Kirklees Council v P & Ors

Statutory reporting restrictions in private family proceedings may be supplemented under the court’s inherent jurisdiction, but any extension must be necessary and proportionate after an intense balancing of open justice and the competing Convention rights. Exceptional circumstances are required, particularly where restrictions would extend to related criminal proceedings. The Family Division should be slow to bind the criminal court, which is generally better placed to assess the information available at the criminal hearing and the representations of the media. A reporting restriction order may nevertheless be made in conventional terms to prevent identification of children as subjects of family proceedings. Such an order should be precise, narrow and consistent with any transparency order.

Kirklees Council applied for a reporting restriction order concerning four children involved in public law proceedings. The application sought restrictions extending beyond the family proceedings to criminal proceedings concerning Marcus Osborne, who had pleaded guilty to murdering the children’s mother and another man and to raping another woman.

A transparency order already governed reporting by pilot reporters attending the private family proceedings. The BBC opposed the wider order, maintaining that the existing order was sufficient for the family proceedings and that reporting restrictions concerning the criminal proceedings should be determined by the Crown Court. The central issues were whether the Family Division should extend restrictions to the criminal proceedings and, if not, what restrictions were necessary within the family proceedings.

1. Disposition. The application was refused insofar as it sought restrictions extending to the criminal proceedings. A narrower reporting restriction order was made in relation to the family proceedings only.
2. Sections 12 of the Administration of Justice Act 1960 and 97(2) of the Children Act 1989 supplied important statutory protections. The court also had inherent jurisdiction to add to those restrictions, but the burden rested on the applicant to justify the precise order sought.
3. The court had to balance open justice and the rights protected by Articles 8 and 10 of the Convention. Neither right had precedence. An extension beyond the statutory restrictions required full justification in exceptional circumstances. The possibility that publication would cause serious distress to the children did not, without more, displace the strong public interest in reporting criminal proceedings and the identity of a convicted murderer and deceased victim.
4. The Family Division should be slow to bind the criminal court. The sentencing judge would know what information would be before the Crown Court, could hear representations from a wider range of media, and had power to protect the children’s identities. It was wrong to make an order merely because the criminal court was likely to make a similar order, or because the media had not yet published the information in question.
5. The proposed order was also impermissibly broad and imprecise in several respects. The order ultimately made was confined to information likely, directly or indirectly, to identify the children as subjects of proceedings under the Children Act 1989 or the Adoption and Children Act 2002. It did not prohibit publication of the names or photographs of Marcus Osborne or the children’s deceased mother, and it permitted publication of the children’s genders and the identities of the Local Authority and Mr Osborne.

Not stated in the judgment.