BM v Republic of Ireland (No 2)

In extradition proceedings, the strong principle of open justice means that anonymisation of a convicted person requires a very good case. The mere existence of children will ordinarily be insufficient. However, withholding a name from the published judgment is distinct from an order prohibiting identification, so the exceptional circumstances required for the latter need not always be present. Anonymisation may be justified where publication would cause serious and specific harm to children, particularly where the judgment necessarily discloses intimate medical and family circumstances and there is no legitimate public interest in identification.

The appellant had appealed against a District Judge’s decision ordering extradition to Ireland under the Extradition Act 2003. On 30 January 2020, the appeal was allowed and the appellant was discharged. The appellant’s identity and those of family members had been anonymised at the hearing.

Following the Divisional Court’s decision in John Short and the Falkland Islands, [2020] EWHC 439 (Admin), the court reconsidered whether the appellant should remain anonymised in the published judgment. The central issue was whether the particular risks to the appellant’s children justified withholding the appellant’s name, despite the importance of open justice in extradition proceedings.

1. The application to continue anonymisation in the published judgment was granted, and there was liberty to apply. The order did not prohibit identification of the appellant generally.

2. The court distinguished between an order prohibiting disclosure and the narrower question whether the published judgment should withhold a party’s name. The exceptional circumstances identified in In re Press Association, [2013] 1 WLR 1979, for restrictions on publication were therefore not a necessary precondition to withholding the name in the judgment. The distinction was illustrated by R (Press Association) v Cambridge Crown Court, [2012] EWCA Crim 2434, in the context of the Contempt of Court Act 1981.

3. Open justice has particular force in extradition cases. A person convicted abroad and sought for return will ordinarily be named, and a very good case is required to justify anonymisation. The mere existence of children will generally not suffice, as explained by John Short and the Falkland Islands, [2020] EWHC 439 (Admin).

4. The present case was materially different. The appellant’s daughter suffered a life-limiting and devastating medical condition, and the judgment necessarily described intimate matters concerning her private life. Publication of the appellant’s name could also lead the children to discover that their family life had been at serious risk of disruption. The court was satisfied that serious harm was likely, that there was no legitimate public interest in reporting the case in a way that caused that harm, and that anonymisation was appropriate. The practice of anonymisation in extradition cases had also been recognised by the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa and others, [2012] UKSC 25.

1. High Court (Administrative Court): on 30 January 2020, the appellant’s appeal against the District Judge’s extradition decision was allowed and the appellant was discharged. This addendum judgment determined the subsequent issue of anonymisation.