England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS MARTIAL APPEAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2008

Lord Justice Latham :

1. These are appeals by the media, and by one of the defendant soldiers, from an order made on the 4^th February 2008 by His Honour Judge Blackett, Judge Advocate General (the JAG) pursuant to s. 11 of the Contempt of Court Act 1981 and s. 94 (2) of the Army Act 1955. The order related to proceedings brought against 6 soldiers charged with a conspiracy to defraud involving a sum in total of about £3,000. In essence the judge ordered that the proceedings should be held in camera in their entirety, and that no reports of the proceedings should be published save for the fact the six soldiers were so charged.
2. The appellants appeal under s. 103 (2) (nn) of the Army Act 1955 and paragraph 90 (1) (2) of the Courts Martial (Army) Rules 2007. At the hearing of the application for leave to appeal on the 17^th March 2008, this court ordered that in the absence of any rules of procedure in this court, the procedure under s. 159 of the Criminal Justice Act 1988 was to be adopted. As far as procedure was concerned, the court ultimately ordered that there should be argument in open court as to the principles to be followed when the court is considering making any orders affecting public access to or reporting of criminal proceedings. The court would then sit in camera to consider any material put before it which could justify any such orders. And finally there was to be an open hearing at which the court would have the opportunity to indicate its views on the material it had heard in camera, before any further argument. This is accordingly the procedure we adopted. We gave our decision on the 7^th August 2008. We allowed the appeals, but ordered that the names of five of the six soldiers should be anonymised, and made consequential orders to secure the effectiveness of the main order. These are our reasons.
3. The order made the JAG was made after he had adopted a somewhat similar procedure. The judgment he gave was in the following terms:

"Clearly as we all agree the fundamental principle is that unless the circumstances are highly exceptional justice must be administered in public. And this fundamental principle is subject to a number of recognised exceptions under common law. If there are to be any restrictions they must be the minimum necessary, and the burden is on those seeking the order to show that there is a substantial risk of prejudice to national security and to the administration of justice without an in camera hearing. A court cannot sit in private purely because it believes that to sit in public would be prejudicial to national security. However, if the fact of national safety appears to endanger the true administration of justice, for example by deterring the crown from prosecuting cases where it should do so, the court may sit in private. Those are all quotations from the jurisprudence which has been placed before me.

But we have also discussed s. 94 (2) of The Army Act 1955. But I have found no case where this has been tested in the Court of Appeal, and no authority has been brought to my attention. However, I agree with Mr Hudson that this section must be construed in a way which is compatible with the European Convention on Human Rights, and a judge should only exercise his discretion to exclude the public were absolutely necessary for the interests of national security. This construction means that the hurdle over which an applicant must jump before this fundamental principle of open justice is affected is a very high one. So there must be material made known to the court upon which it can reasonably, or which the court can reasonably reach its conclusions. Now I have examined a bundle of evidence produced by the Crown, and the defence relating to the defendants, their former and current activities, their fears for the integrity of future operations involving them, and their colleagues, and their fears for the physical safety of themselves and their families. I also heard evidence that these subjective fears could be objectively justified. This evidence also includes assertions about the way the defence is to be conducted by reference to dates, locations and other colleagues. Having all that evidence I am satisfied that there would be a substantial risk of prejudice to national security, both in terms of safety of individuals, and the adverse effect it would have on operational effectiveness and therefore providing a n advantage to potential enemies. And I am also satisfied there would be a substantial risk of prejudice to the administration of justice because the defence would not be able to pursue certain lines of questions and enquiries, and therefore the defendant may not receive a fair hearing. And I have listened to what Mr Hudson has said about the way that that can be addressed, but given the evidence that I have heard I do not think that that is a practical suggestion. Therefore in the exercise of my discretion under s. 94 (2) of The Army Act 1955, and in line with common law exceptions to the fundamental principle of open justice, I am going to order that all proceedings in this case will be in camera".

4. Mr Millar on behalf of the media, supported by Mr McKenzie on behalf of Staff Sergeant McKay, submits that this order was wrong in principle, could not be justified on the material before the JAG and is in any event far more restrictive than is necessary on any proper evaluation of the authorities and the evidence. The basic principle is set out in the speeches in the House of Lords in Scott v Scott [1913] AC 417, namely that justice requires proceedings in court to be held in public, with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted. An example given by Earl Loreburn was where parties might reasonably be deterred from seeking justice. It is therefore only where it is strictly necessary for the attainment of justice that the court can hear proceedings in camera.
5. In Attorney-General v Leveller [1979] AC 440, Lord Diplock stated at page 450:

"… since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from the statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice."

6. Lord Scarman said this, which is particularly relevant in the present context at page 471:

"… the basis of the modern law is as Viscount Haldane declared it was in Scott v Scott. It follows: (1) that, in the absence of express statutory provision (e.g. s.8 (4) of the Act of 1920), a court cannot sit in private merely because it believes that to sit in public would be prejudicial to national safety, (2) that, if the fact of national safety appears to endanger the true administration of justice, e.g. by deterring the crown from prosecuting in cases where it should do so, a court may sit in private, (3) that there must be material (not necessarily formally adduced evidence) made known to the court upon which it can reasonably reach its conclusion."

7. There is, in fact, no dispute about these principles. And it is now clear from the submissions of the Army Prosecuting Authority, from counsel acting on behalf of all the defendants apart from Staff Sergeant McKay and from the Secretary of State for Defence, who has been given leave to intervene, that they accept that the order made by the JAG was wider than was necessary in the interests of justice. They also accept that it was not justified by s. 94 of The Army Act, which provides as follows:

"(1) Subject to the provisions of this section, a court-martial shall sit in open court and in the presence of the accused.

(2) Nothing in the last foregoing sub-section shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interests of the administration of justice to do so; and without prejudice to that power a court-martial may order that, subject to any exemptions the court may specify, the public should be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy."

8. The Army Prosecuting Authority has, in its submissions, put forward a modified form of order which would, it was said, have been effective in ensuring that the public would only be excluded where matters engaging national security were truly in issue in the evidence or the argument. On that basis they do not oppose the appeal, which, accordingly, is allowed.
9. The position, however, is now very different from the position at the time of the original order. At that time the JAG was concerned about controlling a trial in which a substantial body of evidence both for the prosecution and for the defence would be led. The Army Prosecuting Authority has now informed this court that, for reasons which do not concern us, it has decided to offer no evidence when the matter comes back to the court-martial. The question therefore is what orders, if any, should this court make in place of the order made by the JAG in the light of the new situation.
10. Mr Millar submits that, having allowed the appeals, we should revisit the previous hearings and make such orders as are appropriate enabling the material placed before the court at those hearings to be made publicly available, at least to the extent that we consider appropriate. He further submits that we should consider whether or not there is any further justification in maintaining the anonymity of the six soldiers, particularly bearing in mind the fact that, as Mr McKenzie confirmed, Staff Sergeant McKay did not want anonymity. He has, in fact, recently been acquitted at a court-martial trial in which he was named.
11. As to the first, we consider that the application is misconceived. The press is entitled to report whatever has transpired in open court. In so far as the hearings were in camera, there was therefore nothing that the press was entitled to publish. The parts of the hearings which were in camera were those where the court was considering evidence and argument as to the extent to which evidence or other material should be made public. It was clearly in the interest of justice that those hearings should be in camera. We cannot turn the clock back. In any event, having considered the material in question, it is quite clear that none of it should be in the public domain.
12. That leaves the question of anonymity. That has been the essential subject matter of the proceedings before us. It is clearly an important aspect of open justice that defendants' names should be made public. This has recently been underlined by the House of Lords in In re S (A Child) Identification: Restrictions on Public Publication [2005] 1 AC 593 and by this court in In re Trinity Mirror plc [2008] 3 WLR 51. But there is no doubt that a court may, in appropriate circumstances, order that the identity of a defendant can be protected from publicity by withholding his or her name. This is recognised by s. 11 of the Contempt of Court Act 1981, which provides:

"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purposed for which it was so held."

13. But the critical words for our purposes are the words "having power to do so". S. 11 does not, of itself, give any such power.
14. In R v Evesham Justices, ex parte McDonnagh [1988] 1 Q.B. 553, the Divisional Court recognised the existence of the power, but said at page 562:

"But, s. 11 was not enacted for the benefit of the comfort and feelings of defendants. The general rule enunciated in the passage I have quoted from Attorney-General v Leveller Magazine Limited [1979] A.C. 440, 450, may not, as is there stated, be departed from save where the nature or the circumstances of proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice."

15. In R v Reigate Justices ex p Argus Newspapers and Larcombe (1983) 5 Cr App R (S) 181, the Divisional Court indicated that a defendant who was in danger of being identified as a "supergrass" could be granted anonymity but only if that was the only way to protect him.
16. In common law, there is therefore no authority for the proposition that anonymity can be ordered for any purpose which is not connected to, or does not have an effect on, the administration of justice, or is not provided for in any statutory exception. In Re Officer L [2007] 1 WLR 2135, the House of Lords considered the question of anonymity, albeit witness anonymity, in the context of the Human Rights Act 1998, and in particular Article 2 of the European Convention on Human Rights. In that case it was held that two police officer witnesses to an affray in which a man died were not entitled, on the facts, to anonymity in an inquiry into a death. The House of Lords accepted that Article 2 would be engaged if there was a "real and immediate" risk to the life of either officer, so that the State's obligation to take reasonable steps towards preventing loss of life could justify the grant of anonymity. The claim to anonymity failed essentially on the basis that calling the officers by name to the inquiry would not materially increase the risk to their lives, which was acknowledged to exist, but, arising form the fact that they were serving police officers in Northern Ireland, and from their being called to the inquiry.
17. In order therefore for us to be entitled to make any order for anonymity for all or any of the soldiers we must be satisfied either that the administration of justice would be seriously affected were we not to grant anonymity, or that there is a "real and immediate" risk to the life of any of the soldiers were anonymity not granted. The only other route would be by statute. But s.94 (2) is not worded in a way which could justify an order for anonymity. It is concerned with protecting information given in evidence which might affect the national interest. As there is to be no trial, there is no evidence upon which s. 94(2) could bite.
18. We have considered the evidence put before us in camera in the light of those principles. That evidence consisted of statements from the soldiers and statements and oral evidence from a senior officer in the Special Forces. That evidence satisfies us that, in general, the Special Forces have a justifiable policy of not disclosing the names of personnel whether they are active, that is badged members of the Special Forces, or ancillary staff. But that policy cannot of itself justify the court granting anonymity. In the present case the claim to anonymity rest fairly and squarely on the risk to the lives of two of the soldiers, and the service history makes it clear that they would be at a real and immediate risk if they were identified. As far as the other three are concerned, they do not fall into the same category. But we are satisfied from the evidence that we have heard that there is a real risk that if they were identified, the other two could be identified. Granting them anonymity is, in our view, a reasonable and proportionate precaution to take in order to provide the protection to which the other two are entitled. So far as Staff Sergeant McKay is concerned, he has asserted his Article 6 rights to an open hearing. Although there must be some risk of the disclosure of his name undermining the integrity of the order in respect of the others, we have come to the conclusion that his rights must be accommodated at least to the extent of enabling him to be identified. And this would be consistent with the fact that he was identified in the earlier trial.
19. It is for these reasons that we have ordered that the names of the soldiers apart from Staff Sergeant McKay should be withheld, and have granted orders under s. 11 of the Contempt of Court Act accordingly. We should say for completeness that Mr Bashir on behalf of the Army Prosecuting Authority submitted that future prosecutions would be inhibited if any failure to grant anonymity. He did so clearly by assertion. We do not consider that this could be a sufficient basis for granting anonymity in this case even though, as Lord Scarman recognised in Attorney General v Leveller, material short of admissible evidence may well be sufficient in other cases.