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H -v- A (No2); FD 17 Sep 2015

The law relating to media, internet, telecomms etc

H -v- A (No2); FD 17 Sep 2015

Postby dls » Tue Sep 29, 2015 8:55 am

References: [2015] EWHC 2630 (Fam)
Links: Bailii
Coram: MacDonald J
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in its original format. The court identified: 'the risk of so called 'jigsaw identification' in cases where the judgment of the family court has been made public. In particular, this case highlights the issue of 'jigsaw identification' in family cases where there has been prior press reporting of related criminal proceedings that remains readily accessible to the public on the Internet provided one has the appropriate terms to type into a search engine, which Internet search terms can be gleaned from the facts set out in the judgment of the family court even where that judgment is published in a form which anonymises the details of the family.'
' the proper approach in relation to both the decision whether to publish the substantive judgment in this matter and whether to make a reporting restriction order is for the court to identify the various rights that are engaged, conduct the necessary balancing exercise between the competing rights by maintaining intense focus on the comparative importance of those specific rights, by examining and accounting for the justifications for interfering with or restricting each right and by applying the ultimate balancing test of proportionality.'
'In the age of the Internet, where today's news story no longer becomes tomorrow's discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms, 'jigsaw identification' will arise as a potential issue in every case where the family court publishes a judgment in proceedings arising out of a set of facts that have also led to criminal proceedings that have been the subject of reports in the media. The risk of 'jigsaw identification' is not however a reason in itself to withhold the publication of a judgment. The question in each case will be whether, having regard to the evidence before the court and all the circumstances of the case, the interference in the Art 8 rights constituted by the risk of 'jigsaw identification' arising out of publication outweighs the interference in the Art 10 right of freedom of expression constituted by withholding publication.'
This case cites:
    - Cited - In Re G (Minors) (Celebrities: Publicity) CA (Gazette 04-Nov-98, Times 28-Oct-98, [1999] 1 FLR 409)
    Where extra publicity might attach to proceedings because of the celebrity of the parents, it was wrong to attach extra restrictions on reporting without proper cause. There remains a need to balance the need for the freedom of speech and the . .
    - Cited - Pelling -v- Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA ((2004) 2 FLR 823, Bailii, [2004] EWCA Civ 845, [2004] 3 All ER 875)
    The applicant sought an order that his application for a joint residence order should be held in public.
    Held: Though there was some attractiveness in the applicant's arguments, the issue had been fully canvassed by the ECHR. The time had come . .
    - Cited - In re S (a Child) (Identification: Restrictions on Publication) HL (House of Lords, [2004] UKHL 47, Bailii, Times 29-Oct-04, [2005] 1 FLR 591, [2005] 1 AC 593, 17 BHRC 646, [2004] 4 All ER 683, [2005] Crim LR 310, [2004] 3 FCR 407, [2005] HRLR 5, [2004] 3 WLR 1129, [2005] EMLR 11, [2005] UKHRR 129, [2005] EMLR 2)
    The claimant child's mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
    - Cited - Re H (Freeing Orders: Publicity) CA ([2006] 1 FLR 815, [2005] EWCA Civ 1325)
    Wall LJ said: 'Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
    - Cited - London Borough of Barnet -v- X & Another FC ([2006] 2 FLR 998, [2006] EWCC 1 (Fam), Bailii)
    Barnet County Court - Munby J considered the publication of children proceedings: ' In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate - indeed a compelling - interest in . .
    - Cited - Norfolk County Council -v- Webster and others FD (Bailii, [2006] EWHC 2733 (Fam), [2007] EMLR 199, (2007) HRLR 3, [2007] 1 FLR 1146, [2007] HRLR 3, [2008] 1 FCR 440, [2007] Fam Law 399)
    The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
    Held: A judge . .
    - Cited - Re J (A Child) (Reporting Restriction: Internet: Video) FD (Bailii, [2013] EWHC 2694 (Fam), [2014] 1 FLR 523)
    'This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, . .
    - Cited - A Local Authority -v- W L W T & R; In re W (Children) (Identification: Restrictions on Publication) FD (Bailii, [2005] EWHC 1564 (Fam), Times 21-Jul-05, [2006] 1 FLR 1)
    An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
    - Cited - Clayton -v- Clayton CA (Bailii, [2006] EWCA Civ 878, Times 04-Jul-06, [2006] 3 WLR 599, [2006] Fam 83)
    The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified. <br . .
    - Cited - MX -v- Dartford & Gravesham NHS Trust and Others CA (Bailii, [2015] EWCA Civ 96, [2015] WLR(D) 77, [2015] 1 WLR 3647, WLRD)
    Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
    Held: An order should . .
    - Cited - Re C (A Child) CA (Bailii, [2015] EWCA Civ 500)
    After the conclusion of very long running litigation between mother and father as to the upbringing of their child, the court now considered the publication of its judgment.
    Held: The exercise of discretion concerning the publication of the . .
    - Cited - In Re R (Wardship: Restrictions on Publication) CA ([1994] Fam 254, [1994] 2 FLR 637, [1994] 3 All ER 658, [1994] 3 WLR 36)
    The parents had separated and the child made a ward of court. The mother had care and control and the father had access. The father abducted the child to Israel but she was recovered. The father was extradited to stand trial here. He sought . .
    - Cited - Regina -v- Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA (Times 15-Jun-98, Gazette 01-Jul-98, Bailii, [1998] EWCA Civ 958, [1999] QB 966, [1998] 3 All ER 541, [1998] 3 WLR 925)
    A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
    Held: The legal professions have no special part in the law as a party . .
    - Cited - In re X Children FD (Bailii, [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, [2008] Fam Law 23)
    Munby J made clear, in the context of reiterating the principle that whilst it was a strong thing to omit or qualify the public domain proviso, that the Court can, where there is a pressing need, construct a reporting restriction order so as to . .
    - Cited - LM, Re (Reporting Restrictions; Coroner's Inquest) FD (Bailii, [2007] EWHC 1902 (Fam))
    A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
    - Cited - Trinity Mirror and Others, Regina (on the Application Of) -v- Croydon Crown Court CACD (Bailii, [2008] EWCA Crim 50, [2008] 2 All ER 1159, [2008] 3 WLR 51, [2008] QB 770, [2009] EMLR 3, [2008] Crim LR 554, [2008] 2 Cr App R 1, Times 13-Feb-08)
    It is an important aspect of open justice that defendants' names should be made public. Sir Igor Judge P said: 'This appeal succeeds on the jurisdiction argument; we must however add that we respectfully disagree with the judge's further conclusion . .
    - Cited - A Council -v- M and Others (Judgment 3: Reporting Restrictions) FD (Bailii, [2012] EWHC 2038 (Fam))
    Applications were made for the protection of the identity of children and family members ahead of care and criminal proceedings. The order was resisted by several news organisations.
    Held: a conclusion that the Art 8 rights of individuals . .
    - Cited - Birmingham City Council -v- Riaz and Others FD (Bailii, [2015] EWHC 1857 (Fam))
    The Council sought a lifelong order to protect the identity of a girl about to achieve majority, who have been subject to sexual exploitation as a child.
    Held: Keehan J said: 'There comes a point, however, where evidence is not merely . .
    - Cited - Osman -v- The United Kingdom ECHR (Times 05-Nov-98, 23452/94, 87/1997/871/1083, Bailii, ECHR, [1999] 1 FLR 193, Bailii, [1998] ECHR 101, 5 BHRC 293, (2000) 29 EHRR 245, [1999] Fam Law 86, [1998] HRCD 966, [1999] Crim LR 82, (1999) 163 JPN 297, (1999) 11 Admin LR 200)
    (Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil's surname. He was required to teach at another school. The pupil's family's property was subjected to numerous acts of vandalism, . .
    - Cited - In re Officer L HL (Bailii, [2007] UKHL 36, Times 01-Aug-07, [2007] 1 WLR 2135, [2007] 4 All ER 965, 151 Sol Jo 1061, [2007] All ER (D) 484)
    Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
    Held: 'The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
    - Cited - In re Officer L HL (Bailii, [2007] UKHL 36, Times 01-Aug-07, [2007] 1 WLR 2135, [2007] 4 All ER 965, 151 Sol Jo 1061, [2007] All ER (D) 484)
    Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
    Held: 'The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
    - Cited - Scott -v- Scott HL ([1912] P 241, [1913] AC 417, 29 TLR 520, [1911-13] All ER 1, Bailii, [1913] UKHL 2)
    There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer's notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
    Held: The House . .
    - Cited - Botta -v- Italy ECHR (21439/93, Bailii, [1998] ECHR 12, ECHR, , Bailii, [1996] ECHR 83)
    The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
    Held: 'Private life . . includes a person's . .
    - Cited - Bensaid -v- The United Kingdom ECHR (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, Bailii, [2001] INLR 325, 11 BHRC 297)
    The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
    - Cited - Countryside Alliance and others, Regina (on the Application of) -v- Attorney General and Another HL (Bailii, [2007] UKHL 52, Times 29-Nov-07, [2007] 3 WLR 922, [2008] HRLR 10, [2008] Eu LR 359, [2008] UKHRR 1, [2008] 2 All ER 95, [2008] 1 AC 719)
    The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
    Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
    - Cited - Attorney-General -v- Leveller Magazine Ltd HL (lip, [1979] AC 440, [1978] 3 All ER 731, [1979] 2 WLR 247)
    The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, and who had been referred to as Colonel B during the hearing. An order had been made for his name not . .
    - Cited - Diennet -v- France ECHR ((1995) 21 EHRR 554, 18160/91, Bailii, [1995] ECHR 28, ECHR, [1996] 21 EHRR 554, Bailii, [1995] ECHR 28)
    <a title='Source of text]Hudoc[/url] Judgment (Merits and just satisfaction) Violation of Art. 6-1 (publicly); No violation of Art. 6-1 (impartiality); Non-pecuniary damage - finding of violation sufficient; Costs and expenses partial award - . .
    - Cited - Regina -v- Secretary of State for The Home Department Ex Parte Simms HL (Times 09-Jul-99, Gazette 28-Jul-99, House of Lords, Bailii, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328, [1999] EMLR 689, (1999) 7 BHRC 411, (1999) 2 CHRLD 359)
    A simple ban which prevented any prisoner speaking to journalists professionally and without discrimination was unlawful.
    Lord Steyn said: 'Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is . .
    - Cited - Reynolds -v- Times Newspapers Ltd and others HL (Times 29-Oct-99, Gazette 25-Nov-99, Gazette 17-Nov-99, House of Lords, Bailii, [2001] 2 AC 127, [1999] UKHL 45, [1999] 4 All ER 609, [1999] 3 WLR 1010, [2000] EMLR 1, [2000] HRLR 134, 7 BHRC 289)
    The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
    - Cited - Allan -v- Clibbery (1) CA (Times 05-Feb-02, Bailii, Gazette 14-Mar-02, [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565, [2002] UKHRR 697)
    Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
    - Cited - Guardian News and Media Ltd, Regina (on The Application of) -v- City of Westminster Magistrates' Court CA ([2012] 3 All ER 551, [2012] 3 WLR 1343, Bailii, [2012] EWCA Civ 420, [2012] WLR(D) 110, [2012] CP Rep 30, [2012] EMLR 22, WLRD, [2013] QB 618)
    The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
    Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .

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