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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

30 JUN 2013

Anonymity in the Administrative Court

Although anonymising the parties is not rare in the Administrative Court, a recent case has provided an interesting example of its uses (or non-uses, as the case may be) and provided the Court with the opportunity to review and reassess the current law, in particular the procedure to be followed when considering an anonymity order.

David McGleavy - or M, as he had been known - is a convicted murderer. Whilst babysitting for the family he lodged with in Worcester, he brutally murdered the three children. He has been imprisoned since 1973 and is serving a sentence of life imprisonment with a minimum term of 20 years. In 2011 the Parole Board refused to recommend his transfer to open conditions. This led to a claim for judicial review, which was decided by Simon J earlier this year in R (M) v The Parole Board [2013] EWHC 141 Admin and subsequently reported on by this service. Anonymity was not granted solely in relation to Mr McGleavy, but also in relation to two women with whom he had shared some form of relationship. Evidence of these relationships was particularly important in considering whether McGleavy's difficulties in establishing interpersonal relationships and dealing with issues arising from them suggested that he was not suitable for transfer.

The Press Association had argued against anonymity at the time, an order was made that the identities and locations of McGreavy and the women involved should not be revealed, along with the details of his offences other than in the way in which they were reported in the final judgment. Associated Newspapers Limited, MGN Newspaprs, News Group Newspapers Limited and Times Newspapers Limited sought discharge of the McGreavy's anonymity and the details of his crimes, as did the Secretary of State.

McGreavy had already been moved to open conditions and, in 2004, he was permitted temporary leave and paid employment, but intimidation and attacks on his cell by other inmates and the press coming to know of his location had resulted in him being moved to secure and at times segregated conditions. This was the third judicial review he had sought in relation either to decisions of the Parole Board or the decision of the Secretary of State for Justice not to follow a recommendation in his favour. In each set of proceedings an order for anonymity had been granted, unopposed.

Substantive issues

A number of arguments were made in relation to the risk revealing McGreavy's identity would entail. It was noted that in 2006 it was felt that he did not meet the criteria for a full national identity change. There was evidence that McGreavy's rehabilitation would be significantly harmed if his identity was to become known. However, the court noted that McGreavy was likely to remain in closed prison for some time yet, and that any risk arising to him there could be managed. Notably, it was important that details of his crimes could be readily accessed in the public domain - indeed, an internet search using the brief details of the offences contained in the anonymised report was sufficient to identify him. This is frequently the case as, particularly in the prisoner context, those most likely to have their identities anonymised are those who have committed the most high profile crimes. The media organisations involved argued that it was precisely this which gave rise to the compelling public interest in favour of publication. The Secretary of State also argued that the public had a right to know the circumstances in which public money was being used to fund judicial review. It was argued on McGreavy's behalf that the public interest in reporting should be reassessed in this interest, given that the Parole Board hearings are held in private.

Lord Justice Pitchford, sitting with Mr Justice Simon, emphasised the importance of open justice, as well as the right to freedom of expression, including the right to receive and impart information, under Article 10 of the European Convention on Human Rights. However, a balance was to be struck between Article 10 and McGreavy's rights under Articles 2 (right to life), 3 (prohibition of torture), 5 (lawful detention) and 8 (family life), which can exceptionally justify interference with Article 10 rights. Reviewing the case law, Lord Justice Pitchford highlighted such factors as the ability of the press to communicate information outside the court room; the obligation of the courts to make information available; the requirement that any restriction be necessary in the language of the European Court of Human Rights; and the freedom of the press to exercise its own judgment as to how much to publish.

To be balanced against these factors were the duty on the state to protect McGleavy; that anonymity can be helpful in safely managing an individual's conditions where these are imposed by the state, such as where the individual challenges a control order, and the need to assess the impact on family members who bear no relation to the offences which have incurred media interest. However, it was for the claimant to show that anonymity was necessary, and this in the face of a "weighty presumption" in favour of public reporting.

Although Pitchford LJ recognised the importance of freedom to report and express opinion, he also noted that a media campaign designed to jeopardise a prisoner's chances of release risked undermining the rule of law, and that with journalistic freedom comes the ability to determine the content and tone fo what is reported. The Parole Board hearings which were the subject of the judicial review may have been heard in private, but it was not uncommon for publically reported judicially review to be concerned with discussions which originally took place in private, and this should be the default view.

The court accepted the argument that the public interest in the case arose from the exceptional nature of the crimes. It was less taken by the public funds argument made by the Secretary of State - public funding did not "buy access to information" which must otherwise remain private. As regards whether McGleavy's Article 2 rights would be breached, the court noted that in the prison environment the Secretary of State had the power and resources to ensure he was protected; for this reason there could not be said to be any real and immediate risk to life and safety. As regards the power of the media in this area, Pitchford LJ noted both that much information about the claimant was already widely available, but also that the way in which the media would inevitably report on the case could revive hostility towards McGleavy, both within prison and from the public. That said, whilst he remained in prison, this would not amount to a real and immediate risk to his life. Nor could his psychological health be said to be significantly at risk. The court noted that, in theory, publication could have a chilling effect, deterring the claimant from challenging his detention, but found no evidence that this would in fact be the case. Ultimately, the public interest in the full publication of judicial review cases was stronger than any potential impact on his Convention rights.

Procedural issues

In addition to the question of whether McGleavy's anonymity should be waived, the court was also asked to consider the procedure applicable in a case such as this. The media interveners referred to section 12 of the Human Rights Act 1998, which states that where a court is considering whether to grant relief which might affect the exercise of the Convention right to freedom of expression, and the person against whom such relief would be granted is not present or represented, the court cannot proceed unless satisfied that all practicable steps have been taken to notify them or that there are compelling reason not to do so. Section 12 also instructs the court not to grant relief unless it is likely that publication will be allowed, and to have particular regard to freedom of expression in a journalistic context.

The media parties to the case argued that section 12 required the court to give notice to the media generally, even thought they were not, at that point in the proceedings, parties to the action. The court declined to give general guidance, citing the broad range of work undertaken in the Administrative Court and the difficulty of applying principles arising in one particular case more widely. However, Pitchford LJ did note that the application for an order for anonymity should have been made at permission stage, rather than at the substantive hearing. Furthermore, the order was made on the basis of oral argument alone: an application should have been in writing and made in good time prior to the hearing. It should also have been supported by evidence.  Judges should be aware of the problems making orders such as this at the last minute, even with the consent of the parties, can give rise to. Although the court was unwilling to give general guidance on the issue, it was of the view that attention should be given to whether or not media organisations should be alerted where an application for an order for anonymity is made, in order to allow them to make representations.


Although ultimately fact-sensitive, contentious anonymity cases (ie non-family cases) in the Administrative Court have given rise to an interesting body of law. They tend to fall into three categories: cases concerning the identity of a convicted criminal, where release of their identity and/or location would put them at risk and jeopardise their rehabilitation; ongoing cases where revealing the identity of the accused would put them at risk or endanger the wider work of the police and security services; and where a witness would be put at risk if their identity was revealed. Well-known examples include, in the first category, Venables and Thomson v News Group Newspapers [2001] EWHC 32 and Carr v News Group Newspapers Ltd [2005] EWHC 971 In the second category, we have In re: British Broadcasting Corporation [2010] 1 AC 145, in which the House of Lords discharged an anonymity order protecting the identity of a defendant who was likely to be retried for murder, with Lord Hope stressing the role of journalistic judgment in presenting the information, and Secretary of State for the Home Department v AP (No2), in which the Secretary of State supported the continuation of an anonymity order in relation to a control order challenge on the basis that it rendered management of the control order easier. Finally, in the witness category, the most prominent cases are those arising in inquiries into incidents which took place in Northern Ireland where the conduct of police officers is in question:  In re Officer L [2007] UKHL 36 and R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249 (CA).

Judicial review cases such as this provide an interesting opportunity to consider the broad range of situations in which anonymity is sought in the Administrative Court, but also the weight which the courts place on the importance of free and open reporting of legal proceedings. The procedural issues discussed in this case highlight this aspect by emphasising the need for the media to be involved in decisions about anonymity from an early stage.

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