Just a week after Naomi Campbell’s successful appeal to the House of Lords, the courts’ interpretation of the law of confidence and the Human Rights Act has again hampered the freedom of the press.
In response to an application by Maxine Carr’s solicitors media judge, Mr Justice Eady, granted a wide-reaching order that banned publication of Miss Carr’s new name, address, or details which might lead to her ‘whereabouts, care or treatment’ being revealed. It also banned photographs being published and prevented newspapers from soliciting information about Miss Carr’s new identity.
The arguments in favour of an injunction sounded highly persuasive. The application relied heavily on substantial evidence of the physical threats to Miss Carr’s life.
The injunction, granted in private, was later served on newspapers, including News Group Newspapers and Mirror Group Newspapers.
The Sun and Mirror challenged the injunction, claiming that it was too broad. They claimed that there was a strong and proper public interest in knowing the identity of criminals and that the injunction meant that they would not be allowed to monitor Miss Carr. They also expressed concern that the order might open the floodgates to other offenders seeking the courts’ protection. The newspapers argued further that Ms Carr’s crimes (of conspiring to pervert the course of justice, and also fraud, her conviction for which will run in parallel with the conditions of her licence for the Soham offence) were not serious enough to justify the injunction. They also argued that they should have been contacted before the injunction was granted.
Maxine Carr’s lawyers successfully argued that the urgency of the situation had justified the grant of an emergency injunction, without giving prior notice to the media.
They also disclosed that Miss Carr had been suffering from psychiatric disorders, including anorexia and panic attacks prior to release, and drew parallels with the recent House of Lords’ judgment in the Naomi Campbell case. Just as the House of Lords ruled that photographs of Naomi Campbell visiting a Narcotics Anonymous meeting risked causing a significant set-back to her recovery from drug addiction, media scrutiny also risked harming the rehabilitation of Maxine Carr.
Although anonymity orders are rare, they are not without precedent. Indeed, Maxine Carr’s barrister, Edward Fitzgerald QC, had previously won orders protecting Mary Bell, who murdered two boys while she was a school girl, and Robert Thompson and Jon Venables, the school boy killers of Jamie Bulger.
When the court granted anonymity orders for Robert Thompson and Jon Venables, it was persuaded by considerable evidence of a serious risk of injury or death faced by the applicants. In the case of Mary Bell the court held that there was no cogent threat to her life and that the risk of harm to her did not reach the standard required to come within article 2 of the European Convention on Human Rights; the right to life. In that case, it was the threat to Mrs Bell’s rehabilitation that weighed in her favour.
In the case of Maxine Carr, both risks to life and her rehabilitation trumped the freedom of expression. The case is significant though because it is the first of its type to be granted in favour of an adult at the time of the crimes. This raises the possibility of other released offenders being offered similar protection in the future.
The order granted by Mr Justice Eady is due to be reviewed at a more lengthy hearing after 8 June. In the event that it remains in force, the value of the order may depend on the willingness of the Attorney General to back up any breach with proceedings for contempt of court.
Although the order applies to the whole world, enforcing the injunction could prove impossible.
James Damon is a solicitor in the Media and Entertainment Group at Charles Russell Solicitors