HM Attorney General for England and Wales v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] EWHC 1189 (QB) |
| Docket Number | Case No: QB-2022-000174 |
| Court | Queen's Bench Division |
[2022] EWHC 1189 (QB)
Mr Justice Chamberlain
Case No: QB-2022-000174
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Sheldon QC and Emmanuel Sheppard (instructed by the Treasury Solicitor) for the Claimant
Zubair Ahmad QC and Dominic Lewis (instructed by the Special Advocates' Support Office) as Special Advocates
Adam Wolanski QC and Hope Williams (instructed by the BBC Litigation Department) for the Defendant
Hearing dates: 27 April 2022
Approved Judgment No. 3
THIS IS THE PUBLIC VERSION OF A JUDGMENT HANDED DOWN IN PRIVATE PURSUANT TO CPR 39.2
PART I
Introduction
The background to this claim is described in a judgment handed down on 22 February 2022 and made public on 24 February 2022: [2022] EWHC 380 (QB) (“the first judgment”). It concerns an individual, “X”, who the BBC alleges is a covert human intelligence source (“CHIS”) for the Security Service (“MI5”) and also physically and psychologically abused two female partners.
On 7 April 2022, I handed down a further judgment, in which I gave reasons for granting the Attorney General's application for an interim injunction restraining the BBC from identifying “X”, while allowing them to convey what they regard as the core elements of their story: [2022] EWHC 826 (QB) (“the second judgment”).
At [84]–[86] of the second judgment, I explained that the relief originally sought was very broad. The Attorney General had sought an injunction which would (in essence) have prevented the BBC from broadcasting or publishing anything about X without first obtaining her express written agreement. By the time of the hearing of the interim injunction application, the Attorney General was no longer seeking relief in this form. The parties had by that time agreed that, if an injunction were granted, it should identify precisely the information that could not be disclosed.
At [88] of the second judgment, I indicated that the core information whose disclosure would be prohibited was X's name and image. But there would also be secondary information which, if disclosed, would tend to identify him. At the interim relief hearing, the parties agreed to take a precautionary approach to the identification of the information falling into this latter category. However, there remained some significant disputes.
The parties agreed the terms of the order I made on 7 April 2022. This included a prohibition on disclosing information which “directly or indirectly identifies” X and a provision specifying information to be treated as doing so. The latter provision was in very broad terms. This was on the footing that outstanding disputes about what information was “identifying” would be resolved in a further order. Directions were given with a view to resolving these disputes.
Pursuant to my directions, the Attorney General produced a table of categories of information which she says would give rise to a real risk of identifying X if disclosed. Some of these are agreed, but many are not. Where agreement has not been reached the table records the BBC's reasons and the Attorney General's reply. The table runs to 54 pages. The Attorney General and the BBC each filed evidence in support of their position. There were OPEN and CLOSED hearings on 27 April 2022. The part of the OPEN hearing dealing with general principles was held in public. The part dealing with the specific matters whose disclosure the Attorney General considers would identify X was held in private, pursuant to CPR 39.2(3)(a), (b) and (c). The CLOSED hearing was, of course, held in the absence of the BBC and its legal team. Their interests were represented by the special advocates.
This OPEN judgment has been written in two parts. Part I deals with the general principles which I have applied. It is intended to be made public. Part II will be handed down in private, pursuant to CPR 39.2(a) and (c) because it discusses the particular matters which the Attorney General says would identify X. Even where I have ruled against the Attorney General, publication of my full reasons for doing so would give rise to a real risk of identifying X.
The form of the injunction
In most cases where there is a prohibition on disclosing someone's identity imposed by statute or by a court order made under a statutory power, the prohibition is framed in general terms. Thus, s. 1 of the Sexual Offences (Amendment) Act 1992 prevents publication of information “if it is likely to lead members of the public to identify” a person as a victim of certain sexual offences. Section 49(1) of the Children and Young Persons Act 1933, which applies to those concerned in youth court proceedings, is in similar terms, as are ss. 45(3), 45A(2) and 46(6) of the Youth Justice and Criminal Evidence Act 1999, which empower courts to make directions preventing publication of information.
This means that, for the most part, the question whether publication of particular information would be “likely to lead to” someone's identification is left to the judgment of the media. In the context of restricted reporting orders, this has been expressly recognised: see Judicial College Guide on Reporting Restrictions in the Criminal Courts, para. 3.2.
Injunctions granted by the High Court have often been framed in similarly general terms. For example, in the Venables case, Dame Elizabeth Butler-Sloss P granted a contra mundum injunction prohibiting, subject to certain exceptions, the publication of “any information likely to lead to the identification of the past, present or future whereabouts (including all residential or work addresses and telephone numbers) of the said claimants”: Attorney General v Greater Manchester Newspapers Limited, The Times, 7 December 2001, at [14]. In X (formerly known as Mary Bell) v SO [2003] EWHC 1101 (QB), [2003] EMLR 37, the injunction prohibited publication of “information likely to lead to the identification of X as the woman formerly known as Mary Bell”. In Re Persons Formerly Known as Winch [2021] EWHC 3284 (QB), the Divisional Court exercised the same jurisdiction (under Articles 2 and 3 of the European Convention on Human Rights) to prohibit the publication of “information that would be likely to identify the claimants”: see at [34]. A defendant media organisation subject to an injunction in general terms such as these will have to judge for itself whether publishing particular information would be likely to identify the relevant individual to members of the public. Such an organisation might choose to err on the side of caution, given the risks involved if the order is breached.
In my judgment, there are good reasons why, in most situations, an order prohibiting publication of information likely to lead to someone's identification should be framed in general terms. Broadcasters and publishers are in general experienced in making judgments about what information can and what cannot be published without giving rise to the real risk of identifying someone. When making the judgment, the broadcaster or publisher will have to consider what is already publicly known and, against that background, decide whether a particular additional piece of information would give rise to a real risk of identifying the individual concerned; information which would not be identifying at one point in time might be identifying later, when more background information is publicly known. In the absence of evidence to the contrary, the court assumes that the judgment will be made in good faith on each occasion when publication is proposed. If it is not, there are sanctions for contempt of court.
Moreover, in the vast majority of cases, it is not possible to know in advance precisely what information a particular broadcaster or publisher will wish to make public and no reason to suppose that there will be any significant dispute about what information is identifying. It would be impossible, and undesirable, for the court to seek to define in advance the precise parameters of every possible story.
The present case, however, has a number of unusual features. It has become clear that, in a number of respects, the parties are not in agreement about what information would be likely to lead to identification of X if disclosed. I had hoped that the process of preparing the table recording the parties' positions would result in a measure of agreement on the key issues, or most of them. This hope was not realised: the number of issues in dispute was dispiritingly large.
On many of the issues, the Attorney General has proposed a very broad description of the information said to be identifying – for example “X's name, race, approximate or actual age, appearance, voice, accent, tattoos, racial or ethnic origin, nationality, and heritage” (item 1 of 20). The BBC agrees that X's name, voice and accent are identifying, but complains that some of the other categories (e.g. “appearance”) are too broad. The Attorney General responds that the categories...
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Hmag v BBC
...OPEN hearing was partly in public and partly in private. I gave my judgment on 18 May 2022, partly in public and partly in private: [2022] EWHC 1189 (QB) (“the identification judgment”). Some of the disputes were resolved in the Attorney General's favour and some in the BBC's. I granted an......