It has been quite a while since we have written about a judgment by the Court of Appeal in relation to a reporting restriction, but the recent case concerning Babita Rai provides a useful recap of the relevant principles, and an insight into the competing principles of open justice versus the right to privacy.

S.11 of the Contempt of Court Act 1981 allows an order to be made which withholds a name or other matter from being disclosed in open court, and prevents the specific matter from being reported by publishers. A s.11 order can be made “where the nature or circumstances of the proceedings are such that hearing all evidence in open court would frustrate or render impractical the administration of justice”, according to the Judicial College’s guide to reporting restrictions in the Criminal Courts.

The case which has prompted this article is one which is dreadfully sad, concerning the death of a newborn baby. Last month Babita Rai was found guilty of infanticide and is to be sentenced at a later date.

During Rai’s first appearance at Magistrates’ Court in 2020, an order under s.11 which prevented the defendant’s name or address being published was put in place. In a subsequent hearing at Crown Court, having heard arguments from the prosecution, defence, and the media, the Judge varied the s.11 order to allow Rai to be named, but continued to prevent the publication of her address.

The ban on disclosing Rai’s home address was maintained on the basis that it was necessary to “avoid a substantial risk of prejudice to the administration of justice in the proceedings, namely that reports of the address of the defendant will prejudice a fair trial of proceedings and risk the safety of the defendant’s family.”

A subsequent application was made by PA Media to discharge the remaining part of the s.11 order, and this application was granted. The Recorder who granted the application accepted the arguments presented on behalf of the media, which were that: firstly, there was no jurisdiction to make the s.11 order as the defendant’s address had not been withheld from the Magistrates’ Court when Rai first appeared and therefore there was no power to grant the reporting restriction; and, secondly, that even if that were not the case, the Court should not make an order which derogates from the principle of open justice when it was neither necessary or justified.

However, the defendant made an application for a Judicial Review of the decision to discharge the s.11 order, which resulted in the proceedings in the High Court and subsequently the Court of Appeal.

The High Court found that there was no conclusive evidence as to whether the defendant’s address was withheld in the Magistrates’ Court, or not, but that it did not matter because the Court agreed with the decision of the Recorder in discharging the s.11 order in any event. The Court of Appeal also agreed.

One of Rai’s key contentions in arguing for the s.11 order to remain in place was that her Article 8 right to privacy was engaged, and therefore the address should be withheld.

In confirming that the correct approach had been taken by the lower courts the Court of Appeal’s judgment said:

“The Judge began with the principle of open justice as reflected in the Judicial College Guidance; he treated the disclosure of a defendant’s address as an integral part of the court process which engaged that principle; he evaluated the significance of a defendant’s address generally, and in this case, for the criminal process and for the purposes of reporting; he asked himself whether the appellant had demonstrated a sufficient countervailing case; when answering that question, he recognised that the appellant’s rights under Article 8 were engaged; having considered the evidence, he concluded that the appellant had not shown that those rights were weighty enough to tip the balance.”

This is a very useful summary of the judicial thought process in considering whether a reporting restriction should remain in force, or whether it should be imposed in the first place. It is also relevant to other discretionary reporting restrictions, as well as a S.11 order.

The following passage is also of particular relevance and provides a useful summary, from an appellate court, as to the privacy rights of those who are defendants in criminal court cases:

“I would accept the general proposition that an individual who becomes the defendant to a criminal charge retains privacy rights; but those rights are necessarily curtailed to a considerable degree when the matter comes before a court in public. As the authorities show, the disclosure and reporting of private information deployed in open court does not require item-by-item justification. The starting point is that everything may be reported. The court’s procedural duties provide a safeguard against the introduction of personal information of no relevance. Beyond that, the onus of justifying a restriction lies on the person who seeks it.”

I have no doubt that we will see passages from the above quoted extensively by the media when making representations as to why reporting restriction orders should not be imposed, or should be discharged.

As an aside, a point which is made on several occasions in both the High Court and Court of Appeal judgments is that the Judicial College guide for “Reporting Restrictions in the Criminal Courts” (April 2015) is correct in its summary of the approach that should be taken when considering derogations from the principle of open justice, so its status as an essential part of a court reporter’s tool kit has been cemented further.