HM Attorney General v Pelling

Publication of a judgment or other information from private proceedings concerning a child may constitute criminal contempt, even where the publication cannot interfere with the fair disposal of the proceedings themselves. Protecting the child’s interests and privacy is part of the administration of justice.

The statutory exceptions in section 12 of the Administration of Justice Act 1960 preserve and clarify the common law. They are not confined to historic wardship proceedings and include proceedings under the Children Act 1989. An express order directing privacy is unnecessary. The publisher must, however, know that publication is prohibited. A substantial lapse of time does not remove the protection where the child’s interests still require it.

The Attorney General applied for the defendant’s committal or another penalty for publishing in a journal and on the internet a judgment delivered in private in residence proceedings under the Children Act 1989. The defendant admitted the publication and its intentional nature.

He argued that publication did not interfere with the administration of justice, that the common law rule was confined to wardship, and that the Administration of Justice Act 1960 and the European Convention on Human Rights permitted publication. He also sought to cross-examine the Attorney General’s deponents. The central issues were whether the publication was criminal contempt and, if so, the appropriate disposal.

The Divisional Court found the defendant guilty of criminal contempt of court. It accepted formal undertakings in lieu of any fine or custodial sentence and ordered payment of the Attorney General’s costs, excluding costs caused by the mistaken issue of proceedings in the Family Division.

1. Procedure. There was no automatic common-law right for a defendant in committal proceedings to cross-examine affidavit deponents. The court had a discretion to permit cross-examination where justice required it, particularly where relevant facts were disputed or further elucidation might assist. The admitted facts were undisputed and the defendant gave no basis for cross-examination, so permission was refused.
2. Nature of the contempt. Criminal contempt ordinarily involves intentional interference with the administration of justice, and the Attorney General bore the criminal burden of proof. The certainty principle required the offence to be sufficiently foreseeable. The court held that protecting the interests of a child whose proceedings were conducted privately was itself a function of the administration of justice. Publication therefore need not affect the fair determination of the proceedings.
3. Statutory and common-law position. The court relied on Scott v Scott [1913] AC 417, In re F [1977] Fam 58 and P v Liverpool Daily Post Plc [1991] 2 AC 370. Section 12 of the Administration of Justice Act 1960 was a clarification of the pre-existing law, not a complete code. Its reference to proceedings under the Children Act 1989 placed those proceedings on the same footing as wardship and related child proceedings. An express order requiring privacy was unnecessary. The defendant knew, at least, that publication was prohibited.
4. Application. The publication of the private judgment was deliberate and fell within that category of contempt. The fact that the judgment had been delivered seven years earlier did not remove the need for protection, since the child was still only twelve when publication occurred.
5. Sentence. The contempt was serious and initially appeared to warrant imprisonment. The court nevertheless took account of the absence of material harm to the child, the defendant’s previous good character and modest means, and his assurances that he would not publish further prohibited information and would ask the relevant webmaster to remove the judgment. Those assurances were accepted as undertakings to the court, breach of which would constitute a separate contempt.

Leave for the committal application was granted on 30 March 2004. An application to strike out the Attorney General’s statement of case was dismissed on 20 May 2004. The substantive hearing took place before the present Divisional Court after an adjournment to enable the defendant to obtain legal assistance and await the determination of a petition in related proceedings.