In the case of R (on the application of) Fagan v Secretary of State for Justice  EWCA Civ 1275) the Court of Appeal held that only “clear and cogent evidence” that it was strictly necessary to keep an offender’s identity confidential would lead a court to derogate from the principle of open justice. The possibility of a media campaign that might affect the offender’s resettlement could not work as a justification for banning reporting about that offender, even though a prominent and inaccurate report about him had already led to harassment of his family.
This was an appeal by a serving prisoner, Stephen Fagan (“SF”), against the dismissal of his application for anonymity and reporting restrictions in judicial review proceedings.
Legal and factual background
In 2006 SF was sentenced to fourteen years’ imprisonment for two offence of rape and one offence of administering a drug with intent to commit an indictable offence. The offences were committed in England. However, SF comes from Airdrie in Scotland. At the time of the offence he was a married man with two daughters. They had continued to live in Airdrie. The offences of SF had a large impact on his family because his offending became known in Airdrie and his daughters suffered harassment and unpleasantness at school.
In 2012 the appellant requested a transfer to Scotland so he could be released on licence there. When the secretary of state refused the transfer the appellant brought judicial review proceedings, which were due to be heard in December 2013. In the meantime a local newspaper printed a sensationalist and partly inaccurate article about SF’s attempts to be resettled in his home town. The article featured his name and photograph, and claimed, wrongly, that SF had been charged previously with “molesting young girls”. The newspaper was subsequently obliged to correct this “egregious” error, but the correction and apology were set out in small type on page 2 and only six weeks later.
Irwin J refused his application for an order anonymising him in any reporting of the proceedings, even though he acknowleged that the daughters’ witness statements that their lives been “severely disrupted” given the harassment and unpleasantness they had suffered on account of their father’s imprisonment. Nevertheless the judge found that public hostility to the appellant had been a natural consequence of his offending and that there was a legitimate public interest in the resettlement of offenders. The Article 10 rights of the public should in his view prevail over the Article 8 rights of SF and his family.
By the time of this appeal, SF had been recalled to prison and his transfer to Scotland had been approved.
The appellant argued that the judge had not had proper regard to all the relevant factors. He submitted that there should be a derogation from the principle of open justice because there was a significant danger that there would be a media campaign calculated to undermine his rehabilitation and it was necessary to consider his and his daughters’ rights under the European Convention.
The appeal was dismissed
Reasoning behind the judgment
The appellant’s situation had changed since the judge made the original decision: he as detained and there was no likelihood of his immediate release. In that respect it was different from the situation that existed when the matter was before Irwin J but the starting point was the same, which was the general principle of open justice. The court would only agree to a derogation from that general principle if there was clear and cogent evidence which established that such a derogation was strictly necessary in the interests of justice. It depended on the facts of the particular case (Secretary of Sate for the Home Department v AP  UKSC 26).
There was nothing in the appellant’s position as an offender which justified such a derogation. He had been convicted of very serious crimes and his conviction was public knowledge. He was in no different position from other serious offenders with families. A hostile press might inhibit his resettlement, but that was a risk that was likely to be present in many such cases where serious offenders were released on licence into the community and it could not be a general justification for banning reporting about the offender. The court was confident that although they might suffer some infringement of their Article 8 rights, there was no question in this case of any “real and immediate” threat of violence to either SF or his daughters, whether as a result of any press campaign or otherwise, so there was no threat of a violation of their Article 3 rights.
The judge had appreciated that danger and taken it into account in his balancing exercise. The appellant’s daughters had already been identified in press reports and any reporting restrictions would not stop speculation in the local area about whether he as to be released into the community, thus further affecting their rights. Irwin J had taken all relevant factors into account when deciding whether there should be a derogation from the general principle of open justice and he had come to a reasonable decision.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.