UK Court of Appeal Considers Balance between Media Freedom of Expression and Protection of Children’s Privacy

Trinity Mirror & Ors, R (on the application of) v Croydon Crown Court [2008] EWCA Crim 50 (1 February 2008) The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy.

Facts

The case involved a man in the UK being charged with possession of child pornography.  A question arose as to whether the defendant’s identity could be suppressed in order to prevent harm to his children.

At the hearing of the defendant’s pleading, no attempt was made to withhold the defendant’s name from the published court list or in the court itself.  Following the defendant pleading guilty to possessing child pornography, the judge adjourned the proceeding for a pre-sentence report.  At the same time, the defendant’s counsel successfully applied to the court to make an order that restrained the media from identifying him or his convictions, as to do so would identify his two daughters and they would be likely to suffer significant harm.  Four months after the adjournment, the trial continued and the defendant’s name was again published in the court list and referred to in open court.  At the conclusion of the trial, a reporter unsuccessfully sought to have the suppression order discharged (the Court of Appeal described the basis of the trial judge’s decision to decline to discharge the order as being to ‘protect the children from the sins of their father’).

The decision to not discharge the order was subsequently appealed to the Court of Appeal.

Decision

The Court of Appeal upheld the appeal, thereby permitting publication of the defendant’s identity, on the basis that trial court lacked the jurisdiction to make an order to restrain the publication.  However, of particular relevance to human rights, the Court of Appeal also held that it would have permitted such publication after balancing the defendant’s children’s art 8 rights (right to respect for private and family life) against the media’s art 10 rights (freedom of expression) under the European Convention on Human Rights.

The Court of Appeal acknowledged that the decision engaged two conflicting principles: the protection and well-being of children on the one hand, and open justice in courts exercising criminal jurisdiction on the other.  However, it argued that ‘it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials’, and that, unless there were exceptional circumstances, curtailing the principle of open justice by concealing the identity of those convicted of criminal offences would significantly erode public confidence in the criminal justice system.

Implications for the Victorian Charter

This decision is important for Victorian human rights law in relation to the balancing exercise of these competing rights; to date there has been no judicial consideration on balancing the right to freedom of expression under s 15 and the right to privacy under s 13 of the Charter.

Should the media wish to publish the identity of those convicted and sentenced for criminal offences (particularly serious offences such as those relating to child pornography), subject to any legislative restrictions, it is likely that Victorian courts will not prohibit them from doing so.

However, it is important to be mindful of s 24(3) of the Charter, which provides that all judgments and decisions made by a court or tribunal in either criminal or civil proceedings must be made public unless the best interests of a child otherwise requires, or a law other than the Charter otherwise permits (emphasis added).

There is no equivalent restriction on publication of judgments or decisions in either the European Convention on Human Rights or the UK Human Rights Act 1988.

Further, in relation to the Victorian media, there are legislative restrictions on publication by the media on ‘accounts of proceedings’ in the Family Court (Family Law Act 1975 (Cth) s 121)) and ‘proceedings’ in the Children’s Court (or of a proceeding arising out of a Children’s Court proceeding) (Children, Youth and Families Act 2005 (Vic) s 534).  However, as a general rule, the reporting of criminal proceedings in State courts is not restricted.

Following the Court of Appeal decision, there is a possibility that s 24(3) of the Charter could restrict the media from reporting the identity of a convicted person in a judgment or decision, as such a report could be contrary to the best interests of the convicted person’s children.

However, should s 24(3) of the Charter be relied upon, exceptionally compelling reasons to restrain the media from identifying convicted persons that have children are required.  Indeed, even after the Court of Appeal had accepted evidence – adduced on behalf of the children from their mother, their social worker, their headmistress and a consultant child psychiatrist – about the detrimental effect on the children should their father’s identity be disclosed, the Court argued that there was nothing in the case to distinguish the plight of the defendant’s daughters from that of a massive group of children of persons convicted of offences relating to child pornography.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Crim/2008/50.html.

Steven Loh is a secondee lawyer in the Litigation Department at Corrs Chambers Westgarth