Category Archives: sexual offences amendment act

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the landmark NT1 and NT2 cases, he also knows a lot about the concept of the “right to be forgotten” and how historic, outdated or inaccurate information on the internet has the potential to cause unwarranted harm in the future.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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Filed under anonymisation, defamation, Open Justice, sexual offences amendment act

Abuse survivors’ names published on home affairs committee website

Last week, in a testy exchange with Ben Emmerson QC, the Chairman of the House of Commons’ home affairs select committee, Keith Vaz, trumpeted his committee’s commitment to transparency. The committee was taking evidence on the Independent panel inquiry into child sexual abuse and, at one point, Mr Emmerson QC, who had been heavily criticised by panel member Sharon Evans at a previous committee session, was keen to known whether a letter she had written had been, as Mr Vaz had previously indicated, published on the committee’s website. Mr Vaz replied (at 16:34:46)

Yes, yes, all letters that we receive – we don’t believe in suppressing information. This is Parliament so we put everything on the website

However, it now transpires that, when he said “everything”, this might have been taken too literally. It appears that not just correspondence might have been published, but, also, the names of four survivors of abuse. Sky News reports that

Survivors of child sex abuse have received death threats after their personal details and confidential communications with an abuse inquiry were published online.

Members of the group have written to the Home Secretary expressing “grave concern” about the publication of documents they say were leaked by a member of an abuse inquiry panel

In response, Mr Vaz, the Telegraph reports, said “The names of all these individuals were already in the public domain”.

However, just because names of victims or alleged victims of sexual offences are in the public domain does not provide a defence, for instance, to a charge under section 5 of the Sexual Offences (Amendment) Act 1992, (SO(A)A) which provides lifetime anonymity for such people, insofar as no publication may be made of their name, or address, or a still or moving picture of them.

Moreover, even if personal data is in the public domain, the provisions of the Data Protection Act 1998 (DPA) apply, and in the absence of a legal basis for publication, there will be a contravention of that Act if personal data is published unfairly. Given that complaints have been made about this publication, it certainly seems to be the case that the data subjects did not consent to such publication, and would not have had a reasonable expectation that it would happen. That would tend to suggest unfair processing.

I have written before about the dangers of inadvertently disclosing personal data in pursuance of an over-eager transparency agenda. It may be that Mr Vaz’s commitment to transparency on the part of his committee has realised these dangers.

However (and contrary to what I suggested in the first draft of this post – thanks Rich Greenhill) it appears that information published by a parliamentary committee is likely to be covered by parliamentary privilege (pages 58-59 of the Select Committee Red Book), and Greg Callus informs me that I failed to check the early-Victorian statute book – the Parliamentary Papers Act 1840 lays the basis for parliamentary privilege. This would probably provide a defence to charge of breach of SO(A)A, but it wouldn’t necessarily completely oust the regulatory jurisdiction of the Information Commissioner, in the event that the publication was inadvertent, as opposed to deliberate, and to the extent that it evinced a lack of organisational and technical measures to safeguard against unlawful or unfair processing of personal data (in contravention of the seventh data protection principle). This is because the DPA exemption (section 35A) applying to parliamentary privilege does not cover the seventh principle.However, I’m sure this is purely an academic question.

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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Filed under Data Protection, sexual offences amendment act, transparency