Craig Winch v and an application for a contra mundum injunction
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWHC 3284 (QB) |
| Docket Number | Case No: QB-2021-001512 |
| Court | Queen's Bench Division |
In the matter of:
The persons formerly known as:
[2021] EWHC 3284 (QB)
Lord Justice Warby
- and -
Mr Justice Johnson
Case No: QB-2021-001512
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Kate Wilson (instructed by Weightmans LLP) for the Claimants
Hearing date: 29 November 2021
Approved Judgment
Introduction
This is a claim for a Venables injunction: an order against the world, conferring lifelong anonymity on an adult by prohibiting the publication of information that would be likely to lead to the disclosure of their identities. Orders of this kind get their name from the first case in which the jurisdiction to grant them was recognised and exercised: Venables v News Group Newspapers Ltd [2001] Fam 430 (Butler-Sloss, P). There, the purpose was to protect the new identities given to two notorious child killers. The jurisdiction has been exercised on a handful of occasions since.
This is the judgment of the Court, given after the trial of the claim.
The first claimant, previously known as Craig Winch, is a former participant in serious and organised crime. He has become an Assisting Offender under s 73 of the Serious Organised Crime and Police Act 2005. In other words, he is an informer. More than that, he has provided information and given evidence leading to a substantial number of individuals from organised crime groups (“OCGs”) being convicted of serious offences. In colloquial terms he is a “supergrass”. The second and third claimants are female relatives of the first claimant. All three are living under new names, to guard against violent retribution by those on whom the first claimant has informed, and their associates.
The essential basis for the present claim is that, on the particular facts of this case, these measures are not enough: the first claimant's activities as an informer have exposed all three claimants to a real and immediate risk of death or serious harm which makes it necessary to go further, and to grant the additional protection of a Venables injunction. At the conclusion of the hearing we announced that we agreed with that proposition and we granted the relief sought, with reasons to follow. These are our reasons.
The proceedings to date
The claim form was issued on 22 April 2021, as reporting restrictions imposed by the Crown Court under s 4(2) of the Contempt of Court Act 1981 reached their expiry date. The claim was brought under Part 8, on the basis that there was unlikely to be any significant dispute of fact. It was formulated as a claim against Persons Unknown. No such persons were served with the proceedings, but the media were given appropriate notice of the claim, and of the claimants' application for an interim injunction. That application was initially made as a matter of urgency on 23 April 2021, when Murray J granted an injunction until a return date of 7 May 2021.
On 7 May 2021 the claimants' application to continue that order until trial came before a Divisional Court (Warby LJ and Nicklin J). The application was supported by one witness statement from each of the claimants, two from their solicitor, Mr Forshaw, and two from an officer from a law enforcement agency (“LEA”) who was anonymised as “C”. One of “C's” statements was a closed statement. The hearing was in public. The court made orders to protect the identity of “C”, and to guard against publicity for details contained in her closed witness statement that could identify the claimants. All the other evidence was open. Nobody filed any evidence in opposition to the application, nor did anyone appear at the hearing to resist the application. An injunction against the world was granted until after judgment in the claim.
The court's reasons were set out in judgments handed down on 18 May 2021: [2021] EWHC 1328 (QB), [2021] EMLR 20. The principal judgment was that of Warby LJ, with which Nicklin J agreed. Having set out the background facts and identified the nature of the claim ([1–4]) Warby LJ reviewed the evidence ([5–13]). The judgment is publicly available and it would be superfluous to repeat the exercise. We merely pick out some of the chief points.
The statement of Winch told of being subjected to “severe violence” by members of the OCGs when he was working with them. He said he was living in daily fear of being recognised. One of his close relatives had been located by OCG members. The statements of the second and third claimants also spoke of being terrified of physical harm. The key evidence was that of Witness C, who described Winch's role in an OCG and his role as an Assisting Offender from 2016. He had taken an active role as the conduit for supply of controlled drugs for an OCG in the North East of England. Having incurred debts to the OCGs he was subjected to violence to secure repayment. The trials in which he gave evidence led to the conviction of 29 individuals and a number of long sentences, including life imprisonment, 30 years, and 28 years. The LEA had identified 12 OCGs consisting of some 174 members who were considered capable of posing a significant threat, eight of them being assessed as “having a high violence capacity”. C's evidence was that various OCGs were “actively seeking the first claimant and his family, in order to cause them serious harm or kill them.” The threat to the claimants was assessed as “severe” and “extreme” such that, should they be located by OCGs it would be likely to “result in the infliction of serious harm or death”.
The evidence was that Winch himself had pleaded guilty to 23 offences, for which he was sentenced by HHJ Sherwin to 15 months' imprisonment suspended for two years. That sentence reflected his assistance and the danger to which the Judge considered he was exposed as a result. The evidence of “C” referred the court to the sentencing remarks of HHJ Sherwin, passages from which are set out in the interim judgment at [2].
At [14–20], Warby LJ identified the legal principles, before applying them to the facts of the case at [15–28]. The court held that the applicable principles were those summarised by the Divisional Court in RXG v Ministry of Justice [2019] EWHC 2026 (QB), [2020] QB 703 [35], applied in D v Persons Unknown [2021] EWHC 157 (QB) (Tipples J), and considered in Re Al Maktoum (Reporting Restrictions Order) [2020] EWHC 702 (Fam), [2020] EMLR 17 (Sir Andrew McFarlane, P). We take the same view. The principles are fully set out in the interim judgment and given our conclusions it is unnecessary to rehearse them here. It is enough to say this.
According to the authorities the court may interfere with freedom of expression by granting a Venables jurisdiction where a claimant demonstrates “a real possibility of serious physical harm and possible death”, which is immediate, and the evidence “demonstrate[s] convincingly the seriousness of the risk”. In such a case Article 2 of the Convention (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment) are engaged. Further, “where an applicant demonstrates by cogent evidence, that there is a real and immediate risk of serious physical harm or death, then there is no question of that risk being balanced against the Article 10 interests”: RXG [35(v)]. In Al Maktoum, Sir Andrew McFarlane, P applied these principles in granting anonymity to an adult witness. He also held that the outcome would have been the same if it was necessary to balance the applicants' rights under Articles 2 and 3 against the free speech rights of those who might wish to impart and receive the identifying information.
At the interim stage, the test to be applied is the one set out in s 12(3) of the Human Rights Act 1998, of whether the court is “satisfied that the applicant is likely to establish that publication should not be allowed”. The court was so satisfied, as Warby LJ explained at [21–23]:
“21. I am satisfied that the court would be likely after a trial to conclude that the facts of this case place it within the narrow band of exceptional circumstances in which the Venables jurisdiction should be exercised.
22. In my judgment, success for the claimants is more likely than not. The evidence before us is cogent and powerful. It demonstrates a significant and weighty risk that the claimants would be subjected to death or very serious violence if members of the OCGs or their associates were able to locate and identify them. The evidence satisfies me that the OCGs are actively trying to find the claimants, and that there is a real and appreciable risk that they could succeed, if no restrictions are placed on the distribution of identifying information. Our order will significantly mitigate any such risk.
23. I do not consider that these grave risks to the claimants' fundamental human rights fall to be balanced against the free speech rights with which such an order will interfere. I would apply the principles identified in RXG, including those at [35(iv)]. As Lord Rodger has said “… a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed”: Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 A.C. 697 [27]. To be fair, no media representative has suggested that this is the position. The media have been notified of this application and it is uncontested. But if there were a...
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