Times Newspapers Ltd & Ors v Soldier B

Open justice requires criminal proceedings and the identities of defendants to remain public unless a restriction is strictly necessary for the administration of justice or is authorised by statute. National security alone does not justify a private hearing.

Contempt of Court Act 1981 section 11 provides a publication power only where the court already has power to withhold the matter. Anonymity may be justified where its absence would seriously affect the administration of justice, or where there is a real and immediate risk to life under Article 2. Any protection must be necessary and proportionate, while accommodating a defendant’s Article 6 interest in an open hearing.

The media and one defendant soldier appealed from the Judge Advocate General’s order that the whole court-martial proceedings against six soldiers charged with conspiracy to defraud should be heard in camera. The order also prohibited reporting other than the fact of the charges.

By the appeal, the Army Prosecuting Authority accepted that the order was wider than necessary and did not oppose the appeals. It subsequently decided to offer no evidence at the resumed court-martial. The remaining issues were whether material from the appellate hearings could be published and whether the soldiers’ identities should continue to be protected.

1. The appeals were allowed. The original order for an entirely private trial and an almost complete reporting prohibition was wider than the interests of justice required.

2. The court reaffirmed the principle of open justice in Scott v Scott [1913] AC 417 and Attorney-General v Leveller [1979] AC 440. A court may depart from public justice only to the extent reasonably necessary to serve the ends of justice. National safety does not itself permit a private hearing. It may do so where the safety concern would endanger the administration of justice and there is material on which the court can reach that conclusion.

3. Contempt of Court Act 1981 section 11 did not itself confer a power to conceal a defendant’s identity. The necessary underlying power had to arise from the administration of justice, a statutory exception, or the Convention. Army Act 1955 section 94(2) concerned information in evidence that might assist an enemy. As there was to be no trial and no such evidence, it could not justify anonymity.

4. On the evidence heard in camera, identification of two soldiers created a real and immediate risk to their lives. Article 2 therefore justified anonymity for them. Anonymity for three further soldiers was a reasonable and proportionate precaution because identifying them could reveal the identities of the two at-risk soldiers. The remaining soldier had asserted his Article 6 interest in an open hearing and was entitled to be identified, notwithstanding some consequential risk to the effectiveness of the other orders.

5. The press could report what occurred in open court, but had no entitlement to publish material from the properly private parts of the appellate hearings. The court ordered the names of the five protected soldiers to be withheld and made consequential section 11 reporting directions.

• Court of Appeal (Criminal Division), sitting as the Courts Martial Appeal Court: allowed the media and defendant soldier’s appeals; replaced the blanket private-hearing order with anonymity and reporting directions protecting five soldiers.
• Judge Advocate General: on 4 February 2008, ordered the whole court-martial to sit in camera and prohibited reporting save for the fact of the charges.