Cherney v Deripaska

The principle of open justice may be restricted to protect witnesses, but only where a sufficiently cogent case establishes that the restriction is necessary. The court must assess both the seriousness of the risk and the extent to which the proposed orders would reduce it. Under CPR 39.2, the interests of justice include the proper interests of witnesses, although the provision does not confer an unrestricted discretion. An Article 2 case requires a real and immediate risk to life which is objectively verified, present and continuing, and materially increased by the absence of protection. Subjective fears may nevertheless be relevant to the common law duty of fairness. Witness protection orders should be tailored to the evidence and may be granted where an insider faces particular risks from giving evidence about organised crime.

The defendant applied for orders protecting twelve intended witnesses in civil proceedings concerning an alleged business agreement relating to Russian aluminium interests. He sought private hearings for specified parts of their evidence and orders restricting disclosure of their identities. The applications were based on alleged risks from organised criminal groups, including risks of interference with investigations, revenge and violence intended to prevent evidence being given.

The court considered the relationship between open justice, CPR 39.2, Articles 2, 3 and 6 of the Convention, and the protection of witnesses’ interests. The applications were interlocutory and concerned the way in which evidence would be received at the forthcoming trial.

1. Open justice. The general rule is that hearings are public and parties and witnesses are publicly identified. A party seeking departure from that rule must establish a sufficiently cogent case. The question is necessity, not convenience. The court must consider the extent of the interference, with anonymity generally less objectionable than proceedings conducted in private: Scott v Scott [1913] AC 417; R v Legal Aid Board ex p. Kaim Todner [1999] QB 966.
2. CPR 39.2. CPR 39.2(3)(g) requires the court to decide whether private proceedings are necessary in the interests of justice; it does not confer a general discretion. The interests of justice are wide enough to include the proper interests of witnesses. CPR 39.2(4) permits non-disclosure of a witness’s identity where necessary to protect that witness. These powers may protect witnesses even where Convention rights are not engaged.
3. Convention and fairness. An Article 2 case requires a real and immediate risk to life, objectively verified, present and continuing, and materially increased by requiring open evidence. The threshold is high and subjective fear alone is insufficient: In re Officer L [2007] UKHL 36. Separately, subjective fears may be considered under the common law duty of fairness owed to witnesses, particularly where giving evidence would cause avoidable fear or harm.
4. Risk and effectiveness. The relevant question is not merely whether a witness faces danger because of the proceedings, but whether the proposed orders would reduce that danger. The court must also consider the practical effect of partial privacy or anonymity on the conduct of the trial. Existing disclosure or publication of witnesses’ identities may substantially reduce the protective value of an order.
5. The evidence did not establish a sufficient risk for witnesses B, C, L, E, G, H, I, J or A. The applications were therefore refused for those witnesses. The evidence also did not justify orders based on alleged violence to prevent evidence being given. Orders were granted for witness K because he claimed to have been an insider in an organised criminal group and faced particular risks from speaking publicly about its activities. The terms of those orders were left for further submissions.
6. The application concerning witness D was deferred pending service of a revised witness statement. Further directions were to be considered concerning one paragraph of witness F’s evidence. The decisions were necessarily provisional and could be reconsidered if circumstances changed.