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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Armes v Nottinghamshire County Council  EWHC 2864 (QB) (15 November 2016)
Cite as:  EWHC 2864 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NATASHA ARMES
|- and -
|NOTTINGHAMSHIRE COUNTY COUNCIL
Miss Samantha Paxman (instructed by Browne Jacobson LLP) for the Defendant
Mrs A was not represented at the hearing
Mr Stephen Littlewood (instructed by Sills & Betteridge Solicitors) for Mr B
Hearing date: 8th November 2016
Crown Copyright ©
Mr Justice Males :
"Although the trial was held in public, I made an order at the outset that until judgment there should be no report of the name, address or any other information which might lead to the identification of the claimant or any witness of fact (other than past or present employees of the defendant council and the defendant's solicitor). I did so in view of the nature of the allegations made, in order to protect the interests of those concerned. I now continue that order pursuant to CPR 39.2(4) and have anonymised this judgment accordingly. However, the order for anonymity will cease to apply in respect of any person who notifies the court in writing that they are content for their names to be identified. In addition there will be liberty to apply to enable any interested person to challenge the order for anonymity, on notice to the parties' solicitors so that they can notify those whose rights may be affected by any disclosure of their identity."
The reasons for the anonymity order
The claimant's application
a. The general rule is that a hearing is to be in public: CPR 39.2.
b. The case law emphasises the importance of public hearings both before (Scott v Scott  AC 417 at 463) and after (JIH v News Group Newspapers Ltd  EWCA Civ 42,  1 WLR 1645) the coming into force of the Human Rights Act 1998.
c. 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 which requires close scrutiny in order to determine whether such restraint on publication is necessary.
d. Although it may have been justifiable to order anonymity to safeguard witnesses against whom as yet unproven allegations were made, once findings had been made against those witnesses the justification for anonymity no longer applied. There are many examples of cases where findings of physical or sexual abuse have been made against witnesses in which no order for the witnesses' anonymity has been thought necessary.
a. The hearing was held in public and there is a public judgment dealing fully with both the facts and the law which is sufficient to enable any interested member of the public fully to understand the issues in the case.
b. Identification of Mr B would have a significant impact on his right to a family and private life under Article 8 of the European Convention on Human Rights as well as on the Article 8 rights of others (Mrs B and the two B boys) against whom no findings of abuse were made.
c. Identification of Mr B would be unfair as he was not warned regarding the rule against self-incrimination, was not legally represented, and was not able to mount his own defence to the allegations against him.
d. Weighing the Article 8 rights of Mr B and members of his family against the Article 10 rights of the public, the balance comes down firmly in favour of maintaining anonymity.
"… the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
"What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. … The judges [have recognised] that editors know best how to present material in a way that will interest the readers of their particular publication, and so help them to absorb the information. A requirement to report it in some austere abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive."
"Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
"Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions."
"The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose. The approach is the same whether the question be viewed through the lens of the common law or that of the European Convention on Human Rights, in particular article 6, 8 and 10."
"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge."
"The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public's right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure."
"there is a substantial risk that, given the strength of feeling in Rotherham and elsewhere about those who engage in child sexual exploitation and similar offences, they would be perceived to be perpetrators or likely perpetrators, and pilloried and/or targeted in their communities if they were known to have been under suspicion in this way."
a. The court has power to make an order for the anonymity of a witness, but only if it is "necessary" to do so in order to protect the interests of the witness. Nothing less than this will do. Some of the cases emphasise this by saying that anonymity must be "strictly necessary".
b. Although other "interests" may sometimes be in play, often the interests which may need to be protected are a witness's rights under Article 8 to respect for his or her private or family life. That is the position here.
c. In such a case the first question to be determined is whether identification of the witness would interfere with his or her rights under Article 8. This will only be the case if the consequences of identification reach a certain level of seriousness (or as Lord Neuberger put it in JIH, if the facts and circumstances of the case are "sufficiently strong"). Depending on the subject matter of the case and the nature of the evidence, giving evidence as a witness may be embarrassing or sometimes even humiliating, but this will not generally be enough to justify an order for anonymity by reference to Article 8. Something more is required, although in view of the wide range of circumstances in which Article 8 can apply, I doubt whether that something is susceptible of precise definition.
d. If identification would interfere with the witness's right to respect for his or her private or family life, it is necessary to consider (in the terms of Article 8.2) whether that interference "is necessary in a democratic society … for the protection of the rights and freedoms of others". The rights and freedoms of others which will generally require consideration are (or at least include) the right to freedom of expression, including the vital freedom of the press to report court proceedings held in public, under Article 10. A balance therefore needs to be struck.
e. In striking that balance, the question has been described as whether there is a sufficient public interest in identification of the witness to justify the interference with the witness's Article 8 rights. Considered in isolation that way of posing the question may suggest that once any material interference with Article 8 rights has been identified, there is a presumption in favour of anonymity unless there is a strong public interest in identification. However, when this formulation of the question is viewed in the full context of the cases discussed above, it is apparent that this is not so. I would make three points. One is that the general rule remains the principle of open justice. The second is that what matters is not merely the fact of interference with Article 8 rights but rather the severity or otherwise of the consequences for the witness of being identified. The more severe those consequences, the more likely it is that anonymity will be ordered and vice versa. The third is that the weight to be given to an interference with freedom of expression must depend on the extent to which the issues raised by the litigation involve matters of real public interest. The greater the public interest (as distinct from the separate question whether the identity of the witness is likely to be of interest to the public), the more likely it is that anonymity will be refused.
f. All these points need to be taken into account. Inevitably, therefore, striking the necessary balance requires close attention to the facts of the particular case.