Secretary of State for the Home Department v AP (No 2)

LORD RODGER (with whom all members of the court agree)

On 16 June 2010 the Court gave judgment in Secretary of State for the Home Department v AP [2010] UKSC 24. As Lord Brown explained, the appeal concerned a control order imposed on AP under the Prevention of Terrorism Act 2005. In April 2008 the Secretary of State had modified the order to include a condition that AP, who had previously lived in London, should now live in a town some 150 miles away. In August 2008 Keith J quashed the residence requirement and the following day the Secretary of State served a modified control order in similar terms, except that the curfew had been reduced to 14 hours. By a majority, the Court of Appeal allowed the Secretary of State's appeal against Keith J's order. In its judgment of 16 June, this Court allowed AP's appeal and restored the order of Keith J quashing the residence requirement.

In fact, as Lord Brown also explained, the appeal was academic, so far as AP himself was concerned, since on 2 July 2009 the Secretary of State had revoked the control order and decided that AP should be deported on national security grounds. AP appealed to the Special Immigration and Asylum Commission (SIAC) against the decision to make the deportation order. On 20 July 2009 AP was granted bail pending deportation, on conditions, including residence in the Midlands, broadly similar to those of the previous control order, except that the curfew period is 18 hours.

It appears that an anonymity order was made at the outset of the proceedings in the Administrative Court and has been in force ever since. A similar anonymity order was made in AP's appeal to SIAC and it remains in force pending the Commission's decision.

At the outset of the hearing of AP's appeal to this Court, the Court made an order continuing the anonymity order for the duration of the hearing. The Court also invited submissions from AP and the Secretary of State as to whether the anonymity order should cover the publication of its judgment. No submissions were invited from the media and they did not seek to intervene to make submissions. In their submissions counsel for AP informed the Court that there had been press interest in the proceedings before SIAC and that a representative of a national newspaper had attended those proceedings to make submissions about the exclusion of the press and public from parts of the proceedings. It had not been suggested, however, that SIAC should reveal AP's identity in its judgment or that it should be open to the media to reveal his identity in any report of the proceedings or judgment.

In the present case the submissions for both AP and the Secretary of State favour the continuation of the anonymity order. That is by no means conclusive, however: on the contrary, the Court has borne in mind Sir Christopher Staughton's warning, in R v Westminster City Council, Ex p P (1998) 31 HLR 154, 163, that "when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant."

In In re Guardian News and Media Ltd [2010] 2 WLR 325 an application was successfully made by various media to set aside anonymity orders in proceedings relating to orders freezing the assets of suspected terrorists. In that case counsel made some reference to anonymity orders in proceedings relating to control orders. While not making any ruling on control orders - none of which was before it - the Court observed, at p 348, para 78:

"Many of the same issues would obviously arise if an application were made to set aside the anonymity orders made in any outstanding control order proceedings. The same principles would also have to be applied, but there may be arguments and considerations in those cases which were not explored at the hearing in this case. Conceivably, also, the position might not be the same in all of the cases."

In In re Guardian News and Media Ltd the Court heard full submissions from both the media and the parties involved in the substantive proceedings. The Court reviewed the relevant authorities on the application of articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms. There is no call to repeat that exercise in the present case. Rather, so far as articles 8 and 10 are concerned, applying Lord Hoffmann's guidance in Campbell v MGN Ltd [2004] 2 AC 457, 473-474, paras 55 and 56, and the conclusions reached in In re Guardian News and Media Ltd, at pp 340-341, paras 50-52, the Court must ask itself "whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family's right to respect for their private and family life." The Court emphasised that the answer will depend on the facts of the particular case. No issue under article 3 arose in that case.

In the present case both the Secretary of State and AP pointed out that, where proceedings are taken to challenge a control order, the person affected may well wish to argue that, for particular reasons, his identity should not be revealed. He may require time to muster the relevant information and evidence. It therefore makes sense for an interim anonymity order to be made at the ex parte permission stage. Reference was made to the observations of Ouseley J in Times Newspapers Ltd v Secretary of State for the Home Department and AY [2008] EWHC 2455 (Admin) to that effect. I refer to those observations in para 11 below. The Court accepts that, at least as a general rule, an interim anonymity order will indeed be appropriate at that initial stage. It is important, however, that such an order should not just be continued...