The Court has, for the second time this year, considered the circumstances in which it is appropriate to make an anonymity order in court proceedings.  In Re Guardian News & Media ([2010] UKSC 1) the Court overturned anonymity orders in respect of a number of individuals who had been subject to freezing orders.  However, in the recent case of Secretary of State for the Home Department v AP (No.2) ([2010] UKSC 26) the Court reached the opposite conclusion, upholding an order which had been made at the outset of the hearing.

The case concerned a control order which, by the time of the hearing had been discharged.  The applicant was subject to an order for deportation on national security grounds and was on bail subject to conditions.  The anonymity order had been made at the outset of the proceedings and had been continued by the Supreme Court which invited submissions as to whether it should cover the judgment.  Both the applicant and the Secretary of State agreed that it should and, for reasons which were not explained, the media were not invited to make submissions.

The judgment was given by Lord Rodger.  He noted that agreement of the parties on anonymity but drew attention to Sir Christopher Staughton’s well known warning, in R v Westminster City Council, Ex p P ((1998) 31 HLR 154, 163), that “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.”

He summarised the test to be applied on such an application in the following terms

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.”” [7]

The court was not impressed by general considerations relating to the risk of disorder and the impeding of effective policing.  It did, however, give considerable weight to the applicant’s submissions relating to a “real risk not only of racist and other extremist abuse but of physical violence” and hence of infringement of his Article 3 rights [14].  As a result, the court concluded that

“in this particular case, the public interest, in publishing a full report of the proceedings and judgment which identifies AP, has to give way to the need to protect AP from the risk of violence. Similarly, in this particular case, that public interest would not justify curtailing AP’s right to respect for his private and family life. The anonymity order should accordingly be maintained and the Court’s judgment, and any reports of that judgment, should not reveal the appellant’s identity. He should continue to be referred to as “AP“.” [18]

The fact that the Court has taken the trouble to give a separate judgment on the anonymity issue shows how seriously these points are now taken by the Court.  The succinct test stated by Lord Rodger at [7] will be a useful starting point for first instance judges in cases where anonymity applications are made.  The court must balance the relevant public interests – open justice and respect for private life.   The order was continued in this case as a result of what look like relatively weak Article 3 considerations but the overall message is clear: there must be some proper justification for an anonymity order.   Such orders cannot be made as a matter of course, even in privacy cases.  A party seeking anonymity must advance cogent arguments to displace the public interest in open justice.

This post was originally published on the Inforrm blog and is reproduced with permission and thanks