Full case report

Secretary of State for the Home Department v AP (No 2)

Reference [2010] UKSC 26
Court Supreme Court

Judge Lords Phillips, Saville, Rodger, Walker, Brown, Clarke, Sir John Dyson

Date of Judgment 23 Jun 2010


Summary

Control orders – identification – threat of violence – private life – Article 3 – Article 8 – anonymity


Facts

A residence condition under control order imposed on AP under the Prevention of Terrorism Act 2005 which required that AP live in a certain town had been quashed. The Secretary of State successfully appealed this decision in the Court of Appeal, and AP successfully appealed to the Supreme Court.  Anonymity orders had been in place since the outset of the proceedings. In proceedings before the Supreme Court,  the Secretary of State submitted that the anonymity order should remain in place because: setting aside anonymity might result in harassment of AP or his family, they might be threatened with violence, there might be disorder in the community and relatives might be reluctant to associate with AP for fear of being identified with an extremist and publicity might prejudice any future prosecution. Further, the anonymity order allowed police and other officials to carry out their duties without atttracting significant attention or possible hostility from the local community. AP submitted that the town where AP had to live is one where there are already considerable community tensions and if forced to reveal himself as someone who was formerly subject to a control order and now subject to deportation proceedings would be at real risk not only of racist and other extremist abuse but of physical violence. AP also argued that he might be ostracised by members of his mosque.


Issue

(1) Should AP be identified in the report of the proceedings and judgment?


Held

In this particular case, the public interest in publishing a full report of the proceedings and judgment which identified AP had to give way to the need to protect AP from the risk of violence. Similarly, that public interest would not justify curtailing AP’s rights to respect for his private and family life.

Following Campbell v MGN [2004] and Re Guardian News and Media Ltd [2010] the Court must ask itself: “whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.”

In cases where an individual seeks to challenge a control order, as a general rule an interim anonymity order will be appropriate at the initial stage. Such an order should not be continued automatically – the need for the order in the particular circumstances should be reviewed at the earliest suitable opportunity. Some weight should be given to the “somewhat general points” relied on by the Secretary of State, and there was force in AP’s submission as to the real risk of racist abuse and physical violence. In the circumstances there was at least a risk that AP’s article 3 Convention rights would be infringed. In the absence of media submissions the Court was unaware of any special circumstances which might point to a particular public interest in publishing a report of the proceedings which identified AP and the Court could not discount the risk that AP might be subjected to violence if his identity was revealed. The Court also had regard to the potential impact on AP’s private life.


Comment

The Court gave its clear approval to anonymity orders in challenges to control orders at the interim stage. However, the Court stressed that submissions from the media in this case might have cast a different light on the situation and that the judgment should not be regarded as laying down any general rule as to the way that applications for anonymity orders should be determined in control order cases other than at the interim stage.


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Instructing Solicitors

Wilson Solicitors LLP for the Appellant, Treasury Solicitors for the Respondent