In August 2020 Nigel Wright was convicted of blackmail and contaminating food in Tesco stores. He was subsequently sentenced to 14 years’ imprisonment. Wright blackmailed Tesco by demanding the payment of bitcoin to the value of approximately £1.4m, failing which he would refuse to identify in which stores he’d placed contaminated baby food and/or would place further contaminated food. He was also convicted of placing metal shards in baby food.

At a Pre-Trial Review in July 2020, Warby J (sitting as a Crown Court Judge at the Old Bailey) heard applications by Tesco for anonymity during the upcoming criminal trial and for reporting restrictions to prevent the supermarket being identified as the victim in the case. In a ruling handed down on 9 July 2020 ([2020] EW Misc 22 (CCrimC)) Warby J refused those applications. The decision was not reportable until the conclusion of the criminal proceedings. It raises important issues of principle concerning the anonymisation of blackmail victims.

Background

Following Wright’s arrest in February 2020, Tesco obtained a pre-issue interim injunction against Mr Wright, restraining him from, inter alia, disclosing the information that Tesco “has been the victim of a blackmail attempt” (the cause of action being breach of confidence). Turner J also gave Tesco permission to issue proceedings anonymously. The civil proceedings were stayed at the return date hearing; Nicklin J continued the injunction but added a public domain proviso and ordered that “any proceedings that take place in open court and are not subject to any reporting restrictions.”

By that point Wright had made his first appearance and been sent for trial in the Crown Court. The Magistrates ordered that a range of information (including Tesco’s identity as the complainant and any information likely to lead to its being identified as such) be withheld from the public in all hearings including the trial. On the back of this, they granted a Reporting Restriction Order (“RRO”) under section 11 of the Contempt of Court Act 1981 (“a Section 11 Order”) which included a super-injunction prohibiting the reporting of the making of the order.

At the Old Bailey the case came before Warby J. He invited submissions on, among other matters, the issue of:

“whether corporate blackmail, at least of the kind alleged here, engages the same policy considerations as the more commonplace variety, where the threat is to disclose wrongdoing, or embarrassing facts, of a personal and private nature.”

Pending the Pre-Trial Review (“PTR”), at which the issue of restrictions on open justice would be determined, Warby J made a narrower order than the Magistrates, and lifted the super-injunction.

Tesco contended that, as a victim of blackmail, the Court was obliged to grant it anonymity pursuant to Article 6 of the European Convention on Human Rights (“the Convention”). It argued that this was necessary in the interests of the administration of justice and to avoid future victims of blackmail from being deterred from reporting such threats. However, Tesco’s evidence was that it would always report such threats to the police. It did not contend that the prospect of being identified would deter it from doing so  or from giving evidence in the Wright case or blackmail cases generally. Protecting Tesco’s reputation lay at the heart of its submissions in support of anonymity.

The mechanism by which Tesco invited the Court to granted anonymity was an order (pursuant to the Court’s inherent jurisdiction and/or section 6 of the Human Rights Act 1998 – “HRA”) that its name (and identifying information) be withheld from the public during the trial, with a consequential Section 11 Order prohibiting publication of this information. Tesco advanced an alternative argument that, even if this information were not withheld during the trial (meaning a Section 11 Order could not be made), an RRO could be made under section 6 of the HRA and/or section 45(4) of Senior Courts Act 1981. The prosecution contended that not disclosing to the jury Tesco’s identity as the victim of the blackmail and contamination of food would be impracticable and disruptive of the proceedings.

Judgment

Warby J characterised Tesco’s argument as being underpinned by the proposition that

“although anonymity is not required in order to motivate the Complainant to report events to the police or to support the prosecution of this (or any) defendant for blackmail, such anonymity is necessary in the interests of justice “pour encourager les autres””. ([36])

He refused to order that Tesco’s identity be withheld or to make an RRO. The Judge’s apparent answer to his own question (see above) is that the blackmail of corporate entities does not engage the same policy considerations as blackmail involving a threat to disclose “wrongdoing, or embarrassing facts, of a personal and private nature” in respect of natural persons.

Warby J held that Tesco’s rights under Article 6 of the Convention were not engaged. While he left open the possibility that the Article 6 rights of a non-party could justify the grant of anonymity, he held that Tesco’s Article 6 rights were not engaged on the facts. He stated that:

“It is not possible to spell out such a right [on the part of Tesco] from the fact that the Article 6 guarantee of a public trial of criminal charges is qualified by the proviso that the Court “may” withhold information from the public where “strictly necessary” in the interests of justice” ([35]).

That left the common law argument, which is the focus of the decision. The Judge considered the leading authority on the common law principles applicable to the anonymization of victims in blackmail cases: R v Socialist Worker Printers and Publishers Ltd ex p. Attorney-General [1975] QB 637. That was a motion for committal for contempt of court after a newspaper named two individuals who were victims of blackmail despite the Judge having directed that they should be anonymised. Giving the judgment of the Divisional Court, Lord Widgery CJ said the following (at p.644):

“…all of us concerned in the law know that for more years than any of us can remember it has been a commonplace in blackmail charges for the complainant to be allowed to give his evidence without disclosing his name. That is not out of any feelings of tenderness towards the victim of the blackmail, a man or woman very often who deserves no such consideration at all. The reason why the courts in the past have so often used this device in this type of blackmail case where the complainant has something to hide, is because there is a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection”.  [my emphasis]

Warby J held that the Socialist Worker case, and this dictum in particular, is authority for “a general rule that the proper administration of justice will generally call for anonymity to be granted to the victim of a blackmail which involves a shameful secret or something to hide”. This, the Judge noted, is underpinned by the policy rationales of ensuring that complainants come forward in a particular case and encouraging others in future cases. But, he held, that case “is not authority for an absolute or rigid rule that all complainants in all blackmail cases must always be granted anonymity” ([41]). Indeed, the Judge concluded that Lord Widgery’s dictum applies only to what he labelled “classic” blackmail, where the complainant has something to hide ([41]). Where such cases arise, nowadays it may be unnecessary to rely on this principle because Article 8 of the Convention is likely to be engaged and provide a jurisdictional basis for an anonymity order.

Having set out his interpretation of the Socialist Worker case the Judge concluded that:

“This is plainly not a case in the classic mould. The Complainant is not an individual with Article 8 rights, but a substantial corporation. There is no question of its privacy being invaded. Nobody has suggested that the Complainant has done anything disreputable or discreditable, or has anything to hide. The threat was not to disclose any shameful or embarrassing secret about the Complainant. It was to disclose the fact that the Complainant had been the target and a victim of criminal acts, and might be the target and a victim of further such acts. There may be cases of that kind in which the interests of justice demand anonymity. But no case has been cited in which the complainant in a case of that kind has sought and been granted anonymity throughout” ([43]).

Anonymising Tesco was not, the Judge stated, necessary to ensure others report and evidence in respect of future cases of blackmail; he did not consider that future victims of “classic” blackmail would be deterred by a major supermarket not getting anonymity ([45]). Warby J was unimpressed by Tesco’s reliance of potential reputational harm: no rational member of the public would, knowing the facts, think worse of Tesco or shun it, particularly given the historic nature of the matters ([46]).

Warby J considered that withholding Tesco’s name from the public at trial would not be consistent with the overriding objective. It would impose “artificial” restrictions on the way the case was put and it would be impracticable and unfair to the parties to require that evidence be reduced to writing and passed to the jury – this would interfere with the conduct of the trial ([47]).

Perhaps unsurprisingly, Warby J gave short shrift to the argument that the Spycatcher principle (pursuant to which a person on notice of an interim injunction is bound by it) operated so as to mean that the order made in the civil proceedings bound the Crown Court preventing it from identifying Tesco ([32]).

Having concluded that that it was not necessary to withhold Tesco’s name and other identifying information at trial, Warby J declined to make an RRO.

Comment

Warby J’s decision is not surprising given that (a) Tesco made it clear that the issue of anonymity would not affect its giving evidence in these proceedings or have an effect on its willingness to report any future blackmail to the police, and (b) withholding Tesco’s identity would have created serious difficulties in trying a complex case, with a number of witnesses from Tesco, before a jury in open court. The decision does, however, raise a number of points which merit further consideration.

First, there is very limited support in the authorities for the view that blackmail cases involving “shameful secrets” or in which the complainant/victim has “something to hide” are in a category of their own in respect of anonymisation is very limited. This existence of such distinction was not the subject of submissions or discussion in the Socialist Worker case – that case concerned threats to disclose the complainant’s activities with prostitutes, i.e., a classic blackmail case. As such the Divisional Court was not concerned with the position in “non-classic” cases such as Wright.

Nor, it seems, has this issue been the subject of any reported judicial consideration in more recent criminal cases. The Judge cited ([44]) a number of criminal cases concerning the blackmail of supermarkets/food suppliers in which the complainants were identified. The judgments of the Court of Appeal (Criminal Division), all of which were appeals against sentences, in those cases provide no indication that any application for anonymity was made. Those cases did not give rise to any reported judgment on the issue of corporate blackmail and anonymity.

Warby J noted that there has been one recent civil case of blackmail against a corporation in which anonymity was not sought. There have, however, also been recent cases in which corporate claimants have been granted anonymity in respect of claims arising from blackmail or extortion. In AA v Persons Unknown [2019] EWHC 3556 (Comm) Bryan J granted anonymity to a corporate claimant, an insurer, and the insured party (which was not a party) in claims for Norwich Pharmacal and Bankers Trust orders, and a proprietary injunction in respect of stolen funds. The insured party had been blackmailed by hackers and paid a ransom in order to recover access to data which the hackers had encrypted. This was not a case concerning a threat to disclose data – it was not “classic” case. In granting anonymity, Bryan J cited Warby J’s own decision in LJY v Persons Unknown [2017] EWHC 3230 (QB) (which concerned a blackmail relating to the threatened disclosure of an allegation of serious criminal misconduct by an individual). In that case Warby J held that “[t]he Court recognises the need to ensure that it does not encourage or help blackmailers, or deter victims of blackmail from seeking justice before the court” ([29]). In granting anonymity, Bryan J held that this reasoning applies equally to a corporate victim ([24] and [33]). He stated that

“[i]t is important in the context of blackmail and extortion that those who have suffered such wrongs should not be put off approaching the court and should be offered assistance in such circumstances” ([33]).

In another case involving hackers, who had accessed a company’s data and were threatening to publish it, Nicklin J continued an order anonymising a corporate victim of blackmail in a claim for breach of confidence (PML v Persons Unknown [2018] EWHC 838 (QB)). Again this was not a “classic” case in that there is no suggestion the information was embarrassing or showed wrongdoing. It is not clear whether these decisions were not cited to Warby J.

It is easy to see how the nature of the information in question may be relevant to the strength of any Article 8 rights in play; clearly blackmail cases concerning private and personal information falling within the ambit of that Article are likely to ground a stronger claim for anonymity. However, given the well-established policy aims of protecting blackmail victims and encouraging others to come forward, it is not immediately apparent why, at common law:

(a) it matters whether the “menaces” concern the disclosure of information, as compared to, for instance, a threat to harm a victim or their interests, e.g., by deleting data or rendering it unusable (as in AA); or

(b) in cases concerning the threatened disclosure of information, either (i) the reason for which the complainant does not want it to be disclosed (e.g., a fear of embarrassment versus not wanting information to be placed into the public domain for myriad other reasons), or (ii) the character of that information (e.g., disclosing disreputable conduct versus information which may reflect well on the victim but is nevertheless secret) should be relevant.

These are distinctions which warrant further discussion.

 Second, this may have been a case in which there could have been merit in permitting Tesco to be identified in open court (and thus avoiding the serious problems of anonymisation at trial) but restricting reporting identifying Tesco. This is essentially what happens by operation of statutory automatic reporting restrictions which prohibit the reporting of complainants’ names in cases concerning sexual offences, for example. It also happens in civil proceedings (e.g., NT1 & NT2 v Google LLC [2018] EWHC 261 (QB) (RROs) [2018] EWHC 799 (QB) (trial), in which the claimants’ names and identifying information were used in open court but there were reporting restrictions in place. The difficulty is that it is not clear whether any such power exists in the Crown Court. Warby J did not need to consider the arguments made in relation to this.

There is no common law power to make reporting restrictions (e.g., Independent Publishing Company Ltd v Attorney General of Trinidad and Tobago & Anor (Trinidad and Tobago) [2004] UKPC 26). Such a power would have to be found in statute. It was suggested by the parties that three such routes may have been available: (1) section 45(4) of Senior Courts Act 1981, on the basis that making such an order would have been incidental to its jurisdiction notwithstanding the reasoning in the Trinity Mirror Case [2008] QB 770; (2) section 6 of the HRA, taken (in this case) with Article 6 of the Convention; or (3) section 37(1) of the Senior Courts Act 1981. As concerns (1), this was suggested by the prosecution but it not clear how the making of an RRO in respect of Tesco’s identity could be said to be incidental to the exercise of Crown Court’s jurisdiction. So far as (2) is concerned, it is far from clear that, as a creature of statute (with no relevant inherent jurisdiction), the Crown Court has any freestanding power to make an RRO. The duty to act in compliance with Convention rights (under section 6 of the HRA) applies only to the exercise of functions in respect of which a public authority has vires; it does not create powers. Route (3) was an option in that Warby J could have continued the hearing sitting as a High Court judge but there is no precedent for such an order.

Even on the assumption that an RRO could be made by one of these three routes (without Tesco’s identity first having been withheld), it is difficult to see how there could be a justification for such an order in a criminal case in circumstances in which a judge refused an application for anonymisation during the trial.

Finally, Tesco placed considerable emphasis on its having Article 6 rights. Warby J did not consider these arguments in detail, primarily because he considered that such arguments could not succeed in circumstances in which the test for anonymity at common law was not satisfied. It is doubtful, however, that non-parties in Tesco’s position have Article 6 rights. The Strasbourg Court has stated that:

“Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled” (Doorson v The Netherlands (1996) 22 EHRR 330, [70])

That reasoning is likely to apply equally to persons who are not witnesses but may, for example, be named in the proceedings. Domestically, both witnesses and entities which are not natural persons have been to held to have Article 6 rights in rare circumstances in which the court made serious adverse and extraneous findings against them (Re W (A Child) Care Proceedings: Non-party appeal [2016] EWCA Civ 1140). That is highly unlikely to be relevant in respect of a complainant in a blackmail case.

Aidan Wills is a barrister at Matrix specialising in media and information law, public law and employment law. This post was published on the Matrix Media website.