A failed application for reporting restrictions by Hertfordshire county council
While I wait for my partner and 13 year old to trail their tired but hopefully happy way back from bodyboarding at Whitesands beach, here’s a quick rundown of what happened in Watford Family Court in front of HHJ Vavrecka, sitting as a high court judge, at 2.15pm on Friday 28 May.
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The day before, Thursday 27 May, I’d become aware that the media had been served notice via the CopyDirect service, of Hertfordshire County Council’s intention to apply for reporting restrictions that would affect the reporting of a Crown Court sentencing hearing on the Tuesday after the bank holiday. The sentencing related to Alex Staines, who had, on 4 May, pleaded guilty to the murder of his 25-year-old former partner Christie Frewin.
Ms Frewin was killed on 27 January this year at her home in Welwyn Garden City, a fact that had been widely reported locally, and covered, by the Sun and BBC nationally (there may have been other outlets which also reported it).
At this stage, less than 24 hours before the hearing of the application to restrict certain matters from being reported, I knew no more than that.
At about 5.30pm, sitting in the carpark of Cheltenham General Hospital where I’d just been for an appointment, I emailed the court with a copy of my press card, asking for a log in to the hearing, and also for the skeleton arguments of all the parties. I wanted to know what restrictions were being applied for, and I wanted to think about what position I would take; it is not automatic that the press opposes applications for reporting restrictions. Some restrictions, in some cases, are sensible.
I knew I had a really busy day on the Friday. I would have to rearrange some tricky work stuff to attend the hearing, and would have virtually no time to read the skeletons even if they arrived with me at 9am prompt. Also… I had marathon amounts of holiday packing to do. So I was a bit stressed. But somehow, I just got the feeling that it was going to be important to be at this particular hearing.
By 10.30ish on Friday morning, I’d heard nothing from the court. I rang up, and by the time I was put through to the third person, who told me they’d have to refer my request to the judge, I was getting quite concerned that I might not receive a log-in in time. One might think that an urgent application for a reporting restriction order, when the media had been put on notice by CopyDirect, might have been communicated to the court office, so that they were alert to emails from journalists saying they wished to attend. Anyway. At this point, I tweeted about it. At family barrister Lucy Reed’s suggestion, I @‘d HMCTS. I have no idea if this made a scrap of difference, but anyway, soon afterwards the skeletons started dropping into in my inbox.
Hertfordshire County Council, I soon discovered, wanted the court to restrict publication of the children’s names, photographs, and the school attended by the two older siblings. That seemed fine to me. Although their parents’ names are of course all over the media, it would be invidious for there to be publicity specifically identifying these children to anyone who didn’t know who they were already. No responsible journalist would seek to go against this.
However, as I read on, I realised that the local authority in addition wanted, ’in particular’ to prevent publication of the fact that:
(d) the children were present in the family home when their mother was killed,
the two youngest children may have witnessed her killing, and
all three were left alone with her body for some time,
(e) The circumstances in which the mother’s body was discovered.
(f) Information relating to the children’s home life and the parents’ relationship insofar as it effects [sic] the children.
The application to ban any information from being published on these matters was supported by the children’s Guardian, but opposed by Ms Frewin’s mother.
The very fact that I have been able to publish the details of this application tells you that the judge refused those parts of it. But let’s unpick this, because in asking for such an extraordinarily wide-ranging restriction (let’s be clear, the council’s stated argument was on the children’s welfare grounds) , the local authority – an agency of the state – was asking, in fact, for a family court to do a number of incredibly worrying things.
As I became aware from rapidly reading through the skeleton arguments, there had been significant and longstanding local authority involvement relating to domestic abuse by Staines against his partner – and later, ex-partner– Ms Frewin. Child protection files had been opened four times, and closed four times in relation to domestic abuse concerns over the last few years.
In addition, the police had been called in early January, and then again on 27 January: that was the date on which Ms Frewin was killed. These are two public authorities which at least arguably, I suggested to the judge when the hearing commenced, might have cases to answer at any inquest, and in particular at an Article 2 inquest, should one be convened. Article 2 inquests can be held when the state’s active duty to protect life has been triggered by their prior knowledge of a risk to the life of the deceased.
If the media was banned from publishing anything in relation to the circumstances in which Ms Frewin’s body was found, or any information relating to the children’s home life and her relationship with Staines insofar as it affected the children, there could be no meaningful reporting of:
- any information gleaned from sentencing remarks made in the Crown Court.
- significant information disclosed in the Domestic Homicide Review (which takes in internal management reviews from all involved state bodies relating to their contact with the victim) – pretty much the entire point of DHRs is that learning from it can be disseminated.
- any information about the way Ms Frewin died disclosed in open court at an inquest.
- any independent journalistic investigation including freedom of information requests or disclosure made to the victim’s family, which the media discovered and felt there was a public interest in reporting, or the substance of any relatives’ interviews with a journalist.
Set against this, the local authority argued that the intrusion into the children’s lives and potential distress caused to them by reporting of these matters would be too great.
HHJ Vavrecka was clearly not at all comfortable with the wide scope of the reporting restrictions sought in (d) (e) and (f). He asked the media for representations. The BBC’s case was mainly centred on their wish to report the sentencing remarks. This is vital, as society needs to understand, when a woman has lost her life, children their mother, and the killer is about to be imprisoned for life, the full range of facts on which a judge bases their tariff. There is plenty of uninformed comment and poor public understanding of how sentencing works without adding to it. And it is fundamental to open justice that when the state deprives a citizen of their liberty, that other citizens are informed fully as to its reasons. If we don’t understand these things, as I pointed out in my hastily scrabbled together argument, then how can democracy work?
If the Crown Court judge hands down a sentence that, some might think, does not fully recognise the aggravating factors (I have zero idea at this point as to the sentence, I am simply making the argument) then how is there to be a public debate, how are our elected representatives to take account of public opinion, how is anything ever to change? And of course, vice versa – if Staines was, highly unusually, to receive a whole life tariff, surely society would be entitled to know what the judge based that sentence on.
What is the ‘public interest’ and why does it matter when set against children’s welfare?
In my submissions, which I had tried to sort out in my head as I drove home in time for the hearing, I also tried to find a way of explaining the public interest argument, and explain why it is compelling in this type of case, even when children’s welfare is a primary (though not a paramount) consideration.
Because, as I said in the hearing, the notion of ‘the public interest’ can seem a bit of a nebulous, theoretical concept when set against a potential risk to children’s welfare, particularly children who have already suffered so greatly and will continue to be affected by their mother’s murder and its aftermath for the rest of their lives.
I explained that I have reported on domestic abuse for over a decade now. It is a grim fact that approximately two women per week have been killed by their male partner or former partner, week in, week out, for that decade. Those figures are not decreasing. It is a reliable prediction that two women will be killed next week. Two the week after. Two more the week after that. Many will be mothers, whose children will be in the exact same position as Ms Frewin’s are right now.
Those women, and their children, are a critical public interest reason why the circumstances leading up to this murder absolutely must be able to be investigated and reported publicly: it is only by scrutiny and then exhaustive public discussion that there will ever be accountability, learning and improvement. And potentially, fewer dead women and bereaved children.
So… these future victims and their children are at the very sharpest end of the public interest. But there is also the massive trauma and suffering caused to those who love and care for those not-yet dead future domestic homicide victims. This is also a matter of public interest.
And so is the extensive psychological and economic damage to society caused by the repercussions of the regular killings of women by their current or former intimate partners. How are we ever to learn from what may have gone wrong, if nobody is ever allowed to know, or understand failings of the state in its duty to protect?
I’ve come on holiday without my notebook, so I can’t recall what more I said, except that domestic abuse is, politically, increasingly seen as a terrible stain on society, the domestic abuse bill has just passed into law, and so, er, domestic abuse is important. Oh, I think I may have mentioned the Hidden Homicides investigation I did for Tortoise Media in January, which was six months of looking into police failings that led to a woman being killed who needn’t have been, and being able to understand a CPS prosecutor’s decision to successfully charge with manslaughter a man who had stalked and hounded his former partner into such a terrible state of despair that she could see no way out and took her own life.
I was risking getting a bit garbled by that point, I reckon, so I tried to marshall something said by the fabulous barrister Paul Bowen QC, who represented me for nothing at my appeal against an unlawful reporting restriction order made in the family court: ’Fear no-one. Prepare, prepare, prepare. And when you’re ahead, sit down and shut up.” Well, the last line of it anyway.
I said in conclusion that whatever the judge decided, I was asking for permission to report what had happened in this private hearing, And then, metaphorically, I sat down and shut up.
The judge then gave his provisional view, saying that he was unlikely to make a reporting restriction order in the terms Hertfordshire sought on the evidence he had in front of him (this included a psychologists report that Hertfordshire said indicated that the children – aged 19 months, 5 and 6, would be caused harm if the information they sought to restrict was published. Counsel for Ms Frewin’s mother, Chris Barnes, said this was not a fair reading of the report – his skeleton argument, and later his oral argument, set out that redaction of the children’s identities, address and schools was all the psychologist had in fact commented on – I’ve not seen the psychologist’s report myself.)
Having explained his uneasiness, the judge gave the LA barrister some time to go away and consult with the social work team and Guardian. And so when we reconvened at 3.30pm, I had seen an email saying that the local authority was not going to pursue points (e) and (f) but still wanted a restriction on point (d).
A reminder:
(d) the children were present in the family home when their mother was killed,
the two youngest children may have witnessed her killing, and
all three were left alone with her body for some time,
So… those opposing the reporting restrictions had, at this point, secured a partial success. There could be reporting, as a result of the LA ceding those those points, of the circumstances in which Ms Frewin’s body was found, and the period of time leading up to her death, as it related to the children. So why would the media pursue point (d) – surely it is only about prurient sensationalism?
Well, no. I will not pretend that journalists would not report these facts in order to draw readers into a story. That matters – it matters that readers care about what happened, and are horrified on behalf of these children, even if it seems distasteful that it is part of human nature to be drawn to the more disturbing aspects of very personal tragedies. The ability to report this matters for reasons that extend further than that, and I’ll talk about this in a minute. However, just before we logged back into court, I frantically typed the following response and emailed it to the parties and judge – my reasons for my opposition to the reporting restriction still being sought.
1 – it is relevant to the sentencing, and will presumably be an aggravating factor taken into account in the sentencing (and if not, it is in the public interest to know why not- the public needs to understanding sentencing, and if it is prevented from understanding sentencing, the justice system cannot command public confidence or support. Nor can the public lobby its elected representatives for changes in the law or sentencing guidelines. There is already plenty of misinformation about sentencing in the public domain, and this restriction would lead to ill informed speculation.
2 – Regarding the children’s welfare: the children are 19 months, 5 and 6. By the time they realistically become aware of any reporting of this, it will be another few years. They will have, one would hope, been provided with plenty of therapeutic support to process the impact of these facts, and I cannot see that reporting five years previously will add greatly to the impact on them, even if they come across it. Everyone in their vicinity will know this information anyway, so it makes no difference to whether their friends’ parents see it again in the media.
I wish I had my notes with me, but I will do my best to set out the LA’s argument for pursuing this part of their application even when they had realised it would be foolish to pursue the other points. They said that there would be comment among parents of the children’s friends that would affect the children negatively if it were to become public knowledge that they had been found with their mother’s body, that two of them may have witnessed her murder, and that even if they hadn’t, they had been present in the family home when she was killed. The LA acknowledged that they were too young to be directly affected by publicity yet, but said that they could be in future if they found this information on the internet. And they said that in this highly exceptional case, they wanted the judge to stop reporting or public knowledge going any wider than the circle which already knew about the children’s presence in the house at the time of their mother’s death. As counsel for the LA spoke, I scribbled frantically, trying to work out what I wanted to say in argument against.
For the maternal grandmother, barrister Chris Barnes then spoke. He pointed out that this application was very unfortunately having to be rushed through last thing on a Friday before a bank holiday weekend, because the sentencing would be on Tuesday; given that the local authority had envisaged making an application for reporting restrictions in February, why, essentially, had it taken them this long?
He observed that the media had been given just two working days notice of the hearing, which was to consider an application for a reporting restriction so wide in its scope that neither he nor the LA barrister could find any similar reported case where a judge had agreed to make such an order.
He said that in any case, there were serious practical difficulties in serving an RRO on the media in time for the sentencing hearing on Tuesday, meaning it ran the risk of be ineffective anyway (the media had already, of its own accord, not named the children, or given their addresses or school names in any previous reporting and I doubt if any mainstream outlet would ever do so, even absent a RRO, in a case such as this).
He pointed out that if the judge restricted point (d), given that it was likely that at least some relatives and friends would be in the public gallery for the sentencing, and given that the judge was likely to state in open court that Staines’ leaving the children in the house, and possibly killing their mother in front of them, were significant aggravating features, members of the public locally would know, and would be able to tell others, all these facts. At the same time, responsible local media which had covered the whole case and reported the facts as part of their public interest function, would be prevented from reporting. He said lots of other good stuff too, but I don’t have my notebook (damn it) so I will leave it there.
HHJ Vavrecka invited the media to respond again, and Lee Agnew at BBC Three Counties Radio reiterated his opposition to the restricting of this information. I looked at my scribbled notes and said, as briefly as I could that
a) it was an outrage, in principle, for any public authority to seek to restrict publication of the sentencing comments of a crown court judge in a criminal case,
b) that my reporting on domestic abuse showed that, sadly, a man killing his partner in front of their children or at least with their children present in the home was actually not at all exceptional, so was this to form a precedent for reporting restrictions to be sought in other such cases?
c) that parents of schoolchildren are active on social media in any local community, and if even one or two local friends and relatives of Ms Frewin attended the sentencing hearing, there was absolutely no possibility of restricting the information as it would be all over various parents’ and community Facebook groups,
d) that as a society we are only now really starting to grasp the scale of the damage that domestic abuse wreaks, and it is vital that we do not minimise what abusers can do, the cruelty and selfishness of their actions, and that we need to know, be told, and not have covered up, the fact that they are willing to subject their children to horrors as they abuse and sometimes kill their victims, and
e) that this was an application made in what seemed to me to be something of a panic, and the local authority had not properly thought through the points of principle at risk here in terms of the arguments which underpin our society’s insistence on justice being done in the open.
Oh, and f) – sorry, this was probably an uncalled for flourish – I said that if a family court judge made an order restricting information that the public would otherwise have been entitled to know from a criminal judge speaking in open court, then the charge that the family court was a secret court would be entirely justified.
Okay, so, you know by now the application was dismissed, except for the bits preventing publication of the names, addresses and schools of the children. This was, for me, the only correct result. I was ready to ask for leave to appeal immediately, had it gone the other way on any of the points. I wonder how many other times such applications have been made without any media being present to make the counter arguments, their details maybe agreed by all parties, and have thus been waved through by a judge who was not so alive to the dangers of restricting information from being in the public domain – and that judgment and order has gone unreported?
HHJ Vavrecka gave a short oral judgment saying he did not criticise the LA for bringing the application because they had done so on welfare grounds, but he did criticise them on the basis that this application could have been brought earlier and had instead been rushed through. I also got permission to report the hearing, the arguments made and the order. Hopefully the full judgment will be published soon.
Some points I want to make, as a result of this experience
This application took up court time and public money, entirely unnecessarily. Local authorities appear to spend both with impunity when it comes to children cases and media access, and given my various experiences of restrictions being sought by councils (so far unsuccessfully) my feeling is it is becoming ludicrous. Perhaps more valuable might be for local authorities to pay leading counsel to give them an unvarnished opinion as to the likelihood of success when they are considering making such applications.
This judge was unfailingly polite, took his time and was carefully considered in his approach, but the family courts are overstretched and in order to fairly decide this case, he had no option but to put off a judgment he was due to give at 3pm. That was not fair on him late on a Friday afternoon, and not fair on those parties who had to wait.
I discovered later that Chris Barnes (counsel) and Attia Hussein (solicitor) were meant to be on leave on Friday, but both came to work because they felt strongly that their client, Ms Frewin’s mother, needed her opposition to the council’s application to be made orally, in court, not simply via written submissions.
Journalists have to be absolutely ON IT when state authorities seek to restrict information that must be capable of public discussion. It truly dismays me that this application was even considered, let alone brought. It shows such poor understanding of what ‘public interest’ means, what it requires, and why society tolerates some risk of harm even to children who are caught up in devastating tragedy. One day I will write an essay going back to first principles explaining this, (but not right now, you’ll be glad to hear at this point in a verrrrry long blog post).
Ironically it is often an application for reporting restrictions that alerts the media to a case! I should think that by far the best way to avoid media attention is to do nothing and avoid making an application for an RRO – then a council can rely on the opacity of court listing, the inability of media to report even if they do attend, and the paucity of court reporters which means editors don’t send us to family courts. In Hertfordshire making an application for an RRO, they have created a situation in which:
- My blog will appear.
- BBC Three Counties Radio will cover the sentencing and this may well be picked up by the BBC at national level.
- The judgment on the RRO application will be published, including, unusually, the names of the parents. This will be another reported case in which an application by a local authority to stifle publication of facts has been shown to be unsuccessful.
- The judge has had all the public interest arguments rehearsed by the media and will be especially alive in any future application by any local authority to the impacts of making such an RRO.
Finally, please tune in to BBC Three Counties Radio on Tuesday to hear about the sentencing of Alex Staines. It is Lee Agnew and that local BBC station’s coverage of this case which will help people learn the most about Ms Frewin’s murder, and their reporting which thankfully has not been restricted from being as full and fearless as it must be.
I don’t have a commission to write about this case. It took probably about four hours in total of my time on Friday in reading and attendance, plus another three hours to write and edit this piece. I will not be paid by anyone else for this, so I am HUGELY grateful to everyone who contributes to my Patreon, which enables me to drop everything at a moment’s notice to occasionally attend and blog about important family court hearings. And… I’m now off to the beach!
The open family court 