Why anonymity order should be maintained

Mr Edward Fitzgerald, QC and Ms Kate Markus for AP; Mr Robin Tam, QC, Mr Tim Eicke and Mr Rory Dunlop for the Home Secretary.

LORD RODGER, with whom all members of the court agreed, said that in Secretary of State for the Home Department v AP (The Times June 17, 2010), the Supreme Court had quashed the requirement, in a control order imposed by the secretary of state, that AP, who had previously lived in London, should live in a Midlands town some 150 miles away.

In fact, the appeal was academic, so far as AP himself was concerned, since the Home Secretary had already revoked the control order and ordered that AP should be deported on national security grounds. AP had been granted bail pending deportation, on conditions, including residence in the Midlands town, similar to those of the previous control order.

An anonymity order had been made at the outset of the control order proceedings and had been in force ever since.

At the outset of the control order appeal, the Supreme Court had made an order continuing the anonymity order for the duration of the hearing and had invited written submissions from AP and the secretary of state as to whether the anonymity order should cover the publication of its judgment.No submissions were invited from the media and they did not seek to intervene to make submissions.

Both AP and the secretary of state favoured the continuation of the anonymity order. However, the court had borne in mind Sir Christopher Staughton’s warning, in R v Westminster City Council, Ex parte P ((1998) 31 HLR 154, 163), that when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.

In In re Guardian News and Media Ltd (The Times January 28, 2010; [2010] 2 WLR 325) an application was successfully made by various media to set aside anonymity orders in proceedings relating to orders freezing the assets of suspected terrorists.

In that case the court had heard full submissions from both the media and the parties involved and had reviewed the relevant authorities on the application of articles 8 and 10 of the European Convention on Human Rights.

There was no call to repeat that exercise. Rather, so far as articles 8 and 10 were concerned, applying the guidance in Campbell v MGN Ltd (The Times May 7, 2004; [2004] 2 AC 457, paragraphs 55 and 56) and the conclusions reached in Guardian News (at paragraphs 50-52), the court had to ask itself whether there was sufficient general public interest in publishing a report of the proceedings which identified AP to justify any resulting curtailment of his right and his family’s right to respect for their private and family life. The answer would depend on the facts of the particular case.

The court accepted that, at least as a general rule, an interim anonymity order would be appropriate at the ex parte permission stage of proceedings to challenge a control order.

It was important, however, that such an order should not just be continued automatically, but that the need for the order in the particular circumstances should be reviewed at the earliest suitable opportunity.

The secretary of state’s submissions had relied to a considerable extent on rather generalised assertions about the effect of setting aside an anonymity order.

However, experience with the freezing order cases suggested that, when the anonymity order was set aside, those hypothetical fears might well turn out to be exaggerated in the particular case.

The court had been more influenced by AP’s submissions. The town where he had to live was one where there were already considerable community tensions. There was organised racist activity in the town which had achieved not insignificant local support. There was force in AP’s submission that, if he were revealed to be someone who was formerly subject to a control order and was now subject to deportation proceedings for alleged matters relating to terrorism, then he would be at real risk not only of racist and other extremist abuse but of physical violence.

AP had also made the point that he had been forced to live in a town where he had no friends and no real social life. A difficult situation would be made very much worse if the anonymity order were lifted and he found that he was ostracised by members of his mosque and subjected to abuse by members of the public.

Finally, the court had had regard to medical evidence to the effect that the bail conditions represented a significant and constant challenge to AP’s psychological and emotional integrity. Again, that was a matter which had to be taken into account when considering the impact on AP of setting aside the anonymity order.

The absence of any submissions on behalf of the media meant that, unlike in Guardian News, the court was not aware of any special circumstances which might point to a particular public interest in publishing a report of the proceedings which identified AP.

On the other hand, and, again, unlike in Guardian News, the court was unable to discount the risk that AP might indeed be subjected to violence if his identity were revealed. The court also had regard to the potential impact on his private life.

For all those reasons, the public interest in publishing a full report of the proceedings and judgment which identified AP had to give way to the need to protect AP from the risk of violence. Similarly, that public interest would not justify curtailing AP’s right to respect for his private and family life.

The anonymity order should accordingly be maintained.

The court was conscious that it had reached its decision without hearing submissions from the media which might, conceivably, have cast a different light on the situation. Therefore, except in relation to interim orders at the application stage, the judgment should not be regarded as laying down any general rule as to the way that applications for anonymity orders should be determined in control order cases.

Solicitors: Wilson Solicitors LLP, Tottenham; Treasury Solicitor.