202403821 B2 - [2025] EWCA Crim 1205

Analysis – anonymity:

The importance of the principle of open justice in criminal proceedings is well-established. It is sufficient for present purposes to cite the following passage from the judgment of Sir Igor Judge P (as he then was) in In re Trinity Mirror plc [2008] QB 770 at [32]:

“In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, is the defendant’s ‘birthright’. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.”

Consistently with that principle, the general rule is that the name of an accused will be made public in the hearings in open court (both at first instance and on appeal) and in the decisions and orders of the court. There is no exception to that rule merely because an accused might understandably prefer his name and/or the details of the case not to be made public. Ordinarily, as Lord Sumption explained in Khuja v Times Newspapers Ltd [2017] UKSC 44, [2019] AC 161 at [34(2)]:

“… the collateral impact that [the court] process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public.”

Any derogation from, or restriction upon, open justice is exceptional and must be based on strict necessity. The derogation or restriction must be shown by “clear and cogent evidence” to fulfil a legitimate aim and to be both necessary and proportionate: see R v Sarker [2018] 1 WLR 6023 at [29]; JIH v News Group Newspapers Ltd [2011] 1 WLR 1645 at [21]; and R (Marandi) v Westminster Magistrates’ Court [2023] EWHC 587 (Admin), [2023] 2 Cr. App. R. 15 at [16].

Both the Article 8 right to private and family life, and the Article 10 right to freedom of expression, are qualified rights under the Convention. In Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15, [2025] 2 WLR 815, a very recent decision cited to us by Ms Ahluwalia, the Supreme Court was concerned with issues arising in the context of decisions of the High Court as to whether life-sustaining medical treatment should be withdrawn from a gravely ill child, and in particular as to whether injunctions should be granted to prohibit revelation of the identities of the child, hospital and clinical team. The context of those issues was therefore very different from the context of the present case; but at [128] – [130] the Supreme Court gave guidance which is applicable to cases, such as the present, in which a derogation from the principle of open justice is sought on the basis of the qualified right under Article 8.

The Supreme Court identified, at [128], a structured approach in three stages. The court must ask, first, whether there is an interference with a right prescribed by law; secondly, whether the interference pursues a legitimate aim, i.e. an aim which can be justified by reference to one or more of the matters mentioned in Article 8(2) or Article 10(2); and thirdly, whether the interference is necessary in a democratic society.

Where the derogation from open justice is sought, based on an argued interference with another qualified Convention right (typically Article 8), the task of the Court was stated by Lord Steyn in In re S [2005] 1 AC 593 at [17]:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…” (emphasis in original)

In Tickle v BBC [2025] Fam 105[49] (and in a recent decision of the Civil Division of the Court of Appeal: PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126 at [91]), theMaster of the Rolls approved what Nicklin J had said about the nature of the Re S balance in the context of derogations from open justice in PMC v A Local Health Board [2024] EWHC 2969 (KB) at[41]:

“Whilst, in a very broad sense, in assessing the engaged convention rights on any application for a derogation from open justice, the Court is carrying out a ‘balance’ between them, the scales do not start evenly balanced. The Court must start from the position that very substantial weight must be accorded to open justice. Any balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification. That is not to give a presumptive priority to Article 10 (or open justice), it is simply a recognition of the context in which the Re S ‘balance’ is being carried out.”

In circumstances such as those with which we are concerned, conflicting rights are engaged: the accused seeks a withholding order and reporting restriction order on the basis that it is necessary to protect his or her Article 8 rights; but the court must also consider the Article 10 rights of others. At [182(16)] the Supreme Court summarised the correct approach to the third question as follows:

“In answering the last of those questions in relation to article 10, the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued. This consideration applies with particular force to preventive restraints on publication, and is reflected in section 12(3) and (4) of the Human Rights Act.”

The application of that approach requires that, as was said in Marandi at [43]:

“[The] question is not to be answered on the basis of ‘rival generalities’ but instead by a close examination of the weight to be given to the specific rights that are at stake on the facts of the case.”

In conducting that close examination, the court must give very substantial weight to the importance of open justice. Criminal proceedings in open court are a matter of legitimate public concern, and there is therefore an important public interest in the reporting of them.

The court’s decision whether to grant or refuse a derogation from open justice will be determined by the court’s assessment of the competing rights: it is not, once that assessment has been made, a matter of discretion.

When an application is made to depart from the principle of open justice by granting anonymity to an accused, it is important to distinguish (as Ms Ahluwalia did) between two different types of order: a withholding order (i.e. an order which permits or directs the withholding of the name of the accused and its replacement with a cipher such as “ARW”); and a reporting restriction order (i.e. an order prohibiting publication of the withheld name or any other information that would be likely to identify the person whom the court has directed should be anonymised). It is also important to emphasise that a withholding order is not, in itself, a reporting restriction order.

A withholding order is part of the general common law power of a court to regulate its proceedings. It may only be made if the court is satisfied that, if a name were to be mentioned in open court, it would frustrate the administration of justice, and further satisfied that the order is necessary taking into account the public interest in open justice. In practice, it is very rare for an order to be made that the name of an accused be withheld during proceedings in the Crown Court. Usually, such an order is only likely to be justified if there is credible evidence that the accused’s life would be at risk if he were identified.

A withholding order will prevent the accused’s name from being made public as a result of the proceedings, but will not in itself prevent the accused being publicly identified if his or her identity is already known or can be discovered. An application for a withholding order is therefore usually coupled with an application for a reporting restriction order.

It is always necessary for an accused who applies for such orders to identify the precise jurisdictional basis on which the court is invited to make a withholding order and/or a reporting restriction order.

Both Abbasi and PMC v Cwm Taf Morgannwg University Health Board provide authority that, in civil and family proceedings at first instance, the High Court has an inherent power to derogate from the principle of open justice by making both a withholding order and a reporting restriction order where such an order is strictly necessary in the interests of justice.

So far as concerns the criminal courts, however, in Khuja at [18] Lord Sumption held that:

“The inherent power of the court at common law to sit in private or anonymise material deployed in open court has never extended to imposing reporting restrictions on what happens in open court. Any power to do that must be found in legislation: Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190.”

In criminal proceedings, the principal statutory provision under which a reporting restriction can be imposed to enforce the anonymisation of an accused is s11 of the Contempt of Court Act 1981 (quoted at paragraph 58 above). It is important to emphasise two points about that provision. First, the power only arises in support of the prior exercise by the court of a power to withhold the accused’s name from the public: it is only when the court, having power to do so, has ordered that the name be withheld that s11 permits the making of an ancillary order to prevent the publication of the name. Secondly, a reporting restriction order under s11 is not retrospective. It follows that, if the court has not made a prior order withholding the name during proceedings in open court, it may well be too late to impose a reporting restriction: see In re Trinity Mirror plc at [19]; R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 at [14]; and R v Arundel Justices ex parte Westminster Press Ltd [1985] 1 WLR 708 at pp710H-711C.

In the present case, we are concerned with the powers of this court on appeal. Ms Ahluwalia did not suggest that the Crown Court could or should have made orders similar to those which she now seeks.

The applicant’s name was not withheld during the Crown Court proceedings. Of itself, that fact does not deprive this court of its jurisdiction to make a withholding order in respect of these appeal proceedings: having considered helpful submissions on the point, we are satisfied that the phrase “a court (having power to do so)” in s11 refers specifically to the court presently seised of the proceedings, and not to any court which has heard the case at an earlier stage. As we have indicated in paragraph 30 above, this court has withheld the applicant’s name, and so in principle we have preserved the power to make reporting restrictions under s11.

However, in deciding whether to exercise that power, it is important to take into account the fact that the applicant’s name was not anonymised in the Crown Court. Any court asked to impose reporting restrictions should consider the impact of any order on future reporting of the proceedings, having regard to any previous reporting of the identity of the accused; and the effect of past lawful reporting of the name of the accused may mean it is too late to seek anonymity in appeal proceedings. Among the potential consequences which need to be considered are the effect on past lawful reporting of the proceedings in the Crown Court if an order for anonymity and a reporting restriction order is made by this court (would there, for example, be a risk of “jigsaw identification” from a combination of facts and circumstances recorded in the judgment of this court, and the effect on future reporting if the outcome of an appeal to this court were an order for a retrial (for example, could the accused be named at the retrial if a withholding order had been made in this court; and if the retrial jury were told that there had been a previous trial, would the press nonetheless be unable to refer to reports of the first trial because to do so would identify the accused?)..

In appeals of this kind, an applicant for anonymity often relies on the fact that he or she has been granted anonymity in other proceedings, such as immigration and asylum proceedings before a tribunal. That fact is of course always relevant, and may often provide powerful support for the application in this court, particularly if a refusal to grant anonymity would frustrate the order made in other proceedings. Even here, however, the granting of anonymity by this court should not be treated as a matter of routine. This court must consider whether some lesser derogation from open justice will avoid any risk of “jigsaw identification” of the applicant in this court as being person who was anonymised in the other proceedings. By way of example, it may be possible to avoid that risk by omitting from the judgment in this court any mention of particular facts and circumstances which would enable a link to be made to the other proceedings.

In the present case, in contrast to many cases involving VOT/VMSs, the applicant has not claimed asylum, and there are no current or past proceedings before an immigration tribunal. This is not, therefore, a case in which the applicant can submit that refusal of her application for anonymity in these proceedings would frustrate an existing order. Ms Ahluwalia submits, however, that this court generally does grant anonymity in human trafficking/modern slavery cases. She has helpfully taken us to a number of previous decisions of this court, and relies on what she submits has become a recognised practice.

Having reviewed those previous decisions, we accept that anonymity has often been granted by this court when hearing applications and appeals in such cases. In many of the cases, the issue has been addressed very briefly. Reference has often been made to the unreported decision in R v L and N [2017] EWCA Crim 2129, which may have come to be regarded as providing general guidance. It is therefore important to note that the court in L and N at [15] expressly declined an invitation to give general guidance, and made clear that it was deciding the anonymity applications in the two cases before it on a fact-specific basis. It follows that the anonymity orders which the court there made in each of the cases did not imply any presumption in favour of such an order: the evidence in each case satisfied the court that anonymisation was strictly necessary.

An example of the appropriate fact-specific approach is provided by one of the cases cited to us, R v CS [2021] EWCA Crim 134. The court there considered two unconnected cases, and concluded that one applicant was exposed to a risk which justified anonymity, whilst the other had provided no evidence that revealing his name would expose him to any risk.

We do not think anything will be gained by an exegesis of the decisions in the cases cited. We hope it will be helpful to judges and practitioners to summarise the approach which, in accordance with the principles to which we have referred, should be taken when an accused person, who is or may be a VOT/VMS, appeals to this court and requests anonymisation:

Although issues as to anonymity arise more frequently in such cases than in other applications and appeals, a VOT/VMS has no automatic right to anonymity, and no statutory provision imposes automatic reporting restrictions in favour of an adult accused who puts forward a defence under s45 of the MSA 2015. An order derogating from open justice should therefore not be made on a routine basis. As in any other case, a person seeking anonymity bears the burden of demonstrating by cogent evidence why a derogation is strictly necessary.

Any application for anonymity must be made when the application for leave to appeal is lodged. The Criminal Appeal Office can then arrange for the applicant’s name to be replaced by a cipher for listing and other purposes: that will be a convenient safeguard, but does not imply that the court will necessarily grant the application.

The application must set out the order that is sought, the jurisdiction under which it can be made, and why it is strictly necessary for the order to be granted. With effect from 6 October 2025, a revised Criminal Procedure Rule 6.4 will apply to applications for reporting restrictions and other applications to derogate from open justice. It sets out what is required of an applicant.

Any application for an anonymity order (and reporting restrictions) must be supported by evidence which establishes convincingly the need for the derogation(s) sought. Where it is contended that, if anonymity is not granted, there is a credible risk of physical harm or death, the nature of the threat and why an order for anonymity would avoid or reduce that risk must be explained.

If anonymity is sought on the grounds that the applicant has been anonymised in other proceedings, full details of those proceedings, and a copy of the order granting anonymity, must be provided. If it is contended that there is a risk of ‘jigsaw identification’ if an anonymity order is not granted, the nature of that risk and how it arises must be explained and demonstrated.

The evidence submitted in support of the application must explain the extent to which there has been reporting of the identity of the person seeking anonymity and reporting restrictions as a result of the proceedings at first instance. Such evidence is necessary to assist this court to decide whether it is too late to impose an anonymity order.

When the case comes before this court for hearing, it will generally be appropriate to address the issue of anonymisation at the outset. The court may often think it right to make a withholding order and a reporting restriction order on a temporary basis, pending judgment or further order.

The court must make a fact-specific assessment of the competing rights which are in issue, and determine whether the applicant has established that it is strictly necessary to derogate from open justice.

The court should ensure that any withholding order and/or reporting restrictions are clearly stated in the orders made, and explained (at least briefly) in the judgment. When approving its judgment for publication, the court should similarly ensure that the frontispiece is endorsed with a clear warning as to any relevant order which has been made.

We return to the applications made in the present case.

The applicant relies on the proposed fresh evidence referred to in paragraph 26 above. None of that evidence specifically explains why the orders sought are necessary in the context of this appeal. Ms Ahluwalia submits, however, that it is self-evident, particularly having regard to the psychologist’s report, that disclosing the applicant’s identity would seriously interfere with her Article 8 rights; whereas, she submits, disclosing the applicant’s identity would not add significantly to the public’s understanding of this case. In those circumstances, she submits, anonymisation is necessary and proportionate.

In support of her submissions, Ms Ahluwalia points to a passage in AAD at [3] in which the court said that the United Kingdom’s international obligations under various instruments aimed:

“…to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings.”

Mr Ray submits that the applicant has not satisfied the burden of establishing, by clear and cogent evidence, that it is necessary to derogate from open justice. He points out that the applicant has not sought asylum; has not been involved in immigration proceedings in which an order has been made for her anonymity; is not at risk of re-trafficking; and does not assert that refusal of her application would put her at risk of harm.

Even accepting that the applicant is a VOT/VMS, the points made by Mr Ray are in our view compelling. This is not a case in which the applicant suggests that there is evidence of a threat which would engage her rights under Articles 2 (right to life) or 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention. In contrast to the facts of some of the cases cited to us, there is here no evidence that identification of the applicant by this court would expose her to risk of reprisals by those whom she feared. She made her allegations against those persons at her trial three years ago, when she was not anonymised, and her identity has in any event been known to the men concerned for several years. In those circumstances, granting her anonymity in these proceedings could not provide her with any meaningful additional protection.

Similarly, we are not persuaded that identifying the applicant as a victim of trafficking and sexual violence would be so serious a breach of her Article 8 rights as to necessitate a derogation from open justice. We recognise, of course, that it is distressing for the applicant to have such matters discussed in a public court; but that is often an unhappy but inevitable consequence of criminal proceedings, and there is no evidence that reference by this court to personal matters which she has already disclosed at her trial would have adverse consequences for her mental health.

Further, whilst Ms Ahluwalia may be correct to say that identification of the applicant would not significantly enhance public understanding of this case, that is not the test. In accordance with the principles which we have explained, a person seeking a derogation from open justice must put forward cogent evidence as to why the derogation is necessary. We are satisfied that the applicant has not been able to do so.