Edward Johnson v Chief Constable of Bedfordshire Police

The Deputy Judge refused the Claimant's application for anonymity and most other derogations from open justice. The court applied the high presumption in favour of open justice and the established necessity test for derogations, engaging the two-stage privacy assessment derived from Murray/Bloomberg (reasonable expectation of privacy; balancing against Article 10/open justice). The judge held that the Claimant had not adduced clear and cogent evidence that non-disclosure was necessary or proportionate to secure the proper administration of justice or to protect his interests, and that public interest factors (including the significance of the issues raised about filming by the police and broadcasters) weighed strongly in favour of openness. A narrowly tailored reporting restriction was, however, granted in relation to one specific mental-health matter addressed at the end of the hearing.

This was a first-instance hearing of an application by the Claimant for an anonymity order, anonymisation of filed papers, restrictions on access to the court file and reporting restrictions. The underlying causes of action were said to be: (i) a Human Rights Act 1998 claim for breach of Article 8, (ii) misuse of private information, and (iii) data protection claims. The factual matrix concerned filming by a production crew for the television programme "24 Hours in Police Custody" during a police raid at the Claimant's family home on 7 August 2019; the Claimant alleges he was filmed without informed consent and suffered distress and worsening mental-health problems as a result.

The court identified the legal framework and issues for decision:

• whether derogations from the default rule of open justice (including anonymisation) were strictly necessary and proportionate to secure the proper administration of justice or to protect the Claimant's interests (CPR 39.2(4) and related authorities);
• whether the Claimant had a reasonable expectation of privacy in the matters which would be revealed if he were named and, if so, whether that expectation was outweighed by countervailing Article 10 and open-justice considerations; and
• whether clear and cogent evidence justified the exceptional remedy of anonymity.

The judge considered the evidence, including three witness statements by the Claimant's solicitor and a psychiatric report (Dr Galappathie) describing longstanding and worsened mental-health problems and the Claimant's acute distress about potential broadcast. The defendant relied on the presumption of open justice, on a lack of specificity and cogency in the Claimant's evidence, and on correspondence and assurances from Channel 4 that the Claimant's footage would not be broadcast.

The court reasoned as follows: (i) open justice carries very substantial weight and naming principal actors is a core element of that principle; (ii) derogations are exceptional and must be justified by necessity supported by clear and cogent evidence; (iii) the Claimant had a reasonable expectation of privacy in being filmed and in the consequences of that filming, but the adverse effects alleged were not shown to be so serious as to displace the presumption of openness, particularly given the strong public interest in the questions raised about filming of police activity for broadcast; (iv) allegations of risk of reprisals were unsupported and improbable given the passage of time and likely public hearings in the criminal cases; (v) some of the matters the Claimant sought to avoid publicising were the very elements of his causes of action and would normally be revealed in litigation; and (vi) because the Claimant's name had already been used in court listings and the proceedings had not been conducted in private, some forms of reporting restriction were not available under section 11 of the Contempt of Court Act 1981.

Outcome on remedies: the application for anonymity and most other derogations from open justice was dismissed. The court did, however, accede to an unopposed, narrowly tailored reporting restriction relating to one discrete mental-health matter mentioned at the hearing.

The application is dismissed in so far as it seeks derogations from open justice, including an anonymity order. The Deputy Judge held that the presumption in favour of open justice and the Article 10/public-interest considerations outweighed the Claimant's Article 8 interests on the evidence; the Claimant had not produced clear and cogent evidence that non-disclosure was necessary or proportionate to secure the proper administration of justice or to protect his interests. A limited reporting restriction was made, by consent, in relation to one specific mental-health matter referred to at the hearing.