Anonymising Proceedings: Some Suggested Principles – Hugh Tomlinson QC

23 11 2010

It is clear from the recent case law that the courts must be vigilant when anonymity orders are sought by either party and especially vigilant when both parties agree on anonymity.  The Court will usually require evidence to support an application for anonymity and will need to carry out a careful balancing between the rights of the parties and the right of the public to open justice.  It is likely that, in the future, such orders will be much more difficult to obtain. On the basis of these cases it is now possible to suggest some principles which apply when a court is considering whether or not to make an “anonymity order”.

(1) The general rule is that the names of the parties to an action should be included in orders and judgments of the court.

This follows from the principle of open justice.  An order for anonymity is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large (See eg Bernard Gray v UVW [2010] EWHC 2367 (QB) [1]).

(2) With the exception of cases involving children or patients there are no classes of case which are excluded from this rule

Where the proceedings concern the welfare of a child or a patient then, in general, they will be anonymised.  The general practice in the Family Division is for judgments in ancillary relief cases, if published, to be anonymised (see Lykiardopulo v Lykiardopulo [2010] EWCA Cvi 1315 [79]).   However, ordinary civil claims brought by children are not routinely anonymised (see JXF v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB)).  The fact that the case concerns private information is not, of itself, a sufficient basis for making an anonymity order (see eg Bernard Gray v UVW [2010] EWHC 2367 (QB) [1]).

(3)  The burden is on the party seeking anonymisation to establish that it is “necessary” to protect his or her rights.

This follows from the first two points.  In order to displace the usual rule in a particular case, the party seeking anonymisation must demonstrate that there is a proper basis for interference with the Article 10 rights of the public and the principles of open justice.

(4)  An order for anonymity should not be made simply because the parties’ consent

The parties to private litigation cannot waive the rights of the public. (See eg Bernard Gray v UVW [2010] EWHC 2367 (QB) [33]).  It is often pointed out that “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.” (R v Westminster City Council, Ex p P (1998) 31 HLR 154, 163.)

(5)  Where the right said to be engaged is under Article 2 or 3 of the Convention it must be shown that there is a real and immediate threat to life or safety

The substantive obligations under Articles 2 or 3 are only engaged where there is a real and immediate risk to life or safety.  This must be a risk that is objectively verified and is present and continuing.  This is a high threshold (see Re Officer L [2007] 1 WLR 2135 [20]).   The subjective fears of a witness count only as evidence in favour of a real and immediate risk.  Subjective fear is neither necessary nor sufficient to establish a real and immediate risk (Ibid, [20]).

Against this risk must be balanced the reasonableness of the steps or precautions proposed.  Public interest factors, such as the credibility of a hearing, may be relevant are relevant considerations in carrying out an assessment of reasonableness (Ibid [21])

Different considerations apply to anonymising witnesses – the issue of one of fairness towards the witness. When considering this issue concerns other than risk should be considered, including subjective fears that are not well-founded (Ibid, para 22).  Anonymity has been granted to soldiers who were called as witnesses at the ‘Bloody Sunday’ inquiry (R v Lord Saville, ex p. A [2000] 1 WLR 1855 and to police officers in respect of an inquest into the death of a suspect shot by one of the officers (R (A) v HM Coroner for Inner South London [2005] UKHRR 44).

(6)  Where the right said to be engaged is the right to private and family life under Article 8 of the Convention, there is a “threshold of seriousness”.  If this is reached, the court must conduct a “parallel analysis” under Articles 6, 8 and 10.

Where a Court is considering whether or not the identity of a party to litigation should be disclosed, Article 8 is potentially engaged.  The following matters could constitute interference with a party’s Article 8 rights:

(a)        Disclosure of private information concerning the party.

(b)        Exposure of the party to risks to his or her psychological or physical integrity as a result of adverse public reaction to the litigation.

(c)        Adverse effects on relationships with others as a result of matters dealt with in the litigation (see eg In Re BBC, [19], per Lord Hope).

(d)       Damage to the party’s reputation: it is very well established that reputation is an aspect of the right to respect for private life. See eg Re Guardian News and Media [2010] UKSC 1.

Such interferences would require justification under Article 8(2).   However,

A threatened interference with the Art 8 rights of a claimant is not, by itself, always sufficiently serious to necessitate the imposition of an injunction or anonymity order” (JIH v News Group (No.2) [2010] EWHC 2979 (QB) [30]).

Of course, in ordinary civil litigation involving adults of full capacity the interference is likely to be slight and easily justified.  In ordinary criminal cases, the interference may be much more substantial but, in general, will be justified by the strong public interest in open justice and the criminal trial as “public event”.

In relation to Article 10, it is clear that any restriction on the reporting of court proceedings constitutes an interference with the rights of the media and the public to impart and receive information.  Such an interference would require justification under Article 10(2).

Reporting of court proceedings is a particularly important “category” of speech.  As a result, cogent justification is required for interfering with it: the need for the interference must be “convincingly established”.

This is reinforced by the right to a public hearing under Article 6 – which must also be brought into account.  It should, however, should be noted that the under the Convention (as at common law) interferences with the principle of open justice can be justified on a number of well recognised bases.  Article 6 itself expressly qualifies the right to a public hearing by providing that

the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so required, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

The Practice Direction to CPR Part 39, draws attention to these provisions and makes it clear that when an application to hold a hearing in private, the judge may need to consider whether the case is within any of these permitted exceptions (PD39, para 1.4A).

In order to justify the exceptional step of making an order which has the effect of granting anonymity to a defendant in criminal trial, there must be something more than distress, upset or embarrassment: there must be evidence of a risk of “real and substantial damage” to the child’s Article 8 rights.   For example, in Re LM (Reporting Restrictions: Coroner’s Inquest) ([2007] EWHC 1902 (Fam)) the court refused to make orders in relation to the identity of the parents and family members in an inquest but made an order preventing the publication of the name of the child.  In A Local Authority v. W ([2006] 1 FLR 1) an order was made to restrain publication of the identity of the accused and the victim in a criminal trial to protect their children.

(7)  Where an injunction is granted to restrain the publication of private information the court should either anonymised the claimant or not publish the nature of the information

The principle that the parties to an action are usually named in judgments or orders is, however, subject to an important qualification in successful claims for injunctions to restrain the publication of private information.  This is because, in such cases, the Court has, ex hypothesi, accepted that the publication of private information relating to the claimant should be restrained.  In such cases, if the Court is to avoid disclosing the information in question it must proceed in one of two alternative ways:

(1)        If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised.

(2)        If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified. (see JIH v News Group [2010] EWHC 2818 (QB), [8] to [9])

It is suggested that in such a case, the first course will be the appropriate one – in other words, the disclosure of the nature of the information in question without naming the claimant.   This is because in general, the public interest in open justice will be best served by knowing the subject matter of the proceedings rather than the “bare identity” of the claimant.  Furthermore, it will often by the case that public domain information concerning the claimant will mean that the nature of the information in issue is obvious so that if the proceedings are not anonymised it will be clear that the identified claimant is seeking to prevent disclosure of information of a particular kind.

(8)  An anonymity order made by a Judge, on an initial hearing does not last for the duration of the proceedings but must be reviewed as the proceedings continue

This is an important principle which is often ignored – anonymity orders are treated as being made on a “once and for all” basis.   However, as Mr Justice Tugendhat has recently made clear, anomymity orders made in particular proceedings must be subject to regular review (see Bernard Gray v UVW [2010] EWHC 2367 (QB) [34]; see also JIH v News Group Newspapers [2010] EWHC 2818 (QB)).

These principles need to be carefully considered when courts are being asked to make anonymity orders.   It seems likely that, if they are properly applied, there will be a considerable reduction in the number of such orders in the future.

This is an edited extract from a paper presented to the 22nd Sweet & Maxwell Annual Judicial Review Conference on 19 November 2010.


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