| CONTEMPT OF COURT — Court proceedings — Restrictions on reporting — Judge Advocate General ordering that proposed court-martial take place in camera and no report of proceedings be published — Appeal by press allowed in part — Whether evidence given at earlier hearings in camera to be made public — Whether power to order names of defendants be anonymised — Tests to be applied — Army Act 1955, ss 94(2), 103(2)(nn) — Contempt of Court Act 1981, s 11— Human Rights Act 1998, Sch 1, Pt I, arts 2, 6
In re Times Newspapers Ltd and another [2008] EWCA Crim 2396; [2008] WLR (D) 331
C-MAC: Latham LJ, Mackay and King JJ: 24 October 2008
For a court to order the anonymisation of defendants’ names in a case in which no applicable statute provided a power justifying such an order, careful regard would have to be had to the relevant tests identified at common law, viz whether, absent such an order, the administration of justice would be seriously affected or there was a real and immediate risk to the life of any of the defendants.
The Courts-Martial Appeal Court so stated when giving its reasons for having, on 7 August 2008, allowed the appeals of Times Newspapers Ltd and Guardian News and Media Ltd from an order of Judge Blackett, Judge Advocate General, on 4 February 2008, made pursuant to s 11 of the Contempt of Court Act 1981 and s 94(2) of the Army Act 1955 in court-martial proceedings against six soldiers, A, B, C, D, E, and F, charged with conspiracy to defraud. The judge had ordered that the forthcoming proceedings should be held in camera in their entirety and no report of proceedings should be published save for the fact that the six soldiers were so charged. The Secretary of State for Defence appeared as an interested party.
LATHAM LJ, giving the judgment of the court, said that the appeals had been brought under s 103(2)(mn) of the Army Act 1955 and para 90(1)(2) of the Courts Martial (Army) Rules 2007 (SI 2007/3442). At the appeal hearing the procedure under s 159 of the Criminal Justice Act 1988 had been adopted, and there had been argument in open court as to the principles to be followed when the court was considering making any orders affecting public access to, or reporting of, criminal proceedings. The court had next sat in camera to consider the material put before it which might justify any such orders. Finally, there had been an open hearing at which the court had indicated its views on the material it had heard in camera, before any further argument. In the event, the court, having allowed the appeals, had ordered that the names of five of the six defendants should be anonymised. As to whether a hearing should be ordered to be in camera, the applicable principles were not in dispute: see Scott v Scott [1913] AC 417 and Attorney General v Leveller Magazine Ltd [1979] AC 440, 450, 471, per Lord Diplock and Lord Scarman. Further, the Army Prosecuting Authority had now accepted that the order of the Judge Advocate General was wider than necessary in the interests of justice, and was not justified by s 94 of the 1955 Act. A modified order had been advanced on which basis the appeal was not opposed, but it was to be noted that that approach derived from the fact that the prosecution was not now proposing to offer evidence at the forthcoming court-martial; and the court rejected the submission by the media that, having allowed the appeals, the court should now revisit the earlier hearings in camera and make orders enabling the material placed before the court at those hearings to be made publicly available. The press was entitled to report what had transpired in open court; and 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 interests of justice that those hearings should have been held in camera, and the clock could not be turned back; and in any event, having considered the material in question, it was clear that none of it should be in the public domain. As to anonymity, it was an important aspect of open justice that defendants’ names should be made public: see In re S (A Child)(Identification: Restrictions on Publication) [2005] 1 AC 593, and In re Trinity Mirror plc [2008] QB 770. But there was no doubt that a court was empowered, in appropriate circumstances, to order that the identity of a defendant could be protected from publicity by withholding his name, as recognised in s 11 of the Contempt of Court Act 1981. That provision however used the words “in any case where a court (having power to do so)”, and that provision did not of itself grant any such power. Having had regard to R v Evesham Justices, Ex p McDonagh [1988] 1 QB 553, R v Reigate Justices, Ex p Argus Newspapers (1983) 5 Cr App R (S) 181, and In re Officer L [2007] 1 WLR 2135, the court, in order to be entitled to make any order for anonymity for all or any of the defendants, had to be satisfied that if no such order were made either the administration of justice would be seriously affected or there was a “real and immediate” risk to the life of any of the defendants, the latter engaging art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the state’s obligation to take reasonable steps towards preventing loss of life: see In re Officer L. The only other route would be by statute, but s 94(2) of the 1955 Act was not worded in a way which could justify an order for anonymity: it was concerned with protecting information given in evidence which might affect the national interest; and in the instant case, where there was now to be no trial, there was no evidence upon which s 94(2) could bite. The conclusion was that the evidence considered satisfied the court that in general the Special Forces had a justifiable policy of not disclosing the names of personnel whether they were active, that is badged members of the Special Forces, or ancillary staff. But that policy could not of itself justify the court in granting anonymity. In the instant case the claim to anonymity rested on the risk to the lives of two of the defendants, and the service history made it clear that they would be at a real and immediate risk if they were identified. As far as the other three were concerned, they did not fall into the same category, but the court was satisfied from the evidence that there was a real risk that if the latter were identified the other two could be identified. Granting them anonymity was a reasonable and appropriate precaution to take in order to provide the protection to which the other two were entitled. As to defendant B, who had asserted his rights under art 6 of the Convention to an open hearing, although there had to be some risk of the disclosure of his name undermining the integrity of the order in respect of the others, his rights had to be accommodated at least to the extent of enabling him to be identified. Accordingly the defendants’ names, other than B’s, were to be withheld.
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