London Borough of Sutton v Gray & Ors v Guardian News and Media Ltd

Applications to publish a judgment in private care proceedings require a careful balance between open justice, freedom of expression, privacy and the integrity of current or potential criminal proceedings. There is no presumption in favour of publication, although the press has an important scrutiny role in family proceedings. Where an appeal may result in a retrial, publication may properly be postponed even if the risk of prejudice appears small, because the consequences for the criminal process may be grave or incalculable. The continuing accessibility of online reporting is relevant to that assessment. Publication should be reconsidered when the criminal process has ended, subject to appropriate redactions.

The media applied for permission to publish a suitably redacted judgment delivered by Eleanor King J in care proceedings concerning a child’s sibling. Reporting restriction orders had been maintained since 2013, partly to avoid prejudice to criminal proceedings arising from the child’s death. Following the convictions of the child’s parents, the media argued that the justification for withholding the judgment had fallen away and that publication was strongly supported by the public interest and open justice.

The court considered the continuing possibility of an appeal, including a retrial, the impact of publication on the fairness of any future criminal proceedings, and the competing rights under Articles 6, 8 and 10 of the Convention.

1. Application dismissed. Permission to publish the judgment of Eleanor King J was refused.
2. Open justice is fundamental to the rule of law, and the press has an important public-watchdog role in private care proceedings. However, there is no presumption in favour of open justice in such proceedings. The court must balance the competing rights under Articles 6, 8 and 10 of the Convention, having regard to the effect of publication on current or potential criminal proceedings.
3. The criminal process was not necessarily complete. The convicted defendant had indicated an intention to pursue an appeal, and the possible outcomes included dismissal, quashing of the conviction or an order for a retrial. The court could not predict which outcome would occur.
4. Publication would almost certainly attract extensive publicity and would disclose substantially more material than was already in the public domain. Even if the risk of prejudice were small, the consequences for a future criminal trial or retrial could be incalculable. The possibility that publication might later be relied upon to challenge the fairness of a trial was sufficient to justify postponement.
5. The continuing accessibility of online material was relevant. In H v A No. 2, [2015] EWHC 2630, MacDonald J had recognised that internet publication remains accessible through search terms. The court treated that consideration as pertinent to the assessment of prejudice.
6. The arguments for publication remained powerful. Once the criminal appeals process had ended, the court expected that a full and suitably redacted version of the judgment would be published.

No appellate history is stated in the judgment. The application arose from continuing reporting restriction orders made in the care proceedings and subsequent orders permitting limited disclosure.