Anonymity: publication and open justice

The tension between transparency and individual privacy is part of what makes information rights such a fascinating and important area. When it comes to high-public interest issues involving particular individuals, prevailing wisdom has tended to be something like this: say as much as possible on an open basis, but redact and anonymise so as to protect the identity of the individuals involved. Increasingly, however, transparency is outmuscling privacy. See for example my post about the Tribunal’s order of disclosure, in the FOIA context, of the details of the compensation package of a Chief Executive of an NHS Trust (the case of Dicker v IC (EA/2012/0250).

The recent Care Quality Commission debate is the highest-profile recent illustration: the health regulator published a consultant’s report into failings regarding the deaths of babies at Furness General Hospital, but withheld the names of the individuals being criticised (including for alleged ‘cover-ups’), relying on the Data Protection Act 1998. The anonymisation was not endorsed by the Information Commissioner, and attracted widespread criticism in media and political circles. Transparency pressures held sway.

In a similar vein, the BBC has come under great pressure over the past week – particularly from Parliament’s Public Accounts Committee – to reveal the names of approximately 150 departing senior managers who received pay-offs averaging £164,000 in the past three years. As the Telegraph reports, the Committee is threatening to use parliamentary privilege to publish those names. The BBC admits that it “got things wrong” by overpaying in many cases (as confirmed by the National Audit Office), but is concerned to protect the DPA and privacy rights of the affected individuals, as well as to safeguard its own independence. The Committee says the public interest in transparency is compelling; Lord Patten, chair of the BBC Trust, says there will be “one hell of an argument” about this.

Such arguments become all the more thorny in the context of open justice disputes, of which there have been a number in recent weeks.

In the matter of Global Torch Ltd/Apex Global Management Ltd (The Guardian, The Financial Times and others intervening) [2013] EWCA Civ 819 involved competing petitions of unfair prejudice alleging misconduct in the affairs of a particular company. Two Saudi Arabian princes and one of their private advisers applied to have the interlocutory hearings held in private under CPR rule 39.2(3). The Court of Appeal agreed with the judge who dismissed those applications. It rejected the contention that the judge had elevated open justice above Article 8 ECHR rights as a matter of law. Rather, he noted that some general presumptions were valid (for example, open justice is likely to trump reputational damage) and applied those in the factual context of this case. Maurice Kay LJ said  (paragraph 34) that there was sometimes a “need for a degree of protection so as to avoid the full application of the open justice principle exposing a victim to the very detriment which his cause of action is designed to prevent… If such an approach were to be extended to a case such as the present one, it could equally be applied to countless commercial and other cases in which allegations of serious misconduct are made. That would result in a significant erosion of the open justice principle. It cannot be justified where adequate protection exists in the form of vindication of the innocent through the judicial process to trial”.

Open justice is of course fundamental not only to freedom of expression, but is also the default setting for fair trials. This is illustrated in the regulatory/disciplinary context by Miller v General Medical Council [2013] EWHC 1934 (Admin). The case involved a challenge to a decision by a Fitness to Practise Panel of the Council’s Medical Practitioners Tribunal Service that a fitness to practise hearing should take place in private because it considered that the complainant, a former patient of the claimant, was otherwise unlikely to give evidence. HHJ Pelling quashed the decision; there was insufficient evidence for the Panel’s conclusion about witness participation, and in any event the Panel “fell into error at the outset by not reminding itself sufficiently strongly or at all that the clear default position under Article 6 is that the hearing should be in public. It failed to remind itself that Article 6 creates or declares rights that are the rights of the Claimant and that it was for the GMC to prove both the need for any derogation from those rights and for a need to derogate to the extent claimed” (paragraph 20).

Robin Hopkins

Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure

On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.

In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.