April 25, 2024

RMI -v- Secretary of State for the Home Department (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Claim number: AC-2024-LON-001397

In the High Court of Justice
King’s Bench Division
Administrative Court

25 April 2024

Before:

The Honourable Mr Justice Eyre

Between:

The King on the application of
RMI

-v-

Secretary of State for the Home Department

Order

On an application by the Claimant for interim relief

Following consideration of the documents lodged by the Claimant

AND UPON it appearing that non-disclosure of the identity of the Claimant is necessary in order to secure the proper administration of justice pursuant to rule 39.2(4) of the Civil Procedure Rules and section 11 of the Contempt of Court Act 1981 and rules 5.4C of the Civil Procedure Rules

ORDER by the Honourable Mr Justice Eyre

1. The Claimant’s application for anonymity is granted, and pursuant to CPR Rule 5.4A-5.4D and Rule 39.2, with effect from the date of this order and until further order:
(a) The Claimant shall hereinafter be referred to in these proceedings as RMI” and there shall be substituted for all purposes of this case, in place of references to the name of the Claimant, reference to “RMI;
(b) There shall be no publication of any name, address, picture or other information likely to lead to the identification of the Claimant as being the Claimant in these proceedings;
(c) In paragraph (b) “publication” means communication to the public or any section of the public whether by way of report of the proceedings or otherwise. It includes publication in a newspaper or broadcast, or on the internet, by any person;
(d) The Defendant, and any party served with or given notice of the anonymity order, has permission to apply to discharge or vary that order. Any application for that purpose must be made in writing, on notice to all parties;
(e) Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (i) the Claimant is referred to in those documents only as “RMI”; and (ii) any reference to the name of the Claimant be deleted from those documents
(f) Any application for permission to inspect or obtain a non-anonymised version of a document must be made on notice to the Claimant and in accordance with CPR r.5.4C(6).

2. The application for interim relief is refused.

This order has been made without a hearing. Any party affected by this order may apply within 7 days of the service of this order on that party to have it set aside, varied, or stayed.

Reasons

1. I have regard to the important public interest in open justice and have significant reservations as to anonymisation in light of the Claimant’s offending history. However, on balance in light of the Claimant’s personal circumstance I am satisfied that at this stage it is necessary in the interests of justice for the case to be anonymised.

2. I have regard to the criteria for the grant of interim relief in a claim for judicial review. Those are summarised in the Administrative Court Judicial Review Guide at 16.6. In short I have to consider whether a real issue to be tried has been shown and then to consider the balance of convenience. The underlying strength of the substantive claim can be a relevant factor at the latter stage and will often be a significant factor (see per Lindblom LJ in R(X) v OFSTED [2020] EWCA Civ 594 at [66]).

3. When considering the balance of convenience I am also to have regard to the public interest in allowing the lawful decisions of a public body to be implemented.

4. For the following reasons it is debateable whether a real issue has been shown. However, to the extent that has been done it is only by the narrowest of margins. The strength of the underlying case is a very relevant factor here and this is a weak case where the balance falls heavily against the grant of interim relief.

5. The contention in ground 1 is that the instruction to have no regard to the risk of re-trafficking outside the United Kingdom is an unlawful fettering of discretion and/or a breach of the Defendant’s Article 4 obligations. I will assume that a real issue has been shown in that regard. However, there is real scope for debate as to whether the risk of re-trafficking overseas is a material consideration which can have any weight against the threat to public order and still more as to whether it is a matter of which any proper assessment can be made in the circumstances here. The prospects of this ground succeeding are marginal at best.

6. In terms of ground 2 it is open to the Defendant to have a policy setting out the relative weight which is to be given to different considerations. Ground 2 focuses on para 14.267 of the Guidance and says that and the balance of the Guidance amount to directing that the need for modern slavery protections can never outweigh the public order and public interest considerations. However, that is an artificial reading of the Guidance which clearly contemplates that there will be cases where the need for those protections will outweigh the public interest considerations. If that were not so there would be little point in the bulk of the Guidance or in the “case-by-case balancing” which para 14.265 directs is required. It follows that the prospects of the policy being seen as an unlawful fettering of discretion are also marginal at best.

7. Ground 3 adds nothing to grounds 1 and 2. If it was properly open to the Defendant to give the Guidance in the terms he did then the application of that guidance in the circumstances here cannot credibly be faulted.

8. Moreover, this appears likely to be a case where permission is to be refused pursuant to section 31(3D) of the Senior Courts Act 1981. Even without reference to the Guidance; even if there was no predetermination of the weight to be given to the public order considerations; and even if account were to be taken of the risk of retrafficking outside the United Kingdom it is highly likely that any assessment of the Claimant’s position for the purposes of section 63 of the 2022 Act would have led to disqualification. In that regard it is to be noted that:
a. There is a long history of repeated and persistent offending.
b. In sentencing the Claimant the judge characterized him as being a “co-leader” in the offending with that being offending where there was “significant planning”.
c. The Claimant has a history of violent behaviour while in prison and so in circumstances where the influence of those exploiting him was at the very least mitigated.
d. The risk of re-trafficking when outside this country is said to arise not because the Claimant will be vulnerable to exploitation by the same persons as have exploited him in this country but because his personal circumstances give rise to an inherent vulnerability to re-trafficking. That is a factor which can carry only very limited weight and which has no real prospect of outweighing the public order and public interest considerations.

9. This is close to being a case where it is appropriate to refuse permission at this stage. However, I am conscious that the matter is being considered as a matter of urgency without the scope for reflection which might otherwise be present and I do not take the step of declining permission.

10. I have taken account of the fact that the refusal of interim relief will mean that the Claimant will be removed from this country. I also take account of the fact that such removal will necessarily hinder the further progress of the case to some extent. However, even when regard is had to those matters the weakness of the Claimant’s case is such that the balance falls heavily against the grant of interim relief.