Yalland & Ors v Secretary of State for Exiting the European Union

LORD JUSTICE LLOYD JONES: This is the judgment of the court to which both members have contributed.

In the four cases brought by W, L, T and B, an application for anonymity was made in the grounds annexed to the claim form issued on 29 December 2016. Paragraph 62 simply stated:

Knowles J in his order of 30 December 2016 ordered that:

By letter dated 9 January 2017 to the Administrative Court, David Tang and Co, solicitors for these Claimants, informed the court that one of the counsel to these Claimants had received what he described as a death threat.

An application for anonymity for these Claimants was then made by application notice issued on 13 January 2017. The relief sought was as follows. First, an order for anonymity for these Claimants. Secondly:

The application was supported by a witness statement by T dated 13 January 2017. That was made on behalf of all four of these Claimants. It stated inter alia that the four Claimants are "migrant litigants". They were aware of the death threats received by the lead Claimant in the case of Miller and had grave concerns that they would be subjected to the same.

It stated that the Claimants all feared for the safety of their children. It referred to the fact that Knowles J had granted anonymity in respect of their addresses and the names of their children. However, it stated that they were concerned that if they were not granted full anonymity of name, it would be possible for people to identify them using modern means of research. They were extremely worried that if their identities were revealed, they and their children would be subjected to death threats such as those received by Ms Miller and their counsel.

They stated that whatever the outcome of Miller might be, some members of the public might view this action as a delaying tactic and behave badly towards them and their children. Referring to a Twitter post sent to one of their counsel, they submitted that it was far from unreasonable to fear that they might be subjected to "unsavoury behaviour" should their identities become public. They were concerned about any hate crimes that they may be subjected to as a result of their ethnic identity and as EU, EFTA and non-UK nationals.

A hearing took place before Cranston J on 17 January. He made an interim order with respect to anonymity of these four Claimants. He heard Mr Chelvan for the Claimants and invited anyone from the press in court to make representations about the matter. Mr Brian Farmer from the Press Association told him that it had not been notified of the application and that he was not in a position to make representations at that time.

At that hearing, Cranston J said that he considered that that there was a strong case for ordering anonymity. He therefore made an order for anonymity on an interim basis until the media were able to make written representations. He gave a direction that the Press Association and any other media organisations should contact the court and/or file written submissions if they opposed the granting of anonymity by noon on Friday, 20 January.

On 20 January, Cranston J received written submissions from Mr Aidan Eardley of counsel on behalf of a number of major media organisations. I shall refer to them as the relevant media organisations. Mr Eardley submitted that the interim order was in derogation of the principle of open justice and an interference with the rights of the media under Article 10 of the European Convention on Human Rights. He submitted that it was relief to which section 12 of the Human Rights Act 1998 applied and to which the Master of the Rolls' Practice Guidance [2012] 1 WLR 1003 applied directly or by analogy.

He made the point that the media had not been notified of the application in advance and had not been served with the material relied on by the Applicants. He submitted that in those circumstances, it was impossible to assess whether the interim order was properly imposed or should be continued. He submitted that the court should direct that the Applicants serve on them their applications, judicial review claim and any evidence relied on in support of the applications. He also asked for an extension of time to prepare substantive submissions.

The Claimants filed a further skeleton argument dated 20 January in which they opposed the application for disclosure to the relevant media organisations on the ground that the media also sought permission to publish certain documents that currently included the identity of their Claimants.

In his order dated 23 January 2017, Cranston J continued the interim order until the hearing of the renewed application or further order. He also gave the media organisations permission to make written submissions at that hearing regarding the continuation of the anonymity order.

In giving his reasons, the judge stated that the open justice principle was crucial and that to grant anonymity to the Applicants would be contrary to that principle. However, it seemed to him that there was a real risk to the personal safety of the Claimants if their names were not anonymised. The judge did not make an order for the disclosure to the relevant media organisations of the documents on the basis of which the application for anonymity was originally made.

In further submissions dated 1 February 2017, the relevant media organisations complained about the procedure which had been followed in this case. They submitted that they should have been given notice of the Claimants' applications for anonymity at least in advance of the hearing on 17 January. They also submitted that they should have been provided on a not for publication basis with the evidence on which the application for anonymity and the order were based. Here they referred to the Practice Guidance [2012] 1 WLR 1003 and A Healthcare Trust v P and Q [2015] EWCOP 15. They then made their submissions on the substance of the application as best they could given that they had not seen the basis of the application.

When the submissions of the relevant media organisations dated 1 February came to the attention of the members of this court, we made an order on the same day, 1 February, that the relevant media organisations be provided with the application notice dated 13 January, the witness statement by T dated 13 January and the skeleton argument dated 16 January with the Claimants' names and addresses redacted. The relevant documents were then disclosed to the legal representatives of the relevant media organisations in accordance with that order.

We observe that it is unfortunate that the procedures set out in the Master of the Rolls' Practice Guidance were not followed in this case.

The relevant media organisations then lodged further submissions dated 2 February. Later on 2 February, the legal representatives of these Claimants lodged a bundle of material described as supporting documents on anonymity. The bundle comprised extracts from newspaper reports. At the hearing this morning, counsel for these Applicants undertook to file a witness statement exhibiting the documents relied upon.

The requirement that justice should be administered openly and in public is a fundamental tenet of our legal system. The administration of justice must be open to public scrutiny. This principle is inextricably linked with that of freedom of speech and in particular the freedom of the press and other media to report court proceedings: see A v BBC [2015] AC 588 per Lord Reed at paragraphs 23 to 26.

Civil Procedure Rules Part 39.2 provides that the court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness. However, any such exception to the principle of open justice must be strictly justified as turning on necessity.

The position at common law broadly reflects the position under the European Convention on Human Rights. Thus, in particular, the right to life under Article 2 and the right to family and private life under Article 8 can qualify the right to a public hearing under Article 6 and the right to freedom of expression under Article 10. Section 12 of Human Rights Act 1998 applies to this application. In particular, the court must have particular regard to the importance of the Convention right to freedom of expression.

Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests. The starting point must be that in a Parliamentary democracy subject to the rule of law, a person who wishes to bring a public law challenge to the conduct of the Government on the ground that it is unlawful should normally be expected to do so openly and to identify himself or herself in the process.

Any exception to the principle of open justice will have to be shown to be strictly necessary in order to protect the interests of the administration of justice. The burden of establishing any derogation from the general principle rests on the party seeking it. It must be established by clear and cogent evidence.

Mr Eardley in his very helpful submissions draws attention to the observations of the Master of the Rolls in R v Legal Aid Board, Ex Parte Kaim Todner (A Firm) [1999] QB 966 where, in a very different context, he stated that it is not unreasonable to regard a person who initiates legal proceedings as having accepted the normal incidence of the public nature of court proceedings. We agree.

However, members of the public should be able to bring a legal challenge such as the present without an objectively justified fear as to the possible repercussions for their or their families' safety. In the present case, these Claimants rely on what they say is a clear risk to their safety and the chilling effect on litigation if their identities were known. They do not suggest that any other consideration, taken individually or cumulatively, would justify an exception to the principle of open justice.

What then is the evidence of a risk to the safety of the Claimants or their children? First, they rely on threats which are said to have been made to Ms Gina Miller, the lead Claimant in the proceedings relating to Article 50 TEU. The bundle of press cuttings lodged includes reports of what those threats may have been. However, the Claimants have not adduced any direct evidence as to the nature or extent of those threats.

Nevertheless, the press reports do provide some evidence that Ms Miller has received death threats and other threats and racist abuse through social media and in letters, that she has received telephone calls in which people screamed and shouted at her and that people have followed her to work. They provide evidence that she has received letters which included cut and paste images of her being shot, beheaded and gang raped. She was reported as saying that she had been told that she would be raped, murdered, that she would have to witness terrible retribution being inflicted on her family and that she would be "the next Jo Cox."

The police are said to be investigating two cases of intimidation of Ms Miller. One person offered a reward of £5,000 to anyone who would run Ms Miller down. Eight cease and desist orders have been issued by the police.

The police have made two arrests. In December 2016 a man was arrested in Swindon on suspicion of making racially aggravated malicious communications to Ms Miller from 3 November 2016 onwards. He was later released on bail and the papers sent to the CPS, who recommended that no further action be taken. A second man was arrested in London in January 2017 on suspicion of making racially aggravated malicious communications to Ms Miller.

The press reports indicate that she had stopped using public transport. She had stopped going to her place of work. She had installed security in her home and she had employed bodyguards.

Secondly, these Claimants rely on the grant of anonymity to certain of the Claimants in the Article 50 proceedings. These Claimants before this court produced no evidence of the basis on which this relief was granted or even a copy of the orders made. However, at the hearing this morning we were provided by Mr Eadie QC, appearing on behalf of the Secretary of State, with copies of the order.

The order was made on 26 July 2016 by the President of the Queen's Bench Division and Cranston J sitting as a Divisional Court. They ordered that the names of certain Claimants identified in a letter should be redacted and kept strictly confidential. We also note that in a recital of the order, that Divisional Court stated:

During the short adjournment following the completion of argument on this issue this morning, we were provided by the Claimants with copies of further orders granting anonymity in the Miller proceedings, including an order by the Supreme Court dated 5 December 2016. We were also provided with summary grounds in those proceedings dated 18 August 2016.

Thirdly, these Claimants rely on a communication by social media to one of the barristers acting for them in these proceedings. It is clearly linked to and motivated by his role in representing these Claimants in this case because it refers to the European Union. On any objective standard, this communication is deeply offensive. It is racially derogatory. While it may or may not be capable of being construed as a threat to kill, it clearly implies that the barrister deserves to be killed. It makes foul implications about refugees and persons of the Islamic faith.

We are unimpressed by the failure of the Claimants' representatives to provide evidence in appropriate form of the risk which they say is present to their clients in this case. Nevertheless, on balance, we are satisfied that given the nature of the threats in closely related proceedings and the orders made in those proceedings and also given the communication already received by one of their legal representatives and the personal characteristics of these Claimants, that a real risk of their being exposed to violence, threats of violence and other criminal acts is demonstrated.

We have not heard detailed argument on the proper approach to be adopted in such circumstances. We have considered In Re: Guardian News and Media [2010] 2 AC 697, in particular at paragraphs 63 to 75, and Secretary of State for the Home Department v AP No 2 [2010] 1 WLR 1652.

We have nevertheless sought to assess whether there is here a sufficient public interest capable of outweighing the risk to the Claimants. We consider that matters such as the Claimants' nationality, status and personal situation may make a material contribution to the public debate on the issues in this case. However, the following facts concerning these Claimants are already in the public domain. The First Claimant is a Norwegian national who has been exercising her Treaty rights as a worker in the United Kingdom since 2009. She is married to the Second Claimant. The Second Claimant is a third country national, the non-EEA national spouse of the First Claimant. The First and Second Claimants have been granted permanent residence in the United Kingdom. The Third Claimant is a dual Irish/United Kingdom national. She is a qualified solicitor and exercises Treaty rights by providing legal services. She is married to the Fourth Claimant. The Fourth Claimant is a Spanish national who carries on a business supplying goods from Spain to other countries throughout the European Union and the European Economic Area. The order which we propose to make will not restrict disclosure of that information.

We consider that in this particular case to publish the names of the Claimants would add little, if anything, to a proper understanding of these proceedings and the issues involved. Furthermore, the issues are such that the proceedings and the result are likely to be widely reported and read irrespective of any inability to name the Claimants. This is not a case in which the grant of anonymity to the Claimants will impede public debate of the issues involved.

In these circumstances, having given careful and anxious consideration to the issue, we are satisfied that we should make an anonymity order. We consider that there is no public interest arising from the publication of the names of the Claimants which could possibly outweigh the risk that we have found in the present case. We are satisfied that the restrictions on reporting which will result are the least restrictive means of avoiding the risk to the Claimants whilst allowing the fullest possible public debate of the important issues in this case.

We make no observation on the case advanced on the basis of a claimed chilling effect on litigation.

Finally, we make clear that the order prohibiting the publication of the addresses of these Claimants and any details relating to their children is not challenged and remains in force.

We give permission for this judgment to be referred to in court in legal proceedings.