Jurisdiction to make and enforce an order

Two very different aspects of the reporting restrictions order (RRO) can be seen in case law over the past couple of weeks. In AB (Application for Reporting Restrictions: Inquest) [2019] EWHC 1668 (QB) (27 June 2019) the question of service of an application in civil proceedings and the court before which it should be heard was considered by Pepperall J in the Queen’s Bench Division. In HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB) (9 July 2019), the consequences of non-compliance with a RRO in criminal proceedings was considered by the Queen’s Bench Divisional Court (Sharpe LJ and Warby J, who jointly gave the judgment of the court).

Breach of a RRO may result in application being made to the court by the Attorney-General; or privately with permission of the court. The application is based on the respondent’s alleged “contempt of the court”. The basis of the court’s jurisdiction was considered in Yaxley-Lennon under four headings: the origin of the contempt doctrine (see [25]); the prohibition of interference with parties on their way to court and of taking photographs in court (contrary to Criminal Justice Act 1925 s 41; [27]); the strict liability (ie no plea that there was no intent to be in contempt) for interference with administration of justice ([26]); and breaches of RROs in respect of contemporary reports of any open court proceedings under Contempt of Court Act 1981 s 4 ([27]). The first and fourth of these will be considered here.

Interference with administration of justice

Contempt originated as a common law doctrine. The purpose of contempt proceedings, said the Divisional Court in Yaxley-Lennon,

“[25] …. is to protect the integrity of civil and criminal proceedings, by imposing appropriate penalties on those who interfere with, obstruct, impede or prejudice the due administration of justice, or expose the process to risk that these consequences will follow.”

The court stressed the inappropriateness of the term in modern usage by reference to Salmon LJ who had observed in Morris v Crown Office [1970] 2 QB 114 at 129:

“The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: Skipworth’s Case, L.R. 9 Q.B. 230 and Rex v Davies [1906] 1 KB 32.”

The common law has been “supplemented and shaped” by statute, said the court. In Yaxley-Lennon it was appropriate to consider Contempt of Court Act 1981 s 4 which related to proceedings in public, and which prevented publication of proceedings where it seemed to the court “(2) … for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent”, then the court could “order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary…”. As can be seen, this related to any proceedings in public, not just to criminal proceedings.

The proceedings in which Yaxley-Lennon had taken an interest were sex abuse proceedings in Leeds Crown Court. The judge had ordered that there be no reporting of proceedings till the case, and related trials, were completed. On this basis the Attorney-General applied for committal of Yaxley-Lennon on three bases:

(1) His publication on-line of information and filming outside the court was a breach of the s 4(2) RRO order, which had prohibited any reporting of the R v Akhtar trial until after the conclusion of that trial and all related trials.
(2) That the content of what was published gave rise to a substantial risk that the course of justice in the Akhtar case would be seriously impeded, thereby amounting to a breach of the rule of contempt law known as “the strict liability rule”.
(3) That by confronting some of the defendants as they arrived at Court, doing so aggressively, and openly filming the process, the respondent interfered with the due administration of justice.

The court held that it was not necessary for it to find that there was actual knowledge of the RRO ([54]) for the Attorney-General to establish interference with justice; and that it was sufficient if the Attorney-General proved that the respondent was reckless as to whether a s 4(2) prohibition was in place ([57]). The respondent live-filmed defendants to the proceedings and tried to speak to them outside the court in breach of the s 4(2) RRO. His contempt was made out.

There was breach by Yaxley-Lennon as to “strict liability” for contempt, where immoderate words were used and where his behaviour towards those involved in proceedings ([67] – [77]). The course of justice may be impeded in a variety of ways. And finally, said the court, a person who publishes material in breach of an RRO will be guilty of contempt if he or she foresees the possibility that the publication may be a breach of such an order, but goes ahead with publication. He takes a risk if his enquiry as to any RRO is only limited, as here. The Attorney-General’s allegations against Yaxley-Lennon were accordingly made out.

Application for a reporting restrictions order

In AB (Application for Reporting Restrictions: Inquest) [2019] EWHC 1668 (QB) (27 June 2019), Pepperall J considered a local authority’s application for a reporting restrictions order (supposedly under Children and Young Persons Act 1933 s 39). The local authority wanted an order under s 39 in the following circumstances, described by the judge:

“[1] … In respect of a forthcoming inquest into the death of a 17-year-old girl [AB] who died in custody. The application is made in order to protect AB’s surviving siblings from distressing evidence about the fact that their sister took her own life and as to findings and further allegations of sexual abuse. There is evidence before me that the siblings are in foster care. They know that AB is dead but do not know how she died. They are described as vulnerable children who are struggling both with their grief and in their foster placements.”

The judge was troubled first by the way in which service of the RRO application on the media had been dealt. Civil Procedure Rules 1998 (CPR 1998) r 23.7(3) (and see the equivalent Family Procedure Rules 2010 (FPR 2010) r 18.8(2) and (3)) deals with service: it states that any written evidence and a draft order must be served with an application. CPR 1998 PD25A para 2.2 says that evidence must be served within 3 days (mirrored by FPR 2010 PD20A para 2.2 which requires 7 days). Justice is done, recalled Pepperall J – with not a little sarcasm – “when the court hears both sides of a case” (at [13]); but, he went on, CPR 1998 r 25.3(1) (FPR 2010 r 20.4(1)) states that the court can grant an interim order without notice if “there are good reasons for not granting notice”.

In AB’s case the council’s RRO application was served on the Press Association’s “Copy Direct” service (Injunction Application Alert Service) and was sent to a number of newspapers in the Worcester area, and the area where the inquest was to be held. An explanatory note with the notice gave some further information. Certain redacted documents had been served on the coroner; but no notice had been given to interested parties at the inquest including AB’s parents. The BBC appeared in writing at the hearing, and expressed concern as to the breadth of the order sought.

Pepperall J considered that there had been inadequate notice. If any tribunal was to make an order under Children and Young Person’s Act 1933 s 39 it should be the coroner who was to deal with the inquest. Insofar as the council’s application became one under the inherent jurisdiction of the High Court he refused it.

Freedom of expression and reporting restrictions orders

Journalistic freedom arose in very different ways in these two cases. In AB the judge considered especially the law on grant of without notice orders in cases concerning reporting restrictions; and on the extent to which the lack of notice of the council’s application reflected on press freedom in this case. He was concerned especially as to the notice – or lack of it – which the media had received. He drew attention to Lord Neuberger MR’s Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003 and how this dealt with notice (at 18-23), especially the importance of keeping in mind Human Rights Act 1998 s 12(2) (and see Birmingham City Council v Afsar [2019] EWHC 1560 (QB), Warby J), which states:

“(2) If the person against whom the application for relief is made (‘the respondent’ [eg media representatives]) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.”

As the judge pointed out: if the judge is not satisfied as to the steps taken by the applicant to arrange service, “the court has no power to grant an injunction” (at [15]). The application does not get off the ground. In AB’s case the local authority had not “taken all practicable steps to notify the media” about the application and as a result the threshold in s 12(2) was not achieved ([18 and [21]).

Freedom of expression balanced by fair trial rights

By contrast, in Yaxley-Lennon the court considered the respondent’s argument that his behaviour was such as to fall within boundaries of reasonable journalistic behaviour. His freedom of expression must be protected, relying on the European Convention on Human Rights 1950, Art 10 (freedom of expression). The court balanced the respondent’s Art 10 rights against those of the defendants on trial in Leeds Crown Court and replied:

“[91] Freedom of expression could not justify an interference with fair trial rights, which are unqualified. Here, we are concerned with interferences with the administration of justice that fall short of subverting the right to a fair trial. However, we are satisfied that our interpretation and application of the law of contempt is consistent with the Convention. An interference must be necessary for and proportionate to one or more of the legitimate aims set out in Article 10(2)….”

David Burrows
Bastille Day 2019

Featured image: The Shadowy Court (courtesy of Juuso Herranen on flickr – reproduced with thanks).