Last week, a Metropolitan Police Officer, Imran Mahmood, was named as the officer facing prosecution for grievous bodily harm after a man was paralysed following discharge of the officer’s taser.  Mr Mahmood was named following an unsuccessful attempt by him to be granted anonymity on the basis that his identification was contrary to his Right to Life under Article 2 of the European Convention of Human Rights.

The power of the court to put such an order in place derives from Common Law and the court’s inherent jurisdiction, but had the application been granted, it would have taken the form of an Order under S.11 of the Contempt of Court Act 1981.  The application related to Mr Mahmood’s name, address and images which might identify him – if successful, those details would have been withheld from open court, and a S.11 Order put in place preventing their publication.

It is worth noting at the outset that Article 2, the Right to Life, is an absolute right and therefore if it is engaged there is no balancing exercise to carry out, like there is when we are discussing Article 8 (Privacy) versus Article 10 (Freedom of Expression) – which are qualified rights.

The crux of the application was that the victim, Mr Walker-Brown, is allegedly connected with “criminal elements” and there was therefore a risk to Mr Mahmood’s safety if he was identified as the officer concerned in the criminal proceedings.  In support of his application, the police submitted a risk assessment relating to the threats faced by Mr Mahmood.

The application was objected to by the prosecution, in addition to 5 media organisations and PA.

The starting point is that in order to obtain the anonymity order on Article 2 grounds, the applicant needs to demonstrate a risk to life or of serious physical harm which is “real and immediate” and supported by “cogent evidence”.  Further, evidence of the generalised risk of harm is not enough – the evidence needs to show specific identified threats (other than those made on social media).

The treatment by the courts of threats made online and on social media is interesting to note, with the judgment from an earlier case (RXG v Ministry of Defence and others [2020] QB 703), referenced in this case, stating:

“The only evidence of identifiable threats comes from social media and online comments. Undoubtedly these are unpleasant. However, the disinhibiting effect of posting online, often with the benefit of anonymity, is well-recognised. It is also, sadly, a feature of modern life that individuals are prepared to use language online that they would never use in person, and make threats of a kind they would never carry out. Such posts may be made for a number of reasons, and violent and threatening language can be frightening for those at whom it is targeted. Nevertheless rhetoric and invective is generally insufficient, without more, to amount to a credible threat of violence…”

It is clear that the bar for obtaining an anonymity order on Article 2 grounds is a high one, and it recognises the importance of the media being able to report criminal trials in their entirety.

Senior District Judge Goldspring found that the evidence provided in Mr Mahmood’s case did not reveal a clear and identified threat, with the evidence instead being general, non-specific and speculative. Judge Goldspring also noted that the risk assessment provided by the police should be treated with caution because it was, in his opinion, “not a work of objective analysis” and instead “written to meet an unidentified goal from a reputational standpoint” using a standard template.

Judge Goldspring further notes in his written ruling that the risk assessment offered “no analysis, at least no proper specific analysis”, rather containing “generic assertions about retribution”.

The ruling goes on to state that:

“Whilst the document identifies a legitimate basis to associate the victim with other criminal elements, the suggested risks remain speculative. Nowhere …. are there overt threats to life or of serious bodily harm made by anyone allegedly associated with these criminal elements. Of course, I am not naïve to think that those with such associations are not capable of violence or that previous events may have demonstrated that the fact that someone is a police officer has deterred them. That , however, is not the test, it is a quantum leap from the fact that it CAN happen to cogent evidence that such an imminent threat exists in this case, otherwise every case with a link to gangs would merit an anonymity order, not even the applicant seeks to persuade the court that that is a correct approach to such applications.”

Additionally, the ruling notes Mr Mahmood’s unusual position of being a serving police officer who is accused of a crime against a member of the community.  However, the Judge said that the “risk of repercussions” faced by Mr Mahmood does not appear “to be substantially different from those which frequently arise in the context of serious crime, particularly inter gang crime, if indeed that is relevant here”.

In his conclusions, Judge Goldspring noted that whilst the risk assessment presented in evidence “identifies a legitimate basis to associate the victim with other criminal elements, the suggested risks remain speculative. Not a single specific threat is evidenced, let alone imminent”.

In the end, it appears that Judge Goldspring’s decision in this case was clear-cut – no evidence of a specific, real and immediate threat meant no anonymity order.

So, what should we take away from this case?

There have been a spate of applications recently in which police officers accused of misconduct or criminality have sought anonymity.  The basis of those applications has varied, although the adverse effect on the officer’s health that publicity would (allegedly) cause, has been the most popular.    Whilst applications for anonymity based on Article 2 grounds are relatively rare, anecdotally, they do seem to be becoming more common.  That said, the law is very clear – the bar to obtain such an order is a high one, and this case provides a very useful reminder of the relevant principles and their application.

Imran Mahmood indicated a not-guilty plea when he appeared in court on 28^th April.