Advancing human rights and equality
through public interest litigation

  Twitter

Anonymity granted to police officer despite not meeting Art. 6 criteria

A Police Officer’s Application (Leave Stage) [2012] NIQB 3

In this case a police officer requested to have his name and further details kept anonymous following unsuccessful judicial review proceedings. The officer had been the subject of misconduct proceedings within the PSNI and had been under consideration by the Public Prosecution Service for suspected drugs offences. He had sought to judicially review the continuance of the misconduct proceedings on the basis that they would prejudice the fairness of any potential prosecution. The application for judicial review was refused but the, now former, police officer applied to have his details in the judicial review kept anonymous because he believed his safety to be at risk from dissident republicans.

In his judgment Justice McCloskey outlined the approach of the court to such requests.  If a police officer is a defendant in criminal proceedings, or a party to other proceedings, there will be a strong presumption against anonymity in line with the principle of open justice.  Under ECHR Article 6, departure from that rule can be justified when publishing the litigant’s identity would prejudice the interests of justice.

When an application for anonymity is made in order to protect rights under ECHR Article 2, such as in this case, the court is under a positive obligation under Section 6 of the Human Rights Act to assess whether there is an objectively verified, present and continuing risk to the life of the litigant concerned. If such a risk is found the court then needs to decide if it would be reasonable to grant anonymity; balancing the risk and Article 6 duties of the court against the general public’s ECHR Article 10 right to receive information.  In his judgment Justice McCloskey stated that where the Article 2 or 3 rights of the Applicant are at risk the case for granting anonymity may, in principle, be stronger than cases in which Article 8 rights are at risk.  Justice McCloskey also stressed that applications of this kind must be made at the earliest possible stage of the case; failure to do so may lessen the prospect of success.

However despite the application for anonymity in this case having been made belatedly, little evidence of the alleged terrorist threats being provided and Justice McCloskey not being convinced that there was a real risk to the Applicant’s life, the request for anonymity was granted.  The rationale provided was that “it would be inimical to the over-riding objective in Order 1, Rule 1A of the Rules of the Court of Judicature for the court to invest further time and resources in perpetuating these proceedings in pursuit of this discrete inquiry and for no other purpose.  Accordingly, with some misgivings, I accede to the Applicant’s quest for annonymisation…”.

Read the full judgment here.

Tags
ECHR Art. 2, ECHR Art. 6, Right to Fair Trial, Cost Order