D and F v Persons Unknown: anonymity under the Venables jurisdiction

In D and F v Persons Unknown [2021] EWHC 157 (QB), handed down on 4th February, Tipples J granted an order permanently preventing the identification of two young women convicted of murdering Angela Wrightson.

Ms Wrightson was murdered in December 2014, in a case that attracted widespread publicity.  In 2016, two teenage girls – D and F – were convicted of her murder.  The case gave rise to extensive local and national media reporting, given the brutal nature of the injuries inflicted upon Ms Wrightson, and the fact that her killers were young girls.  In December 2014, the court made an order under s.39 Children and Young Persons Act 1933 (which at the time applied to criminal proceedings), preventing the identification of the two girls.  Unusually, given the “blitz of extreme and disturbing comments” posted on social media by the public during the opening of the first trial in July 2015, an order was also made under s.45(4) Senior Courts Act 1981, directing media organisations reporting on the trial to disable comments on sites reporting on the trial, to stop linking from or to such sites, including social media sites, and to refrain from tweeting about the trial.  Despite this, the first trial was discharged on the basis that the extreme social media activity by members of the public meant that the girls could no longer have a fair trial.  A modified version of the s.45(4) order remained in place during the second trial.

When the girls were sentenced in April 2016, the media applied to discharge the s.39 order preventing their identification.  The application was dismissed, the trial judge making clear that he was satisfied that Article 2 (at least in relation to F) and Article 8 ECHR were engaged given the risk that F and D would self-harm or commit suicide if identified. 

Orders made under s.39 Children and Young Persons Act 1933 lapse once the individual the subject of the order attains the age of 18 (see R(JC) v Central Criminal Court [2015] 1 WLR 2865, CA).  Accordingly, D and F sought a permanent order, against the whole world, that they could not be identified as the murderers of Angela Wrightson (this has come to be known as an order under the Venables jurisdiction, so called after such an order was granted in 2001 to protect the new identities of child killers Jon Venables and Robert Thompson). 

The court in this case recognised – as is now established – that the Venables jurisdiction is an exceptional one (at [62]).  (Indeed, around this time last year the Court declined to make such an order in the case of DXB v Associated Newspapers Ltd and others [2020] EWHC 134 (QB)).  D’s and F’s case was that, if their identities were revealed, Arts.2 and 3 ECHR would be engaged as they were both vulnerable by reason of a mental disorder and there was a very real risk of self-harm or suicide.  As Tipples J noted at [64], this appeared to be the first case under the Venables jurisdiction where the risk of death or serious physical harm came from the applicants themselves, rather than from others.  She held that this did not make a difference, and that – pursuant to s.6 Human Rights Act 1998 – the Court was under a duty to take all reasonable steps to exercise the Venables jurisdiction so as to prevent serious self-harm or suicide of a mentally disordered person under the state's care and control (at [69]).  She made clear that whether the exceptional jurisdiction should be exercised will depend on the quality of the evidence (applying the established principles as to the threshold required to be reached).  She rejected a “floodgates” argument, holding that notoriety was not the justification for the exercise of the jurisdiction in those circumstances (at [75]).

In previous decisions, which included decisions involving exercise of the Venables jurisdiction, different views had been expressed as to whether it is appropriate to consider striking any balance with Art.10 ECHR rights in cases where Arts.2 and/or 3 ECHR are engaged (at [76]).  Tipples J determined that, if she found Arts.2 and/or 3 to be engaged, she was bound by the decision of the Divisional Court in RXG v Ministry of Justice [2020] QB 703 (applying A v BBC [2015] 1 AC 588) not to balance these against any countervailing Art.10 rights (at [78]).

Turning back to the facts of this case, Tipples J held that, while it was plain from the evidence that there was ongoing media interest (with inevitable significant media coverage if the girls’ identities were revealed), the evidence did not demonstrate convincingly that in those circumstances there was a real and immediate risk of serious physical harm or death to either from third parties, not least given that there were ways of protecting them from attacks by other prisoners (at [88]-[89]).  Social media invective, of itself, was not sufficient (at [90]).

However, the medical evidence as to the risk of suicide and self-harm by F was “compelling” (at [92]).  Arts.2 and/or 3 were accordingly engaged, and there was no question of this risk being balanced against the media’s Art.10 rights (at [93]).  This was also determinative of D’s claim, given that it was accepted that F would be identified as a result of “jigsaw identification” if D’s identity were revealed (at [94]).  In any event, the medical evidence convincingly demonstrated that, if D’s identity were revealed, there was a real and immediate risk that she would self-harm (at [95]).

Tipples J also considered the position under Art.8 ECHR, in the event that she was wrong to find that Arts.2 and/or 3 were engaged.  In this scenario, a well-established balancing exercise needed to be undertaken between the competing Art.8 and Art.10 rights.  Despite acknowledging the strength of the Art.10 rights in circumstances where a criminal trial had been held in open court and widely reported (though subject to restrictions on identifying D and F), she held that this was an “exceptional case in which the balance is tipped very firmly in favour of” protecting the girls’ Art.8 rights (at [102]).

Inevitably, as with other cases that have considered the Venables jurisdiction, this case turns heavily on the facts (and in particular the evidence of likely harm if anonymity were lifted).  It nonetheless provides helpful clarity on the (non-)applicability of the balancing exercise where Arts.2 and/or 3 ECHR are engaged.