Case Law: Venables v News Group Papers, Application to Vary Confidentiality Injunction Dismissed, PJS extended – Samuel Rowe

13 03 2019

On 4 March 2019, the decision in Venables & Anor v News Group Papers Ltd & Ors ([2019] EWHC 494 (Fam)) was handed down.  The case concerned an application to vary a confidentiality injunction which had been ordered in 2001, restricting identification of Jon Venables.

Sir Andrew McFarlane, President of the Family Division, dismissed the application on the basis that the Applicants had failed to establish a factual basis for their case.  He also indicated that, notwithstanding the lack of factual basis, Venables’s Article 2 and Article 3 ECHR rights outweighed the Applicants’ Article 8 and Article 10 ECHR rights.

Background

In February 1993, James Bulger, aged 2, was abducted, tortured and murdered by Venables and Robert Thompson, both aged 10.  As made clear by McFarlane P, “It was a crime that, at the time, profoundly shocked the nation and now, all these years later, will still be remembered in detail by many” (at [1]).

The pair were given life sentences with the possibility that they could be recalled to custody at any stage during the remainder of their lives.  At the time, injunctions were granted to restrict publication regarding their circumstances until adulthood.  Aged 18, in August 2000, both Venables and Thompson applied to have that anonymity injunction extended to provide protection into their adult lives.

2001 injunction

Dame Elizabeth Butler-Sloss, then President of the Family Division, considered those applications in Venables v News Group Newspapers Ltd [2001] Fam 430.  In granting the applications, Butler-Sloss P made a wide-ranging order, for an unlimited time, contra mundum.  That 2001 order prohibited the publication of any depiction or description of them.  It also prohibited any publication of any information likely to lead to revealing the identity of Venables or Thompson, or any information which was likely to identify their whereabouts in the past, present or future.

Butler-Sloss P held that the case fell within the developing domestic law of confidence.  She concluded that if the order was not made, the pair would be pursued by those intent on revenge.  This was sufficient to engage their rights under European Convention on Human Rights (“ECHR”): Article 2 (right to life) and Article 3 (prohibition of torture). Consequently, there was a strong and pressing social need for their confidentiality to be protected.

2010 application to amend the injunction

Venables was released on licence in February 2010.  However, that same month he was recalled and charged after child pornography was found on his computer.  The subsequent proceedings were conducted under the new identity that had been adopted by Venables on the justification that it would avoid potential prejudice.  After he pleaded guilty to the offences, Bean J concluded that it was in the public interest for the original identity of the defendant to be known.

At the conclusion of the criminal process, Bean J was invited to review the 2001 injunction.  Bean J held ([2010] EWHC B18 (QB)) that the 2001 injunction should continue, other than to permit the publication that Venables had been recalled to custody in Cheshire.   On the evidence before him, he found that the threat towards Venables from members of the public had not diminished.  Therefore, Venables’s rights under Articles 2 and 3 ECHR were still engaged, or, alternatively, the State owed a “domestic law” duty to protect defendants and prisoners from violence and retribution (at [25]).

Present application to amend the injunction

Venables was again released on licence in June 2013.  However, he was recalled to custody in November 2017 after it was found that he had again accumulated a large amount of child pornography.  He was returned to custody, where he remains.

In January 2018, James Bulger’s father and uncle applied to vary or discharge the 2001 injunction on several grounds, including protection of the public and the balance to be struck between the ECHR rights of Venables and the Article 10 ECHR rights of the Bulger family.  They also asserted that material regarding Venables’s present identity was readily available on the Internet and therefore “common knowledge”.  The case was brought before Sir Andrew McFarlane, President of the Family Division.

The Attorney-General appeared at the invitation of the court and made submissions in support of the contention that it was in the public interest for the injunction to remain in place.

Judgment

McFarlane P dismissed the application to vary the injunction, save for some minor amendments which had been agreed by the parties.

McFarlane P summarised the relevant human rights principles at [36]:

A balance must be struck between the competing rights of the applicants and the wider public, which are in favour of openness and transparency, against those of JV. If JV’s rights under Article 2 and/or Article 3 of the ECHR are at risk of being breached, that factor is not a trump card and it remains necessary for the court to strike a balance as against the Article 10 rights of the Applicants and others.

Having reviewed the evidence, McFarlane P held that Venables’s identity was not publicly available on the Internet and therefore the Applicants had failed to establish the factual basis upon which they relied (at [56] to [57]).  Importantly, he noted that the court did not know whether any of the material on the Internet related to Venables, as the government had neither confirmed or denied the accuracy of any assertion related to Venables’s identity.

However, because of the ambiguity concerning the evidence which had been adduced, McFarlane P went on to consider what his decision would have been had Venables’s identity been ‘common knowledge’.  McFarlane P noted that the there had been no reduction in the individual’s notoriety or the strong feelings of anger and hatred towards him.  As Butler-Sloss P had held, he was “uniquely notorious” and there were would be “grave and possibly fatal consequences” to revealing his identity (at [66]).  Therefore, the injunction would have continued notwithstanding substantial leakage.

Comment

The outcome of Venables is unsurprising.  No material case for varying the injunction was made out, as the court could see no evidence of openly available, or clearly relevant, identity information.  Perhaps more fundamentally, although the wider public may be protected from Venables because of his placement in custody, if his identity and whereabouts were revealed, he would not necessarily remain protected from the wider public.

Interestingly, McFarlane P’s judgment drew attention to the use of social media as a relevant factor in evaluating the risk of future harm (at [64]).  However, given the notedly exceptional nature of the case, it is questionable whether this part of the judgment will be applied in subsequent cases.

Finally, Venables will provide additional comfort for claimants attempting to enforce a confidentiality injunction despite confidential material entering the public realm.  McFarlane P cited the majority decision of the Supreme Court in PJS v News Group Newspapers Limited ([2016] AC 1081) to demonstrate how the importance of other rights flowing from ECHR can lead to a confidentiality injunction being maintained notwithstanding apparent widespread knowledge of sensitive material (at [59]).  In PJS, Article 8 ECHR was the important right.  With Venables, we find that rationale being extended to Articles 2 and 3 ECHR.

Samuel Rowe is a student at the University of Oxford.


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