HS2 (High Speed Two Limited) & Anor. v Elliott Cuciurean & Ors. [2022] EWHC 2626 (KB)
[20]However, as with almost all fundamental principles, the open justice rule is not absolute: as is clear from article 6, there will be individual cases, even types of cases, where it has to be qualified. In a case involving the grant of an injunction to restrain the publication of allegedly private information, it is, as I have indicated, rightly common ground that, where the court concludes that it is right to grant an injunction (whether on an interim or final basis) restraining the publication of private information, the court may then have to consider how far it is necessary to impose restrictions on the reporting of the proceedings in order not to deprive the injunction of its effect. 21 In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.(2) There is no general exception for cases where private matters are in issue.(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the article 10 rights of the public at large.(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although G some editing of the judgment or order may be necessary.(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one. 22 Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions.” [90]. So there is a balancing exercise for this Court. I take into account that if the Court does not grant, in advance, the privacy protection for the Private Information the Defendant asserts will adversely affect or damage him or breach his ECHR right to privacy were it to be made public, he may choose not to inform the Court about it at all and may not serve the evidence he wishes to rely upon, and as a result may be disadvantaged in the presentation of his mitigation and that may adversely affect the sanction decision. He would then feel he had been discriminated against by the Court. [91]. I also take into account that in Criminal Courts every day the personal and medical and adverse family backgrounds of Defendants are disclosed publicly at the sentencing stage. For example previous sexual or physical abuse is one such sensitive matter dealt with in PSRs and expert evidence in mitigation. (I should make clear that this is an example which has no factual bearing on the current case facts whatsoever.) [92]. It is stated expressly in CPR rule 81 that committal hearings shall be in public. It is very important that the public are informed of such hearings and permitted to be present to see the proper administration of justice. Court orders are to be obeyed. The public have ECHR rights to know about such cases under Art. 10. Those who breach Court orders are sanctioned. The assessment of the sanction and the balancing of the seriousness of the breach and culpability with the mitigation put forward is an open and public process. The public are entitled to know what factors which reduce or alter the sanction and what factors increase it. Secret “deals” and secret facts undermine such open justice and are to be rejected and eschewed unless the secrecy is necessary and proportionate. [93]. A sensitive middle line is often taken in Criminal Courts. The prosecution see the defence mitigation reports and the PSR but not all of the detail of these is read out. The sentencing remarks are sensitively laid out. Not all sensitive factors are fully detailed but instead may be summarised, sometimes in an oblique way. This may be described as the “Art” of sentencing remarks. [94]. So I have to decide: should the public interest in open justice override this Defendant’s right to confidentiality for this particular Private Information? Should it be “obliquely” referred to without giving away the true detail? Should press reporting be restricted? Should there be a private part to the sanctions hearing? [95]. I consider that where the private information has relevance to a defendant’s culpability for the offence it may affect the length or type of sentence. It seems to me that this information should be made public for obvious reasons. Other members of the public should generally be informed of how the sentencing or sanctions process works. Relevant factors are relevant to the public. Secret information reducing sentences is not in the public interest. [96]. Where the Private Information has relevance only to the suffering which a defendant asserts he will or fears he will endure in prison, that is arguably a matter of less relevance to the sanctions procedure. I consider this to be so because the prison service determines what happens in prison, not the Courts. This Court in these proceedings has no jurisdiction over what happens after a defendant is sent down (if that is the sanction passed). So for instance some defendants present with a suicide risk or are at an increased risk of assault in prison. Those are generally matters for the prison service not this Court. The processes and procedure in the prison service are not matters for this Court. [97]. The general principles are subject to exceptions. An example of the Courts taking into account the prison conditions arose when Covid meant that prisoners were locked in cells for longer than before Covid. The Courts took that into account in sentencing. [98]. In this case in my judgment the Private Information that has been provided to me has no relevance to culpability. The only relevance asserted at the private hearing in July was in relation to the Defendant’s asserted right to confidentiality and the psychological, emotional and social effects on him of a breach of his right to privacy due to the Private Information going public. [99]. I note that in the notes to the Supreme Court Practice at 39.2.12 that even greater care has to be taken when a Court is considering a request to hold committal proceedings in private: see EWQ v GFD [2013] EWHC 3231, per Males J. At para 19. [100]. I note and take into account the practice guidance issued by the Lord Chief Justice and the President of the Family Division and President of the Court of Protection on 3 May 2013. That begins by saying that it is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is in open court. The guidance goes on to make clear that there are some circumstances in which such an application may be heard in private. It is dealing specifically with the position in the Court of Protection and in some circumstances the Family Division, but it seems to me that the same principles apply, in effect, in the Queen's Bench Division in applications of this nature. That is to say, the court has a discretionary power to hear a committal application in private, which should be exercised only in exceptional cases where it is necessary in the interests of justice. [101]. To balance the various principles and on the facts of this case I consider that the correct procedural way forwards is as follows. The sanctions hearing on 22 September 2022 will go ahead with an increased time estimate of one day. [102]. I consider that it is necessary and just that the Private Information should be considered at a private hearing within the hearing attended by the parties and reporting restrictions will be put in place for that part of the hearing until the end of that part of the hearing. To that extent the Defendant’s application is granted. [103]. If, after the evidence and submissions, the Court rules that the Confidential Information is irrelevant to sanction then the reporting restrictions will remain in place. The public have no need or right to know irrelevant private matters. [104]. If the Court rules that the Confidential Information does trigger the Defendant’s ECHR right to privacy and is relevant to sanction and mitigation thereof then the Court will weigh the conflicting right to privacy and the potential damage caused by disclosure against the public interest in open justice on the evidence presented and after hearing submissions and will rule on whether the reporting restrictions will stay in place to protect the right to privacy and in what form the sanctions judgment will be published. Alternatively, whether the public interest outweighs the right to privacy for this committal application, of this nature, on these facts. [105]. What this Court will not do, on the scant evidence provided in this case to date, is give a guarantee in advance of the decision to be made before hearing the full evidence and the full argument from the Parties. So to that extent the Defendant’s application is dismissed. I realise that this leaves the Defendant with a decision to make but I consider that is the right way forwards. [106]. I note that the Defendant thought that the core facts of the Confidential Information were unknown to anyone but in the event HS2 staff assert they have known for months and obtained that information from the Defendant himself. That issue may be highly relevant to the final decision. The final decision will of course be fact specific. Late served evidence [107]. The Defendant seeks to rely on two expert reports. One from a psychologist and another from an assistant psychologist. Neither has been provided to the Court yet and neither has been served. [108]. In addition and slightly delphically, the Defendant seeks to rely on a PSR which he still does not have despite the evidence given in July that the probation officer had offered to provide a report if requested. [109]. Late service of evidence which should have been obtained in good time for the sanctions hearing in July will have an affect on the costs order this Court will make. [110]. Late served evidence which is late due to the Defendant’s failure to come out of a tunnel in breach of an injunction and consequent failure to instruct lawyers and get advice and evidence in good time is procedurally unimpressive. In addition the Defendant’s proposed evidence was not served in accordance with the directions order I made in June 2022. [111]. The Claimants do not object to the late evidence at this stage. [112]. Despite the Defendant’s breaches of the Court’s orders and the Court’s directions I do not propose to exclude the proposed evidence before seeing it. If it is relevant to sanctions and served and filed at least 3 days before the hearing, so by 10 am on 19 September 2022, I do grant permission to the Defendant to rely upon it. [113]. Any evidence served after 10 am on 19th by the Defendant may need to be considered further but only if an application is made pursuant to CPR Part 23 in good time before the deadline. The Claimants May serve evidence by that time too as to how their staff gained the Private Information. Conclusions [114]. The order I have made with directions is attached. [115]. The Claimants’ application made without issuing a notice of application is dismissed. [116]. The Defendant’s application dated 13 September 2022 is granted in part. [117]. Due to time constraints a neutral citation number may be put into this judgment later. Ritchie J 15 September 2022 END