Reporting restriction orders – a pragmatic suggestion

London Borough of Waltham Forest and AD 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1985.html

This was an application by Waltham Forest for a Reporting Restriction Order to prevent the Press from naming a 3 year old child who had been present when her father murdered her mother. There’s evidently a criminal trial coming up, and there’s a substantial human interest story in the tragic circumstances of this little girl. The Press were always going to run the story – the issue for Waltham Forest was whether the Press should run that story WITHOUT identifying the child.

• Miss Howard, in her submissions, also refers to the expert reports provided by Dr. Jones, a consultant psychiatrist and Dr. Graham, a psychologist, in the public law care proceedings. They have both examined and assessed EI. They, understandably, set out the dreadful emotional and psychological impact that witnessing the death of her mother will have on EI, compounded by this tragic loss of her mother and, if her father is convicted, the loss of her father for a considerable period of time. Their assessments are deeply troubling to read as to the future that EI now faces. Everybody will undoubtedly have the greatest possible sympathy for the terrible position that EI finds herself in now and will undoubtedly do for the rest of her life. I note that neither of those experts have been asked to give an opinion on what potential further damage, if any, publicity about EI and her mother and father would have upon her.

• In the submissions on behalf of the local authority it is asserted that if EI is identified as being the child involved in this case, it will have an adverse impact on her. It is asserted that it would thwart the therapeutic process that she is engaged in now and will continue to be involved with for some time to come. It is asserted that although the reporting of the father’s trial may be of short duration – a matter of a few days or a week – anything which appears on the internet will be there for the rest of EI’s life and that were she, when she is older, to come across her name in association with her mother’s death and her father’s trial, it may have an adverse impact upon her. It is further asserted that if, in her daily life – when she starts school, for example – friends or others were to search her name on the internet, they would raise her family history with her and that would undo the benefits of the therapy that she has received and will receive. Accordingly, it is submitted that it is necessary for the court to grant a reporting restriction order in narrow terms that would prevent the publication of EI’s name.

The Press Association took a slightly different view

• Mr. Dodd makes the submission that the matter has already been the subject of press reporting. However, he makes the powerful point that the evidence of harm to EI, if she is named, is speculative. He also makes the strong submission that the question is not, “Why should the press name EI?” but rather, “Why may the press not name EI?” He further submits that the issue of the use of EI’s name in connection with the reporting of the father’s criminal trial and the death of the mother is a matter to be left to the decisions of individual editors. He also makes the powerful point that just because some elements of the press or broadcast media, or others, may misuse the naming of EI is not a justification or a reason for injuncting the whole of the press.

• Lord Rodger of Earlsferry observed in Re Guardian News & Media Ltd. & Ors. at paragraph 72,

“Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra’s identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation”.

• In considering the competing Articles – Article 10 and Article 8 – and in considering the merits of the application made by the local authority one of course has the greatest possible sympathy for EI. She very sadly will have to live with the tragic events of 31 July, 2013 for the rest of her life. The decision I have to make, however, is whether there is sufficient evidence of harm to EI if she is named, which when balanced against the freedom of expression under Article 10 of the press & broadcast media, it is an absolute necessity for me to make the reporting restrictions order sought. Mr. Dodd tells me, and I accept, that some newspaper editors have already made the decision that they will not name EI in any reporting of the father’s criminal trial.

They put the question very powerfully, and in the correct way in law – the question is not “Why should the Press name EL?” but “why should the Press not name EL?”

The Judge was not persuaded that the article 8 right to privacy for the child outweighed the article 10 right to free expression and declined to make the Reporting Restriction Order.

• I accept that EI faces, emotionally and psychologically, a very difficult future. I accept that there is a possibility that if she is named in either the press or the broadcast media – in particular, on the internet – that at some future date she may come across that and it may cause her some distress or other people with whom she is associated may come across it and mention it to her. That, I accept, may cause her some distress.

• However, I am not satisfied that there is clear or cogent evidence that that risk would either thwart the therapy that she is receiving or would undoubtedly undo the benefits she may derive from her therapy. I consider the potential risks of further harm to EI, if she is named in connection with the reporting of her father’s trial, to be speculative and speculation. Even if I am wrong about that, the risks of further additional harm to EI do not overcome the high hurdle that is required for the granting of a reporting restrictions order. If one was solely concerned with the welfare best interests of EI it may well be that the court would want to take the course of least harm to EI and, accordingly, would make an order. That is not the position the court is in. The court is having to balance the Article 8 rights of EI with the Article 10 rights of the press and broadcast media. I am not satisfied that the naming of EI and the risks of that to her are so clear or compelling that it justifies placing a restriction upon the press and broadcast media in the manner in which they report the father’s trial. It is submitted on behalf of the local authority that this case is very different from other reported cases because the child was present when her mother was killed. I accept that is an extremely unusual feature. But, I also have to accept that that feature is one which will be, I have no doubt, of considerable interest to the press and broadcast media and to their readers, viewers and listeners.

The more important issue is the Judge’s pragmatic suggestion for Local Authorities in this sort of situation in future (no doubt with an eye to the costs to the public purse and the time pressures on the Courts)

Mr Dodd (for the Press Association) submits that applications for reporting restriction orders by local authorities are increasingly being made at considerable cost in time and money. I endorse his submissions that local authorities, in particular, ought to give very careful thought to alternative means of achieving the aim that they seek when they apply for a reporting restriction order – namely, local authorities should, in future, consider writing to editors of the press and broadcast media, inviting them, for example, not to name a particular child or children in connection with a particular story and setting out clearly, within that letter or e-mail, the reasons in support of such a request. That, alternatively, could be done by sending a letter or an e-mail to what is now the Press Complaints Commission, which will be replaced by the Independent Press Standards Organisation, who may then be requested to transmit the letter or e-mail more widely to the press and broadcast media. In my judgment, that is a course which local authorities should first consider and should first make before launching applications for reporting restriction orders.