Venables & Anor v News Group Papers Ltd & Ors

A confidentiality injunction protecting a person from a real risk of serious violence or death is not automatically discharged because some information may have entered the public domain. The court must conduct an intense, contemporary and fact-sensitive balancing exercise. It must weigh the nature and extent of the risks under Articles 2 and 3 against the competing rights under Articles 8 and 10, applying proportionality. Article 2 or Article 3 protection is not a trump card, but the gravity of a credible risk of fatal violence may outweigh substantial public-interest arguments for disclosure. Previous findings of risk may form the starting point, but current evidence is required. The application to vary the injunction was therefore refused, subject only to a possible limited relaxation concerning disclosure of whether the protected person was in custody or on licence.

The application was brought by Ralph Bulger and James Bulger, the father and paternal uncle of James Bulger, against the continuing anonymity and confidentiality injunction protecting Jon Venables. The injunction had originally been granted in 2001 and had been reviewed and amended by Bean J in 2010 following Venables’s conviction for child pornography offences.

The Applicants sought permission to report information concerning Venables’s assumed names, past whereabouts and activities, and future custody or licence arrangements. They argued that identifying material was already common knowledge, that no harm had resulted from previous disclosure, and that victims’ rights and public debate justified variation. Venables opposed the application. The central issue was whether circumstances had changed sufficiently to justify reducing the existing protection.

1. Application refused. The evidence did not establish that material available on the internet accurately identified Venables. The Applicants therefore failed to prove the factual premise of their case on the balance of probabilities.
2. Even if accurate identifying material had been readily available, that would not by itself defeat the injunction. The court had to consider the whole balancing exercise, not confidentiality in isolation. The majority reasoning in PJS v News Group Newspapers Ltd [2016] AC 1081 showed that substantial leakage could coexist with continuing protection where the competing privacy and safety interests justified it.
3. The applicable test was whether there remained a real risk of harm of the degree described in Articles 2 or 3 of the European Convention on Human Rights. The assessment had to be contemporary. Earlier findings of real risk in 2001 and 2010 could properly provide a starting point, but had to be reassessed against current evidence.
4. The court accepted the approach stated in Re A and B [2016] EWHC 3295 (Ch): there must be an intense focus on the nature and extent of the risks under Articles 2 and 3, the comparative gravity of those risks and the rights under Articles 8 and 10, together with justification and proportionality.
5. Current evidence showed continuing notoriety, strong public anger, threatening social-media activity and the increased speed and reach of social media. Disclosure by mainstream media would be likely to enable triangulation of identity and location, making future protection impracticable. Those risks outweighed the Applicants’ arguments for disclosure. Article 2 and Article 3 rights were not a trump card, but the balance fell decisively in favour of continued confidentiality.
6. The injunction was maintained, save for existing permission to report the later criminal proceedings and any agreed amendment permitting the Ministry of Justice to disclose from time to time whether Venables was in custody or on licence. Any alleged shortfall in victims’ statutory rights could be addressed through the statutory scheme or judicial review.

First-instance decision. The judgment records earlier decisions in the same litigation, including the 2001 injunction and Bean J’s 2010 review, but no appeal from either decision.