In R (M) v Parole Board [2013] EWHC 1360 the High Court held the media should be free to identify a convicted murderer who brought judicial review proceedings challenging a Parole Board decision that he must remain in closed prison conditions. The case is an example of the need for judicial vigilance whenever parties agree that anonymity is appropriate.
It illustrates (again) the weight the courts attach to open justice, while highlighting the importance of notifying the media when derogations are sought in public law cases.
The facts
In April 1973 the claimant murdered his landlords’ three young children in an unprovoked and exceptionally brutal attack: after strangling and stabbing the infants he mutilated their bodies and impaled them on the railings of a neighbouring house. The murders horrified the country and earned him the epithet ‘The Monster of Worcester’.
The claimant has been in prison for almost 40 years, much of it spent in segregation for his own protection. He has been attacked in prison several times and threatened with violence on other occasions. Hostile press reports appear to have triggered some of the incidents.
In 2011 a Parole Board panel decided not to recommend the claimant’s transfer to an open prison. Dissatisfied with the outcome, the claimant brought a judicial review challenge against the Board’s decision. In the Administrative Court he applied for an order under CPR 39.2(4) that no report of the case should identify him or his current location (although the media would still be free to publish reports about the claimant and his crimes separately to any report of the judicial review claim).
A similar order was made in an earlier claim, and counsel for the Secretary of State and Parole Board did not oppose the application. The media were given no advance notification of the application, however a member of the press present in court made representations against anonymity.
In February Simon J held that an anonymity order was necessary since the evidence suggested the claimant’s life would otherwise be at risk. At the same time, he dismissed the substantive judicial review claim and upheld the Parole Board’s decision.
A consortium of media interveners subsequently applied to lift the anonymity restriction. The Secretary of State agreed the order should not have been made. The claimant maintained that identification would endanger his life and psychological health contrary to Articles 2, 3 and 8, and would hinder his progress towards release contrary to Article 5 (since the heightened risk of attack would impede his ability to undergo rehabilitation in unsegregated conditions – a necessary step on the road to release).
Decision of the Divisional Court
Anonymity order discharged
On 22 May 2013 the Divisional Court (Pitchford LJ and Simon J) discharged the anonymity order.
Parole Board rules require parole hearings to take place in private. Proceedings in the Administrative Court, by contrast, usually take place in public. Pitchford LJ began by explaining that although the judicial review claim concerned a parole review conducted in private, ‘the default position is that the proceedings in the Administrative Court will be reported’ [46].
Applications for anonymity are fact-sensitive and a balance must always be struck between the competing interests. Nevertheless, Pitchford LJ said there was
‘a weighty presumption that public proceedings will be publicly reported. The embarrassment, anxiety or distress generated by the prospect of exposure to public scrutiny of private matters will rarely be a sufficient reason for displacing the need for open justice.’ [47]
The court accepted the public had a legitimate interest in being informed about the claimant’s challenge to the Parole Board’s decision. Moreover, the judges accepted the media’s submission that, ‘it is the exceptional nature of the claimant’s crimes and his identity that generates and justifies the public interest in his case’ [48].
At the same time, they dismissed the suggestion that the use of public money to fund his claim increased the public interest in reporting the case:
‘The underlying, dominant public interest in the reporting of the current proceedings would be the same whether they were publicly or privately funded, or funded by charitable contributions. Put another way, the fact the proceedings are publicly rather than privately funded does not buy access to information which must remain private in the interests of the administration of justice or in the necessary protection of the litigant’s Convention rights.’ [48]
Article 2 of the ECHR obliges the state to take positive steps to protect a person where there is ‘a real and immediate risk to the life of an identified individual…from the criminal acts of a third party’ (Osman v United Kingdom [1998] 29 EHRR 245). The key issue was therefore whether ‘a risk to the claimant’s life or serious injury will be created or materially increased by the publication of his name as a party to and a witness in the judicial review proceedings’ [50].
While recognizing that fresh media reporting would probably increase hostility towards the claimant, the court concluded that ‘there is at present no real and immediate risk to the claimant’s life and safety because he is serving his sentence in which his safety can be closely monitored’ [51].
While anonymity was not appropriate in the existing circumstances, the judges sounded a word of caution about media campaigns against particular prisoners:
‘There will always be those whose view is that a prisoner convicted of murder, particularly the murder of children, should never be released. If, however, the rule of law is to mean anything the law must apply to all prisoners equally. A media campaign calculated to undermine the lawful progress of a prisoner towards rehabilitation and eventual release (upon the recommendation of the Parole Board and by order of the Secretary of State) is as much capable of undermining the rule of law as the secret justice which media organisations rightly view with suspicion.’ [45]
Media notification in the Administrative Court
The media also invited the judges to provide general guidance about the correct procedure for anonymity applications in the Administrative Court. The court declined to issue formal guidance, however Pitchford LJ said the issue deserved serious consideration:
‘We…intend the present judgment to provide an alert to judges sitting in the Administrative Court to the problems which can arise if applications are made at the last moment and ‘by consent’… It seems to this Court… that attention is required to the issue as to what, if any, notice should be given to media organisations of an application either at the permission stage or in advance of the substantive hearing for judicial review for the purpose of enabling any interested person or organization to make representations if so advised.’ [69]
Comment
Anonymity in legal proceedings has generated much attention and debate in recent years. Put simply, names matter. As Lord Rodger said In re Guardian News and Media Ltd [2010] 2 AC 697:
‘What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature.’
In the case of In re S [2005] 1 AC 593 Lord Steyn recognised the importance of including names in reports of court proceedings:
‘from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.’
In In re: British Broadcasting Corporation [2009] UKHL 34 the House of Lords lifted an anonymity order which stopped the media from naming an acquitted defendant who was likely to face a re-trial for rape. Lord Hope said the producers of a television programme about the case were entitled to conclude that disclosure of the defendant’s name would give added credibility to the account they wished to present [26]. Lord Brown echoed Lord Steyn’s comment in Re S that a report without a name would be ‘very much disembodied’ [66].
At the same time, anonymity is sometimes essential to protect the life and safety of convicted criminals or witnesses. The Bulger killers, Maxine Carr (the former girlfriend of the Soham murderer Ian Huntley) and the child killer Mary Bell are three examples where the courts have issued injunctions contra mundum (binding against the world) to protect the life and physical safety of the subject: see Venables and Thompson v News Group Newspapers [2001] EWHC QB 32, and Carr v News Group Newspapers [2005] EWHC 971 (QB) and X (a woman formerly known as Mary Bell) v O’Brien [2003] EWHC 1101 (QB). The state’s Article 2 duty in cases such as these is, in the words of Mr Justice Eady, ‘unchallengeable and rock solid’ (Carr, §2). A similar obligation exists in respect of witnesses (see, for example, the House of Lords’ judgment in In re Officer L [2007] UKHL 36).
The present case ultimately turned on a fact-sensitive evaluation of the risks to the claimant and the strength of the public interest in disclosing his identity in reports about his claim. However the judgment raises an important general issue about the procedure (or lack of it) for notifying the media about anonymity applications in the Administrative Court, particularly when those applications are unopposed by any of the parties.
Judicial review shines a valuable light on the way power is exercised in the name of the state. Reporting restrictions can undermine transparency and deprive the public of access to important information. As R (M) demonstrates, submissions from the media may tip the balance in favour of open justice. To inform the public, the media must themselves be informed. Ensuring they are notified before restrictions are imposed is an essential first step.
Edward Craven is a barrister at Matrix Chambers
Yet we move ineluctably to anonymity being granted for rape trial defendants in line with rest of EU