Full case report
Marine A v Guardian News and Media
Reference  EWCA Crim 2367
Court Court Martial Appeal Court, and the Divisional Court
Judge The Lord Chief Justice, Tugendhat J, Holroyde J
Date of Judgment 17 Dec 2013
Reporting restrictions – identification – open justice – courts martial – Article 8 – Article 10
On 15 September 2011 a Royal Marine patrol in Helmand, Afghanistan, encountered a severely wounded insurgent. One of the Marines shot him and he died, events which were recorded on video by one of the Marines, the discovery of which led to an investigation and to five members of the patrol being charged with murder.
The Marines were brought before a Court Martial, presided over by the Judge Advocate General (“the Judge”). Proceedings against Marines D and E were discontinued. The prosecution’s case was that Marine A shot the deceased Afghan and that Marines B and C were secondary parties to the murder. Marine A’s shooting of the Afghan was shown on the video recording, which also recorded comments made about him by the Marines.
The trial was before the Judge and a Board which found Marine A guilty of murder and acquitted Marines B and C. The applications for leave to appeal to the Court Martial Appeal Court related solely to the prohibition of the identification of the Marines and the making of the video recording available to the media.
An interim order was made after the decision to charge the Marines, prohibiting their identification on the grounds of a real and immediate risk to their lives. It was continued by the Judge, who ordered an assessment by the Joint Terrorist Analysis Centre. The Judge heard evidence in private from a counter-terrorism expert and received an assessment from the JTAC which assessed the threat as moderate.
Concluding that he was satisfied that there would be a real and immediate risk to the lives of the Defendants if they were to be identified by name, he made an order preserving their anonymity. A further order to the same effect was made on the opening day of the trial under s11 of the Contempt of Court Act 1981.
The video of events was played at the trial, but the Judge ordered that it should not be made available to the media. He ordered that stills from the video should be released only in part.
After the conclusion of the evidence and summing up, the Judge heard further evidence and argument on the identification of the Marines. He ordered that any of Marines A, B and C who were convicted would be identified by name, and that, given that the names of other members of the patrol had been made public, the same should apply to all of the five Marines.
Following the conviction and acquittals, the media parties sought leave to appeal against the rulings denying them access to the video and stills, Marines A, B and C sought leave to appeal against the Order lifting the prohibition of their identification, and Marines D and E sought leave to appeal on the basis that they had not been heard.
The Court Martial Appeal Court determined that it had no jurisdiction to hear the application by the Marines for leave to appeal against the lifting of the Order prohibiting identification and that this would be considered as an application for judicial review by the same court sitting as the Divisional Court of the QBD. It would consider the application on the video and stills.
(I) In the application to the Court Martial Appeal Court
Should the video and stills be made available to the media for publication?
(II) In the judicial review
(1) Should the identities of Marines A, B and C be made public?
(2) Should the question of the identification of Marines D and E be remitted to the Judge so that they should have the opportunity to make submissions?
Finding that the Judge was entitled to make the Order refusing to release those images, lifting the prohibition on the identification of Marines A, B and C, and remitting the question of the identification of Marines D and E to the Judge.
(I) In the application to the Court Martial Appeal Court
There was no basis for assailing the Judge’s findings. The Judge’s decision was rightly based on his finding a real and immediate threat to life. There were other considerations for not releasing the images other than the risk to life. A publication of images of murder or violent attack is likely to amount to a serious interference with the private lives of the victim’s family.
Advocates applying for the release of such images will be expected in the future to draw to the attention of the Judge the likely impact of the release of such images on the victim’s family (unless the victim’s family have consented to the proposed release, or are represented in court) and upon the public. That consideration would be balanced against the principle of open justice and the public interest in the images’ availability.
(II) In the Judicial Review
(1) The court set out a structured approach to applications for restrictions on open justice in the reporting of criminal trials. The starting point is the duty of the court, as a public authority, to ensure compliance with the principles (1) of open justice, and (2) that there be no interference with an individual’s rights under Articles 2 and 3, and (3) no unnecessary or disproportionate interference with (a) the rights of the public under Article 10 (having regard to the position of the media under s.12 of the Human Rights Act), and (b) of any relevant individuals under Articles 8. The relevant test having been applied, the court does not have any discretion, being under a duty to either grant the derogation or refuse it.
In its analysis of the judge’s ruling the court said that a structured approach to this case would be achieved by asking a series of questions of the orders prohibiting identification. The identification of Marine A turned on the answer to the last of these, which asked whether an Order prohibiting identification was a reasonable measure to take having regard to the degree of risk and rights under Article 8, and to countervailing factors relating to the public interest and, if so, what is the outcome of the ‘ultimate balancing test’?
Since the case was of the greatest public interest as it involved a unique charge of murder against soldiers on military operations against a wounded detainee, there was the greatest public interest in knowing who Marine A was, and his background. Balancing this against the risk that he would be attacked in prison, and that there a threat to him and his family on his release, the balance came down firmly on the side of open justice.
In the case of Marines B and C, the risks to their Article 8 rights were not sufficient to outweigh the importance of open justice.
(2) In the case of Marines D and E, the matter was remitted to be heard by the Judge.
The court’s judgment in the judicial review of the decision to make the Marines’ identities public sets out a structured approach to the making of an order that the Defendant in a criminal prosecution should not be identified. The court also acknowledged that no order will be necessary if some other proportionate measure is available to protect the rights of individuals. Both the suggested structure and the acknowledgement of the existence of alternatives to an order will be relevant considerations to those who seek to obtain such orders as well as to those who seek to prevent or lift them.
Coomber Rich solicitors for Marines A and B; Richard Griffiths & Co for Marine C; Reynolds Porter Chamberlain for the media
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