Court of Appeal

Published February 13, 2008

In re Trinity Mirror plc and Others

Before Sir Igor Judge, President of the Queen’s Bench Division, Sir Mark Potter, President of the Family Division, Lord Justice Wilson, Lady Justice Hallett and Mr Justice David Clarke

Judgment February 1, 2008

The crown court had no jurisdiction to grant an injunction to restrain the publication of the name of a defendant or the nature of his convictions on the basis that his children would be harmed since such an order was not incidental to the defendant’s trial, conviction and sentence.

The Court of Appeal, Criminal Division, so held when allowing an appeal, under section 159 of the Criminal Justice Act 1988, by Trinity Mirror plc, Times Newspapers Ltd, News Group Newspapers Ltd, Newsquest Ltd and A and B, minors acting through the Official Solicitor to the Supreme Court, against a ruling by Judge Warwick McKinnon at Croydon Crown Court on April 11, 2007 and varied on June 7, 2007, under section 11 of the Contempt of Court Act 1981, restraining the media from identifying Raymond Cortis, who had been convicted of offences relating to child pornography, on the basis that his children, who were neither witnesses nor victims in the proceedings, would be likely to suffer significant harm, particularly at school.

Mr Gavin Millar, QC and Mr Anthony Hudson for the media; Mr Hugh Tomlinson, QC and Miss Kate Blumgart for the Crown; Mr Andrew Nichol, QC, for A and B.

SIR IGOR JUDGE, giving the judgment of the court, said that two conflicting principles were engaged: the protection of children and open justice in courts exercising criminal jurisdiction. The issue was whether the judge had power to make the order and, if he had, whether he was right to make it.

It was now accepted that the judge had no jurisdiction to make such an order under section 11 of the Contempt of Court Act 1981 nor at common law, since a criminal court had no power to forbid third parties from publishing evidence given publicly: Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago (The Times June 24, 2004; [2005] 1 AC 1910). When it arose, the power depended on legislation.

The crown court, created by the Supreme Court Act 1981, lacked inherent jurisdiction: In re S (a Child) (Identification: Restrictions on Publication) (The Times October 29, 2004; [2005] 1 AC 593).

The High Court’s power to forbid third parties from publishing evidence given publicly to a criminal court was to be exercised in very limited and exceptional circumstances. Their Lordships were inclined to agree that, for present purposes, the foundation of that jurisdiction was to be found in section 6 of the Human Rights Act 1998.

It was submitted that, since the proposed identification of the defendant in the media as a person convicted in the crown court was a matter incidental to its jurisdiction in that it flowed directly from his trial in that court, the High Court powers were extended by section 45(4) of the Supreme Court Act 1981 and conferred upon the crown court the like powers as the High Court in relation to that identification; in particular the power to restrain it by injunction where the proposed identification would infringe the privacy rights of the children under article 8 of the European Convention on Human Rights. That argument was opposed by the appellants and the Crown.

In their Lordships’ view, under section 45(4), matters were incidental to the jurisdiction of the crown court only when the powers to be exercised related to the proper dispatch of the business before it. That court had no general power to grant injunctions, nor was there an inherent jurisdiction to do so; unless the proposed injunction was directly linked to the exercise of the court’s statutory functions, the appropriate jurisdiction was lacking.

Since here, the order was not incidental to the defendant’s trial, conviction or sentence, section 45(4) did not extend to protect the children from the consequences of the identification of their father in criminal proceedings before the crown court.

Furthermore, their Lordships respectfully disagreed with the judge’s conclusion that conflict between the children’s article 8 rights and the freedom of the media to publish under article 10 should be resolved in favour of the interests of the children.

It was impossible to overemphasise the importance to be attached to the ability of the media to report criminal trials which represented the embodiment of the principle of open justice in a free country.

While appreciating that innocent children might suffer prejudice and damage in such cases, there was nothing to distinguish the plight of the defendant’s children from that of a massive group of children of persons convicted of offences relating to child pornography.

Counsel instructed by Mr Charles Collier-Wright; Crown Prosecution Service, Croydon; Official Solicitor.

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