Undermining Open Justice with Anonymity and Redaction

In an unusual case where the appellant was acquitted of misconduct by the Solicitors Disciplinary Tribunal, an appeal was brought concerning the tribunal’s approach to open justice and to the anonymity of persons mentioned in the tribunal’s decision relevant to the allegations it had to determine: Lu v Solicitors Regulation Authority [2022] EWHC 1729 (Admin): Kerr J

Of its own accord and without any application from those concerned, the tribunal agreed to sit in private and decided to anonymise two complainant firms of solicitors, relevant individuals employed by them and, for some reason, a barrister and an expert witness whose roles were not particularly controversial.

However, the tribunal refused to agree to Ms Lu’s request that her identity be withheld from the public domain.

This difficult appeal showed the problems we were experiencing in our justice system with the notion of open justice. We repeatedly stressed its importance yet increasingly undermined it by the creeping march of anonymity and redaction.

Parties, witnesses and ordinary workers – for example, a case worker at the SRA – were routinely anonymised without asking the court or giving the matter much thought.

Open reporting was discouraged by what George Orwell once called “a plague of initials”. Clarity and a sense of purpose were lost. Reading or writing reports about nameless people was tedious.

The common law principle of open justice was well known. The jurisprudence on articles 8[1] and 10[2] of the European Convention was quite well known. Procedural rules such as CPR 39.2 which reflected the law correctly, worked reasonably well if properly applied. Yet the inexorable trend seemed to be towards less open justice and more anonymity.

His Lordship doubted that this was a good direction of travel for the law.

Ground 10 of the appeal stated that the tribunal had failed to act consistently and treat the appellant’s application in the same way in which requests made on behalf of third parties (many of whom were male) were.

The tribunal should have adopted a consistent approach to all applications and applying the same approach that it did to requests made on behalf of third parties should have also made the anonymisations/redactions requested by the appellant.

There was no appeal against the tribunal’s decision to sit entirely in private although the court expressed concerns about its decision to do so. The hearing should have been held mainly, if not wholly, in public. It appeared from the judgment that sitting in private was convenient rather than necessary.

The tribunal was right not to accept the appellant’s invitation to protect her identity. The tribunal’s reasoning was not fully articulated but it was right not to accept the proposition that the Spector reasoning should be ignored because of the likely impact of the publicity on the appellant’s future career or because she was a female relatively junior lawyer who had made allegations including some of sexual harassment.

It was commonplace for domestic and other tribunals to hear evidence about and write judgments about unadjudicated allegations and counter-allegations. They were not exceptional and should not readily lead to derogations from open justice.

Ground 13 alleged that the tribunal wrongly and/or in error of law derogated from the principle of open justice by anonymising the SRA’s witnesses and redacting the SRA’s evidence, when no application for anonymisation/redaction to that effect was made, no competing demands were in place, no Article 8 rights were engaged and no requirement of the administration of justice was present to have justified such derogation; failing to consider the appellant’s Article 6 of the ECHR right to a fair trial and the interference with her Article 6 right.

It bore some resemblance to ground 10 in that it was a complaint of failure to act consistently, but the appellant sought now to formulate the complaint as one of conducting an unfair trial in breach of Article 6 of the Convention. The essence of the complaint was of a lack of even-handed treatment as between herself and the anonymised third parties.

Grounds 10 and 13 were well-founded and each upheld by the court. The anonymity orders made below were not justified, neither would it be justifiable to continue them in the appeal judgment, applying the tests in CPR rule 39.2[3] (although, with some hesitation, the court made an exception in the case of persons identified as A, B and C because of their contractual rights).

Those others who had been anonymised but now named by the court were individuals properly doing their jobs. Their roles were not remarkable or particularly controversial. There was no reason not to apply the default position of open justice. They had no particular private or family life issues to protect.

In his Lordship’s judgment, the sweeping anonymity orders in respect of the third parties ought not to have been made. Courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. It was part of the price of open justice and there was no presumption that their privacy was more important than open justice.

The fact that those persons were unrepresented, that allegations were made against them and that the power under rule 35 of the SDPR[4] existed, were not good and sufficient reasons to justify intervening, unasked, on their behalf. The decision to do so created a disturbing impression of unequal treatment, offering succour for the  SRA’s side of the case while denying it to the innocent accused.

It was not necessary to go further and remit the matter, set aside the anonymity orders or require the tribunal to publish its decision in a different form. The appeal  judgment naming the relevant persons sufficed without the grant of further relief. The court’s dissatisfaction with the decision appeal against was sufficiently demonstrated by the terms of its judgment.

Cases Cited in Judgment:

Jurisdiction

Solicitors Regulation Authority v Spector [2016] 4 WLR 16.
Obi v Solicitors Regulation Authority [2017] EWHC 3928 (Admin)
Maitland Hudson v Solicitors Regulation Authority [2017] EWHC 3478 (Admin)
Ali v Solicitors Regulation Authority [2021] EWHC 2709 (Admin)

Open Justice, Publication of Decisions, Anonymity and Redaction of Published Decisions

Scott v. Scott [1913] AC 417;
In re S (a Child) (Identification: Restrictions on Publication) [2005] 1 AC 593
Re Officer L [2007] 1 WLR 2135
Re Guardian News and Media Ltd [2010] 2 AC 697
Pink Floyd Music Ltd v. EMI Records Ltd; Practice Note [2011] 1 WLR 770
Bank Mellat v. HM Treasury (Liberty intervening) (No 2) [2014] AC 700
A v. BBC [2015] AC 588
Yassin v. GMC [2015] EWHC 2955 (Admin)
Cape Intermediate Holdings Ltd v. Dring [2020] AC 62
Khuja v. Times Newspapers Ltd [2019] AC 161
XXX v. Camden LBC [2020] 4 WLR 165
Newman v. Southampton City Council [2021] 1 WLR 290

Raising Completely New Points on Appeal

Singh v. Dass [2019] EWCA Civ 360

[1] Article 8: right to respect privacy and family life

[2] Article 10: freedom of expression

[3] 39.2 General Rule – Hearing to be in Public (1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3); (2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected; (2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private. (3) … (4) … (5) …

[4] Solicitors (Disciplinary Proceedings) Rules 2019