D & Anor v Persons Unknown

The exceptional Venables jurisdiction may protect the identity of a child offender where disclosure would create a real and immediate risk of serious self-harm or suicide. The source of the risk may be the claimant’s own actions rather than third-party violence. Articles 2 and 3 are engaged where cogent evidence demonstrates that disclosure would materially increase that risk. An engaged unqualified Convention right cannot be balanced against article 10, although interference with the media’s rights must remain no greater than necessary. If articles 2 and 3 are not engaged, the court must intensely balance articles 8 and 10. A permanent contra mundum injunction may be granted where the evidence establishes an exceptional case and the order is necessary and proportionate.

‘D’ and ‘F’ were convicted of murdering Angela Wrightson after committing the offence at ages 13 and 14. Their identities had been protected by reporting restrictions imposed during the criminal proceedings and continued after conviction. Both were later transferred to the adult prison estate.

Each claimant sought a permanent contra mundum injunction preventing identification in connection with the murder. The Press Association opposed the applications, arguing that the injunctions would erode open justice and extend the exceptional Venables jurisdiction. The central issues were whether disclosure would engage articles 2 or 3 of the ECHR through the risk of self-harm or suicide, and, alternatively, whether the claimants’ article 8 rights outweighed article 10 rights.

1. Articles 2 and 3. The court held that the Venables jurisdiction extends to cases where disclosure of a mentally disordered offender’s identity would materially increase the risk of serious self-harm or suicide by the offender. It makes no difference, for the engagement of articles 2 or 3, whether the risk arises from the claimant’s own actions or from third parties. The jurisdiction remains exceptional and depends on the quality of the evidence and the principles summarised in RXG v Ministry of Justice [2020] QB 703 (Div Ct) (paras 62, 69-75).
2. In assessing suicide risk, relevant factors included a history of mental-health problems, the gravity of the mental condition, previous suicide attempts or self-harm, suicidal thoughts or threats, and signs of physical or mental distress. These factors were drawn from Fernandes de Oliveira v Portugal (2019) 69 EHRR 8 and were equally relevant in the present context (paras 70-72).
3. The evidence concerning F was compelling. She had EUPD, a history of self-harm and suicide attempts, continuing suicidal thoughts and signs of mental distress. Disclosure would create a real and immediate risk of serious physical harm or death. Articles 2 and 3 were therefore engaged, and the risk could not be balanced against the media’s article 10 rights (paras 91-93).
4. D’s evidence also convincingly established a real and immediate risk of serious self-harm or suicide if identified. Her article 3 rights were engaged. In addition, D’s claim had to succeed to prevent jigsaw identification from defeating the injunction protecting F (paras 94-96).
5. If the assessment under articles 2 and 3 were wrong, the court held that the article 8 and article 10 balance would nevertheless firmly favour anonymity. Relevant factors included the claimants’ young ages at the time of offending, the six years during which their identities had been protected, the serious likely effect of disclosure on their health, and the risk of destroying fragile rehabilitative progress. The injunctions were necessary and proportionate (paras 97-102).
6. Judgment was given for both claimants. Permanent injunctions were granted preventing identification in connection with the murder, subject to review if circumstances materially changed (para 103).

First-instance decision. The judgment records earlier criminal proceedings and an appeal concerning reporting restrictions, but this claim was determined in the High Court.