Breeze, R. v

Open justice is the starting point in criminal proceedings. A court may depart from it only to the minimum extent strictly necessary to protect the administration of justice. National security concerns alone do not justify a private hearing unless they create the required risk to justice.

Contempt of Court Act 1981, section 11, is ancillary. It permits reporting restrictions only where the court already has power to withhold identifying material. Anonymity may be justified by a real and immediate risk to life under article 2, provided that the restriction is necessary and proportionate. Protection may extend to persons whose identification would expose those at risk, but must accommodate a defendant’s article 6 interest in an open hearing.

The media organisations and one of six accused soldiers appealed from the Judge Advocate General’s order that the whole court-martial should sit in camera and that reporting should be confined to the fact of the charges. The charges alleged a conspiracy to defraud involving approximately £3,000.

After the appeals were brought, the prosecuting authority decided to offer no evidence at the resumed court-martial. The principal remaining issue was whether any restrictions on public access, reporting, or the soldiers’ identification remained lawful and necessary.

1. The appeals were allowed. The blanket order for a wholly private hearing and near-total reporting prohibition was wider than necessary. The prosecution, the other defendants and the Secretary of State accepted that it could not be justified.

2. The court applied the open-justice principles in Scott v Scott [1913] AC 417 and Attorney-General v Leveller [1979] AC 440. A departure from public proceedings is permissible only where, and only to the extent that, it is necessary for the administration of justice. A concern that public proceedings might prejudice national safety does not suffice by itself. There must be material enabling the court reasonably to conclude that the resulting risk affects the proper administration of justice.

3. Army Act 1955, section 94(2), did not justify a continuing anonymity order. It concerns exclusion to prevent disclosure through evidence or statements. Since no trial and no evidence were to follow, the provision could not operate as the source of anonymity.

4. Contempt of Court Act 1981, section 11, does not itself empower a court to withhold a name. It enables a publication restriction only after a lawful withholding decision. At common law, anonymity cannot be granted merely for a defendant’s comfort or feelings. It requires a serious effect on the administration of justice, a statutory basis, or a real and immediate risk to life engaging article 2.

5. The evidence established a real and immediate risk to the lives of two soldiers if they were identified. Identification of three others created a real risk of identifying those two. Their anonymity was therefore a reasonable and proportionate protective measure. The remaining soldier had asserted his article 6 interest in an open hearing and had already been named in another trial. His name was not withheld. Orders under section 11 protected the anonymity of the other five soldiers.

• Judge Advocate General — On 4 February 2008, ordered the court-martial to sit wholly in camera under section 94(2) of the Army Act 1955 and made reporting restrictions under section 11 of the Contempt of Court Act 1981.

• Appeal court — Allowed the appeals, set aside the blanket restrictions, and substituted orders withholding the names of five soldiers only.