Christopher Stanton
‘Should there ever be a case for absolute anonymity in legal proceedings, and if so, why and for whom?’
The starting point in considering anonymity in legal proceedings is the principle of open justice. Open justice is a key requirement of the common law system, and moreover is enshrined in the European Convention on Human Rights (ECHR). Open justice dictates that proceedings ought to be open to the public, including the contents of court files and public viewing of trials.[1]This is vitally important, because ‘the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially.’[2]
This is arguably all the more vital now than previously. Even as wider society begins to place ever greater value upon openness and transparency, prominent lawyers are claiming that these values are being undermined by the ongoing reforms to legal aid. Whether or not this is the case will not be debated here, but for our purposes it suffices to note that now, more than ever, the justice system of England and Wales must both continue to function effectively and fairly, and the public must be able to see that it does so.
Open justice has come under pressure in recent years in the form of derogations from the law. The three most notable exceptions have been in the form of derogations by reason of national security, in the granting of ‘super-injunctions’ relating to privacy, and in relation to the work of the family courts, notably in cases involving children, whether directly or tangentially. Controversy has also arisen in relation to the question of anonymity in cases of sexual offences, especially in regard to whether the accused should enjoy anonymity pre-conviction.
Clearly, the danger here is of continued derogations and carve-outs from the general principle, until that principle has itself been eroded from existence. One could consider such derogations one after the other, but this would be inappropriate in an essay of this length. Rather, the question of the extent to which open justice is being harmed by anonymity will be considered from two angles: firstly, the anonymity of witnesses in proceedings; and secondly the anonymity of parties to proceedings.
Anonymity of witnesses
The anonymity of witnesses can cover a broad variety of persons, from victims of sexual assault, who may be called as witnesses in proceedings against their attackers, to witnesses who may be afraid for their safety if identified. It may also encompass child witnesses or the mentally disabled.[3]
The fear of being confronted with anonymous accusers, whose evidence cannot be properly contested by virtue of their identities being unknown, is reflected in the provisions of Article 6 of the ECHR, which state that:
‘Everyone charged with a criminal offence has the following minimum rights… to examine or have examined witnesses against him.’[4]
In R v Davis, the House of Lords found that it was not open to a judge to depart from the ‘common law principle’of confrontation of one’s accusers by allowing a witness to remain anonymous.[5] Such derogations ought to be created by statute only.[6] Even if needed to prevent the intimidation of witnesses, the principle of confrontation – the right to know one’s accusers – was so important that only Parliament might create exceptions to it.[7]
This essay considers that such an approach is broadly the correct one, not least because, by encouraging statutory regulation by Parliament, it brought much needed clarity to a previously confused situation. The right to confront one’s accusers is so central to a basic conception of justicethat it should be regarded as ‘the norm’. However, all but the most abstract of legal philosophers must recognise that, unfortunately, there is sometimes a genuine need to depart from this principle. If anonymity for witnesses were totally barred, then organised crime figures, among others, might make a mockery of the law and evade justice by intimidating any from giving evidence against them. Sexual offence victims, already undergoing the ordealof giving evidence, would be forced to undergo the further trauma of public exposure.
As such, the best compromise between guaranteeing the right of all to a fair trial to all and of ensuring that society’s interests are served via the conviction of the guilty is, very broadly, the approach which found its expression in Davis. Namely, that only the people’s elected representatives in Parliament should have the right to modify the right to confront witnesses, allowing for a proper public debate upon the merits of doing so in each case. This simultaneously upholds the general principle, allows for derogations from the same when needed, and finally ensures that such derogations are relatively restricted in number. In short, there is, and should be, no absolute right to privacy for witnesses.
The above mention of sexual offences raises the question of whether those accused of sexual offences should be granted the same anonymity as the complainant witness. Such suggestions have been made on several occasions in recent years, stirring vigorous debate each time. This leads us on to the issue of anonymity of parties to proceedings.
Anonymity for parties
Anonymity for parties to proceedings has been an even more contentious topic than anonymity for witnesses. In recent years, this has been fuelled by the debate over ‘super injunctions’, privacy injunctions whose own existence cannot even be revealed. Certain celebrities and companiesutilised these in a manner which led newspapers and some parliamentarians to argue that their freedom of speech has been abridged.[8] In response, Lord Neuberger MR chaired a committee on super-injunctions, whose report may be considered authoritative. That report made it clear that super-injunctions were derogations from ‘the fundamental constitutional principle’ of open justice.[9]
The report argued, however, that exceptions to this could be justified, that ‘the principle of open justice must therefore yield to privacy or secrecy but normally only when, in the circumstances of a particular case, to adhere to it entirely would frustrate the court’s ability to administer justice properly.’[10] The committee followed the reasoning of Lord Haldane in Scott v Scott in establishing a very high standard for super-injunctions to be granted, namely that of ‘strict necessity’.[11] While the committee’s reasoning is sound, the fact remains that such reasoning can produce concerning results.
In particular, the report did not rule out the possibility that the circumstances of the Trafigura case might recur.[12] It is surely a subject for concern that a major national newspaper could be injected from even telling its readers that it had received an injunction, and even more concerning when it is considered that this injunction related to the reporting of the dumping of toxic waste off West Africa. All of the safeguards in the committee’s report do not prevent circumstances arising whereby another such injunction might be granted.
The press undertake a vital role in scrutinising the workings of the courts. If their role is to be restricted, then it is inappropriate, in a liberal democracy, for that to be achieved via injunctions whose own existence cannot be revealed. Again, this suggests that the approach of Davis should be considered more broadly, namely ‘leave it to Parliament’. If there is a need for a privacy law, then this should be passed by Parliamentafter a public debate. The principle of open justice is simply too important for its erosion in favour of privacy to be left to judges.
We must now turn to the argument that fears of terrorism are being used to justify an erosion of open justice in the field of terror-related offences. Such arguments spiked with the case of R. v Incedal, when it was proposed to conduct a criminal trial entirely in secret, and simultaneously to anonymise the defendants.[13] These arrangements were challenged before the Court of Appeal, which in its judgementstruck a balance between the needs of open justice and the needs of the security services to protect confidential information.[14] It did so by allowing the core of the trial to take place in secrecy, while enabling limited details to be reported. Crucially, those details included the identity of the defendants.
The issue of trials in camera need not detain us, save to note that the practice was employed during the Second World War without any noticeable ill-effects upon the course of justice. It is rather the issue of anonymity for defendants which is most concerning here. It is also at this point that we return to the theme of anonymity for defendants in sexual offence cases.
Clearly, in Incedal, the Court of Appeal was greatly concerned that anonymity for defendants undermines the principle of open justice.[15] Such concerns were echoed by Lord Chief Justice Thomas when he stated that ‘I think there ought to be very much clearer guidelines and rules so that the prospect of an anonymous defendant is one that we never, ever see in our courts.’[16] When so many senior judges raise such profound concerns over the future of open justice, it may be safely concluded that the anonymization of defendants represents a considerable threat to this principle. It should not be permitted, and the compromise struck in Davis should be noted here – if anonymization is to be permitted, it must only be via Parliament. The author of this essay would hope that Parliament were not so foolhardy as to go down that route, while recognising its right to do so.
The reasons for this are clear. Where defendants are tried anonymously, they lack the safeguard of the scrutiny of society as a whole. Anyone with a bare interest in history should be aware of the dangers of ‘secret courts’, wherein abuses reined unchecked. The check they lacked was the gaze of public scrutiny, which maintains open justice, minimising the possibility of abuses occurring and maximising public confidence in justice, by allowing the public to know who is on trial and for what they are being tried. At a time when authority is regarded with a considerable degree of scepticism, this is a vital consideration.
Open justice is therefore a safeguard for both the defendant and society as a whole. It is particularly due to its role as a safeguard for the defendant that this essay supports the continued publication of the names of those accused of sexual offences, as well as of terrorist offences. Unlikely as it may seem to them, the publication of their identities is a measure which protects themselves as much as it does society, by allowing for greater scrutiny of the fairness of their trial. The harm caused to them by the glare of publicity is outweighed by the need to safeguard their right to a fair trial. Naturally, this is a not a consideration with witnesses, who may be anonymised where statute deems it appropriate, since it is not their right to a fair trial which must be scrutinised.
Conclusion
Clearly, a contrast is being drawn, in this essay, between anonymity for witnesses and anonymity for defendants. This essay has argued that anonymity for witnesses should be allowed, subject to the safeguards of this being permitted only by statute. However, whilst recognising that Parliament may legislate as it pleases, this essay argues that parties to a case should not be anonymised. This lack of anonymity for partiesmay be explained by the fact that it is the parties who most need the protection of open justice, since it is their interests which are most at stake in court cases. This is as distinct from witnesses, who may be permitted anonymity where appropriate, since they are less directly affected by the outcome of a case. Exceptions by statute have obviously already been created for children, whose special status as being worthy of greater protection is accepted universally. Yet all other parties to cases should accept that, at the least, their identities should be known to the public, so that open justice can remain more than an empty piety.
[1]Lord Neuberger, ‘Report of the Committee on Super-Injunctions’, (20 May 2011), at 1.17; report archived at < and accessed on 28 July 2015.
[2]Lord Woolf MR, in R. v Legal Aid Board ex parte KaimTodner (a firm) [1999] Q.B. 966, at 997-8.
[3]R v Horncastle and others[2009] UKSC 14 at [51] (Lord Phillips P).
[4]As quoted inHorncastle (n.3), at [5] (Lord Phillips P).
[5]R. v Davis[2008] UKHL 36.
[6]Ibid[66] (Lord Brown).
[7]Parliament did so via the Criminal Evidence (Witness Anonymity) Act 2008.
[8]Note RJW & SJW v The Guardian newspaper & Person or Persons Unknown [2009] EWHC 2540 (QB) (the Trafiguracase) andTerry v Persons Unknown [2010] 1 FCR 659.
[9]Lord Neuberger, ‘Report of the Committee on Super-Injunctions’, (20 May 2011), at Summary [2]; report archived at < and accessed on 28 July 2015.
[10]‘Report of the Committee on Super-Injunctions’, at [1.19].
[11]Scott v Scott [1913] A.C. 417; as stated in the ‘Report of the Committee on Super-Injunctions’, at both [1.19] and [1.25].
[12] Citation for the Trafigura case given above (n.8).
[13]R. v Incedal and Rarmoul-Bouhadjar [2014] EWCA Crim 1861, formerly known as R v AB and CD.
[14] Ibid [10] (Gross LJ).
[15]Incedal(n.1), at [47] (Gross LJ).
[16] Bill Gardner, Lord Chief Justice: 'Terror accused should never be anonymous', The Daily Telegraph(London, 12 November 2014) < accessed 29 July 2015.