Re Al M (Reporting Restrictions Order)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P |
| Judgment Date | 24 March 2020 |
| Neutral Citation | [2020] EWHC 702 (Fam) |
| Docket Number | Case No: FD19P00246, FD19P00380, FD19F05020, FD19F00064 |
| Court | Family Division |
[2020] EWHC 702 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Case No: FD19P00246, FD19P00380, FD19F05020, FD19F00064
Ms Christina Michalos QC (instructed by DAC Beachcroft Solicitors) for the Applicant
Ms Sarah Palin (instructed by Associated Newspapers Ltd, British Broadcasting Corporation, The Financial Times Ltd, Guardian News & Media Ltd, Telegraph Media Group Ltd, Sky PLC, Thomson Reuters, Times Newspapers Limited and the Press Association) for the Respondent Media Group
Hearing date: 21 st February 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment relates to an application for anonymity made by a witness who gave evidence during the fact-finding stage in these proceedings which concern the welfare of two children.
The underlying factual circumstances which relate to the issue of anonymity are known to the senior advisers representing each of the parties and the nine media organisations who have collectively instructed solicitors and counsel in these proceedings. In order for this judgment to be read by those who cannot be privy to that information, no reference to the underlying detail will be made.
The application
In essence, the case for anonymity arises from an unusual and exceptional combination of facts arising from the witness' previous career coupled with the potential for his/her involvement in these proceedings to exacerbate credible risks to his/her safety which already exist. The primary case of the witness [“XX”] is that the evidence establishes a real and immediate risk of harm or death such that European Convention on Human Rights (“ECHR”) Articles 2 and 3 are engaged. Where Articles 2 and 3 are engaged, because these are unqualified rights, there is no question of balancing those rights against the right to freedom of expression protected by Article 10.
The witness's alternative case is that the risk of harm, and/or the fear of serious harm, to both XX and their family are sufficient to engage Article 8.
Further, it is asserted that XX is a victim of blackmail and should, in any event, be granted anonymity in accordance with well established public policy.
It is asserted that the Article 10 rights of the media are met by the description of XX that appears in the fact-finding judgment and that the Reporting Restrictions Order (“RRO”) that is sought is a proportionate and fair way of protecting XX from serious harm and the risks that have been identified.
The underlying legal principles are not contested by those representing the media. The RRO application is opposed on the basis that naming XX does not materially alter such risk of harm that he/she may face in ordinary circumstances and, in any event X's identity is readily ascertainable. It is submitted that the case, therefore, falls outside Articles 2 and 3, a balance must be struck in which the Article 10 rights to freedom of expression are of considerable weight.
The application in more detail
In her most helpful skeleton argument, Ms Christina Michalos QC for XX sets out the basic legal principles which, as I have indicated, are not controversial:
(1) There is no statutory protection for the identity of a witness in the position of XX under Administration of Justice Act 1960, s 12, or Children Act 1989, s 97.
(2) Anonymisation of judgments, or mere directions permitting witnesses not to disclose their names, are not enforceable as injunctions.
(3) The court has power both to relax and to add to the “automatic restraints”. In exercising this jurisdiction the court must conduct a “balancing exercise”: Re S (Identification: Restrictions on Publication) [2004] UKHL 47 and Re J (A Child) [2013] EWHC 2694 (Fam).
(4) The court has power to make a RRO granting anonymity to witnesses and others but anonymity should not be extended unless there are compelling reasons ( Re J (A Child) above).
(5) There is an important need for transparency in the family justice system as well as the general importance of open justice. It is for a party seeking a derogation from the principle of open justice to justify that derogation and the court should only make such an order after closely scrutinising the application: JIH v News Group Newspapers [2011] 1 WLR 1645 at paragraph 21.
(6) Human Rights Act 1998, s 12, applies when a court is considering whether to grant any relief that might affect the exercise of the Convention right to freedom of expression.
(7) There is a public interest in the press being able to identify the names of individuals who are the subject of their press reports. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people: Re Guardian News and Media Limited [2010] 2 AC 697.
Ms Michalos submits that the following further principles are appropriate to the present case:
(1) Article 2 (Right to Life) and Article 3 (Prohibition of Torture, Inhuman or Degrading Treatment or Punishment) may be engaged where parties or witnesses are in physical danger: A v BBC [2015] AC 558.
(2) Where the conflict is between the media's rights under Article 10 and an unqualified right of some other party, such as the rights guaranteed by Articles 2 and 3, there can be no derogation from the latter: A v BBC (above).
(3) Where the evidence demonstrates that there is a real and immediate risk of serious harm or death, this cannot be balanced against any Article 10 right, no matter how weighty: RXG v Ministry of Justice [2019] EWHC 2026 (QB).
(4) The threshold for engagement of Articles 2 and 3 is “the real possibility of serious physical harm and possible death” or “a real and immediate risk of serious physical harm or death”: RXG v Ministry of Justice (above).
(5) “A real risk is one that is objectively verified and an immediate risk is one that is present and continuing”: Adebolajo v Ministry of Justice [2017] EWHC 3568 (QB).
(6) However, where evidence of a threat to a person's physical safety does not reach the standard that engages Articles 2 and/or 3, then the evidence as to risk of harm will usually fall to be considered in the assessment of the person's Article 8 rights and balanced against the engaged Article 10 rights. Whilst the level of threat may not be sufficient to engage Articles 2 or 3, living in fear of such an attack may very well engage the Article 8 rights of the person concerned: RXG v Ministry of Justice (above).
Where Arts 2 and 3 are engaged is it appropriate to balance Art 10?
In her submissions Ms Michalos drew the court's attention to the apparent conflict of first instance authorities on the question of whether or not it is appropriate to consider striking any balance with Article 10 rights in cases where Articles 2 and/or 3 are engaged.
In A and B v Persons Unknown [2016] EWHC 3295 (Ch); [2017] EMLR 11, Sir Geoffrey Vos, Chancellor, considered an application for a permanent RRO for two brothers who had been convicted of very serious offences against three child victims (known as the “Edlington case”). At paragraph 35 of his judgment Sir Geoffrey Vos, when considering the question “should an injunction be granted?” stated:
“A risk of a breach of the unqualified rights in Articles 2 and 3 of the ECHR is a risk as to events in the future rather than a present breach of that unqualified right. Accordingly, I do not think that even such a potential breach can automatically trump the Article 10 right to freedom of expression. A broadly similar approach as the Supreme Court adopted in PJS v News Group Newspapers [2016] AC 1081 is required. There must be an intense focus on the nature and extent of the risks under Articles 2 and 3, and on the comparative gravity of...
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