The tension between the competing rights under Article 8 and Article 10 of the European Convention for Protection of Human Rights and Fundamental Freedoms is often at its sharpest on an application for an injunction. Section 12(2) of the Human Rights Act 1998 (“the Act”) was introduced to safeguard the media when a court considers granting an injunction that might affect the exercising of the right to freedom of expression.
S12(2) states that if a respondent is neither present nor represented then no injunction should be granted unless the court is satisfied: (1) “that the applicant has taken all practical steps to notify the respondent; or (2) “that there are compelling reasons why the respondent should not be notified”.
The then Home Secretary, Jack Straw, made it clear when introducing the clause that the intention was to “virtually rule out” pre-publication injunctions without notice being given. Notwithstanding Parliament’s intention and the unambiguous wording of s12(2), there has been a widespread failure to adhere to s12(2). The need for notice is underlined by the fact that injunctions are invariably endorsed with a penal notice, thereby making a breach a contempt of court.
One recent example arose following the jury’s decisions in the Soham murder trial. Without notice most national papers and broadcasters were served with an order preventing them from naming or otherwise identifying a five-year-old girl as being the daughter of Ian Huntley.
What steps had been taken to give notice of the application? None.
Applicants often claim the reason for not giving notice is a lack of time.
This is unacceptable. All national and regional newspapers and broadcasters are easily contactable. They also have in-house legal advisors and/or ready access to external legal advice.
If all practicable steps have not been taken, are there compelling reasons why notice should not be given? There is no judicial guidance on what amounts to a compelling reason. However, Straw’s explanation to the House of Commons suggested an example might be where issues of national security might arise where the mere knowledge that an injunction was being sought might cause the respondent to publish the material immediately. He added: “We do not anticipate that that limb would be used often. In the past, such applications have been rareâ€¦” This suggests a test with a high threshold.
While the court in the Soham case appears to have been aware of s12(2), the applicant appears not to have been required to show that all practical steps had been taken to notify the media nor to explain why there was a compelling reason excusing the need to give notice.
Editors and news desks will be familiar with injunctions carrying penal notices being served where applicants have failed to comply with s12(2). It is frequently the case that not giving notice results in the court being misled, unintentionally or inadvertently, and in orders that are too wide. (In the Soham case the subsequent order allowed publication of the young girl’s name.) Editors and news desks should not be shy in requiring applicants to explain how they have complied with s12(2) when no notice has been given. The evidence relied upon and a note of the hearing and judgment should also be sought.
In the long term, there appears to be a need to ensure courts and applicants’ lawyers know of the existence and effect of s12(2). The media would also greatly benefit from a system that allows for all reporting restriction orders to be accessed. If the same website carried contact details for media organisations, it would remove the excuse of applicants that they were unable to contact or identify the relevant media organisation(s).
Julian Pike is a partner in the media group at Farrer & Co
by Julian Pike