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Alasdair HendersonWhen is it right to keep the names of parties to litigation a secret? That was the difficult question the Supreme Court had to grapple with in this judgment. The decision to allow a double-murderer to remain anonymous led to outraged headlines in the tabloids. Yet the Court reached the unanimous conclusion that this was the right approach. Why?

The facts

C, who had a long history of severe mental illness, was convicted of murdering his ex-girlfriend and her new partner in 1998 and sentenced to life imprisonment with a minimum term of 11 years before parole could be considered. The murder was described by Lady Hale as “a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families.” During his sentence C was transferred from prison to a high security psychiatric hospital. Whilst there, in 2012, C’s treating doctors applied for permission to allow him unescorted leave in the community in order to assess how well his treatment was progressing and whether he would be suitable for discharge. The Secretary of State refused to allow this.

In 2013 C made an application to the First-tier Tribunal, who recommended to the Secretary of State that he be considered for a conditional discharge as his mental illness had improved and it was no longer necessary for him to be detained to protect either him or others. The Secretary of State referred the case to the Parole Board.

C’s doctors then applied again for permission to allow him unescorted leave and the Secretary of State refused again. It was this decision that C decided to challenge. He brought a judicial review claim. This was refused, and he did not appeal, but his application for anonymity was also refused and this he did appeal all the way to the Supreme Court.

Whilst this was all going on, the Parole Board decided to approve C’s conditional release from detention on lifelong licence (meaning he can be recalled to prison at any time for the rest of his life if he misbehaves, without having to be tried and convicted again). He was released in October 2015. The conditions of his release included having to live at a specific care home, complying with ongoing psychiatric treatment, and changing his name.

The judgment

Way back in 1923 Lord Chief Justice Hewart wrote these famous words: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done“. Lady Hale opened her judgment in this case with a reminder of this principle but also an observation that it has two distinct elements to it:

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 rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule.

As Lady Hale went on to explain that, although the courts have acknowledged the importance of the public knowing who litigants are and the media being able to publish their names, this is not nearly as important as the first element of the open justice principle, which can still be fulfilled even if names are withheld from the public. In order to protect vulnerable groups of people, it is necessary in practice to grant anonymity, indeed routine do so in some whole classes of cases (such as those involving children).

There is also a presumption of anonymity in proceedings concerning compulsory powers under the Mental Health Act 1983. So in the First-tier Tribunal and Court of Protection when decisions are made about the property, care or treatment of a patient in his own best interests the default position is that names will not be disclosed.

The Supreme Court held that there should not be quite the same presumption of anonymity in ordinary civil proceedings involving mental patients such as C’s judicial review challenge. Rather the courts must in each case weigh up the rights of the mental patient under Article 8 of the ECHR with the right to freedom of expression under Article 10. However, many of the same reasons for the privacy rules in the specialist tribunals would still apply, such as the fact that such cases involve consideration of confidential medical information and that a patient’s trust in his doctors and willingness to engage in treatment might be damaged if his identity were to become more widely known. Thus Lady Hale summarised the position as follows:

The question in all these cases is… 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.

The Court went on to find that, applying these principles to the facts of C’s case, it was appropriate to grant his application for anonymity.

Discussion

Some of the newspaper coverage of this decision has criticised the Court for failing to take seriously enough the interests of the victims’ families or the public interest in knowing who this murderer is and what is going to happen to him. But the Court was very alive to both these interests.

There was specific reference to the rights of victims and their families under the Domestic Violence, Crime and Victims Act 2004, which requires them to be give additional information over and above that available to the rest of the public, and allows the chance to make representations to the Secretary of State.

The Court was also very aware that the public “have an interest is knowing how difficult and sensitive cases of this sort are decided” but considered that “public oversight is protected by holding the hearing in public, so that the kinds of evidence and arguments considered are known, even if the identity of the patient concerned is not.” Overall, this was a careful balancing of the competing interests and a helpful clarification of the approach the courts should take on this issue.

This post originally appeared on the UK Human Rights Blog. Reproduced here with kind permission.

Alasdair Henderson is a barrister at One Crown Office Row, specialising in public law, employment and equality, human rights and clinical negligence.