Ramby de Mello and S Chelvan – Landmark Judgment – Article 127 – Divisional Court grants anonymity to Second Claimants relying on evidence of direct threats to third parties.

In a landmark judgment last Friday (3 February 2017), Lloyd Jones LJ and Lewis J in the Divisional Court, granted anonymity to the four Second Claimants W, L, T and B, part of the Article 127 Single Market litigation.  The Claimants feared risks to their safety if their identities were released, based on evidence, primarily linked to risk to third parties. 

On the 29 December 2016, the four claimants (as the Second Claimants in the proceedings), as part of ancillary applications to the substantive application for judicial review, applied for anonymity of their names, the identities of their children, and their addresses.  On 30 December 2016, Knowles J, refused application on the papers, but granted the application for anonymity of the Claimants’ addresses and the identities of their children, but refused all other ancillary applications, without reasons.    Both national and international media reported the filing of the claims, with some media outlets referring to the four claimants as “campaigners”.

On 9 January 2017, David Tang and Co who represent the four migrant nationals, who are either EFTA, EU, dual-national or non-EEA nationals, filed with the Court evidence of a tweet sent to Junior Counsel, dated 30 December 2016, held by the Court in their 3 February 2017 judgment to be objectively racially abusive, implying the barrister deserved to be killed.  On 13 January 2017, a formal application was made to the Court to appeal the lack of an anonymity order with respect to the four principle Second Claimants, filing a Statement from the third Claimant ‘T’ outlining the fears over safety of all four second claimants and relying on the death threat to their Junior Counsel as directly analogous to the threats received by Gina Miller in the Article 50 litigation. 

On 17 January 2017, at an oral hearing, Cranston J granted an interim order for anonymity, following submissions made by No5 Chambers’ Barrister S. Chelvan.  Relying on the death threats made to Gina Miller and the need to employ security guards, this provided, by analogy, clear evidence of the risk to his clients.  A member of the Press Association objected to the making of the Order as firstly, no notice of the application had been given to the media, and secondly the Order, would be a disproportionate interference with ECHR rights and the principle of ‘open justice’.

Media Organisations, including the Guardian, the BBC, ITN and Sky News, who grouped to mount a legal challenge to the Order, were given until 20 January to make written submissions.  These written submissions were replied to by the Claimants W, L, T and B, the same day.  On 23 January 2017, Cranston J refused to lift the Order noting the serious grounds for risk to the Claimants, outweighing the principle for ‘open justice’.  The Media Organisations were given leave to file written submissions for the hearing on 3 February 2017. 

Submissions of the Media Organisations filed on 1 February 2017 submitted the threshold had not been met to allow for anonymity.  The Claimants were Ordered to file anonymised copies of the 13 January application with supporting Statement of T and the skeleton argument for the 17 January hearing. The Claimants in reply filed on 2 February 2017 a bundle of press articles, including a 17 January 2017 article, with the Comments section copied, evidencing the real risk of being branded enemies of the State and that they should be expelled from the UK, as well as other press articles recording the racially motivated threats to Gina Miller.

At the hearing on 3 February 2017, Ramby de Mello, leading S Chelvan, addressed the Court on the clear threats to the Claimants, based on the evidence of threats, racially motivated, to both Gina Miller and Junior Counsel, coupled with the comments in the media to how the claimants would be branded enemies of the state and should be expelled from the UK.  Evidence was also submitted relating to positive grant of anonymity of the Second Interested Parties in the Miller litigation, arising from their fears for their safety and safety of their children, based on their non-UK status.

In delivering the judgment of the Divisional Court, Lloyd Jones LJ held “On balance satisfied the nature of threats in   previously proceedings and the communication   received by   one of the   legal representatives, a real risk of violence and threats of violence is demonstrated … [there is] no public interest in publishing the names of the Claimants.”  The Court listed the nationality and personal situation of the claimants, directly relevant to enable possible debate of the issues in the case.  The Court held that publication of the names of the claimants, in this particular case, would not add public debate.  The Court granted anonymity to the four claimants, highlighting the grant of anonymity to their children, or of their addresses, was not subject to challenge.  The Court granted permission to cite the judgment (final version awaited).  No application was made for Costs.

This is a landmark judgment, where the Courts referred to evidence to threats to safety of third parties, Gina Miller and their Junior Counsel, as directly relevant to the second claimants’ rights under Articles 2 (life) and 8 (private life) ECHR, outweighing the Media Organisations’ rights under Articles 10 (freedom of expression) and 6 (access to justice) ECHR (noting application of section 12 of the Human Rights Act 1998 (procedural requirements relating to relief in applications dealing with freedom of expression).  Previously, applications would have to rely on of direct threats.  This ruling enables applications to include evidence of threats to third parties.  Friday’s judgment will lead to greater protection of individuals when challenging government actions, recognising in the current political climate, the need to ensure reporting does not lead to threats to safety.  “Open Justice” does not equate to an “Open Door” for the media.

Ramby de Mello and S Chelvan are members of the Immigration Law group at No5 Barristers’ Chambers.