Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

Anonymity is a derogation from open justice and may be granted only where it is strictly necessary, supported by clear and cogent evidence, and proportionate to a legitimate aim. A claimed risk engaging Articles 2 and 3 requires an objectively verified, real and immediate risk of serious harm. Subjective fears may nevertheless be relevant to Article 8, but speculative or unsupported fears carry little weight. The court must begin with a very substantial presumption in favour of open justice and conduct an intense, fact-specific balancing exercise under Re S. Late amendments based only on weak propensity material should generally be refused where they require substantial satellite investigation and disrupt trial preparation. Targeted further disclosure may be ordered where later evidence materially changes the apparent role of a person within the pleaded case.

The claimants applied to anonymise a proposed witness, known as Berlin, whose evidence concerned the activities of private investigator Gavin Burrows. The application was based on Berlin’s fear of reprisals against himself and his family. A temporary anonymity and reporting restriction order had been made pending determination.

The claimants also sought permission to make two late amendments concerning alleged unlawful information-gathering activities, and further disclosure of payment records relating to Lee Harpin and three journalists. The defendant opposed the amendments and the disclosure application. The court therefore had to determine whether Berlin’s evidence justified a derogation from open justice, whether the proposed amendments had a sufficient evidential basis and prospect of success, and whether the requested disclosure was proportionate and within the scope of the existing disclosure exercise.

1. Anonymity application refused. Open justice carries a very substantial weight. Any derogation must be strictly necessary, proportionate and established by clear and cogent evidence. The court must scrutinise the evidence and apply an intense, fact-specific balancing exercise under Re S.
2. Berlin’s evidence did not establish a real and immediate risk of physical harm engaging Articles 2 or 3. It showed subjective fears of adverse consequences, which could be relevant to Article 8, but those fears were general, speculative and objectively unsubstantiated. The evidence concerning an alleged incident involving Mr Burrows was indirect and did not demonstrate that he presented a credible risk of violence towards Berlin.
3. The interference with Articles 6 and 10 caused by anonymisation would be significant. Berlin’s evidence was potentially important, particularly because it concerned a central witness. Further, anonymity would probably not protect Berlin because the content of his evidence was likely to reveal his identity to those from whom he feared reprisals. The burden of establishing necessity was therefore not discharged.
4. Permission to amend was refused in both contested instances. The proposed evidence went only to propensity, depended on inference upon inference or amounted to guesswork, and did not establish a strong prima facie case. At this late stage, the need for investigation of new satellite issues outweighed its limited potential probative value.
5. Further disclosure was ordered in relation to payments to Lee Harpin concerning Nicole Lampert, Richard Simpson and Clemmie Moodie. The evidence had materially clarified Harpin’s apparent role. If he was treated by journalists as someone able to obtain information, he was practically performing the role of a third-party investigator and the targeted request fell within the existing disclosure parameters. Any later propensity amendment would remain subject to strict scrutiny.
6. Permission to appeal was refused, but the temporary anonymity and reporting restrictions were continued pending any renewed application to the Court of Appeal.