Re Winch

A final Venables injunction may be granted where cogent evidence demonstrates a real and immediate risk of serious physical harm or death. The claimant need not prove that harm is more likely than not. The court must assess the seriousness of the risk and whether the possibility of significant harm can sensibly be ignored. Where that threshold is met, the risk is not ordinarily balanced against Article 10 interests. Any interference with freedom of expression and open justice must nevertheless remain necessary and proportionate. The jurisdiction is exceptional and must be exercised only to the extent required to safeguard the claimant’s fundamental rights.

The claimants were living under new identities after the first claimant, a former participant in organised crime, became an Assisting Offender and provided information and evidence leading to numerous convictions. They sought a final contra mundum injunction preventing publication of information likely to identify them, relying on the continuing risk of violent retribution.

An interim injunction had previously been granted after notice was given to the media. The claim proceeded at trial without opposition. The central issues were whether the evidence established the required real and immediate risk, whether reliance could be placed on sentencing remarks and specialist risk assessments, and whether a final injunction was necessary and proportionate.

1. Claim succeeded. The court made a final contra mundum injunction prohibiting publication of information likely to identify the three claimants.

2. The court adopted the analysis in the interim judgment, based on RXG v Ministry of Justice [2019] EWHC 2026 (QB). At trial, the claimant had to establish the threshold itself, rather than merely show that it was likely to be established. That did not require proof, on the balance of probabilities, that death or serious injury was more likely than not. The evidence had to demonstrate convincingly the seriousness of the risk and raise a real possibility of significant harm which could not sensibly be ignored given the nature and gravity of the feared harm.

3. The evidence of previous serious violence, the first claimant’s assistance to the police, continuing attempts to locate him, and the capacity and propensity for violence of the affected organised crime groups established a real and immediate risk to the life and physical security of all three claimants. The court remained responsible for making the risk assessment, even where specialist evidence was relied upon.

4. The court provisionally considered that sentencing remarks might be inadmissible as third-party opinion evidence under Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587, and that parts of the law-enforcement evidence might constitute expert evidence under Part 35. It was unnecessary to decide either point because the claim was made out on other factual evidence.

5. The court held itself bound to grant protection under Articles 2 and 3. Even if a balance with Article 10 and open justice had been required, the injunction was necessary and proportionate. The order prohibited publication or solicitation of images, recordings, descriptions, identifying information and information likely to reveal whereabouts, subject to stated provisos.