Director of the Serious Fraud Office v Bluu Solutions Limited & Anor

The starting point is open justice, including identification of persons mentioned in proceedings. Anonymity is an exceptional derogation and must be justified by necessity in the interests of justice. In a challenge based on Article 8, the question is whether disclosure would seriously interfere with private-life rights and whether restricting publication is necessary and proportionate. There is no special confidentiality principle for background facts supporting a deferred prosecution agreement. Each case turns on its facts. Where criminal proceedings have concluded, the court may de-anonymise an approval judgment if the identity is already ascertainable, no specific disadvantage is evidenced, and identification assists proper scrutiny of the agreement and its factual basis.

The court had approved deferred prosecution agreements between the Serious Fraud Office and two companies in July 2021. Publication of the approval judgment, the agreements and related material had been postponed while criminal proceedings against former directors and agents were ongoing.

After those proceedings concluded, the judgment was de-anonymised and briefly published. One acquitted individual, who had not received the communications preceding publication, objected and sought continued anonymity. The issues were whether the March 2023 order made in the criminal proceedings limited the court’s jurisdiction over the final form of its judgment and whether the individual’s Article 8 rights required continued anonymisation.

1. Jurisdiction. The judge alone had jurisdiction over the final form of the published approval judgment. The March 2023 order could not restrict the form in which that judgment was ultimately published.
2. Applicable principles. The common-law principle of open justice, as explained in Marandi, starts with publication and includes naming individuals. Any derogation must be narrowly justified by necessity in the interests of justice, supported by clear and cogent evidence. The court must first ask whether disclosure interferes with Article 8 rights and then balance the seriousness of that interference against the requirements of open justice.
3. There was no special confidentiality attaching to background facts underpinning a deferred prosecution agreement. Open justice could be qualified only by the common law or by applicable statutory reporting restrictions. The statutory restrictions imposed when the agreements were approved no longer applied because the criminal proceedings had ended.
4. The relevant question was whether the individual had shown that continued withholding of his identity was necessary to protect his Article 8 rights, rather than whether naming him was necessary for public scrutiny of the approval process. The assessment was fact-specific.
5. The balance favoured publication. The individual had been named in the criminal proceedings, the connection with the approval judgment was readily ascertainable, and no specific disadvantage from identification had been evidenced. Retaining anonymity without reporting restrictions would also be confusing. Identification could assist comparison between the facts advanced in support of the agreements and the facts accepted or rejected in the criminal proceedings. The judge’s express statement that she made no findings of fact about individuals meant that any reputational harm from fair reporting was negligible.
6. The judgment was therefore to be published in de-anonymised form.