[2024] UKUT 427 (AAC)

An order anonymising someone who would otherwise be named in court proceedings is an interference with the principle of open justice. As Lord Reed JSC described in A v BBC [2015] AC 588 at [23]: “It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy…In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny”.

Ordinarily, it is said that it is not unreasonable to regard a person who brings proceedings as having accepted the normal incidences of their public nature, including the potential embarrassment and reputational damage inherent in being involved in litigation: see TYU v ILA SPA Ltd [2022] ICR 287at [44] per Heather Williams QC (sitting as she then was as a Deputy High Court Judge). However, the same is evidently not true of other people named in the proceedings but who have otherwise had no involvement in the proceedings. As Williams J notes later in that paragraph, that is a factor that has been accepted in the authorities as being relevant to the question of whether they should be anonymised.

In this particular jurisdiction, the considerations are somewhat different to those in the authorities we have mentioned, 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. That case was a judicial review brought by someone who claimed to be the victim of sexual abuse who wanted to be informed by DBS whether the alleged perpetrator had been included on the barred list. The Divisional Court held that DBS had acted lawfully in refusing to disclose that information. It is, of course, not possible to tell from the judgment in SXM whether the alleged perpetrator had appealed to the Upper Tribunal or not, since that fact would itself have conveyed to the claimant in that case that the alleged perpetrator had been included on the barred list. It is, though, relevant for us to take into account that not anonymising an appellant in an appeal to the Upper Tribunal goes ‘against the grain’ of the legislative scheme as it was recognised to be by the Divisional Court in SXM.

We also consider that, in the context of appeals against DBS decisions, the emphasis that courts and tribunals in other contexts place on it being reasonable to assume that someone who litigates accepts the incidence of publicity that comes with that should perhaps be given less weight. That is because the legislative scheme gives those who are subject to it an expectation that they will not be publicly named and because the right of appeal to the Upper Tribunal is an essential element of that same legislative scheme. As we noted in the section of our judgment dealing with the Upper Tribunal’s jurisdiction on appeal and proportionality, the hearing before the Upper Tribunal in DBS cases is the “fair and public hearing … by an independent and impartial tribunal” with “full jurisdiction” which secures that the barring scheme under the SVGA 2006 is compliant with Article 6 of the European Convention on Human Rights. It is important that an appellant should not be deterred from exercising their appeal rights by the fact that an appeal to the Upper Tribunal might bring with it publicity from which they are otherwise protected under the statutory scheme.

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 in her documents and at this hearing has told us of the devastating effect that DBS’s decision has had on her personally, in both emotional and financial terms. Inclusion on the list led to her losing the job to which she moved after her dismissal by the respondent and plainly affects her reputation and access to employment. Revealing the appellant’s name would represent a departure from the statutory scheme that was evidently intended by Parliament to strike the appropriate balance between public interest and private rights in this context as explained in SXM.

As we have noted, although it is often said that a claimant implicitly accepts publicity by commencing legal proceedings, it is hard to see why someone who exercises their statutory right to appeal DBS’s decision should be deprived of the privacy they would otherwise have enjoyed if they had not appealed but accepted the barring, or to which they are properly entitled in cases where the barring decision is found by the Tribunal to be unlawful (as we have found it to be in this case). On the other hand, there is no particular public interest in anyone knowing the appellant’s name, especially given that we have found that she was wrongly included on the barred list (and if we had dismissed the appeal, the public interest in knowing her name would largely have been served by DBS continuing to reveal it to prospective employers on request under the statutory scheme). We consider that 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 her name as it would be with her name.

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 that this means the name of the home in which the appellant worked must also not be made public as this was a relatively small care home and we consider there is a real risk of the appellant being identified if the care home is identified. It also means in our judgment that the names of other individuals in the case should be anonymised as publishing the names of multiple individuals who all worked at the same time in the same place would in our judgment bring a risk of ‘jigsaw identification’.

However, we are also satisfied that the other individuals in the case required anonymisation in their own right. Their Article 8 rights are also engaged.

The service users are vulnerable adults being provided with intimate personal care in what is effectively their home as a result of medical conditions in respect of which they are entitled to privacy. They have had no involvement in these proceedings and it would have been inappropriate even to tell them of them.

As to other staff members, 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 professionalism or 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 staff members 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. These are all relevant factors as the TYU case makes clear. There is a real risk of unfairness to these staff members 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 the staff members and service users referred to in these proceedings to be anonymised.