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For his own amusement

“It was a bright cold April day and the clocks were striking thirteen”

“Hale knew, before he had been in Brighton three hours, that they meant to murder him”
“All this happened, more or less”
“It was a queer, sultry summer, the summer they electrocuted the Rosenbergs and I didn’t know what I was doing in New York”

Those are great opening lines (1984, Brighton Rock, Slaughterhouse Five and The Bell Jar, respectively)

This is one of the best opening lines in a judgment I’ve ever seen.

“First of all, my decisions. I find proven the following facts, and I am taking them in chronological order, as regards the BB gun incident, I find as a fact that F deliberately shot W with the BB gun for his own amusement”

Tell me you’re not hooked.

The words were crafted by His Honour Deputy Circuit Judge Brasse (This is my first time with one of his judgments, and he has sky-rocketed to very high up on my list of Judges that are always worth reading)

Kent County Council v A,B,C and D (Children : Weight to be attached to evidence of child after flawed ABE interviews) (Rev 1) [2017] EWFC B72 (01 March 2017)

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B72.html

The case involves a lot of findings about sexual abuse, which I’m not going to put into the blog. I don’t have a strong enough stomach for them. And I’m conscious that this blog comes into people’s email in boxes, often early in the morning. So I have spared you all the grim stuff. It’s very grim.

For those who don’t know, a BB gun is commonly known in England as an air rifle. It uses compressed air to fire small pellets. Those pellets can, if the range is wrong, pierce the skin or cause fractures. No normal human being would shoot one at a child.

179. A in her statement says that F was playing with an airgun at their home when he shot W with a pellet in the stomach. On 28 September a teaching assistant, noticed when she was changing for swimming that W had suffered a bruise to her hip. When asked how it happened she stated that she was clumsy and did not know. W then showed the teaching assistant another mark on her lower back. Then she stated that F had shot her there with a BB gun pellet. This was reported to H, the deputy head teacher, on 29 September 2015. She spoke to W, and W recounted that F had been in his bedroom, he had got the BB gun and shot her in the back last week. They were standing next to the bed and he had told her to put on her Mum’s jacket and then had shot her. She did not want to say that it hurt as she gets into trouble for being “mouthy”. H asked her if she had told her mother and W said that she had, and her mother told her that she should not have let F do it.

180. H liaised with 1B from the Social Services Department. At a joint visit by a social worker and DC Mitchell, both spoke to her. She said she got on well with F and did not want to get him into trouble. She said they had been playing a game. She told Detective Constable Mitchell that F had asked her to go into the bathroom and told her to put on her mother’s jacket and then had shot her. The police report made by Detective Constable Mitchell states that W became upset when she recounted this incident. She said that the injury had hurt at the time but she had not wanted to say anything as she “is always getting into trouble for being mouthy”. Later she told her mother, who became cross with her, telling her that she should not have allowed F to do this to her. W said that at the time of the incident the Mother was not present.

181. She gave a more detailed account. She said: “We were playing. I was standing in Mum’s and F’s bedroom playing the shooting game. It’s a BB gun with little white bullets. He was having fun with me. It hit the bottom left of my back and made me cry.” She said that he, F, had “belly flopped” her to try to make her feel better, but it did not work. She said that later that day, playing the same game, he had shot X, but he had protected his leg with a towel. X was hurt on the arm.

182. When the Mother was spoken to, she confirmed that there were BB guns in the house, kept in her bedroom where the children were not allowed to enter. They were not locked away and kept loaded (highly careless with young children around). She recalled an incident when she had heard W cry. She stated that she had not been aware that F had shot W. She seemed to think that Y, then only three years old, had been responsible. She denied that W had ever mentioned to her that F had shot her. She said that F suffered from schizophrenia, which is not true, and Asperger’s Syndrome, which is possibly true, but was brilliant with the children. The Mother reported that the air guns had been removed from the home to F’s parents’ address. In her recent statement A said that when she was questioned at the time she panicked as she did not want to lose the children. She lied and denied that F caused the injury and alleged instead that X had done it. She may have meant Y; that is who she is recorded to have blamed.

183. F was questioned by the police and social workers. He denied using the BB gun in the house or hurting W.

If possible, it is even more distasteful that father sought to deflect blame for this appalling behaviour onto an innocent three year old child.

274. My findings of fact are as follows. Number 3, as regards the BB gun incident, I find as a fact that F deliberately shot W with the gun for his own amusement. Although, as I find, he told her to wear her mother’s jacket to soften the impact of the bullet, it was a grossly irresponsible act which could have caused very serious harm. I find that both the Mother and F punished W for reporting it by angrily scolding her and sending her to stay with Q. It demonstrated the Mother’s inability to protect the child from harm and a willingness to prioritise the interests of her relationship with F above the safety of the child. This was in itself a traumatic experience and did lasting harm by making W very reluctant to confide in professionals assigned to safeguard and promote her welfare, and hence made her more vulnerable to further abuse.

Almost every factual issue in the case was disputed and fell to be decided by the Judge, who provides a master-class in how to deal with disputes in a wide variety of areas. Too many to be completely covered by this blog, so I’m going to pick out a few.

38. The court should take into account the inherent probability or improbability of the relevant alleged incidents. The court, in addition, must not, however, guess or speculate or draw inferences from what are still only suspicions rather than proven facts. Mr Johnson forcefully made the point that in this case there were a number of unproven allegations against his client and this was not the French Revolution where people are found guilty of suspected offences. Mr Johnson’s point is that past allegations are only relevant if proven. He is right. If established, they may well provide evidence of propensity. The Court may, however, arrive at reasonable conclusions based on proven facts.

45. The child’s statements, whilst they must be taken seriously, must not be assumed to be true. The use of the word “disclosure” should not be used in relation to them; they remain allegations until and unless they are proven.

46. There is statutory guidance in Achieving Best Evidence in Criminal Proceedings (March 2011 Edition) which should be followed when conducting the initial questioning of a child to see if there is a matter to be made the subject of recorded interview, and then on how to conduct the recorded interview itself. The guidance lays emphasis on the need for planning; the recording of all decisions to follow, or not to follow specific guidance, or any other matter which materially affects the interview; and on the manner of interviewing a child witness. In this regard the guidance requires the interviewers to explain to the child the ground rules of the interview; to establish whether the child knows the difference between truth and lies; and to allow the child to provide free flowing narrative at their own pace and in their own language, aided rather than directed by the contents and manner of the questioning. Thus, leading questions should be generally avoided; questions should be kept short, taking one fact at a time; and allow the child time to answer.

47. In general, interviews should be conducted as soon as possible after the initial allegation. There should rarely be more than one interview. The responses of the child should not be led or pressured from him. Questions should be simple, factual, and interviews should be kept as short as possible in keeping with the age and concentration span of the child.

48. Mr. Justice Macdonald in AS v TH and BC and NC and SH [2016] EWHC 532 (Fam) stressed the importance of compliance. At paragraph 52, in reviewing the effect of the relevant authorities, he said that “where there has…been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview, but may rely on it together with other independent material to form a conclusion. However, where the court finds that no evidential weight can be attached to the interview the court may only come to a conclusion that relies on the content of the interviews where it has comprehensively reviewed all the other evidence”. This I have endeavoured to do in this case.

49. In Re E (A Child) 2016 EWCA, what emerges from judgement of Lord Justice McFarlane at paragraph 98 is that where there have been numerous and substantial deviations from good practice by police in carrying out the ABE exercise, these need to addressed and analysed to assess their effect on the reliability of the evidence obtained. I have found that guidance of particular help in this case.

50. The evidence of X regarding sexual abuse and W regarding the air gun incident is hearsay, which is admissible in children proceedings pursuant to the Children (Admissibility of Hearsay Evidence) Order 1993. But great caution is needed as the evidence cannot be tested by cross-examination. What weight can be placed upon it should be assessed by having regard to the factors set out in section 4 of the Civil Evidence Act 1995, which applies to family proceedings. Section 114 (2) of the Criminal Justice Act 2003 applies only to criminal proceedings, but is also apposite to any fact finding exercise based on hearsay evidence.

51. I remind myself of section 1 of the Civil Evidence Act 1995. The Act begins with a caution, because it made a radical inroad into the rule that hearsay was inadmissible. Section 4 then gives useful guidance to the court on how to estimate the weight to be given to hearsay evidence. Weight is a legal concept. It means the importance that a tribunal of fact places on a piece of relevant evidence. There is no need to weigh irrelevant evidence. A single piece of evidence can outweigh other evidence. Section 4 sets out that ‘the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence’. Subsection (2) sets out a list and I have each of those factors very much in mind when I weigh evidence of those witnesses who did not give evidence in court. I have directed myself that the factors within section 4 do not comprise an exclusive list, and section 114 (2) of the Criminal Justice Act 2003 lists other factors not included in section 4 of the Civil Evidence Act 1995. I have incorporated those factors when considering the evidence in this judgment too.

On the issue of allegations that the mother continued a relationship with father after learning that he was accused of horrendous sexual abuse of her children, the allegations were in part from identifications and sightings of them together and in part from social media (remember, even following the recent blog post about monitoring of social media that the evidence is admissible even where it is alleged to have been unlawfully obtained – I don’t see any allegation in this case that it was, so let us not make any assumptions either way)


Facebook entries

91. Both Mother and F have Facebook accounts. If a person posts a message or photograph on Facebook his friends, people who have agreed to share their Facebook with him and communicate with him by Facebook, can indicate the degree of their approbation on his Facebook account page by a thumbs-up sign which means that they like it, or a heart sign if they love it. Facebook pages can be closed to prying eyes of the outside world by privacy settings, but F’s is left open so that the social worker has been able to visit his page and see who has approved his postings. F said that he “unfriended” A after his bail conditions were imposed on 12 February 2016, and she says she blocked him from her Facebook account around that time, but nonetheless she reappeared as his Facebook friend thereafter and proactively sent approbating signs to his postings.

92. What the undisputed evidence has established is that A thus remained his Facebook friend until at least December 2016 and approved his postings (which included on 16 February 2016 photographs of Y and Z taken on 2 February 2016), once in June 2016, three times in August 2016 and on 20 November 2016. As I shall later explain, from September 2016 onwards she accepted what X had alleged against F was true. On 20 October 2016 she shared with F on his Facebook page a photo of X taken on 20 October 2016, and this was the anniversary of the photo, well after she had accepted the truth of X’s allegations. Furthermore, it was done just five days before the start of this hearing and a month after the Mother had signed a statement saying that she now believed that F had sexually abused her son.

93. A gave various explanations. Before anyone became aware of the approbations in relation to the “like” sign sent by her on 20 November 2016, she said that she did not realise that she had approved F’s postings. Then, when the earlier postings were discovered by the social worker sitting in court using her own smartphone and were shown to the Mother, she agreed that she was aware that she was sending her approval postings to put up on F’s page. When asked why, after she knew what he had done to her children, she was prepared to send a thumbs up and on one occasion a heart to his Facebook page showing that she liked or loved his postings, she said: “It’s not a crime to like someone’s postings.”

94. F says that he was the passive recipient of these communications from the Mother. He did not check his account to see who sent him communications. She was proactive but he was not, and there is no evidence that he ever replied to the Mother. But in my judgment a reasonable parent who believed her child had been sexually abused by another would not approve anything the perpetrator posted on Facebook. She would not wish to communicate with him or even his Facebook page at all, for any reason. It implies either that she did not really believe he was the perpetrator or did not care. It also makes it more likely that she was in touch with F in other ways as well, as Facebook communications must often be one facet of a more rounded relationship.

On the alleged sightings of the parents together, the Judge gives an immaculate summing up of the relevant law

96. This is a disputed identification case. The court must direct itself in accordance with the Court of Appeal’s guidance in R v Turnbull [1997] QB 224. In this case an important issue turns substantially on the correctness of one or more identifications of F being with the Mother, which they allege to be mistaken. In such a case it is imperative that the judge should warn himself of the special need for caution before making a decision on the basis of the correctness of the identifications. Additionally, the judge should remind himself as to the reason for the need for such a warning, namely that a convincing and honest witness can be a mistaken witness. Secondly, the judge should direct himself to examine closely the circumstances in which the identification by each witness was made, and some of these circumstances may include, for example: for how long was the accused under observation by the witness; at what distance was the witness from the accused; what length of time elapsed between the original observation and the subsequent identification to the police or Social Services? The judge should also remind himself of any specific weaknesses which have appeared in the identification evidence.

97. As for recognition, it is commonly accepted that recognition is more reliable than identification of a stranger. However, even when the witness appears to recognise someone who he knows, the judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made.

98. The quality of the evidence. If the quality is good and remains good at the close of the case having heard all the evidence, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger. When ,in the judgment of the trial judge ,the quality of the identification evidence is poor, the judge should not rely on the identification evidence unless there is other evidence which goes to support the correctness of the identification. The trial judge needs to identify to himself the evidence which he believes is capable of supporting the evidence of identification.

As we can see from the title of the piece, flaws in the ABE process were a particularly striking feature of the case (I’m snipping out the graphic details about the nature of the alleged – and now proven – abuse.

Admitted breach of ABE guidelines

229. On that day Detective Constable Carter and Detective Constable Farmer interviewed X, the former asking the questions. DC Farmer agreed that they had been instructed by a superior to get on with the interview, leaving them no time to plan it properly. She admitted that they had failed to observe the ABE guidelines in four important respects; she made no excuse and could offer no explanation. One possible explanation that emerges from the interview itself is that X was so willing, ready and able to give his account, in their eagerness to hear it they forgot these fundamentals.

230. Planning: although the importance of planning the interview is stressed in paragraph 2.1 of the guidance, none was done and there was no record of a plan, as required by paragraph 2.222. Intermediary: no consideration was given to the need or otherwise of one, as required by paragraph 2.94. At the outset of the interview the guidance provides for the establishing of a rapport with a child by talking about mutual topics and importantly explaining ground rules. As the guidance says at paragraph 3.12, the interview is an alien situation. What will happen will need explanation. This was done, albeit very briefly. As the interview proceeded it became apparent that X had picked up the ground rules without questioning – video recording, et cetera – which showed that he was an intelligent child.

231. The evidential effect of failure to address the difference between truth and lies

232. The officers failed altogether to establish whether X knew the difference between truth and lies. It was admitted that this failure went to the heart of the reliability of the ABE interview. The stage at which the witness is asked to distinguish truth and lies is an important safeguard and guarantee of reliability, but it is not the only one. The video recording itself gives the court a chance to examine the child’s statements in detail. The quality and pace of the questioning is a very important feature of the interview. In this case it was good. The surrounding evidence gives the court a chance to check the facts. It is clear from extraneous evidence, for instance regarding the BB gun incident and a subsequent interview on 26 February 2016, that he, X, did understand the difference between lies and truth because he admitted to telling a lie. Ultimately the court’s assessment of the substance of his account is the most important test of whether this is a made up or truthful account. It is important to have these failures in mind, however, when evaluating the weight to be given to X’s statements and I have kept them in mind as I have done so.

233. In this interview X seemed relaxed and happy to talk to the officers. It was a relatively short interview, fifteen minutes or so, and there was no sign that X ever tired or flagged. He was asked to give his name and age, he was told that the purpose of the interview was to have a little chat with him. He was reminded of two cameras on the wall and knew that they showed him and April Farmer. He was told of the microphone, it would be recorded on DVD. He seemed to understand all of this. He was told that 1A was a social worker. He agreed he knew her role was to keep him safe. He went through the members of his family and the living arrangements in the home and in the bed and breakfast. I am fully satisfied that X very quickly grasped the purpose of the interview. He plainly understood that it was being recorded. He was familiar with the technology of DVDs. He knew what he was going to be asked about, as became very quickly apparent.

234. I am fully satisfied he knew the difference between truth and lies, as was demonstrated over and over again before, during and after this interview, as I have commented in the course of this judgment. So I conclude that although the truth and lies routine, important as it is, was not gone through, its lack of itself did not substantially impair the quality of the evidence obtained in the interview.

235. The initial questions about his family and home were concordant with the ABE guidance in that they helped put him at ease. What is notable is that it was X who hastened the interview to reach its point: an investigation of his allegations

(details omitted)

242. I comment: (1) the ground rules were established. In my view they often take too long. Detective Constable Farmer agreed with that point of view. (2) The truth and lies routine was missed out but, as I have already commented, there is abundant evidence that X knew the difference. (3) It is striking that the allegation made against F by X was volunteered after an unrelated question. (4) The interview was relatively short. (5) X was able to concentrate. The social worker’s assessment at page C84 of the evidence was that: “X was able to follow instructions, concentrate for long periods and show respect.” In my judgment that was borne out by his behaviour in the interview. The questions were generally short questions containing single subjects. (6) As regards a description of the events recounted, they were naturalistic and realistic. (7) It was not implausible that F abused the other children as reported by X, believing that they would not speak out, and X could have seen the adults engaged in sexual intercourse, including fellatio. Reference to F doing it to himself, as I mentioned earlier, must have been reference to masturbation, a part of the sexual routine. (8) As to numbers and times, he was only six years old and unschooled. (9) If he told the Mother – this is very serious – instead of reporting the behaviour of F towards X to the police, as she had promised X she would, she did the opposite and alleged to the police that X had lied. In my judgment this was the supreme betrayal.

Second Interview

243. After the Mother’s claim that X had lied, he was interviewed again on 26 February 2016, this time with Detective Constable Farmer. Once again Miss Farmer admits frankly she forewent the ground rules, the truth and lies routine prescribed by the guidance. During this interview X’s demeanour was altogether different to that of the first interview. He was restless, fidgety, moved around the room, often hid his face behind a folding game board and his answers were often rambling, digressive and incoherent, revealing an internal confusion and anxiety which had not been present at all during the first interview. This was a little boy who was manifestly uneasy, struggling with the shame of confessing that he had told terrible lies about F, or alternatively lying against his will or better nature that his original account had been untrue.

244. The interview began with the day of the week, his name, age and identifying the names and roles of the adults present, the location of the police station and the functionalities of the interview room and the camera. They quickly got to the point. Question: “Do you remember the last time?” Answer: “Yeah.” Question: “You spoke to Marie,” that is Detective Constable Cutter, “can you remember what you said to her? Who did you talk about to her?” Answer: “It’s not true.” I comment that it came out so quickly it was clear that he knew that that was what he was there to say, but whether or not that was true is the issue. Question: “What do you mean?” Answer: “It’s not true because I saw it on TV.” This is a striking answer; it suggested extreme pornography seen on TV in the bed and breakfast hotel. This was also a suggestion made by F in his interview about how X could have come by the knowledge of such sexual behaviour, but this suggestion has, as I have already observed, been retracted by Mother.

245. X could not remember the day he saw it but said he was in bed at the time. He slept next to the TV. Asked to describe what he saw, he said he saw some rudeness. Question: “Who was on the TV.” Answer: “It looked like my Dad but it was on the TV.” He wanted the interviewer to believe that what he had seen was only a TV show. He was then asked to describe what he saw on the TV and his account became increasingly implausible as an explanation for having said that [details omitted]. Question: “Was anyone else on the TV?” Answer: “A lady danced with him. They wore swimming costumes. The man wore a marry costume,” clothes in which you get married. He was unable to explain what he meant by his earlier assertion there was rudeness. Asked where was his mother, he said nowhere, and then in the shower, and his Dad was cooking and W was in bed. So he was describing in fact an innocent TV show about marriage or swimming when he, W, Z, Y and F were going about routine activities. He was unable to describe the rudeness at all. This sounded like a mere embellishment to give some force to his original assertion that the lie he had told about F was something he had learned from seeing a TV show. He described Dad cooking a “burger meal” for dinner. Then he said he saw Dad flipping pancakes.

246. He was brought back to the point. Question: “So you said you had seen something on TV, what you told us about. Was that true?” Answer: “That always be true.” Question: “What you said about F.” X did not respond, he seemed to be squirming. Question: “So when you said you saw something on TV, why do you say that?” Answer: “I get confused.” He was then asked when he previously spoke to Marie Cutter and told her what had happened with F, was that the truth? Answer – at this point X was hiding his face behind the board and needed to be asked to lower it for the camera. He said: “Yeah.” He was asked if anyone had spoken to him about it. He said: “My Mum didn’t – told me to, I told her.” He was asked: “What do you mean?” He said: “The truth.” He was asked who told him to tell the truth and he said no-one. He was reminded that he had just said that “your Mum didn’t tell you. What did you say? Your Mum.” Answer: “Didn’t tell me to tell the truth. I telled (sic) her.” He was asked: “What is the truth?” and he said: “It’s the truth of what we are doing right now.” He said that he had talked to his Mum about telling the truth, and she had said: “If you want to do it then everyone said back me up, they are.” He elaborated: “They’re going actually give me money.” “Who?” Answer: “Mum.” “What for?” Answer: “For telling the truth.”

248. I comment that X’s comment of why he had lied is so implausible as to be unbelievable. It had all the hallmarks of imperfect coaching, where he had remembered to insist that he had previously lied but could not explain why he had lied at all or how he had got the detail and graphic information which he had used in the earlier lie. He sounded as though he was telling the truth when he said several times, in explanation for his confusing account, that he was confused. He certainly sounded and looked confused. His account of talking to his mother and insisting that he told her he had lied sounded scripted. X, when he was determined to tell the officers that he had lied and he had confessed to lying to his mother, tried to take control of the interview, volunteering the information, but he was utterly confused when he tried to substantiate this retraction. There were moments when he provided plausible explanations for his retraction: his mother had spoken to him; she had promised him that everyone would back him up; and she had offered a bribe of money. Most significantly, when asked if he had indeed told the truth during the first interview, he said: “Yeah.”

249. This interview was an unconvincing retraction of the very clearly stated accusation made during the first interview. It being entirely unconvincing, it tends to support the truth of the account given by X in his first ABE interview, which he found far easier to relate. As in the first interview, X was not asked whether he knew the difference between lies and truth. The importance of this is to give him a chance to demonstrate this knowledge. But he had demonstrated this knowledge on other occasions: (1) the BB gun incident, he had originally claimed to have shot W, then confessed that F had done it; (2) the subject of the difference between truth and lies had been given prominence by his mother in the days after the first interview; (3) in the second interview the subject matter was about truth and lies, and he showed he knew the difference; (4) H, who knew him very well, and 1A had both found him to be a truthful child.

After a detailed and thorough analysis of the evidence and the disputes, and making a number of very serious findings against the father the Judge concluded this:-

291. I shall direct there be a transcript of this judgment and it should be sent to the Kent Constabulary. I recommend that the CPS consider the question of charging F under section 5 of the Sexual Offences Act 2003, the rape of a child under the age of thirteen, with rape of X and his siblings. The ABE interviews of X taken together were the most compelling evidence of his guilt. The second interview, the so called retraction, strengthened rather than weakened the effect of the first. The Mother’s evidence of the pressure she put on X to retract is important explanatory evidence. The contents of F’s own interview under caution further supports the reliability of X’s evidence. Under the recently introduced system of ground rules hearings, intermediaries and pre-recorded cross-examination of the child, a prosecution would be viable and in the public interest.

292. Additionally, I recommend that the Kent Constabulary consider applying for a Sexual Risk Order under section 122A-K of the Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 Schedule 5 paragraph 4, as it is necessary to protect vulnerable women and their children from physical and psychological harm from F. The prohibition runs for not less than two years and in my judgment it is likely to be required for much longer. That is the judgment of the court.

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Checking Facebook – social workers and social media

I happened to read the Community Care piece on social workers and social media this week. I think it is a good piece, it is here

http://www.communitycare.co.uk/2017/10/10/social-workers-use-social-media/?cmpid=NLC|SCSC|SCNEW-2017-1011

But I mentioned on Twitter that this paragraph troubled me

3. But debates continue about the impact of social media on the confidentiality of service users, and how information shared publicly on social media should be used by social workers, says Birchall. “If a social worker visited a home and saw a dangerous person who should not be present in the family home, they would be wrong not to act on this, but if they looked at a service user’s profile on social media and found out the same information there’s a sense that this breaches the service user’s confidentiality, even though the information is public. There are strong feelings on both sides of the argument. It’s a new world and we’re just getting to grips [with it].”

I mentioned that this is in contravention of the published guidance about members of the State looking at the social media of members of the public (even where the social media is on public settings and open to anyone to view)

Not in any sense a criticism of the author, or Community Care – the guidance has obviously gone under the radar, but it is important

It seems that many people didn’t know about this guidance from the Office of Surveillance Commissioners

http://www.publiclawtoday.co.uk/local-government/information-law/344-information-law/31202-public-authorities-and-surveillance

Extract from OSC Procedures & Guidance document

Covert surveillance of Social Networking Sites (SNS)

288. The fact that digital investigation is routine or easy to conduct does not reduce the need for authorisation. Care must be taken to understand how the SNS being used works. Authorising Officers must not be tempted to assume that one service provider is the same as another or that the services provided by a single provider are the same.

288.1 Whilst it is the responsibility of an individual to set privacy settings to protect unsolicited access to private information, and even though data may be deemed published and no longer under the control of the author, it is unwise to regard it as ―open source, or publicly available; the author has a reasonable expectation of privacy if access controls are applied. In some cases data may be deemed private communication still in transmission (instant messages for example). Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.

288.2 Providing there is no warrant authorising interception in accordance with section 48(4) of the 2000 Act, if it is necessary and proportionate for a public authority to breach covertly access controls, the minimum requirement is an authorisation for directed surveillance. An authorisation for the use and conduct of a CHIS is necessary if a relationship is established or maintained by a member of a public authority or by a person acting on its behalf (i.e. the activity is more than mere reading of the site‘s content).

288.3 It is not unlawful for a member of a public authority to set up a false identity but it is inadvisable for a member of a public authority to do so for a covert purpose without an authorisation for directed surveillance when private information is likely to be obtained. The SRO should be satisfied that there is a process in place to ensure compliance with the legislation. Using photographs of other persons without their permission to support the false identity infringes other laws.

288.4 A member of a public authority should not adopt the identity of a person known, or likely to be known, to the subject of interest or users of the site without authorisation, and without the consent of the person whose identity is used, and without considering the protection of that person. The consent must be explicit (i.e. the person from whom consent is sought must agree (preferably in writing) what is and is not to be done).

So this is guidance to members of the State (such as social workers) as to when they can view social media without consent of the author or going to obtain Regulation of Investigatory Power Act (RIPA) authorisation in the form of a warrant from a Magistrate. (which they are highly unlikely to get)

If a parent has privacy settings, then the ONLY way to view it is with the person’s explicit consent OR a warrant under RIPA from a Magistrate. Anything else is an offence.

The guidance is VERY plain that using dummy or fake accounts to gain access to another person’s social media presence is ‘inadvisable’

The tricky bit is here

Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.

(It’s not clear about where privacy settings are NOT available, but as Facebook, Twitter, Instagram and all dating websites have privacy settings, I don’t think this is going to come up very often. Maybe if the parent is posting a lot on Reddit…. )

What this says is that even where a person has no privacy settings on their social media and it is ‘open source’ – i.e available to anyone to go and look at, “REPEAT viewing of open source sites MAY constitute directed surveillance on a case by case basis” (and if it does, RIPA authorisation would be needed)

Note that

Amendments to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (“the 2010 Order”) mean that a local authority can now only grant an authorisation under RIPA for the use of directed surveillance where the local authority is investigating particular types of criminal offences. These are criminal offences which attract a maximum custodial sentence of 6 months or more or relate to the underage sale of alcohol or tobacco.

And therefore, if in an individual case, the REPEAT viewing of open source social media by someone working for a local authority DOES count as directed surveillance, it will be unlawful. Because a Local Authority can only do this with authorisation, and the authorisation can only be given for investigating particular types of criminal offences (and the “we were doing it to prevent child abuse/drug misuse won’t cut it. Sale of cigarettes to children in a shop is the sort of thing that is okay for getting a warrant for directed surveillance – that sort of hidden camera thing)

And conducting unauthorised direct surveillance is an offence under RIPA. So serious stuff.

What’s REPEAT viewing?

Well, the guidance doesn’t say REPEATED (which implies multiple occasions) and my best guess is that REPEAT means what it says on the tin, more than once.

Any social worker that accesses a parents social media presence (even if they are available to the public) more than once, is at risk of committing the criminal offence under RIPA and having their actions potentially actionable in damages. Local Authorities are obliged to follow the guidance, they can’t just choose to ignore it.

During the Twitter discussion, some people felt that if a parent chooses to publish the material for the public (and doesn’t make use of the privacy settings) then they have effectively waived their privacy. They have, in so far as members of the public are concerned. Any member of the public can go and look at their social media presence.

But an agent of the State can’t do make REPEAT viewings of it, even if the accounts are open to the public. (and no, you can’t just take off your social work hat and put on your member of the public hat)

I look at it this way. The street outside your front door is open to the public – just like your social media account on no privacy settings. Anyone can stand in that street. If they stand there, they can see your front door, and if you don’t close your curtains, can see into your house. But if it is a member of the State doing that, they either need your permission or an authorisation to conduct surveillance without your permission.

It’s the same here – just because you’ve left your curtains open doesn’t mean that the social worker can stand outside your house in a public road and look through your window whenever they want.

As we can see from the case below, failure to obtain the evidence legally doesn’t make it inadmissible, and the family Court won’t be the place to punish any offence under RIPA (that will be a criminal court, boys and girls, so think on)

But I would imagine that representations would be made that if a social worker has made repeat viewings of social media, and not taken this guidance into account, that their assessment is tainted by this and their evidence should be viewed with caution. Whether or not Judges accept those representations is a different question.

https://suesspiciousminds.com/2017/07/19/watching-the-detectives/

Until there’s more clarity on this, given that it is a criminal offence, the advice must be ONCE without consent is as far as it is safe to go. I would also counsel against anyone immediately thinking “well, as long as I only do it once, there are seven workers in my team, so we can get seven bites at it” . If there’s even a tiny risk that what you are doing may be a criminal offence, don’t mess around with taking that risk.

If you get explicit consent from the parent “I’d like to look at your Facebook profile” “Yes, I agree to that”, then you are good. Otherwise, once is the only safe number.

There’s a tricky grey area where a parent has posted something they shouldn’t have done on social media and have been asked to take it down or something defamatory – how can that now be checked? I think the parent would have to consent. (or directed by the Court to produce evidence to show that the offending remarks have been removed)

Taking photographs in Court

If you’ve ever been to Court, you probably saw at some point amongst all the pinstripes, cufflinks and bags under the eyes, signs telling you that you aren’t allowed to take photographs.

It is a criminal offence to take photographs in Court, you might even have had security staff take a camera away from you to be collected later.

The law about this is s.41 of the Criminal Justice Act 1925 (CJA 1925).   Of course, in 1925, it was probably an awful lot easier for a security guard to detect that you have come in with a camera in your possession

 

Are you illicitly taking a photograph? "No, just please stand very still for 20 minutes longer though"

Are you illicitly taking a photograph? “No, just please stand very still for 20 minutes longer though”

 

Nowadays, most people have camera phones. And not necessarily ones as obvious as this

 

As designed by Jermaine from Flight of the Conchords

As designed by Jermaine from Flight of the Conchords

 

Not only can you not take a photograph inside a Court room, any photographs within the building are within the offence. One of the photographs within a reported case R v Vincent D (Contempt of Court: Illegal Photography) [2004] EWCA Crim 1271 was taken in the Court canteen.  (You can insert your own Ronnie Corbett style joke about Court canteens if you wish)

You can’t make clay models of people either, or sketch them. Yes, even those Court artist sketches aren’t allowed to actually happen within the Court room, the artist has to do them later from memory, which explains a lot.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

I wrote about the weird intricacies of the law on photographing in Court buildings years ago, here

 

https://suesspiciousminds.com/2012/07/03/if-i-had-a-photograph-of-you/

 

That was an imaginary judgment. It is quite unusual to see a real judgment about someone being prosecuted for doing this, but that’s the subject of this blog. In particular, it deals with the situation where the taking of photographs wasn’t something which just happened, but where it was indicative of defiance and contempt for the Court process, particularly where the photographs were then placed on social media and comments added to them.

 

HM Solicitor General v Cox and Another 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1241.html

 

This case involved a nasty murder trial, where the accused (later convicted) was said to have filmed the murder and watched it on a mobile phone for enjoyment later. Two of his friends attended Court, and photographs were taken and placed on social media.

 

 

  • Parker-Stokes, aged 18 by 4 August 2014, had arrived at the Crown Court during the morning session. He noticed that another friend of his was appearing in Court 2. He went into Court 2. There, he took a photograph on his mobile phone of his friend on the screen, appearing by video-link. In the afternoon, Parker-Stokes was in the public gallery of Court 2 with Cox, Sheppard’s family and other friends, for the sentencing of Sheppard. From there, on his mobile phone he took five photographs and a short video of Sheppard in the dock. Some images show dock officers. Some images, and the video, include part of the notices prohibiting the use of mobile phones; the composition of the pictures suggests that that was deliberate.

 

Hint, if you are later going to argue that you hadn’t seen the signs saying that mobile phones and photography weren’t allowed – DON’T ACTUALLY PHOTOGRAPH the signs themselves.

 

  • Cox, now just 18, had also arrived at the Crown Court in the morning. He went into Court 10 where HHJ Picton was sitting. At 10.57 a.m. he used his mobile phone to take a photograph of the judge. The court was in session but it appears that no case was actually being heard. Cox was later present in Court 2 for Sheppard’s sentencing hearing.
  • Some of the images were uploaded on to various Facebook pages, with comments. On 4 August 2014, Parker-Stokes uploaded an image of Sheppard in the dock on to Sheppard’s Facebook page, adding the comment: “Respect g at least u had the balls to admit it accept some slaggy little girls who are two shock to admit it that had to try to blame it on u nuf love xx.” The two girls referred to were the acquitted co-defendant and a key prosecution witness. That same day, Cox uploaded the same image on to his own Facebook page, adding this: “Ride or Die Certified Southwest G”. It was not seriously disputed but that “G” was in common use as a shorthand for gangster, and “Southwest G” was a self-descriptor used among the likes of Sheppard and his friends, that is to say youth within the criminal justice system in Weston-super-Mare. Cox also commented on Sheppard’s Facebook page, under the image of Sheppard in the dock: “Ride it g love ya loads snm anyone got summat to say say it love ya kid xx”. On 6 August 2014, Cox uploaded on to his own Facebook page the picture which he had taken of HHJ Picton in court, adding the words “Fuk the judge!”.

 

Again, you have to admire the later chutzpah of Cox claiming that the comment ‘Fuk the judge!” was not directed at the Judge in particular, but the judiciary in general. I’m sure the Court loved that.

 

 

  • At that time, Sheppard’s Facebook page was accessible by 276 “friends”, and Cox’s by 1406 “friends”. 25 people “liked” the posting on Sheppard’s Facebook page, with 7 commenting on it. 63 “liked” the posting of the image of Sheppard, with commentary on Cox’s Facebook page, with 3 commenting; 43 “liked” the posting of the image of HHJ Picton, with its comment.
  • The family of the murder victim, Mark Roberts, brought the Facebook postings to the attention of the police team which had investigated his murder and, later, court staff did the same. HHJ Ford QC was informed of this and that the police were proposing to refer the matter to the Attorney General’s Office, once the investigation was complete. He asked that the Attorney General be informed that it was, in the judge’s view, important that the Attorney General appreciate that the image of Sheppard had been taken during the sentencing hearing for an offence of murder, and at a time when the deceased’s family was in court; and that the text material attached to the images suggested that they were being treated as “trophy images”.
  • Parker-Stokes was arrested and interviewed on 25 September 2014. He admitted taking the picture of Sheppard in the dock and posting it on Sheppard’s Facebook page, with the accompanying text, but said that he did not know it was an offence to take pictures in court. He “apologised” for his actions. It was only later that the other photographs and video on his mobile phone were discovered, and he was interviewed again in December 2014. He admitted taking them but maintained his ignorance that taking photographs was an offence. He denied having read or seen the signs at the Crown Court prohibiting the use of mobile phones in court. He again said that he “apologised” to the court and to the family of Mr Roberts, but continued to deny committing any contempt.
  • Cox was interviewed the day after Parker-Stokes was first interviewed. He admitted taking and posting the image of HHJ Picton, but also said, untruthfully, that he, not Parker-Stokes, had taken the image of Sheppard in the dock and had uploaded it to Facebook; indeed, he claimed that he had taken all the photographs. He refused to tell the police where the mobile phone was, giving “no comment” answers to questions about it. He too “apologised” for his actions, but denied knowing he was committing an offence.
  • Neither Cox nor Parker-Stokes are unfamiliar with courts and their procedures: Cox has been convicted on 9 occasions of a total of 16 offences, 4 of which related to police, courts or prisons. He was last convicted in March 2014, and was on licence on 4 August following a custodial sentence arising from earlier breaches of court orders; Parker-Stokes has been convicted on 21 occasions of 54 offences, with an extensive history of breaching court orders. 27 of his offences related to police, courts or prisons. His most recent conviction was in September 2014.
  • There are signs at the entrance to every court room at Bristol Crown Court, slightly larger than A4 size, saying: “Notice to All Court Users. The use of mobile telephones, recording equipment and personal stereos is not allowed in the courtrooms”. Another sign at the entrance to courtrooms, and it appears to be the one visible in the photographs taken by Parker-Stokes from the public gallery, states: “Switch off mobile phones. Please ensure all mobile phones are switched off before entering court or hearing room.” At the entrance to the public gallery for Court 2 is a sign saying, among a short list of requirements, “….Mobile phones should be switched off and remain out of sight.” The general information board has a notice saying: “It is an offence to take photographs, record video clips or make unauthorised audio recordings anywhere in this hearing centre.”
  • Parker-Stokes’ affidavit for these proceedings stated that his comments were meant to congratulate Sheppard for having the courage to admit what he did, unlike the two girls who were with him at the time, and who blamed it all on him. “Respect” was a greeting. “G” was simply something that his friends called each other; he did not know that it meant “gangster”. He wanted Sheppard to know that he was thinking of him. It was not done to glorify Sheppard. Mr Willmott on his behalf submitted that no alternative meaning had been put forward. He had no intention of interfering with the course of justice, and “did not foresee that justice might be interfered with”. He had not been to the Crown Court before and was unaware of the prohibition on taking photographs. He was distressed to learn that the victim’s family had seen the photographs and comment, since they would not understand what he was saying; he would like to apologise to them. Parker-Stokes was in custody at the time of the contempt hearing, and declined to come to court. He had the opportunity to give evidence before us, but in effect declined it.
  • Cox decided to give no evidence either, but he had failed to provide the required affidavit for that purpose anyway. We focus on the submissions made on behalf of Parker-Stokes, since, after the hearing, Cox admitted that he was guilty of contempt of court, and was therefore in a position to apologise for his contempt, as he did. This was a course of action for which he will receive credit.

 

 

The prosecution here were concerned that taking photographs in Court particularly of criminal trials, and particularly whereas here it seemed to be as a trophy and act of defiance, was increasing in prevalence, and the punishment required more than the level 3 fine of £1000 allowed by the 1925 Act. They sought to commit on the basis of contempt, which can obviously carry a custodial sentence.

For non-lawyers, the Latin here – actus reas and mens rea may seem a bit confusing. Any criminal act requires two ingredients – the guilty act (actus reus)  the thing you did, and the guilty mind (mens rea)  what was in your mind at the time.  The actus reas is always the easy bit to understand  “Did X stab Y, Did X take the DVD player from Y’s house, Did X take photographs inside a Court room?”.  The mens rea can be trickier – some offences can be Strict Liability  (just doing the act is enough, you don’t need the mens rea element – many driving offences, for example), some are “Intent”  – the prosecution need to prove that X intended to injure Y, or to dishonestly deprive him of the DVD player etc, and some are “Recklessness”  – that X did the act without proper care and attention as to what might be a likely or possible consequence of that.   [Sorry, I have just squashed about 3 weeks of Criminal Law into one paragraph, so it is necessarily a rough summary]

 

(a) Submission of the Solicitor General

 

  • Mr Watson on behalf of the Solicitor General submitted that the use of mobile phones to take photographs in courts, and in criminal courts especially, and then to disseminate the images on social media was an increasing concern. The Solicitor General sought to establish clearly that these were indeed contempts by both the taking of the photographs and by their subsequent publication on social media, which Parker-Stokes continued to dispute, and that these two forms of contempt were to be taken very seriously indeed, with commensurate punishment.
  • Although s.41 of the Criminal Justice Act 1925 (CJA 1925) makes it an offence to take pictures in court, and also to publish them, each punishable on summary conviction by a Level 3 fine, the Solicitor General considered that such summary proceedings would inadequately reflect the gravity of the conduct in the present case and the wilful defiance and affront to the authority of the court. The context in which the photographs were taken, followed by their publication on social media, together with the “trophy” or “glorifying” element of taking and publishing the images, were among the main factors aggravating the contempts; the murder itself had been videoed by a person present at the scene, and the images of Sheppard had been designed, it should be inferred, to capture the prohibition on what was being done in the images themselves. The contemptuous statements accompanying the images on Facebook were another serious aggravating feature, as was the distress which such postings would obviously cause (and had in fact caused) to the victim’s family. The criminal records of Parker-Stokes and Cox, and the nature of their offending, were further aggravating features.
  • Mr Watson submitted that the actus reus of the contempts was made out in relation to the taking of photographs in court and their publication by the very fact that each was an offence under s.41 of the CJA 1925: it is an offence to take in any court any photograph under s.41(1)(a), or to publish any photograph taken in contravention of s.41(1)(a) under s.41(1)(b). The fact that the photograph of HHJ Picton in his court was taken at a time when no case was being heard did not prevent that being an offence in view of s.42(2)(c), which deems a photograph to have been taken in court if it is taken in the courtroom or in the building or its precincts. The use of the mobile phones for taking the photographs was also in breach of the various orders posted around the court buildings, which should be taken as judicial or judicially sanctioned orders made for the purpose of preventing interference with the due administration of justice. The publication of the images through the Facebook postings constituted a contempt for the same reasons. It was itself an offence, and it compounded or was a purpose of the contempt committed by the taking of the photographs. Orders prohibiting the use of mobile phones and photography prohibit, by necessary and obvious implication, the publication or other use of images obtained by breaching them.
  • Mr Watson did not contend that, on the facts of this case, the comments relating to the images of Sheppard, although significant aggravating features, were separate acts of contempt themselves. Cox, in interview denied that he had any feelings of hostility towards HHJ Picton; “Fuk the judge” was directed at the judiciary in general, personified for these purposes by the image of HHJ Picton in court. Although the offence of scandalising the judiciary was abolished by s.33(2) of the Crime and Courts Act 2013, the Act provided that an act of “scandalising the judiciary”, remained punishable as a contempt if it was also another form of contempt. We agree that on the facts of this case those words may not amount to another form of contempt, but that they should be regarded as an aggravating feature of the contempt committed by Cox’s admitted contempts in taking and publishing the photograph of HHJ Picton.
  • Mr Watson contended that the mens rea of contempt relevant here was that each of those acts was deliberate, though he also submitted that if a specific intention to prejudice the course of justice were required, this Court should infer that that intention had been proved on all the evidence.

 

 

 

What did the defence say? Well, unsurprisingly, they focussed on the mens rea element, as they were bang to rights on having actually taken the photographs.

 

b) Submission on behalf of Parker-Stokes

 

  • Mr Willmott submitted on behalf of Parker-Stokes that the actus reus of contempt was the creation of a real risk that the course of justice, in some not insignificant way, would be prejudiced or impeded. The fact that taking photographs in court was a criminal offence did not make the act of itself a contempt of court; nor of itself would the fact that an act was done in disobedience to a direction of the court. It would not be right to extend the ambit of contempt in this way when the statutory offence under the CJA 1925 had been created to deal with this particular issue. There was no evidence that the signs about the use of mobile phones were based on any order of the court. There was nothing in the photograph of Parker-Stokes’ friend appearing by video-link which could interfere with the administration of justice. There had to be a specific intention to impede or prejudice the course of justice, and that could not be proved here.
  • The issues revolved therefore around the actus reus and mens rea for contempt of court in the illegal taking and publication of the photographs.

 

The defence here are arguing that for contempt (rather than the statutory £1000 fine under the CJA 1925) the mens rea had to be that there was a SPECIFIC INTENTION to impede or prejudice the course of justice. The prosecution would have to prove that.

 

What did the Court decide on actus reas?

(3) The actus reus of contempt

(a) The interference with the proper administration of justice

 

  • The taking and subsequent publication of the photographs on Facebook, in our view, each constitute the actus reus of contempt. First, illegal photography will in general interfere with the proper administration of justice through the very fact that it defies the criminal law relating to the administration of justice. Second, the statutory prohibition on photography in court is also a reflection of the serious risk to the administration of justice necessarily inherent in photography in court without the permission of the court which can be given under the relevant statutory provisions in very limited circumstances. This prohibition is underlined by the notices forbidding the use of mobile phones and photography in court buildings. These were plainly worded as orders, obviously made to protect court proceedings and clearly made with the approval of the court to protect its proceedings from interference. Such photography inevitably poses serious risks to proceedings or participants in them; those serious risks may be continued or enhanced by the use made of illegal photographs, whether by publication or some other use. The facts of this case illustrate both those serious risks.
  • The real and specific risk of serious interference with the proper administration of justice are evident. Although the taking of the photographs was not noticed by any responsible person at the time, and these illegal acts did not in those circumstances disturb proceedings, the serious risk posed by photographs taken during the sentencing hearing to its proper conduct is obvious. If the taking of the photographs had been observed, the proceedings would have suffered a grave distracting interruption, perhaps at a very sensitive stage, adding greatly to the stress and grief of the victim’s family and friends; and perhaps to some of Sheppard’s. It would have been obvious that it was a friend of Sheppard who had taken the photograph. Furthermore, and especially in the context of the previous use of a video to record and revel in the murder, it is not hard to see not only the immense distress it would have caused to the family of the murder victim but also the public order consequences which could have arisen. Some of the photographs included the dock officer, and although he could not be identified from the photographs directly, it is possible that digital enhancement could reveal who he was. The taking of the photographs was also the necessary precursor to the publication of one on two Facebook pages, with offensive commentaries.
  • The photograph, taken in breach of the criminal law and of the various orders posted around the court building, of Parker-Stokes’ friend appearing in the morning over the court video-link, created the real risk of interference through disruption of the proceedings, though less sensitive, even if no use was to be or had been made of them. The same also applies, as is now accepted, to the photograph of HHJ Picton, taken by Cox.
  • The publication of the illegally taken images was itself a contempt, and one which aggravated the contempt committed by the taking of the images. The publication of an illegally taken image is an offence. It was also by obvious and necessary implication, contrary to the orders posted in the court building which forbad the images being taken at all. Any such publication shows, even boasts, that the criminal law and authority of the court, in its orders, has been successfully flouted, diminishing its necessary authority over the conduct of its proceedings and its role in upholding the rule of law.
  • The illegally taken photograph of Sheppard was published as the vehicle for comments which on any view were designed to express public support to the murderer, on behalf of his friends. Parker-Stokes’ and Cox’s posting showed to the public, constituted by their selection of Facebook friends and others, a successful breach of the prohibition on photography, which one of them had got away with, and which those with access to the image could then use for their own amusement or for support of a murderer. Those involved in other cases, in whatever form, but not least the youth of Weston-super-Mare, would be aware that a prohibition which they might equally wish to breach, could be breached for their own purposes. Those involved in upholding the proper operation of the criminal justice system, including witnesses, would be aware of the publicity which could be given to them through the use of illegal photographs. That obviously creates a serious risk to the due administration of justice.
  • The sentencing stage of criminal proceedings is serious for all concerned, including the family and friends of the victim, who are entitled to see, their loss notwithstanding, that the law and the authority of the court has prevailed and their status as victims of the most serious crime were properly respected. Instead, publication of the photograph of Sheppard, and the opportunity this gave for the various comments, underlined his friends’ affront to the proper administration of justice. Here, at a time when it sentenced Sheppard for murder, the authority of the court had been flouted by a friend of the murderer by taking the photographs, and then again by his two friends in the publication of the image on the two Facebook pages, aggravated by the commentary. The publications told the murderer’s friends that Parker-Stokes and Cox had got away with breaking the law and breaching the court’s orders; that they had no regard to the feeling of the murder victim’s family. It is important to recall that the sentencing of a criminal and its immediate aftermath and the respect to which victims are entitled are an essential part of the due administration of justice; the actions of Parker-Stokes was a grave interference.
  • We reject Mr Willmott’s contention that there had been no real risk to the course of justice from publication, even if he were right that digital enhancement could not lead to the identification of the dock officer. True it is that no court official could be identified; the photographs gave no information about the layout of the court which could not be obtained from a quick glance from the public gallery; the trial itself was over; the Facebook postings could not interfere with the actual sentencing hearing since that stage, the last in the process, had concluded before they were made. However, he entirely overlooked the grave interference and serious risks which did arise, as we have set them out, in enumerating others which might not.
  • Although the criminal proceedings were ended, absent any appeal, at the conclusion of the sentencing hearing, the interests of the due administration of justice did not simply end there, as we have explained. The CJA 1925 prohibition on taking photographs does not end; the prohibitory notices in the court building continued to have effect. Participants, including witnesses and jurors, may face reprisal, intimidation, abuse. One witness and the acquitted co-defendant did face such abuse through the comments accompanying one of the Facebook postings. The judiciary faced abuse. The due administration of justice plainly also includes the protection of victims and their families from the use of illegally taken photographs for whatever purpose, including to undermine or belittle the outcome of the criminal process or the authority of the court.
  • The fact that taking photographs in court and publishing them are criminal offences, does not prevent those acts being punishable as contempts of court as, for the reasons we have given, these actions pose serious risks to and interfere with the due administration of justice: the court obviously has power, as it needs, to deal immediately with anyone seen taking photographs, in order to maintain control over its proceedings, and to avoid it standing powerless while the law designed to protect the administration of justice is broken before it. With the current technical capabilities of mobile phones and the internet, such photographs can be published almost immediately, or emailed from the phone for later retrieval or use by others. Whilst the later publication of such photographs may not be a contempt in the face of the court, it is still a contempt, quite apart from the fact that it is a criminal offence, since publication for a variety of reasons may be the very purpose behind the taking of the photograph illegally. While a summary criminal charge may be the appropriate response to some illegal photography, there are other cases in which it will not be and needs either swifter or more condign action by the court to uphold the due administration of justice; this was such a case. It clearly required the Attorney General to bring proceedings for contempt, taking into account the gravity of the risks and of the interference with the due administration of justice.

 

 

 

And on mens rea. Firstly, the Court gave a judgment as to whether on the facts of this case, even the highest form of mens rea “Specific intent” was made out, and were satisfied that it was

 

 

 

  • First we will assume that it is necessary to prove specific intent. On the facts of this case, we are sure that the mens rea was proved on that basis to the criminal standard. It is sufficient mens rea, for the specific intent to impede the course of justice, if the contemnor intends to risk impeding the course of justice by his acts, even if he did not intend the precise manner in which his acts will have that effect.
  • Mr Willmott submitted that the acts were not ones which would obviously interfere with the course of justice. Subjective foresight was required at the time the acts complained of were done. The photographs created no risk to the administration of justice, but even if they did, there was no basis upon which it could be concluded that a young man with no record of significant educational achievement, doing acts which were not obviously likely to affect the administration of justice, had any intention of creating such a risk. The comments with the postings did not target the victim or his family. Neither taking the photographs nor publishing them could show an intent to interfere with the course of justice unless that accorded with his understanding of the course of justice and what would interfere with it. We reject this submission.
  • First, we are sure that, although Parker-Stokes did not know of the CJA 1925, he did know that the use of a mobile phone was prohibited in court, and that would include its use for taking and publishing the resulting photographs. Parker-Stokes denied knowing that he was not allowed to take photographs at court, as he was “too worried about Ryan Sheppard to notice any signs”. We reject this evidence as plainly untrue. There were many and clear notices which he would have passed, during his idle time at the Crown Court, telling him what the position was. He was there for some time, and went into two courts. No one noticed him taking the photographs, which suggests that he took them surreptitiously; that was because he knew it was prohibited. He did read enough at court to enable him to go into a different court in the morning where he had seen that a friend was appearing over the video–link. He also managed to capture relevant parts of the signs in the photographs themselves – from which it is obviously to be inferred that he wanted to demonstrate his contempt for the prohibition, his deliberate defiance of it and his disregard for the proper administration of justice. He had experience of court precincts and procedures. He also had convictions for offences of dishonesty. Mr Willmott pointed out that dishonesty was not necessarily to be equated with untruthfulness and his previous convictions did not involve telling lies; however he also has convictions for offences which show a willingness to disregard court orders. Parker-Stokes did not attend to give evidence and to be cross-examined on the basis of his affidavit, and there were many questions which merited being asked. We are entitled to draw the inference that he did not attend because he had no good answer to them: how could he miss the signs? How could he have been so anxious as to miss them all? Did he not see them as he photographed them? How it was nobody noticed him if it were not done surreptitiously and if so why so? What did he think that the purpose of the prohibition was?
  • Second, we are satisfied that, just as he lied over not knowing of the notices, he lied over the absence of intent to impede the course of justice. He knew that the taking of photographs was prohibited. It follows that he must have realised that it was equally prohibited to publish prohibited photographs. He must have realised that the prohibition served the due administration of justice, even if he may not have known precisely how. We are sure that he understood well the problems which he risked creating if he were seen taking the photographs. The one of his friend on the video-link would also obviously have interrupted the proceedings. The ones taken during the sentencing hearing, aware as he says he was of the distress which the Facebook postings caused and which he had therefore not intended relatives to see, would have caused obvious distress and disruption as he was well aware, if he had been seen taking them.
  • We are also satisfied that he intended to impede or to risk impeding the course of justice by the publication of the image on Facebook. That demonstrated that he intended to show to his friends and associates that he had breached the prohibition, and had got away with it. He knew that, as the prohibition served the administration of justice, so its breach would impede it. His deliberate act intended what he knew would happen, putting the course of justice at risk in that or in some future case by showing that he could disobey a court order for his own and his friends’ amusement, and do so by adding his offensive comments supportive of a recently sentenced murderer. The comments which he posted on the Facebook entry are relevant to what intent we infer he had. He may not have intended that the relatives or the police or courts should see it. But he intended that his breach of the prohibition should be seen by others, among whom would be the criminal youth of his area. That is damaging to the course of justice in other cases as people realise that a protection for them can be breached, or court orders disobeyed for their own purposes.
  • Although our conclusion on these matters puts the guilt of Parker-Stokes beyond doubt, on the assumption that we accept Mr Willmott’s on the required intent, we will also express our view on whether specific intent is in fact required as we have heard full argument. We do so even though we consider that the lack of specific intent will rarely arise in practice, given the inferences that can generally be drawn.

 

 

But then went on to decide that specific intent was not going to be necessary  (although someone who is able to evidence, for example that they genuinely could not read the signs prohibiting photograpy – perhaps they don’t speak English or cannot read, could be found to NOT have committed contempt)

 

(d) Conclusion on the intent required for this type of contempt

 

  • The circumstances in which contempts of court arise are too varied, in our judgment, for one mens rea to be applicable to all forms of contempt. Nor is that the law. We are not concerned with contempt in publication cases, where there is no court order prohibiting publication, and what we say does not apply to it. Nor are we concerned with the sort of order or act involved in the Spycatcher or Leveller Magazine cases. Nor may all acts be readily pigeonholed in to one broad and general category of contempt or another. But we are concerned with acts which fall into the broad category of contempt in the face of the court or contempts closely related to such contempt.
  • The general description of the nature of contempt in Robertson and Gough, at paragraph [29] of its decision, is a good starting point: “conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”. The purpose of contempt proceedings is “effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”; Salmon LJ in Morris v Crown Office [1970] 2 QB 114, 129, cited by the Law Commission in consultation paper 209 “Contempt of Court” at paragraph 5.8. A judge must be able to control proceedings so that they do not get out of order. Contempt in the face of the court, suggested the Law Commission at paragraph 5.3, borrowing from paragraph 10.2 of Arlidge, Eady and Smith on Contempt concerns “some form of misconduct in the course of proceedings, either within the court itself or, at least, directly connected with what is happening in court”. Such contempt need not be witnessed by the judge, and the concept of the face of the court is interpreted broadly; the photograph taken in the canteen in Vincent D is an example.
  • Contempt in the face of the court may require speedy action, whether by removing or detaining a person or lawful warning that that may happen if an act is repeated. If a person is seen taking photographs, the court has to have the power to seize his phone, for the images to be checked and if necessary deleted, for any onward transmission to be prevented, and for the person to be removed from court to the cells for inquiries to be made, followed by any punishment later that day. In the overwhelming majority of cases, it will no doubt be readily inferred that the person deliberately taking photographs intended to interfere with the due administration of justice.
  • However there may be rare cases where that is not the inference; in such cases it should be no bar to those steps for the person taking the photographs deliberately to say that he was unaware of the CJA 1925, or that he had not read or understood the prohibitory notices, for example if he were illiterate or foreign, or that he had no intention of interfering with the administration of justice, but had tried to take his photographs unobtrusively, just wanting a personal souvenir. It is therefore necessary to decide whether a specific intent is required. In our view, it is not. It is sufficient mens rea that the acts must be deliberate and in breach of the criminal law or a court order of which the person knows.
  • No specific intent is required beyond that. The substance of this part of the common law is to enable courts to prevent and punish interference with the administration of justice by acts done in the face of the court. The intent required cannot depend on the foresight, knowledge or understanding which the ignorant or foolish might have of the ways in which his acts risk or actually do interfere with the administration of justice. The ignorant and foolish, who are unaware of the law or who read prohibitory notices but do not understand their purpose, and do not realise the risks which their acts may create for the trial or other court process, and who may be right when they say that the risk or the actual harm was not what they ever intended, could not be dealt with at all for contempt in the face of the court. Yet they may cause the most serious harm. A defence that the contemnor is not guilty because he did not realise what could happen, and intended no interference, would put the court proceedings at greater risk the more ill-informed the contemnor was prepared to say he was, or actually was. The power of the court to react swiftly to acts of this sort, which risk interference with the administration of justice, cannot be dependent on any further specific intent to interfere with the course of justice, without creating a serious risk of neutering the court in the exercise of its powers when it may need them the most.
  • The fact that the contempt may not be noticed at the time and may be dealt with by an application for committal as here, cannot mean that the same acts must be accompanied by a different intent for the contempt to be proved. The question of what mens rea is required is not dependent on the form in which the contempt proceedings are brought. (There was at one time a suggestion on behalf of the respondents, but rightly not pursued, that the provisions of CPR Part 81 provided some assistance on these issues. But that is misconceived; those procedural provisions do not provide or change the substantive law of contempt.)
  • In the case of the person breaching the criminal law, it is not necessary that he should know what the law is before his deliberate and illegal act, risking interference with the due administration of justice, can be treated as a contempt; no court order, whether in the form of a notice or not, is necessary for that crime to constitute a contempt. A person cannot defend himself by evidence that, ignorant of the criminal law and unaware of the prohibition on photography, he could not intend to interfere with the administration of justice. If there were no signs prohibiting the taking of photographs in the part of the building where the act takes place or prohibiting the use of mobile phones in court, and there may be none say in canteens, the court could not be left powerless to deal with the risk created to the administration of justice as a result of ignorance of the criminal law on the part of the person whose acts create or risk creating the interference. The same applies to publication of illegally taken photographs in the Facebook postings.
  • Where the act which constitutes a contempt in the face of the court, or one closely akin to such a contempt, is not a crime, the deliberate breach of a court order of which he has notice will be sufficient. It is not necessary that the person additionally intended by his breach to interfere with the administration of justice, though for the reasons we have set out and which were considered in Dallas, it will generally readily be inferred that such an intention is established. It does not matter in principle whether the order is specific, as in a judge’s direction to a jury on internet searches, or general, as in the public notices in court buildings. The latter are there, either reflecting the criminal law, or, where not, expressing what every judge requires and relies on to let the public and participants know what is required for the administration of justice. Where a person knows of the court order and deliberately breaches it, he knows that the prohibition which he breaches was put in place to prevent interference with the course of justice. Therefore, the questions whether the breach was knowing and deliberate and whether it was intended to interfere with the course of justice amount to the same question, even if the person may not have realised or understood quite how the administration of justice could be interfered with. He would know that it would be put at risk.
  • The Facebook postings may not be contempt in the face of the court, as we have observed at paragraph 31 above. There were obviously no signs saying that illegally taken photographs could not be posted on the internet or published in some other way. However, even if such publication is not a contempt in the face of the court, the required mens rea should be no different from that applicable to contempt in the face of the court. First, the deliberate publication of illegally taken photographs is a crime under the CJA 1925. Second, the taking of photographs does involve a contempt in the face of the court, and their publication is directly connected to the purpose and effect of that contempt; it may take place almost simultaneously. Third, the prohibition in notices on the taking of photographs and the use of mobile phones must carry with it by necessary implication the prohibition on the publication of what their use achieves. The publication of what are known to be illegally taken photographs must be regarded as a breach of the same prohibitions. It is also a form of contempt which, in our judgment, can be dealt with by the summary procedure, if the circumstances are apt for it.
  • The authorities support this approach to mens rea for this sort of contempt. We do not need to repeat what is derived from Vincent D, Ivanov and Robertson and Gough; they plainly support it. We gain no assistance from authorities which do not deal with this sort of situation. The real issue is whether Dallas shows that to be wrong, as Mr Willmott contended. Mr Watson submitted that Dallas was not a case dealing with contempt in the face of the court, for which the tests were different.
  • Dallas did not consider the mens rea required for deliberate acts which were not in breach of some order of which the contemnor knew, but which were in breach of the criminal law. Whether ignorance of the criminal law by the contemnor is described as providing no defence, or whether there is a presumption that a person knows the criminal law, the contemnor is taken to know of the existence of the criminal law, and so a deliberate act, which is an offence, is treated as a knowing breach of the equivalent of an order. If punishable as a contempt in the face of the court on the basis of a deliberate act, it is punishable also on an application to commit on the basis of a deliberate act.
  • The Divisional Court did decide in Dallas, in our judgment, that a knowing and deliberate breach of a court order sufficed to provide the mens rea of contempt. The oral exchanges, noted but not relied on by the Strasbourg Court, support what is the clear meaning of [38] and [39] of the Divisional Court judgment in Dallas. We are satisfied that Dallas in the Divisional Court is wholly consistent with the conclusion to which we have come. The Strasbourg Court did not regard it as changing the law. This explains why Davey and Beard, above, in its very brief introduction to the law, treated Dallas in the Divisional Court as no different from cases which had referred to the need for a specific intent.
  • The Strasbourg Court was right that there is no difference in that sort of case between the answers to the questions of whether there was an intent to interfere with the course of justice, and whether the breach of the order was deliberate and knowing. The need for some specific intent over and above the deliberate and knowing breach of an order, made for the protection of the administration of justice, is not required. It is proven in reality by the deliberate and knowing breach itself.
  • In Schot and Barclay, to which we have referred at paragraph 51 above, it was accepted that mens rea was required but it suggests, p398 C-E, that evidence that someone did not want to disrupt proceedings by refusing to reach a verdict, had provided evidence that they lacked the relevant intent, and it was also for question whether they had foreseen that the judge would discharge the entire jury, rather than just the two jurors, so enabling the trial to continue. The real issues in that case revolved around the procedure adopted by the judge, and the exposure of jury deliberations. The debate about mens rea would now have to be read in the light of the several later decisions, and ones more applicable to the sort of acts of contempt here. Spycatcher shows that intent and desire are different; what the juror wanted is not the issue. It is interference which must be intended, and the precise course of disruption which followed does not have to be intended or foreseen. The risk of interference appears not to have been considered at all. This decision is not now, in our judgment, of any real assistance in ascertaining the mens rea for contempt.
  • If a deliberate act which breaches the criminal law suffices, as in our judgment it does, then Parker-Stokes would have been guilty of contempt of court by the deliberate taking of the photographs and by the deliberate Facebook posting of one of them, even absent the specific intent we have found as established to the criminal standard of proof.

 

 

 

[Just the deliberate act of taking the photographs and posting them on Facebook was sufficient. ]

The men were convicted of contempt. They have not yet been sentenced, but I would expect a custodial sentence. Obviously the Court are going to be much sterner on a criminal trial, particularly on a murder trial, but it is a warning that photographs taken for the purpose of defying the Court and put up on social media run the risk of not just the £1000 fine, but a prison sentence.

 

 

Rhubarb* and custody

 

(*Story contains no rhubarb, but was prepared in an environment where there is a risk that rhubarb, rhubarb pollen (?) or rhubarb dust may have inadvertently contaminated the contents )

 

 

A committal hearing in relation to a grandmother who was using electronic media, including Facebook to protest against the adoption of her granddaughter.

 

 

Staffordshire CC and Beech 2014

 

There are two judgments, one being the committal hearing itself, and the second being the sentencing

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B81.html

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B80.html

 

 

Probably the most important thing is said at the very end

 

I conclude the Judgment by making clear to Mrs. Beech that there is no objection to her criticising the court, criticising the judge, the Social Services Department or the family justice system. She has an entitlement to campaign about these matters. What the court will not tolerate is the use of the name of her grandchild or the photograph of her grandchild in connection with this campaign.

 

 

The Court did find that the grandmother had breached the orders preventing her from naming her grandchild and using photographs of her grandchild within the campaign. Part of that had been to ask a wide network on Facebook to circulate the photograph of her grandchild with a view to tracking her down in the adoptive placement and find out where she was.

 

Allegation number 1. Mrs. Beech has a group Facebook page entitled “Stop social services” which has about 7,000 members. This page was compiled before my Injunction Order was granted. The page has photographs of the child and a slogan including her name. The page contains the assertion that the child has been stolen by Staffordshire County Council Social Services. On 24th January 2014 the Injunction Order was served on Mrs. Beech. On that very day she posted additional words on her group Facebook page in terms which represent a flagrant breach of the court order. I read from the relevant posting which is exhibit 5 in my papers: “I have just had court papers handed me. I have been gagged until (the child’s name) is 18 years old. How can this be? They steal my granddaughter, then gag me. Fuck off. You have no chance. I am still fighting for her, you idiots. You cannot bully this nana. The truth hurts and no one will shut me up. I will go to war for my family, you idiots. Please spread the word”. These words were posted alongside photographs of the child and other words and slogans which had been posted long before the Injunction Order was granted. However, I find that by posting these additional words on 24th January 2014 alongside the photograph Mrs. Beech was republishing the old photograph and slogans and so her breach extends not only to the new words but to the old words and the old photograph.

 

Allegation number 2. On 28th January 2014 the B.B.C. website reported my Injunction Order in an article carefully drawn to avoid breaching the terms of the order itself. However, Mrs. Beech on her Facebook page posted a link to the B.B.C. report together with a short extract from it. She accompanied this posting with additional words of her own which constituted a flagrant breach of the Injunction Order. She posted “Just to let you know this is me, Amanda Jane Beech. It’s about my granddaughter (named). Staffordshire Social Services think they can bully me. The truth will be heard.”

 

Allegation number 3. On her Facebook page Mrs. Beech posted more words of flagrant breach, this time accompanied by a photograph. Mrs. Beech claims that the photograph could have been put up by someone else. She says that the photograph was already present on her Facebook page. She says that if another person clicked on the Facebook page to indicate they liked the contents the consequence would be that the photograph came up on this profile page automatically without any intervention on her part. The Facebook page does show that people had clicked the page to show that they liked it. Mrs. Beech raised the same point in relation to allegations 5, 9 and 11, saying in relation to these other allegations that the intervention of others explains the entire posting, not just the posting of the photograph, as she says it does for allegation 3. I have looked closely at these pages. No other name appears. On each occasion the posting appears under Mrs. Beech’s own name. With the exception of allegation number 5 each photograph follows a different form of words for which it is obvious to me that the grandmother, Mrs. Beech, is responsible.

 

She gave me rather inconsistent evidence about these allegations. She said that she did from time to time re-post material on the Facebook page in order to encourage her campaign. In this context she accepted that some of the postings might be her responsibility but some might be the responsibility of supporters. In the course of her evidence she said that the accompanying words appeared automatically from what she had already recorded herself on other parts of the page. However, on analysis the form of words is different for each of these postings, so I reject this explanation from Mrs. Beech. One of these allegations, allegation number 5, has no accompanying words and comprises just a photograph. However, this posting appears under Mrs. Beech’s name, just like the rest. I have heard her account. I am sure that she posted this and the other postings to encourage others to support her continuing campaign.

 

Allegation number 4. This allegation comprises clear words of breach which Mrs. Beech accepts that she posted on her Facebook page. There was no photograph with this posting.

 

Allegation number 5. I have dealt with allegation number 5 above.

 

Allegation number 6. This allegation comprises clear words of breach which Mrs. Beech accepts she posted on her Facebook page. Again, there is no photograph involved in this breach,

 

Allegation number 7 caused me a moment’s hesitation. This is Mrs. Beech’s Facebook group page. She accepts that she posted on this page a link to a YouTube recording. The new words do not constitute a breach of the terms of the injunction. However, these new words must be considered with the existing words to which they were linked so the effect is a re-publication of the words previously posted. Read together the words refer to the removal of Mrs. Beech’s grandchild into care which constitutes a breach of the injunction.

 

Allegation number 8. Mrs. Beech accepts that she posted the words and photograph which constitute this breach. She makes the point that the photograph was already on the web as part of an online petition that she started long before the Injunction Order was imposed. The local authority accept that the photograph is not new, but on this occasion by posting the link Mrs. Beech brought the old picture back onto her Facebook page again which constitutes a re-publication of the old picture in breach of the Injunction Order.

 

Allegation number 9. I have dealt with allegation 9 above when dealing with allegation number 3.

 

Allegation 10. Mrs. Beech accepts that she posted these words which clearly breached the terms of the Injunction Order. The reference to her partner, Mr. Rogers, is accepted by Mrs. Beech as a mistake. This was a publication to a closed group without a photograph.

 

Allegation number 11 has already been dealt with above when I was dealing with allegation number 3.

 

Overall then, all 11 allegations made by the local authority have been proved so that I am sure of the truth of the allegation and the fact that it infringes the terms of the injunction

 

 

It then adjourned, to give the grandmother the chance to reflect on this, and to get legal advice before the sentencing hearing.

 

At that sentencing hearing the grandmother accepted that she would comply with the injunction, take down those postings and not put up things of that sort in the future.

 

As a result, the Judge gave her a suspended sentence of 56 days, meaning that Ms Beech would not go to prison for her breaches unless she were to breach the order again (in which case the sentence of 56 days would take effect)

 

 

It does raise difficult questions, which I raised in part at the original report of the injunction. If a person campaigns on Facebook without naming their granddaughter, the step to indirect identification is a very short one. It is likely that within the rest of the grandmother’s facebook page are pictures and names of her family, and one could deduce fairly swiftly by the appearance of say “Rebecca” on those photos up until a year ago and then no more photos that it is “Rebecca” who was the child who was removed.

 

The provisions about directly identifying and indirectly identifying a child make decent sense for mainstream press – a newspaper reporting about a child and calling them “Child X” doesn’t identify the child.

 

Moreover, newspapers have editors, and lawyers. They can pause and consider whether they might be in breach of the law by any element of their story.

 

But we are now in a world where anyone with a mobile telephone can become their own publisher, and put things on the internet for all to see. It’s a whole new ball-game, and the law hasn’t quite caught up yet.

 

 

Ms Beech putting on Facebook “My granddaughter, who I can’t name, was stolen by social services” doesn’t directly identify the child, but it must be arguable that it indirectly identifies the child, because you can see that that the author of the post (who is named) is related to the child in question, and probably find on that page other photographs of the child. In a situation like that, proving whether someone made that indirect identification deliberately or by accident or lack of thought is very difficult, especially to the criminal standard of proof required.

 

 

 

 

[The original injunction judgment is here

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

and my post at the time about it is here

 

https://suesspiciousminds.com/2014/01/24/transparency-and-facebook/   ]

 

 

 

 

 

 

Transparency and Facebook

This is a County Court case, dealing with some of the transparency issues that I’ve been writing about recently, and highlights that there are going to be teething problems as the Courts move from very secret to fairly open. 

[If we were moving to 100% open where there were no restrictions at all, the lack of clarity about what is ‘direct identification’, what is ‘indirect identification’ and what is neither, wouldn’t be such an issue, but at the moment, given that what the Courts are prohibiting is direct or indirect identification of the child and linking that to identification that that particular child had been the subject of Court proceedings, not being clear about what is meant by those terms is no longer helpful.]

 

Re B (A Child) 2014

 

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

 

The case involved an application by the Local Authority (Staffordshire) for a Reporting Restriction Order  – given that Staffordshire were the LA who lost so badly on this issue when they came before the President in Re J they must have been fairly nervous about making the application.

 

The child is 2 years old and on 23rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

 

What happened after that final hearing was that the grandmother did not accept the outcome in the way that the parents had. She was against it, and not afraid to say so.

 

She appealed to the County Court, and lost, and appealed to the Court of Appeal and lost.

 

The grandmother is clearly very disappointed by this outcome and she has

complained that the outcome is unfair.  No one suggests that the grandmother

should be prevented from commenting on this saga or from criticising the local

authority or the court.  However, the local authority says that the grandmother

has gone beyond that.  They say that she has caused harm to the child by using

her name and her photograph.  Examples have been shown to me.  I have seen

the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There

is a further very relevant Facebook posting at the back of the local authority’s

written submissions, an entry which I am told is dated 13th December 2013 and

starts by an indication that it was posted 11 hours ago.  In addition the

grandmother has started an online petition bearing the name and photograph of

the child.  Details are in the bundle at C17.  The grandmother has contributed to

an internet radio station where there was a discussion forum to which the  

grandmother contributed the name of the child.  This is accessible from a link

which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks

to prevent this identification of the child but otherwise does not seek to prevent

discussion, comment and criticism of the local authority and court processes.

So it is only anything that would directly or indirectly identify the child which would be prohibited.

 

That of course was easy in an age where the only people who could publish anything were newspapers – they would just be told “you can print the story but not the name” and would decide whether sans the name the story would have sufficient public interest to make it worth publishing. And the sanction for breaking that restriction would be fairly simple – it is easy to dish out a fine to a newspaper, who can pay the fine.

 

But we now live in a different age, one where anyone who wants to publish anything can do so. For example, this very blog that you are reading. Anybody who wants to can set up a blog and write about what they like. Or they can use their Facebook page, or Twitter, or join an internet chatroom or post comments on Mumsnet or other similar sites.

 

The considerations are different for a journalist or editor whose natural tendency is to comply with the Court’s wishes or orders, and that of an aggrieved person who is personally and fundamentally affected by the decision and has lost all faith in the Court.

 

The most natural place for most people these days, to express their views is on their Facebook page. The grandmother, of course, doesn’t have to give the surname of the child to have indirectly identified them if she writes about them on her Facebook page, because the Facebook page directly identifies HER, and her comments directly link the children to HER.

 

 

   The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification

 

The Court balanced the article 8 right to private and family life for the child against the article 10 right to freedom of expression, and determined that it was right that the grandmother should be able to debate and discuss the case, including the facts of the case (and including within that scope her own view of the case, which might be at variance to the Court’s own conclusions) BUT that she should not be allowed to identify, directly or indirectly, the child.

 

 

There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

 

 

 

I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

 

 

 

The judgment does leave me in some doubt, and sadly the precise terms of the Reporting Restriction Order are not set out to aid in interpretation, as to whether the grandmother can continue to post commentary or discussion about the case on her own Facebook page subject to NOT naming the child or including photographs, or whether doing that commentary or discussion under her own name indirectly identifies the child.

 

Likewise, if she posts an article about the case on a website, using her own name but not naming the child, is that okay? What if she puts up a photograph of the PARENTS but doesn’t name them? What if somewhere else in her Facebook page, there’s understandably a photograph of her grandchild?

 

As we get farther and farther along the transparency route, the vagueness about what would constitute indirect identification of the child in these sorts of cases becomes less and less satisfactory.

 

Lawyers need to be able to know where the boundaries are drawn to properly advise their clients how not to cross them.

 

People who are unhappy about outcomes of court proceedings need to know where the lines are that they should not cross in talking about the case

 

Newspapers and moderators of online discussion groups need to know where the lines are so that they don’t inadvertently cross them

 

Local Authorities need to know where the lines are so that they don’t end up warning or threatening legal action for things that they might wrongly think is a breach

 

Guardians need to know where the lines are so that children who are capable of understanding know what can and cannot be said about them in the press

 

And Courts need to know, so that these things can all be transparently expressed.