S, Re

Applications for reporting restriction orders engaging Articles 8 and 10 require an intense, fact-specific focus on the competing rights. Neither right has precedence. The court must conduct a parallel proportionality analysis and then undertake the ultimate balancing exercise.

There is no general starting point in favour of publishing the identity of a minor who has been arrested but not charged. The importance of open justice must be balanced against the child’s privacy, safety and welfare, the risk of a jigsaw identification, and any risk to a concurrent criminal investigation. The balance may change as circumstances develop.

Family Division proceedings concerned the protection of children alleged to have been radicalised. A concurrent police investigation followed the arrest of five family members, including minors, in connection with terrorist offences.

After newspaper reports identified a child and linked the child to the proceedings, Moor J granted a reporting restriction order. Associated Newspapers Ltd challenged restrictions preventing publication of information likely to identify the children, their parents or carers as connected with the arrests or the family proceedings. The central issue was whether the order should continue notwithstanding the media and public interest in reporting the arrests.

1. The reporting restriction order continued. The court was satisfied that the order was necessary on the facts and should remain in the terms drafted.
2. The governing approach was the ultimate balancing test identified in Re S [2005] 1 AC 593. Articles 8 and 10 have presumptive parity. The court must intensively compare the specific rights claimed, examine the justification for restricting each right, and apply proportionality to each before balancing the competing interests.
3. The principle of open justice did not create a starting point favouring publication of the identity of a person merely arrested and not charged. The argument that the principles applicable to naming defendants at criminal trial applied by parity to arrested minors was controversial and distorted the required analysis.
4. The privacy and safety interests of a minor arrested but not charged may weigh more heavily than those of a child charged or standing trial. The court had to consider the particular facts, including police practice, the legislative policy of protecting minors in the criminal process, and the statutory restrictions on publishing information relating to private family proceedings.
5. Here, the risk of identification through the combination of information already published and information contained in the proceedings was real and probable. The children were vulnerable, the reports could generate a jigsaw effect, and publication might compromise the criminal investigation. The competing rights were therefore not finely balanced, although the balance could shift as events unfolded.
6. The court also considered the Editors’ Code of Practice and the analogy with child sexual exploitation cases. The protective rationale applied with particular force to children vulnerable to radicalisation, even where protection incidentally benefited a parent.