Robb Simms-Davies v Southwark Crown Court

Approval of a deferred prosecution agreement is part of the administration of justice. Open justice therefore applies when deciding whether to name individuals in the reasons for approving it, even if they were not parties to the negotiations or proceedings.

The starting point is publication. Continued anonymity must be shown to be necessary to protect Convention or common-law rights. The court must balance those rights against open justice.

The claimant was identified as Director 1 in an anonymised judgment approving deferred prosecution agreements entered into by the Serious Fraud Office and two companies. He had been prosecuted separately for bribery offences and acquitted. After publication restrictions were lifted, the Crown Court judge decided that the approval judgment should be published in de-anonymised form.

The claimant sought judicial review, arguing that the judge wrongly treated the matter as one involving open justice and required him to justify continued anonymity.

1. Claim dismissed. Approval of a deferred prosecution agreement under Schedule 17 to the Crime and Courts Act 2013 is a judicial process forming part of the administration of justice. The court must decide whether the agreement is in the interests of justice and whether its terms are fair, reasonable and proportionate. It must give public reasons when approving it.
2. Open justice therefore applies when deciding whether to include individuals’ names in the approval judgment. This remains so where an individual was not involved in the negotiations, was not a party to the agreement or proceedings, and was not named in open court. The court may need to describe individual conduct to explain its decision.
3. Anonymisation and reporting restrictions are both considered against the starting point of open justice, although they may address different concerns. A derogation is justified only where necessary to protect rights such as the right to respect for private life under Article 8 of the Convention.
4. Including the claimant’s name did not amount to a finding that he was guilty. The judgment expressly stated that the court made no findings of fact concerning individuals described in the agreed facts. Del Campo v Spain was distinguishable because the domestic judgment there made adverse findings against a non-party.
5. XYZ v Bloomberg LP did not determine the issue. It concerned misuse of private information and privacy expectations before charge, whereas this case concerned publication after charge and conclusion of the criminal proceedings.
6. The Crown Court judge had jurisdiction to revisit the earlier anonymisation decision. Her approach was correct, and the claimant had not shown that continued anonymity was necessary.

This was a first-instance judicial review in the Divisional Court of the High Court. The claim challenged the Southwark Crown Court judge’s decision to publish the DPA approval judgment in de-anonymised form.