Al M (Reporting Restrictions Order) (Rev 1)

Where disclosure of a witness’s identity creates a real and immediate risk of serious harm or death engaging Articles 2 or 3 of the ECHR, the court must give those risks decisive weight. The court need not resolve whether Article 10 rights can ever be balanced against those unqualified rights where the outcome is the same under either approach. An intense focus must be placed on the nature and extent of the risks, and on the competing rights and justifications for restricting publication. Existing information in the public domain does not, by itself, make further disclosure immaterial. A reporting restrictions order may therefore be granted where naming the witness would materially increase an existing risk.

The application was made by a witness, identified as XX, who had given evidence in fact-finding proceedings concerning the welfare of two children. XX sought anonymity and a reporting restrictions order, relying principally on Articles 2 and 3 of the ECHR and alternatively on Article 8. The application was opposed by a group of media organisations, which argued that XX’s identity was already ascertainable and that publication would not materially increase the risk.

The court considered competing first-instance approaches on whether Article 10 must be balanced against Articles 2 and 3 where a real and immediate risk of serious harm or death is established. It also considered the relevance of information already in the public domain and the effect of further publicity.

1. The application for a reporting restrictions order was granted. The court was satisfied, on uncontested evidence including an independent professional risk assessment, that XX already faced an immediate risk of harm sufficient to engage Articles 2 and 3, and that disclosure of XX’s role as a witness would significantly increase the risk of very serious harm or death.

2. The court noted the differing approaches in A and B v Persons Unknown [2016] EWHC 3295 (Ch) and RXG v Ministry of Justice [2019] EWHC 2026 (QB). It did not determine which approach was correct. On the facts, the result was the same whether Articles 2 and 3 excluded balancing altogether or whether an intense proportionality assessment was required.

3. Applying the latter approach in the alternative, the nature and extent of the Article 2 and 3 risks, compared with the Article 10 rights of the media and public, fully justified restricting publication of XX’s identity.

4. Following PJS v News Group Newspapers [2016] AC 1081, the possibility that some information connecting XX with the proceedings was already publicly available was not determinative. The proposed publicity would actively increase the risk by making XX’s involvement widely known and discussed.