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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> M, R (on the application of) v The Parole Board & Anor [2013] EWHC 1360 (Admin) (22 May 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/1360.html Cite as: [2013] EMLR 23, [2013] EWHC 1360 (Admin) |
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DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF M |
Claimant |
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- and - |
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THE PAROLE BOARD -and- SECRETARY OF STATE FOR JUSTICE and ASSOCIATED NEWSPAPERS LIMITED, MGN LIMITED, NEWS GROUP NEWSPAPERS LIMITED AND TIMES NEWSPAPERS LIMITED |
Defendant Interested Party Interveners |
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Julian Milford (instructed by Treasury Solicitor) for The Parole Board
T Weisselberg (instructed by Treasury Solicitor) for the Interested Party
Guy Vassall-Adams (instructed by RPC LLP) for the Interveners
Hearing date: 18 April 2013
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Crown Copyright ©
Lord Justice Pitchford :
Introduction
Procedural Background
"Upon consideration of the papers it is agreed by all parties that pursuant to CPR 39.2 this matter be known as R (M) v The Parole Board."
"It is ordered that:
(1) Pursuant to CPR 39.2 this matter be known as R (M) v The Parole Board.
(2) No details of this claimant's identity or the details of his offences, (save as referred to in the final judgment), or his current location be published in any form in respect of any reference to this judgment or any part of the final judgment without further order.
(3) No details of the identity or location of the person referred to as "FH" in these proceedings and in the final judgment be published in any form without further order.
(4) Liberty to any party to apply to discharge or vary paragraph 2 of this Order within 5 days of the date of this Order after having given prior written notice to the solicitors for the claimant and for the defendant."
"51. In the light of the claimant's attribution of the index offences to difficulties in his relationship with others causing him to enact violent fantasies directed towards the victim's family, it was the relevance of these questions which led the panel to conclude that, given the fact that he was "capable" of forming serial relationships of a sexual nature with women while in custody, and that the risk in relation to how he formed relationships and dealt with setbacks arising from them, was not sufficiently understood by the claimant and not adequately addressed in the therapy."
This finding is relevant to the conditions in which the claimant is currently and will, at least in the short term, be serving his sentence.
Factual background
The evidence of risk submitted by the parties
The common law principle of open justice
European Convention on Human Rights
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information of ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms since it carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Article 2 right to life
Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his convention of a crime for which this penalty is provided by law."
Article 3 prohibition of torture
No-one shall be subjected to torture or inhuman of degrading treatment or punishment.
Article 5 right to liberty and security
(1) Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:
(a) The lawful detention of a person after conviction by a competent court
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful
Article 8 Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as his in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"3. I have been assisted by the short written submissions of Mr John Aston of the Press Association. He rightly draws attention to the primary position which is that there should be full reporting of both argument and the decision unless it is necessary and in the interest of justice that anonymity be granted. He submits that the issue before the court today is not what arrangements should be made if he is granted parole, for example details of where he may be released; and that, if that stage is reached and reporting restrictions then become necessary, orders can be made preventing the press from identifying where he will live. He concedes that it could be argued that injunctions might be necessary to prevent the press from approaching him; but makes the point that the court today is only concerned with whether the Parole Board made a legally valid decision not to recommend his transfer to open conditions, and that to impose a news black-out in a case of such seriousness is to deny the public the right to know the outcome in a disproportionate way, which runs counter to the public need for open justice. He submits that there is a danger in this type of case that the interests of the public, who have a right to be informed on matters of such seriousness, is not sufficiently taken into account.
4. In her submissions, Ms Whitaker, in support of the application, draws attention to the fact that this claimant has been on rule 43 or in a VPU for much of his life in prison. He is now in a place where his identity is not known, but she submits that this may change shortly. Her real point is that the nature and seriousness of the offences are such that it is not simply his Article 8 rights which may be infringed in the most serious way were his identity to be made known when people hear about the facts of this case, but that Article 2 and Article 3 will be engaged since his life will be at risk.
5. I accept that submission. The facts suggest strongly that his life may be at risk if an order is not made. I am told that the Secretary of State for Justice is supportive of the application, which is a factor that I take into account but which is not dispositive of the issue. For reasons which I have given during the course of argument, I propose to allow the Press Association or any other party affected by the Order if they wish, to apply on proper notice and within a confined period to vary or discharge this Order, by counsel or however else they wish."
Simon J did not have before him the evidence which has now been presented to the Court; he provided the press or any other party with liberty to apply and on 5 February 2013 gave directions for the presentation of evidence for the current hearing.
The cases
"The Human Rights Act 1998 has enlarged the court's role for present purposes. The courts have always been a branch of Government (in the wider sense of that expression) and as such they now have a duty to comply with the Convention. As the Divisional Court said, Article 10 carries with it a right to know, which means that the courts, like any public body, have a concomitant obligation to make information available. Of course, the obligation is not unqualified or absolute, nor does it involve the court arrogating to itself some sort of roving commission. But where the publication at issue concerns the content of a judgment of the court, it seems to me that article 10 is plainly engaged; the public's right to know is a very important feature "
"In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."
"28. [O]f one thing we are clear. The degree of risk described as "real and immediate" in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action for the authorities to protect life. It was "a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party" which was, or ought to have been, known to the authorities: page 35, paragraph 116. Such a degree of risk is well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to evoke in the present context."
At paragraph 31 the court said it would first examine the soldiers' subjective fears and then consider whether they were objectively justified. This identification of a lower threshold of risk when the risk arose in consequence of an action taken by the state was expressly disapproved by the House of Lords in Re Officer L at paragraph 20 when Lord Carswell said:
"20. [T]here was a suggestion in paragraph 28 of the judgment of the court in R (A) v Lord Saville of Newdigate that a lower degree would engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. In my opinion the standard is constant not variable with the type of action in contemplation and is not easily reached. Moreover the requirement that the fear has to be real means that it must be objectively well founded. In this respect the approach adopted by Morgan J was capable of causing confusion when he held that the tribunal should have commenced by assessing the subjective nature of the fears entertained by the applicants for anonymity before going on to assess the extent to which those fears were objectively justified. That is a valid approach when considering the common law test but in assessing the existence of a real and immediate risk for the purposes of Article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. That is not to say that the existence of a subjective fear is evidentially irrelevant, for it may be a pointer towards the existence of a real and immediate risk, but in the context of Article 2 it is no more than evidence."
"12. But the court has been more influenced by the submissions of counsel for AP about the particular circumstances in this case. It would be counter-productive to go into the detail of the submissions which might serve to identify the town where AP is required to live.
13. In brief, counsel point out that the town where AP has to live is one where there are already considerable community tensions. There is organised racist activity in the town which has achieved not insignificant local support. There have been racist attacks, including physical violence, on members of the Muslim community in the town. There have also been attempts by racist groups to associate Muslims with terrorism.
14. Given these particular circumstances the court considers that there is force in AP's submission that, if he were revealed to be someone who was formerly subject to a control order and is now subject to deportation proceedings for alleged matters relating to terrorism, then he would be at real risk not only of racist and other extremist abuse but of physical violence. In other words there is at least a risk that AP's Article 3 convention rights would be infringed."
At paragraph 17 Lord Rodger referred to the absence of any submissions from the media in which some special feature of public interest might be identified. He concluded at paragraph 18:
"18. For all these reasons, the court has concluded that, in this particular case, the public interest, in publishing a full report of the proceedings and judgment which identifies AP, has to give way to the need to protect AP from the risk of violence. Similarly in this particular case, that public interest would not justify curtailing AP's right to respect for his private and family life. The anonymity order should accordingly be maintained in the court's judgment, and any report of that judgment, should not reveal AP's identify. He should continue to be referred to as "AP"."
"73. Although it has effects on the individual's private life, the purpose of a freezing order is public: it is to prevent the individual concerned from transferring funds to people who have nothing to do with his family life. So this is not a situation where the press are wanting to publish a story about some aspect of an individual's private life, whether trivial or significant. Rather, they are being prevented from publishing a complete account of a important public matter involving this particular individual, for fear of the incidental effect that it would have on M's private and family life.
74. So far as the potential effect on M's private and family life is concerned, the evidence is very general and, for that reason, not particularly compelling. The apparent lack of reaction to the naming of Mr al-Ghabri [another party] is relevant in this respect since it suggests that the impact of identifying the individual on relationships with the local community is not likely to be as dramatic as the judges who made the orders appeared to have anticipated. The fact that, through his solicitors, M has himself gone out of his way to put into the public domain what he says are the effects of the freezing order on his family life, is also significant.
75. On the other hand, publication of M's identity would make a material contribution to a debate of general interest.
Conclusion:
76. In these circumstances, when carrying out the ultimate test of balancing all the factors relating to both M's Article 8 right and the Article 10 rights of the Press, we have come to the conclusion that there is indeed a powerful general, public interest in identifying M in any report of these important proceedings which justifies curtailment, to that extent, of his, and his family's Article 8 convention rights to respect for their private and family life."
The media interveners' submissions
The Secretary of State's submissions
The claimant's submissions
Discussion
Paragraph (3) of the order
"(3) No details of the identity or location of the person referred to as "FH" in these proceedings and in the final judgment be published in any form without further order."
No application has been made by any of the parties for the discharge of paragraph (3) of the order but the media interveners have drawn to the Court's attention the fact that (i) the identity of the individual referred to as FH in Simon's J's judgment is already in the public domain, (ii) the order, unlike paragraph (2), does not confine the prohibition against publication to reports of the judicial review proceedings, and (iii) the name of another person called SF was referred to in the course of argument but no order was made to prohibit publication of that individual's identity.
"1. No details of the identity or current location of the persons referred to as FH and SF in these proceedings may be published in any report of these proceedings.
2. In paragraph 1 "these proceedings" means the instant judicial review proceedings and the judgment R (on the application of M) v Parole Board [2013] EWHC 141 (Admin) and the media's application to discharge the reporting restrictions relating to M and the Court's judgment on this application."
ADDENDUM
Procedural deficiencies
"Freedom of expression
12(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any privacy code.
(5) In this section-
"court" includes a tribunal; and
"relief" includes any remedy or other order (other than in criminal proceedings".
The procedure adopted in M's previous judicial review challenges
The procedure adopted in the present case
The procedure which should have been adopted
Guidance