R (Associated Newspapers) v Lord Justice Leveson: Challenge to Anonymity Ruling Dismissed

 

Background

At a preliminary hearing on 26 October 2011 the Chairman said that a number of people had expressed an interest in providing evidence to the Inquiry but only under conditions of anonymity.  Submissions were heard on the issue an on 9 November the Chairman handed down a four page document headed “Ruling on Anonymous Witnesses” [pdf]  The Inquiry subsequently circulated draft Protocol on anonymity applications.  Following further submissions on behalf of Associated Newspapers, the Chairman gave a further Ruling on Anonymous Evidence [pdf] and circulated a finalised Protocol regarding Applications for Anonymity [pdf].  It should be noted that, under paragraph 9 of the Protocol

Where any person gives anonymous evidence about a particular media company, or title, except for the News of the World, then the Inquiry will usually expect that the identity of the company or title will be redacted and will not be referred to in evidence.

Lord Justice Toulson (with whom Sweeney and Sharp JJ agreed) summarised the effect of the Chairman’s rulings on anonymity as follows:

He has made a positive decision in principle to receive anonymous evidence from journalists who wish to conceal their identity because of fear of career blight, but that is a general ruling. When he comes to deal with individual applications for anonymity, he will scrutinise carefully what the witness says about his personal and professional circumstances and how far he thinks that the evidence will advance the purposes of the Inquiry. [32]

Associated Newspapers contended that allowing employees or former employees of press organisations to give evidence against those organisations anonymously would be unfair and so would contravene the principles of natural justice.  In addition, it was contended there was a lack of openness and a breach of Convention rights [33] to [34].

It was argued that the Chairman had failed to give any or adequate attention to the reputational or “class libel” risk to the claimant and other newspaper organisations. It was said that career blight could not be a sufficient reason for exposing the media organisations to the risk of anonymous class libel [38].

Judgment

Lord Justice Toulson said that the starting point for considering the Chairman’s duty of fairness was the purpose of the Inquiry. It is also important to understand in outline the situation which gave rise to the ruling [41].  Journalists had approached the Inquiry wishing to give evidence anonymously.

The Chairman had to address the issue of how he should respond in general to such requests.  It was held that this issue gave rise to the following questions [44]:

 1.   Was there a credible basis for thinking that there were witnesses who had relevant evidence to give but who would not do so unless they had a prospect of anonymity because of real fear of career blight?

2.  If so, was it likely to be better for the purposes of the Inquiry, i.e. in the public interest, to admit such evidence (subject to relevance), with its obvious and unavoidable limitations, than not to have it?

3.  If so, would its admission be likely to cause such prejudice to the claimant, and other newspaper organisations, that it would be unfair to admit it notwithstanding the detrimental effect from the viewpoint of the purposes of the Inquiry and from the viewpoint of other interested parties?

Question 1 was a question of fact and Question 2 involved an evaluation of what would be best in the interests of the Inquiry.   On those questions Associated Newspapers had to show that the Chairman’s answers were Wednesbury unreasonable.   They could not do so.  He was plainly entitled to reach the conclusions he did ([49] and [50]).

As to Question 3, it was for the court to decide whether it would be unjust, “but in doing so the court must recognise that the Chairman is in a far better position to assess and balance the degree of prejudice which may be caused to different parties” [47]

It was accepted that there was a risk of prejudice to Associated Newspapers and other newspaper organisations.  However,

it is of the greatest importance that the Inquiry should be, and seen by the public to be, as thorough and balanced as is practically possible. If the Chairman is prohibited from admitting the evidence of journalists wanting to give evidence anonymously, there will be a gap in the Inquiry’s work, although the material (or similar material) is already in a real sense in the public domain [53].

The Judge went on to point out that the Inquiry is not the same as criminal or disciplinary proceeding.  More generally,

In determining where fairness lies in a public inquiry, there is always a balance to be struck. I am not persuaded that there is in principle something wrong in allowing a witness to give evidence anonymously through fear of career blight, rather than fear of something worse. Fear for a person’s future livelihood can be a powerful gag. [55]

He recognised that the ruling might cause damage to newspaper proprietors but

It is also important to recognise that the evidence in question will be part of a much wider tapestry and that it is open to the claimant and others to present balancing non-anonymous evidence [56].

Comment

The decision of the Administrative Court is unsurprising.  Decisions of this kind are matters for “case management” by the Inquiry Chairman after balancing all the interests involved and are extremely difficult to challenge.  More generally, there is a strong argument that without anonymity, journalists whose livelihoods depend on newspaper companies would be unwilling to speak freely.

A number of commentators have questioned the motivation of newspapers complaining about anonymous evidence. In his post “The Daily Mail, Leveson and Anonymous Witnesses: Fourt kinds of Hypocrisy” Brian Cathcart suggested

The Mail complaining about anonymity is like a pornographer complaining about decency. It should be laughed out of court. But it is worse than that, because it is also intimidation. Who can doubt that the Mail’s real motivation here is to deter people who fear the paper’s huge power to destroy reputations from telling Leveson what they know?

Whatever Associated Newspapers’ motivation, it is plain the press does not always show a high degree of concern about fairness and reputational damage resulting uncheckable anonymous allegations in their own stories.   It is to be hoped that the same degree of sensitivity will be shown, in future, to those who are the subject matter of press attention.

Associated Newspapers were not happy with the result and indicated that they were considering an appeal.  In a statement they said that

‘It is our view that the decision of the Leveson Inquiry to admit anonymous evidence is unfair to all newspapers as it allows unsubstantiated allegations to be made without it being clear which papers they refer to and without it being possible for such allegations to be challenged or investigated.

While we welcome the fact that the Divisional Court acknowledges that anonymous evidence gives rise to a risk of prejudice to newspaper organisations, we are disappointed by the decision and are considering an appeal.

Meanwhile, the Leveson Inquiry can continue with its work.  Observers look forward, with interest, to the evidence that journalists will give about the culture and practices of their employers.