Open justice may prevail over the best interests of a child and the right to privacy and family

R (On the application of Stephen Fagan) v Secretary of State for Justice and Times Newspapers Ltd & Ors [2013] EWCA Civ 1275 (21 October 2013)


The UK Court of Appeal has held that potential breaches to the right to family and privacy are not necessarily sufficient to justify a derogation from the principle of open justice in the courts. Depending on the circumstances of the case, the principle of open justice may prevail even where it is against the best interests of a child.



Fagan was sentenced to 14 years imprisonment in 2006 for two offences of rape and one offence of administering a drug with intent to commit an indictable offence. The offences were particularly violent.

Judicial Review

In March 2012, Fagan requested to transfer his imprisonment from England, where the offences took place, to Scotland where his daughters lived (one of them was a minor, being 16 years old) so that his release on parole could take place there. The Secretary of State for Justice's (SSJ) refused the transfer in June 2012 and Fagan was released on parole in England in September 2012. Fagan claimed judicial review of the SSJ's decision.


On 14 February 2013, Fagan was granted permission to bring his Judicial Review claim and he applied for an order for anonymity in any reporting of the proceedings. This application was adjourned.

On 20 February 2013, the Airdrie and Coatbridge Advertiser (a newspaper in Fagan's hometown in Scotland) ran a sensationalist article about Fagan's attempts to be resettled in his home town. The article featured a prominent front page headline and photograph of Fagan.

On 18 March 2013, Fagan renewed his application for anonymity. His two daughters submitted witness statements outlining the considerable impact the publicity had made on their lives. The application was heard by Irwin J on 10 May 2013.

Irwin J found that the facts required a balance between:

  • Fagan and his daughters' right to respect for their private and home life under article 8 of the European Convention on Human Rights (ECHR); and
  • the public, press and other media's right to freedom expression under article 10 of the ECHR.

He noted that neither of these rights was absolute and neither had precedence over the other. He emphasised that open justice to the courts is a fundamental and general principle. Derogation from that general principle can only be justified in exceptional circumstances.

Irwin J acknowledged that disallowing the application would permit a publicity campaign in Fagan's hometown to prevent him from resettling there. However, the Court found this to be a natural consequence of his offending. Irwin J found that even if he was to allow the reporting restrictions, there would be immediate and accurate speculation that the proceedings were about Fagan and the undesirable consequences of publicity were likely to develop in any event. Irwin J concluded that 'the imperative of open justice should prevail.'

Fagan appealed to the Court of Appeal in July 2013. In the meantime, Fagan was recalled to prison due to an incident where he threatened to harm hospital staff. Whilst still in prison, on 26 September 2013, the SSJ approved Fagan's application for transfer to a Scottish prison. Fagan continued with judicial review of the initial proceedings.


The Court of Appeal dismissed Fagan's appeal against Irwin J's decision to disallow his anonymity application.

Fagan argued that there should be a derogation from the principle of open justice because there was a danger that the media campaign would undermine the lawful progress of a prisoner towards rehabilitation and eventual release. Fagan also argued that the judge had erred because Fagan's daughter was a minor and her best interest must be a paramount consideration. The best interests of the daughter clearly favoured reporting restrictions and there were no countervailing reasons of considerable force to displace that conclusion.

Lord Justice Aiken found that there was nothing in the position of Fagan himself which could justify any derogation from the general principle of open justice noting that he had been convicted of very serious crimes. The details of his conviction and sentence were public knowledge. Lord Justice Aiken noted that many defendants convicted of serious crimes also have partners and children. Therefore something particular has to be found in the circumstances of the case to justify a derogation from the general principle.

Lord Justice Aiken found that as Fagan's daughters had already been identified in press reports, any reporting restrictions would not stop speculation about whether, where and when Fagan would be released into the community so their Article 8 rights will be affected regardless of whether an order is made.

Ultimately, the Court of Appeal dismissed the appeal on the basis that Irwin J took account of all relevant factors and came to a reasonable conclusion.


This case demonstrates that the principle of open justice may overcome an offender's (and an offender's family's) Article 8 rights to family and private life, unless there is something exceptional in the circumstances of the case to justify derogating from that general principle. Each case will turn on its facts. The judgment suggests that there needs to be a severe curtailment of family life and private life or a child's best interests to justify a derogation.

Similarly in Australia, it is a fundamental principle that justice be administered in open court. At common law the public may only be excluded in exceptional cases where their presence would frustrate the administration of justice. Section 24(3) of the Charter of Human Rights & Responsibilities Act 2006 (Vic) provides that all judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits. This appears to exclude the possibility of arguing that publishing the offenders details breaches the right to privacy and family. However, if a similar case was brought in Victoria the applicant could possibly argue that the best interests of the minor child requires anonymity as reporting may be against the child's best interests.

The decision can be found at:

Jessica Courtney is a Graduate at DLA Piper.