Full case report

In re Guardian News and Media Ltd

Reference [2010] UKSC 1; [2010] 2 AC 697
Court UK Supreme Court

Judge Baroness Hale, Lords Phillips, Hope, Rodger, Walker, Brown and Kerr

Date of Judgment 27 Jan 2010


Summary

Human rights – private life – reputation – freedom of expression – persons designated as suspected terrorists – challenge to designation – anonymity orders – press challenge – application to lift orders – correct approach


Facts

Each of the 5 claimants, G, Y, A, K and M,, was the subject of official directions or designations on the grounds that they were suspected terrorists. A,, K & M were brothers.  Each of the 5 brought proceedings challenging such measures, and was granted anonymity at first instance and in the Court of Appeal.

When the cases went on further appeal to the Supreme Court the Guardian News and Media Group, and other media parties, applied for the discharge of the anonymity orders, so that they could publish full reports. They relied on the right to freedom of expression under Article 10 ECHR.  The claimants resisted the application in reliance on their rights to private and family life under Article 8 ECHR.

The claimants’ grounds included claims that their reputations would suffer, and M in particular contended that his relationships with his local community, and that of his family, would be severely harmed if he were known to be a suspected terrorist.

A panel of 7 Supreme Court judges sat to determine the application.


Issue

Should all or any of the anonymity orders in respect of G, Y , A, K or M be discharged?


Held

(1)    Although as a general rule proceedings are held in public and parties are named in judgments and reports of proceedings, the court has power to make anonymity orders. The power stems from the UK’s positive obligation under Article 8 ECHR to secure respect for a person’s private and family life, and from the court’s duty under s 6 of the Human Rights Act 1998 not to act incompatibly with the Convention rights.

(2) Where Article 8 and Article 10 rights are both engaged the court must weigh the competing claims; neither Article has as such precedence over the other; the weight to be attached to each will depend on the facts, applying the ultimate balancing test of necessity and proportionality.

(3)    The orders in respect of G and Y must be discharged, as their identities as suspected terrorists had already been widely publicised and reported in the press.

(4)    A & K had disappeared and their legal team were unable to put forward any submission as to the effect on their Article 8 rights of identification as suspected terrorists. They did not appear to have any substantial Article 8 interest to counteract the Article 10 rights of the press. But as they were M’s brothers, the revelation of their identities would reveal his. Accordingly the fate of the anonymity orders in respect of them depended on the fate of that granted to M.

(5)    The right to protection of reputation falls within Article 8(1), as an element of private life.

(6)    In M’s case

(a)    Article 8 was engaged, in view of his allegations as to the serious impact his identification would have on his private life because of its effect on his reputation and relationships with others

(b)   The question for the court was whether there is a sufficient general, public interest in publishing a report of the proceedings which identified M to justify any resulting curtailment of his and his family’s right to respect for their private and family life

(c)    Applying the ultimate balancing test, there was a powerful general public interest in publishing a report of these important proceedings which justified the curtailment of the Article 8 rights of M and his family.


Comment

The leading authority on the correct test for the grant or withholding of anonymity for claimants on the grounds that their identification will interfere with their Article 8 rights, this decision contains a valuable and important analysis of the role that reputation, and injury to it, plays within Article 8. Additionally, the discussion of the arguments for and against identification will be valuable in future cases.