Sinn Fein man behind major Brexit Protocol legal challenge will remain anonymous, court rules

The individual – who is known only by the cipher JR181(3), but whom we will call Mr X – is one of two people behind a major court challenge last month against Edwin Poots’ decision to cease protocol checks at the Province’s ports

Today’s judgement comes eight days after an attempt by the News Letter to have the secrecy order lifted.

Here is how the whole saga unfolded.

After many months of implementing the Protocol by inspecting goods entering NI from GB, by February 2022 farming minister Edwin Poots felt confident that a solid legal basis had been established for stopping the checks.

He issued an order to halt them on February 2 – but it did not last long.

That’s because, two days later, two people – a man called Edward Rooney (who is not a Sinn Fein member) and Mr X – challenged this move in court, by seeking to have judges rule on the legality of what Mr Poots had done.

High Court judge Mr Justice Colton then suspended Mr Poots’ ‘halt order’, saying that until the case is fully sorted out, the sea border checks should continue.

The News Letter was puzzled about why, on such an important and politically-valuable case, one of the main actors was being allowed to keep their identity secret, especially given their political connections.

In simple terms, it turned out that Mr X’s request for anonymity was based on a perceived risk to his security.

WHAT WAS MR X’s CASE?:

Some further details surrounding the alleged threat level faced by Mr X were revealed in court today.

Mr X said he was “extremely concerned by the nature of the language used by some prominent politicians regarding ‘guerrilla warfare’, destroying the Northern Ireland Protocol, and by the threats that were made to staff at the border port checks”.

Mr X further added that he was “previously the recipient of death threats in the 1990s and 2000s”.

He added: “Whilst I am a member of Sinn Fein, I am not an elected representative and never have been...

“I appreciate and understand the significance and importance of this case, but I do not see this case in any way as a political one – it is a legal one and one of the utmost importance.”

He also stressed he was not taking the case at the behest of Sinn Fein.

...AND WHAT DID THE NEWS LETTER SAY?

The News Letter put forward a host of counter-arguments, via this reporter, summarised as:

> There should be a general presumption against anonymity in such a case, given how politically-charged it is;

> Since there was another applicant, namely Mr Rooney, there was no need for Mr X to be involved at all;

> In any event, Mr X must surely have been advised at the outset that there was no guarantee he would get anonymity;

> To the best of this reporter’s knowledge, no unionist politician has actually directly threatened violence over the protocol as implied by Mr X, and the most specific such example presented to the court – the use of the phrase ‘guerilla warfare’ – stems from a single and obviously metaphorical remark by Sammy Wilson in the Irish Times, and hardly constitutes evidence of an actual physical threat;

> In 2017 Parliament decided that donors who give £1,500 or more to political parties should be publicly named, despite claims that their security may be compromised (something which Sinn Fein supported) – therefore, why wouldn’t the same principle apply to someone taking a court action of constitutional significance?

THE RULING:

Handing down his judgement today, Mr Justice Colton said: “The starting point for the court is that the parties in legal proceedings and in these proceedings should be named and known to the public.

“This is in accordance with the common law principle of open justice...

“Any derogation from those principles in the form of a reporting restriction needs to be strictly justified and necessary.”

He said that Mr X’s case for anonymity rests on Article 2 of the European Convention on Human Rights (the right to life) and Article 8 (the right to a family and private life).

He noted that “applicants have been granted anonymity in Brexit-related applications”.

For example there was a case known as Yalland & Ors v Secretary of State for Exiting the European Union in 2017, which saw a Divisional Court in England grant anonymity to four people who were taking a Brexit-related court case, based on the threats made earlier against Gina Miller, a prominent anti-Brtexiteer.

This has become something of a touchstone case in favour of anonymity, and Mr Justice Colton quoted from that judgement, as follows: “[M]embers of the public should be able to bring a legal challenge such as the present without an objectively justified fear as to the possible repercussions for their or their families’ safety...

“We consider that there is no public interest arising from the publication of the names of the Claimants which could possibly outweigh the risk that we have found in the present case.”

Turning to the case of Mr X, Mr Justice Colton said: “I am satisfied that on the applicant’s evidence if he is named there is a real risk of him being exposed to violence, threats of violence and other criminal acts.

“This is because of the highly charged background to the protests against the Protocol, which have unfortunately resulted in acts of violence and threats of violence.

“I am satisfied that the risk is a real one... It is immediate in the sense that it is present and continuing as the controversy relating to the Protocol rages on...

“Given the concerns raised by Mr Kula it is important to stress that the applicant is not being granted anonymity because he is a member of Sinn Fein.

“In the court’s view that would not be sufficient to justify making such an order.

“Because of the court’s conclusion I am satisfied that the principle of open justice must yield to an extent to the applicant’s Article 2 rights.”

He concludes that “the publication of the applicant’s name will not add anything to a proper understanding of these proceedings or the issues involved”.

• News Letter editorial: If people take political legal cases, they must be identified