A Rolling Stone Gathers No Anonymity

May 15th, 2020

We previously noted on this blog the useful discussion in D v Information Commissioner [2018] UKUT 441 (AAC) of the principles applicable to the anonymity of parties in information rights appeals. But who, no-one asked us, was D? Well, it turns out on appeal that the answer is: Moss v Information Commissioner [2020] EWCA Civ 580. Ta dah!

At [3], Haddon-Cave LJ referred to the Appellant as “engaged in serial litigation about his privacy”. We at Panopticon can’t comment on that, but Mr Moss is certainly engaged in some other important information rights litigation at the moment: judgment is pending from the Upper Tribunal in Moss v Information Commissioner & Cabinet Office on the role of Article 10 in Freedom of Information Act 2000 appeals, post the Strasbourg decision in Magyar Helsinki Bizottság v Hungary (App. No. 18030/11). A post on that will doubtless follow as and when. (Rupert Paines acts for the ICO in that one, and Tim Pitt-Payne QC and I act for the Cabinet Office.)

However, the immediate cause of interest is Mr Moss’s litigation about anonymity. The core and established case law on open justice, its importance as an aspect of Article 6 ECHR and the balancing exercise always required between Articles 8 and 10 ECHR are helpfully summarised at [20]-[29].

Mr Moss argued that the balancing exercise Judge Wikeley undertook in the Upper Tribunal was flawed because he was wrong to conclude any Article 6 or 10 rights were engaged against his interests. Haddon-Cave LJ firmly dismissed that proposition. The rights are always engaged whether or not the press or public are ‘parties’, anonymity is always a derogation from open justice, it must be ‘necessary’ to justify such a derogation, and open justice applies just as much in the tribunals as in the courts. Mr Moss was also arguing (perhaps oddly in the light of his other proceedings) that Article 10 did not apply to information disclosed by a tribunal, but only in response to positive requests which meet the Magyar criteria, but this was irrelevant to an attempt to derogate from open justice (and the reasoning in Kennedy v Charity Commission [2014] UKSC 20 on Article 10 was obiter): at [41]-[46].

The Court of Appeal re-emphasised the established position that a party cannot hold the prospect of non-participation unless they obtain anonymity over the head of the court, and that cannot generate a breach of Article 6: at [55]. Any interference with Mr Moss’s Article 8 rights was justified in the circumstances (including because of his own choice to bring proceedings): at [61].

So basically, the rules about anonymising parties apply in exactly the same way in the information rights tribunals as everywhere else.

Jen Coyne appeared for the Information Commissioner. 

Christopher Knight

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