The High Court considered an application to extend a Reporting Restriction Order on a 17 year old, AB, which would expire when she became 18 to be throughout her life.
Birmingham City Council and Riaz 2015
AB was the victim in a high-profile case of child sexual exploitation – you may remember it as the one where Keehan J, in the High Court, made an order that the adult males suspected of having abused AB would be (a) subject to orders preventing them from being around children and (b) named and shamed, so that the press were able to report their names and print photographs alongside a story that they were men who had targeted and groomed children for sexual purposes.
Remember that in that case, there had been no criminal trial and was never likely to be, and that the men had not gone through a process of contesting the allegations and having the Judge decide whether they were true. Just that on the civil standard of proof the evidence was such that an order preventing them from harming other children was appropriate.
The Local Authority, Birmingham applied to extend the Reporting Restriction Order on AB for her whole life. They argued that AB was a victim, that any story about the case could be told without her name, that she had been a child and deserved protection not press exposure and no doubt that if the result for AB of having told her story and made her allegations was that she was made notorious and everyone who met her would know for the rest of her life what happened to her, that would deter other victims.
The Press were not arguing that they wanted to name her, but were concerned about a precedent emerging.
When looking at the case, Keehan J identified that as a result of s78 of the Criminal Justice and Courts Act 2015, Criminal Courts had the power to make orders saying that the name of a victim or a witness could be subject to an order that it not be reported. There is also an authority of the Court of Appeal JXMX v Dartford and Gravesham NHS Trust  EWCA Civ 96 that permits such orders being made to preserve the anonymity of children who receive financial settlements. Again, that makes perfect sense – if you receive compensation for something terrible in your childhood, why should everyone that you meet in your life get to know all the personal details?
With this sort of case, it is more tricky.
As was put to Keehan J, an order preserving the anonymity and identity of an adult [other than as the result of Court of Protection or care proceedings/adoption] has happened in three cases in English legal history.
The cases are all pretty notorious – Mary Bell, Thompson and Venables, and Maxine Carr. It is no small thing to add a name to that list.
On the pro side of things, I’d probably argue that those were all people who did something wrong (and where a child died as a result – Maxine Carr having the lowest culpability), whereas AB was a victim. Why on earth should a victim get less protection than a person who was responsible to some degree for the murder of a child?
On the con side, the three cases above involved a CHANGE of identity. The press and public knew who Mary Bell and the others were, and indeed photographs were available. The press can publish those photographs even now. The public wasn’t being told that they couldn’t know that Mary Bell had killed a child, they just couldn’t know her new identity.
I’m struggling to be balanced here, since for me the case for AB to have anonymity for life is overwhelming, but I can see that it is establishing a precedent (and just with the inherent jurisdiction cases, there’s a later danger that such a precedent in a deserving and solid case can be later used to advance the jurisdiction further and further away)
Mr Dodd, for the Press Association (given a tricky brief) did pretty well with it
- Mr Dodd submits that the court should proceed cautiously before filling in a lacuna left by Parliament. He referred me to paragraph 20 of the opinion of Lord Steyn in the case of Re S(FC) (A Child)  UKHL 47 where he said:
“20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”
- Of particular note is the caveat entered by Lord Steyn to the courts creating further exceptions to the general principle of open justice “except in the most compelling of circumstances”.
Keehan J considers matters in a very thorough manner and it is an exemplary judgment (whilst I think that some of the analysis in the initial Riaz case is not as rigorous as I would have hoped, given the serious nature of what was being done there and the likelihood that the approach would be used in other later cases, I can’t fault this judgment)
- I entirely accept the high importance accorded to the general principle of open justice. It was because of the considerable public interest in the issue of CSE that I directed the matter to be heard in open court in October 2014 and thereafter.
- The mere fact that there are only three reported cases of lifelong anonymity being granted in civil/family proceedings, should not deter me from undertaking my primary task which is to undertake a rigorous analysis of the competing Article 8 rights of AB and the Article 10 rights of the press and broadcast media.
- It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
- What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
- AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.
- I accept the Press Association and the Times do not wish to identify AB, but their approach does not bind and may not reflect the approach of other members of the press or broadcast media or those who use social media sites.
- I take account and accord considerable weight to the serious adverse consequences for AB if she were to be identified as a victim of CSE in the press, broadcast media or on social media sites. I accept the opinions and conclusions of the social worker and the psychologist. AB remains a very vulnerable young woman. In my judgment adverse publicity about her as a victim of CSE is likely to have a serious deleterious effect on her emotional and psychological well being.
- I have earnestly reflected on this difficult issue of whether I should grant a RRO to afford AB lifelong anonymity. I have taken account of the high priority accorded by Parliament and the courts to the protection of victims and especially to young people.
- I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.
- I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.