Re Al M (Reporting Restrictions Order)

Reference: [2020] EWHC 702 (Fam)

Court: High Court, Family Division

Judge: President of the Family Division , Sir Andrew McFarlane

Date of judgment: 24 Mar 2020

Summary: Reporting Restrictions - Witness Anonymity - Right to Life (Art 2) - Prohibition against torture, inhuman or degrading treatment or punishment (Art 3) - Freedom of Expression (Article 10) - Blackmail

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Appearances: Christina Michalos QC - Leading Counsel 

Instructing Solicitors: DAC Beachcroft

Facts

Witness XX had given evidence during the fact finding stage of proceedings in the Family Division of the High Court which concerned the welfare of two children. XX applied for an anonymity order protecting their identity from disclosure on the basis that the evidence established they were at immediate risk of harm or death such that Art 2 (right to life) and Art 3 (prohibition against torture, inhuman & degrading treatment) of the European Convention on Human Rights (ECHR) were engaged; or in the alternative the risk of serious harm to both XX and their family was sufficient to engage Article 8 (right to a private and family life).  Witness XX’s case for anonymity arose from an unusual combination of facts arising from the witness’s previous career coupled with the potential for his/her involvement to exacerbate credible risks to his/her safety which already existed.

XX was also a victim of blackmail and it was argued should also be granted anonymity in accordance with well-established public policy.

The media opposed the application on the basis that XX’s identity was already known and keeping their identity confidential served no purpose and the suggestion that an unknown individual might read the judgment, put two and two together and decide to target XX was too remote to establish any additional risk of harm.

Issue

1. Whether XX satisfied the requirement that anonymity should not be granted unless there were compelling reasons to do so;

2. Whether  Art 2 (right to life) and Art 3 (prohibition against torture, inhuman or degrading treatment or punishment) of the ECHR were engaged;

3.If Art 2 and Art 3 were engaged, whether it is appropriate to balance Article 10 or whether if those Articles are engaged, there can be no derogation and thus no question of balancing Article 10.

Held

Finding for XX and granting the anonymity order sought:

  1. Publication of the fact that XX had been a witness in the case would significantly add to the risk of very serious harm or death that they may already face. The evidence included an independent professional assessment of risk from a source whose opinions could only command the greatest of weight. Article 2 and 3 were clearly engaged.
  2. Applying PJS v News Group Newspapers [2016] UKSC 26, that the fact that there may be relevant information about XX already in the public domain was not determinative of the application. The application had clearly been opposed by the media because they would wish to afford significant publicity to XXs role in the case, thereby enhancing the risk of self-starting terrorist activity against XX.
  3. Although there was a tension between existing authorities, on the present facts it was unnecessary to determine the question of whether if Art 2 and Art 3 were engaged,  it is appropriate to balance Article 10 or  alternatively  if Articles 2/3 are engaged they cannot be derogated from and thus no question of balancing Article 10.
  4. The Court noted the differences in view on this point expressed in  A & B v Persons Unknown [2016] EWHC 3295 (‘the Edlington case’) (Sir Geoffrey Vos, Chancellor) and Venables v News Group Papers Ltd [2019] EWHC 494 (Fam) (suggesting that a risk of future breach of Art 2/3 did not automatically trump Article  10)  on the one hand, and  RXG v Ministry of Justice [2019] EWHC 2026 (QB) (Dame Victoria Sharp P and Nicklin J) (concluding that Art 2/3 were unqualified and  therefore did not fall to be balanced against any Article 10 right no matter how weighty).  The Court also drew attention to two recent Court of Appeal authorities on related points – Re X (A Child: FGMPO) [2018] EWCA Civ 1825 (Moylan LJ – holding that although Art 3 is an absolute right the concept of proportionality is not irrelevant) and  Re K (Forced Marriage: Forced Marriage Passport Order) [2020] EWCA Civ 190  (adopting the approach of Moylan LJ).

Comment

An unsual case where a witness was granted anonymity under the Venables jurisdiction because of serious risk of harm or death if they were identified publicly.  As was drawn to the attention of  the Court, there are now conflicting authorities (identified in paragraph 4  in the Held section above) in respect of the issue of whether Articles 2 and 3 cannot be derogated from (and thus there is no issue of balancing them against Article 10/freedom of expression claims no matter how weighty) or whether issues of proportionality and balancing may apply. This was left an open question and remains for resolution in future.