Natasha Armes v Nottinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Males,Mr Justice Males |
| Judgment Date | 15 November 2016 |
| Neutral Citation | [2016] EWHC 2864 (QB) |
| Date | 15 November 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: 1NG90726 |
[2016] EWHC 2864 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Males
Case No: 1NG90726
Mr Philip Davy (instructed by Uppal Taylor Solicitors) for the Claimant
Miss Samantha Paxman (instructed by Browne Jacobson LLP) for the Defendant
Mrs A was not represented at the hearing
Mr Stephen Littlewood (instructed by Sills & Betteridge Solicitors) for Mr B
Hearing date: 8 th November 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In November 2014 I tried an action by the claimant, Natasha Armes, in which (among other things) she sought damages from Nottinghamshire County Council on the basis that the council was responsible in law for physical and sexual abuse which she claimed to have suffered during her childhood at the hands of foster parents with whom she was placed. Although I held that the council was not responsible in law for such abuse, I found as a fact that the claimant had suffered physical and emotional abuse by one of her foster parents, referred to in my judgment as Mrs A, and sexual abuse by another, referred to as Mr B ( [2014] EWHC 4005 (QB)).
As explained at [240] of my judgment, I made an order for anonymity which applied not only to the claimant, but also to any witness of fact:
"Although the trial was held in public, I made an order at the outset that until judgment there should be no report of the name, address or any other information which might lead to the identification of the claimant or any witness of fact (other than past or present employees of the defendant council and the defendant's solicitor). I did so in view of the nature of the allegations made, in order to protect the interests of those concerned. I now continue that order pursuant to CPR 39.2(4) and have anonymised this judgment accordingly. However, the order for anonymity will cease to apply in respect of any person who notifies the court in writing that they are content for their names to be identified. In addition there will be liberty to apply to enable any interested person to challenge the order for anonymity, on notice to the parties' solicitors so that they can notify those whose rights may be affected by any disclosure of their identity."
That order applied to Mrs A and Mr B, both of whom gave evidence on behalf of the defendant council, as well as to members of Mr B's family, who also gave evidence. They were witnesses in the action, but not parties. They were not represented.
An appeal by the claimant to the Court of Appeal was dismissed ( [2015] EWCA Civ 1139). As recorded at [1] of the judgment of Tomlinson LJ, by the time the case reached the Court of Appeal the claimant had waived her anonymity. I understand that there is to be a further appeal by the claimant to the Supreme Court which is due to be heard next term. The issues on appeal have been concerned with the question whether the defendant council is responsible in law for the abuse committed by foster parents. My findings of fact have not been challenged.
There is now before me an application by the claimant, represented by Mr Philip Davy, to set aside that part of my order which grants anonymity to Mrs A, Mr B and other witnesses.
Notice of this application has been given to Mrs A and Mr B, both of whom are now elderly, the events in question having taken place some 30 years ago, in 1985/6 in the case of Mrs A and in 1987/88 in the case of Mr B. As I recorded in my judgment, by the time of the trial Mrs A in particular presented as a frail and confused elderly lady with memory disturbance (see [47]). Her condition is unlikely to have improved in the meanwhile.
Mrs A has not attended or been represented at the hearing but has instructed solicitors, Weightmans LLP, who have written to the court explaining that she is of modest means and would have difficulty paying for legal representation. The letter advances reasons why the anonymity order should be maintained in her case.
Mr B has been represented by Mr Stephen Littlewood.
The defendant council has played no part in this application, although its solicitors provided a copy of the application to Mrs A and Mr B, neither of whom wished to reveal their present address to the claimant. Ms Samantha Paxman attended the hearing on behalf of the defendant. She explained that the defendant adopted a neutral position and advanced no submissions either way.
The reasons for the anonymity order
The order made at the beginning of the trial, which applied only until judgment, was made at the suggestion of counsel for the defendant council in circumstances where serious allegations of abuse had been made, not only against Mrs A and Mr B, but also against other witnesses, but those allegations had not yet been determined. In the event I found some but not all of the allegations of physical and emotional abuse by Mrs A to have been proved (see [140] to [150] of my judgment), as was the allegation of sexual abuse by Mr B (see [152] to [158]). However, I found that the allegation of physical abuse by Mrs B was not proved and I found it unnecessary to make findings as to the allegations against the two B boys (see [159]).
Although the order initially made applied only until judgment, I considered that it would be wrong to allow it to lapse without at least giving those affected an opportunity to be heard. Accordingly I directed that the anonymity order would continue in force, but gave liberty to apply to enable any interested person to challenge it on notice to those affected. I had in mind in particular the possibility of an application by representatives of the press and expected that if any such application was to be made, it would be made within a short time after the conclusion of the trial. I expressed no view as to whether, in the event of an application, the order for anonymity should be maintained or set aside. In the event no application was made until 25 August 2016 when the claimant issued the present application to set aside the order for anonymity.
The claimant's application
The claimant's application is founded on the vital principle of open justice. In outline, Mr Davy submits on her behalf that:
a. The general rule is that a hearing is to be in public: CPR 39.2.
b. The case law emphasises the importance of public hearings both before ( Scott v Scott [1913] AC 417 at 463) and after ( JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645) the coming into force of the Human Rights Act 1998.
c. An order for anonymity is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large which requires close scrutiny in order to determine whether such restraint on publication is necessary.
d. Although it may have been justifiable to order anonymity to safeguard witnesses against whom as yet unproven allegations were made, once findings had been made against those witnesses the justification for anonymity no longer applieThere are many examples of cases where findings of physical or sexual abuse have been made against witnesses in which no order for the witnesses' anonymity has been thought necessary.
Mr Littlewood for Mr B submits, also in outline, that:
a. The hearing was held in public and there is a public judgment dealing fully with both the facts and the law which is sufficient to enable any interested member of the public fully to understand the issues in the case.
b. Identification of Mr B would have a significant impact on his right to a family and private life under Article 8 of the European Convention on Human Rights as well as on the Article 8 rights of others (Mrs B and the two B boys) against whom no findings of abuse were made.
c. Identification of Mr B would be unfair as he was not warned regarding the rule against self-incrimination, was not legally represented, and was not able to mount his own defence to the allegations against him.
d. Weighing the Article 8 rights of Mr B and members of his family against the Article 10 rights of the public, the balance comes down firmly in favour of maintaining anonymity.
The solicitors for Mrs A make similar points, referring in particular to Mrs A's age and frailty, to the detrimental effect on her health which (it is asserted) identification would cause, to a concern as to what the claimant may do to give publicity to the conduct of Mrs A if the anonymity order is lifted, and to the claimant's delay in making this application.
Legal principles
The court has power under CPR 39.2(4) to order that the identity of a witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that witness. (The same rule applies to non-disclosure of the identity of a party, although I am here concerned with the position of witnesses).
The principles by which that power should be exercised have been considered in numerous recent cases, including cases at the highest level, in a variety of contexts. I will refer to some of them.
I begin with the decision of the Supreme Court in In re Guardian News & Media Ltd [2010] UKSC 1, [2010] 2 AC 697. In summary, the court held that it is necessary to balance the right of the press (or others interested) to freedom of expression under Article 10 of the European Convention on Human Rights against the witness's right to respect for his or her private or family life under Article 8. In the Guardian News case, both rights were in play. Identification of an individual known...
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