The local authority which obtained an injunction blocking a BBC Newsnight broadcast about two young boys involved in a horrific assault was today strongly criticised by a judge for ignoring the proper procedures.
“Lamentable omissions” by Doncaster Metropolitan Borough Council led to the expenditure of substantial but unnecessary costs and the issue of an interim injunction which should not have been made, Mr Justice Tugendhat said in a decision handed down today.
The case was over an injunction the council obtained banning the BBC and anyone else from publishing any information obtained from a Serious Case Review into the circumstances leading up to an incident in which two boys, aged 10 and 11, sadistically attacked two other youngsters in Edlington, South Yorkshire. The boys, who have admitted a number of offences, are due to be sentenced by Mr Justice Keith today.
On Monday, after the order was lifted by Mr Justice Tugendhat, the BBC reported that the executive summary of the SCR – the only part of the review the council intended to publish – did not contain a number of important matters covered in the Review document itself.
Mr Justice Tugendhat said in his decision refusing to renew the order: “In my judgment there is no evidence before the court that there is or has been a threat by the BBC to publish confidential or private information. On that ground the application must fail.
“There may well be confidential information in the SCR, but if there is, the fact that the BBC has had access to it is not a sufficient basis for granting an injunction against the BBC. There must be evidence of a threat to publish confidential information.”
The council, he said, had failed to give the BBC any notice of the application – even though it was in contact with the corporation and knew that it had interviewed Roger Thompson, independent chair of the Local Safeguarding Children Board, and knew that the corporation had access to the SCR.
“In this case there have been lamentable omissions by Doncaster to follow the procedure set out in the Civil Procedure Rules governing the application for an interim injunction,” the judge said.
“I have not refused to grant the order because there have been technical failures. I have refused the order on the merits of the application.
“But if the proper procedures had been followed, it would have been apparent, before any application was made to the Judge, that no injunction was required against the BBC in this case at all.
“The failure to follow the correct procedures means that substantial costs have been incurred which need not have been incurred.
“In any case, the rules are not just technicalities. They are essential measures for preventing unfairness and injustice to a defendant. A defendant has a right to be heard, and to know the case being advanced against him.”
The judge said the procedure to be followed in any application for an interim order was detailed in Rule 25.3 of the Civil procedure Rules and the accompanying Practice Direction.
There were also requirements in section 12 of the Human Rights Act 1998 which had to be met in cases of orders which might affect freedom of expression.
Applicants were required to notify the respondent of an intended application, and if that was not done, the judge should be told why.
“In this case notice was not given. Nor were any reasons given in the Outline why notice had not been given,” Mr Justice Tugendhat said.
There was “no reason that could have been given for the failure to give notice to the BBC”, he said, adding: “Nor was there any evidence that the application was so urgent that it could not have been dealt with in court the next day.
“There is no evidence that the BBC were intending to publish anything on Thursday night, or before the usual Newsnight late on the Friday evening.”
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