Hilary Term

[2010] UKSC 1

JUDGMENT

Application by Guardian News and Media Ltd and

others in
Her Majesty’s Treasury (Respondent) v
Mohammed Jabar Ahmed and others (FC)
(Appellants)
Her Majesty’s Treasury (Respondent) v
Mohammed al-Ghabra (FC) (Appellant)
R (on the application of Hani El Sayed Sabaei
Youssef) (Respondent) v Her Majesty’s Treasury
(Appellant)

before

Lord Phillips, President

Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Kerr

JUDGMENT GIVEN ON

27 January 2010

Heard on 5 and 22 October 2009

 Applicants Respondent
Geoffrey Robertson QC Jonathan Swift
Anthony Hudson Sir Michael Wood
Andrew O’Connor
(Instructed by Finers (Instructed by Treasury
Stephens Innocent LLP) Solicitor)

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.

2. These are simply examples of what is now a widespread phenomenon.

For instance, on a rough calculation, in 8 out of the 58 appeals decided by the
House of Lords in 2007 at least one of the parties appeared under an initial; the
same applied in 15 out of 74 cases in 2008. Admittedly, cases reaching the
House of Lords and the Supreme Court are not necessarily typical of those
going through the court system as a whole, but the general impression is that
the practice of referring to parties by initials has increased at all levels in recent
years. Even assuming that the use of initials was justified in many cases, the
present appeals show that an order (“anonymity order”) may be made, often by
consent of both parties, without the court considering in any detail what is the
basis or justification for it. This happens despite Sir Christopher Staughton’s
warning, in Ex p P, The Times 31 March 1998, that “when both sides agreed
that information should be kept from the public, that was when the court had to
be most vigilant.” Lord Woolf MR quoted the warning with approval in R v
Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E. The application
challenging the anonymity orders in these appeals provides an opportunity for
reviewing the position.

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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.

The Background Events

7. The three appellants A, K and M are brothers in their thirties. On 2

August 2007 each of them was informed that the Treasury had reasonable
grounds for suspecting that he was, or might be, a person who facilitated the
commission of acts of terrorism. All three had, accordingly, been designated
under article 4 of the Terrorism (United Nations Measures) Order 2006 (“TO
2006”). Subsequently, the Treasury indicated that in 2004 an Al-Qaida-linked
operative had alleged that A and M were Al-Qaida facilitators based in East
London, with M as the leader of the group. It was further suggested that K and
M were involved, with others, in funding Al-Qaida contacts in the tribal areas
of Pakistan. The three men deny all the allegations and maintain that they are
of good character.

8. In the case of these appellants the Treasury decided, in accordance with

article 5(1)(a)(ii) of the TO 2006, to inform only certain persons about the
order. In that situation article 6 applied:

“(1) Where the Treasury propose (in accordance

with article 5(1)(a)(ii)) to inform only certain
persons of a direction, they may specify in the
direction that information contained in it is to be
treated as confidential.

(2) A person who obtains information which is to be

treated as confidential in accordance with paragraph
(1), or to whom such information is provided, must
not disclose it except with lawful authority.

(3) Confidential information is disclosed with

lawful authority only if and to the extent that any of
the following applies—

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 (a) the disclosure is by the Treasury;

(b) the disclosure is with the consent of the person

who is the subject of the information;

(c) the disclosure is to (and is necessary to) give

effect to a requirement under this Order;

(d) the disclosure is required, under rules of court or

a court order, for the purposes of legal proceedings
of any description.

(4) This article does not prevent the disclosure of

information which is already, or has previously
been, available to the public from other sources.

(5) A person who contravenes the prohibition in

paragraph (2) is guilty of an offence.

(6) In proceedings for an offence under this article,

it is a defence for a person to show that he did not
know and had no reasonable cause to suspect that he
was disclosing confidential information.

(7) The High Court or, in Scotland, the Court of

Session may grant an injunction to prevent a breach
of paragraph (2) in relation to any information upon
the application of—

(a) the person who is the subject of the information,

or

(b) 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.”

9. It followed that, unless the appellants consented or a court ordered that

their names were to be disclosed for the purposes of these proceedings (article
6(3)(b) and (d)), their identities were to be treated as confidential.

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
Page 5
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.

Page 6
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.

15. Subsequently, by letter dated 22 October 2009 Mr al-Ghabra was

informed that the Treasury had designated him afresh under article 4 of the TO
2009. But, in view of the fact that his identity was already known (partly as a
result of the order of this Court), no restriction was placed on the publication of
the Treasury’s direction in his case. His designation under the AQO remained
unchanged.

16. Finally, as already explained, the respondent in a separate appeal by the

Treasury, which raises similar substantive issues, is known under the initials
HAY. By a letter dated 6 October 2005 the Foreign and Commonwealth Office
informed him that on 29 September the 1267 Committee had added him to their
consolidated list. Persons included on the list were subject to the freezing of
their funds, economic resources and other financial assets. On 10 October the
Bank of England issued a press release naming HAY as one of seven people
whose names had been added to the list, as a result of which they fell within the
financial sanctions régime under the AQO. He was named as Mr Hani al-
Sayyid Al-Sebai, also known by a variety of other names, including Hani
Youssef (“Mr Youssef”). He was described as an Egyptian living in London. In
fact, shortly after HAY’s designation, in about January 2006 the Government
started trying to persuade the 1267 Committee and the designating state to
provide disclosure to HAY. In June 2009 the Government went further and
began trying to persuade them to agree that his name should be removed from
the list. By the time of the hearing of this application those efforts had not been
successful.

Page 7
A and K

17. Although A, K and M remain unidentified at this stage, counsel

appearing for the appellants informed us that both A and K have actually left
their addresses in London. They have not been in touch with their solicitors and
their solicitors do not know their whereabouts. So there is no way of knowing
whether they are still in the United Kingdom. In these circumstances counsel
was obviously unable to put forward any, far less any compelling, submissions
as to the effect which identification of them as parties in these proceedings
would now have on them or their families. In that situation they do not appear
to have any substantial article 8 interest to counteract the interest of the press in
publishing a full report of the proceedings. But revealing the identities of A and
K would have the incidental effect of revealing the identity of their brother, M.
A final decision on their position must therefore wait until M’s position has
been considered.

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.
Page 8
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.

Press Reporting of Judgments in the United Kingdom

22. In the United Kingdom, until the recent efflorescence of anonymity

orders, the general rule both in theory and in practice was that judicial
proceedings were held in public and the parties were named in judgments.
Their names would also be given in newspaper reports and in the law reports.
That is still usually the position – as can be seen from the frequent press reports
of, say, employment tribunal hearings and decisions where details of personal
and sexual relationships among the warring parties are a common feature.

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
Page 9
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.

24. Eventually, however, in the Judicial Proceedings (Regulation of

Reports) Act 1926 Parliament intervened to restrict the freedom of the press to
report any indecent matter, the publication of which would be calculated to
injure public morals. Special limitations were placed on what could be reported
about divorce and other matrimonial proceedings. But, even so, the right to
report the names, addresses and occupations of the parties and witnesses and a
concise statement of the charges, defences and counter-charges was affirmed.
The purpose of the legislation was therefore not the protection of the parties’
privacy but the prevention of injury to public morals throughout Great Britain:
Friel v Scott 2000 JC 86, 88D-89C. See G Savage, “Erotic Stories and Public
Decency: Newspaper Reporting of Divorce Proceedings in England” (1998) 41
The Historical Journal 511-528.

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,

“it needs to be said clearly and unambiguously that

the court has no power to create by a process of
analogy, except in the most compelling
circumstances, further exceptions to the general
principle of open justice.”

Page 10
Anonymity Orders to Give Effect to Article 8 Convention Rights

26. In an extreme case, identification of a participant in legal proceedings,

whether as a party or (more likely) as a witness, might put that person or his
family in peril of their lives or safety because of what he had said about, say,
some powerful criminal organisation. In that situation, he would doubtless ask
for an anonymity order to help secure his rights under articles 2 and 3 of the
European Convention. Those Convention rights are not in play in these
appeals, however, since counsel accepted that the appellants could not show
that publication of their names would put any of them or their families at risk
of physical violence.

27. States are, of course, obliged by articles 2 and 3 to have a structure of

laws in place which will help to protect people from attacks on their lives or
from assaults, not only by officers of the state but by other individuals.
Therefore, the power of a court to make an anonymity order to protect a
witness or party from a threat of violence arising out of its proceedings can be
seen as part of that structure. And in an appropriate case, where threats to life
or safety are involved, the right of the press to freedom of expression obviously
has to yield: a newspaper does not have the right to publish information at the
known potential cost of an individual being killed or maimed. In such a
situation the court may make an anonymity order to protect the individual.

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
Page 11
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:

“although the object of article 8 is essentially that of

protecting the individual against arbitrary
interference by the public authorities, it does not
merely compel the State to abstain from such
interference: in addition to this primarily negative
undertaking, there may be positive obligations
inherent in an effective respect for private or family
life. These obligations may involve the adoption of
measures designed to secure respect for private life
even in the sphere of the relations of individuals
between themselves….
The boundary between the State’s positive and
negative obligations under this provision does not
lend itself to precise definition. The applicable
principles are, nonetheless, similar. In both contexts
regard must be had to the fair balance that has to be
struck between the competing interests of the
individual and of the community as a whole…”
(internal citations omitted).

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

Page 12
[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].”

31. Incidentally, Collins J appears to have thought that section 11 of the

Contempt of Court Act 1981 was the source of the power to make anonymity
orders that is in play in these cases. That view was mistaken. Section 11 is
dealing with the particular situation where a court, having power to do so,
allows a name or other matter to be withheld from the public in proceedings
before the court. An obvious example is a court allowing the victim to withhold
his name when giving evidence for the Crown in a prosecution for blackmail.
Section 11 then gives the court the ancillary power to give directions
prohibiting a newspaper which actually knows the name of the individual from
publishing it. The section resolves any doubt about the power of the court in
these circumstances to prevent persons, other than the parties, from naming the
individual or mentioning the matter outside court. Cf Ex p P, The Times 31
March 1998, per Sir Christopher Staughton.

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.

The Press and Article 10 Convention Rights

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

Page 13
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:

“The Court recalls that it is not for the Court, or for

the national courts for that matter, to substitute their
own views for those of the press as to what
technique of reporting should be adopted by
journalists. Article 10 protects not only the
substance of ideas and information but also the form
in which they are conveyed.”

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.

Article 8 and Reputation

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.

38. In Karakó the applicant was a politician. During an election campaign

an opponent had said in a flyer that the applicant was in the habit of putting the
interests of his electors second. The applicant accused his opponent of criminal
libel, but the prosecutor’s office terminated the investigation on the ground that
the flyer concerned the applicant as a candidate rather than as a public official
and so its publication was not a matter for a public prosecution. Then, acting as
a private prosecutor, the applicant submitted an indictment for libel. The

Page 14
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.

39. As the European Court’s judgment in Karakó itself shows, in Petrina v

Romania (application no 78060/01), 14 October 2008, the court had confirmed,
at para 19, that the right to protection of reputation is a right which, as an
element of private life, falls within the scope of article 8 (“le droit à la
protection de la réputation est un droit qui relève, en tant qu’élément de la vie
privée, de l’article 8 de la Convention”). The court had gone on, at para 29, to
survey its previous case law, ending up with the statement in Pfeifer v Austria
(2007) 48 EHRR 175, 183, para 35, that “a person’s reputation, even if that
person is criticised in the context of a public debate, forms part of his or her
personal identity and psychological integrity...”.

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.

41. Contrary to what Mr Robertson suggested, however, this conclusion did

not mean that the court was proceeding on the basis that the applicant’s claim
in respect of his reputation did not fall within the scope of article 8. That would
have been inconsistent with the court’s previous case law and would also have
made nonsense of the reasoning in paras 24-29 of the judgment. In particular,
in paras 24 and 25 the court is concerned with the inter-relationship of articles
8 and 10 in the circumstances. The outcome of that discussion (para 26) is that,
even though the applicant is founding on article 8, the court must consider
whether the Hungarian authorities properly applied the principles inherent in
article 10. The court concludes that they did (para 27). Putting the two strands
together, the court goes on to find, in para 28, that the applicant’s claim that his
reputation as a politician has been harmed is not sustainable under article 8 and
that a limitation of his opponent’s right to freedom of expression under article
10 would have been disproportionate. That leads, finally, to the conclusion that
there has been no violation of article 8.

Page 15
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).

The Approach when Article 8 and Article 10 are both in play

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.

44. M objects to being identified as a person who is challenging the freezing

orders against him which proceed on the basis that the Treasury suspects on
reasonable grounds that he facilitates, or may facilitate, terrorism. In other
words, what he really objects to is being identified as a person who the
Treasury suspects, on what it regards as reasonable grounds, facilitates or may
facilitate terrorism. He maintains that, if he is identified as such a person, his
article 8 Convention rights will be infringed in the various ways outlined in
para 21.

45. Two particular effects of an anonymity order of this kind should be

noted.

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
Page 16
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

Page 17
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:

“55. I shall first consider the relationship between

the freedom of the press and the common law right
of the individual to protect personal information.
Both reflect important civilised values, but, as often
happens, neither can be given effect in full measure
without restricting the other. How are they to be
reconciled in a particular case? There is in my view
no question of automatic priority. Nor is there a
presumption in favour of one rather than the other.
The question is rather the extent to which it is
necessary to qualify the one right in order to protect
the underlying value which is protected by the
other. And the extent of the qualification must be
proportionate to the need: see Sedley LJ in Douglas
v Hello! Ltd [2001] QB 967, 1005, para 137.
56. If one takes this approach, there is often no real
conflict. Take the example I have just given of the
ordinary citizen whose attendance at NA is
publicised in his local newspaper. The violation of
the citizen's autonomy, dignity and self-esteem is
plain and obvious. Do the civil and political values
which underlie press freedom make it necessary to
deny the citizen the right to protect such personal
information? Not at all. While there is no contrary
public interest recognised and protected by the law,
the press is free to publish anything it likes. Subject
to the law of defamation, it does not matter how
trivial, spiteful or offensive the publication may be.
But when press freedom comes into conflict with
another interest protected by the law, the question is
whether there is a sufficient public interest in that
particular publication to justify curtailment of the
conflicting right. In the example I have given, there
is no public interest whatever in publishing to the
world the fact that the citizen has a drug
dependency. The freedom to make such a statement

Page 18
 weighs little in the balance against the privacy of
personal information.”

51. Lord Hoffmann’s formulation was adopted by Lord Hope of Craighead

in In re BBC [2009] 3 WLR 142, 149, para 17. Since “neither article has as
such precedence over the other” (In re S (A Child) (Identification: Restrictions
on Publication) [2005] 1 AC 593, 603, para 17, per Lord Steyn), the weight to
be attached to the rival interests under articles 8 and 10 - and so the interest
which is to prevail in any competition - will depend on the facts of the
particular case. In this connexion it should be borne in mind that – picking up
the terminology used in the Von Hannover case - the European Court has
suggested that, where the publication concerns a question “of general interest”,
article 10(2) scarcely leaves any room for restrictions on freedom of
expression: Petrina v Romania (application no 78060/01), 14 October 2008,
para 40 (“l’article 10(2) de la Convention ne laisse guère de place pour des
restrictions à la liberté d’expression dans le domaine … des questions d’intérêt
général”).

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

53. Unfortunately, no real additional help with the question of anonymity

orders can be obtained from examining the practices of courts in Europe when
issuing judgments. In all the principal systems, at least, steps can apparently
now be taken, where appropriate, to anonymise reports of matrimonial disputes
and disputes relating to children. Apart from that, however, what is striking is
the variety of approaches.

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;
Page 19
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
Page 20
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.

Article 8 Arguments in favour of an Anonymity Order

58. In para 21 above, we have summarised the effects which, M says,

publication of his name would have on the lives of himself and his family as
members of the local Muslim community. It is more a comment than a
criticism to point out that this evidence is somewhat speculative. Moreover, the
impact of the publication of M’s name is particularly hard for a court to judge
when it does not know how he is currently regarded by other members of the
community.

59. As one of the witness statements lodged on his behalf acknowledges, if

publication were permitted, M would not be identified as someone who
facilitated terrorism, but as someone whom the Treasury claims to have
reasonable grounds to suspect of facilitating terrorism. But his fear is that,
however accurate the reporting, members of the public would simply proceed
on the basis that he is a terrorist. So the ban on publication, he says, should
remain in place to prevent this.

60. That argument raises an important point of principle. It really amounts

to saying that the press must be prevented from printing what is true as a matter
of fact, for fear that some of those reading the reports may misinterpret them
and act inappropriately. Doubtless, some may indeed draw the unjustified
inference that M fears. But the public are by now very familiar with the
argument that various measures, including control orders, have been taken
Page 21
against people who are merely suspected of involvement in terrorism, precisely
because the authorities cannot prove that they are actually involved. Politicians
and the press have frequently debated the merits of that approach, the debates
presupposing that members of the public, including members of the Muslim
community, are more than capable of drawing the distinction between mere
suspicion and sufficient evidence to prove guilt. Any other assumption would
make public discussion of these and similar serious matters impossible. We
therefore see no reason to assume that most members of the local Muslim
community would be unable to draw the necessary distinction and to respond
appropriately to any revelation that the Treasury suspects that M facilitates, or
may facilitate, terrorism.

61. Mr Tomlinson QC submitted, however, that the fact that M cannot

challenge the substance of the allegation against him is crucial. Admittedly, the
House of Lords held in In re S (A Child) (Identification: Restrictions on
Publication) [2005] 1 AC 593 that the press was entitled to name a woman who
had been charged with murdering one of her children, even though this would
affect the private life of her other son. The public interest in publishing the
defendant’s name outweighed the impact on the second son’s private life.
Nevertheless, Mr Tomlinson argued, the press should not reveal that the
Treasury suspects M of facilitating terrorism, since this allegation will never be
brought to trial and cannot be effectively challenged by M. In this situation the
rights of M and his children to respect for their private life should outweigh the
public interest in receiving a report of the proceedings which identifies him. An
order which keeps M’s identity confidential, but otherwise allows a full report
of the proceedings to be published should be regarded as a fair compromise
that gives due weight to M’s right to respect for his private and family life, on
the one hand, and to the interest of the public in being informed about the
proceedings, on the other.

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.

Article 10 Arguments against an Anonymity Order

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
Page 22
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

“from a newspaper’s point of view a report of a

sensational trial without revealing the identity of the
defendant would be a very much disembodied trial.
If the newspapers choose not to contest such an
injunction, they are less likely to give prominence to
reports of the trial. Certainly, readers will be less
interested and editors will act accordingly. Informed
debate about criminal justice will suffer.”

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.

Page 23
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.

67. It might be argued that, nevertheless, in this particular case naming M in

any report would be an unnecessary luxury. After all, it could be said, what
actually matter are the legal and constitutional issues raised in the proceedings
and these can be understood and debated on the basis of an anonymised report.
But the very fact that M and the other appellants are not accepting, but
challenging, the whole system of freezing orders based on mere suspicion
means that they are presenting the orders as wrongs done to them, rather than
as indications that they themselves have done something wrong. Concealing
their identities runs counter to the entire thrust of that case. Should their
appeals be allowed, concealment would be even less appropriate. Not E but Mr
John Entick of Stepney has gone down in history as the plaintiff in the great
case of Entick v Carrington (1765) 19 Howell’s State Trials 1030; 95 ER 807.

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.

Page 24
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:

“The five British nationals bringing this challenge

who have been designated under the Orders have
had their assets frozen, are only allowed to access
enough money to meet basic expenses, and are
compelled to account to a civil servant for every
penny they spend. They are subject to
unprecedented levels of intrusion and control
without end or review. They require permission for
all economic activity, however modest. The
complex regime governed by permissions and
licences is not merely harsh but at points absurd.
We have the madness of civil servants checking
Tesco receipts, a child having to ask for a receipt
every time it does a chore by running to the shops
for a pint of milk and a neighbour possibly
committing a criminal offence by lending a
lawnmower….
The court ruling today has shown that the
Government is willing to sacrifice the fundamental
rights and liberties of its citizens, including the
fundamental constitutional right that only
Parliament can take away basic freedoms, when
they think it convenient to do so. They have
dishonoured their pledge of accountability and
oversight through Parliament.”

Page 25
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
Page 26
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.

Anonymity in Control Order Cases

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
Page 27
of the cases. We would accordingly reserve our opinion on the matter of
anonymity orders in control order cases.

Page 28