Blackman, R. v

When determining whether court material should be disclosed to the media, the court must balance open justice and the media’s rights under European Convention on Human Rights, Article 10 against the countervailing circumstances where Article 2 is not determinative. A compelling evidential basis for a real and immediate risk to life may decisively outweigh disclosure, particularly where material already in the public domain permits fair reporting. The responsible intentions and public-watchdog role of established media organisations do not remove the risk that visual material may be copied and misused by others.

Following a reference by the Criminal Cases Review Commission concerning Alexander Wayne Blackman’s conviction by a Court Martial at Bulford, media organisations applied for release of three video clips recorded before and during the killing of an insurgent.

The Judge Advocate General had previously refused release of the clips while permitting transcripts, audio and selected still images. Three other clips were released with the Ministry of Defence’s consent. The Ministry opposed disclosure of the remaining clips on evidence that terrorist organisations would use them to radicalise others and create a risk to life.

The issue was whether the clips should be released consistently with open justice and the media’s Article 10 rights.

1. The media application was refused. The court held that disclosure of the three remaining clips would significantly endanger many people in the United Kingdom and elsewhere.
2. The basic disclosure approach was that stated in R (Guardian News and Media Limited) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420. If Article 2 imposed a duty not to release material threatening life, no balancing exercise would arise. The court did not need to decide whether Article 2 was engaged, including the submission that it required identified perpetrators and victims.
3. The application was instead resolved by balancing open justice and the media parties’ Article 10 rights against the circumstances against disclosure. The court accepted that the applicants would broadcast responsibly, that the media have a public-watchdog role, and that their professional obligations differed from the position of the general public.
4. Those considerations could not prevent others from recording and exploiting the clips. The unchallenged evidence was clear and compelling that the clips would be used as extremist propaganda, would assist radicalisation, and would create a real and immediate risk to life. Transcripts, audio, stills and other information already public were sufficient to permit fair reporting of the appeal.
5. Accordingly, the Article 10 balance was unequivocally against disclosure. The application for the remaining video clips was refused.

• Court of Appeal (Criminal Division) — following a reference by the Criminal Cases Review Commission from the Court Martial conviction, the court refused this media application for release of three video clips.
• Court Martial at Bulford — the Judge Advocate General had declined to release the video clips, while allowing release of a soundtrack transcript and later selected still images.