Case Summary and Outcome

The High Court of England and Wales set aside an anonymity order that had been granted during proceedings brought by the claimant against Nottinghamshire County Council for the physical and sexual abuse she had suffered in foster care. The order had been granted to protect the identities of both the victim and the perpetrators of the abuse. The victim argued that the order was a derogation of the principle of open justice and an unnecessary interference with her right to freedom of expression under Article 10 of the European Convention on Human Rights. In setting aside the order, the High Court found that even though the disclosure would interfere with the perpetrators’ right to a private and family life, there was still no concrete evidence of serious consequences beyond embarrassment or distress for the perpetrators and their family. Furthermore, the High Court emphasized that serious allegations had been proved against the perpetrators, the allegations related to a matter of public concern, and the victim ought to be free to tell her story as she wishes.

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Facts

In November 2014, Natasha Armes sought damages against Nottinghamshire County Council on the basis that the council was responsible for the historic physical and sexual abuse she had suffered during her childhood at the hands of her foster parents. Ms. Armes’ claim against the council was unsuccessful at first instance and on appeal. Despite the fact that the council was found not legally responsible for the abuse, the judge had made findings of fact that Mrs. A and Mr. B had abused Ms. Armes while she was in foster care in the 1980s. Allegations against Mrs. B and her two sons were found to have been unproven. Mrs. A and Mr. B were not parties to the proceedings, but had given witness evidence on behalf of the council.

The judge at first instance granted an order for anonymity, which stated that;

“[a]lthough the trial was held in public, […] there should be no report of the name, address or any other information which might lead to the identification of the claimant or any witness of fact (other than past or present employees of the defendant council and the defendant’s solicitor).” [para. 2]

The order would continue to apply until a person who benefited from the anonymity notified the court in writing that they waived this benefit, or there was a successful application from any interested person (e.g. the press) challenging the order .

By the time the case reached the Court of Appeal, Ms. Armes had waived her anonymity.

In August 2016, while the case was still pending before the U.K. Supreme Court, Ms. Armes filed an application to the High Court to set aside the order in so far as it granted anonymity to Mrs. A, Mr. B and other witnesses. She argued that such an order was contrary to the well-founded principle of open justice, and amounted to an unjustified interference with the public’s right to impart and receive information about matters of public interest under Article 10 of the European Convention on Human Rights (ECHR). Ms. Armes further argued that even though an order may have been justified to safeguard witnesses against whom there had been yet unproven allegations, once findings had been made against those witnesses the justification for anonymity no longer applied.

 

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Decision Overview

Mr. Justice Males delivered the judgment of the High Court of England and Wales (the Court), setting aside the order for anonymity.

The Court began by setting out the general principles relating to witness anonymity. It first recognized that it was within the Court’s power to order witness anonymity where it considered non-disclosure “strictly necessary” to protect the interests of that witness (section 39.2(4) of the U.K. Civil Procedure Rules), including the interest in protecting the witness’s right to respect for his or her private or family life under Article 8 of the European Convention on Human Rights (the ECHR). The Court noted that, when determining whether to make such an order, it must first consider whether the identification of the witness would interfere with the witness’s rights under Article 8 ECHR. The Court observed that this would only be the case where the consequences of the interference reached a certain level of seriousness, taking into account both the subject matter of the case and the nature of the evidence being given.

The Court stated that, in cases where identification of a witness would interfere with Article 8 ECHR, the Court must determine whether the interference is “necessary in a democratic society for the protection of the rights and freedoms of others”, including the right to freedom of expression and the freedom of the press to report court proceedings held in public under Article 10 ECHR. The Court was careful to highlight that an interference with Article 8 ECHR would not give rise to a presumption in favor of anonymity that could only be rebutted by a strong public interest in identification. Instead, the Court stated that three factors must be taken into account when striking a balance between Article 8 and Article 10 ECHR in these cases: (1) the principle of open justice as a general rule; (2) the severity or consequences of disclosing the identity of the witness; and (3) the existence of a public interest in the issues raised by the underlying litigation. [para. 28(e)]

The Court then proceeded to apply the above principles to Ms. Armes’ case. The Court first found that the consequences of disclosure were sufficiently serious to constitute an interference with Article 8 ECHR because the disclosure would expose Mrs. A and Mr. B to the public as child abusers. The Court noted that “[g]iven the strong feelings to which such allegations understandably give rise, it is not difficult to accept that this may generate hostility towards them and, at the least, that their respective reputations in their local communities may be severely damaged.” [para. 30]

The Court then went on to consider whether this interference was justified by the requirements of open justice or freedom of expression. In doing so, the Court took into account a number of factors.

First, the Court observed that there was no evidence to suggest that the consequences of disclosure would extend beyond embarrassment, distress or anxiety to the witnesses or to members of their families and friends.

Second, the press had not applied for the order to be set aside in the two years following the first instance judgment in the case, which implied that there was no real adverse impact on public debate following the order and, on the other hand, any subsequent press coverage following the setting aside of the anonymity order would not be extensive.

Third, the issues raised by the case were legitimate topics of public concern despite their historic nature.

Fourth, although Mrs. A and Mr. B had not been criminally convicted, findings of fact had been made against them requiring strong evidence.

Fifth, although identification of Mr. B would lead to the identification of Mrs. B and their two sons, the first instance judgment made clear that the allegations against them were unproven.

Sixth, there was no practical difference between Mrs. A and Mr. B being witnesses rather than parties to the litigation.

Seventh, the witness’s identities were part of the claimant’s life, and she had a legitimate Article 10 ECHR interest in being able to tell her story without restriction (including the fact that many of her allegations had been found to be well-founded as a matter of fact). Nonetheless, the Court noted that in exercising her Article 10 ECHR rights Ms. Armes would still be subject to the law of defamation and harassment.

Eighth, there were other cases where witnesses had been found guilty of abuse in civil claims and were allowed to be identified.

Finally, the delay in Mrs. Armes’ application had not prejudiced the witnesses.

Based on the foregoing analysis, the Court concluded that an order for anonymity was no longer necessary to protect the witnesses’ interests. It accordingly set the order aside.

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