In R (on the application of A) v Lowestoft Magistrates Court ( EWHC 659 (Admin)) the Administrative Court refused to make an anonymity order in favour of a Labour Councillor and reaffirmed the importance of transparency and open justice.
The applicant had been arrested for being drunk while in supervision of a 2 ½ year old daughter, April 2012. Although not identified in the judgment, it is now clear that the applicant was Tess Gandy, a 35 year-old Labour Councillor and ex- barrister. She had been convicted of a similar offence 6 months earlier. When arrested at a supermarket her blood level was 4 times higher than the legal driving limit. Under the Licensing Act 1902, anybody found drunk in a public place while in charge of a child apparently aged less than seven ‘may be apprehended’. It is a summary offence with a maximum penalty of a month in jail. The Magistrates Court fined Ms Gandy £100 after an admission of guilt at a hearing in May last year, after which she applied for reporting restrictions on the case, through an order under Section 39 of the Children and Young Persons Act 1933. Such orders are intended to protect children from incurring damage through being exposed through the media, and the magistrates, for lack of evidence that the publication of Ms Gandy’s name would affect her child, refused to grant such an order. Ms Gandy application for judicial review of the Magistrates’ decision, was heard by the Administrative Court on 26 March 2013 by Pitchford LJ and Kenneth Parker J.
In giving the leading judgment, Kenneth Parker J noted that the legal adviser had correctly told the Magistrates “You do not need to consider the impact on the defendant for a section 39 order. You only need to consider the impact on the child, and she is only 2½ years of age.” The applicant had failed to provide any evidence relating as to how her daughter would be adversely affected by her name being published by the press. No case law had been presented before the court in support of Gandy’s application and no reference was made to any breach of her Human Rights.”
Kenneth Parker J identified three issues
1) For the purposes of section 39 of the Children and Young Persons Act 1933, was B a child “concerned” in the relevant criminal proceedings against A, on the footing that she was a child “in respect of whom” the relevant proceedings were taken?
2) If B was a child “concerned” in the proceedings, what were the relevant considerations that the magistrates had to take into account in deciding whether to make an order under section 39, and in deciding what precise restrictions, if any, should be imposed?
3) On the material before them and in the light of relevant considerations, did the magistrates in this case reach a decision, which was reasonably open to them, and/or did the magistrates in any event reach the correct decision?
On the first issue, Kenneth Parker J accepted that a broad view should be taken of section 39:
“It is plain that the legislature in enacting section 39 sought to capture, in wide language, at least the central participants in proceedings… and a narrow interpretation of section 39 would tend to defeat the main objective of protecting, where appropriate, the identity of a child or young person in that position…A broad interpretation of section 39 would now also be supported by article 8 of the European Convention of Human Rights (“ECHR”) and the jurisprudence emphasising the best interests of children as a primary consideration”
On the second issue Kenneth Parker J recognised that the application of Section 39 engages the competing principles of privacy of family life and the welfare of the child on one hand, and freedom of the press and ‘the requirements of open justice’ on the other. He cited Tugendhat J in A(A Child) v Cambridge University Hospital NHS Foundation Trust  EWHC 454 (QB)  where it is stated “by virtue of the Human Rights Act 1998, the court, as a public authority, must take account of these competing principles where they become engaged, as in the case of the application of section 39.”
However, Kenneth Parker J noted that
“this learning must, with respect, be read and understood in the context in which it is sought to be applied. It is clear that the interests of children do not automatically take precedence over the Convention rights of others…Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.”
He referred to JIH v News Group Newspapers Ltd  EWCA Civ 42, where the Court of Appeal again emphasised:
“Any order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.” .
He then went on to consider the balancing of Article 9 and Article 10 rights on the facts of the case, noting that,
“The criminal conviction itself, although it attracted a relatively low penalty, was far from trivial. To be drunk in public in charge of a small child of 2½ years of age raises very considerable concerns regarding the general welfare of the child, especially when a caution had been administered not long before for the same offence. The caution administered in private, and the real risk of public exposure on re-offending, had plainly failed to deter A, and this strongly suggested that there might be more serious underlying problems that needed to be addressed in the interests of B.”
As the applicant was an elected councillor and her conduct had twice fallen below the standard expected ‘of an elected official’ there was an “undeniable legitimate interest in the public learning, through media publication, of how [she]… had behaved.’
The arguments in favour of a section 39 order were “far fetched and not based upon any solid empirical foundation’. The applicant had argued due to the small size of their community there was a high risk of harm to her child because it is probable other parents would treat her unfairly in light of her mother’s misgivings. She also argued the child may come across this information in the future via media publications. The judge described these arguments as ‘highly speculative”. As a result, he concluded that “the balance of the relevant competing principles came down firmly in favour of Article 10 and open justice, given the immediate, direct and considerable extent of the interference with those rights in the case as explained earlier, and taking due account of the much weaker, remote and uncertain impact on B’s rights under Article 8 and on her best interests”. The application was dismissed.
In reviewing the proportionality of the magistrates decision the Administrative Court had no difficulty in concluding that the right balance had been struck. While it was true the child would be identifiable if Ms Gandy’s name, position or charge were published, the balance of the relevant competing principles came down firmly in favour of Article 10 and open justice. As the Judge commented ‘the public would simply not know what A, an elected official, had done’ .
It is noteworthy that the Archant Community Media Limited, the publishers of the Eastern Daily Press and the Lowestoft Journal, intervened to oppose the application for anonymity. Their position was entirely vindicated. Kenneth Parker J commented that they had a “powerful case indeed under Article 10 and the principle of open justice“.
The result of the case was that Ms Gandy resigned from as a Councillor. A Labour Party spokesman said: “We accepted Tess Gandy’s formal offer to resign as a Waveney District councillor as soon as she made it, believing it to be in her best interests and the best interests of her constituents.”
Oliver Stimpson is a law student at the City University, London