Armed forces – Anonymity – Court martial – Hearings in chambers

(1) Times Newspapers Ltd (2) Guardian News & Media Ltd (3) soldier B (appellants) v (1) R (2) soldier A (3) soldier C (4) soldier D (5) soldier E (6) soldier F (respondents) and Secretary of State for Defence (interested party): CMAC (Lord Justice Latham, Mr Justice Mackay, Mr Justice King): 24 October 2008

The appellant newspaper publishers (P) appealed against an order of the judge that proceedings brought against six soldiers, including the third appellant (B), should be held in camera.

The order had been made in relation to court martial proceedings against the soldiers for conspiracy to defraud. The judge also ordered that no reports of the proceedings should be published except for the fact that six soldiers had been charged.

The appellants maintained that the order was wrong in principle, could not be justified on the material before the judge, and was more restrictive than was necessary. The prosecution accepted that the order was wider than was necessary in the interests of justice, and also unjustified under section 94 of the Army Act 1955, and put forward a modified form of order to ensure that the public would be excluded only where matters of national security were truly in issue. On that basis, the prosecution did not oppose the appeals, which were then allowed. The prosecution informed the present court that it had decided not to offer any evidence when the matter came back for court martial.

B, who had not requested anonymity, was acquitted at a court martial trial in which he was named. P submitted that, having allowed the appeals, the present court should: (1) revisit the previous hearings and make appropriate orders to allow the material before the court at those hearings to be made publicly available; (2) consider whether there was any further justification in maintaining the anonymity of the soldiers.

Held: (1) The press was entitled to report whatever had occurred in open court. Insofar as the hearings were in camera, there was nothing that the press was entitled to publish. The parts of the hearings that were in camera were those where the court was considering the evidence and argument as to the extent to which evidence or other material should be made public. It was clearly in the interests of justice that those proceedings should be in camera. The clock could not be turned back. In any event, having considered the material in question, it was quite clear that none of it was in the public domain.

(2) For the court to be entitled to make any order for anonymity for all or any of the soldiers, it had to be satisfied either that the administration of justice would be seriously affected or that there was a real and immediate risk to the life of any of the soldiers if anonymity was not granted, Re Officer L [2007] UKHL 36, [2007] 1 WLR 2135 applied. The only other route would be by statute. However, section 94(2) of the 1955 act was not worded in any way that would justify an order for anonymity. It was concerned with protecting information given in evidence that might affect the national interest. As there was to be no trial, there was no evidence upon which section 94(2) could bite.

In the present case the claim to anonymity rested fairly and squarely on the risk to the lives of two of the soldiers, and their service history made it clear that there would be a real and immediate risk if they were identified. The other three did not fall into the same category. However, it was clear from the evidence that their identification would lead to the identification of the other two. Although there was some risk of the disclosure of B’s name undermining the order in respect of the others, his rights under article 6 of the European Convention on Human Rights had to be accommodated, at least to the extent of enabling him to be identified, as that was consistent with the fact that he was identified in the earlier trial.

Appeals allowed.

Gavin Millar QC, Anthony Hudson for the first and second appellants; John McKenzie (solicitor-advocate), Stuart Lindsay for the third appellant; Nadim Bashir for the Crown; Hugh Tomlinson QC, Paul Bennett (solicitor-advocate) for the second, third, fourth, fifth and sixth respondents; Jonathan Glasson for the interested party.

Failure to attend – Jurors – Jury service – Reasonable cause for absence

R v Derrick Andrews: CA (Crim Div) (Lord Justice Pill, Mr Justice Jack, Mr Justice Openshaw): 24 October 2008.

The appellant (D) appealed against his conviction for failing to attend as a juror contrary to section 20(1)(a) of the Juries Act 1974.

D had been summoned to serve as a juror. During the course of the trial, D suffered a very serious breakdown in relationship with the other members of the jury. On the day that the jury was to continue its deliberations, D arrived at the court within good time and informed the reception that he did not want to meet with the other jurors as he was being bullied by them. He did not get to speak to the jury bailiff and returned to the car park, where he was again abused by a member of the jury. D returned home, which was five minutes away, and telephoned the court for further direction. He did not leave a note for the judge as he was told that someone would get back to him. D was later informed that he had been dismissed from the jury, and the trial continued with the remaining jurors.

The court held that D had not deliberately set out to antagonise the court, and accepted that the other members of the jury had taken very seriously against D. D submitted that the court had misunderstood the evidence and should have held that he had shown reasonable cause, within the meaning of section 20(4), for his absence from court.

Held: Although there had been room for further enquiry into D’s account, the judge had failed to conduct such an enquiry. In addition, he had not addressed D’s explanation for leaving the court or his continuing availability nearby. The ruling was also silent on an explanation that was capable, at the least, of showing reasonable cause for the failure to be at court when the court sat. While the absence of a written note from D was surprising and was capable of being a material factor under section 20, the judge’s failure to analyse what D had been told at reception did not allow him to justify a conclusion that the cause of D’s absence was unreasonable under section 20(4).

Appeal allowed.

DH Southey (instructed by Hickman & Roe) for the appellant; C Johnston QC, H Willcocks (instructed by the CPS) for the respondent.