Open Justice should not be bypassed lightly
1 June 2023
In its recent judgment in the case of Lu and Solicitors Regulation Authority the High Court has upheld the importance of open justice and criticised what is considered the increasing ease with which courts and professional disciplinary tribunals agree to anonymise witnesses and parties to disciplinary proceedings.
The case of Lu concerned an appeal bought by Ms Lu, a Solicitor who was the subject of disciplinary proceedings conducted by the Solicitors Regulation Authority (SRA), against (among other things) the decision taken by the SRA’s disciplinary tribunal to anonymise individuals involved in the proceedings against her. During the course of the disciplinary proceedings the tribunal agreed to sit in private and to anonymise the name of two firms of solicitors, together with the names of relevant individuals employed by them, and the identity of a barrister and an expert witness involved with the investigation against Ms Lu. The tribunal refused to anonymise Ms Lu’s identity, nor to redact parts of its judgment that referenced the content of her social media account and employment history, which was the main grounds of her appeal.
The High Court dismissed Ms Lu’s appeal, and in its judgment, expressed concern with the SRA’s decision to anonymise key individuals.
At its very start the High Court’s judgment poured scorn on anonymity orders:
“I have found this appeal difficult. It shows the problems we are experiencing in our justice system with the notion of open justice. We repeatedly stress its importance, yet increasingly undermine it by the creeping march of anonymity and redaction. Parties, witnesses and ordinary workers – for example, a case worker at the SRA in this case – are routinely anonymised without asking the court or giving the matter much thought.
“A common misconception is that if the identity of a person in legal proceedings is not directly relevant, there is no public interest in that person’s name being known. The justice system thrives on fearless naming of people, whether bit part players or a protagonist. Open reporting is discouraged by what George Orwell once called a “plague of initials”. Clarity and a sense of purpose are lost. Reading or writing reports about nameless people is tedious. “
“Yet, the inexorable trend seems to be towards less open justice and more anonymity. I doubt that this is a good direction of travel for the law.”
Turning to the facts in play in the appeal before it the High Court stated:
“..the sweeping anonymity orders in respect of the third parties ought not to have been made. Court and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. It is part of the price of open justice and there is no presumption that their privacy is more important than open justice.”
The Court held that the decision to grant anonymity to third parties, based on the fact they were unrepresented, that Ms Lu had made allegations against them, and because the tribunal had the power under the Solicitors (Disciplinary Proceedings) Rules 2019 to do so, was not good and sufficient reason. It held that so doing created a “disturbing impression of unequal treatment, offering succour to the SRA’s side of the case whilst denying it to the innocent accused.”
Justice Kerr, presiding, went on to express concern at the decision to hold the hearing in private. The test for such a decision under the Solicitors (Disciplinary Proceedings) Rules 2019 was exceptional prejudice and hardship, which Justice Kerr considered “out of tune with the common law principles of open justice and with the case law on balancing Article 8 and Article 10 rights”.
The High Court’s judgment in Lu should be considered by all future professional and regulatory panels when determining applications of anonymity and requests for hearings to be heard in private. It is clear from this judgment that all applications for hearings to be heard in private and for the identity of individuals to be anonymised, should be carefully considered and scrutinised, and only granted after the panel has diligently weighed the need to protect open justice on the one hand, versus the need to protect the freedoms and privacy of certain individuals on the other. Such applications should also demand more detailed and compelling grounds than might previously have been the case, if they are to satisfy panels that they meet the high threshold that should apply.
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Abigail Trencher
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2023.