Media groups in Northern Ireland have welcomed two recent High Court decisions relating to an application by a newspaper to set aside an anonymity order.  The application was brought by Sunday Newspapers Limited to review and to set aside an anonymity order initially granted in 2008 to the present respondent who was known as JR20 in respect of an application for leave to apply for Judicial Review.

Initially the Court agreed that the anonymity order should be set aside but stayed enforcement of its judgment in order to enable JR20 further time to gather police evidence to substantiate his claim that the order should not be set aside on grounds of his right to life pursuant to Article 2 of the European Convention of Human Rights, as incorporated by the Human Rights Act 1998 (Sunday Newspapers Ltd’s Application [2011] NIQB 136).

Following a number of reviews and evidence gathering by the respondent the Court invited skeleton arguments and further oral submissions in relation to the ‘updated’ evidence provided by the respondent to the Court.  The second judgment upheld most of the original judgment but instead determined that the anonymity order should be maintained.  However, the respondent had failed to meet the necessary threshold of establishing grounds on the right to life and as such Article 2 was held not to have been engaged.

After the first judgment and further to additional evidence submitted to the court together with the respondents supplemental submissions,  JR20 successfully maintained anonymity not on his original right to life claim but instead on grounds of common law fairness (An Application by Sunday Newspapers Ltd (Judgment No 2) [2012] NIQB 26).

The court reviewed the ongoing necessity of this anonymity order and whilst it agreed that Article 2 had not been established on the specific facts of this case, the order was maintained as to remove it would have increased a risk to JR20’s life on the particular facts of this case.  The facts of this case meant that a removal of the order would have disclosed details that JR20 no longer held a personal protection weapon and as such those wishing to endanger his life would be made aware of this inability to defend himself.

Importantly the court disagreed with JR20’s suggestion that the newspaper should have passed a threshold before they may make an application to the court asking it to remove or review an anonymity order already in place.  The second judgment stated;

“All that the press can do is make a general plea for open justice.  It is not for the press to cross a threshold for change, certainly in Article 2 cases, because in practice the press will not be adequately informed.”

Rather than a burden of proof requirement, the court conducts a balancing exercise of the press’ rights and that of the individual benefiting from an anonymity order.

It is significant that in spite of JR20’s success in maintaining the anonymity order, this case was a test of the courts approach to setting aside anonymity orders in this jurisdiction and the law has now been established.  It is a matter of general importance for the press to seek to pursue their right to report proceedings and criminal proceedings and this case defines how the press can deal with these issues in the future.  It was for this reason that the court exercised its discretion not to order costs against the losing party and an order of no costs was made.

The press have a right to report on legal proceedings and that includes publishing the names of the parties involved and allowing members of the public to receive relevant information about these individuals.  The public are therefore enabled to make connections about items in the public domain which may otherwise appear unrelated if a party was anonymous.

The court agreed that the starting point in legal proceedings is open justice and recognised in the second judgment that

“there may be restrictions on publicity and the reporting of proceedings (but) where that may arise Article 10 of the European Convention will be engaged to protect freedom of expression and so any restriction must be for a legitimate aim and by proportionate means.”

In this case the anonymity order was originally granted in 2008 because JR20 claimed his right to life was endangered relying on Article 2 right to life.  But the court agreed with the newspaper that Article 2 right to life was no longer engaged because JR20 failed to establish the existence of a real and immediate risk to his life at the time the newspaper applied to the court to remove the anonymity order.

The judgment is novel in Northern Ireland and appears to be the first of its kind in this jurisdiction whereby a media organisation has made an application to set aside an anonymity order as an intervener.  The judgment provides a precedent for the media to make such applications and confirms that the court carries out a balancing exercise when considering such applications; balancing the rights of the person who seeks the anonymity order against the rights of the media and the public to enjoy freedom of expression.

This case endorses a Supreme Court decision in Guardian News and Media Limited and Others [2010] UKSC 1 where the Guardian newspaper challenged anonymity orders successfully.

These decisions confirm that media organisations have a right to ask the court to consider whether the continuation of anonymity orders are necessary, even after proceedings have concluded.  Whilst the anonymity order was ultimately maintained on the specific facts of the Northern Ireland case, it is still considered a victory for the press’ freedom of expression and its right to impart information to members of the public.

The case is a part victory and reminds us that it is a matter of general importance for the press to seek to pursue their right to report criminal and other proceedings and defines how the press can deal with these issues in the future.

Helen Gilmore, Trainee Solicitor, Carson McDowell (who acted for Sunday Newspapers Ltd)