In its first judgment of the year, Application by Guardian News and Media, in HM Treasury v Ahmed ([2010] UKSC 1) the Supreme Court considered the vexed question of anonymity in court hearings.  Giving the unanimous judgment of a 7 judge bench, Lord Rodger began by quoting the “provocative” words of the applicants’ counsel: “your first term docket reads like alphabet soup” [1].  Lord Rodger pointed out that both the last case heard by the House of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7) and the first case heard by the Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1) involved anonymous parties.

The case concerned a number of individuals who were the subject of “asset freezing orders” made by the Treasury under various statutory instruments.  The asset freezing  orders were declared to be unlawful in the Court’s substantive judgment ([2010] UKSC 2).  The appellants had obtained anonymity orders from the lower courts – with no opposition from the Treasury – and with no detailed consideration by the judges.   At the outset of the hearing – on the first full day of the Supreme Court’s operation – a number of media organisations and NGOs applied for the orders to be set aside. The application was adjourned for a full hearing later in the month.

In considering the application to recall the anonymity order Lord Rodger pointed out that, until the recent “efflorescence” of such orders, the general rule was that judicial proceedings were held in public and the parties were named. ([22]).  He accepted that the court could properly make anonymity orders to protect the life and safety of parties or witnesses – indeed, that it was required to do so as a result of the State’s positive obligations under Articles 2 and 3 of the Convention.  But the claim to anonymity before the court was based solely on the appellants’ Article 8 rights: they were asking the court to exercise their power to restrain publicity to secure that the press showed respect for their private and family lives.

The media applicants contended that reputation did not fall within the scope of Article 8, relying on the decision of the Court of Human Rights in Karako v Hungary ([2009] ECHR 712).  This argument was rejected by the Court, Lord Rodger drawing attention to the clear statement on the point in the decision in Petrina v Romania ([2009] ECHR 2252).  He does, however, appear to suggest that some degree of attack on personal integrity is required before Article 8 is engaged, concluding that in relation to appellant M “the alleged effect on his reputation should be regarded as one of the reasons why, he contends, a report that identified him would seriously affect his private life.  On that basis the report would engage article 8(1)” [42].

The  Article 10 rights of the media, in reporting the appeals, were clearly engaged.  As a result, it was necessary to weigh the competing claims of M and his family under Article 8 and the press under Article 10.   After an interesting excursus into the practice in France, Germany, Austria and Italy ([53] – [57]) Lord Rodger then considers, in turn, the Article 8 and Article 10 arguments.  In relation to the latter, he accepts the importance for the media of being able to identify individuals to provide a more vivid and compelling account.  He pays particular regard to the fact that the appellants issued – anonymously, through their solicitors – a press release attacking the Governments use of the asset freezing orders.   It is, he said, “unusual, to say the least, for individuals to enter a debate, using highly charged language and accusing the Government of dishonouring a pledge, but at the same time to insist that they should have the right to hide behind a cloak of anonymity” [71].

Lord Rodger accepts that allowing the press to identify the appellants is not “risk free” – there may be outrageously hostile press coverage.  Nevertheless, this is not a reason for curtailing the freedom of all members of the press but simply a factor to be taken into account [72].   The evidence of potential interference with M’s Article 8 rights was “very general and for that reason not particularly compelling.” [74]  On the other hand, the publication of M’s identity “would make a material contribution to a debate of general interest”. [75]

The conclusion was as follows:

“when carrying out the ultimate test of balancing all the factors relating to both M’s article 8 rights and the article 10 rights of the press, we have come to the conclusion that there is indeed a powerful general, public interest in identifying M in any report of these important proceedings which justifies curtailment, to that extent, of his, and his family’s, article 8 Convention rights to respect for their private and family life” [76]

Consequences for Other Proceedings

At the end of his judgment, Lord Rodger pointed out that although there had been reference at the hearing to anonymity in control order proceedings the application did not concern control orders.  Nevertheless, the same issues would arise and the same principles would be applied.[78]   In control order cases the evidence in favour of anonymity is, again, often in very general terms and it is difficult to see how, in the absence of special factors, anonymity orders in such proceedings can be maintained.

The judgment should make a substantial difference to the attitude taken in the lower courts towards the anonymisation of proceedings.  It makes it clear that there is a public interest in naming litigants and that something more than general fears and damage to reputation will be required before an anonymity order can be made.  This should have a substantial effect on asylum proceedings – where at present anonymity orders are made as a matter of routine.  It should also have a substantial effect in other public law proceedings and in criminal cases where unnecessary anonymity orders are sometimes made.

The impact on privacy and breach of confidence cases is less clear.  Anonymity orders are often made in tandem with injunctions to restrain the publication of private information.    If identification of the claimant will itself enable the press or the public to work out the nature of the private information then an anonymity order is still likely to be appropriate – since otherwise the purpose for making the order would be frustrated.   In most privacy cases the factors which influenced the court in favour of recalling the anonymity orders are unlikely to be present. There is usually more specific evidence of potential interference with private life, claimants rarely seek to issue anonymous press releases to contribute to public debates, and there is no “disembodied” press reporting which needs a name for the purposes of clear media communication.   Similar considerations apply in ‘publication’ harassment cases, which are often anonymised to prevent the defendant using the proceedings to further a campaign aimed at upsetting the claimant,

In this case the Supreme Court has repeated and reaffirmed the importance of the “ultimate balancing” approach – the parallel analysis of Article 10 and 8 – in cases involving restrictions on press reporting.  The media argument that this was over complex and too difficult for lower courts was decisively rejected.   The courts can no longer employ “bright line rules” but must conduct a “fact sensitive” balancing exercise in every case in which reporting restrictions are in issue.