How not to make a reporting restriction order

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Yesterday – following an application I made to be able to publish the transcript of the hearing at which an unlawful reporting restriction order (RRO) was made in a Portsmouth family court – I was made aware that permission had been given. The Judicial Office published the transcript on its website and tweeted it out.

 

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I hope it offers a chance for people to see what the hearing was like for the reporters in court on the day, to understand why I felt that the reporting restrictions as made were unlawful, and why they needed to be challenged in the Court of Appeal.

I retweeted the link to the transcript, as did others:

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Before I launch into my criticisms of what happened in court that day, I think it’s also important to acknowledge a point made by family barrister Sarah Phillimore in her tweet: in court hearings  which have always been held in private, dealing with media applications to relax restrictions is unfamiliar territory for most counsel and most judges.

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Had this been a situation in which the media had applied to relax reporting restrictions on the hoof, I would be far less critical of the lack of knowledge of the lawyers who were in that Portsmouth  court, and somewhat less critical of the judge.

As I’ll explain however, all parties had been given written notice of  journalist Melanie Newman’s intention to apply for reporting restrictions to be relaxed, and so had ample time to read up on the case law and process required in order to ask – in direct opposition to what the media wanted – for reporting restrictions to be imposed.

The judge hearing our counter applications was not a district or part-time judge, but the designated family judge for the area, sitting as a High Court judge in this hearing.

So my sympathies I’m afraid, are limited.

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Reading a transcript of a hearing can be confusing, because nobody talks in perfect sentences, and the progression of events isn’t always totally clear, so  I thought I’d write this post to point out the elements that were so problematic in the way that the application to impose reporting restrictions was made by the parties, and in the way the judge carried out – in point of fact, didn’t carry out – the “balancing exercise” between articles 6 (right to a fair trial), 8 (privacy) and 10 (freedom of expression) that is required when imposing limitations on the important human right of freedom of expression

1

First of all, one of the journalists, Melanie Newman, who attended this hearing on 19 October last year, had given written notice by email to the parties of her wish for reporting restrictions to be lifted so that the detail of what went on that day could be reported.

By contrast, the parties – Southampton City Council, the Children’s Guardian, and (at that point, though she later supported my appeal against the RRO) the mother – did not give notice to Ms Newman that they were going to ask the judge to actually impose reporting restrictions.

This is directly contrary to the process that is required to be carried out when any party to a family case wishes to restrict freedom of expression beyond the automatic statutory constraints: if anyone wishes to do this, notice must be given to the media in advance.

2

The restrictions that the parties asked for included the names of the professionals involved in the case. These were already in the public domain due to the publication of an Appeal Court judgment.

The parties also asked for the family members’ ages, and ethnicity (which had initially been a factor in one of the grounds of appeal against the placement order for the child to be adopted) to be restricted from publication.

However, everyone’s age and ethnicity had already been made public in the Appeal Court judgment.

So all in all it was a pretty tricky ask, and in court on the day, the BBC’s Sanchia Berg stood up to protest.

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3.

No evidence was advanced at all as to how the ages, ethnicities or the names of professionals who had been involved would in fact lead to an unacceptable risk that the family would be identified. Essentially, the barristers simply asserted that their various clients were worried that identification might occur as a result of these facts being published.

This isn’t enough. In law, in order to seek a reporting restriction order, it is required that evidence is given as to how the facts which parties want to restrict would a) identify the family and importantly b) what harm would occur as a result.

It’s on this basis that the judge then sets the evidenced risks of potential harm against the public interest benefits of reporting the state’s intrusions into family life.

But because no evidence of risk or harm was put forward, the judge couldn’t do this.

4.

Nor did the judge ask for evidence when none was forthcoming – and indeed even when counsel admitted they had no evidence for their concerns, there was no judicial challenge.

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He simply accepted the parties worries as sufficient to restrict the important human right of freedom of expression.

If a local authority can simply assert a vague concern about a possible risk of identification, without being required to come up with something a lot more robust, and the judge then restricts the human right of freedom of expression on the basis of… well, nothing very much – then frankly I think there are some sharp questions to be asked about the rigour of what is going on more generally in family courts.

5.

The Guardian’s counsel put forward an extraordinary if somewhat incoherent case that just because something had appeared on the publicly accessible Bailii website, it wasn’t really public.

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Something is either in the public domain or it isn’t. “A little bit public” just isn’t a thing. Hearing a lawyer put this “argument” forward was for me one of the lowest points of the hearing.

 

6.

The other low point was this:

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To clarify: at the very end of the hearing, and AFTER the judge had made his order restricting ethnicity from being reported, the mother’s barrister took a brief instruction  and spoke across the courtroom to the media at the back, saying that it would be acceptable to say that she was African.

Somewhat surprised, I asked if “Black African” would be acceptable, as an allegation of racism was one of the mother’s original grounds of appeal. The mother was keen that her specific country of origin, contained in the Court of Appeal judgment, was not reported (while the media is now permitted to say which country she comes from, I understand her concern and choose to respect her wishes).

At this point, the judge said that we could sort out the details on how ethnicity was described between ourselves.

I was astonished. The entire point of an order is that the media obeys its specific restrictions. There should be no question of having a quick confab afterwards with the parties to see how far we can stretch or vary the terms of the order. It is illogical and unfair to put any journalist in such a position, and I could not have reported anything related to ethnicity after that order had been made without being in contempt.

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It was a particularly unedifying mess. It has now been remedied by the successful appeal against the RRO which I brought together with the BBC in February, made possible only by the generous donations of so many people to the crowdfunder, and thanks to uncountable hours of pro bono work by Paul Bowen QC and family barrister Sarah Phillimore. I really hope that the President’s soon-to-be-published Practice Guidance on how courts are to deal with applications by journalists and legal bloggers will ensure that such a dogs dinner doesn’t happen again. (The consultation on the draft version ends on 30 June, so if you have an interest, please do submit your views)

The – limited – signs so far are quite encouraging. I used excerpts from the Draft Practice Guidance to support my application to be able to publish this transcript – and communication with the court and the judge worked like a dream!

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