Times Newspapers Ltd & Ors v Soldier B & Ors

Open justice is the starting point. A court may depart from it only to the extent strictly necessary for the administration of justice or under a statutory exception. National security alone does not justify a private hearing.

A defendant’s anonymity requires a proper source of power and compelling justification. A real and immediate risk to life may engage article 2 and justify proportionate protective measures. Contempt of Court Act 1981 section 11 is ancillary only: it permits publication restrictions where a court already has power to withhold the identity. Army Act 1955 section 94(2) concerns evidence or statements that may assist an enemy and cannot justify anonymity where there will be no trial or evidence.

The Judge Advocate General ordered the entire court-martial of six soldiers, charged with conspiracy to defraud, to sit in camera. He also prohibited reporting other than the fact of the charges. The order relied on section 11 of the Contempt of Court Act 1981 and section 94(2) of the Army Act 1955.

Two media organisations and one soldier appealed. Before the appeal was decided, the Army Prosecuting Authority decided to offer no evidence at the resumed court-martial. The central issues were whether the blanket restrictions were lawful and whether any of the soldiers should remain anonymous.

1. The appeals were allowed. The Judge Advocate General’s blanket order for a wholly private hearing and comprehensive reporting restrictions was wider than necessary and could not be justified. The prosecution and the other parties ultimately accepted that conclusion.
2. The court reaffirmed the common-law principle of open justice stated in Scott v Scott [1913] AC 417 and Attorney-General v Leveller [1979] AC 440. A departure from public proceedings is permitted only where, and only so far as, it is necessary to secure the administration of justice or a statutory exception. National security is not by itself sufficient. It may justify privacy only where its consequences would otherwise endanger the administration of justice.
3. Section 94(2) of the Army Act 1955 did not provide a route to anonymity. It concerns exclusion of the public where evidence or a statement might disclose information useful to an enemy. As no evidence was to be called at a trial, the provision had no application.
4. Section 11 of the Contempt of Court Act 1981 did not itself confer power to conceal an identity. Following R v Evesham Justices, ex parte McDonnagh [1988] 1 QB 553, publication restrictions under that section depend on a pre-existing power to withhold the matter from the public.
5. The court applied Re Officer L [2007] 1 WLR 2135. Anonymity could be justified where its absence would seriously affect the administration of justice or expose a soldier to a real and immediate risk to life contrary to article 2. The evidence established that risk for two soldiers. Anonymity for three further soldiers was a reasonable and proportionate means of preventing identification of those two. The remaining soldier had asserted his article 6 interest in an open hearing and could be identified.
6. The press could report what occurred in open court, but could not retrospectively obtain publication of the material heard in camera. The private parts of the hearings were necessary to determine the proper scope of restrictions, and that material should not enter the public domain.

• Court of Appeal (Criminal Division), sitting as the Courts Martial Appeal Court: allowed the media and soldier’s appeals; replaced the blanket restrictions with anonymity for five soldiers and consequential publication directions: [2008] EWCA Crim 2396.
• Court-martial (Judge Advocate General): on 4 February 2008, ordered the proceedings to be held wholly in camera and prohibited reporting save for the fact of the charges.