For reasons which will become obvious I have replaced the names of two people referred to in this post to “John Doe” and “Jane Doe”: I’ve no wish to perpetuate a possible wrong.
Last night I was reading a recent judgment of the High Court in the matter of an appeal by a barrister from a decision of sanction by the Bar Tribunals and Adjudication Service. The judge, Mr Justice Warby, is one of the most senior media law judges in the country. Indeed, as judge in charge of the Media and Communications List, he is arguably the most senior such judge.
Mr Justice Warby knows a lot, then, about privacy, and data protection, and harm to reputation. As the judge who decided the landmark NT1 and NT2 cases, he also knows a lot about the concept of the “right to be forgotten” and how historic, outdated or inaccurate information on the internet has the potential to cause unwarranted harm in the future.
Yet in the case I will discuss here, I think he adopts a course of action in writing his judgment (one which he implies he may well repeat in future) which has the potential to cause great harm to wholly innocent individuals.
The facts of the case are not particularly relevant. Suffice to say that the barrister in question (named Khan) was suspended because it was found that he had engaged in serious misconduct in inter alia discussing in a robing room serious allegations of sexual offences made by a former client of his against another practising barrister.
In reading the description of the agreed facts I was perturbed, to say the least, to note that the names of the former client and the alleged offender were apparently given in full:
What Mr Khan did, in summary, was this. On two occasions, in the robing rooms of two Courts in the Midlands, he spoke words that suggested to those who were present and heard him that a fellow barrister, [John Doe], had (a) stalked and then (b) raped another, female, lawyer who had been Mr Khan’s client and, (c) when she complained of this, caused serious threats to her life to be made, in an attempt to cover up what had taken place. All the information that Mr Khan had about these matters came from his former client, [Jane Doe], who was the complainant.
The explanation for using apparent full names was given by Warby J in the following paragraph:
I have…changed the name of the complainant because, as someone who has alleged rape, she is entitled to lifetime anonymity (Sexual Offences (Amendment) Act 1992, s 1). To make anonymity effective in her case, I have also changed the name of the barrister she accused. [John Doe] is not his real name. I have used this method of anonymisation, in preference to the use of initials, as it is at least as effective, less artificial, and reduces the potential for confusion
This strikes me as, with respect to the learned judge, profoundly misguided. The use of initials (obviously not the person’s actual initials) does not just anonymise the person to whom they relate, but also avoids the risk of someone else inadvertently being associated.
Because – here’s the rub – there does appear (unsurprisingly) to be a former barrister (now solicitor) called “[John Doe]”. He is clearly not the [John Doe] Warby J refers to (not least because [John Doe] in the judgment is of course a pseudonym. But, as is all too obvious in the modern world, snippets of information can sometimes become separated from their context, and used, inadvertently, or even maliciously, to harmful effect.
It is by no means unlikely that the first paragraph I quote above could be later quoted, or extracted, and read in isolation, and that the practising barrister who is really called [John Doe], but who has no connection whatsoever to the events in the judgment, could be defamed or otherwise harmed as a result.
Put it this way – if I were the practising barrister who is really called [John Doe] I would be horrified, and greatly aggrieved, by paragraph 5 of Warby J’s judgment.
A while ago, my enjoyment of a silly internet game, whereby one Googles the phrase “X was convicted of” (where X is one’s own name), was swiftly replaced by abject dismay, when I found that someone sharing my name had been convicted of a horrific offence. This was pure, if unfortunate, coincidence. What Mr Justice Warby appears to have done in this judgment, and is – I fear – proposing to do in future judgments, is deliberately try to develop (for the best of reasons) a judicial naming convention which risks great harm to wholly innocent and unwitting individuals. I hope he rethinks.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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