[2025] UKUT 075 (AAC)

The appellant had requested that the hearing be held in private. We explained that the importance of the principle open justice was such that we could not consider holding the hearing in private unless there was no other appropriate way of protecting any private interests at stake. In this case, having given the parties an opportunity to make submissions, we were satisfied that the private interests of the appellant, and also other individuals named in the papers, were such that it was appropriate to protect those interests by anonymising them at the hearing and in this judgment pursuant to a Rule 14 Order. Our reasons for so concluding may be briefly stated as follows.

Open justice means that justice must not only be done, it must be seen to be done. In Cape Intermediate Holdings Limited v Dring [2019] UKSC 38, [2020] AC 629 the Supreme Court explained the purpose of the principle as follows:

“42.

The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the ways in which courts decide cases – to hold the judges to account the decisions they make and to enable the public to have confidence that they are doing their job properly. …

43.

…the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases”.

Numerous cases have emphasised the link between open justice and the right under Article 10 of the European Convention of Human Rights to freedom of expression and have provided guidance on the nature of that right, including stressing the importance of names to the exercise of that freedom (see, in particular, Khuja v Times Newspapers Limited and ors [2017] UKSC 49, [2019] AC 161 at [14]-[30]). Section 12(4) of the Human Rights Act 1998 (HRA 1998) requires the Court to have “particular regard to the importance of the Convention right to freedom of expression” when considering whether to make any order that might affect the exercise of that right.

However, in this particular jurisdiction, the considerations are somewhat different because this is an appeal in relation to the appellant’s inclusion on the barred lists, the statutory scheme for which provides for the identity of those on the lists to be kept confidential and only revealed by DBS to those with a legitimate interest in knowing. Generally, that just means prospective employers, as the Divisional Court (Flaux LJ and Lewis J) explained in R (SXM) v DBS [2020] EWHC 624 (Admin), [2020] 1 WLR 3259. (In that case, the Divisional Court held that DBS had acted lawfully in refusing to inform someone who claimed to be a victim of sexual abuse whether the alleged perpetrator had been included on the barred list.)

In this particular case, we are satisfied that the appellant’s right to privacy under Article 8 of the European Convention on Human Rights is engaged as the issues in the case are capable of significantly affecting her personal life and reputation. The appellant herself explained in her application form that she felt this was “a personal issue” that should be kept private and she maintained that at this hearing, saying how “embarrassed” she was to have been included on the list. Revealing the appellant’s name would undermine the statutory scheme for the reasons explained in SXM. On the other hand, there is no particular public interest in anyone knowing the appellant’s name. The principle of open justice is very nearly as well served in this case by the public hearing and the publishing of this judgment without names as it would be with names.

We are therefore satisfied that the appropriate balance in this case between the principle of open justice, Article 10 and the appellant’s Article 8 rights, is for the hearing and judgment to be public, but for the appellant to be anonymised.

For anonymity to be achieved in practice in this case, it seems to us (and the parties agreed) that this means the name of the home in which the appellant worked must also not be made public (although the name of the provider organisation may be). It also means that the names of other individuals in the case should be anonymised so that the appellant’s identity is not revealed by way of ‘jigsaw identification’.

However, we were also satisfied that the other individuals in the case required anonymisation in their own right. Their Article 8 rights are also engaged. Their personal reputations are not engaged to the same degree as the appellant’s, but some of them have been the subject of argument and allegations as to their credibility. The proceedings relate to matters that occurred at their work two years’ ago which those involved would have had no reason to think would become public. These other individuals have not been involved in these proceedings, are probably unaware of the proceedings and have had no opportunity to answer any allegations made against them in these proceedings. There is a real risk of unfairness to them if their names are made public, and revealing their names would do little in this case to further the principle of open justice as their identities are not important to the facts of the case. All these factors mean that, even absent the considerations about the appellant, we would have made Rule 14 Orders requiring these individuals to be anonymised.