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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> A & B v Persons Unknown  EWHC 3295 (Ch) (19 December 2016)
Cite as:  EWHC 3295 (Ch),  EMLR 11
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The Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London EC4A 1NL
B e f o r e :
(A protected party by his litigation friend, the Official Solicitor)
(A child by his litigation friend, the Official Solicitor)
|- and –
Mr Brian Farmer, a journalist, appeared on behalf of the Press Association
Hearing date: 9th December 2016
Crown Copyright ©
Sir Geoffrey Vos, the Chancellor of the High Court:
The witness evidence in support of the application
Evidence since the anonymity application was intimated
The submissions made by the Press Association
The Human Rights Act 1998
(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 not 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 relevant privacy code."
Other relevant authorities
"What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And that is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria 31 EHRR 246, 256, para 39… More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd  2 AC 457, 474, para 59, "judges are not newspaper editors". See also Lord Hope of Craighead in In re British Broadcasting Corpn  1 AC 145, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive."
"This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under article 8 and the freedom of the media and the public under article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, if the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case"
i) Should the claimants be granted an injunction preventing publication of their names or identities?
ii) Should the claimants be permitted retrospectively to issue these proceedings anonymously?
Should an injunction be granted?
The risk of a future breach of articles 2 and 3
The necessary intense scrutiny and proportionality exercise
"An injunction is hereby granted prohibiting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service of information in such manner or in such context as to lead, or which could or might lead, to the identification of the Claimants, or either of them, as being the persons who committed the offences in what became known as 'The Edlington Case', heard in the Sheffield Crown Court (case numbers T20090740 and T20090438) including but not limited to:
(a) the current names of the Claimants;
(b) the original names of the Claimants;
(c) the address or any details which could lead to information about the whereabouts of the Claimants;
(d) any picture, image, voice and/or video recording of and including the Claimants;
(e) the names of any of the persons, locations or organisations set out in confidential Schedule 1;
No publication of the text or a summary of this order (except for service of the order) shall include any of the matters referred to in this paragraph."
Anonymity of the proceedings
"(1) The general rule is that a hearing is to be in public. …
(3) A hearing, or any part of it, may be in private if –(a) publicity would defeat the object of the hearing; … or (g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."