C v Crown Prosecution Service

Orders restricting publication of criminal proceedings cannot be made routinely under section 39(5) of the Children and Young Persons Act 1933. The ordinary rule is open justice and unrestricted reporting of criminal proceedings. Restrictions under the court’s inherent jurisdiction, balancing Articles 8 and 10, require unusual or exceptional circumstances and absolute necessity in the individual case. The embarrassment or disadvantage ordinarily suffered by children when a parent is convicted does not satisfy that threshold. A defendant’s public profile is irrelevant: all persons are equal before the law. Any restriction must be considered carefully, with appropriate opportunity for the press to make submissions.

The appellant had been convicted in criminal proceedings arising from a family dispute. The Magistrates’ Court and the Inner London Crown Court made orders under section 39(5) of the Children and Young Persons Act 1933 prohibiting publication of matters capable of identifying children. The orders had also prevented publication of the proceedings and conviction.

Following the earlier High Court decision reported at [2008] EWHC 148 (Admin) and the decision in R v Croydon Crown Court ex p Trinity Mirror and Others, the court considered whether the lower courts had jurisdiction and whether restrictions should be imposed under the inherent jurisdiction, having regard to Articles 8 and 10.

1. The Magistrates’ Court and Crown Court had no power to make the orders under section 39(5) of the Children and Young Persons Act 1933. The court therefore ruled that those decisions were made without jurisdiction.
2. The governing approach under the inherent jurisdiction was the balance between Article 8 privacy and family-life rights and Article 10 freedom of expression. The ordinary rule is that the press may report everything taking place in a criminal court. Departure from that rule requires unusual or exceptional circumstances and absolute necessity in the individual case. Each application must be examined on its particular facts.
3. The proceedings were criminal proceedings, not family proceedings. The fact that the conduct arose from a family dispute, and that the appellant’s criminality was relatively modest, did not alter the importance of open justice or justify treating him differently from other convicted defendants.
4. There was no evidence of particular harm to the children beyond the embarrassment that might result from their father’s conviction. That was an ordinary consequence of criminal conviction and did not amount to an exceptional circumstance. The children’s position was not materially distinguishable from that of children whose parents are convicted in other criminal cases.
5. The appellant’s public profile was immaterial. Equality before the law required that his position could neither strengthen nor weaken the case for reporting restrictions.
6. The interim order was lifted and no further order restricting publication was made. The court refused certification of a point of general public importance. Media costs were left to lie where they fell, while the respondent’s application resulted in an order for the appellant to pay half the costs.

• High Court (Administrative Court): The present court considered the orders made by the Magistrates’ Court and Inner London Crown Court, and the earlier judgment at [2008] EWHC 148 (Admin). It ruled that the lower-court orders were made without jurisdiction, lifted the interim order and declined to impose further reporting restrictions.
• Magistrates’ Court and Inner London Crown Court: Orders were made under section 39(5) of the Children and Young Persons Act 1933 prohibiting publication capable of identifying the children.