In the Media

Fury at 'draconian' ban on naming of accused soldiers

PUBLISHED November 8, 2006

Media organisations are to challenge an order banning reporting of a trial involving nine soldiers facing smuggling and firearms offences.

The order, imposed in a court martial by Judge Advocate Burn on Monday, has prompted a furious reaction. 
Media lawyers, who knew nothing of the order in advance, say it does not appear justified on the grounds of security or risk to the soldiers concerned, or because publicity might prejudice a further trial.

The order, under the Contempt of Court Act 1981, is the latest and, lawyers say, most draconian in a series of recent banning orders imposed in courts martial.

It prohibits the naming of any of the soldiers from the Yorkshire regiment involved or any description that could lead to their being identified. All that can be mentioned is their rank and military unit.

The Times plans to challenge the order, together with the Mirror Group and the BBC.

Gill Phillips, a solicitor with Times Newspapers, said: ?A blanket anonymity order has been imposed here without newspapers having had any chance to put counter-arguments. These soldiers are accused of ordinary criminal activities. Yet it seems as if they are being given exemption from the principles of open justice that apply in ordinary criminal proceedings.?

One problem, she added, was that there was no right of appeal. Courts martial are outside the scope of the Criminal Justice Act 1988. Lawyers believe this was an oversight, and an amendment is included in the Armed Forces Act, which received Royal Assent yesterday, to give a media right of appeal.

Marcus Partington, head of the legal department at Mirror Group newspapers, said: ?Increasingly and far too easily courts and courts martial in this country are overturning the principle of open justice.?

A similarly far-reaching order was imposed recently in relation to the ongoing court martial of seven officers and soldiers accused of war crimes and other offences in Iraq.

The order allows publication of the names of the men, who include Colonel Jorge Mendonca, 42. But the media is banned from revealing the men?s addresses or those of their next of kin, the areas where they live, descriptions of them or images of their faces.

Commenting on the latest ban, Stephen Suttle, QC, a leading media law specialist, said: ?It is hard to see what the grounds for this might be.?

He said that only in exceptional cases could the principle of open justice in criminal proceedings be departed from. One was where justice might be put at risk, the other where people?s safety might be endangered. Yesterday a spokesman for the Judicial Communications Office insisted that the order was regarded by the judge advocate as ?interim?.

He said: ?The judge is inviting, and would welcome, applications by the media on whether the order should stay or be lifted.?

A hearing date had been set for December 14.

Mr Partington suggested that to stop similar bans all courts martial should ?follow the system which has recently been introduced in the Family Divison whereby the media are given advance notice of any application to restrict the reporting of proceedings.

?Until that is done in every case, over-restrictive and unjustified orders will continue to be made which prevent the public ? unjustifiably ? knowing what is going on.?

In 2003 four soldiers were accused at a court martial of ill-treating Iraqis at a food storage facility near Basra. Reporting restrictions were imposed because the trial was split into two, and coverage of the first might, it was said, have influenced the outcome of the second ? even though no jury was involved.

Mike Dodd, the editor of Media Lawyer, said: ?The restrictions on reporting these proceedings are quite outrageous. The principle of open justice has been utterly disregarded. This is the latest stage in what begins to look like an attempt to prevent the media from reporting any court martial.

?I have no doubt that the justification is the ?risk? of a possible threat to the defendants? safety ? but it does not justify such a draconian order, which makes them all anonymous.?