Full case report

AQA v Newsquest & ors

Reference n/a
Court High Court of Justice

Judge Mrs Justice May

Date of Judgment 24 Aug 2016


Summary

Injunctions – Misuse of Private Information – Without Notice – section 12 Human Rights Act – Open Justice – Coroners’ Court


Facts

The applicant, AQA, was the key witness in the death of a man by drowning in a swimming pool at an adult-themed party. Other than the hosts, all other witnesses had fled. AQA had been summoned to testify at the inquest. She applied for assistance through the Bar Pro Bono Unit.

Coroners have limited statutory powers to derogate from Open Justice (see Rules 11 and 18 of the Coroners Rules 2013), and can only make reporting restrictions under s.11 of the Contempt of Court Act 1981 where they already have the power to withhold information. The common law Scott v Scott exemption (more-recently articulated in Attorney-General v Leveller Magazine Ltd) allows for a derogation from Open Justice in the interests of justice. Post-HRA, that had been developed to include situations where Article 2 ECHR was engaged (Article 2 is an unqualified right, and so Open Justice as a facet of Articles 6 and 10 must always give way), and coroners had granted witnesses anonymity where their lives were threatened.

However, no coroner had ever anonymised a witness purely on the grounds of the qualified right under Article 8 ECHR. This had been done twice by the High Court (Sir Mark Potter P in Re LM [2007] EWHC 1902 (Fam) and Charles J in In re King’s College Hospital NHS Trust [2016] EWCOP 21) in respect of inquests, and so AQA applied to the High Court (via the Interim Applications Court in Court 37 RCJ) for a privacy injunction, restraining publication of her name, occupation and address (but not the substance of her evidence).


Issue

(1) Was there a ‘compelling reason’ (s.12(2)(b)) for not having notified the media at all, not even giving short-notice of the application, such that the respondents were not represented?

(2) Should the applicant be anonymised, the hearing held in private, and the court record sealed?

(3) Did the applicant’s Article 8 rights outweigh the respondents’ Article 10 rights (and those of their readers) having particular regard to the importance of Open Justice?

(4) Was it just and convenient in all the circumstances to grant an order restraining publication of the applicant’s confidential information?

(5) Should the applicant have to undertake to issue a Claim Form?


Held

(1) Because the applicant was (notwithstanding Counsel appearing pro bono on a direct access basis) litigating as a litigant-in-person, she could not have corresponded and/or received undertakings from the respondents without giving them (without protection) her name and address: the very confidential information she sought to protect. On this occasion, this was a compelling reason for the lack of notice, but it required a short notice Return Date within 2 days to allow the media to appear.

(2) It was necessary and proportionate to anonymise the applicant as AQA, hold the hearings in private, and to seal the court record under CPR rule 5.4C. Personal service would be dispensed with, under CPR Part 81, and all correspondence and service would be by email only. The Spycatcher principle would apply.

(3) AQA’s Article 8 rights manifested in her personal, private and sexual life; the threat to her continued practice of her occupation (although she was currently unemployed); her relationship with her son, who had special needs and was due to get his GCSE results the same day as her testimony at the inquest; and her son’s independent Article 8 rights. Although the media’s Article 10 rights and Open Justice were important, the very limited scope of the restrictions (surname, occupation and address) meant that Open Justice could be served without ‘disembodying’ reports of the proceedings, or interfering with AQA’s Article 8 rights.

(4) In all the circumstances, it was just and convenient to grant a privacy injunction against reporting the surname, occupation and address of the witness to coroners’ court proceedings, as long as her evidence itself was reported.

(5) Although impecunious, and likely to put the media to cost as well, it was important that injunctions were linked to Claim Forms, for filing and administrative purposes, especially if the order was varied or discharged upon application. The applicant would be required to undertake to issue proceedings, but the time would be extended to 48 hours from grant of the injunction (rather than ‘immediately’).


Comment

A rare case where it was held appropriate to restrain media respondents to a privacy injunction on a without-notice basis, although with a very short Return Date (at which the media sent written submissions, but did not oppose continuation of the order). The Master of the Rolls’ Practice Guidance [2012] 1 WLR 1003 at [22] makes clear it will be in only exceptional cases that this will be allowed in respect of major media organisations.

Also one of only a handful of cases where witnesses have been anonymised for purely Article 8 reasons (as opposed to Article 2 reasons): see also Invereigh v Associated Newspapers [2008] EWHC 339 (QB) and R (ex parte Associated News) v Lord Justice Leveson [2012] EWHC 57 (Admin)). The authorities (R v Davies [2008] UKHL 32 at [21]) make clear it would be much harder to do in adversarial (especially criminal) proceedings than in inquisitorial proceedings such as an inquest or public inquiry. The only authority where quasi-privacy rights had been relied upon under the common law A-G v Leveller exception was in R v Hove Justices (ex parte Gibbons), Gibson J in the Divisional Court, The Times, 19 June 1981.

The Senior Coroner, Geoffrey Sullivan, subsequently considered the matter, and withheld from the hearing and disclosure the confidential information protected by the High Court injunction. However, in light of that injunction, he considered it was not necessary to make any Reporting Restriction Order under s.11 Contempt of Court Act 1981.


Instructing Solicitors

Bar Pro Bono Unit