Judicial clarity on anonymity orders

In the case of XXX v Camden London Borough Council [2020] EWCA Civ 1468, the Court of Appeal provided important guidance on the approach the courts should take when determining applications to anonymise details of parties and witnesses under CPR 39.2 (4). The appellant appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments.

Open Justice and CPR 39.2

CPR 39.2 reflects the principle of open justice which states that hearings must be held in public. CPR 39.2(4) provides that ‘the court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness’. What approach should the courts take when applying CPR 39.2(4)?

Approach before Camden

Before Camden, the courts applied the following two-stage test when considering an application for non-disclosure of a party’s or witness’ identity: (i) the threshold test: the grant of anonymity must be necessary, based on a legitimate fear of danger; (ii) if the first threshold was met, the court would then balance the party’s or witness’ interest in anonymity with the interests of the parties in a fair trial, together with the public interest in open justice (Kalma v African Minerals Ltd [2018] EWHC 120 (QB); Fortune Investments Ltd v The witness known as The Blake [2018] EWHC 2929 (Comm)).

Approach after Camden

In Camden, the Court of Appeal observed that it was unhelpful to require judges to ask first whether a threshold of ‘necessity’ had been passed before carrying out a balancing exercise of competing interests to determine if an order for anonymity was ‘necessary’ under CPR 39.2(4). This was because such a two-stage test had the potential to create confusion by using ‘necessity’ and ‘necessary’ in different ways at different parts of the test. Although the Court of Appeal agreed that a judge may undertake an assessment of whether the application stands any prospect of success before carrying out a balancing exercise, it did not consider it necessary to do so, nor was any failure to explain in the judgment that any such exercise has been carried out a ground for setting aside the determination of the judge at first instance.

The Court of Appeal went on to explain the approach the court should take when confronted with an application under CPR 39.2(4). The court should have regard to the relevant principles set out in the authorities (for which see below) and carry out the balancing exercise of the relevant interests under CPR 39.2 to determine whether ‘non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness’. The principles set out in the authorities are:

• It is a fundamental rule of the common law that proceedings must be heard in public subject to specified exceptions (Scott v Scott [1913] A.C. 417); R(C) v Justice Secretary [2016] UKSC 2);
• The court should be careful to prevent extensions of exceptions by analogy (In Re S (A Child) ([2004] UKHL 47); In R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966);
• The common law recognises a duty of fairness towards witnesses called to give evidence (In Re Officer L [2007] UKHL 36) and has balanced that against the principle of open justice. Under the common law test, subjective fears, even if not based on facts, can be taken into account and balanced against the principle of open justice. This is particularly so if the fears have adverse impacts on health (In Re Officer L (above); Adebolado v Ministry of Justice [2017] EWHC 3568 (QB)).
• Pursuant to the Human Rights Act 1998, the courts have also been able to give effect to the rights of parties and witnesses who may be at ‘real and immediate risk of death’ or at real risk of inhuman or degrading treatment if their identity is disclosed, engaging articles 2 (right to life) and 3 (prohibition of torture) of the ECHR. A person’s private life may also be affected by court proceedings, engaging article 8 of the ECHR. The common law rights of the public and press to know about court proceedings are also protected by article 10 (freedom of expression and information) of the ECHR (Yalland v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin)). In Re S (A Child), the House of Lords affirmed that the inherent jurisdiction of the High Court to restrain publicity was the vehicle by which the court could balance competing rights under articles 8 (respect for private and family life) and 10 of the ECHR.
• In Re S (A Child), Lord Steyn stated that when a court considers balancing competing human rights interests, four principles could be identified: ‘First, neither article has as such precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.’ It is also necessary to have regard to: the importance of freedom of expression protected by article 10; the extent to which material has, or is about, to become public; the public interest in publishing the material; and any privacy code; pursuant to section 12 of the Human Rights Act 1998 (see in particular Moss v Information Commissioner [2020] EWCA Civ 580).

The courts will continue to approach applications for anonymity orders with a great deal of caution in order to ensure that the principle of open justice is not undermined. The guidance provided in Camden makes clear that the court must take account of the principles from the case law and conduct a balancing exercise of the relevant interests under CPR 39.2 to determine whether granting the order is necessary to secure the proper administration of justice on the one hand and protecting the interests of the applicant on the other.

Masood Ahmed is an associate professor at the University of Leicester and a member of the Civil Procedure Rule Committee