Category Archives: Open Justice

April 23, 2026 · 8:41 am

Open Justice and the Information Tribunal

We need to talk about open justice in the Information Rights jurisdiction of the First-tier Tribunal.

The Tribunal has just handed down a decision rejecting an appeal by the National Archives against a decision by the Information Commissioner’s Office that it had to disclose information about its handling of requests to close (or “reclose”) certain files. Remarkably, the Tribunal (like the ICO before it) gives no detail whatsoever about what the files relate to, referring to them as “Matter 1” and “Matter 2”, despite noting that it had

concerns that the [National Archives] seems to be seeking to withhold from disclosure the very existence of Matter 1 and Matter 2. It appears to us that the Appellant does not want to disclose the fact that Matter 1 and Matter 2 exist

For those who wish to know, the nature of the matters in the closed files (two foul crimes) can be readily seen on the National Archives own published spreadsheet.

But, furthermore, a witness statement was given by the Director for Public Records Access and Government Services at the National Archives. This is undoubtedly a role of some seniority. Yet the Tribunal says “It is not necessary for us to identify this witness by name in this decision (or in the Closed Annex) – therefore we merely refer to them as “the witness””.

There is no indication at any point that either the nature of Matters A and B or the name of the witness were subject to an order under rule 14 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

With all due respect to the Tribunal and its members, in handing down an open judgment, it is handing it down to the public, as much as to the parties. In Lord Hewat’s famous (and original) formulation: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Of course I’m not saying that justice has not been done here, and I do recognise that the Tribunal did actually order disclosure of the internal discussions about the closure of the files. But that’s not the point, and while it’s important that the public can understand what is going on (and it’s notably difficult to do so from this judgment) it should be remembered that openness of the proceedings is the general principle, and any derogation needs to be justified. In Scott v Scott, Lord Shaw said “publicity in the administration of justice” was “one of the surest guarantees of our liberties.

I realise I’m exercising some hyperbole in referencing these landmark cases in a post about the withholding of minor information in a minor decision by a tribunal. But that’s the point of important principles like the principle of open justice: they apply to the small things as much as the large ones.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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March 7, 2026 · 7:39 am

Ofwat and Open Justice

On 5 March Ofwat announced its intention to fine South East Water £22m for repeated supply failures.

It transpires that South East Water has applied for permission for judicial review of the proposal, and also that it sought an injunction to restrain Ofwat from publishing its announcement, pending the outcome of the JR application.

Mr Justice Chamberlain’s dismissal of the application for the interim injunction strikes me as an important one in relation to the principle of open justice. The judgment notes that, although Ofwat, as a public authority, would not generally enjoy the benefit of Convention rights, Article 10 confers on members of the public not just the right to freedom of expression (ie to impart information) but also to receive information which a public authority wishes to publish. An order which prevented Ofwat from doing so would interfere with those Article 10 rights. By s12(3) of the Human Rights Act 1998, the court cannot make such an order on an interim basis unless it is “satisfied that the applicant is likely to establish that publication should not be allowed”.

On the facts, the judge was very far from satisfied. The allegations of public law unfairness and predetermination on the part of Ofwat appeared to have strong potential defences. And the argument that publication would have negative effects on South East Water’s credit rating, although it had some merit, had to be balanced against three other types of harm which would be caused in the scenario where interim relief was granted but the claim later failed: one harm would be to potential investors; one harm would be to South East Water’s customers, many of whom had already suffered from repeated supply issues, and who would be delayed in hearing about the proposed enforcement action by at least four months; and the final harm would be that the substantive JR proceedings would have to proceed in private, thus denying any other party (e.g. a group representing customers or consumers) to apply to file evidence or make submissions as an intervenor – that would be a “very substantial derogation from the principle of open justice, which itself would give rise to significant damage to the public interest”.

For all these reasons, interim relief was refused. As South East Water confirmed it did not intend to appeal, the notice of intent was published, as was the judgment.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 23, 2024 · 10:44 am

No right to anonymity in withdrawn proceedings

[reposted from LinkedIn]

The Upper Tribunal (Tax and Chancery) Chamber (UT) has declined to accept that, as a general rule, where a party bringing substantive proceedings has sought, and failed to get, an ancillary anonymity order, they should be able to withdraw their substantive application and maintain anonymity.

The applicant – “The Taxpayer” – was originally granted anonymity (i.e. that the hearing should be in private) by the First-tier Tribunal (FTT) in proceedings where he was appealing against the denial by HMRC of certain tax deductions which he had claimed.

In a decision from January this year the Upper Tribunal granted HMRC’s appeal and set aside the FTT’s direction. The Taxpayer then sought a direction from the UT that if he withdrew his substantive FTT appeal against HMRC’s denial of deductions, the UT proceedings would remain anonymised.

Counsel for The Taxpayer accepted that this would be a derogation from the open justice principle, but argued that it was one that – absent bad faith – would always be necessary in such withdrawal circumstances “in order to secure the administration of justice and to protect an applicant’s Article 8 rights”.

Not so, held the UT: “it would undermine [the open justice] principles for the Anonymity Application to be granted without any consideration of the degree of necessity, the facts and circumstances said to justify anonymity, or the proportionality of the derogation from the principle of open justice. An application such as the Anonymity Application is not to be refused or granted in every case, but stands or falls by a granular, fact-specific, assessment of those factors”.

Pending further appeal, the identity of The Taxpayer remains undisclosed, but once appeal has been refused, or deadline has passed, the judgment will be republished without anonymisation.

The views in this post (and indeed most 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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November 16, 2024 · 6:56 am

Non-party access to court documents

The issue of non-party access to information from court cases, such as parties’ skeleton arguments and other case documents, continues to exercise the courts. In a recent judgment (Moss v The Upper Tribunal [2024] EWCA Civ 1414), the Court of Appeal has ruled that the president of the Administrative Appeals Chamber of the Upper Tribunal had been wrong to refuse an application for parties’ written submissions from a Freedom of Information Act case.

Following the Supreme Court’s judgment in Dring, it is clear that there is no presumptive right to such documents. Instead, as Baroness Hale put it, “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle” (at para 45 of the SC judgment), and if that test is met, the court must consider any countervailing factors (at 46-47).

Here, the AAC President had rejected the applicant’s stated reason (“I am a campaigner and writer with a particular interest in information and rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view”) but did not explain why. This was an error of law, and Coulson LJ, reconsidering the material which had been before the President, decided instead that stated reason (just) met Baroness Hale’s first test. There were no countervailing factors, and so the appeal succeeded.

All three appeal court judges note that the Civil Procedure Rules Committee is in the process of considering how to deal with non-party information requests – something Baroness Hale had called for in a postscript to Dring.

However, as happened here, such requests are often made in relation to tribunal proceedings, which are not covered by the CPR. Tribunal rules are notably silent on such issues, and Underhill LJ wisely calls on the Tribunal Rules Committee also to consider the matter.

Aidan Wills of Matrix Chambers acted for the appellant, and Eric Metcalfe of Monckton Chambers for the Information Commissioner’s Office, as an interested party.

The views in this post (and indeed most 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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October 24, 2024 · 11:20 am

Data (Use and Access) Bill – some initial thoughts

By me, on the Mishcon de Reya website.

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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

The views in this post (and indeed most 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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August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

The views in this post (and indeed most 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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December 24, 2021 · 11:15 am

Reporter uses FOI to lift anonymity order

Here’s a remarkable example of good use of Freedom of Information (FOI) law. Tanya Fowles, a reporter covering courts in Northern Ireland, has successfully applied to lift a reporting restriction order, originally made in the magistrates’ court, which prevented her naming a person convicted of causing a child to engage in sexual activity.

The court appears to have imposed the original order because of a perceived risk to the defendant’s safety, based on evidence given by a police officer, who is reported to have told the court that

It’s a small, rural community. The family would be well-known. I think he would be easily identified. I know of incidents recently where paedophile hunters have gone to houses and attacked individuals. I am aware that is prevalent within the area, or certainly was last year. They have turned up at houses and one was arrested for assault. After that there was a bit of a lull, but I believe they are still active in the area.

However, Fowles then made an FOI request to the Police Service of Northern Ireland, which revealed that, far from such incidents being prevalent, police had only attended seven incidents in the entire County Armagh area during 2019/20, resulting in a single report of assault but zero prosecutions. This evidence was accepted in the county court (to which the case had been transferred) and the reporting restriction order was lifted.

The views in this post (and indeed most 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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August 27, 2018 · 6:05 pm

What’s in a name?

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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October 13, 2017 · 7:01 am

FOIA’s not the only route

News emerges of a potential judicial review attempt to force disclosure of government Brexit papers not under FOI but under common law and human rights to information

More than three years ago the Supreme Court handed down judgment in a long-running piece of litigation under the Freedom of Information Act 2000 (FOIA). Journalist Dominic Kennedy had attempted to get disclosure from the Charity Commission of information relating to inquiries into George Galloway’s “Mariam Appeal”. The Commission said, in effect, that the absolute exemption to disclosure at section 32(2) of FOIA was the end of the story, while Kennedy argued that Article 10 of the European Convention on Human Rights imposed a positive obligation of disclosure on public authorities, particularly when the requester was a “public watchdog” like the press, and that s32(2) should be read down accordingly to require disclosure in the circumstances (I paraphrase). In his leading opinion Lord Mance gave this stirring introduction:

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal.

What was most interesting about the judgment in Kennedy, and, again, I disrespectfully heavily paraphrase, was that the Supreme Court basically said (as it has been wont to do in recent years) – “why harp on about your rights at European law, don’t you realise that our dear old domestic friend the common law gives you similar rights?”

the route by which [Mr Kennedy] may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles and/or in the light of article 10 of the Human Rights Convention, if and so far as that article may be engaged

This greatly excited those in the information rights field at the time, but since then, there has been little of prominence to advance the proposition that FOIA rights are not the only route [Ed. there’s a great/awful pun in there somewhere] but it did get a positive airing in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin) (on which see Panopticon post here).

Yesterday (12 October) barrister Jolyon Maugham announced that his Good Law Project was seeking donors towards a judicial review application if the government refused to publish information and reports comparing the predicted economic harm of Brexit with the predicted economic benefits of alternative free trade agreements. Keen followers of information rights litigation will note that Tim Pitt-Payne  and Robin Hopkins are instructed: the potential respondents should quake in their boots.

Well worth watching this, and well worth – in my opinion – donating towards the cause.

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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