RJ v Tigipko

The court’s inherent jurisdiction should not be used to bypass a detailed statutory regime governing publication and postponement. Under section 4(2) of the Contempt of Court Act 1981, the existence of related proceedings that are genuinely pending or imminent is a condition precedent to postponing publication. A speculative investigation, possible future charge and uncertain extradition process do not satisfy that condition. Where the statutory criterion is met, publication may be postponed to protect the fairness of parallel criminal proceedings, particularly where family-court findings may carry substantial weight despite being made on a lower standard of proof.

The applicant father sought permission to publish material from an earlier private family judgment concerning the retention of children in Ukraine. The mother and maternal grandfather applied for redaction of passages containing adverse findings, relying on section 11 of the Contempt of Court Act 1981 and the court’s inherent jurisdiction.

The court had previously imposed limited reporting restrictions concerning the parties’ identities and the grandfather’s occupation. The Court of Appeal subsequently refused permission to appeal the earlier judgment and order. The issue was whether publication should nevertheless be postponed or the passages redacted because of a possible criminal investigation or future proceedings.

1. The redaction applications were dismissed. Section 11 of the Contempt of Court Act 1981 was not engaged. The earlier reporting restriction concerned only the identities of the actors and the grandfather’s occupation. The passages now challenged had been ventilated in open court and had already been partly reported subject to those restrictions.
2. The court possessed inherent power to control publication of a judgment delivered in private. However, where Parliament had legislated specifically for publication and postponement, the statutory scheme could not be bypassed by invoking a general inherent jurisdiction. The principle in Richards v Richards [1984] 1 AC 174 applied.
3. Section 4(2) imposed a condition precedent that proceedings capable of being prejudiced must be pending or imminent. Consistently with Re Yaxley-Lennon (a.k.a. Tommy Robinson) [2018] EWCA Crim 1856, the power was principally one of postponement, not prohibition, and ordinarily operated where a related trial was awaiting disposal.
4. A police investigation, an uncertain charging decision and possible extradition proceedings in Ukraine were too distant and contingent to constitute pending or imminent proceedings. It would therefore be a misuse of the inherent jurisdiction to make an order ignoring the statutory criterion.
5. Obiter, if a charging decision had been made and the proposed defendants were present in England on bail, the court would have postponed publication because family-court findings, although made on a lower standard of proof, could carry special weight and create a substantial risk of prejudice or miscarriage of justice in parallel criminal proceedings. The example of The County Council of the City and County of Cardiff v Scully-Hicks [2016] EWFC 79 illustrated that approach.

High Court (Family Division): the redaction applications were dismissed.

Court of Appeal: permission to appeal the earlier judgment and order was refused by King LJ on 8 and 13 February 2019.