“Don’t put your daughter on the stage – if you want to claim Disability Living Allowance for her”

The High Court have just published twin judgments on an interesting case, relating to reporting restriction orders – Re Z  v News Group Newspapers 2013

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1150.html

 Is the first one, at which the Reporting Restriction order was sought and obtained  (I think with a late sitting hour)

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1371.html

 Is the second one, at which the Court determined how that Reporting Restriction Order would be altered if the outcome of the criminal trial was that mother was convicted.

 It is a peculiar one, since although the children in the case were pivotal to the offences, they were neither victims of the alleged offences, nor witnesses in the criminal trial, which meant that all of the restrictions on reporting from the criminal trial which would otherwise ensure the anonymity of the children were dislodged.

 It became apparent to the children’s father that the national press were interested in the story (for reasons which will become apparent) and he therefore made a stand-alone application to the family courts for a Reporting Restriction Order.   These two cases are a very good summary of the competing interests of article 8 privacy, and article 10 freedom of the press.

 Why was the Press interested?  Well, this background  (and the current context of ‘benefit cheats’ ) explains why

13. Mrs Z is the mother of eight children. They are A (aged 23), B (aged 21), C (aged 19), D (aged 16), E (aged 15), F (aged 12), G (aged 9), and H (aged 7).

14. The Applicant is the father of D, E, F, G, and H. It is the Applicant’s case (see para.4 application) that the oldest six children (A, B, C, D, E and F) all have special needs. Five of the mother’s children, A, C, D, E, and F are cited in the indictments to which I have referred (and which I discuss more fully below); of those, three of them (D, E and F) are currently minor children.

15. The trial of Mrs Z focuses on a number of claims for Disability Living Allowance (DLA), Carer’s Allowance (in respect of the child C) and other tax credits which Mrs Z is alleged to have made in respect of a number of her children, over an extended period of ten years.

16. The prosecution case, in summary, is that Mrs Z was not entitled to those non-means tested benefits, and she knew that she was not so entitled. It is alleged that Mrs Z had made these claims based on the assertion that five of the children “suffered from problems with their speech and language, physical disabilities, mental health problems and severe learning disabilities and behavioural problems” (§1.4 prosecuting opening note) including “handicaps, phobias and intolerances e.g. ‘difficulty with walking’, ‘poor co-ordination’, ‘poor spatial awareness’, ‘unclear speech’, ‘fear of crowds’, ‘difficulty following instructions’, ‘difficulties getting dressed’, ‘cant wash or bathe’ and ‘needs help with toilet’” (§1.4 ibid.). These claims were reported to be independently verified, including (in some respects) by a consultant paediatrician, Dr. K.

17. Proof of the falsity of the claims, asserts the prosecution, is that the disabilities and problems which Mrs Z claimed her children were suffering were not compatible with their various activities and other achievements. In particular, for periods of time when Mrs Z was asserting (for the purposes of the benefit claim) that the children suffered “various disabilities and conditions which materially affected their care and/or mobility needs” (see §1.3 prosecuting opening note), they were (according to the Crown) all in mainstream school, successful in their academic subjects, and apparently able to undertake physical exercise in school.

18. Perhaps most notably, it is said that three of the children attended a specialist theatre school, became successful child actors/actresses and appeared in amateur and professional productions in regional theatres, and even on the West End stage, including appearances in a number of well-known and successful productions; they appeared on the television. In their theatrical and public roles they were said to be involved in acting, dancing, and singing – “wholly inconsistent” (says the Crown: §1.9) “with the care and mobility needs described by the defendant“.

Yes, one can see in the light of that, and the information that the total sum of alleged fraud with which mother was charged amounted to £365,000 , why there were print journalists at the trial, frantically licking their pencil tips and writing punning headlines   (for shame, punning headlines are a dreadful sin)

 So, the competing interests here were in the press being able to report on a criminal trial   [see the quotation below from the Trinity Mirror case] and on the protection of children who were, although not victims per se of the alleged offences, were certainly innocent of them and who might very well be stigmatised were their identities made public

1. “In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, is the defendant’s “birthright”. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case“.

The Court were unsurprisingly taken to a very recent authority balancing article 8 and article 10, particularly on preserving anonymity of children in a case where their mother was convicted of remarkable offences clearly in the public interest to report  – the case bears careful reading, if you have not already encountered it

44. The application of the balancing exercise can be found in a number of cases in the Family Division, and increasingly in the Court of Protection. One of the most recent decisions is that of Peter Jackson J in A Council v M, F, and others [2012] EWHC 2038 (Fam) in which he said this (at §82-84):

82. The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case. As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

83. Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality. Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many. The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.

I respectfully adopt this analysis.

The Court tried very hard to balance what could or could not go into the public domain, and recognised the legitimate public interest in the public knowing that taxpayers money earmarked for the most deserving and needy of families had been diverted by means of fraud.   Whilst the criminal trial was pending, a widely drawn Reporting Restriction Order was in place.

The Press, understandably, wanted to test whether this would be more narrowly drawn if the mother went on to be convicted at trial, hence the second judgment.

The Judge did indeed draw the order more narrowly, whilst still striving to protect the anonymity of the children,

30. In reaching conclusions on the supporting information, I have sought to strike the appropriate balance between competing Convention rights, guarding against disproportionate interference with each. In this respect I have concluded that if, but only if, such publication is likely to lead to the identification of the children, adult children, or Mr Z as being involved or named in the criminal proceedings heard at the named Crown Court, and/or as being the children of the defendant (hereafter Mrs Z):

i) There shall be no publication or broadcasting of the forenames of the children, including the adult children, so as to protect, as far as I am able, some cherished rights to privacy; this applies particularly for the child E, and to a lesser extent D and F, but in view of my intention to reduce identification and unwarranted intrusion into family life for their sake and generally, the other children too;

ii) For the same reason, there shall be no reporting of any picture being or including a picture of either the children, the adult children, or the Applicant Mr Z;

iii) Given that the Applicant, Mr Z, is likely to be assuming the care of the younger children in the event that Mrs Z receives a custodial sentence, there shall be no reporting of his forename, consistent with my desire to respect so far as is possible some Article 8 privacy for the children;

iv) There shall be no reporting of any medical conditions or disabilities which the children (whether adult or minor) are said to suffer other than those conditions or disabilities which were said to have been reported by Mrs Z in the context of her claims for benefit; for the avoidance of doubt, there shall be no public reporting of the contents of the recent CAMHS letter concerning child E;

v) There can be identification of the Crown Court (and the trial Judge) at which the trial has taken place, and the County in which the family live. No more specific information relevant to the address or location of the family is justified;

vi) There will be no restriction on reporting of the fact that the children concerned are a sibling group of eight. In reaching my conclusion on this aspect, which I found less easy than other aspects to resolve, I took the view that this information did not of itself materially add to the identification of the family in such a way as to interfere with their Article 8 rights, given the general availability of other information which will be available in accordance with my order.

 And you will note that this obviously allows the naming of Mrs Z, and publication of photographs of her, allows for the facts outlined in the background already included to be published.

 The Judge ends with a very pithy conclusion

 In my judgment, those who cheat the over-stretched resources of the welfare state can neither generally nor reasonably expect to escape the proper reporting of their wrongdoing, or hope to achieve the concealment of their identities. It is with considerable regret that in varying the Reporting Restriction Order in the event of a conviction, I will expose the children of Mrs Z to the risk of identification. A guilty verdict would reflect the jury’s satisfaction that Mrs Z had improperly used her children as innocent instruments of her crime; if this is the outcome of the criminal process, then it is she alone who has unhappily heaped upon her family the misery, shame and disadvantage, which is the inevitable consequence of her offending.