Plymouth City Council v ABC

A first-instance judge has no jurisdiction, after an order has been made and perfected, to determine a new point which was not argued or decided before judgment. The principles governing new points on appeal are for the appellate court to apply.

The Sexual Offences (Amendment) Act 1992 does not confer a general power on the court to order anonymity. It creates a criminal prohibition on publication where the statutory conditions are met. On its natural meaning, the reference to an allegation that a qualifying offence has been committed refers to a formal allegation in criminal proceedings. In any event, identification in civil proceedings will not engage the prohibition unless it is likely to identify the person as the alleged victim of such an offence.

The claimant brought proceedings alleging that the defendant had downloaded personal data and confidential information outside the scope of her employment duties and without consent. The defendant had twice applied for anonymity; both applications were refused. Her first application was not appealed, and the second refusal was the subject of a proposed appeal.

The defendant then sought to rely, as a fourth ground of appeal, on the Sexual Offences (Amendment) Act 1992, although the point had not previously been argued or decided. The judge considered whether he had jurisdiction to address the new point and, alternatively, whether the Act affected identification of the defendant in the civil proceedings.

1. The judge held that the defendant could not raise the point under the Sexual Offences (Amendment) Act 1992 at that stage. The order refusing anonymity had been made and perfected before the point was raised. The Barrell jurisdiction therefore did not apply.

2. Roche v Chief Constable of Greater Manchester Police was authority only for the limited proposition that the Court of Appeal may take account of a later judicial opinion from the first-instance judge concerning the proceedings. It did not give a party a right to have a new argument heard by the first-instance judge after judgment and perfection of the order.

3. The principles in Singh v Dass govern whether an appellate court permits a new point to be raised. The appellate court is cautious, and will generally refuse a point requiring new evidence or a different trial. A pure point of law may be admitted only where the respondent has adequate time to address it, has not acted to its detriment on the omission, and can be protected in costs. The application of those principles was for the Court of Appeal.

4. Alternatively, the Act did not apply. R (Press Association) v Cambridge Crown Court established that the Act creates a criminal offence relating to publication and does not confer power on a court to order anonymity. The judge considered that “allegation” in section 1(1) referred to a formal allegation in criminal proceedings. The present civil claim concerned alleged employment misconduct and contained no allegation concerning the defendant’s former partner or any qualifying sexual offence.

5. Even if the Act could apply outside criminal proceedings, identification of the defendant as a party to these proceedings was not, at that stage, likely to lead the public to identify her as a person against whom a qualifying offence was alleged to have been committed. The judge left open the possibility of reconsidering the position if the circumstances materially changed.

6. The supplementary judgment was handed down in anonymised form, subject to the same terms as the original decision.

The judgment arose from the defendant’s proposed appeal against the refusal of her second anonymity application. Permission to appeal was refused on three grounds. Written submissions were directed on a fourth ground concerning the Sexual Offences (Amendment) Act 1992; the judge stated his views for the assistance of the Court of Appeal but did not determine the appeal.