No basis for murderer's anonymity and an alert from the bench

Four media groups[1] have successfully challenged an anonymity order and related reporting restrictions made in the course of judicial review proceedings brought by the notorious murderer, David McGreavy.

In its decision setting aside the restriction, the Court warned of the dangers inherent in applications in the Administrative Court made at the last moment and "by consent".

A copy of the decision is available here.

Mr McGreavy is serving a life sentence for the brutal murder and mutilation of three young children in April 1973. In late 2011 he commenced judicial review proceedings challenging the Parole Board's decision not to recommend his transfer to open conditions. At the substantive hearing of that application in January 2013 Mr McGreavy made an oral application for an order under CPR 39.2(4) that no report of the proceedings should name him. The hearing was in public. The media was not notified of the application in advance, no claim form was issued and no witness evidence was put before the court outlining the evidence justifying the interference with Article 10.

The media challenged the order, as did the Secretary of State for Justice, an interested party to the proceedings. Mr McGreavy's position, as developed in evidence in response to the challenge, was that the order was necessary to protect his rights under Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security) and 8 (right to privacy) of the European Convention. His core submission was that reports of his crimes trigger attacks or threats of attacks on him.

The challenge was heard by Mr Justice Pitchford and Mr Justice Simon in April 2013.

In a decision handed down today the Court found:

• The common law and the European Court of Human Rights "walk in step" on the question of the principle of open justice and the freedom to report proceedings of public interest.

• It is a cornerstone of the rule of law that public justice should be publicly reported unless the interest of justice requires otherwise. It is for the party contending that derogation from this principle is necessary to produce clear and cogent evidence.

• There is a weighty presumption that public proceedings will be publicly reported. The embarrassment, anxiety or distress generated by the prospect of exposure to public scrutiny of private matters will rarely be a sufficient reason for displacing the need for public justice.

• The public has a legitimate interest in being informed of the Parole Board's decision not to transfer Mr McGreavy to open conditions. The exceptional nature of his crimes and his identity justifies the public interest.

• Although there may well come a time when Mr McGreavy's identity and whereabouts will need to be protected from public knowledge, there is no cogent case for anonymity currently. There is no real and immediate risk to Mr McGreavy's life and safety because he remains in custody in conditions in which his safety can be closely monitored and effectively managed. Renewed hostility following reports of the judicial review proceedings is not enough to justify an order under Articles 2 or 3. Mr McGreavy's psychological health is not at significant risk and there is no other evidence to justify an order for anonymity under Article 8 or on any other ground.

Procedural Difficulties

In an Addendum to its decision the Court addressed the media's concern that guidance is required on the procedure appropriate to anonymity orders in the Administrative Court.

By the time of the hearing it was common ground that the course adopted by Mr McGreavy's legal advisers was wrong. Any order for anonymity should have been applied for at the permission stage and any subsequent application should have been in the form of a written application issue in good time before the hearing. The application should have been supported by evidence on which it was proposed to rely.

Although the Court declined to issue general guidance, it recognised the need for clarity and the application of principle when considering an order for reporting restrictions. To that end the judgment in the case is intended "to provide an alert to judges in the Administrative Court to the problems which can arise if applications are made at the last moment and "by consent".

The Court concluded that attention is required to the issue of what, if any, notice should be given to media organisations of an application either at permission stage or in advance of a substantive hearing for judicial review. It suggests that this is a matter suitable for consideration by the Administrative Court Users Group and the senior judiciary.

RPC acted for Associated Newspapers Limited, Times Newspapers Limited, Newsgroup Newspapers Limited and MGN Limited

(Originally blogged by Bríd Jordan)

[1] Associated Newspapers Limited, Times Newspapers Limited, Newsgroup Newspapers Limited and MGN Limited