Secretary of State for the Home Department v AP

When deciding whether to identify a person in proceedings, the court must balance the general public interest in reporting the proceedings against any resulting interference with private and family life. The answer depends on the particular facts.

In control order proceedings, an interim anonymity order will generally be appropriate at the ex parte permission stage. Its continuation must be reviewed at the earliest suitable opportunity and must not be automatic. Agreement between the parties is not conclusive.

A demonstrated risk of violence, including a risk engaging article 3, may require the public interest in identification to yield. Generalised or hypothetical concerns carry less weight than evidence about the individual’s circumstances.

AP had been subject to a control order under the Prevention of Terrorism Act 2005. After the order was revoked, the Secretary of State decided to deport him on national security grounds. AP was granted bail pending his appeal to the Special Immigration and Asylum Commission, subject to restrictive conditions.

An anonymity order had existed since the Administrative Court proceedings and a similar order applied in the immigration proceedings. At the hearing of AP’s substantive appeal, the Supreme Court continued anonymity temporarily and invited submissions from AP and the Secretary of State about publication of its judgment. Both supported continued anonymity, but the media had neither been invited to make submissions nor sought to intervene.

The issue was whether the public interest in publishing a report identifying AP justified the resulting interference with his and his family’s private life, taking account also of the alleged risk of violence.

1. Anonymity order maintained. Lord Rodger delivered the judgment, with which every member of the Court agreed. The public interest in publishing a full report identifying AP had to yield to the need to protect him from a risk of violence. That public interest also did not justify curtailing his right to respect for private and family life. The judgment and reports of it were therefore required to identify him only as “AP”.

2. Applying the guidance in Campbell v MGN Ltd [2004] UKHL 22 and the conclusions in In re Guardian News and Media Ltd [2010] UKSC 1, the court had to balance the general public interest in an identifying report against the resulting interference with AP’s and his family’s rights under articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms. The balance depended on the facts of the individual case.

3. General assertions that identification might cause harassment, violence, community disorder or prejudice to enforcement could not determine the balance. The court concentrated on the available evidence concerning AP. It nevertheless gave some weight to the possibility that anonymity could assist the effective monitoring and enforcement of control orders.

4. The decisive circumstances were the existing racial tensions and racist violence in the town where AP was required to live. Identifying him as a person formerly subject to a control order and facing terrorism-related deportation proceedings created a real risk of extremist abuse and physical violence. There was at least a risk of infringement of article 3. His enforced isolation, possible ostracism, and evidence of psychological and emotional vulnerability strengthened the case for anonymity.

5. As a general rule, an interim anonymity order will be appropriate at the ex parte permission stage of control order proceedings, allowing the affected person time to obtain relevant evidence. Such an order must not continue automatically. Its necessity must be reviewed at the earliest suitable opportunity. Agreement between the parties does not relieve the court of its duty to scrutinise the need for secrecy.

6. Except for that guidance on interim orders, the judgment established no general rule for anonymity applications in control order cases. The court had not heard submissions from the media, and such submissions might have affected the assessment in another case.

1. United Kingdom Supreme Court: In the substantive appeal, [2010] UKSC 24, allowed AP’s appeal and restored Keith J’s order quashing the residence requirement. In this supplementary judgment, the Court unanimously maintained the anonymity order.

2. Court of Appeal: By a majority, [2009] EWCA Civ 731 allowed the Secretary of State’s appeal against Keith J’s order.

3. Administrative Court: Keith J quashed the residence requirement imposed by the modified control order. An anonymity order had operated from the outset of those proceedings.