Seeking a secret inquest? A lesson in how NOT to go about asking for reporting restrictions

1 July 2019 by Guest Contributor

This article, by Bridget Dolan QC, is a slightly edited version of a piece which first appeared on the UK Inquest Law Blog. The original post can be found here.

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.

The background

AB was 17 years old when she took her own life in custody. Her inquest was likely to explore evidence including allegations of sexual abuse that would potentially be distressing to her surviving siblings. For what were clearly honourable reasons — aimed at protecting two children who themselves were vulnerable minors in care — Worcestershire County Council wanted to have a raft of reporting restrictions imposed upon the inquest.

The Council’s wide ranging application (made to Pepperall J sitting in the Queen’s Bench Division of the High Court) sought to prevent the publication of the identity of (i) the deceased (ii) her parents (iii) her siblings (iv) their parents and (v) the local authority in which the siblings were now being cared for.  

This was a bold step given a number of authorities already making it clear that secret inquests should not be condoned (see earlier blogs here and here). If there is an inquest the deceased must be named: the Coroner or her jury is under a statutory duty to do so under s.5(1)(a) CJA 2009 and an inquest must be held in public under r.11 Coroners (Inquests) Rules 2013.  There could be no derogation from these requirements under the statute or rules save where national security was at stake.  

Although the media were alerted to the application, all that the press organisations were told about it was that the Council sought “an order for reporting restrictions in respect of an inquest listed on 1-12 July 2019 pursuant to s.39 of the Children and Young Persons Act 1933.”

Section 39 CYPA provides that any court[1] which is itself hearing proceedings can restrict the publication of (a) the name, address or school of any child or young person by or against whom the proceedings are taken or who is  a witness in the proceedings (b) particulars that might identify the child and (c) their picture.     This is a power that a Coroner can use, where appropriate, to protect a child witness at an inquest. But s.39 CYPA does not give the Coroner (or any court) a general power to direct much wider reporting restrictions in respect of children who are neither parties nor witnesses. Nor can s.39 CYPA be used to hide the name of the deceased.

There is an alternative provision to protect the identity of living children who are not witnesses but who may have been victims of sexual offences themselves under s.1 Sexual Offences (Amendment) Act 1992 (see our blog here) but this was not relied upon by the Council.

Lack of notification to the media

Beyond telling the media there was to be a s.39 application no further explanation of the basis for the application was given. It was said that the Council would be relying upon witness statements and legal submissions but these were not provided.   All references to the name of the deceased, her date of birth, her parents’ names or those of her siblings had been redacted from the application.   The press therefore could have had no idea to whom the application referred, what it was about and why it was being sought.

Failure to follow the rules

Ignoring the relevant Civil Procedure Rules[2] the applicant Council gave no notice at all of their application to the other Interested Persons in the inquest (the deceased’s parents, an NHS Trust and another local authority responsible for the secure accommodation in which the deceased died). The Coroner had been served (it seems as a courtesy) but was not named as a respondent.  The manner in which this application was being brought arguably flew in the face of open justice. 

Apart from the obvious point that justice is best done when the court hears both sides of a case. One might wonder why the applicant Council ever thought that making what was an effectively ex parte interim order could be worth the paper it was written on.   CPR 25.3(1) of course does allow for an ex parte applications to the High Court as an interim remedy where there is good reason – but any final determination of the issue could only be reached after hearing from all sides.

The application squarely sought to override the media’s Art 10 right to freedom of expression. Inquests are public hearings and the law is “particularly strict” when it comes to applications for relief which, if granted, would interfere with Article 10 rights.[3] Furthermore, the fundamental assumption is that media organisations should be trusted not to thwart the purpose of the application[4] and so “it will only be in truly exceptional circumstances that the failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order.”[5]   Responsible media organisations can be expected to respect the confidentiality of the evidence disclosed to them until the court has ruled upon the application.

Outside the scope of s.39

Unsurprisingly, the media resisted the order sought. The BBC and the Guardian (correctly as the council belatedly recognised) argued in written submissions that the restrictions being sought could not fall within s.39 CYPA at all unless the siblings were witnesses in the inquest (and they were not). The media submitted that the relief sought appeared to go well beyond the scope of s.39.

The Council was effectively sent packing by Pepperall J. Dismissing the application the judge noted that not only had the Council not properly notified the media about this application, it had taken no steps whatsoever to notify other obviously interested parties. There were no compelling reasons why proper notice of the application could not have been given to the media. Furthermore the Council sought to rely upon evidence that had not been given to the other potential parties: justice is not done by one party enjoying privileged access to the judge and placing before the court evidence and argument that it is not willing to share with the other parties.

The wrong court

If that wasn’t enough,  the Council had also applied to the wrong court. As drafted, this was an application for an order pursuant to s.39 CYPA: had the applicant considered paragraphs 73-83 of the Chief Coroner’s Guidance No.25 on ‘Coroners and the Media’ (see here) they would have immediately realised that this application could and should have been made to the Coroner.  Section 39 gives the jurisdiction to direct any reporting restrictions to the court hearing the proceedings and not to the High Court.  

As the judge pointed out, it was “infinitely preferable” for the High Court to defer to the Coroner who would have the benefit of a far greater understanding of the issues in the inquest and would be able to hear all interested parties, together with any representatives of the media who attended the inquest, before ruling on the application.

Belatedly it seems the Council recognised the limitation on the jurisdiction of the High Court under s.39 CYPA.  In oral submissions the Council changed its application to argue effectively for the exercise of the High Court’s inherent jurisdiction over children rather than any s.39 power.[8] 

This would have been the correct approach from the outset.  Indeed, in respect of protecting the identity of the living children the nature of the application that should be made and the principles that are to then be applied have already been set out clearly in an earlier decision of the then President of the Family Division in LM (Reporting restrictions: coroner’s inquest) [6] 

But this late change of tack only served to exacerbate the problems with this application. The only thing the media had been told was that this was a s.39 CYPA application and now it clearly was not. No notice at all had been given to anyone of an application under the High Court’s inherent jurisdiction.  

Moreover, the change of tack brought another difficulty — the High Court’s inherent jurisdiction in respect of children was normally to be exercised in the Family Division and not the Queen’s Bench Division where this application had been made.

Guidance is after all a helpful guide !

Given that the first Chief Coroner went to the trouble of providing very useful guidance on the media and reporting restrictions — including regarding to whom to make s.39 applications and their ambit, it is perplexing that it wasn’t followed here. 

Overall this appears to have been the wrong application following the wrong procedure and brought in the wrong court – perhaps luckily for the Council, because of the application having been brought (almost) ex parte, there was no-one present to apply for adverse costs.

Footnotes

[1] other than a criminal court

[2] The general rule is that applications should be made by serving a notice of application on the proposed respondents not less than 3 clear days before the hearing along with the evidence in support. See CPR part 23.

[3] See: Birmingham City Council v. Afsar [2019] EWHC 1560 (QB)

[4] although different considerations might arise where a respondent is an individual tweeter or blogger

[5] Practice Guidance: Interim Non-Disclosure Orders reported at [2012] 1 W.L.R. 1003

[6] [2007] Inquest Law Reports 221; [2007] EWHC 1902 Fam