R (Lewis) v Redcar and Cleveland Borough Council

The Supreme Court considered challenges by the press to anonymity orders that had been made in earlier proceedings under the Terrorism (United Nations Measures) Orders and the Al-Qaida and Taliban (United Nations Measures) Order. The central legal issue was the balance between the appellants' rights under article 8 of the European Convention on Human Rights and the press's rights under article 10. The Court applied the established proportionality approach and relevant Strasbourg authorities (including Von Hannover and the Von Hannover approach to public interest), taking account of the Human Rights Act 1998 and the court's duty to respect open justice.

The Court found that in most of the cases the anonymity orders were not justified: prior public disclosure of identity (Bank of England press release and the 1267 Committee list), the absence of evidence of likely serious harm, and the strong general public interest in identifying challengers to the freezing-order regime meant article 10 outweighed article 8. The Court therefore set aside the anonymity orders in respect of G (previously), M, A, K and HAY, and ordered disclosure for the purposes of the proceedings where necessary (including under article 8(3)(d) of the Terrorism (United Nations Measures) Order 2009).

The press sought to set aside anonymity orders made in proceedings brought by five individuals challenging Treasury directions and United Nations-derived freezing orders. The background was that four appellants (A, K, M and G) had been designated under the Terrorism (United Nations Measures) Order 2006 and later under the 2009 Order; one respondent-appellant in a related Treasury appeal (HAY) had been designated via the UN 1267 Committee and publicised by the Bank of England. The anonymity orders originated in the administrative court (Collins J) and were continued after the substantive hearings; the Court of Appeal included an anonymity direction when it allowed the Treasury's appeal ([2009] 3 WLR 25). The press applied to the Supreme Court to set those orders aside.

The issues framed by the Court were: (i) the jurisdictional basis for anonymity orders in English law post-Human Rights Act 1998 and how section 6 HRA and section 37 Senior Courts Act 1981 bear on that power; (ii) whether article 8 encompasses protection of reputation and private/family life in these circumstances; (iii) how to balance article 8 rights against article 10 press freedoms, including consideration of Strasbourg jurisprudence (notably Von Hannover, Campbell and related authorities); and (iv) the effect of prior public disclosure and the necessity and proportionality of blanket anonymity orders.

The Court reasoned that an anonymity remedy is available under domestic law to meet article 8 positive obligations, but any order must be strictly necessary and proportionate. Where an individual's identity was already in the public domain (for example G and HAY via the Bank of England and the 1267 list), anonymity served no legitimate purpose. Where there was no evidence of a real risk of serious harm, speculative concerns about community ostracism or reputational damage were insufficient to justify blanket orders preventing reporting of identity and context. The press's article 10 rights were particularly weighty given the public interest in transparent reporting of challenges to the freezing-order regime. Applying the balancing exercise the Court set aside the remaining anonymity orders and ordered disclosure of the appellants' identities for the purposes of the proceedings.

The Supreme Court allowed the press's applications and set aside the anonymity orders for the appellants (including G previously and subsequently A, K, M and HAY). The Court held that anonymity orders are available where necessary to protect Convention rights, but here prior public disclosure, lack of evidence of serious harm and a strong public interest in identification made the anonymity orders disproportionate; accordingly article 10 outweighed article 8 in these cases and disclosure for the purposes of the proceedings was ordered (including under article 8(3)(d) of the TO 2009).

Proceedings began in the Administrative Court where anonymity orders were made (Collins J). The Treasury's appeal was allowed by the Court of Appeal which included an anonymity direction ([2009] 3 WLR 25). The press applied to the Supreme Court which heard oral argument and, by this judgment ([2010] UKSC 1), set aside the anonymity orders in the relevant cases.