Edward Johnson v Chief Constable of Bedfordshire Police

Derogations from open justice, including anonymity, are exceptional and must be shown by clear and cogent evidence to be necessary and proportionate. The court must begin with a strong presumption in favour of open justice, including identification of the principal actors, and conduct an intensely focused balancing exercise where Article 8 rights are engaged. A claimant’s distress, embarrassment, vulnerability, or association with family members facing criminal proceedings will not ordinarily justify anonymity where those matters form part of the causes of action and public adjudication is needed to vindicate the alleged wrong. Anonymity may nevertheless be necessary where refusing it would prevent the claim being fairly litigated or would expose protected information in a manner that defeats the administration of justice. The application was dismissed because those consequences were not established by clear and cogent evidence.

The claimant sought anonymity, anonymisation of filed material, restrictions on access to the court file and reporting restrictions. The underlying proposed claims concerned alleged filming of him during a police raid for a television programme, including claims under the Human Rights Act 1998, misuse of private information and data protection legislation.

The claim form had not been served after several extensions of time. The immediate application arose when the defendant declined a further extension. The claimant relied on mental-health vulnerability, privacy interests, possible publicity concerning family members facing criminal proceedings, and Articles 8 and 14 of the Convention. The central issue was whether the requested derogations from open justice were necessary to secure the proper administration of justice or protect the claimant’s interests.

1. Disposition. The application was dismissed insofar as it sought derogations from open justice. Any remaining issue concerning the form of order, costs or permission to appeal was left for further determination.
2. Jurisdiction and statutory framework. CPR 39.2(3)(a), (c) and (g) concerns hearings in private and was distinct from anonymity. CPR 39.2(4) requires non-disclosure of identity where, and only where, the court considers it necessary to secure the proper administration of justice and to protect the person’s interests. The judge adopted the claimant-favourable view that those requirements were not necessarily cumulative. Section 11 of the Contempt of Court Act 1981 could support reporting restrictions where a name or matter had properly been withheld, but did not itself resolve the anonymity application.
3. Applicable test. The court must start from the common-law principle of open justice, including the public identification of principal actors. Any derogation requires clear and cogent evidence and must be strictly necessary and proportionate. Where Article 8 is relied upon, the two-stage inquiry is whether there is a reasonable expectation of privacy and, if so, whether it is outweighed by countervailing interests. The balancing exercise gives very substantial weight to open justice, particularly where the case contributes to a debate of general interest.
4. Application. The claimant had a reasonable expectation of privacy in being filmed and in the resulting distress and dispute about use of the footage. However, refusal of anonymity would not itself make the footage public; the court could control disclosure or deployment of sensitive material at trial. The evidence did not show that publicity would materially deter the claimant from pursuing an otherwise viable claim or cause the kind of harm requiring anonymity. Distress, humiliation, embarrassment, vulnerability and feared reprisals were insufficient, especially where the matters were central to the causes of action and identification served a genuine public interest.
5. The claimant’s Article 14 reliance did not alter the balance because discriminatory effect had not been established. His vulnerabilities might instead be relevant to damages if liability were proved.