publishing Restrictions
Subject to paragraphs 5 and 6 of this order this order prohibits the publishing or broadcasting in any newspaper, magazine, public computer work, internet website, sound or television broadcast or cable or satellite programme service or any media broadcast of:
(a) The names and addresses of (i) any of the four children whose details are set out in the Schedule to this order ("the Children"), (ii) [Mrs X] ("the Mother") or (iii) [Mr X] ("the Father");
(b) The names and addresses of any properties at which any of the Children may from time to time reside;
(c) Any photographic or other image of the Mother, the Father or any of the Children;
(d) The names and addresses or details (i) of any educational or social establishment which any of the Children shall from time to time attend or (ii) of any residential home or hospital or other establishment in which any of the Children may from time to time be cared for or treated (an "establishment");
(e) The name and address of any person who may from time to time care for or have medical responsibility for any of the Children (a "carer");
(f) The name and address of any social worker involved with any of the Children or with the care proceedings relating to the Children ("the care proceedings");
(g) Any other particulars likely or calculated to be likely to lead to the identification of any of the Children;
(h) Any details of any criminal charges or proceedings relating to the Father in so far as they reveal matters relating to the care proceedings.
5 Paragraphs 4(a)-(g) of this Order only prohibit such publication or broadcasting if the matter being published or broadcast is either on its own or if taken in conjunction with any other material in the public domain likely or calculated to be likely to lead
(a) in the case of any of the Children to their identification (i) as being or having been involved in care proceedings or (ii) as being related to the Father or (iii) as being related to a man who is or has been the subject of criminal proceedings;
(b) in the case of the Mother (i) as being or having been involved in care proceedings or (ii) as being or having been married to the Father or (iii) as being or having been married to a man who is or has been the subject of criminal proceedings;
(c) in the case of the Father (i) as being or having been involved in care proceedings or (ii) as being or having been married to the Mother or (iii) as being related to any of the Children;
(d) in the case of any establishment as being a place which any of the Children is attending or has at any time attended or at which any of the Children is being or has at any time been cared for or treated;
(e) in the case of any carer as being a person who has or has at any time had the care of any of the Children;
(f) in the case of any social worker as being or having been involved with any of the Children or with the care proceedings.
6 What is not restricted by this Order
Nothing in this Order shall prevent any person from:
(a) publishing information (other than the information referred to in paragraph 4 of this Order) relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;
(b) publishing in relation to the criminal proceedings … against [Mr X] in the … Crown Court (i) particulars of the offence with which he has been charged and to which he has pleaded guilty (including the name and occupation of his victim [name] but not the fact that she was involved with the care proceedings) (ii) the fact that at the time of the offence [Mr X] was living at [name of township] (but not the precise address) and (iii) any information referred to in any public sitting of the Crown Court as to the circumstances in which he committed that offence;
(c) publishing information which is not restricted by paragraphs 4 and 5 above;
(d) inquiring whether a person or place falls within paragraph 4 above;
(e) publishing any information (other than the precise address at which [Mr X] was living at the time of the offence) which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales
7 Service
Copies of this Order endorsed with a penal notice warning of the consequences of disobedience shall be served by the applicant and any other party:
(a) by service on the national and local media by fax or first class post;
(b) on such other persons as the parties may think fit, by personal service.
8 Further applications about this Order
The parties and any person affected by any of the restrictions in paragraphs 4 and 5 above may make application to vary or discharge it to a judge of the High Court on not less than 48 hours notice to the parties.
THE SCHEDULE
[Details omitted in the interests of anonymity]"
Afterword
- Since I made the order on 8 May 2007 the family proceedings in respect of D have come to an end.
- As anticipated, the criminal proceedings came before the Crown Court on 15 May 2007. Sentence on the Defendant was again adjourned. On 15 June 2007 the Defendant was sentenced. He was given an indefinite prison sentence coupled with a direction that he must serve a minimum period of eleven years and eight months before he can be considered for parole.
- No application had been made, either by the CPS or by the Defendant, for the release of any further documents into the criminal proceedings or for any relaxation of the conditions imposed by my order of 4 May 2007. It would seem, therefore, that the disclosure made in accordance with that order has sufficed for the purpose of enabling the criminal proceedings to be properly and fairly disposed of.
- Not surprisingly, the proceedings in the Crown Court attracted further publicity not merely in the local but also to an extent in the national media. No-one had sought to vary or discharge the order I had made on 8 May 2007 but, as I had hoped and intended, the existence of that order does not seem to have prevented the reporting of the criminal proceedings, to all intents and purposes in full.
