Z & Ors v News Group Newspapers Ltd & Ors (Judgment 1)

When an application seeks to restrict reporting of a criminal trial, the court must balance Articles 8 and 10 without giving either automatic precedence. It must focus intensely on the specific rights engaged, consider the justification for restricting each right, and apply proportionality to each.

The strong rule favouring contemporaneous reporting of criminal proceedings can be displaced only in unusual or exceptional circumstances. The applicant bears a heavy burden and must establish the case on evidence. The balance is fact-sensitive and may change as the criminal proceedings develop, particularly following conviction.

The applicant, the former partner of Mrs Z and father of five of her children, sought urgent protection for the family during Mrs Z’s criminal trial for alleged serious benefit fraud. The trial concerned alleged false claims based on the disabilities and care needs of several children, whose medical histories were expected to be examined in detail.

An earlier order under section 39 of the Children and Young Persons Act 1933 had been discharged because the children were not persons protected by that provision. The issue was whether the Family Division should use its inherent jurisdiction to restrict reporting in order to protect the children’s Article 8 rights against the newspaper’s Article 10 rights and the public interest in open justice.

1. The application was granted at this stage. The applicant discharged the heavy burden of showing unusual and exceptional circumstances justifying a reporting restriction.

2. The inherent jurisdiction provided the procedural vehicle for balancing the competing Convention rights. Following Re S (A Child) (Identification: Restriction of Publication) [2004] UKHL 47, the court gave neither Article 8 nor Article 10 precedence. It focused on the comparative importance of the specific rights, considered the justification for restricting each, and applied proportionality to each.

3. The strong rule supporting press freedom, open justice and contemporaneous reporting of criminal trials could be displaced only exceptionally. The public interest in reporting criminal proceedings remained powerful, and the court guarded against allowing protective instincts concerning children to undervalue Article 10.

4. Exceptional circumstances existed because the children were central to the alleged offending and trial, rather than incidental or indirectly affected. The anticipated examination and reporting of their medical records would constitute a serious intrusion into private information and personal space. The evidence concerning the particular vulnerability of the children, especially E, materially strengthened the Article 8 case.

5. The restriction was proportionate at the present stage, notwithstanding the magnitude and public importance of the alleged fraud and the likelihood that the order would substantially limit meaningful reporting. The order prohibited publication of information identifying the family or family name. E’s rights were strongest, followed closely by those of D and F, with lesser protection applicable to G and H. The adult children’s rights, considered separately, would not have displaced Article 10.

6. The balance was not immutable. If Mrs Z were convicted, the focus would move from allegations and the children’s medical histories to proven serious fraud. The public interest in identifying convicted persons might then outweigh the children’s Article 8 interests. The court would hear further representations at that stage and intended to allow time for appropriate support and preparation of the children.

This was a first-instance application in the High Court.

• Crown Court: an earlier order under section 39 of the Children and Young Persons Act 1933 was discharged because the children did not fall within the statutory categories.
• High Court (Family Division): a temporary reporting restriction made under the inherent jurisdiction was continued until judgment, subject to possible reconsideration following the criminal verdict.