Professional Documents
Culture Documents
Uksc 2009 0015 Judgment 01
Uksc 2009 0015 Judgment 01
[2010] UKSC 1
JUDGMENT
before
JUDGMENT GIVEN ON
27 January 2010
Appellants
Hugh Tomlinson QC
Dan Squires
(Instructed by Birnberg
Peirce and Partners)
This is the unanimous judgment of the Court delivered by:
LORD RODGER
1. “Your first term docket reads like alphabet soup.” With these
provocative words counsel for a number of newspapers and magazines
highlighted the issue which confronts the Court in this application. In all the
cases down for hearing in the first month of the Supreme Court’s existence at
least one of the parties was referred to by an initial or initials. Thanks to the
relevant Practice Note, the same goes for the very last case heard by the House
of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009]
UKSC 7; [2009] 3 WLR 1253) and the very first judgment handed down by the
Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1;
[2009] 1 WLR 2353). See Practice Note (Court of Appeal: Asylum and
Immigration Cases) [2006] 1 WLR 2461. Indeed, so deeply ingrained has the
habit of anonymisation become that the judgment of the Court of Appeal in AM
(Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 was published
under that name, and came on appeal to the Supreme Court under the same
name, even though Maurice Kay LJ had begun his judgment by saying that
anonymity was unnecessary. At the hearing of the appeal that assessment
proved to be correct. See Mahad v Entry Clearance Officer [2009] UKSC 16;
[2010] 1 WLR 48.
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3. The appeals involve five individuals: four of them, A, K, M and G, are
appellants; the fifth, HAY, is the respondent and cross-appellant in an appeal
by the Treasury. For simplicity’s sake, and unless the context otherwise
requires, references to “the appellants” include HAY. When the appeals were
lodged, the appellants’ names were concealed by the use of letters. This was
the result of orders first made at the outset of the proceedings in the
administrative court. Take, for instance, the case of A. On 15 February 2008
Collins J ordered that “The claimant be granted anonymity throughout these
proceedings and be referred to as A. No report of these proceedings shall
directly or indirectly identify him or any member of his family.” The practice is
for such orders to be intimated to the Press Association. In these cases,
therefore, the orders were in place during the substantive hearings. Following
those hearings, with the consent of the Treasury, Collins J continued the
anonymity orders in the cases of A, K and M. In the case of G, he continued
the order, but left it to the Court of Appeal “to make the final decision as to
whether the anonymity order in his case should or should not be lifted.”
4. When allowing the Treasury’s appeal, [2009] 3 WLR 25, the Court of
Appeal included an order, apparently of consent, that “The respondents shall be
granted anonymity and no report of these proceedings shall directly or
indirectly identify them or any member of their families.” That was the position
when the appeals came before this Court and the press and media (“the press”)
made their application to have the anonymity orders set aside. The Court
decided to set aside the order in the case of one of the appellants, G, but to
postpone consideration of the application relating to the others until after the
substantive hearing. A separate hearing to consider the application in respect of
those appellants took place on 22 October when the Court also considered the
application to set aside the anonymity order in the separate case of HAY.
5. Counsel for the applicants suggested that, since rule 27 of the Supreme
Court Rules 2009 provides for every contested appeal to be heard in open
court, the appellants should have made an application for a fresh anonymity
order to cover the appeal to this Court. We would reject that contention. There
was never any question of departing from rule 27: the hearing of the appeals
was always going to be in open court. The anonymity orders simply restricted
the form of any report of the hearing. So far as anonymity orders are
concerned, the practical approach is that, where an open-ended order has been
made, it should remain in force throughout the proceedings, at whatever level,
unless and until it is set aside, either spontaneously on a change of
circumstances, or as the result of an application by the press. That approach
promotes certainty and avoids unnecessary applications.
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6. Although the courts below appear to have granted the anonymity orders
without any very prolonged consideration and without explaining their
thinking, the appellants contend that the orders are necessary because
identifying them as the claimants in these proceedings would infringe their
rights under article 8 of the European Convention on Human Rights and
Fundamental Freedoms to respect for their private and family life. To
understand that contention, it is necessary to outline the events giving rise to
the proceedings.
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(a) the disclosure is by 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.”
10. Counsel for the Treasury could not explain the precise basis upon which
the Treasury had chosen to specify that the identities of A, K and M were to be
treated as confidential. But he indicated that there would have been some input
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from the Security Services. Plainly, the attitude of the Treasury could not be
determinative for the courts. But the point is now academic, since - subject to
one qualification which it is unnecessary to explore - the Treasury has changed
its position. By the time of the hearing of the application by the press, the
Treasury no longer opposed setting aside the anonymity orders granted in the
courts below.
11. In fact, in July 2009 Her Majesty had made The Terrorism (United
Nations Measures) Order 2009 (“TO 2009”). On 30 October 2009 – after the
hearing of the present application - the Treasury revoked the designations of A,
K and M under the TO 2006, but made fresh directions designating them under
article 4 of the TO 2009. In accordance with the change of position explained
at the hearing of the application, when it made the fresh directions the Treasury
considered that it was no longer necessary to apply any restrictions on their
publication under the TO 2009. The Treasury decided, however, that, “in the
interests of justice”, pending this Court’s decision on the anonymity issue, it
would actually restrict publication of the directions pursuant to article
6(2)(b)(iii) of the TO 2009.
12. In the result the Treasury does not oppose the Court making an order
that disclosure is required for the purpose of these proceedings. That order
would have the effect of making disclosure of these appellants’ identities
lawful by virtue of article 8(3)(d) of the TO 2009.
13. Under the anonymity orders granted below, the other appellant was to be
referred to as G. On 13 December 2006 he received a letter informing him that
the Treasury had made a similar direction under article 4 of the TO 2006. In his
case, however, the letter told him that the Bank of England, acting as agent for
the Treasury, had issued a notice and press release publicising the direction
generally. And the Bank of England’s News Release dated 13 December does
indeed name G as Mr Mohammed al-Ghabra, living in East London. A few
days later he received a letter from the Foreign and Commonwealth Office
indicating that the 1267 Committee (i e the Sanctions Committee) of the United
Nations Security Council had added him to its consolidated list of Usama Bin
Laden, Al Qaida and the Taliban and other individuals, groups, undertakings
and entities associated with them. This meant that his funds, assets and
economic resources were frozen. In March of the following year he was told
that he was subject to the Al-Qaida and Taliban (United Nations Measures)
Order 2006 (“AQO”). This is because any person designated by the 1267
Committee is automatically designated for purposes of United Kingdom law by
virtue of article 3(1) of the AQO.
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14. In G’s case, at the outset of the hearing of the substantive appeal, the
Court was shown material confirming that, as just narrated, his identity as
someone who was subject to a freezing order was already in the public domain.
It had been given in the Bank of England’s press notice and had also been
contained in the relevant list published by the 1267 Committee. These matters
had been reported in the press. In the circumstances, the anonymity order made
by the lower courts served no effective or legitimate purpose and so, as already
mentioned, this Court decided to lift the order in his case. The press were
therefore able to report that G is actually Mr Mohammed al-Ghabra. Articles
containing that information were published the following day. No evidence was
produced to the Court on behalf of Mr al-Ghabra or any of the other appellants
to show that either the Bank of England’s original press release or the lifting of
the anonymity order by this Court had led to any particular social, far less
physical, harm to him or to any members of his family.
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A and K
HAY
18. HAY contended that his identification in any report of the present
proceedings would result not only in his public identification but also in the
further inevitable identification of his wife and children. It was also said that
there would be a risk that the Egyptian authorities would take some form of
retributive action against members of his family who live in Egypt and that his
wife and children would suffer adverse consequences.
19. As just explained, however, the fact that HAY had been listed by the
1267 Committee was announced by the Bank of England in its press release as
long ago as October 2005 and he had been named at that time. So, in this
respect, Mr Youssef is in the same position as Mr al-Ghabra. That in itself
would often be justification enough for setting aside the anonymity order. But
the matter actually goes much further. In the first place, since 1999, articles
have repeatedly appeared in the press about Mr Youssef, some of them
mentioning his wife and children and that they were living in Hammersmith. In
addition, counsel for the Treasury pointed out that HAY was actually the Mr
Hani El Sayed Sabaei Youssef who, under that name, had brought a claim for
damages for wrongful imprisonment against the Home Office. The judgment of
Field J in that case, finding that Mr Youssef had been detained unlawfully for
14 days, named him and was published as Youssef v Home Office [2004]
EWHC 1884 (QB). The judgment gives a detailed account of his position and
of the Government’s consideration of whether he could safely be deported to
Egypt. It is plain that the Egyptian Government are well aware of Mr Youssef’s
situation in this country.
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20. HAY is also known as Dr Hani al-Seba’i and under that name he acts as
the Director of the Al-Maqrizi Centre for Historical Studies in London. He
gives statements to the press and often broadcasts on Al-Jazeera. Despite this,
there is no evidence that any members of his family, whether in this country or
in Egypt, have been adversely affected in any way. These matters, which must
have been well known to Mr Youssef, should not have been concealed from the
courts. It is plain that there never was the slightest justification for making an
anonymity order in his case. It must be set aside.
M’s Position
21. That leaves the application by the press to have the anonymity order in
respect of M set aside. According to a witness statement submitted on his
behalf, M lives in the same property as his ex-wife and five children. He is
involved with his children, taking them, when he can, to school or the park etc.
He fears that, if his designation as a suspected terrorist is revealed, this may
lead to a loss of contact, for himself and his children, with the local Muslim
community who may fear to be associated with him. Furthermore, in the
written submissions on his behalf the argument is that publication of his name
would cause serious damage to his reputation in circumstances in which he has
not been charged with, or convicted of, any criminal offence and so has no
opportunity to challenge the substance of the allegations against him. In that
situation an anonymity order is said to be needed in order to protect his article
8 Convention rights.
23. In the nineteenth century many couples would doubtless have been only
too pleased to agree to have their divorce heard in private. But the court sat in
public and reports of the evidence, often recounting high-class intrigues, were
published in the newspapers. These reports gave rise to concern in some
quarters, especially since they were particularly popular reading-matter among
servants. So, during the nineteenth and early twentieth centuries, various
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attempts were made to introduce legislative controls. The attempts foundered,
partly because the unpleasant publicity was thought to act as a welcome
deterrent against couples divorcing. Against that background, in Scott v Scott
[1913] AC 417 the House of Lords affirmed in the strongest possible terms the
long-established stance of the English courts that hearings should be held in
public. The first instance judge was criticised for hearing the nullity
proceedings in private.
25. Over the years Parliament has gone on to create a considerable number
of exceptions to the ordinary rule that proceedings must be held in public.
Similarly, Parliament has gone beyond the Judicial Proceedings (Regulation of
Reports) Act 1926 and has introduced other statutory restrictions on what may
be reported in various kinds of cases, especially those involving children. See,
for instance, section 39 of the Children and Young Persons Act 1933, section
97 of the Children Act 1989 and section 45 of the Youth Justice and Criminal
Evidence Act 1999. “Given the number of statutory exceptions,” Lord Steyn
observed in In re S (A Child) (Identification: Restrictions on Publication)
[2005] 1 AC 593, 604,
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Anonymity Orders to Give Effect to Article 8 Convention Rights
28. Under the Human Rights Act 1998 article 8(1) requires public
authorities, such as the court, to respect private and family life. But M does not
need to ask for the anonymity order to prevent the court itself from infringing
his article 8 Convention rights. Suppose the court considers, whether in the
light of submissions or not, that, by publishing its judgment in the usual form,
it will itself act unlawfully under section 6 of the Human Rights Act because it
will infringe a party’s article 8 Convention rights. In that eventuality, the court
does not deal with the matter by issuing anonymity orders to other people;
rather, it ensures that it acts lawfully by taking appropriate steps of its own.
That presumably explains why, for instance, the letter M, instead of the
appellant’s name, is used in the judgments below. In this way the courts avoid
what they perceive to be the problem that they would act unlawfully if they
named M in their judgments and so infringed his article 8 rights.
29. In fact, however, in these cases the courts have gone further: they have
not only used initials in their judgments but have made anonymity orders
addressed to other people - in effect, to the press. Having the power to make
orders of this kind available is one of the ways that the United Kingdom fulfils
its positive obligation under article 8 of the Convention to secure that other
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individuals respect an individual’s private and family life. In Von Hannover v
Germany (2005) 40 EHRR 1, 25, para 57, the European Court of Human
Rights reiterated that:
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.
30. To comply with article 8, United Kingdom law must have a remedy of
this kind available for use in appropriate cases. This means that the Human
Rights Act has removed any doubts that might otherwise have existed (cf
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47) about the availability
of the remedy in English law. In In re S (A Child) (Identification: Restrictions
on Publication) [2005] 1 AC 593, a woman had been charged with the murder
of her son. The guardian of her remaining son sought an order restraining the
media from identifying the woman and the victim, in order to protect the
privacy of her remaining son. The House of Lords held that no such order
should be made. But, speaking for all members of the appellate committee,
Lord Steyn affirmed, at p 605, para 23, that the court did have jurisdiction to
make an order of this kind and that “the foundation of the jurisdiction to
restrain publicity in a case such as the present is now derived from Convention
rights under the ECHR.” More recently, in In re British Broacasting Corpn
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[2009] UKHL 34; [2009] 3 WLR 142, 161, para 57, Lord Brown of Eaton-
under-Heywood indicated that the powers of the High Court to make such an
order “arise under section 6 of the [Human Rights Act 1998] read in
conjunction with section 37 of the [Senior Courts Act 1981].”
32. Counsel for the press argued, however, that M’s reputation does not fall
within the scope of article 8. The argument is best addressed after looking at
article 10.
33. The press found their case for setting aside the anonymity order in
favour of M on their article 10 Convention rights to freedom of expression.
Although article 10(1) does not mention the press, it is settled that the press and
journalists enjoy the rights which it confers.
34. In asserting their right to publish M’s name, the press are not asking to
be supplied with information which would otherwise not be available to them.
On the existing Strasbourg case law, a right to obtain that kind of information
is not within the scope of article 10(1): Leander v Sweden (1987) 9 EHRR 433,
456, para 74. Here, however, the cases are heard in public and, were it not for
the use of his initial and the anonymity orders, M’s name would be available to
the press and they would be free to report it. Indeed, the effect of the orders is
that, even if the press are aware of M’s name from other sources (which may
well be the case), they cannot use it when reporting the proceedings. So, by
making the orders, the courts have interfered with the article 10 Convention
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rights of the press to impart information which either is, or normally would be,
available to them.
35. Equally clearly, the court interferes with the article 10 rights of the press
when it takes a step, such as making an anonymity order, which interferes with
their freedom to report proceedings as they themselves would wish – in the
present case, by making their report refer to the situation of named,
identifiable, individuals, including M. See, for instance, News Verlags GmbH
& Co KG v Austria (2000) 31 EHRR 246, 256, para 39:
36. Nevertheless, under article 10(2), the right of the press to freedom of
expression can be subjected to restrictions which are prescribed by law and are
necessary in a democratic society “for the protection of the reputation or rights
of others”. The “rights of others” include their rights under article 8.
37. On behalf of the press, Mr Robertson QC did not dispute that article 8
rights fall within the scope of “the rights of others” in article 10(2). But, under
reference to the judgment of the European Court of Human Rights in Karakó v
Hungary (application no 39311/05), 28 April 2009, he submitted that article 8
does not confer a right to have your reputation protected from being affected by
what other people say. So the only article in play in relation to M’s reputation
was article 10.
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district court dismissed the indictment on the ground that the opponent’s
statement was a value judgment within the limits of acceptable criticism of a
politician. The applicant complained of a violation of his article 8 rights. The
European Court held that there had been no such violation.
40. In Karakó the European Court did not depart from that earlier
jurisprudence. Rather, it accepted, at para 23, that some attacks on a person’s
reputation could be of such a seriously offensive nature as to have an inevitable
direct effect on the victim’s private life. But the court took the view that, on the
facts, the applicant had not shown that the publication in question had
constituted such a serious interference with his private life as to undermine his
personal integrity. That being so, the applicant’s reputation alone was at stake
in the context of the expression which was said to have damaged it.
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42. In short, in Karakó the European Court was concerned with the
application of articles 8 and 10 in a situation where, in the court’s view, the
applicant had not shown that the attack on his reputation had so seriously
interfered with his private life as to undermine his personal integrity. In fact,
the court does not mention any specific effects on the applicant’s private life. In
the present case, however, as already set out at para 21 above, M does explain
how he anticipates that his private life would be affected if his identity were
revealed. Admittedly, he appears at one point to single out the alleged damage
to his reputation. Nevertheless, the Court is really being invited to consider the
impact of publication of his name on his reputation as a member of the
community in which he lives and the effect that this would have on his
relationship with other members of that community. In that situation the
alleged effect on his reputation should be regarded as one of the reasons why,
he contends, a report that identified him would seriously affect his private life.
On that basis the report would engage article 8(1).
43. The case is, accordingly, one where both articles 8 and 10 are in play
and the Court has to weigh the competing claims of M and his family under
article 8 and of the press under article 10. More particularly, the Court is being
asked, on the one hand, to give effect to the right of the press to freedom of
expression and, on the other, to ensure that the press respect M’s private and
family life.
46. First, M accepts, of course, that the freezing orders have been made
against him under the TO 2006 and the TO 2009. And he does not challenge
the fact that the Treasury made them because it claims to have reasonable
grounds for suspecting that he facilitates, or may facilitate, terrorism. So the
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effect of the anonymity order is to prevent the publication of these matters of
fact which M does not – indeed cannot - challenge.
47. Secondly, the anonymity orders granted by the courts below are blanket
orders: in the words of the Court of Appeal, “no report of these proceedings
shall directly or indirectly identify [the appellants] or any member of their
families.” Sweeping orders of that kind proceed on the basis that the mere
publication of any report of the proceedings which identified any of the
appellants, including M, as a person suspected of facilitating terrorism would
infringe his article 8 rights. This is clear from the fact that the ban prevents a
newspaper, which is wholly sympathetic to the plight of M, from publishing a
report of the proceedings that identifies him and from then going on to support
his case and criticise the Government in the strongest possible terms for
subjecting him to the ordeal of the freezing order. The Court has to be satisfied
that a ban with this far-reaching effect is necessary in a democratic society in
order to ensure due respect for M’s private and family life.
48. The European Court gave guidance on the approach to be adopted when
articles 8 and 10 are both in play in Von Hannover v Germany (2005) 40
EHRR 1. The circumstances were, of course, very different from those in the
present cases: Princess Caroline was complaining of intrusions into her private
life by the paparazzi taking photographs of her while she was engaged in
ordinary, everyday, pursuits. The court held that, when so engaged, she was
entitled to the protection of article 8. So it had to consider whether German
law, which permitted these intrusions by the press, had properly balanced the
rights of the press under article 10 and the rights of Princess Caroline under
article 8. The European Court held that it had not.
49. The European Court recalled, at p 25, para 58, that “the press plays an
essential role in a democratic society. Although it must not overstep certain
bounds, in particular in respect of the reputation and rights of others, its duty is
nevertheless to impart – in a manner consistent with its obligations and
responsibilities – information and ideas on all matters of public interest…”.
Hence “in the cases in which the Court has had to balance the protection of
private life against the freedom of expression it has always stressed the
contribution made by photos or articles in the press to a debate of general
interest…” (p 25, para 60). The decisive factor in balancing the protection of
private life against freedom of expression should lie in the contribution that the
published photos and articles make to a debate of general interest (p 28, para
76). But, where publication of the photographs and articles was simply
intended to satisfy the curiosity of a particular readership regarding the details
of the applicant’s private life, it could not be deemed to contribute to any
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debate of general interest to society. In that situation freedom of expression
called for a narrower interpretation (p 27, paras 65 and 66).
50. The European Court’s exposition in Von Hannover really echoed what
Lord Hoffmann had said, a few weeks earlier, in Campbell v MGN Ltd [2004]
UKHL 22; [2004] 2 AC 457, 473-474, paras 55 and 56:
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weighs little in the balance against the privacy of
personal information.”
52. In the present case M’s private and family life are interests which must
be respected. On the other side, publication of a report of the proceedings,
including a report identifying M, is a matter of general, public interest.
Applying Lord Hoffmann’s formulation, the question for the court accordingly
is whether there is sufficient general, public interest in publishing a report of
the proceedings which identifies M to justify any resulting curtailment of his
right and his family’s right to respect for their private and family life.
Anonymity in Europe
54. In France, for instance, until recently, the general rule was that the
parties’ names were published. This led to an interesting case brought by the
husband against the publishers of a law report of a divorce case in which he
had been the defendant. The report identified him and the judgment gave
embarrassing details about his sexual habits: Franconville c Gazette du Palais,
Tribunal de grande instance de Paris 8.12.1971, Gaz Pal 1971, 2 Jur 836;
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Gazette du Palais c Franconville, Cour d’appel de Paris 12.1.1973, Gaz Pal
1973, 1 Jur 137. The appeal court held in favour of the publishers and – rather
as in Britain - legislation was subsequently brought in to change the law on the
reporting of matrimonial cases. In 2001, however, the Commission Nationale
de l’Informatique et des Libertés recommended that, if decisions were going to
be made available free of charge on the internet, then they should be
anonymised. Since 2002 the Cour de cassation has chosen to follow that
recommendation and usually its decisions now appear without the parties’
names. The Recueil Dalloz gives the parties’ names in the headings, but prints
the anonymised version of the text of the judgment. It is important to note that
the press can, and do, consult the lists of cases, where the names appear, and in
this way they are able to identify the parties when reporting the proceedings.
55. In Italy the general position is the same as it was in France before the
changes initiated in 2002. In Germany, by contrast, the practice since the time
of the Reichsgericht has been for the courts and the official reports to refer to
the parties by the initials of their surnames or of their firm or company name.
Also the parties’ lawyers are not identified. The practice in Austria is broadly
similar.
56. Until recently, the German courts rigidly followed this practice even
where a case had received wide publicity and the names of the parties were
actually well known to the public. They did the same when the judgment
referred to the holder of a particular office, such as the Federal Chancellor,
whose identity was common knowledge. The results could be risible and so,
more recently, the courts have abandoned the practice in cases where the
identity of a party, such as Princess Caroline of Monaco, is well known to the
press and everyone else. See the discussions in O Jauernig, “Dürfen
Prozeßbeteiligte in veröffentlichten Zivilentscheidungen namentlich genannt
werden?” in K A Bettermann, A Zeuner, Festschrift für Eduard Bötticher
(1969), pp 219-241; K Siehr, “Veröffentlichte Gerichtsentscheidungen: Zur
Anonymisierung oder Veröffentlichung von Namen der Beteiligten eines
Zivilverfahrens”, in Liber Amicorum Bernd Stauder (2006), pp 469-484,
especially at pp 477-481. The usual practice means that it is sometimes only
when a case reaches the European Court of Justice or the European Court of
Human Rights and the names are published for the first time in their judgments
that people in Germany discover who the parties actually are. See Siehr,
“Veröffentlichte Gerichtsentscheidungen”, pp 482-483.
57. Despite criticisms, the German courts have followed the same practice
for considerably more than a century. Some scholars have argued that a legal
basis or justification for the practice can be found in the constitutional right of
individuals to control of their personal data, as developed in the 1983
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Constitutional Court judgment on the Census Law (Volkszählungsurteil):
BVerfGE 65, 1. All that needs to be said for present purposes is that this is
certainly not the origin of the courts’ practice, which existed long before the
German Federal Constitution. Even now, there is doubt about the exact
explanation for it. One suggestion is that the courts do not mention the names
because their view of the law must be seen to be objective and unaffected by
the standing of the parties or their lawyers. At all events, when it uses initials
and supplies the public with a version in which the parties’ names are blanked
out from the rubric, a German court is not trying to control how the case is to
be reported by the press. Newspapers are free to use their own knowledge to
identify the individuals involved and to name them in any report of the
proceedings or judgment. While an anonymous version of the judgment may
usually meet the needs of lawyers, the target audience of the press is likely to
be different and to have a different interest in the proceedings, which will not
be satisfied by an anonymised version of the judgment. In the general run of
cases there is nothing to stop the press from supplying the more full-blooded
account which their readers want.
62. This is perhaps the main argument in favour of the anonymity order.
Along with the others, it has to be considered against the points advanced by
the press in favour of lifting the anonymity order and allowing M’s identity to
be revealed.
63. What’s in a name? “A lot”, the press would answer. This is because
stories about particular individuals are simply much more attractive to readers
than stories about unidentified people. It is just human nature. And this is why,
of course, even when reporting major disasters, journalists usually look for a
story about how particular individuals are affected. Writing stories which
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capture the attention of readers is a matter of reporting technique, and the
European Court holds that article 10 protects not only the substance of ideas
and information but also the form in which they are conveyed: News Verlags
GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39, quoted at para
35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd
[2004] 2 AC 457, 474, para 59, “judges are not newspaper editors.” See also
Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR
142, 152, para 25. This is not just a matter of deference to editorial
independence. The judges are recognising that editors know best how to
present material in a way that will interest the readers of their particular
publication and so help them to absorb the information. A requirement to report
it in some austere, abstract form, devoid of much of its human interest, could
well mean that the report would not be read and the information would not be
passed on. Ultimately, such an approach could threaten the viability of
newspapers and magazines, which can only inform the public if they attract
enough readers and make enough money to survive.
64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608,
para 34, when he stressed the importance of bearing in mind that
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.
65. On the other hand, if newspapers can identify the people concerned,
they may be able to give a more vivid and compelling account which will
stimulate discussion about the use of freezing orders and their impact on the
communities in which the individuals live. Concealing their identities simply
casts a shadow over entire communities.
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66. Importantly, a more open attitude would be consistent with the true view
that freezing orders are merely indicative of suspicions about matters which the
prosecuting authorities accept they cannot prove in a court of law. The
identities of persons charged with offences are published, even though their
trial may be many months off. In allowing this, the law proceeds on the basis
that most members of the public understand that, even when charged with an
offence, you are innocent unless and until proved guilty in a court of law. That
understanding can be expected to apply, a fortiori, if you are someone whom
the prosecuting authorities are not even in a position to charge with an offence
and bring to court. But, by concealing the identities of the individuals who are
subject to freezing orders, the courts are actually helping to foster an
impression that the mere making of the orders justifies sinister conclusions
about these individuals. That is particularly unfortunate when, as was
emphasised on the appellants’ behalf, they are unlikely to have any opportunity
to challenge the alleged factual basis for making the orders.
68. Certainly, the identities of the claimants cannot affect the answers that
this Court gives to the legal questions in the substantive appeals. So those
identities may not matter particularly to the judges. But the legitimate interest
of the public is wider than the interest of judges qua judges or of lawyers qua
lawyers. Irrespective of the outcome, the public has a legitimate interest in not
being kept in the dark about who are challenging the TOs and the AQO. The
case of HAY is instructive in this respect. Most people will be astonished, for
example, to learn that, up until now, the courts have prevented them from
discovering that one of the claimants, Mr Youssef, has already successfully
sued the Home Secretary for wrongful detention after a failed attempt to deport
him to Egypt. Equally importantly, even while the Treasury is defending these
proceedings brought by him, the Government are trying to have his name
removed from the 1267 Committee list. Meanwhile, he is busy writing and
broadcasting from London on Middle East matters.
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69. By lifting the anonymity order in HAY’s case the court allows members
of the public to receive relevant information about him which they can then use
to make connexions between items of information in the public domain which
otherwise appear to be unrelated. In this way the true position is revealed and
the public can make an informed judgment. There may well, of course, be no
similar revelations in the case of M. But, assuming that is so, this would, in
itself, be important, since it would contribute to showing how the freezing-
order system affects different people in different situations – a point to be
considered in any debate on the merits of the system. At present, the courts are
denying the public information which is relevant to that debate, even though
the whole freezing-order system has been created and operated in their name.
70. Along with A, K and G, M has himself sought to enter the debate about
the merits of freezing orders. After the judgment of Collins J in these
proceedings in April 2008, his solicitors issued a press release which included
the following:
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71. It is unusual, to say the least, for individuals to enter a debate, using
highly charged language and accusing the Government of dishonouring a
pledge, but at the same time to insist that they should have the right to hide
behind a cloak of anonymity. It is also unusual for someone to assert the need
for the press to respect his private and family life by not reporting his identity
while simultaneously inviting them to report his version of the impact of the
freezing orders on himself and members of his family. The public can hardly be
expected to make an informed assessment of the argument if they are prevented
from knowing who is making these points and, therefore, what his general
stance is.
72. Of course, allowing the press to identify M and the other appellants
would not be risk-free. It is conceivable that some of the press coverage might
be outrageously hostile to M and the other appellants – even though nothing
particularly significant appears to have been published when Mr al-Ghabra’s
identity was revealed. But the possibility of some sectors of the press abusing
their freedom to report cannot, of itself, be a sufficient reason for curtailing that
freedom for all members of the press. James Madison long ago pointed out that
“Some degree of abuse is inseparable from the proper use of everything, and in
no instance is this more true than in that of the press”: “Report on the Virginia
Resolutions” (1800), in Letters and Other Writings of James Madison (1865)
Vol 4, p 544. The Press Complaints Commission is the appropriate body for
dealing with any lapses in behaviour by the press. The possibility of abuse is
therefore simply one factor to be taken into account when considering whether
an anonymity order is a proportionate restriction on press freedom in this
situation.
73. Although it has effects on the individual’s private life, the purpose of a
freezing order is public: it is to prevent the individual concerned from
transferring funds to people who have nothing to do with his family life. So this
is not a situation where the press are wanting to publish a story about some
aspect of an individual’s private life, whether trivial or significant. Rather, they
are being prevented from publishing a complete account of an important public
matter involving this particular individual, for fear of the incidental effect that
it would have on M’s private and family life.
74. So far as the potential effect on M’s private and family life is concerned,
the evidence is very general and, for that reason, not particularly compelling.
The apparent lack of reaction to the naming of Mr al-Ghabra is relevant in this
respect, since it suggests that the impact of identifying an individual on
relationships with the local community is not likely to be as dramatic as the
judges who made the orders appear to have anticipated. The fact that, through
his solicitors, M has himself gone out of his way to put into the public domain
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what he says are the effects of the freezing order on his family life, is also
significant.
75. On the other hand, publication of M’s identity would make a material
contribution to a debate of general interest.
Conclusion
76. In these circumstances, when carrying out the ultimate test of balancing
all the factors relating to both M’s article 8 rights and the article 10 rights of the
press, we have come to the conclusion that there is indeed a powerful general,
public interest in identifying M in any report of these important proceedings
which justifies curtailment, to that extent, of his, and his family’s, article 8
Convention rights to respect for their private and family life.
77. For all these reasons, we would set aside the anonymity order in respect
of M. It follows that there is nothing to prevent the order in favour of A and K
from being set aside for the reasons given in para 17. As explained in paras 18-
20, the order in favour of HAY must also be set aside. Therefore, A, K, M and
HAY will be named here and in the judgments on the substantive appeals, as
Mr Mohammed Jabar Ahmed, Mr Mohammed Azmir Khan, Mr Michael
Marteen (formerly known as Mohammed Tunveer Ahmed) and Mr Hani El
Sayed Sabaei Youssef (or Hani al-Seba’i), respectively. In addition, in relation
to article 8(3)(d) of the TO 2009, the Court will order that the identities of A, K
and M should be disclosed for the purpose of these proceedings. The
anonymity order in respect of the appellant, G, has, of course, already been set
aside and he has been identified as Mr Mohammed al-Ghabra.
78. During the course of the argument, incidental reference was made to
anonymity orders in proceedings relating to control orders made under section
2 of the Prevention of Terrorism Act 2005. The present proceedings do not
concern control orders and therefore it would not have been possible on any
view for the Court to set aside the anonymity orders in the proceedings relating
to them. Many of the same issues would obviously arise if an application were
made to set aside the anonymity orders made in any outstanding control order
proceedings. The same principles would also have to be applied, but there may
be arguments and considerations in those cases which were not explored at the
hearing in this case. Conceivably, also, the position might not be the same in all
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of the cases. We would accordingly reserve our opinion on the matter of
anonymity orders in control order cases.
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