Harper & Anor, R (on the application of) v Aldershot Magistrates Court

The statutory power to prohibit publication of information withheld in court proceedings is an exception to the principle of open justice. The applicant must establish both a justification for withholding the information and a sufficient connection between the restriction and the administration of justice. Personal welfare or a genuine safety concern is insufficient by itself. The court must assess whether disclosure would frustrate or render impracticable the administration of justice, or damage another public interest protected by legislation. A restriction is not justified where disclosure would not increase the relevant risk or produce any practical benefit. Article 2 of the European Convention on Human Rights is not engaged on facts showing no such adverse impact.

Two senior police officers facing committal proceedings to the Crown Court under section 51 of the Crime & Disorder Act 1998 applied at Aldershot Magistrates Court for their home addresses not to be published. They relied on their roles, previous covert work and concerns for the safety of themselves and their families.

The magistrates refused the application on 29 August 2009 and declined to reconsider it. An interim injunction was then granted by Jack J. The claimants sought judicial review of the refusal, arguing that withholding their addresses was a proportionate and necessary limitation on open justice, including under article 2 of the Convention. The central issue was whether the evidence justified interfering with open justice under section 11 of the Contempt of Court Act 1981.

1. Application refused. The injunction made by Jack J was discharged. The magistrates were right to refuse to withhold the claimants’ addresses.
2. Section 11 of the Contempt of Court Act 1981 permits directions prohibiting publication only for the purpose for which information was withheld. The governing principle is open justice. Departure is justified where applying that principle in full would frustrate or render impracticable the administration of justice, or damage another public interest for whose protection Parliament has legislated. The relevant public interest is not the private welfare or comfort of persons involved in the proceedings.
3. The claimants bore the burden of establishing both that the requested derogation was limited and that the particular case justified any interference with open justice. Their safety concerns were genuine, but the risk was not shown to be increased by publication of their addresses. Any threat was likely to be targeted and would not be deterred by the need to discover an address. Withholding the addresses would therefore achieve no practical protection relevant to the administration of justice.
4. The proper performance of police duties could, in principle, form part of the administration of justice. On the facts, however, no adverse impact on that interest was established. The seriousness of the charges did not create the type of exceptional risk which could justify withholding identity information.
5. Article 2 of the Convention was not engaged. There was no procedural defect in the magistrates’ decision. Fuller legal advice might have been desirable, but the issues were clear and detailed reasons were not required.

The judgment describes an interim injunction granted by Jack J pending determination of the judicial review. The Administrative Court refused the claim and discharged that injunction.