There has been a spate of recent cases where professionals involved as respondents in disciplinary proceedings have sought anonymity orders in their favour. Helen Evans KC and Richard O’Brien explore whether a divide is emerging between the approach adopted by courts compared with tribunals. They also look some of the practical pitfalls of anonymity orders protecting respondents, as well as considering the position of witnesses and other third parties.
The recent case law affirms a long standing aversion to permitting anonymisation of respondents subject to disciplinary charges- at least in High Court Proceedings, if not always in the disciplinary tribunals themselves.
For some years now, the High Court has made clear why it usually takes a strict line against anonymising professionals who are respondents to disciplinary proceedings and subsequent appeals. For instance, in Yassin v General Medical Council [2015] EWHC 2955 (Admin) Cranston J refused the application for anonymity of a respondent who had been found guilty by a Fitness to Practice Panel on all but one of several charges of serious misconduct and dishonesty. He held that “[a]nonymity constitutes a departure from the principle of open justice” and further that “[t]here is a general interest in the public being able to know the identities of those who have been subject to disciplinary proceedings.” (§59)
In Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin); [2016] 4 WLR 16 the Divisional Court (Burnett LJ, Nicol J) reversed the decision of the Solicitors Disciplinary Tribunal (“SDT”) anonymising the name of a respondent solicitor who had been acquitted of all but one offence, and found guilty only of a minor and technical matter. The Divisional Court again emphasised the fundamental common law principle of open justice. This had two aspects: (i) the public should be free to attend court proceedings; and (ii) the proceedings must be freely reportable. The latter aspect required that the persons involved, whether as parties or witnesses, be identifiable. The starting point, in the SDT as in the courts, was full openness, and only if an exception was required in the interests of the administration of justice, or to avoid a violation of a person’s rights under the European Convention on Human Rights, could some limitation be justified.
Significantly, the court in Spector held that the outcome of the proceedings could not justify anonymisation because acquittal is as much a matter of public interest as conviction. It observed that “[t]o the extent that the tribunal thought that the very bringing of charges by the SRA imputed some kind of taint on the…respondent’s character, that cannot possibly be sufficient justification for departing from the principle of open justice” (§27(ii)). Nicol J cited from Lord Steyn’s speech in In re S [2004] UKHL 47 at §30” “the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction.” In addition, the court noted that an anonymity order put the SRA in an invidious position, where it could only respond to an inquiry from someone who did not know of the proceedings by saying “we can neither confirm nor deny whether there have been any such proceedings”.
More recently, in Lu v Solicitors Regulation Authority [2022] EWHC 1729 (Admin) Kerr J upheld the SDT’s rejection of an application for anonymity by a respondent who had been acquitted of any misconduct. He did so in trenchant terms, noting that the case “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.” (§5). He also noted that “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.” (§7) Kerr J however reversed the SDT’s order anonymising third parties, as discussed later in this article. In keeping with this trend, in the recent Court of Appeal case of Cannon v BSB [2023] EWCA Civ 278, the barrister’s request for anonymity in proceedings where she had been disbarred was refused. However, the Court of Appeal did not disapprove the High Court Judge’s approach of keeping some details in a confidential annexe or naming a third party only as “Mr X”.
It is only in rare cases that the High Court has considered it appropriate to anonymise professionals. In Abbassi v Newcastle-upon-Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam) the parents of children who had died in hospital wished to be free to publicise the names of the health professionals who had cared for them, but were prevented from doing so by a reporting restriction order. The President of the Family Division continued the reporting restriction order because there was strong evidence of the potential, in the absence of anonymity, for harassment, vilification and even physical attacks on clinicians and their staff, and that naming them would be detrimental to their ability to deliver care. Although this case did not involve disciplinary proceedings against the medics involved, it is an illustration of the relatively extreme facts needed to justify anonymity of professionals in the High Court. However, as it was not strictly in the professional disciplinary context, it is open to question whether the decision would have been the same if it had been.
Is this part of a wider pattern?
The decisions in the professional disciplinary context referred to above reflect a wider concern in the courts about encroachments into the principle of open justice in a wide range of tribunals. In R (Maher) v First Tier Tribunal (Mental Health) [2023] EWHC 34 (Admin) the long-standing practice in the mental health tribunal of automatically not publicising the reasons for decisions on the discharge of patients from mental health detention, essentially on grounds of clinical privacy and of maximising clinical improvement, was criticised by Stacey J. Although a case about publication of reasons rather than anonymity, it is nonetheless significant because it is ultimately concerned with the same conflict between open justice and privacy interests. The judge noted that:
“102. The open justice principle is of “constitutional importance and…the rights that flow from it are fundamental in nature” (R (DSD) v Parole Board [2018] EWHC 694 (Admin)). All parties accepted Mr Squires’ description that the open justice principle is an evolving concept and the clear trend is towards greater openness. As per Lord Sumption in Khuja v Times Newspapers [2017] UKSC 49: “[Its] significance has if anything increased in an age which attaches greater importance to the public accountability of public officers and institutions and to the availability of information about the performance of their functions.”
The judge was critical of the mental health tribunal for not directing itself that departure from the open justice principles could only be justified “in exceptional circumstances when they are strictly necessary to secure the proper administration of justice”. Instead it had “jumped straight to the presumption contained in the FTT Rules” in favour of privacy. That the court was prepared to criticise the approach of a tribunal which was consistent not only with its well-established practice, but also its own procedural rules, is a particularly clear example of the High Court’s concern to promote open justice wherever possible.
Despite the generally negative attitude of the courts towards anonymising professionals, anonymity orders are still made with relative frequency by professional disciplinary tribunals. A recent example of anonymity being granted by the SDT is SRA v AC, where the respondent solicitor was charged with singing a lewd song in front of, and making inappropriate gestures at, “Person A”. Not only was the victim of the conduct not named and the matter heard in private, but the respondent also achieved an anonymity order on grounds of health.
What are the practical downsides of anonymising professional respondents?
The procedures relating to barristers and solicitors provide a good illustration of the type of difficulties that can emerge where respondent professionals seek anonymity – some of which were identified in the case of Spector (above). The core issue is the clash between the role played by disciplinary tribunals in protecting the public from professionals who have committed misconduct and the respondent’s desire to avoid publicity. The public interest in knowing the outcome of disciplinary proceedings usually trumps other considerations – and this is reflected by the relevant disciplinary schemes.
Where a barrister is found to have committed misconduct, Rules E243 and E243A of the Bar Disciplinary Tribunals Regulations[1] require the Bar Tribunal and Adjudication Service (“BTAS”) to publish both its outline findings and sanction decisions on its website within 14 days. Lengthier reports of the decision also have to be published unless BTAS directs that it is not in the public interest to do so. Here, the “right to know” is important: the Guiding Principle behind the BTAS Publication Policy is that the public should have access to about decisions to discipline barristers. [2] This is regarded as particularly important where the outcome is disbarment. Indeed, in such a case, the BTAS Publication Policy provides for information to remain on the website for 60 years. It is hard to see how this requirement could be fulfilled if a disbarred barrister was allowed to remain anonymous.
Similar provisions apply to solicitors. Indeed it is a statutory requirement of the Solicitors Act 1974 that there should be publicity about matters such as the suspension of practising certificates. The Solicitors Disciplinary Tribunal’s (“SDT’s”) Publications Policy also emphasises the need for judgments to be made public. As with the Bar, information about striking off orders also remains available for a period of 60 years. Less serious orders are required to be published for shorter periods. Despite this, as indicated above, in SRA v AC, where the outcome was a £23,000 fine, the respondent solicitor did achieve an anonymity order on grounds of health. Whether such an outcome would have been feasible in the case of a more serious sanction, calling for greater publicity, is unclear.
There is some divergence, however, between these two tribunals when it comes to professionals who have won their cases. Although it is still BTAS’ practice only to publish anonymised summaries of cases where charges against the barrister are dismissed, the SDT’s Publications Policy has been adapted in light of the Spector case. The SDT Policy therefore makes clear that where a hearing has taken place in public, the outcome is likely to be published in non-anonymised form even where the solicitor has been vindicated.
The accountancy regulators adopt a similar approach to the legal profession to the need to publish decisions- although the Financial Reporting Council (“FRC”) Publication Policy for the Accountancy Scheme provides a useful list of factors that might militate against publication. These factors are not exhaustive, but it is instructive to note that none of them relates to the respondent’s own desire to avoid publicity. Instead they relate to factors such as market stability or jeopardising criminal investigations.
Standing back, the public interest in ensuring that people can check a professional’s record is a formidable hurdle in the path of most respondents seeking anonymity- particularly where the sanction is at the serious end of the scale.
What about third parties? Do they have an easier time seeking anonymity?
So far as witnesses are concerned, the practice adopted by both the SDT and BTAS is to use initials rather than full names. Although this practice was deprecated by Kerr J in Lu v SRA [2022] EWHC 1729, who stated that: “the justice system thrives on fearless naming of people, whether bit part players or a protagonist”, adding that “[i]t is part of the price of open justice and there is no presumption that their privacy is more important than open justice” we have not noticed much discernible change in practice on the part of these two legal regulators – particularly so far as naming clients or vulnerable complainants is concerned. Indeed, in the recent case of SRA v Bretherton, where the allegations were of sexual misconduct by a solicitor, not only were anonymity orders put in place to protect the identity of the complainants, but there were also reporting restrictions to safeguard them against “jigsaw identification”.
However, direct participants such as complainants and witnesses are not the only third parties who can end up being considered in disciplinary proceedings. Often, tribunal decisions can end up expressing views about what other people implicated in the events giving rise to the proceedings did or did not do, even though they have had no involvement with the disciplinary proceedings.
This issue tends to be at its most stark in proceedings involving corporate collapses- which in turn tend to end up being considered by accountancy regulators such as the Financial Conduct Authority (“FCA”) or the FRC. Five years or so ago there was a flurry of case law about “Maxwellisation” – a process of providing draft decisions to third parties prior to publication in order in order for them to comment.[3]
So far as FCA proceedings are concerned, s. 393 of the Financial Services and Markets Act 2000 mandates a process whereby an identifiable third party is entitled to be given a copy of certain decision notices and make representations prior to publication.
There is no statutory equivalent for FRC proceedings, and the FRC publications did not used to cater expressly for third party anonymity or consultation. This led to notable disputes before the courts, starting with R (Lewin) v FRC [2018] 1 WLR 2867. That case arose out of a corporate collapse, where the conduct of a director fell within the four corners of the FRC investigations – although the director was not himself subject to the FRC’s jurisdiction. Having been provided with a copy of the draft report as a matter of “courtesy”, the director applied for a judicial review of the Tribunal’s decision to make adverse comments about him in the report and/or the Conduct Committee’s decision to publish the report in an un-anonymised state. The director was unsuccessful. This was because the court held that there was a strong public interest in the report being published in full. It felt that the most appropriate way to protect the director was to ensure that a disclaimer was printed on the report making clear that the director had not been a party to the proceedings and no findings were made about him. [4]
A few months later, Taveta Investments Ltd v FRC [2018] EWHC 1662 (Admin), Nicklin J held that there was a serious issue to be tried as to whether agreed settlement documents that were due to be published on the FRC’s website were defamatory and whether the FRC owed a duty of fairness to Taveta. However, in the result, no injunction was granted to restrain publication.
The FRC’s procedures now cater for the position of third parties expressly. The April 2022 version of the FRC’s Publication Policies relating to the Accountancy Scheme and the Audit Enforcement Procedure both state that:
- The identity of third parties will usually be anonymised in any announcements, unless or to the extent that publication of that party’s identity is considered fair and necessary in all the circumstances.
- Any third party named or identifiable in an announcement will be given a copy of its proposed terms a minimum of seven days before its intended publication.
Standing back, it is clear that third parties are in a much stronger position than respondents when it comes to remaining anonymous- but where there is no reason to suggest they are vulnerable, and where there is public interest in issues such as the running of a large company – they may still find that they are named.
Conclusions
Given the speed at which information about cases can spread, it is perhaps unsurprising that many respondent professionals and other participants in disciplinary proceedings do not wish to be named. The case law suggests that the High Court and above take serious persuasion that such a step is appropriate and regard the principle of open justice as trumping most other considerations.
© Helen Evans KC and Richard O’Brien of 4 New Square Chambers, June 2023
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
Helen Evans KC was called in 2001 and appointed silk in March 2022. In November 2021 she was named “Professional Negligence Junior of the Year” and in April 2022 was named “Times Lawyer of the Week.” Helen specialises in professional liability, regulatory fraud and insurance work, with a large part of her practice focusing on lawyers’ and accountants’ liability and disciplinary matters. Her recent work includes acting for a partner in KPMG in the FRC proceedings arising out of the audit of Carillion, and acting for the BSB in the Court of Appeal in Cannon v BSB. Helen is a co-editor of the solicitors and barristers chapters in Jackson & Powell on Professional Liability.
Richard O’Brien was called in 2005. He specialises in professional liability, disciplinary and public law. He has been a member of the Attorney-General’s “A”-panel of Approved Counsel since 2017. Recent work includes acting for the Official Receiver in connection with the regulatory and disciplinary processes which followed the Carillion insolvency. He acted for the successful respondent in BSB v Stephen Kamlish QC. Richard is co-editor of the chapter on human rights and judicial review in Jackson & Powell on Professional Liability.
[1] Found at Part 5, Section B of the BSB Handbook.
[2] Where the charges are not made out, BTAS publishes anonymised and truncated versions of its findings.
[3] The term derives from litigation involving the late Robert Maxwell: Re Pergamon Press [1971] Ch 388 and Maxwell v Department of Trade & Industry [1974] QB 523.
[4] Disclaimers can be given also in court judgments – see e.g. Rothschild v Associated Newspapers [2012] EWHC 177 (QB).
