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Permanent Anonymity and Restricted Reporting Orders

Nicholas Goodfellow

Privacy restrictions

The ET has the power to order that the identity of individuals named in proceedings be permanently anonymised in any judgment.  This power has been expressly embodied in rule 50(3)(b) of the Tribunal Rules of Procedure 2013, although before this rule came into force a similar power already existed, to safeguard an individual’s rights under the European Convention of Human Rights: see F v G [2012] ICR 246.  
Rule 50 slightly widens the scope to also apply the power to cases where such an order is necessary “in the interests of justice” (rule 50(1)).  Despite this, it is likely that the basis for such applications will typically remain the engagement of an applicant’s Convention rights.    
Importantly, rule 50’s enactment alerts litigants in the ET to the potential for such orders, and one might anticipate that such applications will become more frequent.  Nonetheless, the principles which apply when making such orders are likely to mean that they are sparingly made.
Before making such an order, the ET is required to give full weight to the principles of open justice and freedom of expression (rule 50(2)).  Indeed, the principle of open justice is of paramount importance and derogations from it can only be justified when strictly necessary.  Two recent EAT cases which deal respectively with (1) an application for a permanent restricted reporting order (“RRO”), and (2) a permanent anonymity order, are of particular note.

EF v AB (EAT, 25 March 2015)

The EAT (Slade J, sitting alone) overturned the ETs decision to refuse a permanent RRO in a claim where the claimant (AB) made lurid allegations of sexual harassment and abuse against one of the respondents (EF) and his wife (NP).  Whilst the provision enacted in rule 50 does not cover the making of an RRO beyond the promulgation of judgment (cf. an anonymity order under rule 50(3)(b)), the EAT was satisfied that this power existed in order to safeguard Convention rights (per F v G).  
In refusing the application for a permanent RRO, the ET had referred to the element of public interest being “the general human interest in sex and money involving relatively rich people…”, and also placed weight on the right of the employees of the corporate respondent to know “the full story” behind a period of 10 years which was described by the ET as “so unpleasant…”.
Slade J rejected the view that these elements outweighed the rights to privacy of EF, observing that the right of employees to know the full story would not contribute to a debate of public interest (para 72).  
Slade J recognised that the “most powerful countervailing factor” to the article 8 rights of EF and NP was the principle of open justice, but nonetheless concluded that their article 8 rights prevailed, observing that (para 84): there was no public interest in revealing the names of either EF of NP; AB’s motivation in bringing the proceedings (as found by the ET) was part of a campaign of revenge against EF and to blackmail the corporate respondents into paying large sums of money; the effect of not continuing the RRO would be to expose a ten year old child to having his mother identified as a participant in sexual activity.  
A permanent RRO was ordered by the EAT.  

BBC v Roden (EAT, 12 May 2015)

The EAT (Simler J, sitting alone) allowed an appeal against a permanent anonymity order, in a case where allegations of serious sexual assaults were canvassed in evidence in the proceedings, although no findings of fact were made on these allegations.  
The ET’s justification for the anonymity order relied on the risk that the public would conclude that the Claimant had actually committed those offences (“the Misconception Risk”) when the situation was that those matters had not been the subject of any trial, any decision by any court, and might never be.  The ET referred to the potentially “devastating consequences” for the Claimant which he would have little hope or prospect of overcoming.
Before the EAT, the relevant legal principles were not in dispute between the parties and are summarised at length in paras 19 to 31 of the judgment.  Reference is made inter alia to the “intense focus” which is required on the comparative importance of the specific rights, where two Convention rights are in conflict (para 24), and the “paramount importance” of open justice (para 25).
Simler J did not view the issue of whether such an order should be made as one of discretion, but rather that there was a “right or wrong answer” in each case (para 34).
The right answer, in Simler J’s view, was that the order should not have been granted, as the Misconception Risk was invalid, and the ET had erred when assessing the weight to be attached to the competing Convention rights.  Critically, reliance was placed on a Supreme Court case concerning a similar issue in the context of terrorism offences (Guardian News and Media Ltd) in forming the view that there was no warrant for concluding that the public might be incapable of drawing the distinction between suspicion and sufficient evidence to prove guilt (para 40).   Further, Simler J rejected the view that there was no ‘public interest’ in the publication of a private employment claim (para 47).
The permanent anonymity order was overturned.  

Observations

The BBC case strongly emphasises the paramount importance of the principle of open justice, even in a case essentially involving a private employment claim.  It demonstrates how careful ETs must be to focus intensely on weighing up all of the various countervailing factors, before reaching a view.  Factual findings which bear upon the credibility of the applicant, and the interests of third parties in matters referred to in the proceedings, are all likely to be relevant.
The EF case appears to place slightly less weight on the importance of open justice, and might well be criticised on this basis.  But it also illustrates that courts will have regard to the conduct of the person seeking protection, and how that bears upon whether such an order is justified.  The EAT accepted the submission that to refuse to extend the RRO would be to give AB “what he wanted…”.  The exceptional facts of that case, given the finding of blackmail against AB, go some way to explain the position that was eventually reached.  
Overall, cases where the ET is properly able to depart from the principle of open justice are likely to remain truly exceptional.   
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