England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th October 2008

Ouseley J :

1. When Mitting J permitted this Control Order to be made against AY under s3 of the Prevention of Terrorism Act 2005, he ordered, on the Secretary of State's application, that the Controlled Person be identified only as AY. This application was considered on paper and without notice to AY or the media. That is the usual way in which those powers are exercised. The Act requires that there then be a directions hearing. At this directions hearing, in addition to the usual directions for the hearing of the substantive merits of the Control Order, agreed between the SSHD and AY, Times Newspapers Limited submitted that the anonymity order should not be sustained on its merits. It also submitted that there were defects in procedure and its drafting which this Court should address in any event. Both the SSHD and AY opposed the substantive application for the lifting of the anonymity order.
2. Procedure. It is agreed, rightly, that the PTA and CPR Part 76 permit an order to be made for the anonymity of the Controlled Person, and to be made without a prior opportunity to object being given to the media or indeed to the Controlled Person. This is the effect of paragraph 5 of the Schedule to the Act, and CPR Part 76.19. It was not suggested that the judge who grants permission for a Control Order to be made is not empowered, on granting permission, to order anonymity.
3. Mr Hudson for TNL was concerned that the judge should have a proper basis for making such an anonymity order, and should not make it without giving proper consideration to the Article 10 ECHR rights of the media, and to the public interests in open justice and in knowing the steps being taken to protect the public. Mr Eadie QC for the SSHD and Ms Markus for AY submitted that the judges who deal with these matters are well aware of the arguments for anonymity at least at the stage of granting permission, and that the media can contest the issue at the directions hearing, as TNL do in this case.
4. I do not know what specific information was presented to Mitting J to justify the order for AY's anonymity. I am quite prepared to assume that there was none, and that the case for anonymity was assumed by the SSHD and the judge to be at least the general case accepted and applied to almost all of those subject to Control Orders. There would in this case have been some obvious further considerations telling in favour of anonymity. With the exception of the lifting of the anonymity orders covering two actual or intended Controlled Persons who evaded service or fled the country, such orders have been made in respect of all Controlled Persons. Indeed, this is the first occasion of which I am aware when the media has sought the removal of anonymity in respect of someone residing as required by the obligations of the Control Order.
5. The general arguments in favour of anonymity relate to the monitoring and enforcement of the Control Order, and to the personal risks which the Controlled Person or his family may face. Such public identification may lead to harassment of and the risk of violence to the individual and his family by groups or individuals. The individual may continue to live where he was living already, and may remain in his job which could be put at risk. A media thirst for detailed and accurate news, in the public interest, may generate persistent investigative reporting alongside highly intrusive watching and besetting. There may be a risk of disorder in any given local community. The knowledge that he is subject to a Control Order may conversely make him attractive to extremists in the area where he lives. It may make the provision of a range of services, including housing, to the individual or his family rather more difficult. If the individual believes that he faces these sorts of problems, he has a greater incentive to disappear, to live elsewhere in the UK or abroad. All of this can make monitoring and enforcement of the obligations more difficult, and increase significantly the call on the finite resources which the police or Security Service have to devote to monitoring the obligations. This all occurs in circumstances where the SSHD has been satisfied that serious criminal prosecution is not presently realistically possible, though not permanently excluded. There may therefore be an impact on other proceedings not yet underway.
6. Implicit, I accept, in most of those factors is the view that the public identification of the Controlled Person would include or would create a real risk that his address would become known in consequence. That may happen more probably and sooner where the individual remains where he was already living. The media could credibly assert a public interest in the public knowing just where such a person was living; and it can take a long time for the substantive basis for the SSHD's suspicion of involvement in terrorism to be tested in the courts.
7. I entirely accept Mr Hudson's submission that an anonymity order should not be made automatically. But that is a very long way from saying that the factors to which I have referred should not lead to an order at the permission stage. This is what the SSHD, and Controlled Person when served, usually seek. The SSHD and Controlled Person would have no realistic opportunity to argue for anonymity if the Controlled Person's name or address or both have been released to the media at the permission stage. But the media can challenge the order at the directions hearing. There is a very compelling argument normally for an order to be made which enables the ring to be held, rather than the pass to be sold. It is very difficult to see what overriding problems for open justice, Article 10 rights or other aspects of the public interest are created by an order which preserves the position, so that if desired its merits can be challenged at a later hearing. A Control Order may be made some time before it is served on the individual, perhaps as a precautionary measure, and it may well be necessary to avoid alerting the individual to this, because of the risk of his evading service. The avoidance of that risk provides a further reason for an order for anonymity at the permission stage.
8. That said, the application for anonymity at the permission stage should be accompanied by some short reasoning in support from the SSHD, so that judges can see what factors are relied on in a particular case. It would also deal with whether a distinction between the name and address could realistically be drawn at that stage. I do not consider however that the absence of such supporting material should prevent the judge reaching his own conclusion on the material provided to support the Control Order itself, using his experience and a sensible appraisal of the situation.
9. The form of order. This order simply said that the Controlled Person "be known as AY". Mr Hudson submitted that this was too terse. He suggested that it could have been thought to be addressed just to the Court for listing purposes. That parochial limitation is wholly improbable. He suggested that it prevented AY being referred to by his real name even if no mention were made of his being subject to a Control Order or being known as AY in certain contexts. Mr Eadie agreed that if that were the case the order went beyond what the SSHD intended. I agree that the order could be read in the way feared by Mr Hudson and not intended by the SSHD, and should be clarified if anonymity continues in this case. Mr Hudson said that there was no end in time to the operation of the order. That is indeed so. It remains in force until it is removed, and would remain effective during the Control Order proceedings and the operation of the Control Order. I believe that it would remain in force even after any discharging or quashing of the Control Order; but I do not express any final view on that point which has not been fully argued. The Court's jurisdiction to make such an order is not obviously limited to the length of time the Control Order is in force, and the purpose of anonymity does not inevitably cease with any of those events. The continued force of the anonymity order can be reviewed from time to time if application is made for that purpose, as time passes and circumstances evolve.
10. However, the drafting points made by Mr Hudson have weight. I imposed a revised form of Order at the end of the hearing in this case, pending my decision on the substantive application made by Mr Hudson. Mr Hudson can make further detailed drafting comments if necessary when this judgment is handed down.
11. Notice to the media that an anonymity order has been made. There is a problem here. Clearly the media needs to know or to be able to find out whether an order for anonymity has been made, when it wishes to refer to someone as the subject of a Control Order. There are two stages at which the problem of notification can arise. The first is when permission to make the Control Order is granted together with an anonymity order, but before it is served; the second is when and after the Control Order is served.
12. The problem at the first stage is that the media may find out, or even simply assert without finding out, that a Control Order has been made in respect of an individual whom it wishes to identify as a Controlled Person; it then needs to know whether an anonymity order has been made, without the person intended to be served with the Control Order being able to find out about it in advance. I am not sure to what extent the very existence of a Control Order, which a judge has permitted the SSHD to make is, can or should be kept from the public domain pending its service; to the extent that it is kept from the public domain, the making of an anonymity order which arises only on service of the Control Order might be one answer, but that still leaves a number of risks uncovered. It may be that the answer is that the media should be told that the proportion of Control Orders in which such an anonymity order has been made is so high that it ought to check the existence of such an anonymity order in every case in which it wants to refer to someone as a person subject or possibly subject to a Control Order. That may require a means of checking the position even out of court hours. Such a system would also apply after a Control Order has been served.
13. I heard various suggestions from the parties, but this judgment is not the place for the announcing or specifying a system. That should be done by the Administrative Court in consultation with the Press Office, representatives of the media –perhaps the Press Association- and the SSHD. As an interim, if the media wants to refer to someone as subject to a Control Order, or even to speculate that someone is subject to a Control Order, it should assume that an anonymity order is in force and should check the position either with the Home Office or with the Administrative Court, suitably identifying itself.
14. The substantive merits in this case. The open evidence in this case for the anonymity order consisted of a statement from Ms Hadland, a Home Office Civil Servant, a statement from AY and from his solicitor, Ms Kellas of Birnberg Peirce who drew upon that firm's experience of others in similar positions to AY. The practical value of evidence, as distinct from submissions, from TNL in relation to the merits as opposed to the procedures, was perforce limited.
15. There was also a closed statement from the Home Office which was shown neither to TNL nor AY. I wish to say a few words about the procedures adopted in relation to it. The problem is that such material may be of real importance but TNL did not have the opportunity to deal with it. It was, as Mr Eadie said, a development of points made in Ms Hadland's statement, rather than anything wholly new. By its nature, it was easy to see why the SSHD would object to its disclosure and why such an objection would be extremely unlikely to be overcome. It was also very difficult to see that TNL could possibly give evidence to counter what was said. There was no special advocate for AY and it would not have been possible for AY's special advocate to have argued the case for TNL.
16. Mr Eadie helpfully drew my attention to Murungaru v SSHD [2008] EWCA Civ 1015, paras 21-22. It held that it was not always necessary for the court to seek the appointment of a special advocate in order to consider, and provide an appropriate degree of procedural protection in respect of, evidence which one party was excluded from knowing. It endorsed the earlier Divisional Court decision in Malik v Manchester Crown Court [2008] EWHC 1362 Admin, although correctly cautioning against the judicial role in testing what was said in the absence of the other party becoming an apparent descent into the arena.
17. In the event, Mr Hudson did not contend that this was a case in which I should seek the appointment of a special advocate, and I would have been very reluctant to accede to any such request on the facts of this case. He did not object then to my taking the closed evidence into account, having given it what scrutiny I thought I needed to in the short closed session which occurred after the conclusion of all the other submissions. I take into account the closed evidence, but there is no separate judgment.
18. The case for anonymity put forward by the SSHD, with the support of the Security Service, and by AY relies on the sort of factors which underlie the generality of the arguments which I have outlined earlier. There are also considerations particular to this case.
19. The PTA and CPR 76 contain no provisions which set out the principles or factors which are to apply to the exercise of this particular power. The disclosure provisions in relation to closed material are not directed to this power and provide only incomplete guidance as to the public interests which it engages, and none as to the private interests. Mr Hudson referred me to authorities of varying utility.
20. It is right that the principles of open justice, as reflected in Scott v Scott [1913] AC 417, and R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966, encompass the naming of the individuals against whom a Control Order is sought or on whom it is imposed. The media has a well-established role as a public watchdog in the administration of justice; R v Felixstowe JJ ex parte Leigh [1987] QB 582. The media performs an essential role in the functioning of a participatory democracy, and in the protection of our freedoms generally; McCartan, Turkington Breen (a firm) v Times Newspapers Ltd. [2001] 2 AC 277. This is all underscored by Article 10 ECHR, though that has no inherent or necessary priority over other Articles and is a qualified right. I have no doubt but that the media and the public have a perfectly proper interest in the naming of AY, and that a clear and overriding case has to be made out by the SSHD and AY to prevent it. None of that is in issue.
21. It is undoubtedly the case however, that the stronger the public interest in the identification of a Controlled Person, the greater the risk of the Control Order, following identification, being undermined by ill-intentioned acts of members of the public, whether to help the Controlled Person in some way or to harass or harm him, or by irresponsible or ignorant acts of the media.
22. Although TNL did not seek to make the case that AY's address should also be publicly known, it did not concede that the public interest in his address being known, and the freedom of the press to publish it was overridden by the SSHD's contrary case. I accept that the media could make a proper case that there was a public interest in the publication of the address, which would have to be overridden by sufficiently compelling reasons.
23. Mr Hudson suggested that exceptions could be made to the principles accepted above only to the extent necessary for the administration of justice. If the concern was the risk of prejudice to a Control Order hearing or to some other trial, that could be dealt with only by an order under s11 or s4(2) of the Contempt of Court Act 1981. I reject that limitation. The power in the PTA would be otiose. It is plain that there are many reasons why an anonymity order is empowered by the PTA, which go far beyond, and may not always even include, the administration of justice in Control Order hearings or other trials: the effective operation of the Control Order before and after any hearing at which it is upheld is the major public interest behind the anonymity provision. The Court, when making an order under the PTA and striking any necessary balance, is not exercising an inherent jurisdiction or creating by analogy new limitations on press reporting of court proceedings. It is exercising a statutory power, the scope or basis of which has to reflect the purposes of the PTA and the making of a Control Order. I also accept Mr Eadie's submission that the fact that the existence of the powers in the Contempt of Court Act 1981 Act does not exclude factors relevant to the administration of justice from consideration under the PTA, whether or not they would precisely justify an order under the 1981 Act. Where however, the administration of justice is the sole basis upon which anonymity is sought, I agree that that should be dealt with pursuant to the powers in the Contempt of Court Act.
24. Mr Hudson cited a range of cases to show how he submitted the balance should be struck between the interference in the Article 8 rights of AY and his family, which publication of his name would produce, and the public interest in its publication together with TNL's Article 10 rights to publish it. He referred me to In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593, especially paras 30-34 in the speech of Lord Steyn. The House of Lords refused to allow an order which would have prevented the public identification of a mother or the child she was alleged to have murdered and for which she was being tried. The order was sought in the interests of her surviving child. Crucial to the decision was the vital importance of the public reporting of a criminal trial. Mr Hudson also cited In re Trinity Mirror plc [2008] EWCA Crim 50 [2008] 3 WLR 51, in which an order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children. The Court of Appeal held however that the order should not have been made. The ability of the media to report criminal trials embodied open justice; an important part of the administration of criminal justice was that the identity of those convicted and sentenced for criminal offences should not be concealed. The shame brought to innocent family members, and the perhaps considerable difficulties which they would face, were the consequences of the commission of the offence, and could not warrant anonymity for a defendant save in wholly exceptional circumstances.
25. The force of what those cases say about how the conflicting Article 10 and Article 8 rights should be resolved, derives from the powerful considerations of open criminal justice, requiring criminal trials to be conducted in public so that they can be reported fully, save for wholly exceptional circumstances. Although the balance between the conflicting Article 8 and 10 rights and competing public interests here also needs to be resolved after careful scrutiny, there are important differences. A Control Order hearing is not a criminal trial, the proceedings are not criminal proceedings, they do not lead to convictions or acquittals. There is no real analogy with the position of a convicted person after release, or serving a community sentence, or on the Sex Offenders' Register, nor with that of someone acquitted of an offence in circumstances which are less than a complete exoneration. The publicity which may attend all such individuals and their families is an inevitable part of the criminal process, and even more so of conviction and punishment. The individual subject to a Control Order may never clear his name or have the allegations of involvement in terrorism proved beyond a reasonably based suspicion. The proceedings do not bring finality except where the Control Order is not upheld on its merits and ceases to be pursued; rather they create ongoing obligations which are breached at the risk of criminal prosecution.
26. In Control Order cases, although the Article 8 rights of the individual and his family can be engaged as a consequence of publicity being given to the SSHD's suspicion about his involvement in terrorism, that private right may readily co-exist with the public interest in the effective operation of the Control Order. It is a continuing measure to control those who may pose a serious risk but who cannot be prosecuted or removed. Its effectiveness is an essential part, potentially the crucial part, of the balance which is to be struck pursuant to the particular statutory powers in the PTA. It would be a mistake to suppose that the SSHD seeks anonymity for the Controlled Person essentially out of concern for his wellbeing. The way in which the balance between the various rights and public interests was struck in re S and in re Trinity Mirror does not afford much guidance for how it should be struck in this context. There was no, or at best a rather limited, public interest in anonymity for the defendant in those cases.
27. Mr Hudson sought to counter what AY and his solicitor said about the impact which it was feared the publication of his name would have on his Article 8 rights and those of his family, by submitting that it would not be the publicity given to the name which caused these difficulties but the fact that AY was subject to a Control Order. The impacts could not be laid at the door of publicity and were therefore no reason for anonymity. There would be no cause and effect. He relied upon Re Belfast Telegraph Newspapers Ltd's Application 1997 NILR 309 Div Ct. When a defendant charged with indecent assault was remanded on bail to await trial, the magistrate ordered that there should be no report of the proceedings at that stage because of the defendant's concerns that publicity would lead to his being attacked; this would frustrate the administration of justice because he might no longer be able to face trial. McCollum LJ said that an attack upon the defendant by ill-intentioned persons could not be regarded as a natural consequence of the publication of court proceedings and so the danger of that occurring should not cause the court to depart from well-established principles.
28. I can accept without difficulty the conclusion that the risk of attack should not cause a departure from the principle of open justice which means that a defendant should be named, and that implicitly therefore other measures should be taken to protect the individual. I can also accept the notion that the publication of the name of the defendant should not be regarded as responsible or blameworthy for the attacks of ill-intentioned people; that is to say the normal reporting of proceedings in court is not to be held responsible for every way in which the public may use or abuse it. That is what I consider McCollum LJ was saying.
29. I do not find it useful to consider this as an issue of cause and effect. Although I accept that as a general principle, normal news or court reporting could not be regarded as responsible for the use which a few may possibly make of it, the reality of the effect of publicity cannot be ignored, whether looking at Article 8 rights or Article 10 rights, or particularly when considering the public interest in the effective operation of the Control Order.
30. I turn apparently rather abruptly to my conclusion. I have been persuaded that the case for maintaining anonymity is compelling, and justifies the restrictions on the media rights to freedom of expression and on the public interest in knowing who AY, the Controlled Person, is. I have not set out my reasons in this part of my judgment because that would inevitably lead to AY's identification. Yet this application by TNL has raised a number of issues of general importance and my judgment thus far should be made fully public. The balance of it will be subject to the same restrictions as a judgment issued in chambers which is where the hearing was held for that very reason. Any changes to the terms of the interim Order will be available to the media after resolution of any drafting points which Mr Hudson wishes to make.