Facts
A local authority applied for children to become a ward of the court (“the Children”).
Journalists applied for disclosure of documents relating to the historic proceedings (“the Journalists”).
Williams J (“the Judge”) disposed of the Journalists’ applications. A number of reporting restrictions were made up to, and during, criminal proceedings, against the father and stepmother of the Children. The criminal proceedings resulted in conviction and sentence.
No party requested the names of the three circuit judges in the Family Court (“the Circuit Judges”) to be anonymised (“the Anonymisation”). The Judge did not hear submissions on the Anonymisation. The parties were not informed that the Judge intended the Anonymisation.
The Journalists appealed. The Judge acknowledged that he did not hear submissions on the Anonymisation. Written submissions were made. The parties were notified that the Judge maintained the Anonymisation.
The Journalists appealed to the Court of Appeal. Sir Geoffrey Vos, the Master of the Rolls, granted permission.
The Circuit Judges were contacted and gave their views on the Anonymisation.
First, they confirmed that they did not seek the Anonymisation.
Secondly, each had serious concerns about the risks if the Anonymisation was lifted.
Thirdly, this included risks to themselves, and their family members.
Fourthly, two (who had retired) considered that it was right for the Anonymisation to continue in their cases.
Fifthly, a third (who continues to sit) considered that it was inappropriate to express a position on the Anonymisation.
Sixthly, two judges considered that a risk assessment should be undertaken before a decision was taken to lift the Anonymisation.
Seventhly, the Head of Security for the court and tribunal service confirmed that judges’ residential addresses can be accessed by anybody using the internet. This created “very significant security/safety vulnerabilities.”
Grounds of appeal
The Journalists had four main grounds of appeal.
First, not giving reasons before the Anonymisation was a serious procedural irregularity.
Secondly, the freedom of the press had been unacceptably encroached upon by the Judge’s unfair, biased, and inappropriate approach.
Thirdly, the “open justice” principle meant that the Anonymisation could not be justified by balancing the right to a private and family life and the right of the freedom of the press.
Fourthly, absent a specific application or evidential foundation, the Anonymisation was inimical to the proper administration of justice.
Issues
Sir Geoffrey Vos (with whom King and Warby LJJ agreed) gave the leading judgment.
The grounds of appeal were reduced into three issues.
First, whether the court had jurisdiction to prohibit the publication of the names of judges, and, if so, how, and in what circumstances?
Secondly, whether the Anonymisation was irregular, due to the lack of submissions, evidence or reasons.
Thirdly, whether the Judge demonstrated inappropriate bias against, or unfairness towards, the media.
Discussion
The Judge repeatedly referred to “shielded justice”. To Sir Geoffrey Vos, this was “an entirely new phrase”.
The “open justice” principle “is applicable as much in family proceedings as any other”.
Sir Geoffrey Vos agreed (with emphasis added) that: “Whilst, in a very broad sense, in assessing the engaged convention rights on any application for a derogation from open justice, the Court is carrying out a ‘balance’ between them, the scales do not start evenly balanced. The Court must start from the position that very substantial weight must be accorded to open justice. Any balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification.”
No authority minimising the importance of the “open justice” principle was cited.
Sir Geoffrey Vos also agreed (with emphasis added) that: “It should be made clear that, whilst judges are required to show resilience and fortitude, they are not required to tolerate bullying or abusive behaviour. As regards anonymity, however, … the statutory restrictions on information in children’s proceedings are to protect the anonymity of the children and not the professionals.”
Further: “It is the duty of judges to sit in public, save in circumstances that are closely delineated by statute … procedural rules … and the common law … In accepting office, all judges will or should be aware that that is the expectation, because public scrutiny of judges and the justice process is essential to the rule of law.”
In any event, Sir Geoffrey Vos did “not accept that the authorities that concern third parties [such as social workers, guardians and experts] to family proceedings generally are directly applicable to the case of the anonymisation of the historic judges [who had retired].”
Jurisdiction to prohibit the names of the judges
It was “very unusual” for the Judge to grant the Anonymisation on his own motion, without any application being made, or intimated by a relevant judge, or anyone else.
The right to life, and the prohibition of torture and inhuman or degrading treatment “apply as much to judges as to any other person.”
Nevertheless, the Judge had no jurisdictional foundation for the Anonymisation.
If the Judge was concerned, he could have contacted the court and tribunals service to warn them of the order that he would make, and the risks that he foresaw.
In any event, the Judge had no evidential basis on which to find that the threshold for the application of the right to life, and / or the prohibition of torture and inhuman or degrading treatment, and / or the right to private and family life, was / were reached.
“It is the role of the judge to sit in public and, even if sitting in private, to be identified … It is up to the authorities with responsibility for the courts to put appropriate measures in place to meet these risks, depending on the situation presented by any particular case. The first port of call is not, and cannot properly be, the anonymisation of the judge’s name.”
Furthermore: “That must be particularly so, where those names are already notionally in the public domain. Moreover, it is no answer as was suggested, to say that there is only a limited interference with open justice, because the historic judges’ names add little to the story. … it is not for judges to decide what the press should report or how journalists should do their jobs.”
Admitting a sample of threats that were not before the Judge, Sir Geoffrey Vos found that: “They are generic threats of the kind that are, unfortunately, all too commonly now made against politicians and public figures of all kinds. It is one thing for an internet troll to post a message saying that ‘politician X should be strung up’, and quite another for a party to litigation to threaten the judge directly.”
Irregularity due to lack of submissions, evidence or reasons
As set out above, even before the Court of Appeal, there was no specific evidence.
As the appeal was allowed on the first issue, however, what follows on the second and third issues are not ratio (necessary to dispose of the appeal), but merely obiter (general guidance).
Sir Geoffrey Vos said that: “It is obviously good practice for a judge to delay making any order of their own motion until he has sought and obtained evidence from the parties. There may, however, be circumstances where the situation is so urgent that it would be appropriate to make an order first and then seek submissions. In this case, the judge had no appropriate reason to raise the question of the anonymity of the judges or to seek submissions.”
Inappropriate bias against, or unfairness towards, the media
The Judge “undoubtedly behaved unjustly”.
Sir Geoffrey Vos relayed that: “It was, I think, unfair of the judge to say, with such vehemence, … that the journalists had been guilty of inaccurate, unfair and irresponsible reporting. The decision to adjourn the journalists’ application for permission to appeal just before the end of term was akin to dismissing the application.”
Furthermore: “His sarcastic remark … about the Channel 4’s Dispatches programme of 20 July 2021 was unwarranted. He said, for no reason that I could discern: ‘[t]hank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict!’. Such sarcasm has no proper place in a court judgment.”
Finally: “The mistake the judge made was to think that he could properly trawl through his own experiences to create a case for anonymising the judges. He should not have done so. Courts operate on the basis of the law and the evidence, not on the basis of judicial speculation and anecdote, even if it is legitimate to take judicial notice of some matters. In short, the judge’s judgment demonstrates, to put the matter moderately, that he got carried away.”
Disposal
The appeal was allowed.
In the circumstances of this case, the Judge did not have jurisdiction to make the Anonymisation. There was also procedural irregularity and unfairness.
The court and tribunal service was given seven days to consider and implement whatever measures they considered to be appropriate to protect and safeguard the judges.
Written by Dominic Bright.
Commercial. Construction. Property.