Short v The Falkland Islands

When determining reporting restrictions in an extradition appeal, the High Court may make orders necessary to avoid unjustified interference with Article 8 rights. That power must be exercised compatibly with Article 10 and Human Rights Act 1998, section 12. An order preventing identification of an accused person is appropriate only in exceptional circumstances. The same restrictive approach applies to a person sought for extradition. Greater protection may be justified for complainants, particularly children alleging sexual offences, where anonymisation does not materially impede press reporting.

The case arose from extradition proceedings brought by the Government of the Falkland Islands concerning alleged sexual offences involving two complainants. The District Judge anonymised the appellant, his family and the complainants. During the statutory appeal, the High Court made an interim order restricting publication of identities and invited submissions on its legal basis.

The court had to decide whether it possessed jurisdiction to continue or impose reporting restrictions, and whether restrictions should apply to the appellant, his wife and children, or the complainants.

1. No statutory provision had been identified as directly conferring a power to make the order. Nevertheless, the High Court, hearing a statutory appeal against an extradition order, had power to make orders necessary to avoid unjustified interference with Article 8 rights, while taking Article 10 and section 12 of the Human Rights Act 1998 into account. The court relied on In Re Attorney General’s Reference (No. 3 of 1999) [2015] 1 A.C. 145.

2. Identification of a person accused of crime should ordinarily be permitted. Reporting restrictions preventing identification would be justified only in exceptional circumstances. That policy applied with equal force to persons sought for extradition. The restriction concerning the appellant was therefore not continued.

3. The court declined to continue restrictions concerning the appellant’s wife. Although identification of the appellant might make identification of his wife practically easier, no material justified restricting publication of her identity.

4. The court also declined to continue restrictions concerning the appellant’s children. Their young age and reference to a genetic eyesight condition were relevant to Article 8, but the material was of the kind routinely considered in extradition cases without reporting restrictions. The court invited the press to consider whether naming the children was necessary or in the public interest.

5. The complainants stood differently. The proceedings concerned alleged sexual offences committed when they were young children, and detailed allegations had been aired. Although statutory anonymity provisions applying to specified offences in England and Wales did not apply to allegations under Falkland Islands law, that legislative policy recognised the potential harm from identification. Anonymity would not materially restrict reporting of the substance of the proceedings. The restrictions concerning the complainants were continued, with liberty to apply.

6. The court confined its observations to reporting restrictions under the law of England and Wales and expressed no view on restrictions under Falkland Islands law.

• High Court (Administrative Court): determined the continuation of reporting restrictions in a statutory appeal against an extradition order.
• District Judge: had anonymised the appellant, his wife and children, and the two complainants; no citation was stated in the judgment.