Fagan, R (on the application of) v Times Newspapers Ltd & Ors

Open justice is the starting point for an application for interim reporting restrictions. The applicant must establish, by clear and cogent evidence, that derogation is strictly necessary in the interests of justice. The court must balance the Convention rights engaged, the public interest in open justice and reporting, and the need to impose no more restriction than necessary. The seriousness of the offending, anticipated hostility to an offender or family, possible effects on rehabilitation, and the fact that release is sought in a different community do not, without particular circumstances, justify anonymity or a reporting ban. Risks common to serious offenders are insufficient. A decision may be upheld where the judge considered all relevant factors and reasonably concluded that open justice should prevail.

The appellant, a convicted serious offender serving a determinate sentence, brought judicial review proceedings challenging the refusal to transfer his imprisonment and licence supervision from England to Scotland. He alleged a misdirection as to statutory powers and interference with Article 8 rights.

Pending the substantive judicial review, he sought anonymity and reporting restrictions because publicity had affected his daughters and might impede rehabilitation and resettlement. Permission for judicial review was granted by Underhill J, but Irwin J dismissed the application for reporting restrictions on 14 June 2013. The appellant appealed. The central issue was whether restrictions were strictly necessary despite the Article 8 rights of the appellant and his daughters and the Article 10 rights of the public and media.

Lord Justice Aikens gave the reasons for judgment. Lord Justice McFarlane and Lady Justice Sharp agreed. The appeal was dismissed.

1. The starting point was the general principle of open justice. The burden lay on the person seeking derogation. Clear and cogent evidence had to establish that restrictions were strictly necessary in the interests of justice. The court had to balance the competing rights under the European Convention on Human Rights, the public interest in open justice and reporting, and the requirement that any restriction be no more extensive than necessary.
2. The appellant’s serious offending, the public nature of his trial and conviction, and the possibility of hostility towards his family did not create a particular justification for derogation. Those risks could arise in many cases involving serious offenders released into the community.
3. The fact that the appellant sought release in Scotland rather than England was immaterial. Similar media pressure could arise in any particular community. The risk that publicity might affect co-operation with licence managers, rehabilitation or resettlement was likewise a general risk and could not justify a reporting ban. There was no real and immediate threat of violence engaging Article 3.
4. The Article 8 rights of the appellant’s minor daughter had to be considered. However, the daughters had already been identified in press reports, and restrictions would not prevent local speculation about any release. Irwin J had considered the relevant factors, including the possible effect on the daughter and the public interest in the constitutional issue, and had considered no irrelevant factor.
5. His conclusion that the imperative of open justice should prevail was reasonable. The subsequent recall of the appellant to prison altered the factual position but did not change the governing approach or justify intervention.

• Court of Appeal (Civil Division): The appeal from Irwin J’s order was dismissed; reasons were handed down on 21 October 2013.
• High Court, Queen’s Bench Division: Irwin J dismissed the application for anonymity and interim reporting restrictions on 14 June 2013.