Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors  UKSC 1 (27 January 2010)
The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed that would breach their right to respect for private and family life.
The court held that there was sufficient general, public interest in publishing a report of proceedings which identified the appellant, Marteen, to justify any resulting curtailment of his right and his family's right to respect for their private lives.
Five men, the appellants, challenged their designation as suspected terrorists under the Terrorism (United Nations Measures) Order 2006. This designation meant that their assets were frozen, save for a daily living allowance. The appellants commenced proceedings challenging the validity of the government regime under which the freezing orders were made. At the outset of the proceedings, the administrative court made orders keeping the appellants' identities anonymous.
Media groups challenged the anonymity orders, on the basis that they restricted the press's right to freedom of expression under art 10 of the European Convention on Human Rights.
The Court unanimously ruled that the anonymity orders were not justified for any of the men. The identities of two of the appellants had been made public at an early stage, when the Bank of England published notice of the freezing orders naming them.
The other three appellants were brothers. Only one of them, Michael Marteen, appeared before the Court. The Court held that there were no compelling reasons to keep his brothers' identities secret, but withheld its final decision until Marteen's arguments were heard.
Marteen argued that the revelation of his identity would interfere with his art 8 Convention right to respect for private and family life.
In a single judgment, the court unanimously set aside the anonymity orders.
The Court held that neither art 8 nor art 10 rights prevailed over the other as such. After considering English and European cases, the Court concluded that it had to balance the factors and rights at play to determine 'whether there [was] sufficient general, public interest in publishing a report of the proceedings which identifie[d] M[arteen] to justify any resulting curtailment of his right and his family's right to respect for their private life'.
Article 8 arguments in favour of the anonymity orders
Marteen claimed that his designation as a suspected terrorist could lead to loss of contact for himself and his children with the local Muslim community. Marteen also argued that publication of his name would cause serious damage to his reputation, as he had not been charged with or convicted of any criminal offence and could not challenge the substance of the allegations against him. The court found this to be the strongest argument in favour of the anonymity orders.
The premise behind Marteen's arguments was that the public would not appreciate that the freezing orders were made by reason of mere suspicion of facilitating terrorism, as opposed to proven guilt. The Court held that the community was aware of the continuing public dialogue regarding control and freezing orders, and could distinguish between a suspected terrorist and a convicted one.
The Court also concluded that it would not be acceptable to restrict the press from reporting what is factually true, due to the possibility of misinterpretation by some readers.
Article 10 arguments against the anonymity orders
The Court noted that where a publication concerns a question of 'general interest', there is little room for restriction on freedom of expression.
The Court focused on the public interest in accessing information about proceedings challenging the system of freezing orders, a system which was created in the public's name and for its protection. The Court recognised the important role of the press in providing access to that information. The Court also ruled that a more open attitude to freezing orders would be consistent with the view that such orders indicate mere suspicion and not guilt.
The Court held that the right to freedom of expression encompassed not only the substance of ideas and information, but also the form in which they are conveyed. Publishing stories in which the appellants were anonymous would not attract reader interest, resulting in less editorial focus and, consequently, less public debate about the issues.
The Court also considered important that a press release had been issued by Marteen's solicitors, outlining the detrimental effects of the freezing order on his private life and alleging that the Government had dishonoured its pledge of accountability and oversight through Parliament. The court observed that the public could not make an informed assessment of Marteen's arguments without knowing his identity. If the anonymity orders were to remain in place, the press would be prevented from publishing a complete account of an important public matter for fear of an incidental impact on Marteen's private life in circumstances where Marteen was challenging the whole system of freezing orders based on suspicion.
Relevance to the Victorian Charter
The right to respect for private life under s 13, and the right to freedom of expression under s 15, are each protected under the Victorian Charter.
This decision reaffirms the importance of public court proceedings that are openly reported. Where the competing rights of freedom of expression and right to respect for private life are under consideration, the Court’s decision seems to make clear that the public interest in obtaining information on important public issues may prevail over a person’s right to private life.
This particular aspect of the balancing act between the two rights is not enunciated in the Convention or the Victorian Charter, although the Human Rights Act 1998 (UK) states that the right to respect for one’s private life can be curtailed in favour of public interest, a view which is consistent with European Court cases considered by the Court.
The decision is available at http://www.bailii.org/uk/cases/UKSC/2010/1.html.
Stuti Sethi is a lawyer with Allens Arthur Robinson