Dacre & Anor v City of Westminster Magistrates Court & Ors

A private prosecution may be an abuse of process where its continuation would offend the court’s sense of justice and propriety. Mixed motives alone do not suffice, but the prosecutor’s conduct is relevant. A person who knowingly provides material likely to identify a child involved in protected family proceedings may be unable to complain that publication of that material breached the statutory restriction.

A court should grant a declaration about the legality of a future course of conduct only in a truly exceptional case, particularly where criminal liability may depend on the circumstances. Reporting restrictions should instead be considered in the proceedings concerned, balancing the child’s Article 8 rights against Article 10 rights.

The claimants sought judicial review of a district judge’s refusal to stay private prosecutions brought under sections 97 and 103 of the Children Act 1989. The prosecutions concerned newspaper reports identifying the interested party and describing her family-court dispute, allegedly making her child likely to be identified as involved in proceedings.

The claimants argued that the prosecutions were an abuse of process because the interested party had mixed and improper motives and had herself contributed to the risk of identification. The interested party maintained that she had sought to protect her child and had been reticent about the family proceedings. Dr Pelling separately sought a declaration concerning the application of section 97 to reporting these proceedings.

1. The judicial review claim was allowed. The district judge was entitled to find that the prosecution was brought with mixed motives and that mixed motives did not, without more, establish abuse. The relevant jurisdiction includes cases where continuation would offend the court’s sense of justice and propriety: [1994] 1 AC 42. Improper motive and conduct may both be relevant.
2. A private prosecutor remains subject to the obligations of a prosecutor in presenting the case and ensuring that relevant material is made available to the court and the defence. The court may also consider whether the prosecutor encouraged the conduct complained of or otherwise created the mischief relied upon. The principles applicable to state entrapment may be applied by analogy: [2001] 1 WLR 2060 (HL).
3. On the evidence, the interested party had knowingly allowed herself to be identified and had described, in general terms, the circumstances which led her to join Fathers 4 Justice. That material was likely, and in practical terms certain, to identify her child to at least part of the public as involved in proceedings to which section 97 applied. Her reluctance to provide further details did not remove the consequence of her deliberate self-identification. The prosecution therefore offended the court’s conscience, notwithstanding that the newspaper might itself have breached section 97.
4. The application for a declaration about future reporting was refused. It was inappropriate to determine in advance whether unspecified conduct would infringe the criminal law, absent a truly exceptional case. Section 39 of the Children and Young Persons Act 1933 did not apply. The court instead retained an inherent jurisdiction to protect the child, requiring a balance between Article 8 and Article 10 rights in light of the legislative policy reflected in section 97. The interested party was anonymised as NT.

The district judge’s decision was quashed and the prosecutions were stayed as an abuse of process.

The judgment describes a decision of District Judge Purdy dated 15 May 2007 refusing to stay the private prosecutions. The High Court (Administrative Court) quashed that decision and stayed the prosecutions.