Times Newspapers Ltd v Secretary of State for the Home Department & Anor

Factual and Procedural Background

The case concerns a Control Order made against a Controlled Person under section 3 of the Prevention of Terrorism Act 2005. The original anonymity order identifying the Controlled Person only as "AY" was made by Judge Mitting on the Secretary of State's application, considered on paper and without notice to the Controlled Person or the media. This anonymity order was customary at the permission stage of Control Orders. A directions hearing was subsequently held where Times Newspapers Limited (TNL) challenged the anonymity order on its merits and raised procedural and drafting concerns. Both the Secretary of State for the Home Department (SSHD) and the Controlled Person opposed lifting the anonymity order. The court considered the procedural basis for anonymity orders, the arguments of the parties, and the substantive merits of maintaining anonymity in this case.

Legal Issues Presented

1. Whether the anonymity order made at the permission stage of a Control Order under the Prevention of Terrorism Act 2005 was justified and properly made.
2. The procedural fairness and legal basis for making anonymity orders without prior notice to the Controlled Person or the media.
3. The appropriate balance between the media’s Article 10 rights to freedom of expression and the Controlled Person’s Article 8 rights to privacy, alongside public interests in open justice and effective operation of Control Orders.
4. The scope and duration of anonymity orders and the form such orders should take.
5. The mechanisms by which the media should be notified of anonymity orders without compromising the effectiveness of Control Orders.

Arguments of the Parties

Times Newspapers Limited's Arguments

• The anonymity order should not be sustained on its merits.
• There were defects in procedure and drafting of the anonymity order that needed to be addressed.
• The judge should have a proper evidential basis for making the anonymity order, with due consideration of the media’s Article 10 rights and public interests in open justice.
• The order was too terse and ambiguous, potentially extending beyond what was intended.
• The media should have a means to know whether anonymity orders have been made, to avoid inadvertent breaches of anonymity.

Secretary of State for the Home Department and Controlled Person's Arguments

• Judges are generally aware of the arguments for anonymity at the permission stage and the media can challenge the order at the directions hearing.
• Anonymity is necessary to ensure effective monitoring and enforcement of Control Orders and to protect the Controlled Person and their family from harassment, violence, or other risks.
• Public identification risks undermining the Control Order by encouraging disappearance or interference and increasing resource burdens on security services.
• The anonymity order is a statutory power intended to protect public safety and is not limited to concerns solely about the administration of justice.
• Closed evidence was presented to support the anonymity order, which was not disclosed to the media or Controlled Person but was considered by the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the Prevention of Terrorism Act 2005 and Civil Procedure Rules Part 76 permit anonymity orders for Controlled Persons without prior notice to the media or the Controlled Person. It recognized the legitimate concerns raised by the media regarding Article 10 rights and open justice but found that anonymity orders at the permission stage are generally justified to protect the effective operation of Control Orders and the safety of the individual and their family.

The court accepted that anonymity orders should not be automatic and ideally should be accompanied by some reasoning from the SSHD to assist judicial scrutiny. However, the absence of detailed supporting material should not prevent the judge from making a reasoned decision based on experience and the nature of Control Orders.

The court considered the risks associated with public identification, including harassment, violence, difficulties in enforcement, and the risk of the Controlled Person absconding. These risks justified restrictions on media freedom in this context, given the statutory purpose of Control Orders.

The court also addressed procedural and drafting concerns about the form and duration of the anonymity order, agreeing that the order should be clearer and subject to periodic review. It recognized the need for a system to allow the media to verify the existence of anonymity orders without compromising the Control Order’s effectiveness, suggesting this be developed by the Administrative Court in consultation with relevant parties.

Regarding the conflicting rights under Articles 8 and 10 of the European Convention on Human Rights, the court held that the context of Control Orders differs significantly from criminal trials. The ongoing and preventive nature of Control Orders justifies a different balance, favoring anonymity where necessary to maintain the order’s effectiveness and public safety.

The court accepted closed evidence from the SSHD, acknowledging the limitations on procedural fairness but finding no reason to appoint a special advocate in this case. It ultimately found the case for maintaining anonymity compelling and justified the restrictions on media freedom and public interest in disclosure.

Holding and Implications

The court held that the anonymity order identifying the Controlled Person only as "AY" should be maintained. The application to lift the anonymity order was refused.

The decision confirms that anonymity orders under the Prevention of Terrorism Act 2005 are a legitimate and necessary tool to ensure the effective operation of Control Orders and to protect individuals subject to them. The ruling underscores the qualified nature of media freedoms in this context and affirms the balance between competing rights and public interests. No new legal precedent was established beyond the application of existing principles to the particular facts of this case. The court also emphasized the need for clearer drafting of anonymity orders and a procedural mechanism for media notification in the future.