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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Plymouth City Council v ABC [2022] EWHC 2426 (Ch) (30 September 2022) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2022/2426.html Cite as: [2022] EWHC 2426 (Ch) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
BUSINESS LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
PLYMOUTH CITY COUNCIL |
Claimant |
|
- and – |
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ABC |
Defendant |
____________________
Spencer Keen (instructed by Plymouth City Council Legal Department) for the Claimant
The defendant in person
Issue dealt with on paper
____________________
Crown Copyright ©
HHJ Paul Matthews :
Introduction
The Sexual Offences (Amendment) Act 1992
"1(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, [no matter relating to that person shall during that person's lifetime be included in any publication] if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
[ … ]
[(3A) The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) the person's name,
(b) the person's address,
(c) the identity of any school or other educational establishment attended by the person,
(d) the identity of any place of work, and
(e) any still or moving picture of the person.]
[ … ]
2. This Act applies to the following offences [against the law of England and Wales—
(aa) rape;
[ … ]]
(a) any offence under any of the provisions of the Sexual Offences Act 1956 mentioned in subsection (2);
[ … ]
(2) The provisions of the Act of 1956 are—
[ … ]
(k) section 14 (indecent assault on a woman);
[ … ]
5. [(1) If any matter is included in a publication in contravention of section 1, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) where the publication is a relevant programme—
(i) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;
(c) in the case of any other publication, any person publishing it.]
(2) Where a person is charged with an offence under this section in respect of the [inclusion of any matter in a publication], it shall be a defence, subject to subsection (3), to prove that the publication … in which the matter appeared was one in respect of which the person against whom the offence mentioned in section 1 is alleged to have been committed had given written consent to the appearance of matter of that description.
(3) Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it [, or that person was under the age of 16 at the time when it was given].
[ … ]"
Submissions
"This litigation is not concerned with the defendant's former relationship or with her personal life now, including where she lives. None of the details of these things is likely to be relevant or need to be discussed and written about."
As I have already said, this litigation is instead about the downloading of personal data in the context of an employment relationship between the parties. The decision of 14 March 2022 was, as I have also said, not the subject of any appeal.
Discussion
Reliance on the 1992 Act
" … was not referred to in the defendant's written submissions on either of the anonymity applications that she made. Nor was it referred to in the 20-page 'Response to the draft judgment' that she sent to the court on 5 July 2022, after receiving a copy of my judgment in draft. I note however that it was referred to on the last page of an 8-page letter which she wrote to the Employment Tribunal on 18 May 2021 to ask for reasonable adjustments (including anonymity) in the proceedings that she had instituted against the claimant before that tribunal."
Can the defendant raise the matter now?
"25. … If an application for permission to appeal on the ground of lack of reasons is made to the trial Judge, the Judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial Judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent."
"25. Does that mean therefore that not only the order but also the reasoning of Judge Tetlow can only be corrected by a decision of this court and not by the judge himself? For my part, I do not think, in the circumstances of this case, that Section 70 or the general provisions about finality of judgment precludes our considering the second judgment in the course of this appeal. My reasons are as follows. The second judgment of 10 June does not in any way alter the judge's order. It simply gives further reasons why that order is valid in the sense that it simply rejects the relevance of contentions that were not before the judge before he made that order.
26. Secondly, if we were to allow the appeal on the basis of the omissions in the first judgment, we could not of course decide the case ourselves. The matter would have to be remitted either for reconsideration or for retrial. That would be a wholly artificial exercise, granted that Judge Tetlow has already performed that task in the sense of dealing with the alleged lacuna in his judgment of 10 June.
27. Thirdly, if the case had come before us without the benefit of Judge Tetlow's second judgment, this court would have had jurisdiction under English v Emery Reimbold to send the matter back to the judge for him to make findings upon matters on which it was alleged he had not made findings. That would, prima facie, be a sensible step as against the cost of the potential unfairness to one side or another of starting the whole matter over again. If it was the case that the court considering the original grounds of appeal might have so ordered, why should the court not take advantage of already having the fruits of that inquiry without having to order it? We have heard no detailed argument on this point. But in my view it would be wholly artificial and wrong if the court did not take account of what Judge Tetlow found on 10 June. … "
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
The merits of the defendant's point
"16. It is clear from this legislative provision that the responsibility for decisions relating to publication is aligned with risk, and it is for those responsible for publication to ensure that the provisions which protect the public identification of a complainant in a sexual case are obeyed. They do so, however, not because they are enjoined to do so by judicial order, but because that is a statutory requirement."
"55. After considering the matter overnight, however, those acting for the PI Claimants (in particular) indicated that in fact this might not be possible, out of a concern that it would be unlawful by reason of the Sexual Offences (Amendment) Act 1992 for the Bank or Third Party Defendants to identify to others a person who was making a claim in relation to sexual abuse. I was concerned by this, both because no-one had presented any detailed reasoned argument to me to explain why this would be the effect of the 1992 Act (and I was doubtful, absent such argument, that it would be) and because it appeared to make the operation of the Scheme potentially unfair to the Trust and the individual beneficiaries, in that it might well in practice disable the Bank or Third Party Defendants from seeking from them information which could have a material bearing on the question whether a particular claim has merit or not.
56. In the event, to meet these concerns, the PI Claimants, the Third Party Defendants and the Bank agreed that clause 4 of the Scheme should be modified to provide that any claimant wishing to make a claim under the Scheme will have to give consent for their name to be provided to such sources of information (including the individual beneficiaries) as the Bank and the Third Party Defendants might consider helpful to allow for evidence to be obtained to respond to the claim. I am satisfied that this adjustment to the Scheme avoids any problem arising from the 1992 Act in the operation of the Scheme and will allow for the possibility of appropriate access in the course of such operation to relevant information held by the individual beneficiaries and others."
"22. … (m) If this matter had been within the criminal sphere then as a result of the provisions of Section 1 of the 1992 (Amendment) Act 1992 the existence of an allegation of a qualifying sexual offence would bring the protection of lifetime anonymity to the person against whom the offence was alleged to have been committed, including attempts, conspiracy and incitement of another to commit such offences."
This suggests that two of the parties thought that the Act had no application outside criminal proceedings. The judge, Keenan J, simply said of these submissions:
"24. In broad terms I accept the general principles advanced by the local authority.
25. Thus lifelong anonymity maybe granted to all victims and witnesses in criminal proceedings who are under the age of 18 when the proceedings commence; albeit, in accordance with the usual practice in criminal proceedings, they will be named in open court but the same can not be published. Anonymity is afforded to all victims of sexual abuse and victims of female genital mutilation in criminal proceedings. Accordingly the local authority submits why should the same protection not be afforded to a victim of [child sexual exploitation] in civil proceedings?"
"is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed".
Conclusion