A Local Authority v W

Applications to restrain reporting of criminal proceedings engage the competing rights under Articles 8 and 10 of the ECHR. Neither right has automatic priority. The court must undertake parallel analysis, focusing intensely on the specific rights claimed, the justification for interfering with each right and proportionality.

The ordinary rule favouring unrestricted reporting of criminal trials is strong, but may be displaced in unusual or exceptional circumstances. An injunction may protect children who are not parties to the criminal proceedings where publicity is likely to cause substantial harm to their privacy and family life, prejudice care or placement decisions, or produce lasting stigma. The court must assess both the likelihood and extent of the threatened harm and the practical effectiveness of the proposed restriction.

A local authority sought continuation of an injunction restraining publication of the identities and images of a mother and father involved in criminal proceedings. The purpose was to protect two young children, who were subject to care proceedings but were not involved in the criminal trial.

The mother had pleaded guilty to an offence under section 20 of the Offences Against the Person Act involving HIV infection. The authority and the children’s guardian relied on evidence of likely stigma, bullying, harassment and difficulty securing suitable family or foster placements if the parents’ identities and medical status became widely known.

The central issue was whether the threatened interference with the children’s Article 8 rights justified restricting the media’s Article 10 rights, having regard to the strong public interest in open reporting of criminal proceedings.

1. The injunction was granted. The court accepted that the case attracted substantial public and media interest and that restricting publication of the parents’ identities would produce a partly disembodied trial. Nevertheless, reporting and public discussion of the legal and policy issues arising from the charge would not be significantly inhibited.

2. The court applied the approach in Re: S (Identification: Restrictions on Publication) [2004] UKHL 47. Articles 8 and 10 require parallel analysis. Neither is a trump card. The court must focus on the comparative importance of the particular rights claimed, examine the justification for interfering with each right, and apply proportionality to each.

3. The ordinary rule that the press may report everything occurring in a criminal court remains strong, but it is not mechanical. It may be displaced by unusual or exceptional circumstances. The court must examine each application carefully and give substantial weight to open justice without treating Article 10 as invariably decisive.

4. Article 8 protects more than secrecy or life behind closed doors. It includes physical and psychological integrity, identity, personal development and the ability to establish and maintain relationships. The children’s Article 8 rights were engaged because publicity was likely to affect their welfare, education, family relationships and future placements.

5. The evidence concerning future harm was necessarily speculative because widespread publicity had not yet occurred. However, it was supported by professional assessments, local knowledge, prior harassment and evidence of bullying. The court found a sufficiently established likelihood that publicity would intensify harassment, prejudice placement decisions and create lasting stigma, particularly for the older child.

6. The children’s young age and non-involvement in the criminal trial did not prevent relief. The indirect nature of the interference was relevant, but did not outweigh clear evidence of real and substantial harm to their Article 8 rights. The injunction was therefore necessary and proportionate.

7. The judgment also emphasised procedural safeguards. Under section 12(2) of the Human Rights Act 1998, notice should ordinarily be given to the press and media. Without-notice orders should be exceptional, and service through the Press Association’s CopyDirect service should normally be used for national media applications.