National newspapers and broadcasters are getting together to challenge a reporting restriction order which bans the media from naming any of nine soldiers from the Yorkshire Regiment who face a court martial on firearms and smuggling offences.
The troops, from the 3rd Battalion of The Yorkshire Regiment (The Duke of Wellington's Regiment), are alleged to have smuggled guns out of Iraq to trade for drugs and cash, according to the Ministry of Defence.
The reporting restriction order, made on Monday at a preliminary hearing at Catterick by Judge Advocate C R Burn, prohibits the media from naming the accused soldiers – they may only be identified by reference to their rank and military unit.
The order also bans the publication of "any description of any of the accused which could lead to the recognition or identification of that particular defendant".
It also bans the use of photographs of the defendants, and the use of their addresses or even the areas from which they come, as well as banning the publication of the addresses of their next of kin, if they are different.
It also warns that any breach of the order "would be reported for proceedings to be taken for contempt before the Divisional Court and would almost certainly result in consideration of a sentence of imprisonment for that contempt".
The order caused outrage among in-house lawyers with national newspapers and broadcasters, both because of its breadth – it is thought to be the first time that a Judge Advocate has banned the press even from naming defendants on the grounds of what the order calls "the well established general security risks associated with anyone who has taken part in operations in Iraq" – and because it was made without any notice of the application having been given to the media.
Media law specialists also say the order does not appear to be justified, either on security grounds, or because of any potential risk of prejudice to the trial.
Times Newspapers, the Mirror Group and the BBC were planning to challenge the order.
Marcus Partington, head of the Editorial Legal Department at Mirror Group Newspapers, said: "Although time and time again the higher courts reiterate the importance of the principle of open justice – particularly in criminal matters – further down the court system there often seems to be very little sympathy with this principle.
"There seems to be an antiquated view that it is somehow all right to make an order – even if it isn't right – because the media can always come back and challenge it if they don't like it.
"This is exactly the opposite of what should happen and is, in effect, an abdication of responsibility by the courts.
"However, until lower courts are given clear and unambiguous instructions that they must give the media an opportunity to make representations before an order is made, bad and over-restrictive orders will continue to be made with the effect that the public are denied information which they are rightly entitled to."
Gill Phillips, a solicitor with Times Newspapers, said: "A blanket anonymity order has been imposed here without newspapers having had any chance to put counter-arguments.
"These soldiers are accused of ordinary criminal activities. Yet it seems as if they are being given exemption from the principles of open justice that apply in ordinary criminal proceedings."
One problem, she added, was that courts martial were at present outside the scope of the Criminal Justice Act 1988, and at present there was no right of appeal.
It is thought this was an oversight, and an amendment was made to the Armed Forces Act 2006, which received the Royal Assent today, which will give the media the right to appeal against such orders.
Media law specialist Stephen Suttle QC, an expert on reporting restrictions, said it was hard to see what the grounds for the order might be.
Only in exceptional cases could the principle of open justice in criminal proceedings be departed from – one was where justice might be put at risk, the other where people's safety might be endangered, he told The Times.
A spokesman for the Judicial Communications Office insisted that the Judge Advocate who made the order regarded it as being "interim".
"The judge is inviting, and would welcome, applications by the media on whether the order should stay or be lifted," he said.
But he was unable to say who had applied for the order, and why the media was not notified in advance that it was being made.