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Home > Judgments > 2005 archive

KT, Re [2005] EWHC 3428 (Fam)

Application by an adult for an injunction, to prevent his identification being publicised, on the grounds that intrusion of the press would jeopardise his emotional and physical safety. Injunction granted.

FD03P02705

Neutral Citation Number: [2005] EWHC 3428 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 6th July 2004

BEFORE:

MRS JUSTICE BRACEWELL

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RE: KT

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Tape Transcript of Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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MISS C HEPPENSTALL appeared on behalf of the APPLICANT

MR M SIMON appeared on behalf of CAFCASS

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J U D G M E N T

(As Approved by the Court)

MRS JUSTICE BRACEWELL:

1. I give this judgment in private, but I give leave for it to be reported anonymised, and nothing must be reported which might lead to the identification of the person concerned, namely KT.

2. The applicant, KT, was born on December 23rd 1985, and is therefore 18 years of age and no longer a minor. He seeks an injunction contra mundum to prevent interference with his right to private and family life and/or breaches of his right to privacy and confidentiality.

3. On February 26th 2000 an injunction was granted by Singer J, restraining publication of information concerning KT under the court's inherent jurisdiction to protect children and minors. The order, therefore, did not extend beyond KT's 18th birthday last December.

4. An application was made before me on December 19th 2003 for a further order to protect the anonymity of KT beyond his minority. At that hearing CAFCASS legal were present and represented. I considered the judgment of the Court of Appeal in Cream Holdings Limited v. Banerjee [2003] 3WLR 999, and in particular, the test laid down by Simon Brown LJ, at paragraph 12, namely:

"The test is not that of the balance of probabilities but rather that of a real prospect of success, convincingly established."

5. I granted a temporary injunction which was renewed by Pauffley J on March 1st 2004, when the case was adjourned to allow KT to obtain a report from a consultant psychologist. The respondents have been served with this application, but are neither present nor represented. Notice of the application has been given to 71 newspaper agencies identified by CAFCASS legal. During this hearing CAFCASS legal have appeared before me as advocate of the court, and have adopted a neutral position in respect of the application. I am grateful for the assistance which they have given me.

6. The chronology is that KT, having been born in 1985, attended a school when he was aged 11 from which he was suspended in March 1998 by reason of an allegation that he had behaved inappropriately and sexually towards another pupil at the school. KT was arrested by the police and interviewed, but was subsequently informed that there would be no prosecution.

7. On May 11th 1999 the headmaster of the school decided to exclude KT permanently from the school, and in that month the headmaster requested a psychiatrist, Dr S, to prepare a report on KT. Dr S has never met KT nor any members of the family. KT is not and never was his patient, and further, the doctor did not interview any of the people involved in the allegation. Nevertheless, and very surprisingly, Dr S concluded that KT was responsible for a range of very serious sexual assaults on J and further, that it was probably that KT himself had been sexually abused.

8. The exclusion hearing was adjourned by the panel by reason of the deficits of evidence. When the hearing resumed, although the deficits had not been remedied, the governors of the school decided to exclude KT permanently on the basis that over a period of time he had carried out sexual assaults, including buggery, on pupil J. In that month, July 1999, the County Council decided not to reinstate KT. In that autumn there was an event of personal tragedy for KT when his step-father, to whom he was devoted, died after an illness.

9. In February 2000 Hooper J granted permission to KT to apply for judicial review, and granted an injunction under s.39 Children and Young Persons' Act 1933. However, despite that injunction the press, local to the area in which KT was living, wrote articles about the case, which although they did not specifically name KT and the school which he had attended, nevertheless gave sufficient detail for him easily to be identified within the local community. The results of that identification were catastrophic for KT. He was vilified, intimidated, bullied, verbally and physically attacked. He was head-butted which resulted in a broken nose, and he and his family had to move home twice in order to escape from this vilification which was identifying him as a paedophile.

10. In March 2000 the application was made for judicial review, which was heard in August 2000 by Hiddon J. He concluded that the decision to exclude KT was unfair, unlawful and procedurally improper. Orders were made for certiorari and for mandamus. It was plain from the judgment and from the accompanying documents that there was no proper foundation for any conclusions that KT had sexually abused another pupil. Hiddon J further ordered that the injunction granted by Singer J in February 2000 should continue.

11. In January 2001 the editors of the local newspapers were convicted of breaches of s.39, Children and Young Persons' Act 1933, but those convictions were quashed on appeal, because the order of Hooper J had not been sufficiently explicit nor sufficiently tightly drawn.

12. Currently, there are two sets of proceedings pending, which are yet to be heard. (1) KT's grandmother has made a complaint to the GMC alleging, on behalf of KT, professional misconduct by Dr S. (2) KT has made a claim for damages in the High Court against the respondents in this case, arising out of the judicial review. It is these two proceedings which have triggered the current application for anonymity by injunction.

13. The first question which arises for determination is whether this court has jurisdiction to make the order sought. The applicant and CAFCASS legal agree that I do have jurisdiction to give injunctory relief contra mundum, to prevent anticipatory breaches of the law of confidence, and/or of the law of privacy as presently delineated in statute and case precedent. In support of that I have been referred to various authorities. Re: X and Another v. O'Brien and Newsgroup Newspapers [2003] EWHC 1101. Thompson and Venables v. Newsgroup Newspapers Limited [2001] 1FLR 791. Douglas v. Hello Limited [2001] 2AER 289. Campbell v. Mirror Group Newspapers Limited [2003] 1AER 224. Brensade v. UK [2001] 33EHRR 10 and Van Hannover v. Germany European Court of Human Rights, number 59320/00. I am satisfied on the basis of these authorities, that I do have jurisdiction to make the order sought.

14. The second question for determination is whether the applicant has demonstrated sufficiently clearly the requirement for an injunction. The threshold is very high and the case must be exceptional, as demonstrated by the President in A Local Authority v. A Health Authority and Mrs A [2003] EWHC Family 2746 at paragraph 66. In considering whether to exercise jurisdiction the court has to take into account Article 8 and Article 10 Human Rights Act 1998. In the judgment of Lord Woolf, Chief Justice, in A v. B plc [2002] 3WLR 542, which was cited with approval in the case of Campbell he said:

"The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account."

15. In the case of Campbell at paragraph 141, Lady Hale said that the basic approach involves looking first at the comparative importance of the actual rights being claimed in the individual case, then at the justifications for interfering with or restricting each of those rights, applying the proportionality test to each. At paragraph 157 she said:

"The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. (I then leave out some irrelevant words) ...in this case there was, as the judge found, a risk that publication would do harm. The risk of harm is what matters at this stage, rather than proof that actual harm has occurred."

16. Lord Hope at paragraph 103 set out that neither Article 10 nor Article 8 had pre-eminence one over the other. The court must balance the competing convention rights against each other. At paragraph 113 he said:

"The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy."

Articles 8 and 10 are of equal value in a democratic society.

17. Lord Carswell at paragraph 167 said that to justify limiting the Article 10 right to freedom of expression the restriction imposed must be rational, fair and not arbitrary, and must impair the right no more than necessary.

18. The most recent decision of the European Court of Human Rights is Von Hannover, which at paragraph 57 emphasised the need for a fair balance to be struck between the competing interests of the individual and the community as a whole. It was recognised that the press play an essential role in a democratic society. At paragraph 58 the court said:

"Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest."

18. At paragraph 63 the court drew a clear and fundamental distinction between reporting facts, even controversial ones capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, and reporting details of the private life of an individual, who does not exercise official functions. The court emphasised at paragraph 76 that the decisive factor in balancing the considerations should lie in the contribution that the published photographs and articles make to a debate of general interest.

19. Applying the principles of Von Hannover, it appears to me that the case goes somewhat further than Campbell in protecting private life of a private individual, and is therefore helpful to the applicant in his argument.

20. I turn now to the facts which are relevant to the balancing exercise which I must undertake. (1) There was significant press interest at the time of KT's exclusion from school in 1999, and I find that there is likely to be considerable press reporting of the proceedings before the GMC and the civil claim for damages. In the current climate of debate about medical experts, and allegations of abuse of trust and unsubstantiated opinions, there is bound to be press coverage of disciplinary proceedings against Dr S, and the consequential claim for damages arising out of the judicial review. There is a public interest in that topic, but as both counsel for the applicant and for CAFCASS legal agreed, there is no public interest in the reporting now of the applicant's exclusion and his identification. (2) Although it is true that the press has never applied to discharge previous injunctions, or made representations in the current application, I am mindful of the warning of the President in X and Y v. Newsgroup Newspapers [2003] EWHC QB 1101 at paragraph 60, that any interference with the freedom of the press nevertheless has to be justified. (3) The history of the case demonstrates the severe level of intrusion suffered by KT and his family in 1999 and 2000, both before and after the injunction. There was a campaign against KT and his family which included obscene telephone calls, being accosted in the street, stones thrown at the windows of his house, neighbours shunning the family, bullying and physical attacks, and a general campaign against KT and his family forcing them, as I have already commented, to move house on two occasions. KT's education was interrupted by reason of this campaign and never recovered, and at times KT was suicidal and his mother was on antidepressants for a year. The events have also damaged the relationship between KT and his mother, and have isolated the family from a normal social life. Currently, the neighbours in the new area do not have knowledge of the history, but identification of KT would, I find, be likely to lead to considerable press intrusion, and consequential vilification from the public as has happened previously. There is, I find, a very significant risk of that happening. (4) The powers of the GMC to restrict press reporting of proceedings are limited by s.35(a)(5) Medical Act 1983 and Rule 48. In respect of the civil proceedings CPR Rule 39.2 would not afford protection of KT's identity. Although the High Court can convey a recommendation to the GMC panel to impose reporting restrictions, and can impose conditions on any documents disclosed to the GMC in respect of a trial, as was done in A Health Authority v. X [2001] EWCA 2014 and Re: A disclosure of medical records to the GMC [1998] 2FLR 641, that would not afford anonymity for KT. (5) Unlike Mary Bell, and Thompson and Venables, KT has not been convicted of any offence. (6) By reason of the history of this case I find that KT is a very vulnerable adult, and he and his family are so fearful of the press and consequential local reaction, that there is a serious risk that they would not pursue the complaint before the GMC and the claim for damages if KT's identity were not protected. (7) The factor which tilts the balance for me, and is in my judgment critical, is the latest report from the clinical psychologist. I accept that KT has been emotionally traumatised and continues to experience high levels of psychological distress, an underlying clinical depression, anger and irritability, as well as defensive avoidance symptomology.

21. I find, as did the clinical psychologist, that KT would find it extremely difficult to cope if he were identified and the allegations were made public, since his internal resources and coping mechanisms are extremely fragile due to his clinical depression, high levels of psychological distress and continued experiences of post-trauma reaction. The stresses of having to contend with unwanted press intrusion, I find, would undermine his emotional functioning, placing him at risk of self-harm and suicidal behaviour. The allegations in the past have had an extremely traumatic impact upon KT, and are continuing to do so.

22. The presentation of KT to the psychologist demonstrated that identification would have far-reaching implications on his emotional wellbeing. These are extremely serious matters for KT. The medical evidence is such that I am satisfied that the intrusion of the press would jeopardise his emotional and physical safety, and that his Article 8 rights would be violated. I find this an exceptional case. There is a significant risk of press intrusion, and the events of the previous years of 1999 and 2000, coupled with the vulnerability of this applicant tilt the balance for me in favour of granting injunctive relief in the terms sought, which are set out in the document attached to this judgment.