M, R (on the application of) v The Parole Board & Anor

There is a weighty presumption that proceedings in the Administrative Court will be publicly reported. A claimant seeking anonymity must establish that it is necessary, by clear and cogent evidence, to protect the interests of justice or Convention rights.

Where publication is said to create a risk under Articles 2 or 3, the relevant question is whether publication creates or materially increases an objectively verified real and immediate risk of death or serious injury. The court may consider whether the Secretary of State has reasonable means of managing that risk. The assessment is fact-sensitive and must balance open justice and Article 10 against the claimant’s competing rights.

The claimant, a life prisoner serving a sentence for three murders, challenged the Parole Board’s refusal to recommend his transfer to open conditions. Simon J dismissed the judicial review claim but granted interim anonymity protection under CPR 39.2. The media interveners and the Secretary of State applied to discharge the protection.

The claimant relied principally on Articles 2, 3, 5 and 8 of the Convention, arguing that renewed publicity would expose him to serious violence and hinder rehabilitation. The central issue was whether continued anonymity was necessary despite the strong public interest in reporting the judicial review proceedings.

1. Open justice and reporting. Judicial review proceedings challenging a decision of the Parole Board are ordinarily public and reportable, even though the underlying Parole Board hearing is private under rule 24(4) of the Parole Board Rules 2011. The claimant bears the onus of establishing the necessity for anonymity or restrictions on material in the judgment. The assessment is fact-sensitive, but embarrassment, anxiety or distress will rarely displace the weighty presumption in favour of open justice.
2. Articles 2 and 3. Following In re Officer L [2007] 1 WLR 2135 (HL), the relevant threshold is an objectively verified real and immediate risk of death or serious injury. The issue was whether publication of the claimant’s identity would create or materially increase that risk. The court was entitled to consider the protective measures available to the Secretary of State, including close monitoring and placement in a vulnerable prisoners’ unit. Since the risk could be effectively managed in those conditions, publication did not create a real and immediate risk.
3. Article 10 balance. The claimant’s crimes and challenge to the Parole Board decision generated a legitimate public interest. The public interest in reporting was reinforced by the rule of law, including the need for lawful rehabilitation and release processes not to be thwarted by unlawful media campaigns. Public funding of the proceedings was of marginal significance to that public interest.
4. Articles 5 and 8. The evidence did not show that disclosure would prevent the claimant undertaking offence-related work, materially damage his psychological health, or deter him from future legal proceedings. Those rights therefore did not produce a contrary result.
5. Orders and procedure. Paragraphs 1 and 2 of Simon J’s anonymity order were discharged. Protection for persons referred to as FH and SF was replaced by a narrower reporting restriction. Applications for anonymity should be made at the permission stage or by a written application issued in good time, supported by the evidence relied upon. The court declined to issue general guidance on advance notice to media organisations.

The judgment itself records that Simon J dismissed the claimant’s judicial review claim on 5 February 2013 and had previously granted anonymity protection. The present Divisional Court determined applications by the media interveners and the Secretary of State to discharge or vary that protection.