UKSC 1
Application by Guardian News and Media Ltd and others in
Her Majesty's Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants)
Her Majesty's Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant)
R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty's Treasury (Appellant)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
27 January 2010
Heard on 5 and 22 October 2009
Geoffrey Robertson QC
(Instructed by Finers Stephens Innocent LLP)
Sir Michael Wood
(Instructed by Treasury Solicitor)
Hugh Tomlinson QC
(Instructed by Birnberg Peirce and Partners)
This is the unanimous judgment of the Court delivered by:
The Background Events
"(1) Where the Treasury propose (in accordance with article 5(1)(a)(ii)) to inform only certain persons of a direction, they may specify in the direction that information contained in it is to be treated as confidential.
(2) A person who obtains information which is to be treated as confidential in accordance with paragraph (1), or to whom such information is provided, must not disclose it except with lawful authority.
(3) Confidential information is disclosed with lawful authority only if and to the extent that any of the following applies—
(a) the disclosure is by the Treasury;(b) the disclosure is with the consent of the person who is the subject of the information;(c) the disclosure is to (and is necessary to) give effect to a requirement under this Order;(d) the disclosure is required, under rules of court or a court order, for the purposes of legal proceedings of any description.
(4) This article does not prevent the disclosure of information which is already, or has previously been, available to the public from other sources.
(5) A person who contravenes the prohibition in paragraph (2) is guilty of an offence.
(6) In proceedings for an offence under this article, it is a defence for a person to show that he did not know and had no reasonable cause to suspect that he was disclosing confidential information.
(7) The High Court or, in Scotland, the Court of Session may grant an injunction to prevent a breach of paragraph (2) in relation to any information upon the application of—
(a) the person who is the subject of the information, or(b) the Treasury."
The letters sent to the appellants informed them that the Treasury had "specified in the direction that your identity is to be treated as confidential in accordance with article 6 of the order."
A and K
Press Reporting of Judgments in the United Kingdom
"it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice."
Anonymity Orders to Give Effect to Article 8 Convention Rights
"although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves….
The boundary between the State's positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole…" (internal citations omitted).
So, when M applied to the courts below for an anonymity order, he was asking them to exercise their power to secure that other individuals, viz the press and journalists, showed respect for his private and family life.
The Press and Article 10 Convention Rights
"The Court recalls that it is not for the Court, or for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed."
Article 8 and Reputation
The Approach when Article 8 and Article 10 are both in play
"55. I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need: see Sedley LJ in Douglas v Hello! Ltd  QB 967, 1005, para 137.
56. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicised in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information."
Anonymity in Europe
Article 8 Arguments in favour of an Anonymity Order
Article 10 Arguments against an Anonymity Order
"from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.
"The five British nationals bringing this challenge who have been designated under the Orders have had their assets frozen, are only allowed to access enough money to meet basic expenses, and are compelled to account to a civil servant for every penny they spend. They are subject to unprecedented levels of intrusion and control without end or review. They require permission for all economic activity, however modest. The complex regime governed by permissions and licences is not merely harsh but at points absurd. We have the madness of civil servants checking Tesco receipts, a child having to ask for a receipt every time it does a chore by running to the shops for a pint of milk and a neighbour possibly committing a criminal offence by lending a lawnmower….
The court ruling today has shown that the Government is willing to sacrifice the fundamental rights and liberties of its citizens, including the fundamental constitutional right that only Parliament can take away basic freedoms, when they think it convenient to do so. They have dishonoured their pledge of accountability and oversight through Parliament."
Anonymity in Control Order Cases