How the BBC won the case to expose the injustices of
Rochdale
[The British Broadcasting Company v Rochdale Metropolitan Borough
Council & Ors [2005] EWHC 2862 (Fam) (24 November 2005)
--------------------------------------------------------------------------------
Neutral Citation Number: [2005] EWHC 2862 (Fam)
Case Nos: WG 18, 19, 21, 24 and 28 of 1990
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
24th November 2005
B e f o r e :
MR JUSTICE RYDER
____________________
Between:
The British Broadcasting Company
Applicant - and -
1. Rochdale Metropolitan Borough Council
-and-
2. 'X'
-and-
3. 'Y'
Respondents
____________________
Mr Adam Wolanski (instructed by the BBC Litigation Department)
for the BBC
Mr Anthony Hayden QC and Ms Yvonne Coppel (instructed by the Borough
Solicitor) for
Rochdale MBC and X
Ms Jane Walker (instructed by Thompsons Solicitors, Manchester)
for Y
Hearing dates: 12th and 13th September 2005
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Ryder :
On the 7th March 1991 Mr Justice Douglas Brown gave judgment in
open court in wardship proceedings concerning 20 children from
6 families, known as 'the Rochdale satanic abuse case'. The judgment
is reported as Rochdale Metropolitan Borough Council v. A [1991]
2 FLR 192. All bar 4 of the children were returned to or remained
in the care of their families and the allegations of satanic and
ritual abuse were found not to have been made out. Injunctions
were made to protect the identities of the children concerned.
It is the protection afforded by those injunctions that forms
the background to these renewed proceedings. The key issue before
this court is whether continuing protection should be afforded
to two social workers, X and Y, whose identities were not revealed
in the open court judgment that concluded the original proceedings.
The terms of the injunctions that continue in force (as distinct
from the protections this court has put in place with the agreement
of the parties pending decisions being made in these proceedings)
are as follows:
"Any person whether by himself or by his servants or agents
or otherwise howsoever or in the case of a company by its directors,
officers, servants or agents or otherwise howsoever (is restrained)
from
1) publishing in any newspaper or broadcasting in any sound or
television broadcast or by means of any cable programme service
or by satellite any picture being or including a picture of the
several minors whose names are set out in the schedule hereto
or any particulars or pictures calculated to lead to the identification
of the minors as being or as having been wards of this court or
2) causing or procuring any publication or broadcast of the type
defined in paragraph (1) above or
3) soliciting any information relating to the said minors (other
than information in the public domain) from –
a. the said minors or any of them
b. any natural person who has had the care of the minors since
the minors became wards of court
c. the staff or pupils of any school which the said minors attend
or have attended
d. the staff or inmates of any institution or children's home
at which the said minors reside or have resided…"
In respect of one of the families the non solicitation clause
was drawn wider to include relatives, carers and parents.
On the 22nd May 2005 the BBC applied for an order that would have
the effect of permitting the disclosure of evidence given in the
original proceedings to the BBC, the solicitation of information
relating to those proceedings and disclosure to the general public
of the identities of X and Y, the social workers who were granted
anonymity by Douglas Brown J.
The purpose of the BBC's application is to facilitate the production
of a documentary that the court has been told the BBC intended
to broadcast later this year.
The local authority and the two social workers concerned have
agreed with the BBC and the representatives of the former wards
the disclosure of materials to the former wards, its use by the
BBC and the relaxation of the prohibition against solicitation
of information from the former wards among others. That involved
a detailed consideration by the local authority of the materials
that existed against the requirements of the Data Protection Act
1998. The court was able to assist the parties to reach agreement
by the appointment of a clinical assessor whose instruction was
to consider whether harm was likely to be caused to the data protection
subjects by the disclosure requested.
At the end of the process there remain only two issues a) whether
the two social workers can be named in the documentary and b)
whether video footage which includes the images of the social
workers as well as the children can be broadcast. The extent of
the disclosure that has been agreed, evidenced by detailed orders
that have been agreed by the parties and approved by the court,
is such that the former wards and the BBC have been able to see
and read almost all of the materials that were used in the proceedings.
That which has been excluded can fairly be characterised by the
description that it is intimate family business that may not have
been known between generations and which is not relevant to the
applications now before the court.
On the 16th August 2005 Rochdale Metropolitan Borough Council
issued an application on their own behalf and on behalf of one
of the two social workers for an injunction restraining the BBC
from publication of the names of both social workers or any material
that might lead to their identification on the grounds that the
social workers and their families would be harmed personally and
professionally and it would not be in the public interest. On
the 1st September 2005 an application was made on behalf of the
other social worker in identical terms. Although one social worker
had the advantage of representation through solicitors appointed
by her union, the other was afforded the same protection through
the local authority's legal department.
I have had the benefit of hearing detailed submissions on behalf
of the BBC, the local authority and both social workers. I am
very grateful to leading and junior counsel for the benefit of
their skill and industry. I have also taken steps to hear representations
from the former wards. They are separately represented by solicitors
who protect their interests in particular as to their discussions
and agreements with the BBC and the separate civil compensation
proceedings that have been instituted against the local authority.
I record the fact that each of the relevant adults concerned have
come to binding agreements with the BBC about the use of their
confidential information and I am satisfied that these protections
need not be further investigated by this court in these proceedings.
There are former wards and other adults who were concerned in
the proceedings whose confidential information is not to be revealed
and I am satisfied that their interests have likewise been protected.
I have considered detailed written evidence filed on behalf of
the BBC, the local authority, both social workers and their respective
employers. Opportunities were provided to call and examine that
evidence but by a proper and proportionate use of the court's
permission to file evidence in reply, no examination proved to
be necessary. I have not been asked to hear oral evidence and
credibility is not in issue.
There is a relevant part of the judgment of the 7th March 1991
that is not to be found in the case report but which can be read
in the transcript of the original proceedings. There the learned
judge gave the following reason for the two social workers being
granted anonymity:
"I do not give their names, because to do so could well lead
to the identification of these children"
All of the professionals directly involved with the children
with the exception of X and Y were named in public. The anonymity
ruling was coincident with the purpose and detailed terms of the
injunctions made at the end of the proceedings although it should
be noted that an anonymity direction was not included in any order
and hence was neither brought to the attention of any person who
was not present in court nor, in particular, any media organisation.
In fact neither social worker played any further part in the lives
of any of the children or their families and both left the employment
of the local authority for other social care bodies. They remain
in employments that are unconnected with the former wards and
the court has been told, and it is not in issue, that both have
had successful careers in the social care professions where their
activities have positively benefited their professional colleagues
and the vulnerable adults and children they have assisted.
By the time the BBC made its application to this court, the purpose
of the original injunctions had been achieved in that the former
wards were no longer children and save as to the specific agreements
that have been come to, they are adults who wish to be identified.
It is not suggested that any of the former wards are incapacitated
in law and accordingly this court's role in respect of the maintenance
and/or enforcement of their anonymity must of necessity be limited.
Indeed, where there is no evidence that the adults concerned lack
the capacity to give consent, absent other arguments, the court
must permit them to be identified. A failure to do so would be
an unjustified interference with their Article 8 and 10 rights:
Re Roddy (A Child) (Identification: Restrictions on Publication)
[2003] EWHC 2927 (Fam), [2004] 2 FLR 949 per Munby J. at paragraphs
[37], [56] and [59] and E v. Channel Four, News International
Ltd and St Helens Borough Council [2005] EWHC 1144 per Munby J.
at paragraphs [48] to [52].
If the former wards can be identified, then it is certainly arguable
that the ancillary protection afforded to the social workers falls
away. Although the injunctions were expressed to continue in force
until further order, the former wards have made clear and informed
decisions upon advice to waive their privacy. Accordingly, no-one
has sought in these proceedings to argue from first principles
whether the wardship orders should continue to survive the majority
i.e. the adulthood of those they protected, although undoubtedly
the wardship court did extend its protection beyond the age of
majority where a public interest was identified that required
it: see Re Manda (Wardship: Disclosure of Evidence) [1993] 1 FLR
205 CA per Sir John Megaw at 219.
It is in this context that cross applications were made on behalf
of the social workers and the local authority for an injunction
granting the two social workers privacy in any circumstances.
As the BBC pointed out, the terms of the protection asked for
would grant X and Y total privacy i.e. anonymity in all circumstances:
a protection so far only afforded by the courts in exceptional
circumstances to, for example, Mary Bell, Robert Thompson and
Jon Venables and Maxine Carr.
It is not in issue that there is a legitimate public interest
in the subject matter of the case. In the opening paragraph of
the 1991 judgment Douglas Brown J. said:
"I am giving this part of the judgment in open court because
I am of the view that this case gives rise to areas of genuine
public concern and that it has implications not only for wardship
proceedings but for proceedings taken under the Children Act 1989…"
Whether the outcomes are positive for the children concerned
and for society generally of our child care procedures, law and
practice is a matter for genuine public debate and interest, now
as it was in 1991. I respectfully agree with Munby J. in Re B
(A Child) (Disclosure) [2004] 2 FLR 142 at 181 paragraphs [99]
and [103] where he says:
"The workings of the family justice system and, very importantly,
the views about the system of…(those)…caught up in
it are … matters of public interest which can and should
be discussed publicly"
"We cannot afford to proceed on the blinkered assumption
that there have been no miscarriages of justice in the family
justice system. This is something that has to be addressed with
honesty and candour if the family justice system is not to suffer
further loss of public confidence. Open and public debate in the
media is essential."
The Facts Relied Upon:
What are the other facts upon which these applications rest?
The criticisms made by Douglas Brown J. that relate to the social
workers and other professionals were serious and went to the heart
of good child protection procedures and practices at the time.
They are set out in full in his judgment and need not be repeated
here.
What should be remembered, however, is that the learned Judge
also found that:
"… the local authority employees I have been concerned
with are decent people. They are not heartless or ruthless. They
acted throughout with the best interests of these children in
mind as they saw them. Nevertheless mistakes were made and it
is greatly to their credit that most of them have been acknowledged."
The BBC wish to illustrate the criticisms made in judgment by
use of the video footage that exists, where that is practicable
and appropriate. That would involve revealing clips of the social
workers, albeit from 15 years ago and the use of the transcripts
of their interviews. It should be noted that provided their identity
is not revealed neither the local authority nor the social workers
oppose the use of the videos or the transcribed material.
For the BBC it is said that:
1. There remains a strong public interest in examining the criticisms
made by Douglas Brown J. in the context of a) contemporaneous
national influences and child care practice, b) the lessons learned
i.e. the changes that have occurred in child care law and practice
and c) the effect upon the families and children concerned;
2. The former wards are now adults, they wish to talk about their
experiences and that provides a unique opportunity to listen to
their recollection of events, their experiences then and to date
and their comments on the decisions made on their behalf by adults:
parents and professionals alike;
3. The documentary would be a rare opportunity to discuss the
then prevalent child care practices and best practice in the context
of the circumstances that were their origin i.e. the recommendations
of the Cleveland Inquiry, and subsequent case law;
4. The producers would also wish to discuss current child care
concerns, for example cot death cases and allegations of fabricated
illness and child protection examples that can be identified from
the reports of recent legal proceedings, for example unfounded
allegations of 'black magic' in the Western Isles and convictions
concerning so called witchcraft practices in a discrete community
in London;
5. The obscuring of the identities of the social workers is a
slow technical process and unless permission is given to name
them at a relatively early stage of the production schedule, two
versions of the programme would have to be produced, one naming
them and one preserving their anonymity: that is expensive and
the latter course is in any event more difficult to sustain for
interviewers and families alike;
6. An account which anonymises and obscures the identities of
the social workers would be disembodied i.e. it would tend to
lessen the cogency of the public interest questions that are being
discussed and detract from the news value of the broadcast. It
is to be noted that this is not the same as the argument accepted
by Munby J. in F v. Newsquest and Others [2004] EWHC 762 (Fam)
at paragraph [98] that 'one should be able to put a face to a
name': a judgment that was in fact based upon the compelling public
interest in being able to identify a convicted paedophile so as
to be able to protect one's children;
7. The BBC has no intention of identifying the families, addresses,
occupations or employers of X and Y and to that extent, if their
Article 8 rights are engaged, the interference will be minimal
and only in accordance with the ordinary principle that there
is no confidentiality in the identity of a witness.
X and Y say that:
1. Social workers as public servants working in a confidential
environment should be protected by a cloak of anonymity save where
there has been dishonesty or bad faith;
2. They support open public debate and do not oppose the making
of the documentary;
3. They left the local authority's employment as a matter of personal
choice not in consequence of the judgment and have both in their
different ways gone on to considerable professional success elsewhere;
4. Their professional competence has not been called into question
since the judgment;
5. Their Article 8 rights are engaged and having regard to the
nature and extent of the agreed disclosure the maintenance of
their anonymity is a proportionate restraint whereas the publication
of their identities would add so little of value that it would
be a disproportionate interference;
6. They both fear:
a) A negative impact on their professional standing with colleagues
and families with whom they now work;
b) A negative impact on future career prospects (I deliberately
do not enlarge on this issue because it would tend to identify
the social workers present professional activities and the BBC
has undertaken not to reveal their present employments but I stress
that I have considered the detail of that which is set out in
the affidavits that have been sworn);
c) The possibility of an unfair or inaccurate portrayal of them
including by any failure to consider the actions of others with
whom it is asserted they acted at the time (e.g. management representatives);
d) Intrusive media interest;
e) Harassment and/or behaviour from others towards themselves
or their families that they would regard as threatening;
f) A seriously detrimental emotional impact (described as enormous)
upon their closest relatives, including children who do not know
of their past involvement with this case and parents who are elderly.
What are the legal principles that I should apply?
The Identification of Witnesses:
As a matter of general principle there is nothing in the absence
of an order to the contrary to prevent the identification of a
witness who has given evidence in a case, including a witness
in proceedings concerning the welfare of children. Section 12
of the Administration of Justice Act 1960 does not prevent the
identification of witnesses: X v Dempster [1999] 1 FLR 894 per
Wilson J. at 901 and per Munby J. in Re B supra at paragraphs
[76] and [82].
The breadth of what may be revealed is often misunderstood and,
if I may say so, reference to the summary in Re B at paragraph
[82] is a useful starting point as a description of the 'automatic
restrictions'. Historically, the court has authorised disclosure
beyond these restrictions and/or imposed additional restrictions
in the exercise of its inherent jurisdiction. Although the principles
to be applied to this application have been re-cast in the language
of the Human Rights Act 1989, the principles upon which the inherent
jurisdiction was exercised are still a helpful description of
factors and interests: see, for example, the summary set out in
Re B at paragraphs [83] to [86].
This is not the place to examine or re-examine the nature and
extent of the privacy that does attach to family proceedings and
the distinctions that can be ascertained in the language of the
case law relating to private law and public law proceedings. It
is sufficient to record for this application that in general,
the legitimacy of our rules of court and the practice of holding
family proceedings in private is rationalised in the context of
human rights jurisprudence as follows:
"in order to protect the privacy of the child and parties
and to avoid prejudicing the interests of justice. To enable the
deciding judge to gain as full and accurate a picture as possible
of the advantages and disadvantages of the various residence and
contact options open to the child, it is essential that the parents
and other witnesses feel able to express themselves candidly on
highly personal issues without fear of public curiosity or comment
… "
see B v. United Kingdom, P v. United Kingdom (2002) 34 EHRR 529,
[2001] 2 FLR 261 at paragraphs [38] and [46].
That in itself is but an example of the balance of interests and
rights that are in play and is merely a re-statement of the classic
exposition of the reasons for privacy in wardship proceedings:
Scott v. Scott [1913] AC 417 per Lord Shaw of Dunfermline at 482:
"The three exceptions which are acknowledged to the application
of the rule prescribing the publicity of courts of justice are
first in suits affecting wards; secondly in lunacy proceedings;
and thirdly where secrecy … is of the essence of the cause.
The first two of these cases, my Lords, depend upon the familiar
principle that the jurisdiction over wards and lunatics is exercised
by the judges representing His Majesty as parens patriae. The
affairs are truly private affairs; the transactions are transactions
truly intra familiam; and it has long been recognised that an
appeal for the protection of the court in the case of such persons
does not involve the consequence of placing in the light of publicity
their truly domestic affairs …But I desire to add this further
observation with regard to all these cases, my Lords, that, when
respect has thus been paid to the object of the suit, the rule
of publicity may be resumed. I know of no principle which would
entitle a court to compel a ward to remain silent for life in
regard to judicial proceedings which occurred during his tutelage…"
The fact that witnesses may be named illustrates the fact that
the general practice of affording privacy in children cases does
not extend to preserving the privacy of expert witnesses involved
in the proceedings. The privacy of the expert participants is
not always and may not generally be necessary to achieve the object
of the proceedings.
Section 12 of the AJA 1960 does prevent publication of the evidence
of witnesses, including expert witnesses, in such proceedings.
However, in relation to such evidence it is well established that
there cannot be an expectation that it will remain confidential
in all circumstances: In Re Manda supra per Balcombe LJ at 215
and Re X (Disclosure of Information) [2001] 2 FLR 440 per Munby
J. at paragraph [24].
In these proceedings, the court's judgment on the evidence was
published as were all but two of the names of the professional
witnesses. The continuing public interest in open debate about
the issues in the case has been reflected both by the voluntary
disclosure of the materials used in the proceedings that has been
agreed between the parties and the court's approval of the same
in response to the BBC's application. All that remains is the
question whether the identities of X and Y should remain unknown
and barred from publication.
It is acknowledged that there may be cases where the identity
of experts needs to be withheld because there are concerns, supported
by evidence, that identification will have a negative impact upon
the administration of justice, see for example Re B supra where
an issue arose about the identification of doctors who had given
evidence. The doctors, in support of their attempt to retain anonymity,
provided evidence of a "continuing and massive backlash in
the United Kingdom against child protection, which uses as a strategy
the promulgation of disinformation and vilification of certain
doctors through sensational and convincing media campaigns"
which had contributed to a "drain on the pool of doctors
willing to do child protection work": see paragraph [88].
Munby J. considered that there was on the particular facts of
Re B "an especially acute and difficult dilemma" given
the public interest in further publicity of Family Division proceedings.
He acknowledged that there may be "a powerful public interest
in a discredited expert being identified; in the other case, there
might be a powerful public interest in the public vindication
of an expert who had been unjustifiably and unjustly attacked."
He concluded that despite the general principle to the contrary,
the doctors should retain their anonymity. Importantly, however,
he emphasised that his concern was not primarily for the interests
of the individual doctors in the case and the impact upon them
of identification, but the public interest in ensuring that everything
possible is done to address the problem of "the already inadequate
number of experts willing to assist the courts in vitally important
child protection cases": see paragraph [130]. The doctors
did not assert their Article 8 rights and accordingly there was
no balance that involved Article 8 of the Convention.
Likewise, there is a public interest in encouraging frankness
which is essential in cases involving the welfare of children.
That includes promoting rather than deterring witnesses including
professional witnesses from giving evidence. It should be noted
that this interest is usually characterised as a need to preserve
confidential sources and information rather than as an incident
of any right to personal confidentiality or anonymity in the professional
witness who relays that material to the court, though the various
aspects of confidentiality will have greater or lesser weight
on the facts of each case: see Munby J. in Re X supra at paragraph
[24]. Such witnesses are not entitled to assume that their evidence
will remain confidential in all circumstances nor that their identity
will normally be protected for this purpose: see the analysis
of Balcombe LJ in Re Manda supra at 211 to 215. The submission
that social workers among others can expect that the 'confidentiality
of their identities' will be respected unless there has been dishonesty
or bad faith is not a correct statement of the law and has not
been for some time, if it ever was.
This court has not received any direct evidence touching on the
arguments of frankness, deterrence or the availability of child
protection professionals, although strong submissions have been
made to that effect. Despite this, I take notice of the fact that
there is a continuing shortage of social care professionals, particularly
in child protection and that there have been and are campaigns
against them which can have a serious effect upon an individual's
private life. Further, there is a public interest in encouraging
social workers and others to engage in this difficult work. Great
weight is placed on this by the local authority and by X and Y,
and although I should take these factors into account and I do,
no-one suggests that they are the determinant or predominant factual
issues in this case.
The Application to Restrain:
Since the enactment of the Human Rights Act 1998 the proper approach
to applications concerning media reports in relation to children
is for the court to identify the various rights that are engaged
and then to conduct the necessary balancing exercise between the
competing rights, considering the proportionality of the potential
interference with each right independently.
In Re S (FC) (A Child) [2004] UKHL 47, [2005] 1 FLR 591 HL Lord
Steyn set out four propositions relying upon the opinions of the
House of Lords in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2
AC 457:
1. Neither Article (8 nor 10) as such has precedence over the
other
2. Where values under the two Articles are in conflict, an intense
focus on the comparative importance of the specific rights being
claimed in the individual case is necessary
3. The justifications for interfering with or restricting each
right must be taken into account
4. The proportionality test must be applied to each".
The interaction between Articles 8 and 10 of the Convention is
at the heart of the key issue in these proceedings. In essence
the BBC asserts the right of the community as a whole to freedom
of expression as do the former wards and both the social workers
and the former wards assert their right to respect for their private
and family life. Different constructions of the public interest
are relied upon but all adopt the principle set out in Campbell
v MGN Ltd supra as described and analysed in the context of family
proceedings by the President in A Local Authority v. W, L, W,
T and R [2005] EWHC 1564 (Fam), in particular at paragraph [53],
namely the presumptive parity of Articles 8 and 10.
The public interest in open justice is important to the analysis
and to the ultimate balance the court must conduct but it is not
determinative of the outcome i.e. there is no presumptive priority
to be afforded to Article 10. In any event, the balance to be
conducted will necessarily be different (because of the different
issues and factors involved) where the proceedings are a species
of family justice rather than criminal justice: see the analysis
of the President in A Local Authority v. W & Ors supra.
The Rights Engaged:
Article 8 of the Convention provides that:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence
2. There shall be no interference by any public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights
and freedoms of others"
The former wards seek to assert their rights under Articles 8
and 10 to publish information about the proceedings to the BBC
and others by telling their story. X and Y seek to assert their
rights under Article 8 to keep their private life confidential
by retaining their anonymity.
That the former wards' Article 8 rights are engaged was recognised
by Munby J. in Re Roddy (A Child) (Identification: Restriction
on Publication) [2003] EWHC 2927 (Fam), [2004] 1 FCR 481 where
he said at paragraph [36]:
"Article 8 … embraces both the right to maintain one's
privacy and, if this is what one prefers, not merely the right
to waive that privacy but also the right to share what would otherwise
be private with others or, indeed, with the world at large. So
the right to communicate one's story to one's fellow beings is
protected not merely by Art 10 but also by Art 8"
In the context of this case, Article 8 protects the right to
establish, maintain and develop relationships with other human
beings, see Botta v. Italy (1998) 26 EHRR 241 at paragraph [32]
and Bensaid v. United Kingdom (2001) 33 EHRR 208 at paragraph
[47]. The Article 8 protection also extends, among other factors,
to a person's name, identity and business or professional relationships,
see Niemietz v. Germany (1992) 16 EHRR 97 at paragraph [29] and
Peck v. United Kingdom (2003) 36 EHRR 41 at paragraph [57]:
"…private life is a broad term not susceptible of exhaustive
definition. The court has already held that elements such as gender
identification, name, sexual orientation and sexual life are important
elements of the personal sphere protected by Article 8. The Article
also protects a right to identity and personal development and
the right to establish and develop relationships with other human
beings and the outside world and it may include activities of
a professional or business nature. There is, therefore, a zone
of interaction of a person with others, even in a public context,
which may fall within the scope of 'private life'..."
Family life is a question of fact but the existence of a close
personal relationship between adults and their children or as
between adults and their own parents will of necessity be capable
of being construed as family life: see, for example, K v. United
Kingdom (1986) 50 DR 199, 207 E Comm HR.
So far as X and Y are concerned, they each rely upon the fact
that there is privacy in their identities as an aspect of their
private (including professional) and family life quite apart from
their identification as witnesses in a particular case. Once their
identities are recognised as private (sometimes referred to as
the 'reasonable expectation of privacy' threshold) the court must
balance their interest in keeping their identities private against
the countervailing interest of the recipient in publishing the
same. Private individuals are not normally identified without
their agreement but there are circumstances where the media are
justified in revealing private information without consent: Campbell
v. MGN Ltd supra per Baroness Hale of Richmond at 495G paragraphs
[134] to [140].
Article 10 of the Convention provides that:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
in a democratic society…for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence or for maintaining the authority and impartiality
of the judiciary"
The exceptions to the Article 10 right of freedom of expression
must be "narrowly interpreted and the necessity for any restrictions
must be convincingly established". What is necessary "implies
the existence of a pressing social need". There must be proper
evidence to justify any interference with the Article 10 right.
The dangers inherent in restraint call for "the most careful
scrutiny by the court": The Observer and The Guardian v.
UK (1991) 14 EHRR 153 at paragraphs [59] to [60] and Kelly v BBC
[2001] 1 FLR 197 per Munby J. at 212 B and 229.
It is not, as was suggested by one of the social workers, for
the BBC to satisfy the court that there is a public interest in
publication.
That the court needs to be convinced of a pressing social need
for restrictions upon freedom of expression is given statutory
effect by sections 12(3) and 12(4) of the 1998 Act.
Section 12(3) HRA 1998 applies to these proceedings because the
court is considering "whether to grant any relief which,
if granted, might affect the exercise of the convention right
to freedom of expression". It provides that the court should
not grant interim relief:
"so as to restrain publication before trial unless…satisfied
that the applicant is likely to establish that publication should
not be allowed"
In Cream Holdings v Banerjee [2004] UKHL 44, [2005] 1 AC 253
the House of Lords made clear that "the general approach
should be that courts will be exceedingly slow to make interim
restraint orders where the applicant has not satisfied the court
he will probably (i.e. "more likely than not") succeed
at the trial.
Section 12(4) provides that:
"The court must have particular regard to the importance
of the Convention right to freedom of expression and, where the
proceedings relate to material which the respondent claims, or
which appears to the court, to be journalistic, literary or artistic
material (or to conduct connected with such material), to
(a) the extent to which -
(i) the material has, or is about to, become available to the
public; or
(ii) it is, or would be, in the public interest for the material
to be published"
In this case, the Article 10 rights of the former wards and the
BBC are engaged and the statutory imperatives apply.
Article 6 (1) provides that:
"In the determination of his civil rights and obligations
… everyone is entitled to a fair … hearing within
a reasonable time by an independent tribunal established by law."
"Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests
of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice"
In addition to the public interest in the former wards and the
BBC in the publication of details of the events of 1990/1991,
there is a strong public interest in maintaining the confidence
of the public at large in the courts. Article 6 is intended, among
other things, to promote confidence in the judicial process. This
is a point that has repeatedly been stressed by the Strasbourg
court. In Prager and Oberschlick v Austria (1996) 21 EHRR 1 at
paragraph [34] the court said:
"Regard must … be had to the special role of the judiciary
in society. As the guarantor of justice, a fundamental value in
a law-governed State, it must enjoy public confidence if it is
to be successful in carrying out its duties."
An important means by which such confidence is achieved and maintained
is through permitting proper scrutiny of court proceedings. In
Axen v Germany (1984) 6 EHRR 195 at paragraph [25] the court said:
"The public character of proceedings before the judicial
bodies referred to in Article 6(1) protects litigants against
the administration of justice in secret with no public scrutiny;
it is also one of the means whereby confidence in the courts,
superior and inferior, can be maintained. By rendering the administration
of justice visible, publicity contributes to the achievement of
the aim of Article 6 (l), namely a fair trial, the guarantee of
which is one of the fundamental principles of any democratic society,
within the meaning of the Convention."
I recognise that there are clear distinctions to be drawn between
the administration of criminal justice and family justice, but
just as there are differences, so there are certain minimum protections
and expectations that ought to be common both.
Reflecting this, particularly against the background of frequently
expressed concerns about secrecy in the Family Division, there
is increasing recognition of the need to permit greater openness
in family cases. See, for example, the comments of Munby J. in
Re B at [98] and Wall LJ. in Re H (Children) [2005] EWCA Civ 1325
at paragraphs [26] and [29] to [32].
Set alongside the general principles, what comparative examples
are there of the discretionary exercise I am asked to perform?
It is said by the BBC, and I agree, that this is not a case, by
comparison with Thompson and Venables v News Group Newspapers
Ltd and Ors [2001] 1 FLR 791 CA (the Jamie Bulger murderers),
in which a privacy injunction is sought on the grounds of unique
notoriety, widespread public interest or evidence of a serious
threat to life such that Articles 2 and 3 of the Convention are
engaged, involving rights which, if they were engaged, would not
be capable of derogation.
In fact there is an element of fear expressed in the evidence
of the social workers but in my judgement that falls within the
description given by Thorpe LJ in Re W (Care Proceedings: Witness
Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at paragraph
[13] where he commented in the different but comparable context
of a plea for anonymity within proceedings that:
"social workers up and down the country, day in day out,
are on the receiving end of threats of violence and sometimes
actual violence from adults who are engaged in bitterly contested
public law cases…social workers must regard this as a professional
hazard"
"cases in which the court will afford anonymity to a professional
social work witness will be highly exceptional".
Neither is this a case like Campbell v MGN Ltd supra (where Naomi
Campbell sought an injunction restraining publication of information
about her attendance at Narcotics Anonymous meetings) in which
an injunction is sought on the basis of the confidential nature
of the information intended to be published. There is nothing
confidential to the social workers about the fact that they were
the subject of criticism in an open court judgment in 1991. Their
only confidentiality then identified by the court was that attaching
to the proceedings so as to protect the children concerned. Their
only confidentiality now is their privacy i.e. the integrity of
their professional and family lives as distinct from their identities
as witnesses.
The injunction is sought on the basis of a feared detrimental
impact upon X and Y, and their family members, as a result of
the publication. The BBC submits that, in accordance with the
principles set out above and the examples in the case law to which
I have been directed, an injunction should only be granted to
protect identification in an exceptional case. This is a short
hand for the careful balancing exercise that is to be performed
and I prefer to conduct that exercise without any preconception
as to the result.
The Balance:
What are the rights and interests that I accept on the facts and
that are accordingly engaged?
1. Having regard to Articles 6 and 8, the interests of a child
will always be the major or at least a very important factor sufficient
to justify a curtain of privacy or anonymity to protect the child
thereby ensuring that the court's primary object is satisfied,
which is to secure that justice is done;
2. When the protected child achieves adulthood and is not incompetent
he or she is entitled to decide what is in his or her own interest;
3. As adults, the former wards seek to assert their rights under
Articles 8 and 10 to tell their story;
4. The BBC assert the rights of the media and others to receive
from the former wards the information about the proceedings and
to broadcast that story unless there is a pressing social need
convincingly established for a restraint upon their Article 10
rights;
5. X and Y seek to assert their Article 8 rights to preserve the
confidentiality of their identity and thereby protect their professional
and family relationships;
6. There is a public interest in the confidentiality and privacy
of family proceedings so as to encourage witnesses to participate
and be frank and thereby to assist the court to achieve its primary
object but there can be no expectation that that confidentiality
will remain in all circumstances or for all time;
7. There is no necessary confidentiality in the identities of
X and Y as witnesses. Where anonymity is granted in order to protect
a child, that anonymity will not be necessary when the purpose
of the proceedings is achieved unless there is a separate legitimate
aim and lawful reason for its imposition;
8. There is a public interest in promoting the administration
of justice in maintaining the authority of the judiciary and the
confidence of the public in the family courts by open and public
debate in the media;
9. The subject matter of the proceedings was of high public interest
and remains so;
10. That high interest will not be reflected by a requirement
that a published analysis be presented in a disembodied form so
that it is less cogent or newsworthy;
In fairness to X and Y, it is necessary to examine in a little
more detail the effect that they assert will be the consequence
of the interference with their Article 8 rights by any publication
of their identities. It should be noted that the arguments are
and necessarily have to be presented as risks rather than facts
to be found i.e. they are assertions which I have had to assess
against a factual background that is not disputed by cross examination.
It is said that:
1. Their career prospects including any academic studies will
be prejudiced: there is a slight possibility of this but they
have not been to date despite the fact that their employers have
been aware of their involvement in this case as the anonymous
social workers criticized in judgment by Douglas Brown J.;
2. There will be prejudice to their professional standing within
the agencies for whom they now work, among colleagues, clients
and with other agencies: this is a possibility with implications
for the proper workings of child protection processes, but the
court must be hesitant to protect someone's identity so as to
prevent justified public comment in the media of criticisms made
in an open court judgment. Further, there is little or nothing
to support the assertion that the activities of the agencies for
whom X and Y now work will be damaged and even less that the interests
of any vulnerable client would be prejudiced;
3. There will be harassment and intrusion from the activities
of the media and worse from persons whose activities may be threatening:
again this is possible in that it happened in 1991. Pressure groups
can utilise information of this kind to great personal and professional
detriment and their activities can be pursued almost unchecked.
The actual impact on individuals can be much greater than the
theoretical balance might suggest. The contrary argument is that
with the passage of time there will be less intrusive interest
and that in any event improper or illegal activity can be remedied
or protected against without recourse to Article 10 restrictions;
4. There will be a prejudicial effect upon X and Y's family: again
that is a possible but certainly not a necessary consequence of
publication. In any event the BBC offers and guarantees to protect
from disclosure the names of family members, their whereabouts
and employments. If and in so far as it is asserted that other
media organizations will be less responsible in their reporting
that can be protected against by a much narrower and proportionate
restraint than that asked for;
5. There will be an unfair or inaccurate portrayal of X and Y
and their respective roles: there is no evidence that this will
happen and it is a matter for X and Y whether they take part in
the public debate that they support, but any restraint that tends
to make the documentary one sided will only hinder fair and accurate
reporting by depriving the programme makers of part of the context.
There is no longer any interest of a particular child or children
generally in retaining the anonymity of X and Y. The justification
for the original anonymity ruling no longer exists.
The evidence served in support of the applications of the local
authority and X and Y does not in my judgment convincingly establish
a pressing social need for the restraint asked for. That restraint
would in my judgement be a disproportionate interference with
the Article 10 right. In the short hand, it does not establish
an exceptional case for an interference with Article 10. Publication
of the identities of X and Y will be an interference with X and
Y's Article 8 rights but one that is in pursuit of a legitimate
aim, namely informed and open discussion in the media of the public
interest issues relating to the proceedings and family proceedings
generally. In my judgment that interference would be proportionate.
The Article 10 rights of the BBC and the former wards, and the
public interest, reinforced by Article 6, in enabling public scrutiny
of court proceedings and family justice, should on the facts of
this case prevail over the Article 8 rights of the applicants.
Accordingly, I dismiss the applications of the local authority
and X and Y for an injunction to restrain the BBC from publication
of the identities of X and Y. I will hear further submissions
upon whether there should be any relief to protect X and Y in
the limited manner suggested above, namely to reflect the guarantees
offered by the BBC.
The Effect of Delay on X and Y:
An issue of principle was raised on behalf of X and Y that their
reasonable expectation of privacy cannot now be overturned without
significant prejudice to them to the extent that so long after
the original balance was conducted by Douglas Brown J. they cannot
now get a fair hearing. It is said that this court cannot do justice
to the balance because of the delay since the original hearing
so that these proceedings are unfair: see H v. France (1989) 12
EHRR 74 at paragraph [58].
It is true that in 1991 X and Y were confronted with a difficult
case in a markedly different professional environment to today.
In 1991 the court's judgment was that the interests of the children
demanded that X and Y's identity be withheld, and X and Y now
say that that deprived them of the protection of explaining themselves
in public. Whether they would have chosen to be named then had
they been given a choice is impossible to know but it is true
that the passage of time has allowed them to build careers and
to pursue their professional and personal lives.
A balance was struck in 1991 and this court has been vigilant
not to try and re-cast that balance in order to make its decision
on these applications, it has simply relied upon the words used
by the learned judge. Further, and as I have observed, that balance
does not on the facts of this case persist in perpetuity. There
is a separate balance to be conducted today.
There is in my judgement no delay in the determination of the
civil rights and obligations of X and Y. There were separate balances
to be performed then and now and the passage of time is not accurately
characterised as delay. There is no procedural unfairness in the
hearing of the applications before this court and there has been
no difficulty, asserted or actual, in receiving evidence and argument
and conducting the balance. If anything, the preliminary point
goes to the existence and strength of the evidence that X and
Y have relied upon in support of their argument that a) they have
Article 8 rights to respect for their privacy and b) those rights
have been breached in ways that are disproportionate. I have taken
account of that evidence and the arguments in the balance I have
undertaken.
Judgment Ends.
