Times Newspapers Ltd & Ors v R & Ors  EWCA Crim 2396 (24 October 2008)
The England and Wales Court of Appeal has held that a defendant should not be identified if it would lead to a ‘real and immediate’ risk to their right to life.
Six British soldiers were charged with conspiracy to defraud and brought before a court-martial. The Judge Advocate General ordered that the proceedings should be held in camera in their entirety, and that no reports of the proceedings should be published (other than the fact the six soldiers were charged). The media and one of the soldiers appealed this order to the Courts Martial Appeal Court.
The appellants submitted that the order was wrong in principle, could not be justified on the materials before the JAG and, in any event, was far more restrictive than necessary on proper evaluation of the authorities and the evidence. The other parties accepted that the order made was wider than was necessary in the interests of justice.
Lord Justice Latham considered the basic principle that justice requires proceedings in court to be held in public, with all the consequences that entails (see Scott v Scott  AC 417). It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted (see Attorney-General v Leveller  AC 440, 450 (Diplock LJ), 471 (Scarman LJ)). As the Army did not oppose the appeal (other than to exclude the public where matters engaging national security were truly in issue), the appeal was allowed. The media then sought orders that the materials placed before the Court in camera be made available; however, the Court refused this submission.
The Court considered that it is an important aspect of open justice that defendants’ names should be made public, except where such publication would frustrate or render impracticable the administration of justice or there is a statutory exception.
His Honour considered the decision in Re Officer L  1 WLR 2135, where the House of Lords considered art 2 of the European Convention on Human Rights, which states in part, ‘Everyone's right to life shall be protected by law’. In that case, the House of Lords held that art 2 would be engaged if there was a ‘real and immediate’ risk to the life of the witnesses, so that the State’s obligations to take reasonable steps towards preventing loss of life could justify the grant of anonymity.
Lord Justice Latham then considered that, to make an order for anonymity for all or any of the soldiers, the Court must be satisfied either that the administration of justice would be seriously affected if the order was not granted, or that there was a ‘real and immediate’ risk to the life of any of the soldiers if anonymity was not granted.
The in camera evidence (including their service history) led the Court to conclude that the identification of two of the soldiers’ names would place them in real and immediate risk. The Court granted the two soldiers anonymity on the basis that this was ‘a reasonable and proportionate precaution to take in order to provide the protection’ to which they were entitled. The Court also found that publication of the other three soldiers’ names could allow the first two soldiers to be identified; on this basis, they were also granted anonymity.
The sixth soldier, Staff Sergeant McKay, asserted his rights to an open hearing under art 6 of the Convention. The Court recognised that disclosure of his name risked undermining the integrity of the order in respect of the others, but held that his rights must be accommodated.
Relevance to the Victorian Charter
Unlike other recent UK cases considering human rights in a media context, the right to privacy was not discussed in this judgment. However, the judgment strongly supports the common law presumption that justice requires proceedings in court to be held in public, and media reportage of those proceedings to be allowed. However, where an individual’s human rights are in real and immediate risk, the courts will upset that presumption and make orders to protect those rights.
In broadening the principle in Re Officer L to apply to defendants (as well as witnesses), the UK courts have held that courts are obliged to consider the right to life of those parties. Where there is a ‘real and immediate’ risk to the lives of defendants and witnesses, the courts are obliged to grant them anonymity. The reality and immediacy of risk is a matter of fact, taking account of the relevant circumstances.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Crim/2008/2396.html.
James Farrell is a lawyer with Corrs Chambers Westgarth and a Team Leader with the PILCH Homeless Persons’ Legal Clinic