Marines A & Ors v Guardian News and Media & Other Media

Factual background

On 15 September 2011, a patrol of the Royal Marines serving as part of the British Armed Forces in Helmand Province, Afghanistan was conducting operations to secure an area from which insurgents were firing. In the course of the operation an Apache helicopter was called in and fired at one of the insurgents who was in an open field. He was severely wounded. The patrol was sent to examine what had happened in the area targeted by the Apache helicopter. They found him with severe wounds armed with a high explosive grenade and an AK47. He was no threat to anyone. The Afghan was then shot by one of the Marines and died.

A video recording was taken by one of the Marines with a camera attached to his helmet; it recorded the events with a sound track including the injured Afghan insurgent being dragged across a field and the shooting of the Afghan by one of the Marines who discharged his pistol at close range into the Afghan’s chest. When the video was discovered and an investigation had been conducted five members of the patrol were charged with the murder of the deceased Afghan on 13 October 2012. The decision to charge them was made by the Service Prosecution Authority (the prosecution), a prosecution authority accountable to the Attorney General in the same way as the Crown Prosecution Service and wholly independent of the Ministry of Defence (MoD).

The five were subsequently brought before a Court Martial presided over by the Judge Advocate General (the Judge). On 5 February 2013, prior to the arraignment before the Court Martial, the prosecution discontinued the proceedings against Marines D and E.

The case for the prosecution was that Marine A shot the deceased Afghan at close range and that B and C were secondary parties to the murder through encouragement or assistance. The video recorded by the camera on Marine B’s helmet showed Marine A shooting the Afghan. It also recorded comments made by the Marines in relation to the Afghan and the shooting. Marine C had recorded disparaging comments about the Afghan and the shooting in his diary.

The trial commenced before the Judge and a Board on 23 October 2013. The Board is the equivalent of a jury in the UK’s system of military justice, as it alone makes decisions on the facts, though, unlike a jury, it also has a role in sentencing. On 8 November 2013, the Board found Marine A guilty of murder and acquitted Marines B and C.

These applications for leave to appeal to the Court Martial Appeal Court related solely to Orders made by the Judge in relation to the prohibition of the identification of the Marines and in relation to making the video recording available to the media. We were not in any way concerned with any other part of the proceedings at the Court Martial or the sentence passed.

The Order prohibiting identification made in 2012

On 15 October 2012, two days after the decision to charge the Marines, Judge Advocate Elsom made an interim Order prohibiting the identification of the five Marines, Marines A, B, C, D and E on the grounds that there was a real and immediate risk to their lives; there was no evidence to that effect. The Order was therefore made on an interim basis simply to protect the position. That Order was continued by the Judge under Rule 153 of the Armed Forces (Court Martial) Rules 2009 (the Court Martial Rules) (made under the provisions of the Courts Martial (Appeals) Act 1968, the Criminal Justice Act 2003 and the Armed Forces Act 2006) which we set out at paragraph 35 below and s.11 of the Contempt of Court Act 1981, pending a full hearing. The Judge ordered an assessment by the Joint Terrorist Analysis Centre (JTAC).

On 28 October 2012, a witness statement of Mr Anthony Tucker-Jones was served on behalf of the Marines. He was a former defence officer with 20 years’ experience who described himself as an expert on regional conflicts and counter terrorism.

On 5 November 2012, there was a hearing before the Judge. Marines A-C sought the continuation of the Order prohibiting their identification until the end of the trial; this was opposed in written submissions by the media parties. The Judge heard evidence in private from Mr Tucker-Jones, though we were provided with a transcript; the media parties were not present. His expertise and evidence were therefore not tested in cross-examination. The Judge also received a document entitled “Royal Marines - Threat Assessment” from a Departmental Security Officer in the MoD based on an assessment from the JTAC. That assessed the threat as moderate – an attack was possible but not likely; the MoD had placed the Marines on a contingency threat list and taken measures to improve the security for them personally and at their homes. The prosecution took a neutral position, but told the Judge that the MoD did not assess the threat as higher than the information provided by the JTAC. It was common ground that the Judge was obliged to make the Order if he was satisfied that there was a real and immediate threat to their lives, as we explain at paragraph 89 below.

The Judge in his ruling first found that, based on the decision of the MoD to increase the security for the Marines and the evidence of Mr Tucker-Jones, the publication of the names of the Marines would increase the risks to the lives of the Marines, their families and friends. He erred on the side of caution in accepting the assessment of Mr Tucker-Jones. He said at paragraph 15:

“Having considered the expert evidence from Mr Tucker-Jones and the submissions from the parties, I am unable to conclude definitely that there is a real and immediate risk to the Defendant’s lives today. However I am satisfied that there may be a real and immediate risk to the Defendants’ lives based on the information that is currently in the public domain, and the risk will increase significantly when all of the prosecution evidence is disclosed as the trial unfolds. The risk comes from organised terrorist activity and “lone wolves” who are unpredictable. In this respect members of the Armed Forces are entitled to be treated differently from civilians within this country at this moment in history. While they must remain accountable for their actions, and part of that accountability is through open justice, they are also entitled to protection from terrorists who may not be concerned with due process, and who may attempt revenge attacks. In other words, any assessment of risk must err on the side of the safety of members of the Armed Forces. I am not prepared to take a chance with men’s lives.” (emphasis placed by the Judge)

He considered whether any other measures could be taken other than an Order prohibiting their identification, as Mr Tucker-Jones had said that any threat would continue whatever the outcome of the trial. Their names would provide a focus for terrorists. He added at paragraph 17:

“If the Defendants are acquitted at trial, then it is right that their identities are protected for the future. As members of the Armed Forces who are placed in harm’s way, and who undertake risks which do not confront civilians, they are entitled to this additional protection. If they, or any one of them, are convicted then the issue of anonymity will be reassessed.”

In paragraph 18 he concluded:

“I am satisfied that, within the context of this case (including the unpredictability of terrorist attacks and the ongoing operations in Afghanistan) there would be a real and immediate risk to the lives of the Defendants if they were to be identified by name.”

He made an Order that the Marines be referred to only as Marines A, B, C, D and E and there be no publication of any matter that would enable them to be identified (such an order is to be distinguished from orders which may be made restricting the reporting of the names of defendants or others where those names are given in open court). The Order was to remain in force until after the Court Martial had delivered its findings; it would then be reviewed.

The continuation of the Order prohibiting their identification at the commencement of the trial

On 23 October 2013, the opening day of the trial, to protect against the inadvertent disclosure of names of the defendants, the Judge made a further Order in respect of anonymity under s.11 of the Contempt of Court Act 1981.

On 24 October 2013, an Order was made prohibiting the identification of the two pilots of the Apache Helicopter who had, as we have set out at paragraph 1 above, fired on and severely wounded the Afghan insurgent. There was no opposition to the making of that Order by the media parties or anyone else; but the fact that it was made without any opposition does not discharge the judge from the obligation to make a careful analysis of the type we set out at paragraphs 86-100 before making any derogation from the principle of open justice.

No Order was made prohibiting the identification of the other members of the patrol; their names were openly mentioned at the hearing.

The Judge’s rulings on the video recording and the stills taken from it

On the opening day of the trial five clips from the video which had recorded the killing of the deceased Afghan were played in open court as part of the evidence against Marines A, B and C. No steps were taken to pixelate the faces of any of the Marines or the deceased Afghan, as the video was an essential part of the evidence at the trial. A transcript of the soundtrack of the video was also provided to the jury.

British Sky Broadcasting and other media (the media parties) asked for copies of the video clips so that they could be broadcast. They were told the following day that the video clips would not be released, but the transcript of the soundtrack would be made available. The media parties applied to the Judge on 28 October 2013 for the video clips to be made available, submitting that the faces of the Marines and the deceased Afghan could be pixelated. The MoD and Marines A-C objected; the prosecution adopted a neutral position. The Judge heard evidence from Mr Mott, the Deputy Head of the Research, Information and Communications Unit at the Home Office’s Office of Security and Counter Terrorism. He described the risk to life from the use of the video as propaganda by terrorists to radicalise others and incite terrorist attacks.

The Judge ordered that the video should not be made available to the media parties for the reasons which it is more convenient to summarise later - see paragraphs 68 and following.

In the course of the argument a question arose as to whether stills taken from the video should be released. On 30 October 2013, copies of Marine C’s diary entries were released. On 6 November 2013 the media parties made submissions to the Judge for the release of the stills and the soundtrack of the video. The MoD withdrew their objection to the release of the soundtrack. The stills were divided into three categories:

On 7 November 2013, the Judge ruled that the Category 1 images should not be released as he considered these no different to the video clips in the risk that they posed. He also ruled that four Category 2 stills (stills 11, 12, 13 and 37) which showed a marine holding a pistol should not be released. He ruled that four Category 2 stills could be released, but requested further expert evidence from Mr Mott on 13 of the Category 2 stills. On 7 November 2013, the Judge invited further evidence from Mr Mott on 13 of the Category 2 stills, but did not make and has not since made a ruling on the other Category 2 stills.

The Judge’s Order revoking the prohibition of identification of the Marines on 8 November 2013

On 7 November 2013, after the conclusion of the evidence and summing up, the Board retired to deliberate on its verdict. The media parties applied, in anticipation of the verdict, to the Judge to review the Order prohibiting the identification of the Marines and sought to persuade him that the Order should be lifted so that the press could report the names of Marines A, B and C. They were supported by the prosecution. Marines A, B and C contended that regardless of the verdict the Order should continue.

Marines D and E had been notified on 2 November 2013 that the Court Martial intended to review the Order prohibiting the identification of the Marines. They made it clear that they wished to be heard if there was an application or suggestion that the Order be lifted in respect of them.

The Judge received a further statement from Mr Tucker-Jones and heard oral evidence from him. His evidence was that there would be a real and immediate risk if their identities were known. The prison service would be unable to protect any convicted and their families would be soft targets.

The Judge decided in a written ruling dated 8 November 2013 that the fear that the Marines’ lives would be at risk was not objectively well founded. His conclusion in respect of the evidence of Mr Tucker-Jones and the risk to the life of the Marines was clear:

“13.

The evidence of real and immediate risk comes from Mr Tucker-Jones. I am afraid his opinion both in his written submissions and orally was unconvincing. When tested by Mr Perry he was unable to give objectively well founded reasons for his conclusions and he conceded that this was a subjective opinion, albeit based on 20 years’ experience in the field. That is not to diminish his expertise, but in this case he has been unable to point to anything which enables me to say that the high threshold has been reached.

14.

As far as the protection of a convicted defendant in prison is concerned, Mr Tucker-Jones’ evidence was speculative based on published statistics. He has no expertise in the regimes established in prisons, nor whether there is any real risk of attacks from other prisoners. His suggestion that they might be at risk from people who had previously supported them but had been let down as the evidence has emerged at trial is fanciful.

15.

As I have said previously, the principle of open justice is immutable and must only be restricted where the administration of justice would be seriously affected without the grant of an order for anonymity or there would be a real and immediate risk to the personnel were anonymity to be granted. This is not a case relating to the administration of justice and I am not satisfied that those who seek a continuance of the anonymity order have demonstrated that the fear that the marines’ lives will be at risk is objectively well-founded.”

He concluded that the position had changed since his earlier ruling; other members of the patrol had been named. The MoD had made no submissions and the prosecution supported the release of the names.

He ruled that if any of Marines A, B and C was convicted he would be identified by name, rank and unit. If any were acquitted, the position had changed since his ruling of 12 November 2012; the names of other members of the patrol had been made public. The same should apply to Marines A, B, C, D and E. Although Marines D and E had not been represented, there was nothing they could add which would alter the Judge’s view. The Order was stayed pending appeal.

The verdict

On 8 November 2013, the Board of the Court Martial found Marine A guilty of murder but acquitted Marines B and C. The findings of the Board in relation to Marine A were set out in the sentencing judgment given on 6 December 2013:

“Having removed his AK47, magazines and a grenade, [Marine A] caused him to be moved to a place where [Marine A] wanted to be out of sight of your operational Headquarters at Shazad so that, to quote what [Marine A] said: “PGSS can’t see what we’re doing to him”. He was handled in a robust manner by those under [Marine A’s] command, clearly causing him additional pain, and [Marine A] did nothing to stop them from treating him in that way. When out of view of the PGSS (Persistent Ground Surveillance System) [Marine A] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving some first aid to stop. When [Marine A] was sure the Apache Helicopter was out of sight [Marine A] calmly discharged a 9mm round into his chest from close range. [Marine A’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearm lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence….. [Marine A] intended to kill him and that shot certainly hastened his death. He then told his patrol they were not to say anything about what had just happened and [he] acknowledged what [he] had done by saying that [he] had just broken the Geneva Convention. The tone and calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Marines B, C, D and E have returned to their units to continue their service in the Royal Marines.

The applications for leave to appeal

Two applications for leave to appeal were made.

The issue

It was contended that the Court Martial Appeal Court did not have jurisdiction to hear any of the applications or the appeals. This contention has to be resolved by the construction of statutory provisions governing the jurisdiction of the Court Martial Appeal Court – (a) the Court Martial Appeal Court Rules 2009 (the Appeal Rules) made under the provisions of s.163(9) of the Courts Martial (Appeals) Act 1968, as amended by s.169(3) of the Armed Forces Act 2006 and (b) the Court Martial Rules. The Appeal Rules differ in some respects from the Criminal Appeal Act 1968 (as amended) which sets out the jurisdiction of the Court of Appeal Criminal Division. This part of our decision is therefore solely referable to proceedings before Courts Martial.

It was agreed that if we determined that the Court Martial Appeal Court did not have jurisdiction in respect of the decisions of either of them, the Court could reconstitute itself as a Divisional Court of the Queen’s Bench Division and hear the application as if it had been made as an application for judicial review. It was common ground that the restriction in s.29(3A) of the Senior Courts Act 1981 did not prevent any such application:

“The High Court shall have no jurisdiction to make mandatory, prohibiting or quashing orders in relation to the jurisdiction of the Court Martial in matters relating to—

(a)

trial by the Court Martial for an offence; or

(b)

appeals from the Service Civilian Court.”

The determination of this issue makes little practical difference to the approach of the court. Nor does it make any difference to the route of any appeal from the decision of the Court Martial Appeal Court or the Divisional Court on these issues. It is common ground that where there is a right of appeal to the Supreme Court, it lies only on a point of law of general public importance.

Jurisdiction in respect of the application in relation to the Orders in respect of the video and stills

The media parties and the prosecution contend that the Court Martial Appeal Court had jurisdiction to hear the appeal by the media parties. The MoD contended that the Court Martial Appeal Court did not and the application should be made by way of judicial review.

It was not disputed that the jurisdiction of the Court Martial to consider applications in respect of public access and reporting is set out in Part 19 of the Court Martial Rules, Rules 152-154.

Rule 152 empowers the Court Martial to sit in camera. Rule 153 provides that the Court Martial:

“may give leave for any name or other matter given in evidence in proceedings to be withheld from the public”.

Rule 154 provides for appeals:

“A person aggrieved may appeal to the appeal court, with the leave of that court, against –

(a)

any order or direction restricting the access of the public to the whole or any part of any proceedings; and

(b)

any order or direction restricting the publication of any report of the whole or any part of a trial or any such ancillary proceedings.”

In our judgment, it is necessary to give Rules 153 and 154 a broad and liberal construction in the light of their purpose. In In Re Central Independent Television (1990) 92 Crim App R 154 this Court took a similar liberal approach to the corresponding provision in s.159 of the Criminal Justice Act 1988 in the light of its legislative purpose. It had been enacted to provide jurisdiction for a right of appeal against orders restricting publication which the Divisional Court held in R v Central Criminal Court Ex P Crook (Times 8 November 1984) it did not have. As we set out at paragraphs 49 and 83 and following, access to material used in court is governed by the common law principle of open justice. The default position is that access should be permitted to documents and other material which was evidence in the trial. The power to restrict that default position rests in Rule 153 as a Court Martial has no inherent power to make such an Order. As the law is clearly established, then it is in our view permissible to read Rule 154 as broad enough to encompass a decision by a judge in a Court Martial declining to permit access to such material under Rule 153.

Jurisdiction in respect of the application in relation to the Orders in respect of the lifting of the Order prohibiting identification

Although as we have set out at paragraph 7 above the Order made in 2012 prohibiting identification was made under Rule 153 of the Court Martial Rules and an appeal could have been brought against it by the media under Rule 154, it was contended by the media parties and the prosecution that no appeal could be brought by the Marines. That was because the Order lifting the prohibition on identification, far from restricting the publication of the names, permitted the publication. Given the express language of Rule 154, it therefore could not give jurisdiction to the Court Martial Appeal Court.

We accept that contention. Although we have given a very generous construction to Rule 154 in relation to appeal in respect of the Order refusing to make available the video and stills, we cannot see how we can construe the Rule in such a way that would contradict its express language which limits appeals to Orders restricting access or publication.

It was nonetheless contended on behalf of the Marines that they were entitled to appeal against the Order of 8 November 2013 on the basis that it was a ruling in preliminary proceedings, as preliminary proceedings are defined in the Court Martial Rules and in the Appeal Rules.

Part 6 of the Appeal Rules makes provision for appeals in preliminary proceedings and certain others. Chapter 1 of that Part makes provision for appeals against Orders made in preliminary proceedings. The first Rule in this chapter, Rule 27, provides:

“27.

– Application of Chapter 1

This Chapter applies where a party to preliminary proceedings or the director seeks permission to appeal against an order or ruling, other than a reporting or public access order, made in those proceedings.”

It is clear therefore that this Rule permits appeals against Orders (other than an Order restricting access, as this is governed by Rule 154 of the Court Martial Rules), if the Order was made in preliminary proceedings as defined in the Rules. Rule 2(2) of the Appeal Rules defines preliminary proceedings as follows:

““preliminary proceedings” means any proceedings of the Court Martial held for the purpose of –

(a)

arraigning a defendant on a charge; or

(b)

giving any direction or making any order or ruling for the purpose of trial proceedings against a defendant.”

In the Court Martial Rules, preliminary proceedings were defined in Rule 2 as:

“any proceedings of the court held for the purpose of arraigning a defendant on a charge or giving directions, orders or rulings for the purpose of trial proceedings”.

It was contended by the Marines that preliminary proceedings are so broadly defined that they are not restricted to Orders made prior to the commencement of the trial. We cannot accept this submission. It is clear that Rule 27 is directed at rulings and Orders made in the proceedings prior to the commencement of the trial at the court martial. The definition of preliminary proceedings must be given its ordinary meaning of proceedings prior to the trial. It is not therefore permissible to construe the rule as applicable to an Order made at the end of the trial just prior to the verdict. Our conclusion in this respect is consistent with the decision in R v Salih [1995] 2 Cr App R 347 on the similar wording in s.159 of the Criminal Justice Act 1988.

In the alternative, the Marines contended that they could rely on Rule 31 of the Appeal Rules which provides that Chapter 2 of Part 6 of the Rules (which encompasses Rules 31-36) applies only “where a person directly affected by a reporting restriction or public access order wants to appeal against the Order”.

We cannot accept this submission; Chapter 2 of Part 6 of the Appeal Rules covers the procedure for an appeal under Rule 154 of the Court Martial Rules. It does not confer jurisdiction, but regulates the procedure for the jurisdiction conferred by Rule 154 of the Court Martial Rules.

The Court Martial Appeal Court therefore has no jurisdiction to hear the application by the Marines for leave to appeal against the lifting of the Order prohibiting identification. We will consider that application as an application for judicial review before us sitting as a Divisional Court of the Queen’s Bench Division and set out our conclusion in Part B below.

We therefore turn to consider the applications sitting as the Court Martial Appeal Court in the appeal in relation to the video and stills and as a Divisional Court to hear the application in respect of the prohibition of identification by way of judicial review.

The applicable legal principles

The principle of open justice

It is an undoubted principle of the common law that material presented in open court should generally be released to members of the public, including journalists. In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, at paragraph 85, Toulson LJ succinctly expressed that principle:

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

The applicable guidance

There is no specific practice or procedural rule in the Court Martial Rules governing such applications by the public or media. The Judge, however, applied Rule 26 of the Court Martial Rules which enabled him to have regard to the Criminal Procedure Rules.

Rule 5.8 of the Criminal Procedure Rules sets out the procedure for such applications in the courts; it provides for the making of an application and where necessary a hearing. The approach to be taken by a court in any such application is governed by paragraph CPD 5B of Criminal Practice Directions [2013] EWCA Crim 1631. This part of the Practice Direction is intended to provide assistance to courts in cases where, although the principle of open justice is undisputed, the proper balancing of conflicting rights and principles calls for careful judgments to be made. CPD 5B.9 sets out a list of some of the considerations to which the court should have regard:

“i.

whether or not the request is for the purpose of contemporaneous reporting; a request after the conclusion of the proceedings will require careful scrutiny by the court.

ii.

the nature of the information or documents being sought;

iii.

the purpose for which they are required;

iv.

the stage of the proceedings at the time when the application is made;

v.

the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a 'public watchdog', by reporting the proceedings effectively;

vi.

any risk of harm which access to them may cause to the legitimate interests of others; and

vii.

any reasons given by the parties for refusing to provide the material requested and any other representations received from the parties.

Further, all of the principles below are subject to any specific restrictions in the case. Courts should be aware that the risk of providing a document may reduce after a particular point in the proceedings, and when the material requested may be made available.”

The court is therefore bound in a case such as the present to have regard to the rights of victims, parties, witnesses and any third parties whose rights may be engaged by the release to the public of material presented in court. In this case, as we have set out, the MoD and the Marines have put forward objections. The court is bound to have regard to those objections. But the fact that the MoD has raised the particular objections that it has raised, and not any other objections, does not relieve the court of the obligation to have regard to objections which may arise if the rights of third parties are to be safeguarded.

The position of journalists

The application in the present case was made by the media for the purpose of contemporaneous reporting. It was made whilst awaiting the verdict.

The identity of the applicant for provision of the material is not one of the factors listed in CPD 5B.9. However, in accordance with long standing practice and the recognition of the press as a “public watchdog” in a democratic society in cases such as Observer and Guardian v UK (1992) 14 EHRR 153, CPD 5B.26 makes special provision for guidance on access by legal representatives instructed by the media or accredited reporters who hold a card issued by the UK Press Card Authority Ltd.

This recognises, in a manner that can be readily applied, the special position of those who are journalists, a term which needs further explanation. In 1989, in A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 183B, Lord Donaldson MR observed that it was an error to suppose that:

"newspapers have a special status and special rights in relation to confidential information, which is not enjoyed by the public as a whole. ... the existence of a free press ... is an essential element in maintaining parliamentary democracy and the British way of life as we know it. But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed it is that of the general public for whom they are trustees.”

Since that time, the law has evolved under the Human Rights Act 1998 through Article 10 of the Convention. The right under Article 10 is given to all but, as interpreted by the Strasbourg Court, it is clear that those who inform public debate on matters of public interest as journalists (whether in the print, broadcasting or internet media) are accorded a special position, given the role of journalism in enabling proper and effective participation in a democratic society. It is the activity of journalism for which the person seeks the material rather than status as an employee of a media organisation that is decisive: see Commissioner of Police for the Metropolis v Times Newspapers [2011] EWHC 2705. The media parties who seek the materials in the present case do so to inform public debate on an issue of great public interest and therefore do so for the purposes of journalism.

Moreover, the media who brought this application are well known and highly regarded companies engaged, in the case of two of them, in broadcasting, and, in the case of the others, in the publication of news, both in print and online. They are British Sky Broadcasting, Guardian News and Media Ltd, News Group Newspapers Ltd, Independent Print Ltd and Associated Newspapers Ltd, (Times Newspapers Ltd, ITN and Telegraph Media Group joined in the application to the Judge, but not in this appeal). Although s.12 of the Human Rights Act 1998 was not relied on, it is relevant and the Court is required to have regard to it. It provides:

“(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which … which appears to the court, to be journalistic, … material (or to conduct connected with such material), to—

(a)

the extent to which—

(i)

the material has, …, become available to the public; or

(ii)

it is, or would be, in the public interest for the material to be published;

(b)

any relevant privacy code”.

All are bound by the relevant Codes - the broadcasters by the Ofcom Broadcasting Code issued under s.3 of the Communications Act 2003 and the other media organisations represented have all accepted to be bound by the Press Complaints Commission’s Editors’ Code of Practice (“the PCC Code”). As the Codes limit the use to which the media could put the images in question (to protect the privacy of the victim’s family and, in the case of the Ofcom Broadcasting Code, to prevent violation of human dignity, and to protect the public from harmful or offensive material and material likely to encourage or incite the commission of crime) it is relevant to take into account as a factor the provisions of the Codes as, assuming observance, there will be a less serious interference with the right of freedom of expression than there would otherwise be.

Images presenting a risk to the right to life

The objection to the release of the images raised by the MoD and the Marines was on the basis that if they, or some of them, were released, then that would result in a real and immediate risk to the British Armed Forces generally, and not only those who have been involved in the events giving rise to the prosecution of Marines A, B and C.

It was common ground that if the Judge was entitled to, and did, find that there was such a real and immediate risk (as explained in Re Officer L [2007] UKHL 36, [2007] 1 WLR 2135) then he was obliged to refuse the release of any images that gave rise to such a risk. The right to life (including the right to life under Article 2) is an unqualified right; there was no place for a balancing exercise.

It was also common ground that if the risk in question was not a real and immediate risk to life, or was a risk of interference with a qualified right, such as the right to private life of any person under Article 8, then the court would have to engage in the balancing exercise described in Re S [2005] 1 AC 593 at paragraph 16 and in Secretary of State for the Home Department v AP (No 2) [2010] 1WLR 1652 in order to decide whether it should, or should not, release the exhibits in question.

Images of the deceased and other victims of crime

The video and the category 1 images show a man who suffered very serious wounds in combat, and shortly afterwards became the victim of what was alleged and found to be a murder. He is shown before and after the murder, both in close up, and in the mid distance (a few feet from the camera). The video images show the very serious wounds he had already sustained when fired at by the helicopter. They also show a marine discharging a pistol into the living body of the victim, and his reaction to that.

Photographic images of individuals who have suffered very serious or fatal wounds used to be shown commonly to juries in criminal trials. In recent years such images have usually been replaced by diagrams, where possible. However, as in the present case, it sometimes is the case that recordings are made on phones or other portable devices of the inflicting of really serious injuries; as these show the actual crime being committed, sometimes in horrific detail or sometimes in a manner akin to torture, the jury have to see these recordings or clips from them. It has never been the practice to release such vivid photographs or recordings to the public for the purpose of them being used to illustrate reports of the proceedings.

That practice has a firm basis in law. First, it is accepted by the media parties that the use to which such images could be put by broadcasters governed by the Ofcom Code would be limited. There would also be limitations on the use to which such images could be put by those journalists who have accepted to be bound by the PCC Code.

Second, the court must have regard to the rights of the victim, including the family of the deceased, which are now widely recognised as an important part of any criminal proceedings. Of particular relevance is the right of the victim to his private life and to the right to private life of the family of the deceased. An illustration is provided by the decision of the Strasbourg Court in Hachette Filipacchi Associates v France - 71111/01 [2007] ECHR 5567 (14 June 2007); (2009) 49 EHRR 23. The French weekly magazine Paris Match had published a report of the murder of the Prefect of Corsica which had occurred a few days before the magazine in question was put into circulation. The article was illustrated by a photograph of the scene, taken moments after the murder, showing the Prefect's body lying on the ground, his face turned partly towards the camera. His widow and children sought an interim injunction, on the ground that the publication of the images was an intolerable interference with their right to their private life. The French court held that it was too late to stop further publication, but it ordered the publication of a statement in the next edition of the magazine:

“... The photograph of the body of [the Prefect] lying on the ground in a street in Ajaccio which appeared in edition 2543 of the weekly Paris Match, dated 19 February 1998, was published without the consent of [his] family, who consider its publication as an intrusion into the intimacy of their private life...”

The publisher complained that this was an interference with its rights under Art 10. The Strasbourg court held that there had been no violation of Art 10. The reasons included:

“48.

The Court considers that the grief felt by the victim's family should have led the journalists to show prudence and caution, as the circumstances of the death were violent and traumatic for the victim's family. It also attaches particular importance to the fact that the family had expressly objected to the publication of the photograph.

49.

Its publication in a widely distributed magazine intensified the trauma suffered by the relatives as a result of the murder, so that they had legitimate reason to consider that their right to respect for their private life had been infringed”.

Although not relied on by the parties, it is important for a court in this type of application to have regard to the rights of the victim and the family of the deceased. But, in bringing this right into account, we must have regard to the fact that is accepted by the media parties that the use to which such images could be put by broadcasters governed by the Ofcom Code would be limited. There would also be limitations on the use to which such images could be put by those journalists who have accepted to be bound by the PCC Code. In this judgment we have not had to consider what would be the position if such an application were made by journalists who are not bound by any relevant privacy code (including for example foreign journalists, and publishers of weblogs) or by writers of books on current affairs. But to the extent that the provisions of the Codes relating to privacy give effect to Article 8, and having regard to the Hachette case, it seems unlikely that it could make any difference if an applicant for images of the kind here in question were not bound by one of the Codes.

The decisions of the Judge

The video

After considering the evidence, the Judge found in his ruling of 28 October 2013 in relation to the videos that, if released, the video images would be distributed widely and broadcast both nationally and internationally. He had no doubt that it would be used as propaganda material by terrorist organisations to incite individuals to carry out terrorist attacks. He cited the recent unprovoked and random killing of an off duty soldier in the streets of London.

He considered the less intrusive measure of releasing the video images in a pixelated and edited form. He held that none of the proposed measures would ameliorate the general risk because the essential part of the video image and some of the dialogue would have to remain to be of any journalistic use. Its release would increase the threat of harm to British Service Personnel. He said he was not prepared to make an Order which may lead to the injury or death of a single member of the British Armed Forces, and that in making his decision he erred on the side of safety. He found that there was a risk to the lives of unidentifiable members of the armed forces which was both real and immediate.

The stills

In his ruling of 7 November 2013 in relation to the still images the Judge adopted the same approach to the images in Category 1 (which showed the deceased (before or after his death) in whole or in part) and to the images in Category 2 which showed Marines in some detail, including a Marine holding a pistol which, as is common ground, he did not fire. The victim does not appear in the images in Category 2.

The Judge reached the same conclusion in relation to the still images in Category 1 as he had in relation to the video images, namely that their release would result in a real and immediate risk to the life of British Service Personnel.

In relation to Category 2 he concluded he was not persuaded that the images (other than those which showed a Marine holding a pistol) would increase the risk already faced by British Service Personnel to one where there is a real and immediate risk to life.

The Judge left over, as we have set out at paragraph 20, for further consideration whether images which do show a marine holding a pistol should be released. But he has not made a further decision on those images yet.

Our conclusion

The findings made by the Judge

In her clear and careful submissions, Miss Kissin sought to demonstrate that the Judge had been wrong on the evidence before him in reaching the conclusion that the making available to the media of the video and the stills in Category 1 and the four stills in Category 2 (11, 12, 13 and 37) would pose a real and immediate threat to the lives of members of the British Armed Forces. She submitted that his evidence properly understood was evidence of the risk of radicalisation or incitement to terrorism and not of a real and immediate risk to life.

We have very carefully considered the evidence of Mr Mott (summarised by the Judge in his ruling of 28 October and 7 November) and the other material.

We can find no basis for assailing the findings that the Judge has made. It follows that he was entitled to make the Order refusing to release those images.

The other images in Category 2

The MoD has not appealed against that part of the decision of the Judge whereby he held that some of the Category 2 images should be released. Those images did not show the deceased insurgent or any act of violence. We have considered the remaining stills in Category 2 on which the Judge did not make a decision; we did not see any real basis on which their release to the media could be refused, but that was a matter for the Judge. We were told after we had handed down our decision that no one wished to make further submissions to the Judge. We therefore made an Order permitting the release of the further stills in Category 2.

Other considerations

As the Judge rightly based his decision on his finding on the real and immediate risk to life, he did not have to take into account any other considerations.

However, as we have set out, in the Crown Court images of seriously wounded and deceased victims of crime may be shown to the jury. A risk to life as a result of their release is unlikely to be common. We therefore wish to make clear that there are considerations for not releasing the images of the deceased other than the risk to life.

The general publication of video images of a murder or violent attack, and of still images of a murdered or injured body, are likely to amount to a serious interference with the private lives of the victim’s family (and of the victims themselves, if still alive). Whether in the present case that (or any of the other considerations mentioned in the Codes) would be an independent reason why the images in question should not be released has not been argued, and we do not need to express any view. But in any future application to a criminal court for the release of such images it is to be expected that the advocates for the applicant will draw to the attention of the Judge the likely impact of the release of such images on the victim’s family (unless the victim’s family have consented to the proposed release, or are represented in court) and upon the public. In such a case, the court would have to balance that consideration against the principle of open justice and any public interest in making the video or images available.

We have set out in the judgment of the Court Martial Appeal Court the background, the rulings made by the Judge and the reasons for concluding that the Court Martial Appeal Court had no jurisdiction.

We therefore treat the applications of Marines A, B, C, D and E as applications for judicial review of the decision of the Judge on the prohibition of identification handed down on 8 November 2013.

The applicable principles

The importance of open justice

It is common ground that the starting point for the consideration of the issue is open justice. There are many expressions of this principle of the common law: one is that of Lord Diplock in A-G v Leveller Magazine [1979] AC 440 at 449-50:

“As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncracy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”

Another is that of Lord Steyn in Re S (a child) [2005] 1 AC 593 at paragraph 18:

“In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.”

It follows from this that a defendant in a criminal trial must be named save in rare circumstances. After emphasising the importance of open justice, Lord Steyn in Re S (a child) made clear at paragraph 30 that the:

“full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”

He then set out a number of considerations why the naming of a defendant in that case should not be enjoined, including at paragraph 34 that:

“..., it is important to bear in mind that 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.”

See also the judgment of Sir Igor Judge P in re Trinity Mirror plc and others [2008] EWCA Crim 50, [2008] QB 770 at paragraph 32.

However the Court has a power to withhold the name and address of a defendant in cases where circumstances justify that: see R v Evesham Justices Ex P McDonagh [1988] 1 QB 553 and R v Winchester City Council Ex P Castelli [1996] 1 CLR 534. As Watkins LJ observed in Ex P McDonagh at p.561, such cases would be rare. Any derogation from open justice, and any interference with the right to report a criminal trial, must be both necessary and proportionate.

A structured approach to restrictions on open justice in the reporting of criminal trials

In our view, applications to restrict reporting of criminal proceedings should be approached in a structured way. For example, in considering whether reporting restrictions should be imposed, the Court of Appeal Criminal Division set out in Ex p Telegraph [2001] EWCA Crim 1075; [2001] 1 WLR 1983 para [22] a three stage test. That was approved in Independent Publishing Co Ltd v A-G of Trinidad and Tobago [2004] UKPC 26 at [69]; [2005] 1 AC 190) by the Privy Council in the following terms:

“in considering whether it was 'necessary' both in the sense under section 4(2) of the 1981 Act of avoiding a substantial risk of prejudice to the administration of justice and therefore of protecting the defendants' right to a free trial under article 6 of the Convention and in the different sense contemplated by article 10 of the Convention as being 'prescribed by law' and 'necessary in a democratic society' by reference to wider considerations of public policy, the factors to be taken into account could be expressed as a three-part test;

that the first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings, and if not that would be the end of the matter;

that, if such a risk was perceived to exist, then the second question was whether a section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be 'necessary' to take the more drastic approach;

that, thirdly, even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage value judgments might have to be made as to the priority between the competing public interests represented by articles 6 and 10 of the Convention ..."

We consider that the court should approach the making of an Order that a defendant be not identified in a similar way. The starting point is, in our judgment, the duty of the court, as a public authority, to ensure compliance with the principles (1) of open justice, and (2) that there be no interference with an individual’s rights under Articles 2 and 3, and (3) no unnecessary or disproportionate interference with (a) the rights of the public under Article 10 (having regard to the position of the media under s.12 of the Human Rights Act), and (b) of any relevant individuals under Articles 8.

As open justice is so important a principle, an Order that a defendant be not identified will not be necessary, if some other measure is available to protect those rights of the individuals, and that other measure would be proportionate. In other cases alternative measures have been taken, most notably in Venables v News Group [2001] Fam 430. No Order was made at the trial of Venables and Thompson that they be not named (there was an order restricting reporting of their names, which was lifted at the end of the trial). Subsequently these defendants changed their names, and Orders were made to prohibit the disclosure of their identities under their new names.

A positive obligation under Article 2 to make an Order arises only when the risk is real and immediate, as was made clear by Lord Carswell in In re Officer L and others [2007] 1 WLR 2135 at paragraphs 20 and 21. The standard is based on reasonableness. The court is therefore not required to make an Order that a defendant be not named where to do so would involve unreasonable practical difficulties. It may be that the court is not obliged to make an Order where there are countervailing considerations of public interest.

“It has not been definitively settled in the Strasbourg jurisprudence whether countervailing factors relating to the public interest-such matters as the credibility of the inquiry and its role in restoring public confidence-as distinct from the practical difficulty of providing elaborate or far-reaching precautions, may be taken into account in deciding if there has been a breach of article 2. It does appear that it may be correct in principle to take such factors into account (cf In re Donaghy's Application [2002] NICA 25(1) and In re Meehan's Application [2003] NICA 34), but I would prefer to reserve my opinion on the point.”

If the Court is not obliged to make an Order under Article 2 (because there is no real and immediate risk to life), then whether it is obliged to make the Order, or obliged not to make it, will depend on the outcome of the balancing exercise described in Re S paragraphs 16 and 17. Or, as now expressed in a summary of the law in Guardian News and Media and AP (No 2) [2010] 1 WLR 1652 at paragraph 7:

“whether there is sufficient general public interest in publishing a report of the proceedings which identifies [the defendant] to justify any resulting curtailment of his right and his family’s right to respect for their private lives”.

When the court has applied the relevant test, it does not have any discretion, as the court is under a duty to either grant the derogation or refuse it: see Global Torch Ltd v Apex Global Management Ltd [2013] EWCA Civ 819; [2013] 1 WLR 2993 paragraph 22 setting out the Practice Guidance (Interim Non-Disclosure Orders) issued by Lord Neuberger of Abbotsbury MR [2012] 1 WLR 1003 at paragraph 11).

A structured approach in this case

We consider that a structured approach to the questions that arise in this case is achieved by posing a series of questions which we set out below in our analysis of the ruling of the Judge on 8 November 2013 lifting the Order prohibiting identification.

The rulings of the Judge.

The Judge gave reasons for imposing an Order prohibiting identification on 6 November 2012 as we have set out at paragraphs 10-12. That Order was lifted as we have set out at paragraphs 24-25 on 8 November 2013. The only material Order is that of 8 November 2013, but it is helpful to consider the ruling made on 6 November 2012 through use of the same questions.

Is there any risk of an interference with any common law fundamental rights, or any Convention right (‘any relevant right’), of the Marine, if he is named?

On 6 November 2012 the Judge found at paragraph 15 (as we have set out at paragraph 10 above), that publication of the Marines’ names would increase the risk to their lives and to those of their identifiable families and friends.

On 8 November 2013 the Judge found at paragraph 15 (as we have set out at paragraph 24 above) that he was not satisfied that the fears of the Marines ‘that their lives will be at risk’ were objectively well founded. This appears to be a finding that there was no material risk to their lives greater than that faced by other members of the armed forces. He does not address the risk of interference with any other right.

If there is a relevant risk of an interference with any relevant right, would an Order prohibiting identification be effective to prevent such interference?

The Judge did not address this question in either ruling. He assumed it would, as that is what Mr Tucker-Jones suggested.

If there is a relevant risk of an interference with any relevant right, and an Order prohibiting identification would be effective to prevent that, is any alternative measure available effectively to protect the rights of the Marine, that is to say, a measure not involving a derogation from open justice and/or an interference with the rights of the public under Art 10?

On 6 November 2012 the Judge found at paragraph 16 (as set out by us at paragraph 11 above) that no other measures would be satisfactory. But he does not identify what other measures he had considered.

On 8 November 2011 the Judge did not address this question.

If there is no alternative measure available effectively to protect the rights of the Marine, would naming the Marine create, or materially increase, a real and immediate risk to his Art 2 or 3 rights?

On 6 November 2012 the Judge found at paragraph 18 (as set out at paragraph 12 above) that publication of the names of the Marines would create or increase a real and immediate risk to their lives and to those of their identifiable families and friends, despite the earlier finding he had made at paragraph 15 of his ruling which we have set out at paragraph 10 above.

On 8 November 2013 the Judge found at paragraphs 13 and 15 (as set out at paragraph 24 above) that there was no real and immediate risk to life.

If there is no alternative measure available effectively to protect the rights of the Marine, and naming the Marine would not create, or materially increase, a real and immediate risk to his Art 2 or 3 rights, would an Order prohibiting identification be a reasonable measure to take having regard to the degree of risk and rights under Article 8, and to countervailing factors relating to the public interest and, if so, what is the outcome of the ‘ultimate balancing test’?

On 8 November 2013 Judge did not address this question, which did not arise on his findings.

Our conclusion in respect of Marines A, B and C

The finding of the Judge in relation to a threat to life

The finding made by the Judge was that there was no real and immediate threat to the lives of Marines A, B and C. That was a finding that was plainly open on the evidence to the Judge, once he had concluded that he found the evidence of Mr Tucker-Jones unconvincing.

Given this finding, his conclusion that an Order prohibiting identification was not required to comply with the obligations under Article 2 was unassailable.

Other considerations which might lead to the making of an Order prohibiting identification

However the Judge did not address, on the basis of the law as we have set out at paragraph 90, conducting the balancing exercise as set out in In Re S (a child).

We have considered therefore whether we should quash the Order and remit the matter to the Judge for him to conduct that balancing exercise and to apply the other steps we have set out, including determination of whether there were alternative measures.

In examining the submission to this effect, we have taken into account the further statement of Mr Anthony-Tucker Jones dated 14 November 2013 and a further assessment by JTAC.

The assessment by JTAC concluded:

“Because anonymity orders are in place, JTAC currently assesses that an attack against the RM individuals who are the subject of these proceedings is broadly in line with that for all defence personnel in the UK. However JTAC judge that, if they were to be publically named, the potential threat to Marines A-E from Islamist extremists would increase. Furthermore, it is possible that the release of any personal information might encourage attack planning where none had previously existed.”

We take this into account; we have paid less attention to the statement of Mr Tucker-Jones, in the light of the Judge’s conclusions about him, and our own reading of his statement which added nothing material to what he had said on previous occasions; where it did, as in the case of the threat to Marine A in prison, it was of little value. However, taking into account the further assessment from JTAC and what was before the Judge, we proceed on the assumption that question (i) is answered in the affirmative.

We will also assume that question (ii) should be answered affirmatively in what we assume was the Judge’s approach and that question (iii) should be answered in the negative, as the Judge decided in his judgment of 6 November 2012. We would observe that there is little material before us on whether an Order prohibiting identification would be effective to prevent an interference with the rights of any particular Marine and there is nothing to suggest that alternative measures would not be effective, but we are prepared to proceed on the assumptions we have stated.

Marine A

We therefore turn to consider question (v) in relation to Marine A on the materials before us, as question (iv) has been determined by the decision of the Judge which we consider unassailable.

The case is of the greatest public interest, involving as it does a unique charge of murder against soldiers on military operations against a wounded detainee. There is therefore the greatest public interest in the whole of the proceedings being publicly reported. As was observed in In Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 by Lord Rodger at paragraph 63:

“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. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.”

In the case of Marine A, there is the greatest public interest in knowing who he was and his background, given his conviction. It would require an overwhelming case if a person convicted of murder in the course of an armed conflict were to remain anonymous.

As against that, there is a risk to Marine A that he will be attacked in prison and after his release from what will have to be a life sentence. The prison authorities will be well aware of that risk and take steps to minimise it, as they do for other offenders at risk of attack in prison such as paedophiles.

There is the threat as assessed by JTAC to his family and to Marine A on his release under licence from his life sentence. It is a known risk. The MoD has taken steps in the past to protect the families of the Marines. There is nothing to suggest that they would not in the future.

Balancing those considerations, we have no doubt that the balance comes very firmly down on the side of open justice; the identity of Marine A must be made public.

Marines B and C

The public interest in open justice which we have set out in relation to Marine A at paragraph 111 is the same. It can make no difference that B and C were acquitted.

The evidence, such as there is, appears to be that the names of at least some of the Marines are known at least to some journalists. The other members of the patrol have been named without adverse consequences.

We have taken into account the fact that the Judge had said in his ruling of 6 December 2012 that those acquitted would not be named; that was a decision that he made clear would be reviewed and no expectation could arise from it.

The risk to these two Marines was not immediate. They have returned to service. The MoD has taken steps to protect them; arrangements have been made with the local police in respect of their families. There is nothing to suggest that this will not continue. In the circumstances, it would not be reasonable to make so substantial a derogation from open justice as to prohibit the identification of any of the defendants B and C. The risks to the Art 8 rights are not, in this case, sufficient to outweigh the importance of open justice.

Although not mentioned by any of the parties, we must also bear in mind that Orders prohibiting identification of the accused carry dangers to third parties where, as here, there are other people with some innocent involvement in the events giving rise to the charges. If the names of the accused are not known, attempts at revenge may be directed to others present at the same time as those whose names have been published.

Our conclusions in respect of D and E

It was the essential complaint of Marines D and E that they had not had an opportunity of making submissions. They were not heard as we have set out at paragraphs 22 and 26. Although applying the principles we have set out, these Marines would face an uphill struggle based on the JTAC assessment before us, we remit the matter to be considered by the Judge, as in the case of one, there are special circumstances that the Judge may wish to take into account.

The initial ruling

We can well understand the reasons why the Judge made the initial ruling he did on 6 November 2012; we do not say anymore, as the ruling was not appealed and no argument was directed at it. For the future, we would observe that if any such ruling is made at an initial stage, it should be reconsidered with the benefit of full argument and evidence immediately before the trial starts. By that time the issues will be clearer and questions we have set out can be fully reviewed. The trial can then be properly reported in accordance with the principles so clearly set out by Lord Diplock, Lord Steyn and Sir Igor Judge.

We made our decision in this case available before we handed it down. It was communicated far more widely than we had permitted. It is of the utmost importance that those to whom draft judgments are provided abide by the terms on which they are provided: see CPS v P [2007] EWHC 1144 (Admin). A court will always take a very serious view of any breach. It will treat it as a contempt of court with the penal sanctions that apply.

I agree with all that my Lords have said in Part B of the judgment as to the need for a structured approach to restrictions on open justice, as to what that approach should be, and as to the applicable principles. I respectfully differ from them in part of my analysis of the Judge’s ruling of 8 November 2013, and therefore in my conclusion as to the appropriate order in the cases of Marines B and C. I can state my reasons quite briefly.

In the passage from his ruling which has been quoted in paragraph 24 above, the Judge criticised the evidence of real and immediate risk which had been given by Mr Tucker-Jones, and concluded that there were no objectively well-founded reasons for Mr Tucker-Jones’ opinion as to the existence of such a risk. I agree with my Lords that the Judge was entitled to reach that conclusion, and that accordingly his rejection of the Marines’ argument based on Article 2 is unassailable.

However, as my Lords have pointed out, the Judge did not go on to conduct the balancing exercise which he should have conducted. The Article 10 right of the media, as representatives of the public, was plainly engaged, and in any balancing exercise the court would have been obliged to have particular regard to the importance of that right; but the Article 8 rights of the defendants and their families were also engaged. As Lord Steyn said at paragraph 17 of his speech in In re S, where the values under Articles 8 and 10 are in conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary”. Here, there was no such intense focus. Indeed, the balancing exercise was not addressed by the Judge at all.

In fairness to the Judge, it must be said that both the evidence and the submissions put before him on 7 November 2013 were concentrated on the issues between the parties as to the defendants’ Article 2 rights. Those issues in turn became focused upon the question whether there was a real and immediate risk to the lives of the defendants. It is therefore not difficult to see how the Judge came to miss out a necessary step in his reasoning. He did, however, fall into that error. Having concluded that the evidence did not establish a real and immediate risk to life, and having rightly observed that this was “not a case relating to the administration of justice”, he failed to go on to consider whether the balancing of competing Article 8 and Article 10 interests should result in an order prohibiting identification of some or all of the defendants. Thus question (v) – identified in paragraph 101 above – was not addressed as it should have been.

I agree with my Lords’ conclusion, in paragraph 115 above, that in the case of Marine A there could only be one answer to question (v): the balance would come down very firmly on the side of open justice, and the identity of Marine A must be made public.

I also agree with the conclusion at paragraph 121 that the cases of Marines D and E should be remitted to the Judge so that they can make the submissions which they have thus far had no opportunity to make.

As to Marines B and C, however, I must respectfully disagree with my Lords’ conclusion. As I have indicated, the evidence and argument before the Judge had concentrated on whether there was a real and immediate risk to the lives of the Marines. However, from the transcripts which have been put before us, it does not appear to have been disputed that there was some risk to the Marines and their families, though the argument of the prosecution and the media was that the risk was contingent upon persons acting in a particular way, and was therefore not “immediate”. The JTAC assessment quoted in paragraph 107 above identified a risk. Moreover, the evidence showed that only a small group of marines had been in close proximity to the deceased when he was murdered. There was no evidence to contradict Mr Tucker-Jones’ opinion that, if all the Marines were named on jihadist websites, some persons who saw it as their duty to punish or avenge the murder of a Muslim by a British soldier in Afghanistan might not regard the verdicts of the Court Martial as a reason for distinguishing between a defendant who was convicted and a defendant who was acquitted. In those circumstances, and having regard to the context of the preceding passage in the Judge’s ruling, I cannot regard the closing words of paragraph 15 of the ruling (quoted in paragraph 24 above) as a finding that there was no objective basis for finding any risk to the lives of the defendants. It is to my mind clear that he was only making a finding about the absence of an objective basis for finding a real and immediate risk to life.

For my part, I do not think it possible to say that the Judge could only have reached one conclusion if he had conducted the appropriate fact-specific proportionality exercise in the cases of Marines B and C. Without for a moment doubting the importance of the principle of open justice, I think it arguable that the acquitted defendants were not necessarily to be equated with the convicted Marine A in conducting that balancing exercise. Indeed, on 6 November 2013 the Judge had himself expressed a provisional view that the order prohibiting identification would remain for any defendant who was acquitted, but would be removed from any defendant who was convicted. I agree with my Lords that that provisional indication did not give rise to any legitimate expectation of such an outcome; but it was at least an indication that such a distinction might be justified.

I also think it arguable that in the particular circumstances of this case the dangers to third parties, to which my Lords rightly draw attention in paragraph 120, would not be a significant consideration: no third parties had been accused of being part of the small group alleged to have been jointly involved in the murder. Marines B and C had been so accused. The media had been able to report the trial fully, save only for the names of the defendants, and the evidence which was adduced against Marines B and C was therefore known to the public. It was in my view therefore arguable that they and their families were at particular risk when compared to military personnel generally, or to other Marines in the patrol in particular, even though they had been acquitted.

Further, if such a risk were accepted by the Judge, I think it arguable that no measures other than an order prohibiting identification would suffice to protect Marines B and C and their families. The arrangements made by the MoD to protect them would in my view require careful assessment as part of the balancing exercise.

For those reasons, if the necessary balancing exercise had been conducted, the judge in my view could legitimately have concluded that the Article 8 rights of Marines B and C (who had been found not guilty of any crime) should prevail over the Article 10 right of the media (who had been able to report the trial in full, and are now able to name the convicted murderer). Thus the failure to address the balancing exercise was a serious error. I would therefore have quashed the order in relation to Marines B and C and remitted their cases to the judge to conduct the balancing exercise.