Protecting Confidential Information of Released Murderers: Injunctions, Study notes of Law

Download Protecting Confidential Information of Released Murderers: Injunctions and more Study notes Law in PDF only on Docsity! 430 Venables v News Group Newspapers Ltd (Fam D) [2001] Fam Family Division A Venables v News Group Newspapers Ltd and others Thompson v News Group Newspapers Ltd and others 2000 Nov 13,14,15,16,17; Dame Elizabeth Butler-SlossP 2001 Jan 8 B Confidential information — Disclosure — Injunction — Claimants convicted of murder when children — Possible danger to claimants' lives and safety if identified following release from detention — Claimants on attaining majority seeking injunctions to restrain publication of confidential information relating to their identity, whereabouts and appearance — Whether jurisdiction to grant — Whether injunction to be granted — Human Rights Act 1998 (c 42), s 12, Sch 1, Q Pt I, arts 2, 3, 8,10 At the age of :r 1 the claimants were convicted of the murder of a young child, the particularly shocking and distressing facts of which were widely publicised by the media. They were sentenced to be detained during Her Majesty's pleasure pursuant to section 53(1) of the Children and Young Persons Act 1933. Injunctions restricting the information which the media had been entitled to publish during their detention having come to an end on their eighteenth birthdays, the claimants sought injunctions, under the inherent jurisdiction of the court, against specific newspaper publishers and against the whole world, which would continue indefinitely to restrain the solicitation or publication of any information as to their physical appearance, whereabouts or movements, their new identities upon release, and personal and historical information about their care, treatment and progress in detention during their minority, on the basis that such injunctions were necessary to protect their rights of confidentiality and their rights to life and freedom from persecution and harassment conferred by the Convention for the Protection of Human Rights and Fundamental Freedoms asset out in Schedule 1 to the Human Rights Act 1998'. On the applications— Held, (1) that the Convention did notgive rise in private law proceedings to free­ standing causes of action based on Convention rights but the court, as a public authority, was obliged in such cases to act compatibly with Convention rights in adjudicating on common law causes of action; and that, by virtue of section 12(4) of ^ the Human Rights Act 1998, the court had to give direct effect to the right to freedom of expression under article 10 (post, pp 446A, F -H , 472E). Glaser v United Kingdom [2000] 3 FCR 193 and Douglas v Hello! Ltd [2001] QB 967, CA applied. (2) That, by virtue of article 1:0(1) of the Convention, the freedom of the media to publish could not be restricted unless the need for such restrictions fell within the exceptions in article 10(2), which were to be construed narrowly; that the onus lay on C those seeking such restrictions to show that they were in accordance with the law, necessary in a democratic society to satisfy one of the strong and pressing social needs identified in article 10(2), and proportionate to the legitimate aim pursued; that, taking into account the Convention rights secured by articles 2 and 3, the law of confidence could, exceptionally, extend to cover information as to the identity or whereabouts of individuals where its disclosure would put them at risk of serious H ' Human Rights Act 1998, s r2<4): "The court must have particular regard to the importance of the Convention right to freedom of expression . . ." Sch 1, Pt I, art 2: see post, p 45 IG-H. Art 3: see post, p 451C-D. Art 8: see post, P452E-F. Art 10: see post, pp 448H-449B. 431 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) A injury or death, and in such circumstances the need for restrictions on the freedom of the media would fall within the exceptions in article 10(2); and that, accordingly, the court had jurisdiction to grant the injunctions sought, including injunctions against the whole world ( post, pp 46:1 C-D, G-H, 462F-463C, 468A-B, D-E) . Sunday Times v United Kingdom (1979) 2 EHRR 245 and dicta of Hoffmann LJ in R v Central Independent Television pic [1994] Fam 192, 203, CA and of Lord Woolf MR in Broadmoor Special Hospital Authority v Robinson [2000] g QB 775, 786, CA applied. Attorney General v Guardian Newspapers Ltd (No z) [1990] 1 AC 109, HL(E) considered. Dictum of Lord Eldon in Iveson v Harris (1802) 7 Ves 251, 257 not followed. (3) Granting injunctions in each case, that, on the evidence, the disclosure of the new identities to be afforded to the claimants on their release would have disastrous consequences for them, including the real and strong possibility of serious physical r harm and death, and in order to afford them the protection which they needed and were entitled to receive the court had to grant injunctions against the world permanently protecting information as to their identities, present and future whereabouts, present appearance and similar information, and prohibiting disclosure of information which might lead to the identification of the units in which they had been held until 12 months after their release; but that disclosure of other information relating to their period in secure units when they were under 18 would not be prohibited by injunction, even though much of it was confidential (post, p 470C-G). The following cases are referred to in the judgment: Attorney General v Guardian Newspapers Ltd [ 1:987] 1 WLR 1248; [1987] 3 All ER 316, Sir Nicolas Browne-Wilkinson V-C, CA and HL(E) Attorney General v Guardian Newspapers Ltd (No z) [1990I 1 AC 109; [1988] 3 WLR 776; [1988] 3 All ER 545, HL(E) Attorney General v Times Newspapers Ltd [1992,] 1 AC 191; I1991] 2 WLR 994; E [1991)2 All ER 398, HL(E) Broadmoor Special Hospital Authority v Robinson I2000I QB 775; [2000] 1 WLR 1590; [2000] 2 All ER 727, CA Coco v AN Clark (Engineers) Ltd [1969] RPC 41 D v National Society for the Prevention of Cruelty to Children [1978I AC 171; [1977] 2 WLR 20:1:; [1977J1 All ER 589, HL(E) Davies v Taylor [1974] AC 207; [1972] 3 WLR 801; [1972] 3 All ER.836, HL(E) F Douglas v Hello! Ltd [200:1:J QB 967; [2001] 2 WLR 992; [2001J 2 All ER 289, CA G (A Minor)(Social Worker: Disclosure), In re [1996] 1 WLR 1407; [1996] 2 All ER65,CA Glaser v United Kingdom \ 20001 3 FCR 193 H (Minors) (Sexual Abuse: Standard of Proof), In re [1996] AC 563; [1996] 2 WLR 8; [ i996] iAl lERi ,HL(E) Hunter v Mann [1974I QB 767; [1974] 2 WLR 742; [1974] 2 All ER414, DC C Iveson v Harris (1802) 7 Ves 25:1: Kaye v Robertson [1991: | FSR 62, CA Kelly v British Broadcasting Corpn [2001] Fam 59; |2ooi | 2 WLR 253; [2001] 1 All ER323 Marks v Beyfus (1890) 25 QBD 494, CA Nicholls v British Broadcasting Corpn [1999] EMLR 791, CA Osman v United Kingdom (1998) 29 EHRR 245 H Practice Statement (juveniles: Murder Tariff) [2000] 1 WLR 1655; [2000] 4 All ER 831 R v Central Independent Television pic I1994I Fam 192; I1994] 3 WLR 20; [1994I 3Al lER6 4 i ,CA R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396; [1998] 3 WLR 57; 11998] 3 All ER 3:1:0, CA 434 Venables v News Croup Newspapers Ltd (Fam D) [2001] Fam defendants, News Group Newspapers Ltd, Associated Newspapers Ltd and A MGN Ltd, from (i) publishing or copying any depiction or painting or drawing or photograph or film made or taken since 18 February 1993 of the claimant; (ii) publishing or copying for the purpose of disseminating any information about the claimant any depiction or painting or drawing or photograph or film whenever made or taken of any place or premises where since 1:8 February 1993 the claimant had attended or been kept or might in the future attend or be kept; (iii) drawing or painting or photographing or filming the claimant or recording his voice; and (iv) soliciting any information in relation to the residence, care or treatment of the claimant from (a) Jon Venables, (b) the Home Office or any of its staff or officers, (c) the staff or pupils or residents of any establishment in which the claimant and/or Jon Venables had resided since 18 February 1993 or might subsequently reside, (d) any carer of the claimant or Jon Venables, and (e) the C parents or relatives of the claimant or John Venables. The facts are stated in the judgment. Edward Fitzgerald QC and Ben Emmerson QC for the claimant Venables. V v United Kingdom (1999) 30 EHRR 121 concluded that the claimant's trial, which took place in public, had violated the claimant's rights under articles 6 and 8 of the Convention. Although Morland J's subsequent injunction restraining the publication of certain information, granted under the court's inherent jurisdiction (see In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211) and section 39 of the Children and Young Persons Act 1933, lapsed on the attainment of the claimant's majority, the court has jurisdiction to continue to protect the claimant indefinitely and against all the world since there is clear evidence of E serious threats to his life: see articles 2, 3, 8 of the Convention; Broadmoor Special Hospital Authority v Robinson [2000] QB 775; Chief Constable of Kent v V [1983] QB 34 and Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a manner incompatible with a Convention right unless required to do so by primary legislation. The state has a positive obligation to protect one private individual from the violation of Convention rights by another private individual: see X and Y v The Netherlands (1985) 8 EHRR 235; Osman v United Kingdom (1998) 29 EHRR 245; A v United Kingdom (1997) 25 EHRR CD 159 and KL v United Kingdom (Application No 29392/95 Crim Rep) (10 December 1999). The court, as a public authority, is also subject to this obligation; article 8 requires the court to C ensure effective protection of confidential information about treatment and care by custodians, doctors and carers: see Spencer (Earl) v United Kingdom (1998) 25 EHRR CD 105,112; MS vSweden (1997) 28 EHRR 313. Identification and present whereabouts of a person can be protected both on the basis of the court's developing jurisdiction to protect confidentiality and on the basis that such disclosure would gravely interfere with the performance of the state's statutory duty to protect and rehabilitate the claimant: see R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407; rule 3(i)(b) of the Secure Training Rules 1998 (SI 1998/472) and Broadmoor Special Hospital Authority v Robinson [2000] QB 775. The courts have moved away from an analysis based purely on the existence of a 435 [2001] Fam Venables v News Group Newspapers Ltd (Fam D) A formal relationship between the parties: see Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281 and Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807. There is no public "right to know" the whereabouts of former offenders: see R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396. There is a broad, inherent jurisdiction to protect the administration of justice and the court's process from abuse which includes a jurisdiction to prevent criminal reprisals and protect participants in the legal process from persecution and harassment. Personal information about the claimant's treatment and care requires protection: see Hunter v Mann [1974] QB 767,772; W v Egdell [1990] Ch 359; In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, 24 and In re C (A Minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, 48. [Reference was also made t o Z f Finland (1997) C 27 EHRR 371 and MS v Sweden (1997) 28EHRR 313.] Although Attorney General v Times Newspapers Ltd [1992] 1 AC 191 establishes that an injunction to restrain the defendants would bind third parties and the media generally, given the gravity of the threat to the claimant and the requirement for an effective remedy under the Convention, the injunctions sought are necessary, proportionate and in accordance with the law and should be made contra mundum. Brian Higgs QC and Julian Nutter for the claimant Thompson. Given the real risk to the claimant of being murdered, the court should exercise its inherent jurisdiction to grant an injunction against the world restraining publication of any information that might lead to his identification and whereabouts, including historical matters such as details of his medical and other treatment during detention. The right to such unprecedented anonymity for protective purposes arises from the duty of the Home Office to provide safe custody, treatment and rehabilitation of the claimant, the duties of confidence owed by the Home Office, his carers, doctors, custodians and co-detainees and the court's duty to take steps to prevent crime and protect the administration of justice. Any order granted by the court must be wide enough to remove the risk of identification and murder F of any other person by mistake. Any concerns about interference with freedom of expression should be looked at in the light of the evidence of the murder threats. Article 2 of the Convention and section 6 of the Human Rights Act 1998 overwhelmingly tip the scales in favour of injunctions restraining publication of sensitive information. The court, as a public authority, must act in a way compatible with the Convention pursuant to section 6 of the Human Rights Act and article 2 must be strictly construed. There is a positive obligation to protect an individual against a violation of Convention rights by another private individual. Desmond Browne QC and Adam Wolanski for the defendants. The inherent jurisdiction to grant injunctions can only be exercised in accordance with the law and with legal principles. There is no place for judges to create ad hoc exceptions to the right to freedom of expression: see R v Central Independent Television pic [1994] Fam 192 and TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435. The injunctions granted by the judge were made principally in the exercise of the inherent jurisdiction of the Family Division of the High Court 436 Venables v News Croup Newspapers Ltd (Fam D) [2001 ] Fam to deal with minors (a parental and administrative jurisdiction): see Scott v A Scott [1913] AC 417, 437 and In re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422. There is no authority to suggest that there is a jurisdiction to protect an adult from revelation of his new identity except indirectly where his exposure in the role of carer might affect the welfare of the child. In re C (A Min or) (Wardship: Medical Treatment) (No 2) [1990] Fam 39 and In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211 concerned the care and upbringing of children who were wards of court. A child is not entitled to rights of privacy or confidentiality simply by virtue of being a child: see R v Central Independent Television pic [1994] Fam 192, 207 and In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 270. A public body with a statutory responsibility which it is required to perform in the public interest has standing to apply for an injunction to C prevent interference with the performance of that responsibility: see Broadmoor Special Hospital Authority v Robinson [2000] QB 775. There is no jurisdiction to grant an injunction except against a party to the suit (see Iveson v Harris (1802) 7 Ves 251 and Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406) or to grant a quia timet injunction unless there is evidence of a positive threat on the part of an identified defendant to do an act infringing the claimant's rights (see Attorney General for Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999,1005). The right to freedom of expression under article 10 of the Convention embraces both the media's right to impart information and ideas and the public's right to receive it: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 1:1:5, x37- There is an obligation on the court as a public authority to ensure proper protection of that E guaranteed right and the derogations provided for in article 1:0(2) can only be justified if a pressing social need (see Kelly v British Broadcasting Corpn [2001] Fam 59) exists for the restriction and the restriction is proportionate to the legitimate aim pursued. The court must be satisfied that the restrictions are necessary on the specific facts of each case. There is no balancing exercise of competing public interests by the court and where the courts have embarked on such an exercise they have fallen foul of the European court: see Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1:248; Sunday Times v United Kingdom (1979) 2 EHRR 245; R u Central Independent Television pic [1994] Fam 192 and Times Newspapers LtdvMGNLtd[i993]EMLR44s. Whatever the duties of organs of the state to ensure the rehabilitation of the claimants there is no correlative right to be rehabilitated to be found C either in English law or Strasbourg jurisprudence: see Silver v United Kingdom (1980) 3 EHRR 475. Nor does breach of the statutory duty give rise to any private law rights or right of action: R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58. The operation of the Rehabilitation of Offenders Act 1974 is confined to sentences of imprisonment of no more than 30 months and so is inapplicable here. In the case of Crown Court trials of juveniles there has to be a good reason for making an order prohibiting identification: R v Lee [1993] 1 WLR 103. Any assumption by the court of jurisdiction to restrict freedom of expression on the ground that it might hinder rehabilitation would fail to satisfy the precondition in article 10(2) that it be prescribed by law which, as Sunday 439 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A [1993] Fam 64) but the jurisdiction does not extend to those over 18 (see In re F (Mental Patient: Sterilisation) [1990] 2 AC 1). The jurisdiction to grant injunctions under section 37 of the Supreme Court Act 1981 (see In re P (Care Orders: Injunctive Relief) [2000] 2 FLR 385) only enables the court to grant an injunction in support of a legal right. There is, however, both statutory and inherent jurisdiction enabling the court to maintain restrictions on publicity where there is an obvious need to preserve the confidentiality of proceedings (see In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1; In re C (Adult Patient: Publicity) [1996] 2 FLR 251; A v United Kingdom (1997) 25 EHRR CD 159; A v C [1985] FLR 445 and In re C (Wardship: Surrogacy) [1985] FLR 846) so that there may be scope for injunctions extending beyond the age of majority. However, in the present case the parental proceedings were C so limited that this use of the jurisdiction may be inappropriate. The approach of the Attorney General is preferred. The right to freedom of expression has been given extra force by section 12 of the 1998 Act and will be given great weight in any balancing exercise. The court should only restrain publicity where it is demonstrated by evidence that it is necessary in a democratic society for such a restriction to be imposed in order to meet one of the legitimate aims set out in article 10(2) and that the extent of the restriction is no more than is proportionate to the legitimate aim pursued: see Kelly v British Broadcasting Corpn [2001] Fam 59; A v M [2000] 1 FLR 562; Richmond upon Thames London Borough Council v Holmes The Times, 20 October 2000 and R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115. As to the form of any order, a contra mundum form should be adopted, so £ that it is clear that it does not merely bind the parties to the proceedings. The "public domain" proviso should be framed so as to take account of the internet. Mark Shaw, for the Secretary of State, made no submissions. Cur adv vult F 8 January 2001. DAME ELIZABETH BUTLER-SLOSS P handed down the following judgment. A. Introduction 1 Jon Venables and Robert Thompson are both 18 years old. They are claimants in the proceedings for injunctions in very unusual circumstances. C On 12 February 1993 they killed a little boy of two, James Bulger. They were each t o 1 years old. The facts and the circumstances of the murder were particularly shocking and distressing and were widely publicised in the media. They were convicted of the murder of James Bulger in the Crown Court at Preston on 24 November 1993. They were then 11 years old. They were sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933. They were placed in separate secure units where they have remained throughout their detention. Each unit is a local authority home operated by separate local authorities. 2 Each claimant attained the age of 18 during August 2000. Four newspaper groups made an application by summons to the High Court, 440 Venablesv News Croup Newspapers Ltd (FamD) [2001] Fam Dame Elizabeth Butler-Sloss P dated 24 July 2000, asking for clarification of the injunctions as a result of A the impending majority of the claimants. The claimants made it clear that they intended to seek to continue the injunctions after they attained the age of 18. In accordance with the order of Morland J, the matter came before me on 27 July 2000. I adjourned the application to enable all the relevant parties to be represented and extended the injunctions until the completion of the adjourned hearing. 3 The two claimants have now issued proceedings in the Queen's Bench Division which were transferred to the Family Division to be tried by me. The defendants are three large news groups, News Group Newspapers Ltd, Associated Newspapers Ltd and MGN Ltd, but they do not represent the newspaper industry nor the media generally. The other parties are the Attorney General who has, through Mr Caldecott, made submissions and the Official Solicitor as amicus curiae, on behalf of whom c Mr Murdoch made submissions, particularly with regard to the interests of children. The Secretary of State did not intervene. He was represented before me by Mr Shaw, who provided me with written evidence and oral information, which have been very helpful. He did not, however, make any submissions on behalf of the Secretary of State. The submissions of all advocates were made on the basis of the written statements and I heard no oral evidence. I heard some submissions in chambers, and gave a judgment in chambers, which remains private. I reserved my decision on the applications made in the claims. I indicated that I would give a judgment setting out my decision on the issues of principle, and that if I were to grant injunctions I would hear further submissions on the form of the order. The tariff E 4 The tariff set by the trial judge, Morland J, was eight years for each claimant. It was increased by Lord Taylor of Gosforth CJ to 10 years and by the Secretary of State for the Home Department to 15 years. On application for judicial review by both claimants, on 12 June 1997 the House of Lords quashed the 15 year tariff set by the Secretary of State for the Home Department: see R v Secretary of State for the Home Department, F Ex p Venables [1998] AC 407. Both claimants made applications to the European Court of Human Rights in Strasbourg. On 16 December 1999, the European Court of Human Rights held that the United Kingdom was in breach of article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and that the tariff in such cases should be set by the judiciary and not by the Secretary of State: see V v United Kingdom ( i999)3oEHRRi2 i . C 5 The Secretary of State made an oral statement to Parliament on 13 March 2000 in which he indicated that he would bring forward legislation, and that, for existing cases, he proposed a fresh review of tariffs in line with the principles in the judgment of the European Court of Human Rights. He said that existing detainees, whose tariffs had not yet expired, should make any representations that they wished to make to the Lord Chief Justice who would make recommendations to him. He would then adopt his recommendation as to the tariff to be set. 6 On 27 July 2000 Lord Woolf CJ issued Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655 on life sentences for murder in which he set out the criteria for the tariff and the procedure. In accordance with that 441 [2001] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A practice statement Lord Woolf CJ made a statement on 6 October 2000 setting out his recommendations to the Secretary of State for the tariff in respect of each claimant and the reasons for his recommendations: In re Thompson (Tariff Recommendations) [2001] 1 All ER 737. He decided that the tariff period for each claimant should expire on 26 October 2000, the day of his announcement. This recommendation has the effect that the Parole Board is likely, during the year 2001, to make a decision about the reintegration of the claimants into the community. Reporting restrictions 7 At the first day of the hearing, 1 November 1993, Morland J imposed reporting restrictions under section 39 of the Children and Young Persons Act 1933 to restrain media publicity during the trial. At the conclusion of C the trial, after their convictions but before sentence, the judge lifted the reporting restrictions so that the public might be informed of the names and background of each of the claimants. On 26 November 1993, on an application by the News Group Newspapers Ltd to lift reporting restrictions, Morland J said in his judgment in open court: "It is necessary for me to balance the public interest in lifting reporting D restrictions and the interests of the defendants. I lifted the reporting restrictions as set out in my order of 24 November. I did this because the public interest overrode the interest of the defendants following the murder and I considered that the background in respect of the two boys' family, lifestyle, education and the possible effect of violent videos, on the defendants' behaviour ought to be brought out into the open because there was a need for an informed public debate on crimes committed by young children. However, public interest also demands that they have a good opportunity of rehabilitation. They must have an opportunity to be brought up in the units in a way so as to facilitate their rehabilitation." 8 He granted comprehensive injunctions restricting publication of further information about the two boys, with no limit of time, based both under section 39 of the 1933 Act and the inherent jurisdiction of the High Court to deal with children. On the hearing of the judicial review proceedings before the Divisional Court on 19 April 1996, Pill LJ granted injunctions restraining publication of reports referred to in those proceedings. Form of the injunctions applied for C 9 The injunctions sought by the two claimants in their claims, which have been amended several times, are not in identical terms. Broadly, however, they both seek injunctions designed to cover four main areas: (i) protection of information regarding changes in their physical appearance since their detention; (ii) protection of their new identity when they are released into the community; (iii) protection of information about their existing placement; (iv) protection of all specific information relating to their time in the secure units between February 1993 and August 2000. B. Issues before the court 10 The basis upon which the claimants seek relief by way of injunctions is also not precisely the same, but I have decided to look at the broad issues Fam 2.001—10 444 Venables v News Group Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P the greater the claim to anonymity. Open justice would be imperilled and A the right of the public to know about killers would be frustrated. This was a detestable crime. The claimants did not have the rights of those with spent convictions but they would have the advantage of being put in a similar position. The granting of a new identity was to allow a convicted prisoner to live a lie. 17 The editorial in the "News of the World" on 29 October 2.000 was not to be taken as a threat to publish if the identity of one of the claimants were disclosed. Mr Browne pointed to the fact that famous people did not generally get protection, see for instance, Kaye v Robertson [1991] FSR 62 where the Court of Appeal held that there was no actionable right of privacy in English law in circumstances where journalists had invaded and then photographed the claimant in his hospital bed. The court should apply standard principles and not succumb to siren calls that something needs to c be done. If, however, the court did grant injunctions, they must be clear and precise and no wider than absolutely necessary to achieve the legitimate aim: see Sir Thomas Bingham MR in Times Newspapers Ltd v MGN Ltd [1993] EMLR445,447. 18 An injunction ought not to be contra mundum ('against the world at large) and there was no jurisdiction to do so other than under the peculiar administrative jurisdiction of the High Court in respect of minors. He relied upon the passage in the judgment of Lord Eldon in Iveson v Harris (1802) 7 Ves 251, that an injunction cannot be granted except against a party to the suit. That has always been taken as law. In any event, publication of the injunctions against his clients would act in a similar way and have that effect. It was not necessary to grant injunctions to protect past confidential information, which was covered by the existing right to confidentiality. £ On behalf of the Attorney General and the Official Solicitor 19 In the submissions on behalf of the Attorney General, Mr Caldecott submitted that as a general proposition there was a strong and proper interest in knowing the identity of those who committed serious and detestable crimes. He pointed to the special position of freedom of expression in English law reinforced by the Human Rights Act 1998, subject to exceptions. The fact that information was confidential in character was not decisive. It would, therefore, require special circumstances for information as to the identity of an offender to be withheld from the public after the offender attained the age of 18. The key to these proceedings was whether such circumstances existed in the present case. 20 There was an existing law of confidence and it covered identification C information which the claimants sought to have protected. He relied upon the speech of Lord Goff of Chieveley in Attorney General v Guardian Neivspapers Ltd (No 2) [1990] 1 AC 109, 281. Questions of reasonableness affected both what may be protected and the application of the "public interest" defence. Since an equitable duty of confidence arose from an obligation of conscience, it must be material to consider whether a reasonable person would recognise public disclosure as not being "just in all the circumstances". There did not need to be a formal relationship between the parties. Having regard to case law and to the values enshrined in article 8 of the Convention, it seemed clear that information the disclosure of which would substantially impair a person's private life and imperil his 445 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A safety must be capable of protection. A restriction was necessary notwithstanding the general public interest in knowing the identity of those responsible for serious crime. The right to life under article 2 was unqualified and failure to provide protection could well be to act in a way incompatible with the Convention. 21 He did not put forward any general principle and each case would have to be considered on its own facts. If information was disclosed which was not generally known, and which was liable to expose the person to whom it related to danger of serious physical harm, it would not be difficult to show that its disclosure would be to the detriment of that person. He drew attention to R v Chief Constable of the North Wales Police, Ex p AB [*999] QB 396, 410, where Lord Bingham of Cornhill CJ expressly acknowledged that in some circumstances the law of confidence might be C applicable. The claimants were entitled to the same protection of confidentiality as any other applicant. In the present case, if their identity or whereabouts were to be detected, it would compromise their new identity. 22 The burden was upon the applicants to prove their case. The requirement of necessity should be satisfied by the claimants in respect of each category of information which was sought to be protected and the D orders should not go wider than strictly necessary. He said that there were compelling reasons in this case for protecting as confidential the identity of the claimants. He submitted that it was not necessary to restrict past information other than that which would identify them now or in the future. It would be necessary to have some restriction on information at their present units. It might be necessary to include a non-solicitation order. The confidential information about care and treatment did not require £ injunctions and the other past information did not justify any restriction by the court. The question of whether there should be an injunction "against the world" was strictly academic since the court could grant one against the defendants and it would be effective against all who had notice of it: see Attorney General v Times Newspapers Ltd [1992] 1 AC 191. It was arguable that the court's power to control its own process and to protect the F administration of justice might enable the court to invoke the inherent jurisdiction. It would be highly unsatisfactory if, in a case like the present, where the consequences of identification were grave for the claimants and the administration of justice, and where in general terms identification by the media was a possibility to be taken seriously, protection was only available where the claimants could establish that a particular media outlet intended to identify them. It was important that there should be liberty to c apply. 23 He did not support the other arguments put forward by Mr Fitzgerald as founding jurisdiction to make orders. Mr Murdoch, for the Official Solicitor, supported the submissions of Mr Caldecott. C. The law: jurisdiction to grant an injunction H Application of the Convention 24 Before turning to the question of whether there is jurisdiction to grant injunctions, the preliminary issue is whether the Convention applies to this case. It is clear that, although operating in the public domain and fulfilling a public service, the defendant newspapers cannot sensibly be said 446 Venables v News Croup Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P to come within the definition of public authority in section 6(1) of the A Human Rights Act 1998. Consequently, Convention rights are not directly enforceable against the defendants: see section 7(1) and section 8 of the 1998 Act. That is not, however, the end of the matter, since the court is a public authority (see section 6(3)) and must itself act in a way compatible with the Convention (see section 6(1)) and have regard to European jurisprudence: see section 2. In a private family law case, Glaser v United Kingdom [zooo] 3 FCR 193, the European Court of Human Rights, sitting as a Chamber, declared admissible an application by a father seeking the enforcement of contact orders made in private law proceedings between him and the mother of his children. They considered the potential breach of the father's rights under article 8 and article 6. The court said, at pp 2.08-209, para 63: "The essential object of article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be positive obligations inherent in an effective 'respect' for family life. Those obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific steps (see among other D authorities, X and Y v The Netherlands (1985) 8 EHRR 235 and mutatis mutandis, Osman v United Kingdom (1998) 29 EHRR 245). In both the negative and United Kingdom positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state's margin of appreciation (see, among other authorities, Keegan v Ireland (1994) 18 EHRR 342, 362, para 49)." 25 The court held that, in that case, the authorities, including the courts, struck a fair balance between the competing interests and did not fail in their responsibilities to protect the father's right to respect for family life. This decision underlines the positive obligations of the courts including, where necessary, the provision of a regulatory framework of adjudicatory and enforcement machinery in order to protect the rights of the individual. The decisions of the European Court of Human Rights in Glaser's case and X and Y v The Netherlands (1985) 8 EHRR 235, seem to dispose of any argument that a court is not to have regard to the Convention in private law cases. In Douglas v Hello! Ltd [2001] QB 967, 1003, para 133, Sedley LJ held that section 12(4) of the Human Rights Act 1998 "puts beyond question the direct applicability of at least one article of the C Convention as between one private party to litigation and another—in the jargon, its horizontal effect". 26 In the light of the judgments in Douglas's case, I am satisfied that I have to apply article 10 directly to the present case. 27 That obligation on the court does not seem to me to encompass the creation of a free-standing cause of action based directly upon the articles of the Convention, although that proposition is advanced by Mr Fitzgerald as a fall-back position, if all else fails. The duty on the court, in my view, is to act compatibly with Convention rights in adjudicating upon existing common law causes of action, and that includes a positive as well as a negative obligation. 449 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A and ideas without interference by public authority and regardless of frontiers. . . "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 35 In section 12 of the Human Rights Act 1998, special provisions are made in relation to applications to restrict freedom of expression. Section 12(4) states: "The court must have particular regard to the importance of the Convention right to freedom of expression . . ." 36 There is no doubt, therefore, that Parliament has placed great emphasis upon the importance of article 10 and the protection of freedom of expression, inter alia for the press and for the media. The Human Rights Act 1998 and the Convention do not, however, establish new law. They D reinforce and give greater weight to the principles already established in our case law. \n R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115,126, Lord Steyn said: "Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it E promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market': Abrams v United States (1919) 250 US 616, 630 per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein & Tushnet, Constitutional Law, 3rd ed (1996), pp 1078-1086." 37 Hoffmann LJ said in R v Central Independent Television pic [1994] Fam 192, 202-204: "The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think 450 Venables v News Croup Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P should not be published. It means the right to say things which 'right- A thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute . . . It cannot be too strongly emphasised that outside the established exceptions, or any new ones that Parliament may enact in accordance with its obligations under the Convention, there is no question of balancing freedom of speech against other interests. It is a „ trump card which always w i n s . . . no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case." 38 Munby J in Kelly v British Broadcasting Corpn [2001] Fam 59, 70 said: Q "if those who seek to bring themselves within paragraph 2 of article 10 are to establish 'convincingly' that they are—and that is what they have to establish—they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required . . . is proper evidence. . ." 39 In Sunday Times v United Kingdom (1979) 2 EHRR 245 the European Court of Human Rights said, at p 281, para 65: "The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted." 40 However, more recently, in Douglas v Hello! Ltd [2001] QB 967, 1004-1005, paras 136-137 Sedley LJ said: E "by virtue of section 12(a)(4) [of the Human Rights Act 1998] the qualifications set out in article 10(2) are as relevant as the right set out in article 10(1). This means that, for example, the reputations and rights of others—not only but not least their Convention rights—are as material as the defendant's right of free expression. So is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. F Any other approach to section 12 would in my judgment violate section 3 . . . the much-quoted remark of Hoffmann LJ in R v Central Television pic [1994] Fam 192, 203 that freedom of speech 'is a trump card which always wins' came in a passage which expressly qualified the proposition . . . as lying 'outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations Q under the Convention'. If freedom of expression is to be impeded, in other words, it must be on cogent grounds recognised by law . . . section 12 of the Human Rights Act 1998 requires the court to have regard to article 10 . . . This . . . cannot. . . give the article 10(1) right of free expression a presumptive priority over other rights. What it does is require the court to consider is article 10(2) along with 10(1), and by doing so bring into the frame the conflicting right to respect for privacy. This right, contained in article 8 and reflected in English law, is in turn qualified in both contexts by the right of others to free expression. The outcome, which self-evidently has to be the same under both articles, is determined principally by considerations of proportionality." 451 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A 41 In his Goodman Lecture on 22 May 1996, Lord Hoffmann referred to his judgment in R v Central Television pic [1994] Fam 192 and said: "Some people have read that to mean that freedom of speech always trumps other rights and values. But that is not what I said. I said only that in order to be put [in] the balance against freedom of speech, another interest must fall within some established exception which could be B j ustified under article 10 of the European Convention." (See also Sedley LJ in Douglas's case [2001] QB 967, para 136.) 42 Mr Desmond Browne submitted that it was not a balancing operation between the right to freedom of expression against any legitimate aim falling within article 10(2). It would seem to me however that, whether it is called a balancing process or any other description, the conflict that may C arise between article 10(1) and article 10(2) has to be resolved and the legitimate aim in restricting freedom of expression within the exceptions in article 10(2) given appropriate weight according to the facts of the individual case. Sedley LJ said, in Douglas's case, a tp ioo4H,para 136: "the qualifications set out in article 10(2) are as relevant as the right set out in article 10(1)". 43 There would not however be such a juggling act in a case which did not fall within the exceptions set out in article 10(2). It is clear however that, to obtain an injunction to restrain the media from publication of information, it requires a strong case. Brooke LJ said in Douglas's case, at p 982, para 49: "Although the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect." And Sedley LJ said, E atpp 1004-1005, para 136: "If freedom of expression is to be impeded . . . it must be on cogent grounds recognised by law." 44 The onus of proving the case that freedom of expression must be restricted is firmly upon the applicant seeking the relief. The restrictions sought must, in the circumstances of the present case, be shown to be in accordance with the law, justifiable as necessary to satisfy a strong and F pressing social need, convincingly demonstrated, to restrain the press in order to protect the rights of the claimants to confidentiality, and proportionate to the legitimate aim pursued. The right to confidence is, however, a recognised exception within article 10(2) and the tort of breach of confidence was the domestic remedy upon which the European Commission, in Earl Spencer v United Kingdom (1998) 25 EHRR CD 105, declared inadmissible an application by Lord and Lady Spencer on the basis C that they had not exhausted their domestic remedies. 45 I turn to the three other articles of the Convention which are said by the claimants to be engaged in this case, and which clearly I must consider alongside article 10. Article 2: right to life 11 " 1 . Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. "2. [exceptions which do not apply]." 454 Venables v News Group Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P "If the identity and present whereabouts of the claimants were A disclosed it would affect the units, which are not entirely secure. Each unit has public access and is easy to observe from outside. It would be possible for strangers to come within the perimeter of each unit. That, in turn, would affect movements within the units. There is a greater risk of the claimants being bullied or victimised by other inmates if further restrictions are placed on all of them by reason of press or others visiting the units. A major concern is the possibility of intrusive publicity identifying either of the claimants. It would also affect the rights of mobility of all inmates including the claimants. The units are working towards the reintegration of the claimants into the community and it is in the public interest that this aim is achieved." 54 The manager of Thompson's secure unit said in his statement that: "In the past we have received quite explicit hate mail for the attention of Robert and staff who care for him, for example, from three ex-army members "to the vermin who killed Jamie Bulger we don't forget we will get the job done". 55 He set out some unspecific examples of difficulties experienced by staff from approaches by the media seeking information about Thompson by telephone calls, from film crews in the grounds, reporters approaching staff D and photographers using zoom lenses to photograph the premises. This raises problems of confidentiality in respect of the work done with the claimants and with the other inmates. 56 Mr Le Marechal stated that, when the tariff period had been served, it was a matter for the Parole Board to determine whether their detention was no longer necessary for the protection of the public. If satisfied on that issue, the Parole Board could direct their release on life licence under section 28(5) of the Crime (Sentences) Act 1997. Under section 31 of the 1997 Act, each claimant would be subject to conditions, including supervision by a probation officer. 57 In their statements, the probation officers assigned to each claimant have expressed their serious concerns about the effectiveness of resettlement if the identities of the claimants become known. They also express the F concern that, if their own identities became known, it would have a serious effect upon the ability of the probation service to carry out its statutory function. Although not relevant to the assessment of risk, it is clear that both claimants are extremely frightened about the possibility of being discovered after they leave their secure units. 58 Mr Le Marechal considered that, while the claimants continued to be held in the secure units, it would be necessary to impose reporting restrictions in order to safeguard the claimants from photographs or descriptions of their present adult appearance, or from any information which might become available as to where they would go on their release. He did not think that other restrictions on information about the secure units were necessary. He said, at paragraph zz of his statement: "other life licensees have usually been able successfully to reintegrate into society—however notorious they were at the time of the offence. The claimants are notorious. Indeed in my experience, they are uniquely notorious. I cannot think of any other case—past or present—which has given rise to similar concerns. The court should not think that cases like 455 [2001 ] Fam Venables v News Group Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A this are going to arise very often. Unlike most other notorious murderers (whose offences and appearances fade in public consciousness and interest during the course of their long incarceration) the claimants' cases have remained in the public eye ever since they were arrested. Since 1993, the appearance of each has changed beyond recognition. But their new appearances have not been made public. So a reporting restraint in these cases has a better chance of being effective than in many other cases. Were, conversely, their identities and/or appearances as adults to be made public before they are released, or thereafter, it seems inevitable that they would be recognised anywhere in the United Kingdom with all the attendant difficulties that would entail." 59 Mr Shaw informed me that, although a decision has not yet formally been made, it is very likely that both claimants will be provided with new identities on release. That would include new names, birth certificates, national insurance numbers, national health cards, passports and so on. I was also told that this would be the first time since the case of Mary Bell in 1980 that new identities would be provided for those convicted of murder. New identities have been provided in the past to "super grasses", such as in Nicbolls's case, but without the application for or grant of injunctions: see 0 Nicholls v British Broadcasting Corpn [1999] EMLR 791 where exceptionally an injunction was granted to the "super grass". I was also informed that it was not the practice of the Home Office to disclose the date of release of those detained under section 53 of the Children and Young Persons Act 1933, a n d t n a t m t n e present case, the Home Office would not make public the date of release. Venables 60 The solicitor for Venables, Mr Dickinson, who has acted for him since 1994, made four statements, which included information about what he described as relentless inquiries from the media about his client over the years. These inquiries have been from all over the world. He referred to a number of breaches of the existing injunctions. He said that that since 1993 F there has been a sustained and high level of media interest in the case, and in the claimants, and this shows no signs of diminishing. There remained a high degree of hostility. He exhibited to his first statement a selection of articles from newspapers between the years 1993 to 2000. It was his firm belief that, on his release and for many years thereafter, Venables was at risk of death or serious physical harm. Venables's father, in his statement, Q referred to the intense media pressure to which his family was subject to at an earlier stage. As a result of this pressure the family had to move on several occasions, his younger children were made wards of court and injunctions were granted for their benefit to restrain publicity. Thompson 61 The solicitor for Thompson, Mr Lloyd, who has acted for him since 1993, made a statement in which he said that the behaviour of the press in the past poses a real risk to the safety of Thompson to the extent that this had become a matter of life and death. He exhibited a recent article in the "Daily Mail" on 2 November 2000 (see below) reporting that vigilantes in North Wales threatened to burn down the home of a woman wrongly 456 Venables v News Group Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P suspected of being the mother of one of the claimants. Mrs Thompson made A a statement about the impact on her children and herself. They had changed their names and moved home on eight occasions. She accepted that she had co-operated with journalists in the past, but had not done so for a long time. She was very concerned, if the reporting restrictions were lifted, about the effect of publicity upon her family, and upon her son Robert. e Press reports 62 I have been provided, by those representing the claimants and the defendants, with a very large selection of the press coverage of this case over the period 1993 to now, covering the murder, the trial, the subsequent litigation in the English courts and the European Court of Human Rights, the decision as to the tariff and the proceedings before me. The press c cuttings are helpful for two purposes: firstly, to elicit information to assist in the assessment of the extent of the risk to the claimants, which is said to exist if the identities of the claimants are revealed; secondly, to assist in the assessment as to whether the press might report details leading to disclosure of their identity if there were no injunctions in place. Evidence of risk reported by the press D 63 The following newspaper cuttings are, in my view, particularly relevant, (i) "Sun", 27 January 1994: "An uncle of the victim said . . . 'if the judge's recommendation is followed, then the streets won't be safe in eight years time'." (ii) "Sun", 1 February 1994: Following the newspaper's campaign—an article set out that 80,000 telephone calls had been made to the television channel to say Bulger killers must rot in jail. Coupon attached E to the article to be sent by readers to the Home Secretary expressing support for the view that the claimants should stay in prison for life, (iii) "Sun", 26 May 1994: "The mother of the victim said . . . 'They aren't safe to walk the streets. We must not give them the chance to do it again.'" (iv) "Sunday Mirror", 31 October 1999: In an article titled "Society must be protected from this pair of monsters", Denise Bulger said: F "I will do everything in my power to keep them caged and I hope that Jack Straw will back me up. If they ever do get out I have sworn to go looking for them. When I find them they will wish they were dead. I will make sure they know what it is to really suffer . . . wherever they go mothers like me will be after their blood." C (v) "Sunday Mirror", 27 August 2000: In an article titled "Throw away the key"—"if Venables and Thompson returned to Liverpool 'they would be lynched—and nobody would shed a tear. The pair of them should stay inside for the rest of their natural lives. They took a baby's life. So why should they be allowed a life of their ownf " (vi) "Guardian", 31 October 2000: In an article titled "Bulger father vows to hunt killers" Ralph Bulger was reported as having said on GMTV: "Something's got to be done about it. We can't just stop now, and let these two little animals get released . . . I will do all I can to try my best to hunt them down." Dee Warner, of Mama (a victim's support group, Mothers Against Murder and Aggression), was also quoted: 459 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A he gave the example of the complaint by Lord Spencer: see Earl Spencer v United Kingdom 25 EHRR CD 105. 67 In respect of these claimants, there was no evidence of speculative improper journalistic activity in the future. Lifelong anonymity would give the claimants a level of protection as adults to which no other adult would be entitled. He pointed to recognition by Mr Dickinson that over the period the R reporting had become more balanced. He did not accept that the breaches alleged had in fact occurred. Some of the information had been provided by either members of the family, or by the claimants' then solicitors. In any event, none of them had been published by the first or second defendants. 68 He said that the defendants were alive to the public interest in securing the rehabilitation of convicted offenders and they had no desire to abuse their right to freedom of expression or to infringe any legitimate right c of the claimants. However, the public had the right to information on the circumstances giving rise to the murder of the child, including the upbringing of the claimants; the appropriate period for them to serve in custody; the care and treatment of the boys whilst in custody—at considerable public expense—the extent of the risk of allowing them back into the community and the process of rehabilitation. His clients were most D concerned that no precedent should be created whereby adult criminals, particularly those convicted of serious acts of violence, were given lifetime anonymity. He exhibited to his statement a selection of newspaper articles as examples of press coverage of matters of legitimate public interest. Judicial observations E 69 In R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 Hobhouse LJ said, at p 439: "The murder of James Bulger was a truly horrific crime . . . Why this crime provoked an extreme public reaction can be easily understood. The crime itself threatened the security of all mothers of young children. The crime was exceptionally cruel. The crime offended against p the assumptions made by most members of the public about the criminal capabilities of pre-adolescent boys. The killing itself attracted enormous publicity as did the ensuing trial and the sentencing process . . . The situation in which the Secretary of State and his advisers found themselves was wholly exceptional. A climate of opinion had been built up in which it was very difficult to make an adequate decision on what was required for retribution and deterrence. The situation had become overlaid by a ^ range of public pressures which lost sight of the two defendants as immature individuals and got bound up with when, many years later, it might become publicly acceptable to release the murderers of James Bulger from custody on licence." 70 Lord Goff of Chieveley set out, at p 475, the public concerns over the case. 4,400 letters were received; a petition signed by 278,300 people seeking detention for life, several thousand other letters asking for detention for 25 years and a press campaign by the "Sun" with coupons responded to by over 20,000 people seeking detention for life. The Home Secretary had taken this information into account in setting the tariff. Lord Goff said, a tp489: 460 Venables v News Croup Newspapers Ltd (Fam D) [2001] Fam Dame Elizabeth Butler-Sloss P "It is plain from his decision letters that the Secretary of State did A indeed have regard, when he made his decision to fix the penal element in the applicants' sentences at 15 years, to the petitions and letters to which I have already referred. As stated in the decision letters, he did so as evidence of the public concern about this case. That there was public concern about this terrible case, there can be no doubt. Any humane person must have felt, not only the deepest sympathy for little James Bulger and his family, but horror that two boys as young as the two applicants should have perpetrated such a brutal crime. The Home Secretary hardly needed the media to inform him of this. But events such as this tend to provoke a desire for revenge, and call for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today's society there is a tendency for it to be whipped up and exploited by the media. When this c happens it can degenerate into something less acceptable. Little credit can be given to favourable responses to a campaign that the two applicants should 'rot in jail' for the rest of their l ives . . . " 71 Lord Browne-Wilkinson said, at p 491: "The murder. . . was a cruel and sadistic crime. It is made even more horrific by the fact that the applicants were only IOJ years old at the time. It is not surprising that the case has given rise to much public concern and, indeed, outrage." 72 Lord Steyn said, at p 518: "The inexpressible grief of the family of the murdered boy will never cease. The family, the local community and society generally are morally outraged." 73 In V v United Kingdom 30 EHRR 121, the European Commission in E its opinion said, at p 131, para 9: "The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court." And, at p 133, para 14: "In his summing up to the jury the trial judge noted that the witnesses had arrived in court in a blaze of publicity and many had faced a bevy of photographers." 74 In the recommendations on the tariff on 26 October 2000 (In re Thompson (Tariff Recommendations) [2001J 1 All ER 737, 738-739), Lord Woolf CJ said that the facts of the murder were exceptionally horrific: "The crime had many aggravating features, including the age of the victim, the period over which the violence stretched and its degrading nature, and what was done with the body of the victim . . . He [Morland J] considered that there was a very real risk of revenge attacks upon them from others. This risk is confirmed by the information before me." H E. Conclusions on jurisdiction 75 My conclusions on the application of the principles of English law to the facts of this case, are based on the assumption that the case put forward by the claimants has been established. 461 [2001] Fam Venablesv News Croup Newspapers Ltd(FamD) Dame Elizabeth Butler-Sloss P A 76 I am, of course, well aware that, until now, the courts have not granted injunctions in the circumstances which arise in this case. It is equally true that the claimants are uniquely notorious. On the basis of the evidence presented to me, their case is exceptional. I recognise also that the threats to the life and physical safety of the claimants do not come from those against whom the injunctions are sought. But the media are uniquely placed to provide the information that would lead to the risk that others would take the law into their own hands and commit crimes against the claimants. 77 The starting point is, however, the well-recognised position of the press, and their right and duty to be free to publish, even in circumstances described by Hoffmann LJ in R v Central Independent Television pic [1994] Fam 192. As Brooke LJ said in Douglas v Hello! Ltd [2.001] QB 967, it is a powerful card to which I must pay appropriate respect. I am being asked to C extend the domestic law of confidence to grant injunctions in this case. I am satisfied that I can .only restrict the freedom of the media to publish if the need for those restrictions can be shown to fall within the exceptions set out in article 10(2). In considering the limits to the law of confidence, and whether a remedy is available to the claimants within those limits, I must interpret narrowly those exceptions. In so doing and having regard to articles 2, 3 and 8 it is important to have regard to the fact that the rights under articles 2 and 3 are not capable of derogation, and the consequences to the claimants if those rights were to be breached. It is clear that, on the basis that there is a real possibility that the claimants may be the objects of revenge attacks, the potential breaches of articles 2, 3 and 8 have to be evaluated with great care. 78 What is the information sought to be protected and how important is £ it to protect it? The single most important element of the information is the detection of the future identity of the claimants in the community. All the other matters sought to be protected for the present, and for the future, are bound up in the risk of identification, whether by photographs, or by descriptions of identifying features of their appearance as adults, and their new names, addresses and similar information. That risk is potentially extreme if it became known what they look like, and where they are. The F risk might come from any quarter, strangers such as vigilante groups, as well as the parents, family and friends of the murdered child. In the present case, the public authority, the court, has knowledge of the risk to the claimants. Does the risk displace the right of the media to publish information about the claimants without any restriction imposed by the court? 79 As I have set out, article 10(2) recognises the express exception, "for Q preventing the disclosure of information received in confidence". None the less, in order for it to be used to restrict freedom of expression, all the criteria in article 1:0(2), narrowly interpreted, must be met. Taking each limb in turn: "In accordance with the law" 80 I am satisfied that, taking into account the effect of the Convention on our law, the law of confidence can extend to cover the injunctions sought in this case and, therefore, the restrictions proposed are in accordance with the law. There is a well-established cause of action in the tort of breach of confidence in respect of which injunctions may be granted. The common law continues to evolve, as it has done for centuries, and it is being given 464 Venables v News Croup Newspapers Ltd (Fam D) [2001] Fam Dame Elizabeth Butler-Sloss P for family life and privacy would be, once the journalists and photographers A discovered either of them, and despite the likely serious adverse effect on the efforts to rehabilitate them into society, it might not be sufficient to meet the importance of the preservation of the freedom of expression in article 10(1). It is not necessary, however, for me to come to a conclusion as to the weight of a breach of article 8, since I am entirely satisfied that there is a real and serious risk to the rights of the claimants under articles z and 3. Subject, g therefore, to my assessment of the strength of the evidence presented to the court, and the possibility that some protection less than injunctions might be proportionate to the need for confidentiality, I find that, in principle, I have the jurisdiction to grant injunctions to protect the claimants in the present case. F. Conclusions as to future risk C 87 The test of future risk is not to be based upon a balance of probabilities. In Davies v Taylor [1974] AC 207, the House of Lords was considering the possibility of a future reconciliation between the deceased and his estranged wife in a fatal accident claim by her. They held that the issue was not whether it was more probable than not that there would have been a reconciliation, but whether there was a reasonable probability or D expectation, rather than a mere speculative possibility, of a reconciliation. There could be a reasonable expectation that something would come about even though the chance of it coming about was less than even. 88 In In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the House of Lords considered the words "likely to suffer significant harm" in section 31 of the Children Act 1989. Lord Nicholls of Birkenhead E rejected the submission of counsel that likely in that context meant probable. He said, a tp 585: "In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of F significant harm to the child in the future but that possibility falls short of being more likely than not. . . What is in issue is the prospect, or risk, of the child suffering significant harm . . . In my view therefore, the context shows that in section 3 i(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case." (Emphasis added.) c 89 The decisions in Davies v Taylor [1974] AC 207 and in In re H (Minors) (Sexual Abuse: Standard of Proof), although each made on facts far removed from the present, are in my view a helpful guide to the assessment I have to carry out in this case. Since the relief sought is to restrict the freedom of expression of the press, I approach the assessment of future risk to each of the claimants on the basis that the evidence supporting the case has to demonstrate convincingly the seriousness of the risk, but in order to assess the future, I cannot by the very nature of the task, have concrete facts upon which to rely, nor can I predict upon the basis of future probability. 465 [2001 ] Fam Venables v News Group Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A 90 The evidence, which I have set out above, demonstrates to me the huge and intense media interest in this case, to an almost unparalleled extent, not only over the time of the murder, during the trial and subsequent litigation, but also that media attention remains intense seven years later. Not only is the media interest intense, it also demonstrates continued hostility towards the claimants. I am satisfied from the extracts from the newspapers: (a) that the press have accurately reported the horror, moral outrage and indignation still felt by many members of the public; (b) that there are members of the public, other than the family of the murdered boy, who continue to feel such hatred and revulsion at the shocking crime and a desire for revenge that some at least of them might well engage in vigilante or revenge attacks if they knew where either claimant was living and could identify him. There also remains a serious risk from the Bulger family, and C the father was quoted as recently as October 2000 saying that upon their release he would "hunt the boys down"; (c) that some sections of the press support this feeling of revulsion and hatred to the degree of encouraging the public to deny anonymity to the claimants. The inevitable conclusion to which I am driven, in particular, by the editorial from the "News of the World" (one of the newspapers in the defendant group), is that sections of the press would support, and might even initiate, efforts to find the claimants and to expose their identity and their addresses in their newspapers. I have in mind, for example, the coupon campaign run by the "Sun", demanding that the boys remain in detention for life and the recent "News of the World" campaign "naming and shaming" paedophiles. The response of some members of the public to emotive newspaper reporting has created highly emotional and potentially dangerous situations. The misidentification of a E female member of the public, thought erroneously to be the mother of one of the claimants, was potentially very dangerous and demonstrates the probable reaction of members of the public to the knowledge that one of the claimants and his family were living nearby. I also bear in mind that the media coverage has been international as well as national. The information might be gathered from elsewhere and presented to an English national or local newspaper. Once in the public domain, it is a real possibility, almost a probability, that there would be widespread reporting by the press. If photographs are taken, and they would be likely to be taken, the claimants would find it difficult to settle anywhere safely, at least within the United Kingdom. It would, however, be fair to point out that there have also been, particularly recently, thoughtful and objective articles in the newspapers, and a reasoned debate over the correct period of detention for child C offenders who commit appalling murders. 91 The evidence provided by the Home Secretary supported and affirmed much of the reporting in the press. It is most significant that this is only the second time ever that the Home Office has thought it necessary to provide a new identity for child murderers when they leave detention, the other being Mary Bell in 1980. This is a clear indication of the seriousness with which the authorities view the possibility that either claimant may be recognised with the consequences that they fear. 92 The Attorney General and the Official Solicitor both submitted that there is a high risk of serious physical harm and the real possibility that a claimant might be killed if identified. Morland J and Pill LJ felt it necessary to grant injunctions to protect the children during their detention in secure 466 Venables v News Croup Newspapers Ltd (Fam D) [2001] Fam Dame Elizabeth Butler-Sloss P accommodation. In 1993 Morland J considered that there was a very real A risk of revenge attacks upon them from others. Lord Woolf CJ in his statement on the tariff in October 2000 (In re Thompson (Tariff Recommendations) [2001] 1 All ER 737) confirmed, from the information presented to him on the tariff, that that remained the situation. I heard evidence, in chambers, which supported the conclusion to which Lord Woolf CJ came, that there are solid grounds for concern that, if their identities were revealed on release, there might well be an attack or attacks on the claimants, and that such an attack or attacks might well be murderous. 93 At the moment, the claimants are not at risk. First, the injunctions are still in force. Second, there is no current photograph of either claimant, or any current description of the appearance of either in the public domain. The photographs that are available were taken when they were children and they are now adults. When they are released from detention with new c names, so long as they are not identified, they will be living in the community, under life-long supervision, but with the opportunity for rehabilitation and reintegration. 94 I consider it is a real possibility that someone, journalist or other, will, almost certainly, seek them out, and if they are found, as they may well be found, the media would, in the absence of injunctions, be likely to reveal that information in the newspapers and on television, radio, etc. If the identities of the claimants were revealed, journalists and photographers would be likely to descend upon them in droves, foreign as well as national and local, and there would be widespread dissemination of the new names, addresses and appearance of the claimants. From all the evidence provided to me, I have come to the clear conclusion that if the new identity of these claimants became public knowledge it would have disastrous consequences E for the claimants, not only from intrusion and harassment but, far more important, the real possibility of serious physical harm and possible death from vengeful members of the public or from the Bulger family. If their new identities were discovered, I am satisfied that neither of them would have any chance of a normal life and that there is a real and strong possibility that their lives would be at risk. 95 The claimants seek injunctions effectively for the rest of their lives. Is the grant of injunctions proportionate to the risk which I have identified? Mr Desmond Browne argued that the editors of the newspapers that he represented could be trusted not to reveal information that would lead to the identity of the claimants. Editorial judgment should be respected and trusted. That brings in the question whether it is necessary, in order to achieve anonymity, to require injunctions. Although I recognise that editors c do exercise judgment and restraint in some of the stories they run, I do not consider that editorial restraint can be the answer here. I am prepared to believe that editors of some newspapers might well hesitate to reveal this information. I do not see how editorial judgment would be able to restrain all the newspapers, particularly those now calling for that information to be made available. I also find it difficult to accept the case of the newspapers that they should be trusted not to publish when, at the same time, their counsel submitted that it was wrong for the claimants to have the advantages of anonymity and to be allowed to live a lie. No offer has been made to the court not to publish. On the contrary, I am satisfied from the editorial in the "News of the World" on 29 October 2000, that one 469 [2001 ] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A 103 The significant fact is that the injunctions were in place, and the media were well aware of their existence. Under this heading I have to consider the impact of the removal of the injunctions over the period of the claimants' detention in secure accommodation. There is not, and there cannot be, a bar to information about them before they were arrested. There is no privilege in childhood. Once the injunctions come to an end, in general there cannot be, in my view, continuing protection of the information that was protected during the life of the injunctions. There may be an exception to that general principle in wardship proceedings, with which I am not now concerned in the present case. Children, like adults, are entitled to confidentiality in respect of certain areas of information. Medical records are the obvious example. In the present case, the information sought to be protected falls broadly into four categories—(A) medical and health C information, (B) information from social workers and other carers, (C) information from co-detainees (D) identification of the secure units. 1 shall consider each in turn. (i) Health information. All information about the claimants, whether during their detention or at any other time, whether by records or otherwise, which relates to their medical, psychological or therapeutic care is, in principle, confidential. That confidentiality would, in my view, extend to art, or any other form of therapy, and to all those taking part in group therapy, and not only the therapist. As I understood it, all counsel agreed with this proposition: see Hunter v Mann [1974] QB 767, 772; W v Egdell [1.990] Ch 359. (ii) Information from social workers and carers. In In re G (A Minor) (Social Worker: Disclosure) [1996] 1 WLR 1407, 1411 I said: "The E information obtained by social workers in the course of their duties is however confidential and covered by the umbrella of public interest immunity." (See also In re W (Minors) (Social Worker: Disclosure) [1998] 2 FLR 135.) I referred in In re G (A Minor) (Social Worker: Disclosure) 11996] 1 WLR 1407 to a long line of authority that social services department case records were not to be produced on discovery nor disclosed in court proceedings unless a judge ruled to the contrary: see for instance D v National Society for the Prevention of Cruelty to Children [1978] AC 171. I referred also to local authority circulars on confidentiality of personal information held by local authorities. Each secure unit is managed by a local authority. The confidentiality extends to all those having the care of the two claimants in the secure units. Mr Fitzgerald accepted that there was a legitimate public interest in the general information about the regime to C which each of the claimants have been subjected. He continued, however, to seek a ban on the publication of historical information during the period covered by the injunctions granted by Morland J, because it pertained to information previously covered by injunctions. (iii) Information from co-detainees. In my judgment, there is no basis upon which an injunction can in general be granted to prevent a co-detainee from approaching or being approached by a member of the press and speaking about either claimant, save in so far as any revelation was likely to reveal their present appearance or whereabouts or disclose plainly confidential matters. The co-detainee would not, for example, be entitled to provide, and the newspaper cannot publish, information, which is confidential, such as attending therapy sessions together. 470 Venables v News Croup Newspapers Ltd (Fam D) [2001 ] Fam Dame Elizabeth Butler-Sloss P (iv) Identification of the secure units. I can see, however, the necessity for A providing a period after the release of the claimants during which no information should be made public which might lead to the identification of the units where they have been detained, since that may lead to the identification of their future whereabouts. Such an injunction would be designed to protect the future, and not the past, and it should not be necessary to impose it for more than a limited period. I am not at present certain how long it should be. I incline towards i z months, but this is a matter upon which it would be helpful to hear further submissions. I should like the help of counsel. As I have already indicated, I should also like the assistance of counsel on the actual wording of the injunctions and the order. The information to be protected 104 In my judgment, there are compelling reasons to grant injunctions c to protect, in the broadest terms, the following information, (i) Any information leading to the identity, or future whereabouts, of each claimant, which includes photographs, description of present appearance and so on. (ii) In order to protect the claimants on their release from detention, it is necessary to have injunctions to protect their present whereabouts, any information about their present appearance and similar information. That D protection must include any efforts by the media to solicit information from past or present carers, staff or co-detainees at their secure units until the claimants' release from detention, (iii) In order further to protect their future identity and whereabouts, no information may be made public or solicited from their secure units that might lead to the identification of the units for a reasonable period after their release. It would seem to me that i z months from the date of the release of each claimant would be a sufficient E period to protect that information, subject to any further argument from counsel, (iv) It is not necessary, in my judgment, to protect other information relating to their period in the secure units when they were under 18 for two reasons. Firstly, the important information, from the medical/ health professionals, including therapists and from social workers and other carers and from co-detainees who shared the confidential situations is F already covered by confidentiality. Secondly, the other information is not covered by the necessity/imperative to keep it out of the public domain and their time in their secure units is not of itself confidential. There is much, after the i z month embargo on information, that would be appropriately made public, such as the regime in the units, (v) I recognise the concerns, however, of the claimants as to what is and what is not confidential in the past information. I would be prepared therefore to set out, if requested, a C preamble to my order on the information setting out the categories of information which are confidential. 105 I am, of course, aware that injunctions may not be fully effective to protect the claimants from acts committed outside England and Wales resulting information about them being placed on the Internet. The injunctions can, however, prevent wider circulation of that information through the newspapers or television and radio. To that end, therefore, I would be disposed to add, in relation to information in the public domain, a further proviso, suitably limited, which would protect the special quality of the new identity, appearance and addresses of the claimants or information leading to that identification, even after that information had 471 [2001] Fam Venables v News Croup Newspapers Ltd (Fam D) Dame Elizabeth Butler-Sloss P A entered the public domain to the extent that it had been published on the Internet or elsewhere such as outside the United Kingdom. I am also aware that the Parole Board will soon be making inquiries and compiling a report for consideration at the Parole Board hearing. It is, in my view, essential that the nature of the inquiries, the content of the report and the hearing itself must be covered by the injunctions. H. Other grounds relied on to establish jurisdiction 106 Mr Fitzgerald advanced submissions based on other grounds for the court to assume jurisdiction to grant injunctions. (A) Protection of the statutory right to rehabilitation C 107 In Broadmoor Special Hospital Authority v Robinson [2000] QB 775, the Court of Appeal held that the court had jurisdiction, in suitable circumstances, to grant an injunction to a public body with a statutory responsibility in order to prevent interference with the performance of its public responsibilities and, by a majority, that it could make such an order on the application of the hospital authority. They did not, in fact, grant an injunction in that case. Waller LJ said, a tp 795, para 55: "On the important question of the authority's powers and the circumstances in which it can seek the aid of the court, I respectfully agree with Lord Woolf MR and would adopt his ultimate formulation which is in these terms: if a public body is given statutory responsibility which it is required to perform in the public interest, then, in the absence of an £ implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the court should grant such an application when 'it appears to the court to be just and convenient to do so'." 108 Mr Fitzgerald advanced the argument that, in circumstances where the public responsibilities of a public authority were, or were likely to be, F interfered with and that public authority refused or failed to take proceedings to obtain an injunction, the beneficiary of those responsibilities had standing to make the application himself. Applied to the present case, if the Home Office or the local authority in charge of the secure unit would not be able properly to carry out at present or in the future the duty to rehabilitate the claimants and to reintegrate them into society because of the Q actions of the press, then the claimants could bring the proceedings themselves to protect the benefit to them of that rehabilitation. 109 He pointed to the evidence from the Home Secretary about the serious concerns of the secure units and, in particular, of the supervising probation officers, that rehabilitation would be seriously imperilled by disclosure of their appearance and whereabouts, particularly after release. He relied upon the submission of Mr Caldecott, on behalf of the Attorney H General; first, that the Home Office or those responsible for the proper care and treatment of the claimants did owe specific duties directed at ensuring the rehabilitation of the claimants and their reintegration into society, both while in their secure units and on their release, during their life long supervision; second, as I set out earlier, that the information about