Surrey County Council v ME & Ors

A reporting restrictions order affecting the identification of persons connected with a public criminal trial should be made only where the evidence establishes that it is necessary and proportionate, and, in the especially stringent context of reporting a criminal trial, that the circumstances are exceptional and the restriction absolutely necessary. Distress, vulnerability, possible placement difficulties, or speculative risks are insufficient without clear and cogent supporting evidence. Articles 8 and 10 require an intense comparative proportionality assessment, with neither having presumptive priority. The importance of open justice and the public interest in identifying those responsible for serious crime weigh heavily against restriction.

Surrey County Council sought a reporting restrictions order concerning five children and their parents after two of the children were defendants in an ongoing murder trial concerning the death of their father or stepfather. The application followed the criminal trial judge’s lifting of an order under section 39 of the Children and Young Persons Act 1933 protecting one defendant’s identity.

The parents, children’s guardian and one defendant supported restrictions. Media organisations opposed them. The court considered whether restrictions were justified for the defendant, the parents, and the other children, having regard to Articles 8 and 10 and the evidence of likely distress, emotional harm, identification and placement consequences.

1. Application refused. The court held that the requested reporting restrictions order, or a more limited order, was neither necessary nor proportionate.
2. Under Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593, the court had to conduct an intense focus on the comparative importance of the competing Article 8 and Article 10 rights. Neither right had presumptive priority. Section 12(4) of the Human Rights Act 1998 required particular regard to freedom of expression and relevant public-interest considerations.
3. Restrictions on reporting the identity of a defendant in criminal proceedings could be contemplated only where there was absolute necessity and the circumstances were exceptional. The importance of open justice, public confidence in criminal justice, and the public interest in knowing who was responsible for serious criminal conduct weighed powerfully against restriction.
4. The evidence supporting an order might be partly speculative, but it had to possess a sound and cogent evidential foundation. Pure speculation, even from experienced professionals, could not establish absolute necessity or exceptional circumstances. The cases in which reporting restrictions had been made were unusual, highly fact-specific and supported by detailed evidence.
5. The evidence concerning the defendant showed vulnerability and likely distress from conviction, sentence and separation from his family, but did not establish that reporting would cause additional harm sufficient to outweigh the media’s Article 10 rights. The evidence concerning the other children did not establish a real risk of identification, placement breakdown, limitation of future carers, or harm beyond understandable distress and upset. Existing publicity had not identified them.
6. The court rejected a limited order protecting the other children. The media organisations’ stated intention not to identify them, the protection afforded by the Editors’ Code, the absence of identification despite earlier publicity, and the risk that an order would inhibit legitimate reporting all supported refusal. The media’s freedom could not be restricted because some irresponsible organisation might act improperly.
7. The Article 10 rights of the media therefore prevailed. The parents and the defendant could be identified in reporting of the criminal trial, and no reporting restrictions order was made concerning the other children.