Secretary of State for the Home Department v KIB

Hearing date: 31 October 2024

Approved Judgment

This judgment was handed down by release to The National Archives on 5 November 2024

On 30 October 2024, the Secretary of State applied for an anonymity order in respect of the respondent. The application is made pre-action, without notice to the respondent, and seeks the imposition of the order with a degree of urgency and without a hearing. The order sought prevents the respondent (and anyone else) from publicising that the respondent is subject to these proceedings. It also prevents the respondent (and anyone else) from publicising the town where the respondent lives. If the respondent breaches the order they are liable to imprisonment, albeit there is no penal notice. I was told that such an order is “not unusual” and I was shown examples of such orders in other cases, but not any reasoned judgment for the making of such an order.

I considered that the application potentially raised issues that merited oral argument. I listed a hearing, to be held in public (at least in part), but without notice to the respondent and with the respondent's name ciphered on the court list, to enable the issues to be ventilated. Lisa Giovannetti KC attended a hearing at short notice, on 31 October 2024, and made submissions on behalf of the Secretary of State in support of the application. I am grateful for her considerable assistance.

The order that is sought

Original form of draft order

The application seeks the following draft order:

“1. The Respondent, [Name given], is to be identified only as KIB for the purpose of these proceedings.

2. Nothing shall be published that would or would tend to identify the Respondent as being subject, by notice (a “TPIM notice”), to terrorism prevention and investigation measures. This prohibition shall include, but not be limited to, information that would or would tend to identify the locality, town and/or address at which the Respondent is residing or has resided while subject to a TPIM notice; and information that would or would tend to indirectly identify the Respondent by identifying family members as being the relatives of a person subject to a TPIM notice.

3. The information referred to at paragraph 2 above shall be known as “the Prohibited Information”.

4. “Published”, as used in paragraph 2, refers to the:

a. Dissemination of the Prohibited Information to the public, or any section of the public, by way of newspaper, magazine, leaflet, journal or in any other paper form;

b. Broadcast and/or sharing of the Prohibited Information with the public, or any section of the public, including in any sound or television format on radio, satellite, cable or television; or

c. Dissemination to and/or sharing of the Prohibited Information with the public or any section of the public, including on any internet site or electronic/digital forum or by way of social media or email;

by any person.

5. The prohibition on the Prohibited Information being published, as set out at paragraph 2, shall not apply where and to the extent that publication is necessary:

a. For the effective and proper management and enforcement of the Respondent's TPIM notice; and/or

b. For the protection of national security and/or the international relations of the United Kingdom; and/or

c. For the detection and/or prevention of crime.

6. This Order is to remain in force until further order.

7. There shall be liberty to apply to vary or discharge this Order.”

Clarification of intended effect of order

On 30 October 2024 I sent written questions about the proposed order to the Secretary of State's solicitor. In response, by a letter dated 31 October 2024, the Secretary of State's solicitor provided the following clarification as to the intended effect of the order:

(1) The order was intended to bind the respondent – in other words it would have the effect of preventing the respondent from publishing the fact that they are subject to these proceedings.

(2) The order was not intended to prevent the respondent from disclosing the existence of the TPIM in ways that do not amount to publication within the terms of the order, such as by revealing the existence of the TPIM to their family, or to a doctor (or, it might be added, a lawyer).

(3) The Secretary of State did not consider that there was any requirement to publish the anonymity order on the judiciary website at this stage (because the obligation to publish anonymity orders on the judiciary website (see CPR 39.2(5)) arises in respect of orders made under CPR 39.2(4), whereas this order would be made under CPR 80.15.

(4) The wording of the order (see second sentence of paragraph 2) was intended to prevent any publication of the respondent's address, even if that was not in connection with the publication of the fact that they are subject to a TPIM.

(5) The order was intended to come into force immediately, and before any application for permission to make a TPIM, notwithstanding the wording of the first sentence of paragraph 2 which suggests otherwise. A revised form of order was suggested to cater for this point.

(6) An order that authorised the issue of proceedings using a cipher for the respondent would not suffice, because it was necessary to prevent the respondent from publishing their identity and address, and such an order would not have that effect.

I was also told that in all previous TPIM cases, the court has, without notice to the respondent, granted applications made by the Secretary of State for an anonymity order in respect of the respondent, and has done so at the same time as making an order granting permission to impose a TPIM under section 6(1)(b) of the Act, and that “anonymity orders for TPIM subjects is an established part of the overall scheme.”

Proposed amended order

To address the point at paragraph 4(5) above, the Secretary of State amended the draft order that was sought so that paragraph 2 reads:

“Nothing shall be published that would or would tend to identify the Respondent as being subject, by notice (a “TPIM notice”), to terrorism prevention and investigation measures or would identify / tend to reveal that the Secretary of State is considering imposing such measures on the Respondent. This prohibition shall include, but not be limited to, information that would or would tend to identify the locality, town and/or address at which it is proposed the Respondent shall reside, the Respondent is residing or has resided while subject to a TPIM notice; and information that would or would tend to indirectly identify the Respondent by identifying family members as being the relatives of a person subject to a TPIM notice.”

The legal framework

Anonymity orders in civil proceedings

The strong general rule, which can only be displaced by unusual or exceptional circumstances, is that proceedings take place in public: Scott v Scott [1913] AC 463, Re S (A Child) [2004] UKHL 47 [2005] 1 AC 593 per Lord Steyn at [18]. This is an aspect of the open justice principle. It means that the names of the parties to a case are, generally, made public when matters come before the court, and are included in court orders and judgments (and, it might be added, the published court list): JIH v News Group [2011] EWCA Civ 42 [2011] 1 WLR 1645 per Lord Neuberger at [21(1)], In re Guardian News and Media Ltd [2010] UKSC 1 [2010] 2 AC 697 per Lord Rodger at [63] (“What's in a name? ‘A lot’, the press would answer.”). Even before the matter comes to court, there is a requirement to include the parties' full names on a claim form and every other statement of case: CPR PD 7A para 4.1(3). Any member of the public is entitled to obtain from the court records a copy of a statement of case, and thereby to see the parties' names: CPR 5.4C(1)(a).

There is, where justified, a power to make an order for a party's anonymity, with an associated reporting restriction order under section 11 of the Contempt of Court Act 1981, and an associated order under CPR 5.4C(4) restricting access to the court record. That power involves a derogation from the open justice principle, and will only be exercised when, and to the extent that, it is established on clear and cogent evidence that it is strictly necessary: Master of the Rolls' Practice Guidance: Interim NonDisclosure Orders [2012] 1 WLR 1003 at [12], Scott per Viscount Haldane LC at 438 – 439, Lord Atkinson at 463 and Lord Shaw at 477, Lord Browne of Madingley v Associated Newspapers Ltd [2007] EWCA Civ 295 [2008] 1 QB 103 per Sir Anthony Clarke MR at [2] – [3], Secretary of State for Home Department v AP (No2) [2010] UKSC 26 [2010] 1 WLR 1652 per Lord Rodger at [7], Gray v UVW [2010] EWHC 2367 (QB) per Tugendhat J at [6] – [8], JIH per Lord Neuberger MR at [21].

In approval hearings under CPR 21.10 the default position is reversed and an anonymity order is usually made to protect the identity of the claimant, but that is a special case and the principle does not apply more widely: JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96 per Moore-Bick LJ at [35(v)].

An underlying source of a power to impose an anonymity order is the obligation under section 6(1) of the Human Rights Act 1998 to act compatibly with Convention rights (being those rights granted under the European Convention on Human Rights (“ECHR”) which are specified in section 1 of the 1998 Act), read with the court's general power to grant an injunction under section 37(1) of the Senior Courts Act 1981: In re British Broadcasting...