Bennett v A & Anor, Officers & Ors

Article 2 is engaged where reasonable grounds objectively justify a witness’s genuine fears for life. The court should avoid rigid risk formulas: the real and immediate test is too high in this context, while speculation is too low.

The decision-maker must assess the evidence as a whole and balance witness protection against open justice and the interests of the inquiry. Human-rights review narrows the range of reasonable responses. Where anonymity does not impair proper investigation, cross-examination or fact-finding, refusal may be irrational and anonymity may be required.

The appeal was brought by Derek Bennett’s family against a decision of Mr Justice Mitting in judicial review proceedings brought by two Metropolitan Police sergeants. The officers sought anonymity at an inquest into Bennett’s death, after one officer shot him and the CPS decided that no prosecution would be brought.

The coroner refused anonymity. Mitting J held that Article 2 was engaged, quashed the refusal and directed anonymity, including screens. The family challenged the threshold for objective justification, the coroner’s assessment of the evidence and the judge’s decision to substitute an order rather than remit the matter.

Appeal dismissed. The decision of Mitting J was upheld. The matter did not require remittal because only one reasonable decision was open on the evidence.

1. On judicial review of an administrative decision affecting a fundamental Convention right, the court may intervene where the decision falls outside the range of responses open to a reasonable decision-maker. The more substantial the interference with human rights, the stronger the justification required. This approach was stated in R v Ministry of Defence ex parte Smith [1996] QB 517 and applied in R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855.
2. Applications for anonymity require the threefold approach identified in R(A) v Lord Saville of Newdigate [2002] 1 WLR 1249: assess the witness’s subjective fears, determine whether they are objectively justified, and balance the protective benefit against the adverse consequences for the inquiry. There is no useful rigid threshold. The real and immediate Osman formulation is too high, speculation is too low, and the correct inquiry is whether reasonable grounds objectively justify the fears.
3. The coroner applied an over-precise threshold by referring to a reasonable chance or serious possibility. She also failed to give sufficient weight to the evidence as a whole, including unchallenged opinion evidence from local officers with first-hand knowledge, evidence concerning access to firearms, violent criminality, previous disorder and likely hostility.
4. That evidence objectively justified the officers’ fears. Article 2 was therefore engaged, and no reasonable decision-maker could conclude otherwise. The balance favoured anonymity because the officers would remain available for examination through a video-link and the order would not prevent proper investigation or fact-finding. The family’s interest was important but did not carry the same weight as the interests of an accused in a criminal trial.
5. Anonymity was properly ordered at least until the conclusion of the inquest. The coroner could reconsider the issue after the jury’s verdict in light of subsequent events and further submissions.

• Court of Appeal (Civil Division) ([2004] EWCA Civ 1439): dismissed the family’s appeal.
• Administrative Court, Queen’s Bench Division: Mr Justice Mitting quashed the coroner’s refusal of anonymity and directed that the two officers should remain anonymous, including through the use of screens at the inquest.