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21.03.19

Actress Tina Malone receives suspended sentence after breaching Venables/Thompson injunction

Actress, Tina Malone, has received an eight-month suspended prison sentence for purporting to publish a photograph and information relating to the new identity of Jon Venables – one of James Bulgar’s killers.

Background

In 1993 Jon Venables and Robert Thompson, at the time aged 10, were convicted of murdering two-year-old James Bulgar.  It was a crime that shocked the nation.

In 2001, upon Venables and Thompson reaching adulthood, Dame Elizabeth Butler-Sloss granted an injunction prohibiting the publication or solicitation of any information purporting to relate to their identity (they had been given new identities) or location (Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32).  The injunction was granted on the basis (1) that there was a real possibility that Venables and Thompson would be in danger of revenge attacks and (2) The court was under a positive duty to protect individuals that would be subject to criminal acts of others (Osman v United Kingdom (23452/94) [1998] ECHR 101).  Dame Elizabeth, considered Article 10 of the European Convention on Human Rights (ECHR) - the right to freedom of expression - and the restrictions on that right contained within Article 10(2):-

“the law of confidence could, exceptionally, extend to cover information as to the identity or whereabouts of individuals where its disclosure would put them at risk of serious injury or death, and in such circumstances the need for restrictions on the freedom of the media would fall within the exceptions in article 10(2)…”

Over the years, the injunction has been reviewed by the Court on several occasions, notably when Jon Venables was convicted of possessing child pornography, and most recently on 4 March 2019 by the President of the Family Division (Venables & Anor v News Group Papers Ltd & Ors [2019] EWHC 494 (Fam)).  The injunction has also been the subject of a number contempt of court proceedings where attempts have been made to identify Venables or Thomson, most recently on 31 January 2019 in Venables & Anor v News Group Newspapers Ltd & Ors [2019] EWHC 241 (QB)) against Richard McKeag and Natalie Barker.

Facts

In February 2018, Tina Malone purported to publish images and text on social media concerning Jon Venables and his new identity.  Contempt proceedings were issued by the Attorney-General.

The hearing

The matter was heard in a Divisional Court consisting of the Lord Chief Justice, Lord Burnett of Maldon and Mr Justice Warby (who had heard the McKeag/Barker contempt hearing).

Ms Malone admitted publishing material that was in breach of the injunction whilst being aware of the anonymity order prohibiting this.  Her barrister Adam Speker said she had been suffering mental health problems at the time she shared the post and was caring for her five-year-old daughter and elderly mother.

Ms Malone was sentenced to eight months’ imprisonment, suspended for two years.  She was also ordered to pay £10,000 towards the Attorney-General’s costs.

The Court’s reasons were explained in an ex tempore judgment of the Lord Chief Justice (the Court has confirmed that this transcript will be published shortly - a requirement for all contempt judgments).  In summary, the Court was satisfied that the threshold for a custodial sentence was met, but due to Ms Malone's good character and the existence of strong mitigating factors it was appropriate to suspend the sentence.  The Court noted that Ms Malone had been personally involved with the James Bulgar Trust alongside other charitable causes, had ran drama groups for vulnerable people, displayed remorse for the distress her actions caused; and admitted the breach (which qualified for a reduction in sentence).

Solicitor General, Robert Buckland QC made a statement after the hearing, warning of the serious repercussions of posting prohibited content online:-

“The injunction in this case is intended to both protect the identities of the offenders, but also innocent individuals who may be incorrectly identified as them. Posting this material online is a very serious matter and can result in a prison sentence. I would urge everyone to think carefully about whether their social media posts could breach the order or amount to any other type of contempt of court.”

Comment

A quarter of a century after James Bulgar’s death, the sense of public outrage is still very raw.  Over the years the Court has been presented with compelling evidence that if Venables and Thompson were identified that there would be a credible and serious threat to their lives.

The Lord Chief Justice explained the rationale behind the injunction succinctly in the McKeag/Barker judgment:-

“[8]…Those guilty of heinous crimes do not forfeit their civil rights. It is many centuries since the concept of being an outlaw, literally forfeiting the protection of the law, passed into history in this country. The punishment of offenders is the task of the courts, not of vigilantes. So when those who are known to have committed serious crimes are themselves attacked or threatened with death or serious violence, they may seek the protection of the courts. There was a wealth of evidence discussed in the judgment of Dame Elizabeth which demonstrated that Venables and Thompson were vulnerable to attack and death if their new identities and whereabouts were disclosed…"

Moreover, individuals wrongly identified have been placed in danger, including one individual who had to endure five years of threats and had to move home.

Whilst at the first blush, the decision may seem controversial, the Court is doing little more than giving effect to Article 2 of the ECHR - the right to life.

In order for injunctions to be effective and achieve their purpose they must be enforced when breached.  The Court is placed in the difficult position of needing to upholding the rule of law, whilst at the same time taking account of the circumstances of the breach and the defendant.  Here the 'crime' is seeking to expose someone who has committed a terrible crime.  Fortunately, cases like this are very rare.

Ms Malone was able to avoid an immediate custodial sentence thanks to her extensive mitigation.  Nevertheless, the Solicitor-General and the Court’s message cannot be clearer: there are serious real life consequences of breaching injunctions on social media.

 

Click here to contact Brett Wilson LLP if you require representation in respect of contempt of court or injunction proceedings


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