Times Newspapers Ltd v Secretary of State for the Home Department & Anor

Anonymity in control-order proceedings is not automatic, but it may properly be ordered at the permission stage without prior notice to the media or the controlled person. The court must assess the circumstances of the particular case, including the risks to monitoring, enforcement, the individual and his family, and the public interest in open justice and freedom of expression. Supporting reasons should ordinarily accompany the application, but their absence does not prevent the judge reaching an informed conclusion from the evidence and the nature of the case. The statutory power under the Prevention of Terrorism Act 2005 is distinct from, and wider than, powers concerned solely with protecting the administration of justice.

Mitting J had permitted a control order to be made against AY and directed that he be identified only by initials. At the subsequent directions hearing, Times Newspapers Limited applied to remove the anonymity order and raised procedural and drafting objections. The Secretary of State and AY opposed the application.

The court considered the procedure for making anonymity orders, the form and duration of the order, notification to the media, the use of closed evidence, and the substantive balance between open justice, Article 10 rights, AY’s Article 8 rights, and the effective operation of the control order.

1. Disposition. The application to remove AY’s anonymity was dismissed. The court held that the case for maintaining anonymity was compelling, although the detailed reasons were withheld because publication would identify AY.
2. An anonymity order may be made when permission is granted for a control order. It need not await an opportunity for the media or the controlled person to object. That approach is justified because disclosure may frustrate service, monitoring or enforcement. The media can challenge the order at the directions hearing.
3. An application for anonymity should ordinarily contain short case-specific reasons, including whether the person’s name and address can realistically be treated differently. However, the absence of such material does not prevent the judge reaching an independent conclusion from the evidence supporting the control order, experience and a sensible appraisal of the circumstances.
4. The relevant statutory power is exercised for the purposes of the Prevention of Terrorism Act 2005. It is not confined to protecting the administration of justice in the control-order proceedings or another trial. The effective operation of the control order, before and after the hearing, may be the major public interest supporting anonymity. Where the administration of justice is the sole basis for anonymity, the appropriate powers under the Contempt of Court Act 1981 should be used.
5. The principles of open justice and Article 10 establish a strong public interest in identifying a person subject to a control order. That interest must nevertheless be balanced against Article 8 rights and the risk that publicity will undermine the control order through evasion, assistance, harassment, violence, disorder or increased monitoring difficulties. The fact that third parties may misuse publicity cannot be treated as irrelevant merely because ordinary reporting is not blameworthy for their conduct.
6. The court could take closed evidence into account without appointing a special advocate on the facts of this case. The procedural safeguards required depend on the circumstances.
7. The anonymity order should be clarified as to its scope. Its duration was not finally determined, but it remained in force unless removed and could be reviewed as circumstances changed. The court also proposed an interim practice under which the media should assume that anonymity applied and check the position with the Home Office or Administrative Court.

Mitting J had previously permitted the control order and made the initial anonymity direction. The present judgment concerned Times Newspapers Limited’s application at the directions stage to remove that direction.