Practice and Procedure


PUBLISHED July 10, 2003

Although the judge had not correctly expressed the balancing exercise to be carried out between a child's right to privacy under Art.8 European Convention on Human Rights and the right to free speech in Art.10 of the Convention he had been correct not to restrain identification of a child's family in criminal proceedings where the publicity would not impact on the child's upbringing and the paramountcy of welfare principle in s.1(1) Children Act 1989 could not be invoked.Appeal by a child ('S') from the decision of Hedley J that although the court could exercise its jurisdiction to restrain the publication of the identity of a defendant (S's mother) and her victim (S's brother) in a murder trial to protect the privacy of S who was the subject of care proceedings, it would not on this occasion do so. The issues on appeal were: (i) whether as a matter of principle the inherent jurisdiction of the high court to protect children from publicity should never be used to prohibit identification of the defendant in a criminal trial for the sake of a child to whom s.39 Children and Young Persons Act 1933 did not apply or whether it could and should be used to fill the gap where the interests of the child justified this; (ii) if such jurisdiction was exercisable the proper approach to be taken to, on the one hand, the right to freedom of expression both at common law and under Art.10 of the European Convention on Human Rights, and, on the other hand, the welfare of the child and his right to respect for his private and family life under Art.8 of the Convention. S submitted inter alia that the subject matter of the care proceedings and the criminal proceedings were so intimately connected that in deciding what publicity should be given to the criminal proceedings the court was determining a "question with respect to the upbringing of a child" within the meaning of s.1(1) Children Act 1989, therefore as the court was exercising its custodial jurisdiction, the child's interests were paramount.HELD: (1) In deciding whether or not to make the order the court was not exercising it's jurisdiction over how S was to be brought up. That had been done in care proceedings. Nor was it deciding how any aspect of parental responsibility should be met. This was therefore not a case where the child's welfare was the paramount consideration. (2) Where a set of circumstances arose not covered by statute the court should be slow to extend the incursion into the right of free speech by the use of inherent jurisdiction. (3) The inherent jurisdiction of the court in care proceedings had developed inconsistently but when the case law was reviewed the present case fell within the scope of "protective jurisdiction". (4) The information to be published related to events within S's recent family life in which he was directly involved and which would continue to have a serious impact upon the way in which he would be brought up. Although the information sought to be restrained related to the identity of the defendant and victim in a murder trial, this added dimension (see R v Central Independent Television plc (1994) Fam 192) did not take it out of the category where no jurisdiction existed. (see Re Z (A Minor) (Identification: Restriction on publication) (1996) 2 WLR 88). (5) In deciding whether to exercise it's jurisdiction to restrain publication the court had to consider both Art.8 and Art.10 of the Convention as independent elements. Section 12(4) Human Rights Act 1998 did not give pre-eminence to either Art.8 or Art.10. (6) The importance of Art.6 of the Convention, lay in the values it was there to protect and the impact of those values upon the exercise of the right to freedom of expression in Art.10. (7) The Convention required a careful balancing exercise. In considering the proportionality of the proposed interference with the right of S to respect for his private and family life, the judge had to consider the magnitude of the interference proposed and then consider what steps were necessary to prevent or minimise that interference. (8) When the balancing exercise was carried out it could be seen that as the incident and the parties were already in the public domain, anonymity would only have a mitigating effect. On the other hand there was a clear and proper interest in knowing the name of the defendant in a murder trial. (9) (Hale J dissenting) Although the judge did not express the balancing exercise in the required manner he nonetheless had the issues he was required to balance well in mind and would not have reached a different conclusion if he had carried out the correct balancing exercise.Appeal dismissed.

[2003] EWCA Civ 963