The claimant was a convicted sex offender.  On 20 April 2010 the Chief Constable of Humberside Police made an application for a Sexual Offences Prevention Order (“SOPO”) against him.  On 28 April 2010, the District Judge had made an order under section 11 of the Contempt of Court Act 1981 banning publication of the claimant’s address but made no order in relation to his name.   The SOPO was made at a hearing on 8 November 2010.  An order was sought banning the publication of the claimant’s name.  This was opposed by the defendant newspaper and was refused.  However, the court made a postponement order, pursuant to section 4(2) of the 1981 Act, designed to prohibit publication of the claimant’s name until the resolution of any application in the High Court for anonymity.

The claimant issued a claim against the defendant seeking an injunction prohibiting the publication of his name or any details which could lead to his identification in the context of the SOPO proceedings.  On 16 February 2011, the defendant published articles identifying the claimant as a danger to women. The articles did not give the claimant’s address or refer to the SOPO proceedings.  Three days before the High Court hearing the claimant was arrested for alleged breaches of the SOPO and for allegedly assaulting a police officer and was remanded in custody.  The newspaper defendant applied for an order that the claim be struck out on the grounds that it did not disclose a cause of action.  The claimant conceded that in light of the alleged further offences he could not maintain the claim for anonymisation.

Judgment

The application was heard on 25 February 2011 by Coulson J who gave judgment on 2 March 2011 ([2011] EWHC 406 (QB)).  He accepted that jurisdiction to make an order for the anonymisation of any reports of the SOPO proceedings derived from section 6(1) of the Human Rights Act 1998, referring to Gray v UVW ([2010] EWHC 2367 (QB)).  He also referred to the general principles to be applied when considering the making of an anonymity order set out in the judgment of the Court of Appeal in JIH v News Group Newspapers ([2011] EWCA Civ 42).  He summed up the test as follows:

“The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, to justify any resulting curtailment of that party’s right to respect for his or her private life“. [13]

The defendant submitted that a claim for an injunction aimed solely at one defendant newspaper was ill-founded, because the claimant had no cause of action against that defendant.  It was argued that an final injunction aimed only at the defendant could not achieve anonymisation of the SOPO proceedings in any event.  This submission was accepted by the Judge, who held that

“The claimant has no cause of action against the defendant, and there is therefore no basis on which an injunction could be granted. Since the District Judge had not prohibited the reporting of the name during the proceedings, what the claimant really wanted was an order, arising out of those proceedings and therefore within the general jurisdiction of the High Court, prohibiting the publication of material that identified him by name. An injunction against just one local newspaper would never have achieved that aim” [15]

The Judge went on to hold that, in any event, an order for anonymity was not justified, accepting the submission that the publication of the claimant’s name and/or any photograph of the claimant was an important protection of the public.   The Judge concluded that “the public’s need for protection far outweighed the claimant’s right to respect for his private life” [18].  Finally, the subsequent arrest of the claimant for breach of the SOPO was also be fatal to this claim and provided a third reason for striking out the claim. [24]

Comment

This was a misconceived attempt to obtain an anonymity order.  A criminal defendant who is aggrieved by a decision of the Magistrates’ Court to refuse an anonymity order can challenge this refusal in the High Court.   If he is to obtain a section 11 order he must make an application to the High Court before his name is released to the public because this power cannot be exercised unless the name is withheld from the public: “Unless the court deliberately exercises its power to allow a name or other matter to be withheld, s.11 of the 1981 Act is not engaged“. (Re Trinity Mirror [2008] EWCA Crim 5 [19]).

The High Court also has a power to make an anonymity order deriving from the Human Rights Act 1998.  It must be shown that the Article 8 rights of the criminal defendant outweigh the Article 10 rights of the media and the public (Ibid, [31]).  In such a case a contra mundum injunction could be granted, binding the media generaly.   The importance of the “open justice principle” in criminal cases is such that orders of this kind are very rare indeed, the only reported case in which such an order was made being A Local Authority v W ([2005] EWHC 1564 (Fam)).

A criminal defendant who cannot obtain an anonymity order of one of the two types mentioned above faces insuperable difficulties in seeking to protect his position by private law proceedings against an individual newspaper which threatens to publish his name.   The only potential cause of action would be misuse of private information but, the defendant against whom orders are made in open court would obviously have some difficulty in arguing that the information was “private”.  In any event, there is likely to be strong public interest in publishing the information as to the claimant’s identity.  Such an interest was obviously present in the Allen case.

The background to the case is described in an article by the Deputy Editor of the Grimsby Evening Telegraph Michelle Hurst, who understandably, complains that the case cost the newspaper several thousand pounds whereas the claimant was in receipt of Legal Aid.  Perhaps unsurprisingly, the judgment records that the defendant had mentioned the possibility of applying for a wasted costs order.