Application by Guardian News and Media Ltd and others in HM Treasury v Mohammed Jabar Ahmed & Ors
Case date: 27/01/2010
Court: Supreme Court
Area/s of law: Article 10 ECHR, Article 8 ECHR
Outline Facts
On 13 December 2006 G was designated under Article 4 of the Terrorism (United Nations Measures) Order 2006 (“TO 2006”) on the basis that the Treasury had reasonable grounds for suspecting that he was, or might be, a person who facilitated the commission of acts of terrorism. This decision was communicated by press release via the Bank of England on the same day, using G’s name Mr Mohammed al-Ghabra. Shortly after, G also received notice that he has been placed on a United Nations Security Council terrorist list (resulting in his assets being frozen) and in March 2007 he was also made subject to an Al-Qaida and Taliban (United Nations Measures) Order 2006 (“AQO 2006”). His designation was refreshed under The Terrorism (United Nations Measures) Order 2009 (“TO 2009”), Article 6(2)(b)(iii) on 22 October 2009.
On 2 August 2007 A, K and M were designated under Article 4 of TO 2006 in a similar fashion. All three denied the allegations. However there was no press release providing their names; on the contrary, the Treasury decided that their designation would be confidential and made an order to that effect (pursuant to Article 5(1)(a)(ii) of TO 2006). A similar decision was made when the designations were refreshed under the TO 2009 on 30 October 2009. Any order by the court that disclosure be required for the purpose of proceedings would in any event render disclosure lawful (Article 8(3)(d)). On 6 October 2005 HAY had been placed on the United Nations Security Council terrorist list, with the result that his assets were frozen. On 10 October he was named in a Bank of England press release as Mr Hani al-Sayyid Al-Sebai (with a variety of other names). Since June 2009 the UK has pressed for his removal from the list.
Each of the five individuals (together “the Appellants”) challenged the designations.
All of the Appellants were granted anonymity orders at the outset of proceedings in the administrative court. The orders were continued for the appeals in respect of A, K and M by Collins J and in the case of G by the Court of Appeal itself. The substantive appeals came together before the Supreme Court; the Guardian and various other media organisations (“the Media”) then made an application to have the anonymity orders set aside. The order in G was set aside (see below) but the Court decided to hear the substantive appeals before consideration of the other cases. On 22 October 2009 the Court heard the Media’s application in the cases of A, K and M together with the separate case of HAY.
Decision of the Supreme Court
The Court decided shortly that the anonymity orders in respect of both G and HAY should be overturned. In the case of G “his identity as someone subject to a freezing order was already in the public domain... ...[and] had been reported in the press”; accordingly “the anonymity order made by the lower courts served no legitimate purpose” and was lifted. The Court noted that no evidence had been produced to show that either the original disclosure in December 2006 or the lifting of the anonymity order had led to any harm to him or members of his family. The Court stated that HAY’s name too had been announced by the Bank of England and “that in itself would often be justification enough for setting aside the anonymity order”; however in this instance he had brought a (fully reported) claim against the Home Office for wrongful imprisonment in his own name, had appeared in numerous press articles since 1999 and often gave statements to the press. The Court stated that there was no evidence that he or his family in this country or in Egypt had been adversely affected in any way and “there never was the slightest justification for making an anonymity order in his case.”
The Court considered that as A and K had left their London addresses and nobody knew of their whereabouts there were no available arguments as to the adverse affects that identification would have on them or their families: “they do not appear to have any substantial Article 8 interest to counteract the interests of the press in publishing a full report of the proceedings”. However the Court recognised that revealing their identities would have the incidental effect of revealing the identity of (their brother) M; his position therefore had to be analysed first.
It was in deciding that the anonymity order in M should be overturned (with the consequence that A and K too could be identified) that the Court’s reasoning is focused.
Reasoning of the Court
The Court made a number of general observations concerning press reporting of judgments and the availability of anonymity orders (under section 6 of the Human Rights Act 1998 and section 37 of the Senior Courts Act 1981; not section 11 of the Contempt of Court Act 1981) to protect Article 8 rights; before setting out the competing arguments.
M argued, in essence, that he feared that if knowledge of his designation as a suspected terrorist became known his local community would or might fear to be associated with him and his five children (with whose lives his was involved; he shared a property with them and his ex-wife). It was emphasised that such publication would cause serious damage to his reputation; particularly in circumstances in which he had not been charged with or convicted of any criminal offence and therefore had no opportunity to challenge the substance of the allegations against him. Therefore, the anonymity order was needed to protect his Article 8 rights.
The submissions on behalf of the Media were two-fold. Firstly, it was argued, relying on Karako (see the case report and commentary here), that Article 8 did not in fact protect reputation and therefore M’s arguments were misconceived; “the only article in play in relation to M’s reputation was Article 10”. Secondly it was argued that, in any event, M’s right to reputation (whether as enshrined in Article 8 or otherwise) was outweighed by the Media’s (and the public’s) Article 10 right to impart and receive the information: i.e. M’s identity.
The first argument was rejected. Analysing Karako, the Court stated that the ECHR had not “departed from that earlier jurisprudence” that confirmed that protection of reputation is a right falling within the scope of Article 8 but on the facts of that case the applicant had been unable to show that the publication in question “had constituted such a serious interference with his private life as to undermine his personal integrity”; therefore his reputation “alone was at stake in the context of the expression which was said to have damaged it.” This did not mean that the claim in respect of his reputation did not fall within Article 8; the ECHR was concerned in that case “with the application of Articles 8 and 10 in a situation where, in the court’s view, the applicant had not shown that the attack on his reputation had so seriously interfered with his private life so as to undermine his personal integrity.” This case was however different, since M did explain how his private life would be seriously affected if his identity was revealed; on that basis Article 8(1) would be engaged.
On this basis the Court approached the case as one in which both Article 8 and 10 were in play and therefore it had to weigh the competing rights and interests of each party. Reviewing Von Hannover, Campbell and In Re S (and noting that there was no uniform approach in the courts of Europe) the Court stated that the question for the court was “whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.”
The Court recognised as the “main” argument in favour of the anonymity order the fact that M could not challenge the substance of the allegation against him. Against this, it was stated that “a more open attitude would be consistent with the true view that freezing orders are merely indicative of suspicion about matters which the prosecuting authorities accept they cannot prove in a court of law...by concealing the identities of the individuals who are subject to freezing orders, the courts are actually helping to foster an impression that the mere making of the orders justifies sinister conclusions about these individuals”. The Court also emphasised that there is a great deal of importance to the press (and the public) in being able to name an individual at the centre of a story, and that “judges are not newspaper editors”. Further it was stated simply that the public has a legitimate interest in who is challenging the designations made under TO 2006 and AQO 2006 and about the whole freezing order system itself: in respect of the former the public can “receive information about him which they can then use to make connexions between items of information... In this way the true position is revealed and the public can make an informed judgment”; in respect of the latter it is important since that system “has been created and operated in their name”.
M also argued that it was relevant that people would treat him as being a terrorist if his name was published, even if such a publication limited itself to the facts (that the Treasury claimed that there were reasonable grounds to suspect him of facilitating terrorism). The Court stated that whilst some people may draw that unjustified inference, in general it saw no reason to assume that most members of the local Muslim community would be unable to draw the necessary distinction. It was also argued that if M’s identify was disclosed there might be some “outrageously hostile” press coverage from certain sections of the press. The Court stated that this possibility “cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press” and was therefore “simply one factor to be taken into account”, noting that the appropriate body for dealing with any “lapses in behaviour” was the Press Complaints Commission.
The Court concluded that the evidence in support of a potential effect on M’s private life was “very general” and therefore “not particularly compelling”; it also took into account the apparent lack of reaction when G was named and the information M had already put into the public domain concerning the impact on his private life. Against this, it concluded that publication of M’s identity would make a material contribution to a debate of general interest: this was not a case in which the press “are wanting to publish a story about some aspect of an individual’s private life, whether trivial or significant...they are being prevented from publishing a complete account of an important public matter involving this particular individual for fear of an incidental effect that it would have.”
For these reasons the Court decided that the anonymity order should be set aside in the case of M, and therefore also in the cases of A and K.
Discussion/Opinion
The case is one in which the result can be determined from its title. The primary interest in the decision making of the Supreme Court is in respect of M: the discussion of the competing interests under Articles 8 and 10 of the ECHR and the restatement of the appropriate approach to the balancing act; the attempt to rationalise Karako; and the approach taken to the media.
There is however one important preliminary point arising from the cases of G and HAY; the Court states that the prior publication of an individual’s identity would “often be justification enough for setting aside the anonymity order” [19]. In the case of G, prior publication was the only reason given for setting aside the order [14], despite the fact that the two primary publications referred to were 3 years old (and there was no discussion at all of the subsequent press reportage – either of date or extent). In HAY the primary publication was 4 years old and there was no reference to subsequent media publications; it was the press release itself with which the Court were alone concerned. It may be that the Court’s pronouncement goes too far – since what in effect is being stated is that such prior publication has extinguished any Article 8 rights G or HAY may have had: “the anonymity order... served no effective or legitimate purpose” [14]. Surely a better approach can (and, perhaps, must) be incorporated from the laws of confidence and the question should be viewed from the other direction, i.e. it is whether further publication could not reasonably be expected to cause damage or distress to the person concerned; it follows that whether information was (or indeed is) a matter of ‘public record’ is “simply a factor” to be taken into account (see Confidentiality, Toulson & Phipps, 2nd edition 3-151 and 7-071).
Turning to M and Karako. The Media launched a frontal assault on the status quo by arguing that the case decided that reputation did not fall to be protected under Article 8. It appears that the force of that argument may somewhat have been blunted by a lack of historical context (although we will have to wait for the official reports’ verdicts) but it was squarely rejected by the Court as making a nonsense of the ECHR’s reasoning [41]. However its own reasoning – three, dense paragraphs – is difficult to follow. The statement that the Karako section did not depart from the earlier jurisprudence is itself surprising (and contrary to the ECHR’s own view – see in particular [23] of that judgment; as well as the fact that the judgment was accorded a Level 1 status as one which made “a significant contribution to the development, clarification or modification of its case-law”) but it is the result of the attempt to rationalise the decision as orthodox that is most problematic.
It said that the court had decided in Karako that on the facts the publication was not serious enough an interference with his private life to undermine his personal integrity. And, that that being so: “the applicant’s reputation alone was at stake in the context of the expression which was said to have damaged it” [40]. This is a direct quotation from Karako [23] but what does it mean? Not, according to the Supreme Court, that his claim in respect of his reputation did not fall within the scope of Article 8 (see [41]). Simply that the application of Articles 8 and 10 had to be balanced taking into account the fact the applicant’s personal integrity had not been undermined [42]. Thus – it must be inferred – what is being balanced is exactly and exclusively the applicant’s reputation on the one hand; freedom of expression on the other. Unlike the case of M, the applicant’s ‘private life’ (in the everyday sense?) was not affected. But the balancing still needs to be, and was, done.
Article 8 says this: “Everyone has the right to respect for his private and family life, his home and his correspondence”. Where does reputation fit into this if it has been concluded that the applicant’s personal integrity (following Von Hannover) has not been undermined? Reputation is only relevant insofar as it is a part of private life; even the orthodoxy of Radio France et seq makes this completely clear and in fact the Supreme Court itself appears to grapple with the problem when distinguishing the instant case of M [42]. But it is difficult to understand the logic of the argument that there must still be a balance between Articles 8 and 10 (if this is what is being said) where there is no Article 8 right in play. It can strongly be argued that the better analysis of Karako is that it recognises that not all publications which affect reputation engage Article 8 (see especially [22] and [23]). It is a difficult case, and it is right to note that the results of such an approach were not fully worked through (the main difficulties are explored here (Karako) but the Supreme Court’s analysis raises more questions that it resolves.
Finally, as well as the ‘public domain’ comments referred to above, there are many statements in the judgment which will be very welcome to the media. The Supreme Court recognised that the efflorescence of anonymity orders was a relatively new phenomenon; evidence of a deeply ingrained habit which had not perhaps been satisfactorily addressed “The application challenging the anonymity orders in these appeals provides an opportunity for reviewing the position” [2]. And those observations: it is important that the press be able to name individuals [63-65]; one bad apple shouldn’t be allowed to spoil the cart [72]; even, perhaps for a headline, “judges recognise that editors know best...” [63].
Ian Helme
To view the Full Judgments on the Supreme Court website please click on the links below.
Application by Guardian News and Media Ltd and others in
HM Treasury v Mohammed Jabar Ahmed & Ors (“A”; “K” and “M”)
HM Treasury v Mohammed al-Ghabra (“G”)