Carswell LJ's decision was upheld by the Court of Appeal in which MacDermott LJ, giving the judgment of the court, agreed that a court has an inherent power to control the conduct of its proceedings, including, in exceptional cases, the power to exclude the public, and went on to say:
[21] A somewhat more restrictive view of the "inherent powers" of statutory courts and tribunals was taken by Hickinbottom J in R v Asylum and Immigration Tribunal and Anor ex parte V [2009] EWHC 1902 (Admin) in which he noted that the AIT was purely a creature of statute and, as such, it was not equipped with the sort of inherent powers exercisable by the High Court. However, he expressed the view that such tribunals were entitled to exercise implied powers and referred to the well-settled law that it is justifiable to imply words into legislative provisions where there was an ambiguity or an omission and the implied words were necessary to remedy such defect. He qualified this observation by emphasising that what was "necessary" by way of implication would depend upon the nature of the Tribunal and its work together with the express powers given to it by the legislative scheme. In respect of any tribunal with a judicial function he considered that it must be assumed (at least in the absence of the clearest wording) that Parliament intended the Tribunal to deal with cases fairly and justly.
[22] It seems to us that the applicant faces a number of problems in advancing this submission based upon "inherent powers". In the Belfast Telegraph case the Divisional Court specifically held that:
[23] In a case that was concerned with an attempt to prevent publication of the surname of an adult charged with murder in order to protect the Article 8 rights of her child the House of Lords in In Re S [2005] 1 AC 593 gave specific consideration to the inherent jurisdiction of the Family Division of the High Court to restrain publicity and, having done so, Lord Steyn confirmed the unanimous view of the House that since the coming into force of the Human Rights Act the earlier case law did not need to be considered, stating at paragraph [23]:
[24] In Attorney General's Reference No. 3/1999 [2009] UKHL 34 the House again emphasised that it was no longer necessary to resolve doubts about the vires or scope of legislation, including Section 11 of the 1981 Act, because the House was bound to act compatibly with any relevant Convention rights.
Discussion
[25] In our view the District Judge was correct in his approach to the application under Section 4(2) of the 1981 Act insofar as he excluded the danger of an attack upon the applicant from his consideration. While the decision upon which he placed primary reliance, namely, the Belfast Telegraph Newspaper's case, pre-dated the coming into force of the Human Rights Act 1998, such an approach appears to be consistent with those authorities that post-date that event. For example in the Soldier B case the court of appeal appears to have viewed the affect upon the administration of justice and the risk to the lives of the soldiers as disjunctive reasons for he making of anonymity orders.
[26] The District Judge appears to have considered that the decision in the Trinity Mirror case supported the proposition that the relevant powers of his court were restricted to section 4(2) of the 1981 Act and that "Convention considerations are a matter for the High Court." We do not accept such a proposition which would, in practice, as he correctly foresaw, "cause real difficulties" for defendants." In our view it is important to bear in mind the nature of the application in the Trinity Mirror case, namely, an application to prevent publication of the identity of a defendant convicted of possessing indecent images of children in the interest of protecting his own children, who were not involved in any way in the proceedings, from the risk of emotional and traumatic stress and bullying. As Lord Steyn pointed out at paragraph 26 of the judgment of the House in Re S (FC) , a similar case, such an application was for an injunction beyond the scope of the statutory remedy provided by Parliament to protect juveniles directly affected by criminal proceedings and no such injunction has been granted in the past under the inherent jurisdiction or the provisions of the ECHR to non-parties, juvenile or adult, in respect of the publication of criminal proceedings.
[27] However, we are satisfied that, post October 2000, the District Judge, as a public authority within the meaning of section 6 of the Human Rights Act 1998, was under an obligation to consider and, if appropriate, take steps to protect the applicant's human rights. In that context the applicant's Article 2 rights were freestanding and did not require to be grafted on to any other statutory or common law provision.
[28] In Guardian News and media Ltd [2010] UKSC 1 the Supreme Court recently gave guidance in relation to the use of anonymity orders. In dealing with cases said to involve a risk to personal safety Lord Rodger, delivering the unanimous judgment of the Court, said at paragraph 26:
At paragraph 30 Lord Rodger confirmed that the Human Rights Act had removed any doubts that might otherwise have existed about the availability of a remedy in English law.
[29] However, as noted earlier, in the event that he did have power, the District Judge expressly went on to consider the applicant's Article 2 rights, in accordance with the decision of the House of Lords in Re Officer L. In so doing he asked himself whether the applicant's life was subject to a "real and immediate" risk defined in accordance with the approved test set out by Weatherup J in Re W's Application [2004] NIQB 67 as:
The District Judge gave careful consideration to the guidance given by Lord Carswell in Re Officer L and, after taking into account the factual evidence, concluded that there was a threat to the life of the applicant that was both real and immediate. He reminded himself that it might be necessary in some future case to consider what steps, if any, the court should reasonably be expected to take in striking a fair balance between the general rights of the community and the personal rights of the individual in accordance with the decision in Osman v United Kingdom (2000) 29 EHRR 245 at paragraphs 115-116. However, unlike the situation in the Soldier B case, he considered that this application faced a more fundamental problem in that the identity of the applicant was already known to those who might wish to harm him as a result of the article in the Irish News and confirmed by the graffiti in Lurgan and the PM1 form delivered by the police. He also recorded that the applicant, together with his co-defendants, had appeared in open court. In the circumstances he concluded that there was no basis for believing the order sought would serve to protect the applicant. The decision reached by the District Judge was based upon the factual evidence and detailed submissions that were put before him and that, in our view, was a conclusion that he was entitled to reach. It was certainly not a conclusion that could be impugned as irrational.
[30] Before this court Mr McGleenan accepted that the applicant's advisors could have asked District Judge for the applicant to be referred to by an alphabetical letter or number but noted that no such application had been made upon his behalf. By way of reply Ms Quinlivan maintained that the applicant had sought anonymisation together with a reporting restriction during the course of his appearance at Lisburn Magistrates' Court on 26 March 2009 and that such orders were made by the District Judge hearing the application upon that occasion. In fact, the order made by the District Judge on 26 March 2009 was an order in accordance with Section 4(2) of the 1981 Act postponing publication of any facts which might lead to the identification of the accused, the dates contained in the charge and the dates of the application for postponement until the next remand on 17 April 2009. The District Judge was inclined to the view that he did have power to make a restricted order granting anonymity to the applicant but not extending to any other details of the case but did not consider that any such order would provide protection for the same reasons.
[31] In Guardian News and Media Lord Rodger when referring to Article 8 said at paragraph 28:
[32] In the course of his submissions on behalf of the B.B.C. Mr Larkin suggested that the court ought to have accepted that it had power, and a duty under section 6 of the 1998 Act, to protect the appellant's Article 2 rights and then proceeded to use that power as a foundation upon which to issue an anonymity order in accordance with section 11 of the 1981 Act. In support of this submission Mr Larkin drew the attention of the court to the reference to section 11 in the Soldier B case. After pointing out that section 11 did not itself confer any power to grant anonymity, Latham LJ, at paragraph 16 of his judgment, emphasised the distinction between the common law power to be exercised in connection with the administration of justice, specific statutory exceptions and Article 2 of the Convention. He was satisfied that the relevant statutory power, section 94(2) of the Army Act, was not relevant and held that in order to make any order for anonymity the court would have to be satisfied that either the administration of justice would be seriously affected or there was a "real and immediate" risk to the lives of the soldiers if anonymity was not granted. Having considered the evidence he said at paragraph 18:
After accepting that three other soldiers were also at risk by association the court proceeded to direct that their names should be withheld and that appropriate orders should be made under section 11.
.
[33] However section 11 was also the subject of comment in the Guardian News and Media case when Lord Rodger said at paragraph 31:
As indicated above the applicant's advisors did not seek to persuade the original District Judge to withhold the applicant's identity when the case was first listed and in the circumstances it is difficult to see the basis for applying for an order under section 11 at this stage – see R v Arundel Justices ex parte Westminster Press [1985] 1 WLR 708.
[34] We consider that the District Judge was correct in his interpretation and application of section 4(2) of the 1981 Act. In our view he did have power to make an anonymity order in order to protect the safety of the applicant by virtue of Article 2 of the Convention and section 6 of the Human Rights Act 1998. However, in view of his factual findings there is nothing to be gained by remitting the case to his jurisdiction. Accordingly the application will be refused. The applicant is of course free to renew his application to the Magistrates' Court should he believe such a course of action to be warranted by fresh evidence and/or alternative legal argument. In the meantime the High Court injunction remains in force.