The complex legal analysis of balancing open justice and lifetime anonymity

A recap of the Venables jurisdiction

25 March 2021

Author: Olivia O'Kane
Practice Area: Media and Entertainment

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In the recent case D & F v Persons Unknown [2021], Mrs Justice Tipples granted an order permanently preventing the identification of two young women convicted of murdering a woman in 2014.

Background

The claimants sought a lifelong anonymity injunction in order to prevent them from being identified as the murderers of vulnerable victim, Angela Wrightson. The claimants were children at the time that the crime was committed and were, therefore, referred to as “D” and “F” which has maintained their anonymity since 11 December 2014.

The case generated significant public outrage and social media activity at the time that the minors committed the murder. Both claimants were sentenced to life imprisonment for their crime and told they must serve a minimum of 15 years behind bars. However, as F was now 18 years old and D was approaching 18, an application was made to revoke the section 39 anonymity order granted by the Children and Young Persons Act 1933.

Both claimants sought lifelong anonymity injunctions from the High Court to prevent them being identified after the section 39 orders lapsed when they turned 18. The arguments raised in favour of continuing anonymity surrounded the vulnerability of both claimants. D suffered from mental health issues, including depression and F had a persisting emotionally unstable personality disorder and a genetic predisposition to developing mental health difficulties. Both had a history of self-harming and suicidal thoughts, with F having attempted suicide in the past.

Psychologists expressed the concern that if their identities were to be revealed, it could be psychologically damaging and may increase their risk of self-harm, suicide or even impact their rehabilitation.

Reasoning

The court considered the balance between ECHR rights contained in Article 2 (right to life) Article 3 (prohibition of torture, and "inhuman or degrading treatment or punishment"), Article 8 (right to respect for their private and family life) and Article 10 (right to freedom of expression).

The High Court also considered the scope of the “venables jurisdiction”. This derives from the case of Venables v News Group Papers Ltd [2019] EWHC 494 (Fam) but Tipples J noted at [64], that this present case appeared to be the first case under the Venables jurisdiction where the risk of death or serious physical harm came from the applicants themselves, rather than from others.

The High Court emphasised their duty under section 6 of the Human Rights Act 1998 to take reasonable measures for the protection of the citizen against threat and violation of what are known as “fundamental, non-derogable” rights under Articles 2 and 3 of the ECHR. It was found that Articles 2 and 3 would be engaged if the risk of serious physical harm, torture or death upon revealing the identities of the claimants would be a 'real and immediate risk'. This was also deemed to include a risk that comes from the actions of the individual themselves.

Consequently, the High Court was under a duty to take all reasonable steps to exercise the Venables jurisdiction to prevent serious self-harm or death of a mentally vulnerable person who is under the State’s care and control.

In order to protect a person's Article 2 and 3 rights, the Venables jurisdiction had to cover circumstances where the offender was:

  • A person suffering from a mental disorder.
  • In state custody because of a crime committed as a child.
  • At risk of self-harm or suicide which would be materially increased by the consequences of revealing their identity.

The court then considered the rights set out under Article 10 ECHR but was not prepared to follow the approach set out in A (A Protected Party) v Persons Unknown [2016] EWHC 3295 (Ch) and Venables which balanced Articles 2 and 3 against Article 10 rights.

Tipples J determined that, if she found Articles 2 and/or 3 to be engaged, she was bound by the decision of the Divisional Court in RXG v Ministry of Justice [2020] QB 703 (applying A v BBC [2015] 1 AC 588) not to balance these against any countervailing Art.10 rights (at [78]). This case surrounded Britain’s then-youngest terrorist who instructed an Australian jihadist to launch attacks on Anzac Day in 2015.

Much like the present case, the claimant was vulnerable due to an autism diagnosis and the court deemed that it was necessary and proportionate to protect the claimant’s Article 8 rights over the Article 10 rights of the press. Ms Michalos submitted that ‘where Articles 2 and/or 3 are engaged, there can be no derogation and “where the evidence demonstrates that there is a real and immediate risk of serious harm or death this cannot be balanced against any Article 10 right, no matter how weighty.”’

Decision

Mrs Justice Tipples granted the permanent injunction against revealing the claimants’ identities. The reasoning for this was that if their identities were revealed, there would be significant media interest due to the nature of the crime and the ages of the claimants when it was committed.

The evidence did not demonstrate convincingly that if their identities were revealed, there was a real and immediate risk of physical harm or death from third parties which engaged Article 2 or Article 3. However, if the claimants’ anonymity were not preserved, both would be at risk of serious physical harm or death in relation to potential of suicide and self-harm. Article 2 and Article 3 were engaged and that risk was not to be balanced against the media's Article 10 interests.

In case the assessment of the evidence in relation to the engagement of Articles 2 and 3 were wrong, the court also considered obiter the position in relation to Articles 8 and 10. In those circumstances, the evidence as to the risk of harm fell to be considered in the assessment of the person's Article 8 rights and balanced against the Article 10 rights.

Adopting the approach in RXG, the following factors were relevant to D and F's respective positions under Article 8:

1. Their ages at the time of the offence. D was 13, F was 14. They were young, but not as young as the offenders in:

  • Venables (10.5);
  • X a woman formerly known as Mary Bell v O'Brien [2003] EMLR 37 (11); and
  • A (A Protected Party) (10 and 12).

2. The claimants had grown up with their identities protected in the six years since the offence was committed.

3. It was clear from the medical evidence that, if the claimants were identified, the likely impact on them mentally and physically was extremely serious.

Furthermore, D had made good progress in the adult prison estate which was demonstrated by being assessed as suitable for a rehabilitative programme, and the evidence was that she was at a "critical point" both in terms of development and in her rehabilitation. Therefore, if D’s anonymity were removed, it would have a ‘serious impact’ on her mental health which would then adversely affect her rehabilitation in the future and completely undermine or reverse any progress she had made. F was also making progress with her rehabilitation, but this would be destroyed by the removal of her anonymity and F would be unable to progress.

The initial murder trial was publicly reported and all matters were public domain, except for the identities of D and F, the claimants' identities were not common knowledge and not generally known in the adult prison estate. Even if some people might know their names and identities, this does not mean that the court should not take all reasonable steps to reduce any risks which could be caused by revocation of their anonymity (Venables applied).

It was ruled that revealing the claimants' identities was likely to cause each of them very serious harm and interfere with their Article 8 rights. This was deemed to be “exceptional case in which the balance [between Article 8 and Article 10 rights] is tipped very firmly in favour of” protecting the girls’ Art.8 rights (at [102]) and it was both necessary and proportionate to grant the injunctions sought so that their identities were protected and not revealed.

Moving Forward

Whilst all cases applying the Venables jurisdiction turn heavily on the facts, particularly the risk of physical harm or death, this case provides further clarity on the balancing exercise which must be engaged when Articles 2 and/or 3 are at risk of being breached.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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