Lukjanenko v Medway Council

On an appeal from committal proceedings, the Court of Appeal reviews fair process, the legal justification for breach findings, and the proportionality of sentence; it does not reopen the original injunctions. A reporting restriction order prohibiting publication of a child’s name or identifying particulars may be breached by publishing only a first name, a day and month of birth, or information on a Facebook wall accessible to friends. Where the order separately prohibits publication of the child’s name or particulars, proof of a likelihood of identification is not required for each such publication. Repeated, flagrant breaches after suspended committal sentences can justify consecutive activation terms, while sentences arising from the same postings may run concurrently.

The appellant had previously been made subject to a reporting restriction order concerning his son and injunctions under the Protection from Harassment Act 1997 protecting Medway Council employees. Following further Facebook publications and alleged harassment, Mr Recorder Royall found most of the alleged breaches proved and imposed concurrent six-month sentences, together with the concurrent activation of two suspended 56-day sentences, producing a total term of approximately eight months.

The appellant challenged the adequacy of the hearing, the interpretation of the injunctions, the relevance of his proposed hunger strike and the effect of imprisonment on his son, as well as the sentence. He also relied on the reporting restriction order’s public-domain provision. The central issues were whether the breach findings and sentence could stand and whether that provision invalidated any finding.

Appeal dismissed. The Court of Appeal upheld the committal decision and sentence, subject to setting aside one reporting restriction finding and amending the public-domain provision.

1. The appellate jurisdiction in committal proceedings was confined to ensuring that fair process had been followed, that breaches were properly and legally established, and that the sentence was lawful, fair and proportionate. The court had no jurisdiction to appeal the original reporting restriction or harassment orders.
2. The reporting restriction order was not limited to publication of the child’s full name. Publication of his first name could therefore constitute a breach. Publication on a Facebook wall was publication for the purposes of the order even if access was limited to one or two friends. The day and month of the child’s birth were separately prohibited particulars, even where the year was not stated. Where the child’s name itself was published, it was unnecessary to prove beyond reasonable doubt that a member of the public was likely to identify him.
3. The public-domain provision permitted publication of the child’s name to the extent that it had already been lawfully published by the Russian media channel before service of the order. One finding therefore could not stand. The court amended the provision so that it applied to information other than the child’s name.
4. A citizen is ordinarily entitled to criticise a public servant publicly. As explained in Re J (A Child: Contra Mundum Injunction) [2013] EWHC 2694 (Fam), that default may be altered by an injunction protecting anonymity where compelling reasons justify it. The appellant was being punished for breaching express injunctions, not merely for criticising public servants.
5. In sentencing for repeated contempt, the court was entitled to consider the history of the proceedings, previous opportunities to avoid immediate custody, repetition of similar conduct, the number of breaches and their flagrant disregard of the orders. The six-month sentences were proportionate. Because the breaches largely arose from the same postings, those sentences properly ran concurrently. The two activated 56-day terms properly ran concurrently with each other but consecutively to the substantive sentence. The total eight-month term was justified.

The reporting restriction order as varied and the harassment injunctions remained in force.

• Court of Appeal (Civil Division) — In [2018] EWCA Civ 612, the appeal was dismissed. One reporting restriction finding was set aside and the order was amended.
• Canterbury Combined Court — Mr Recorder Royall found five of six alleged reporting restriction breaches and six of seven alleged harassment-injunction breaches proved, and imposed the committal and activation sentences challenged on appeal.