Trinity Mirror & Ors, R (on the application of) v Croydon Crown Court

A Crown Court may use section 11 of the Contempt of Court Act 1981 only where it has deliberately allowed a name or other matter to be withheld from the public in proceedings. The section does not apply to information which was irrelevant to the proceedings and was never disclosed or withheld.

Under section 45(4) of the Supreme Court Act 1981, the Crown Court has High Court powers only in matters incidental to its statutory jurisdiction. Such matters must relate directly to the proper despatch of its business. The Crown Court has no general injunction jurisdiction to prevent identification of a convicted defendant in order to protect children who were not concerned in the proceedings.

Any restriction on reporting a criminal conviction requires express legal authority and exceptional necessity. Open justice and public identification of those convicted carry very great weight.

The media appellants appealed under section 159 of the Criminal Justice Act 1988 against a Croydon Crown Court order preventing reports from identifying a man convicted of offences involving indecent images of children. The order was intended to protect his two young daughters, who were neither witnesses nor victims in the criminal proceedings.

The original order was made under section 4(2) of the Contempt of Court Act 1981. The sentencing judge later replaced it with an order under section 11 of that Act and, after reconsideration, maintained its practical effect. The media contended that the Crown Court had no jurisdiction. The children, represented by the Official Solicitor, contended that a power arose under section 45(4) of the Supreme Court Act 1981.

The central issue was whether the Crown Court could restrain identification of the convicted defendant in order to prevent consequential identification and harm to his children.

1. The appeal was allowed and the reporting-restriction order was discharged. The court announced that outcome at the end of the hearing but allowed the order to remain temporarily in force until judgment, so that the children could be prepared for publicity.

2. Section 4(2) of the Contempt of Court Act 1981 was inapt. The order was not necessary to avoid a substantial risk of prejudice to the administration of justice in the criminal proceedings.

3. Section 11 was unavailable. It operates only where the court has exercised a power to allow a name or other matter to be withheld from the public in proceedings. The children’s names, address and school were irrelevant to the trial and had not been withheld by an exercise of judicial power. The section therefore could not support a prohibition on identifying their father. Even on the assumed basis that their details had been withheld, the power would have extended only to those details and not to a prohibition on identifying him.

4. Section 45(4) of the Supreme Court Act 1981 did not give the Crown Court a general power to grant an injunction whenever that appeared just and convenient. Matters incidental to its jurisdiction are matters directly connected with the proper despatch of the business before it, including attendance and examination of witnesses, contempt, and enforcement of its orders. Protecting the children from consequences of post-trial reporting of their father’s identity was not such a matter.

5. The High Court, not the Crown Court, would have jurisdiction to consider an injunction protecting Article 8 rights. The court added that, in any event, the Article 8 interests of these children could not outweigh the powerful Article 10 and open-justice interest in reporting criminal trials and identifying convicted offenders. The anticipated harm, though real and distressing, did not distinguish them from the very large class of children affected by a parent’s conviction. A restriction of this kind could be contemplated only in truly exceptional circumstances.

• Court of Appeal (Criminal Division): allowed the media companies’ appeal under section 159 of the Criminal Justice Act 1988 and discharged the reporting-restriction order: [2008] EWCA Crim 50.

• Croydon Crown Court: on 11 April 2007 made an order under section 11 of the Contempt of Court Act 1981 restraining identification of the defendant; on 7 June 2007 it varied the order without changing its practical effect.