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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010) URL: http://www.bailii.org/uk/cases/UKSC/2010/1.html Cite as: [2010] 2 All ER 799, [2010] HRLR 14, [2010] UKSC 1, [2010] UKHRR 181, (2010) 107(6) LSG 18, [2010] 2 AC 697, [2010] 2 WLR 325, [2010] NPC 8, [2010] EMLR 15 |
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Hilary Term
[2010] UKSC 1
JUDGMENT
Application by Guardian News and Media Ltd and others in
Her Majesty's Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants)
Her Majesty's Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant)
R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty's Treasury (Appellant)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Kerr
JUDGMENT GIVEN ON
27 January 2010
Heard on 5 and 22 October 2009
| Applicants Geoffrey Robertson QC Anthony Hudson (Instructed by Finers Stephens Innocent LLP) |
Respondent Jonathan Swift Sir Michael Wood Andrew O'Connor (Instructed by Treasury Solicitor) |
|
| Appellants Hugh Tomlinson QC Dan Squires (Instructed by Birnberg Peirce and Partners) |
This is the unanimous judgment of the 
Court delivered by:
LORD RODGER
Court in this application. In all the cases down for hearing in the first month of the Supreme Court's existence at least one of the parties was referred to by an initial or initials. Thanks to the relevant Practice Note, the same goes for the very last case heard by the House of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7; [2009] 3 WLR 1253) and the very first judgment handed down by the Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1; [2009] 1 WLR 2353). See Practice Note (Court of Appeal: Asylum and Immigration Cases) [2006] 1 WLR 2461. Indeed, so deeply ingrained has the habit of anonymisation become that the judgment of the Court of Appeal in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 was published under that name, and came on appeal to the Supreme Court under the same name, even though Maurice Kay LJ had begun his judgment by saying that anonymity was unnecessary. At the hearing of the appeal that assessment proved to be correct. See Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48.
Supreme Court are not necessarily typical of those going through the court system as a whole, but the general impression is that the practice of referring to parties by initials has increased at all levels in recent years. Even assuming that the use of initials was justified in many cases, the present appeals show that an order ("anonymity order") may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it. This happens despite Sir Christopher Staughton's warning, in Ex p P, The Times 31 March 1998, that "when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant." Lord Woolf MR quoted the warning with approval in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E. The application challenging the anonymity orders in these appeals provides an opportunity for reviewing the position.
court. Take, for instance, the case of A. On 15 February 2008 Collins J ordered that "The claimant be granted anonymity throughout these proceedings and be referred to as A. No report of these proceedings shall directly or indirectly identify him or any member of his family." The practice is for such orders to be intimated to the Press Association. In these cases, therefore, the orders were in place during the substantive hearings. Following those hearings, with the consent of the Treasury, Collins J continued the anonymity orders in the cases of A, K and M. In the case of G, he continued the order, but left it to the Court of Appeal "to make the final decision as to whether the anonymity order in his case should or should not be lifted."
Court of Appeal included an order, apparently of consent, that "The respondents shall be granted anonymity and no report of these proceedings shall directly or indirectly identify them or any member of their families." That was the position when the appeals came before this Court and the press and media ("the press") made their application to have the anonymity orders set aside. The Court decided to set aside the order in the case of one of the appellants, G, but to postpone consideration of the application relating to the others until after the substantive hearing. A separate hearing to consider the application in respect of those appellants took place on 22 October when the Court also considered the application to set aside the anonymity order in the separate case of HAY.
Supreme Court Rules 2009 provides for every contested appeal to be heard in open court, the appellants should have made an application for a fresh anonymity order to cover the appeal to this Court. We would reject that contention. There was never any question of departing from rule 27: the hearing of the appeals was always going to be in open court. The anonymity orders simply restricted the form of any report of the hearing. So far as anonymity orders are concerned, the practical approach is that, where an open-ended order has been made, it should remain in force throughout the proceedings, at whatever level, unless and until it is set aside, either spontaneously on a change of circumstances, or as the result of an application by the press. That approach promotes certainty and avoids unnecessary applications.
courts below appear to have granted the anonymity orders without any very prolonged consideration and without explaining their thinking, the appellants contend that the orders are necessary because identifying them as the claimants in these proceedings would infringe their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms to respect for their private and family life. To understand that contention, it is necessary to outline the events giving rise to the proceedings.
The Background Events
"(1) Where the Treasury propose (in accordance with article 5(1)(a)(ii)) to inform only certain persons of a direction, they may specify in the direction that information contained in it is to be treated as confidential.
(2) A person who obtains information which is to be treated as confidential in accordance with paragraph (1), or to whom such information is provided, must not disclose it except with lawful authority.
(3) Confidential information is disclosed with lawful authority only if and to the extent that any of the following applies—
(a) the disclosure is by the Treasury;(b) the disclosure is with the consent of the person who is the subject of the information;(c) the disclosure is to (and is necessary to) give effect to a requirement under this Order;(d) the disclosure is required, under rules of
(4) This article does not prevent the disclosure of information which is already, or has previously been, available to the public from other sources.
(5) A person who contravenes the prohibition in paragraph (2) is guilty of an offence.
(6) In proceedings for an offence under this article, it is a defence for a person to show that he did not know and had no reasonable cause to suspect that he was disclosing confidential information.
(7) The High
(a) the person who is the subject of the information, or(b) the Treasury."
The letters sent to the appellants informed them that the Treasury had "specified in the direction that your identity is to be treated as confidential in accordance with article 6 of the order."
court ordered that their names were to be disclosed for the purposes of these proceedings (article 6(3)(b) and (d)), their identities were to be treated as confidential.
courts. But the point is now academic, since - subject to one qualification which it is unnecessary to explore - the Treasury has changed its position. By the time of the hearing of the application by the press, the Treasury no longer opposed setting aside the anonymity orders granted in the courts below.
Court's decision on the anonymity issue, it would actually restrict publication of the directions pursuant to article 6(2)(b)(iii) of the TO 2009.
Court making an order that disclosure is required for the purpose of these proceedings. That order would have the effect of making disclosure of these appellants' identities lawful by virtue of article 8(3)(d) of the TO 2009.
Court was shown material confirming that, as just narrated, his identity as someone who was subject to a freezing order was already in the public domain. It had been given in the Bank of England's press notice and had also been contained in the relevant list published by the 1267 Committee. These matters had been reported in the press. In the circumstances, the anonymity order made by the lower courts served no effective or legitimate purpose and so, as already mentioned, this Court decided to lift the order in his case. The press were therefore able to report that G is actually Mr Mohammed al-Ghabra. Articles containing that information were published the following day. No evidence was produced to the Court on behalf of Mr al-Ghabra or any of the other appellants to show that either the Bank of England's original press release or the lifting of the anonymity order by this Court had led to any particular social, far less physical, harm to him or to any members of his family.
Court), no restriction was placed on the publication of the Treasury's direction in his case. His designation under the AQO remained unchanged.
A and K
HAY
courts. It is plain that there never was the slightest justification for making an anonymity order in his case. It must be set aside.
M's Position
Press Reporting of Judgments in the United Kingdom
court sat in public and reports of the evidence, often recounting high-class intrigues, were published in the newspapers. These reports gave rise to concern in some quarters, especially since they were particularly popular reading-matter among servants. So, during the nineteenth and early twentieth centuries, various attempts were made to introduce legislative controls. The attempts foundered, partly because the unpleasant publicity was thought to act as a welcome deterrent against couples divorcing. Against that background, in Scott v Scott [1913] AC 417 the House of Lords affirmed in the strongest possible terms the long-established stance of the English courts that hearings should be held in public. The first instance judge was criticised for hearing the nullity proceedings in private.
"it needs to be said clearly and unambiguously that the
Anonymity Orders to Give Effect to Article 8 Convention Rights
court to make an anonymity order to protect a witness or party from a threat of violence arising out of its proceedings can be seen as part of that structure. And in an appropriate case, where threats to life or safety are involved, the right of the press to freedom of expression obviously has to yield: a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed. In such a situation the court may make an anonymity order to protect the individual.
court, to respect private and family life. But M does not need to ask for the anonymity order to prevent the court itself from infringing his article 8 Convention rights. Suppose the court considers, whether in the light of submissions or not, that, by publishing its judgment in the usual form, it will itself act unlawfully under section 6 of the Human Rights Act because it will infringe a party's article 8 Convention rights. In that eventuality, the court does not deal with the matter by issuing anonymity orders to other people; rather, it ensures that it acts lawfully by taking appropriate steps of its own. That presumably explains why, for instance, the letter M, instead of the appellant's name, is used in the judgments below. In this way the courts avoid what they perceive to be the problem that they would act unlawfully if they named M in their judgments and so infringed his article 8 rights.
courts have gone further: they have not only used initials in their judgments but have made anonymity orders addressed to other people - in effect, to the press. Having the power to make orders of this kind available is one of the ways that the United Kingdom fulfils its positive obligation under article 8 of the Convention to secure that other individuals respect an individual's private and family life. In Von Hannover v Germany (2005) 40 EHRR 1, 25, para 57, the European Court of Human Rights reiterated that:
"although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves….
The boundary between the State's positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole…" (internal citations omitted).
So, when M applied to the courts below for an anonymity order, he was asking them to exercise their power to secure that other individuals, viz the press and journalists, showed respect for his private and family life.
court did have jurisdiction to make an order of this kind and that "the foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR." More recently, in In re British Broacasting Corpn [2009] UKHL 34; [2009] 3 WLR 142, 161, para 57, Lord Brown of Eaton-under-Heywood indicated that the powers of the High Court to make such an order "arise under section 6 of the [Human Rights Act 1998] read in conjunction with section 37 of the [Senior Courts Act 1981]."
Court Act 1981 was the source of the power to make anonymity orders that is in play in these cases. That view was mistaken. Section 11 is dealing with the particular situation where a court, having power to do so, allows a name or other matter to be withheld from the public in proceedings before the court. An obvious example is a court allowing the victim to withhold his name when giving evidence for the Crown in a prosecution for blackmail. Section 11 then gives the court the ancillary power to give directions prohibiting a newspaper which actually knows the name of the individual from publishing it. The section resolves any doubt about the power of the court in these circumstances to prevent persons, other than the parties, from naming the individual or mentioning the matter outside court. Cf Ex p P, The Times 31 March 1998, per Sir Christopher Staughton.
The Press and Article 10 Convention Rights
courts have interfered with the article 10 Convention rights of the press to impart information which either is, or normally would be, available to them.
court interferes with the article 10 rights of the press when it takes a step, such as making an anonymity order, which interferes with their freedom to report proceedings as they themselves would wish – in the present case, by making their report refer to the situation of named, identifiable, individuals, including M. See, for instance, News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39:
"The
Article 8 and Reputation
Court of Human Rights in Karakó v Hungary (application no 39311/05, BAILII: ([2009] ECHR 712 ), 28 April 2009, he submitted that article 8 does not confer a right to have your reputation protected from being affected by what other people say. So the only article in play in relation to M's reputation was article 10.
court dismissed the indictment on the ground that the opponent's statement was a value judgment within the limits of acceptable criticism of a politician. The applicant complained of a violation of his article 8 rights. The European Court held that there had been no such violation.
Court's judgment in Karakó itself shows, in Petrina v Romania (application no 78060/01, BAILII: [2009] ECHR 2252), 14 October 2008, the court had confirmed, at para 19, that the right to protection of reputation is a right which, as an element of private life, falls within the scope of article 8 ("le droit à la protection de la réputation est un droit qui relève, en tant qu'élément de la vie privée, de l'article 8 de la Convention"). The court had gone on, at para 29, to survey its previous case law, ending up with the statement in Pfeifer v Austria (2007) 48 EHRR 175, 183, para 35, that "a person's reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity...".
Court did not depart from that earlier jurisprudence. Rather, it accepted, at para 23, that some attacks on a person's reputation could be of such a seriously offensive nature as to have an inevitable direct effect on the victim's private life. But the court took the view that, on the facts, the applicant had not shown that the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity. That being so, the applicant's reputation alone was at stake in the context of the expression which was said to have damaged it.
court was proceeding on the basis that the applicant's claim in respect of his reputation did not fall within the scope of article 8. That would have been inconsistent with the court's previous case law and would also have made nonsense of the reasoning in paras 24-29 of the judgment. In particular, in paras 24 and 25 the court is concerned with the inter-relationship of articles 8 and 10 in the circumstances. The outcome of that discussion (para 26) is that, even though the applicant is founding on article 8, the court must consider whether the Hungarian authorities properly applied the principles inherent in article 10. The court concludes that they did (para 27). Putting the two strands together, the court goes on to find, in para 28, that the applicant's claim that his reputation as a politician has been harmed is not sustainable under article 8 and that a limitation of his opponent's right to freedom of expression under article 10 would have been disproportionate. That leads, finally, to the conclusion that there has been no violation of article 8.
Court was concerned with the application of articles 8 and 10 in a situation where, in the court's view, the applicant had not shown that the attack on his reputation had so seriously interfered with his private life as to undermine his personal integrity. In fact, the court does not mention any specific effects on the applicant's private life. In the present case, however, as already set out at para 21 above, M does explain how he anticipates that his private life would be affected if his identity were revealed. Admittedly, he appears at one point to single out the alleged damage to his reputation. Nevertheless, the Court is really being invited to consider the impact of publication of his name on his reputation as a member of the community in which he lives and the effect that this would have on his relationship with other members of that community. In that situation the alleged effect on his reputation should be regarded as one of the reasons why, he contends, a report that identified him would seriously affect his private life. On that basis the report would engage article 8(1).
The Approach when Article 8 and Article 10 are both in play
Court has to weigh the competing claims of M and his family under article 8 and of the press under article 10. More particularly, the Court is being asked, on the one hand, to give effect to the right of the press to freedom of expression and, on the other, to ensure that the press respect M's private and family life.
courts below are blanket orders: in the words of the Court of Appeal, "no report of these proceedings shall directly or indirectly identify [the appellants] or any member of their families." Sweeping orders of that kind proceed on the basis that the mere publication of any report of the proceedings which identified any of the appellants, including M, as a person suspected of facilitating terrorism would infringe his article 8 rights. This is clear from the fact that the ban prevents a newspaper, which is wholly sympathetic to the plight of M, from publishing a report of the proceedings that identifies him and from then going on to support his case and criticise the Government in the strongest possible terms for subjecting him to the ordeal of the freezing order. The Court has to be satisfied that a ban with this far-reaching effect is necessary in a democratic society in order to ensure due respect for M's private and family life.
Court gave guidance on the approach to be adopted when articles 8 and 10 are both in play in Von Hannover v Germany (2005) 40 EHRR 1. The circumstances were, of course, very different from those in the present cases: Princess Caroline was complaining of intrusions into her private life by the paparazzi taking photographs of her while she was engaged in ordinary, everyday, pursuits. The court held that, when so engaged, she was entitled to the protection of article 8. So it had to consider whether German law, which permitted these intrusions by the press, had properly balanced the rights of the press under article 10 and the rights of Princess Caroline under article 8. The European Court held that it had not.
Court recalled, at p 25, para 58, that "the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest…". Hence "in the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest…" (p 25, para 60). The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest (p 28, para 76). But, where publication of the photographs and articles was simply intended to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, it could not be deemed to contribute to any debate of general interest to society. In that situation freedom of expression called for a narrower interpretation (p 27, paras 65 and 66).
Court's exposition in Von Hannover really echoed what Lord Hoffmann had said, a few weeks earlier, in Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, 473-474, paras 55 and 56:
"55. I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need: see Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, 1005, para 137.
56. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicised in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information."
Court has suggested that, where the publication concerns a question "of general interest", article 10(2) scarcely leaves any room for restrictions on freedom of expression: Petrina v Romania (application no 78060/01, BAILII: [2009] ECHR 2252), 14 October 2008, para 40 ("l'article 10(2) de la Convention ne laisse guère de place pour des restrictions à la liberté d'expression dans le domaine … des questions d'intérêt général").
court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life.
Anonymity in Europe
courts in Europe when issuing judgments. In all the principal systems, at least, steps can apparently now be taken, where appropriate, to anonymise reports of matrimonial disputes and disputes relating to children. Apart from that, however, what is striking is the variety of approaches.
court held in favour of the publishers and – rather as in Britain - legislation was subsequently brought in to change the law on the reporting of matrimonial cases. In 2001, however, the Commission Nationale de l'Informatique et des Libertés recommended that, if decisions were going to be made available free of charge on the internet, then they should be anonymised. Since 2002 the Cour de cassation has chosen to follow that recommendation and usually its decisions now appear without the parties' names. The Recueil Dalloz gives the parties' names in the headings, but prints the anonymised version of the text of the judgment. It is important to note that the press can, and do, consult the lists of cases, where the names appear, and in this way they are able to identify the parties when reporting the proceedings.
courts and the official reports to refer to the parties by the initials of their surnames or of their firm or company name. Also the parties' lawyers are not identified. The practice in Austria is broadly similar.
courts rigidly followed this practice even where a case had received wide publicity and the names of the parties were actually well known to the public. They did the same when the judgment referred to the holder of a particular office, such as the Federal Chancellor, whose identity was common knowledge. The results could be risible and so, more recently, the courts have abandoned the practice in cases where the identity of a party, such as Princess Caroline of Monaco, is well known to the press and everyone else. See the discussions in O Jauernig, "Dürfen Prozeßbeteiligte in veröffentlichten Zivilentscheidungen namentlich genannt werden?" in K A Bettermann, A Zeuner, Festschrift für Eduard Bötticher (1969), pp 219-241; K Siehr, "Veröffentlichte Gerichtsentscheidungen: Zur Anonymisierung oder Veröffentlichung von Namen der Beteiligten eines Zivilverfahrens", in Liber Amicorum Bernd Stauder (2006), pp 469-484, especially at pp 477-481. The usual practice means that it is sometimes only when a case reaches the European Court of Justice or the European Court of Human Rights and the names are published for the first time in their judgments that people in Germany discover who the parties actually are. See Siehr, "Veröffentlichte Gerichtsentscheidungen", pp 482-483.
courts have followed the same practice for considerably more than a century. Some scholars have argued that a legal basis or justification for the practice can be found in the constitutional right of individuals to control of their personal data, as developed in the 1983 Constitutional Court judgment on the Census Law (Volkszählungsurteil): BVerfGE 65, 1. All that needs to be said for present purposes is that this is certainly not the origin of the courts' practice, which existed long before the German Federal Constitution. Even now, there is doubt about the exact explanation for it. One suggestion is that the courts do not mention the names because their view of the law must be seen to be objective and unaffected by the standing of the parties or their lawyers. At all events, when it uses initials and supplies the public with a version in which the parties' names are blanked out from the rubric, a German court is not trying to control how the case is to be reported by the press. Newspapers are free to use their own knowledge to identify the individuals involved and to name them in any report of the proceedings or judgment. While an anonymous version of the judgment may usually meet the needs of lawyers, the target audience of the press is likely to be different and to have a different interest in the proceedings, which will not be satisfied by an anonymised version of the judgment. In the general run of cases there is nothing to stop the press from supplying the more full-blooded account which their readers want.
Article 8 Arguments in favour of an Anonymity Order
court to judge when it does not know how he is currently regarded by other members of the community.
Article 10 Arguments against an Anonymity Order
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 (2000) 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, "judges are not newspaper editors." See also Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR 142, 152, 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.
"from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.
court of law. The identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court. But, by concealing the identities of the individuals who are subject to freezing orders, the courts are actually helping to foster an impression that the mere making of the orders justifies sinister conclusions about these individuals. That is particularly unfortunate when, as was emphasised on the appellants' behalf, they are unlikely to have any opportunity to challenge the alleged factual basis for making the orders.
Court gives to the legal questions in the substantive appeals. So those identities may not matter particularly to the judges. But the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in not being kept in the dark about who are challenging the TOs and the AQO. The case of HAY is instructive in this respect. Most people will be astonished, for example, to learn that, up until now, the courts have prevented them from discovering that one of the claimants, Mr Youssef, has already successfully sued the Home Secretary for wrongful detention after a failed attempt to deport him to Egypt. Equally importantly, even while the Treasury is defending these proceedings brought by him, the Government are trying to have his name removed from the 1267 Committee list. Meanwhile, he is busy writing and broadcasting from London on Middle East matters.
court allows members of the public to receive relevant information about him which they can then use to make connexions between items of information in the public domain which otherwise appear to be unrelated. In this way the true position is revealed and the public can make an informed judgment. There may well, of course, be no similar revelations in the case of M. But, assuming that is so, this would, in itself, be important, since it would contribute to showing how the freezing-order system affects different people in different situations – a point to be considered in any debate on the merits of the system. At present, the courts are denying the public information which is relevant to that debate, even though the whole freezing-order system has been created and operated in their name.
"The five British nationals bringing this challenge who have been designated under the Orders have had their assets frozen, are only allowed to access enough money to meet basic expenses, and are compelled to account to a civil servant for every penny they spend. They are subject to unprecedented levels of intrusion and control without end or review. They require permission for all economic activity, however modest. The complex regime governed by permissions and licences is not merely harsh but at points absurd. We have the madness of civil servants checking Tesco receipts, a child having to ask for a receipt every time it does a chore by running to the shops for a pint of milk and a neighbour possibly committing a criminal offence by lending a lawnmower….
The
Conclusion
Court will order that the identities of A, K and M should be disclosed for the purpose of these proceedings. The anonymity order in respect of the appellant, G, has, of course, already been set aside and he has been identified as Mr Mohammed al-Ghabra.
Anonymity in Control Order Cases
Court to set aside the anonymity orders in the proceedings relating to them. 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. We would accordingly reserve our opinion on the matter of anonymity orders in control order cases.