A London Borough v B

Restrictions on reporting the identities of criminal defendants or a deceased child require an intense and fact-specific balancing of Articles 8 and 10 rights. Neither right has automatic precedence. The ordinary rule permitting full reporting of criminal proceedings may be displaced only in unusual or exceptional circumstances. Evidence of particularised harm and identification risk is required. The fact that a child may later suffer distress from learning about a parent’s alleged criminality is insufficient where that risk is shared by many children and can be addressed through appropriate care and life-story work. The court must also consider the effect of anonymity on open justice and public discussion of criminal proceedings.

The local authority sought a reporting restrictions order in care proceedings concerning a young child whose sibling had died and whose parents had been charged with murder. The proposed order would have prohibited reporting the defendants’ names and the deceased child’s identity, or at least restricted reporting of the deceased child’s identity and relationship to the surviving child.

The application followed the discharge of an order made in the criminal proceedings under Youth Justice and Criminal Evidence Act 1999, on the basis that the family court should consider protection for the child, who was not a witness. The issue was whether the surviving child’s Article 8 interests justified restricting the media’s Article 10 rights and the ordinary principle of open justice.

1. Application refused. The court discharged the interim order and made a revised order permitting reporting of the defendants’ names and the deceased child’s identity, subject to the edits proposed at the hearing.
2. The governing approach was that neither Article 8 nor Article 10 had precedence. The court had to focus intensely on the comparative importance of the specific rights claimed, consider the justification for interference with each right, and apply proportionality to each. The ordinary rule was that the press could report everything taking place in a criminal court. Departure required unusual or exceptional circumstances.
3. The evidence did not establish an exceptional or sufficiently particularised risk. The child was very young, her surname was not distinctive, she was in foster care, and there was no evidence that she would be affected more than other children who suffer the consequences of parental criminality. She would in any event need to learn what had happened, and life-story work could be adapted to prepare her for accessing published material.
4. The authorities in which reporting restrictions had been granted involved highly distinctive facts, substantial identification risks, intimate subject matter, expert evidence of vulnerability, or a real risk of community exclusion. Those features were absent here.
5. The names of the deceased child and defendants were important to meaningful reporting. Removing them would render the criminal trial effectively disembodied, impair open justice, and create a precedent potentially affecting many similar cases. The proposed restriction was therefore not necessary or proportionate.
6. The court declined at that stage to prohibit reporting an additional fact concerning the deceased child. That issue could be reconsidered if it became relevant to the criminal trial or if circumstances changed.