West Law Report

Justifying anonymity of criminal defendants

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
October 31, 2008
Justifying anonymity of criminal defendants

Courts-Martial Appeal Court
Published October 31, 2008
In re Times Newspapers Ltd and Another
Before Lord Justice Latham, Mr Justice Mackay and Mr Justice King
Judgment October 24, 2008

To be entitled to make any order for anonymity for all or any of a number of defendants in a case in which no applicable statute provided a power justifying such an order, a court had to have regard to the relevant tests identified at common law, namely, 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 reserved reasons for having, on August 7, 2008, allowed the appeals of Times Newspapers Ltd and Guardian News and Media Ltd from an order of Judge Blackett, Judge Advocate-General, on February 4, 2008, ostensibly made pursuant to section 11 of the Contempt of Court Act 1981 and section 94(2) of the Army Act 1955 in court-martial proceedings against six soldiers, A, B, C, D, E, and F, charged with a £3,000 conspiracy to defraud.

The judge found that if there were a public hearing there would be a substantial risk of prejudice to national security, both as to the safety of individuals and the adverse effect upon operational effectiveness, and that 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 questioning so that the defendants might not receive a fair trial.

Section 94 of the 1955 Act provides: “(1) … 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-mar-tial may order that … the public shall 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 … might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.”

Mr Hugh Tomlinson QC and Mr Paul Bennett, solicitor, for A, C, D, E and F; Mr John Mackenzie, solicitor, and Mr Stuart Lindsay for B; Mr Gavin Millar, QC and Mr Anthony Hudson for Times Newspapers and Guardian News and Media; Mr Nadim Bashir for the Crown; Mr Jonathan Glasson for the Secretary of State for Defence as interested party.

LORD JUSTICE LATHAM, giving the judgment of the court, said that the appeals had been brought under section 103(2)(mn) of the 1955 Act, as inserted by section 378(1) of, and paragraph 21(2)(b) of Schedule 16 to the Armed Forces Act 2006, and paragraph 90(1) and (2) of the Courts Martial (Army) Rules (SI 2007 No 3442).

At the appeal hearing, in the absence of any rules of procedure in the Court of Appeal, the procedure under section 159 of the Criminal Justice Act 1988 was adopted.

There was 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 indicated its views on the material it had heard in camera, before any further argument.

In the event, the court, having allowed the appeals, 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 ([1979] AC 440, 450, 471).

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 section 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.

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; 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; 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) (The Times October 29, 2004; [2005] 1 AC 593) and In re Trinity Mirror plc (The Times February 13, 2008; [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 section 11 of the 1981 Act.

That provision used the words: “In any case where a court (having power to do so)…”; that provision did not of itself grant any such power.

Having had regard to R v Evesham Justices, Ex parte McDonagh ([1988] 1 QB 553), R v Rei-gate Justices, Ex parte Argus Newspapers ((1983) 5 Cr App R (S) 181) and In re Officer L (The Times August 1, 2007; [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 article 2 of the European Convention on Human Rights and the state’s obligation to take reasonable steps towards preventing loss of life.

The only other route would be by statute, but section 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. In the instant case, where there was now to be no trial, there was no evidence upon which section 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 article 6 of the Human Rights 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 as Staff Sergeant McKay.

Accordingly the defendants’ names, other than B’s, were to be withheld.

Solicitors: Gwilym Hughes & Partners,
Oswestry; Mr John Mackenzie,
Henley-on-Thames; Mr Alastair Brett,
Wapping; Army Prosecuting Authority;
Treasury Solicitor.

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