A Local Authority v PD & Ors

When a party seeks an injunction restricting identification of a defendant in criminal proceedings to protect a child’s Article 8 rights, the court must balance those rights against the press’s Article 10 rights. Neither right has automatic precedence. The applicant bears the burden of establishing unusual and exceptional circumstances, and the injunction must be necessary and proportionate. The court must give substantial weight to the ordinary rule permitting unrestricted reporting of criminal proceedings. Previous publicity, the anticipated difficulty of counselling a child, and increased pressure on carers may be insufficient where serious or irremediable harm is neither established nor probable.

The case concerned an application by newspaper proprietors to clarify an anonymity and publicity order made during care proceedings concerning a child whose father was being tried for murdering the child’s mother.

The court construed the order as preserving the press’s liberty to report the criminal trial, including identifying and photographing the father. The Local Authority then sought a fresh injunction based on the child’s Convention rights to privacy and family life. The central issue was whether the evidence established circumstances sufficiently exceptional and compelling to justify restraining ordinary reporting of the criminal proceedings.

1. Construction of the existing order. Paragraph 8 provided a clear exemption from paragraphs 1 and 2. Its purpose was to preserve the press’s liberty to report the criminal proceedings. The order therefore did not prevent publication of the father’s name or photograph in connection with that trial.
2. Convention principles. The court applied the framework in Re: S [2004] UKHL 47. Articles 8 and 10 have no automatic precedence. The court must focus intensely on the specific rights claimed, consider the justification for interference with each right, and apply proportionality to both rights. The strong rule favouring unrestricted reporting of criminal proceedings may be displaced only by unusual or exceptional circumstances.
3. The burden rested on the Local Authority. In an injunction operating against the world, and particularly one restricting reporting of a criminal trial, that burden was heavy. Section 12(4) of the Human Rights Act 1998 required particular regard to the importance of freedom of expression and to whether the material was already public or publication was in the public interest.
4. Application. The evidence did not establish exceptional or compelling circumstances. The child’s life-story work would be required regardless of publicity. The possible additional difficulty caused by identifying the father was anticipated and did not make proper care impossible. Harassment, mockery, loss of the placement, or inability of the carers to continue caring was neither adequately established nor shown to be probable. There had already been widespread publicity about the father, the mother’s death and the existence of a child.
5. The circumstances were distinguished from those in Re: W [2005] EWHC 1564 (Fam), where minimal prior publicity, a serious risk to the children’s placement and likely stigmatisation as suffering from AIDS made the case exceptional and compelling. The fresh injunction was refused.