Reporting restrictions at courts martial: the need for a structured approach – Simon McKay

Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment

On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.

Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.

Reporting Restriction

The first order, made after charge, was continued by the judge under Rule 153 of the Armed Forces (Court Martial) Rules 2009 (the Court Martial Rules), the Criminal Justice Act 2003 and the Armed Forces Act 2006 and section 11 of the Contempt of Court Act 1981. The order was made following receipt of evidence in the absence of the press from a Ministry of Defence official, Mr Tucker-Jones and an assessment prepared by the Joint Terrorist Assessment Centre (JTAC); both assessed the threat to the marines as possible but not likely. The basis of the order was that there would be a “real and immediate” risk to the lives of the marines if their names were published. The orders did not apply to other members of the patrol, whose names were mentioned in open court during the course of the trial.

At the conclusion of the case, the press sought to set aside the orders. The prosecution supported this (it had previously been neutral on the issue). The judge heard evidence from Tucker-Jones again. There was a volte-face; despite the evidence of Tucker-Jones having under-pinned the original decision, it was now considered “fanciful” and the judge now considered it relevant that other members of the patrol had been identified during the course of the trial. The judge ordered that he identities of each of the five marines involved could be disclosed. This was stayed pending an appeal.

Jurisdiction

The first issue for the court was whether the Court Martial Appeal Court had jurisdiction to hear the appeal. For reasons outside the scope of this article, it held that it did not but considered the issue sitting as the Administrative Court as if there had been a judicial review of the judge’s decision.

Open Justice

The cardinal principle is open justice: R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420. Where there is a countervailing reason why this principle should not apply a balancing exercise needs to take place. Lord Justice Toulson, as he then was, in the Guardian case held (at paragraph 49):

The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

The Criminal Procedure Rules applied [Rule 5B.9] in respect of the release of the video footage, still photographs and other documents.

The Balancing Exercise in the Marines case 

A clear tension arose on the facts of this case. On the one hand the press had the qualified right to report the proceedings. On the other, the marines contended that their lives would be placed at real and immediate risk if documents used as evidence in the case were disclosed, which identified them.

The marines relied on the leading case of Re Officer L [2007] UKHL 36. This identified a number of principles:

• the risk needed to be real and immediate
• real meant “objectively verifiable” and “immediate” “present and continuing”
• the threshold was high and not easily met

The need to carry out the balancing act was engaged on the facts of the case. In respect of the video footage and some of the still photographs (those showing images of the deceased and one of a marine pointing a pistol at the deceased), the judge considered their use by others as propaganda, which could place a real and immediate threat to unidentifiable members of the armed forces. He considered whether it was possible to edit them prior to release but felt that this was not possible.

He authorized disclosure of other footage and stills that did not show images of the victim or were not inflammatory.

On the question of the identity of the marines, the judge was of the view the high threshold in Re: Officer L had not been met and reversed his order.

The Court’s Ruling

After reiterating the principle of open justice and that a defendant can only benefit from anonymity in the most exceptional circumstances: see Re S (a child) [2005] 1 AC 593 when Lord Steyn opined at paragraph 34 that “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”.

Applications relating to reporting restrictions need to be structured. The Lord Chief Justice held at paragraph 87 of the judgment:

We consider that the court should approach the making of an Order that a defendant be not identified in a similar way.  The starting point is, in our judgment, the duty of the court, as a public authority, to ensure compliance with the principles (1) of open justice, and (2) that there be no interference with an individual’s rights under Articles 2 and 3, and (3) no unnecessary or disproportionate interference with (a) the rights of the public under Article 10 (having regard to the position of the media under s.12 of the Human Rights Act), and (b) of any relevant individuals under Articles 8.

There was a failure to take a structured approach in the case. In particular the judge had failed to consider, once he concluded there was no risk to life: whether any other rights were engaged; whether an order prohibiting publication of their identities would address the problems arising from the other rights; he failed to identify any other considerations involved in the making of his order; and failed to consider (because they did not arise on his findings) whether there would be an increase in the threat if publication took place.

Notwithstanding this, the court concluded that A should be identified: the greatest public interest existed in publishing his name and any threat that arose as a result could be managed by the authorities. As to the acquitted marines, the armed forces would be equipped to manage any threat that may exist following the publication of their identities. The marines against whom proceedings were discontinued had their cases remitted back to the judge for a decision. However the court made it clear that they would face “an uphill struggle” to secure an order preventing disclosure of their identities.

Conclusion

This is a welcome decision for those practicing in the Court Martial system where a lack of structured approach to these decisions is common-place, as is the conflation of legal principles relating to reporting restrictions and anonymity. Such an absence raises, once again, the question of the role of the court martial, particularly in a case of such public importance.

Simon McKay is a solicitor advocate at McKay Law Solicitors & Advocates and author of Covert Policing: Law & Practice (OUP, 2011)

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