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Re W - 5RB Barristers Call 5RB+44 (0)20 7242 2902 Menu About us Our work People Barristers Support team Recruitment Resources Cases News Publications Articles 5RB Talks Links Contact Contact us Enquiry Visit us Urgent injunctions Complaints procedure Register for 5RB updates Barristers Cases Re W Reference: [2005] EWHC 1564 (Fam); [2006] 1 FLR 1; The Times, 21 July 2005

Court: Family Division

Judge: Sir Mark Potter P

Date of judgment: 14 Jul 2005 Summary: Criminal trial - Injunction to restrain identification of defendant and victim - Children - Non-parties - Privacy - Article 8 - Freedom of expression - Article 10

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Facts A local council applied to restrain publication of the identity of a defendant and her victim in a criminal trial in order to protect the privacy of two children (who were not involved in the trial but were the subject of care proceedings). The defendant was the children’s mother, who was HIV positive and who had pleaded guilty to a charge of knowingly infecting a man (one of the children’s fathers) with the virus. The mother suffered abuse and harassment from her local community when her condition became known. There was speculative evidence that the children may suffer similarly if their mother’s condition became more widely known.

Issue Applying Re S, whether, considering the conflicting Article 8 and Article 10 rights at play, an injunction to restrain publication of the identity of the defendant and her victim ought to be granted.

Held Granting the injunction: Both Articles 8 and 10 were engaged. Despite the undoubted importance of the freedom of the press to report criminal trials, neither Article had any presumptive priority. This case had significant features which distinguished it from Re S: there had been less previous publicity, so that the injunction was more likely to isolate the children from the fall out of the case; a refusal to grant the injunction may have prejudiced future care arrangements for the children; and the long-term damage to the children would be due to an attribution of AIDS rather than the knowledge that their mother is a criminal. These factors militated in favour of recognising and supporting the children’s Article 8 rights over the Article 10 rights of the press, and granting the injunction.

Comment A decision likely to disappoint the media. Here, a likelihood of a clearly erroneous assumption (that the children would be infected by AIDS), combined with irrational prejudice (that would lead to foster carers and schools refusing the children, and their being harassed) was held sufficient to outweigh what the President accepted was the important public interest in the media being able to fully report criminal cases. Applicants for reporting restriction orders should heed the warning about the need to abide by the Practice Direction and Practice Note.

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