Court weighs up interest of child against freedom of press

In Re S (A Child) [2003] EWCA Civ 963 (10 July 2003) the court
of appeal considered whether the court can restrain the publication
of the identity of a defendant mother and her victim, her child, in
a murder trial to protect the privacy of a surviving sibling who
was the subject of care proceedings.

The court has power under section 39 of the Children and Young
Persons Act 1933 to give directions restraining publicity where the
child is concerned in the proceedings, but this would not directly
apply to cases where there are criminal proceedings concerning a
parent and separate care proceedings. The court had to consider
whether the inherent jurisdiction of the high court could be used
for this purpose.

In a case prior to the Human Rights Act 1998, the court of
appeal held in R v Central Television plc [1994] Fam 192 that the
courts should not whittle away freedom of speech with exceptions,
which included cases where harm might be caused to a child because
of the publicity given to an individual case. It was held there:
‘The principle that the press is free from both government
and judicial control is more important than the individual
case.’ 

In Re S the court of appeal had to consider this in the context
of the article 8 rights to family life and article 10 rights to
freedom of expression. The court held that there was a clear and
proper public interest in knowing the name of the defendant in the
criminal proceedings. The recognition that that publicity would be
dreadfully painful for the seven-year-old child was secondary.

Comment: In effect the court of appeal in Re S
is reasserting the principle that the right of the press to publish
a story outweighs the welfare of the individual child. More
sensitive courts have, of course, held otherwise, where the safety
of such people as the daughter of Mary Bell, or Venables and
Thompson have been at stake.

Richard White

White and Sherwin Solicitors