“Having considered the expert evidence from Mr Tucker-Jones and the submissions from the parties, I am unable to conclude definitely that there is a real and immediate risk to the Defendant’s lives today. However I am satisfied that there may be a real and immediate risk to the Defendants’ lives based on the information that is currently in the public domain, and the risk will increase significantly when all of the prosecution evidence is disclosed as the trial unfolds. The risk comes from organised terrorist activity and “lone wolves” who are unpredictable. In this respect members of the Armed Forces are entitled to be treated differently from civilians within this country at this moment in history. While they must remain accountable for their actions, and part of that accountability is through open justice, they are also entitled to protection from terrorists who may not be concerned with due process, and who may attempt revenge attacks. In other words, any assessment of risk must err on the side of the safety of members of the Armed Forces. I am not prepared to take a chance with men’s lives.”
“If the Defendants are acquitted at trial, then it is right that their identities are protected for the future. As members of the Armed Forces who are placed in harm’s way, and who undertake risks which do not confront civilians, they are entitled to this additional protection. If they, or any one of them, are convicted then the issue of anonymity will be reassessed.”
“I am satisfied that, within the context of this case (including the unpredictability of terrorist attacks and the ongoing operations in Afghanistan) there would be a real and immediate risk to the lives of the Defendants if they were to be identified by name.”
“13. The evidence of real and immediate risk comes from Mr Tucker-Jones. I am afraid his opinion both in his written submissions and orally was unconvincing. When tested by Mr Perry he was unable to give objectively well founded reasons for his conclusions and he conceded that this was a subjective opinion, albeit based on 20 years’ experience in the field. That is not to diminish his expertise, but in this case he has been unable to point to anything which enables me to say that the high threshold has been reached. 14. As far as the protection of a convicted defendant in prison is concerned, Mr Tucker-Jones’ evidence was speculative based on published statistics. He has no expertise in the regimes established in prisons, nor whether there is any real risk of attacks from other prisoners. His suggestion that they might be at risk from people who had previously supported them but had been let down as the evidence has emerged at trial is fanciful. 15. As I have said previously, the principle of open justice is immutable and must only be restricted where the administration of justice would be seriously affected without the grant of an order for anonymity or there would be a real and immediate risk to the personnel were anonymity to be granted. This is not a case relating to the administration of justice and I am not satisfied that those who seek a continuance of the anonymity order have demonstrated that the fear that the marines’ lives will be at risk is objectively well-founded.”
“Having removed his AK47, magazines and a grenade, [Marine A] caused him to be moved to a place where [Marine A] wanted to be out of sight of your operational Headquarters at Shazad so that, to quote what [Marine A] said: “PGSS can’t see what we’re doing to him”
“The High Court shall have no jurisdiction to make mandatory, prohibiting or quashing orders in relation to the jurisdiction of the Court Martial in matters relating to— (a) trial by the Court Martial for an offence; or (b) appeals from the Service Civilian Court.”
“A person aggrieved may appeal to the appeal court, with the leave of that court, against – (a) any order or direction restricting the access of the public to the whole or any part of any proceedings; and (b) any order or direction restricting the publication of any report of the whole or any part of a trial or any such ancillary proceedings.”
“27. – Application of Chapter 1 This Chapter applies where a party to preliminary proceedings or the director seeks permission to appeal against an order or ruling, other than a reporting or public access order, made in those proceedings.”
““preliminary proceedings” means any proceedings of the Court Martial held for the purpose of – (a) arraigning a defendant on a charge; or (b) giving any direction or making any order or ruling for the purpose of trial proceedings against a defendant.”
“i. whether or not the request is for the purpose of contemporaneous reporting; a request after the conclusion of the proceedings will require careful scrutiny by the court. ii. the nature of the information or documents being sought; iii. the purpose for which they are required; iv. the stage of the proceedings at the time when the application is made; v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a 'public watchdog', by reporting the proceedings effectively; vi. any risk of harm which access to them may cause to the legitimate interests of others; and vii. any reasons given by the parties for refusing to provide the material requested and any other representations received from the parties. Further, all of the principles below are subject to any specific restrictions in the case. Courts should be aware that the risk of providing a document may reduce after a particular point in the proceedings, and when the material requested may be made available.”
“... The photograph of the body of [the Prefect] lying on the ground in a street in Ajaccio which appeared in edition 2543 of the weekly Paris Match, dated19 February 1998 , was published without the consent of [his] family, who consider its publication as an intrusion into the intimacy of their private life...”
“As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncracy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”
“In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.”
“full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”
“..., it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”
“Because anonymity orders are in place, JTAC currently assesses that an attack against the RM individuals who are the subject of these proceedings is broadly in line with that for all defence personnel in the UK. However JTAC judge that, if they were to be publically named, the potential threat to Marines A-E from Islamist extremists would increase. Furthermore, it is possible that the release of any personal information might encourage attack planning where none had previously existed.”
“What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.”