Application by Guardian News and Media Ltd and others in Her Majesty’s Treasury v Mohammed Jabar Ahmed and others (FC)

Open justice ordinarily requires parties to be named. An anonymity order restricts the press’s right to report proceedings and must be justified as a necessary and proportionate means of protecting a competing right.

Where articles 8 and 10 are engaged, neither has automatic priority. The court must assess the importance of each right, the justification for interfering with it and the proportionality of the proposed restriction. Reputation may fall within private life where publication would seriously affect personal integrity or relationships.

A strong public interest in identifying persons who challenge public measures may outweigh speculative harm to private and family life. Truthful reporting cannot ordinarily be restrained merely because some readers may misunderstand it or because press freedom might be abused.

Four appellants and a respondent in related challenges to terrorism-related asset-freezing measures had been identified by initials under anonymity orders originating in the Administrative Court. When allowing the Treasury’s appeal, the Court of Appeal continued anonymity by an apparently consensual order: [2009] 3 WLR 25.

Press and media organisations applied to the Supreme Court to set aside those orders. The Court had already removed the order protecting Mohammed al-Ghabra because his identity and designation were public. The Treasury no longer opposed disclosure of the remaining identities.

The central issue was whether identifying the individuals in reports of the proceedings would interfere with private and family life under article 8 to an extent justifying restriction of the press’s article 10 rights and departure from open justice.

1. Application granted unanimously. In the judgment delivered by Lord Rodger, the Court set aside the anonymity orders protecting A, K, M and HAY. The order protecting G had already been set aside.
2. An open-ended anonymity order remains effective throughout the proceedings, including at each appellate level, until it is set aside. Rule 27 of the Supreme Court Rules 2009, requiring contested appeals to be heard in open court, did not require a fresh application for anonymity. Such an order regulates reporting rather than closing the hearing.
3. The ordinary rule is that proceedings are public and the parties are named. The courts nevertheless have power to restrain publicity where necessary to secure Convention rights. That power arises through section 6 of the Human Rights Act 1998, read with section 37 of the Senior Courts Act 1981. Section 11 of the Contempt of Court Act 1981 supplies only an ancillary power where a court has already permitted information to be withheld during proceedings.
4. Reputation may engage article 8 where publication would have a sufficiently serious effect upon private life, personal integrity or relationships. M’s alleged loss of standing within his community therefore engaged article 8. Article 10 was also engaged because anonymity prevented the press from reporting information which was, or ordinarily would be, available at a public hearing and restricted the form of reporting.
5. Following Von Hannover v Germany, Campbell v MGN Ltd and In re S (A Child) (Identification: Restrictions on Publication), neither article had automatic priority. The Court had to assess the competing interests and determine whether the public interest in identification justified the resulting curtailment of private and family life. The restriction had to be necessary and proportionate.
6. M’s evidence of harm was general and speculative. Identification would materially assist public debate about freezing orders, connect relevant public information and prevent reporting from becoming abstract or disembodied. The risk that some readers might confuse suspicion with guilt, or that some newspapers might abuse their freedom, did not justify a blanket order. The public interest outweighed M’s article 8 interests.
7. A and K had supplied no substantial evidence of a continuing article 8 interest. HAY’s identity, activities and earlier litigation were already public, so his order had never been justified. The Court also ordered disclosure of A’s, K’s and M’s identities under article 8(3)(d) of the Terrorism (United Nations Measures) Order 2009. It reserved its opinion on anonymity in control-order proceedings.

1. United Kingdom Supreme Court: The press application was granted unanimously. The anonymity orders protecting A, K, M and HAY were set aside; G’s order had already been set aside.
2. Court of Appeal: When allowing the Treasury’s substantive appeal, the court continued anonymity by an apparently consensual order: [2009] 3 WLR 25.
3. Administrative Court: Collins J granted anonymity at the outset. Following the substantive hearings, he continued the orders protecting A, K and M and left the final decision concerning G to the Court of Appeal.