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Judgment is due tomorrow, 17 June 2009, on the BBC’s application for the discharge of an anonymity order made by the House of Lords nearly nine years ago.

The original order was made in the case of  Attorney General’s Reference No.3 of 1999 [2001] 2 AC 91. This application, which does not appear to have attracted much (if any) attention to date, may result in a judgment which addresses issues of significance for media lawyers. T

The main issues on the application are said to be: (1) whether the House of Lords had jurisdiction to make the anonymity order; and (2) if so, whether it should now be discharged on the grounds that it violates the BBC’s Article 10 rights. The case was heard within 3 weeks of the coming into force of the Human Rights Act 1998, but it, and in particular section 12 (which applies if a court is considering whether to make an order, otherwise than in criminal proceedings, which might affect Article 10 rights), appears not to have been considered.

The background to the application was that Mr X, as we shall call him for now, was arrested for burglary and a non-intimate DNA sample was taken. In due course he was acquitted but the sample was not destroyed as required by law. It was later matched with swabs taken from a rape victim and a second non-intimate DNA sample was taken. The trial Judge ruled evidence of a link between Mr X’s DNA profile from the sample and the swabs inadmissible. The prosecution offered no evidence and Mr X was acquitted. It is understood that the BBC made the application because it wishes to make a documentary about double jeopardy featuring Mr X.

Lorna Skinner (Matrix)

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