Plymouth City Council v ABC
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 30 September 2022 |
| Neutral Citation | [2022] EWHC 2426 (Ch) |
| Docket Number | Case No: BL-2021-BRS-000010 |
| Court | Chancery Division |
[2022] EWHC 2426 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: BL-2021-BRS-000010
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
BUSINESS LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Spencer Keen (instructed by Plymouth City Council Legal Department) for the Claimant
The defendant in person
Issue dealt with on paper
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.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on Friday 30 September 2022.
Introduction
This is my decision on an issue arising out of my earlier decision dated 6 July 2022 refusing the defendant's second application for anonymity in these proceedings: see [2022] EWHC 1670 (Ch). The claim in which the applications were made was issued on 11 June 2021. It concerns claims that the defendant downloaded personal data and confidential information otherwise than for the purpose of carrying out her duties as an employee of the claimant, and without the claimant's consent.
On 14 March 2022 I gave written reasons for deciding to refuse the defendant's first application for anonymity, although I also gave the defendant liberty to apply again if circumstances changed in the future. The defendant did not seek to appeal against that decision, and she is now well out of time for doing so. Instead, on 14 April 2022, the defendant applied again to the court for the same relief. As I have said, I dismissed the second application too. I did so not only on the ground that there had been no sufficient change in circumstances since the first application, but also on the merits.
On 26 July 2022, the defendant sought permission to appeal my decision to the Court of Appeal on four separate grounds. On 4 August 2022 I refused permission to appeal on the first three grounds, but directed written submissions in relation to the subject-matter of the fourth. I did so because that fourth ground had not previously been argued before me, and accordingly I had given no decision upon it. I considered therefore that it would assist the Court of Appeal if I stated my views on the point.
That fourth ground related to the effect on the present proceedings of the Sexual Offences (Amendment) Act 1992. I duly received written submissions from the claimant dated 19 August 2022, and from the defendant in answer (mistakenly dated 16 August 2022, but received by the court on 16 September 2022, and then resent in amended form on 18 September 2022), and have considered them.
The 1992 Act (as amended) relevantly provides:
“1(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, [no matter relating to that person shall during that person's lifetime be included in any publication] if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
[ … ]
[(3A) The matters relating to a person in relation to which the restrictions imposed by subsection ( 1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) the person's name,
(b) the person's address,
(c) the identity of any school or other educational establishment attended by the person,
(d) the identity of any place of work, and
(e) any still or moving picture of the person.]
[ … ]
2. This Act applies to the following offences [against the law of England and Wales—
(aa) rape;
[ … ]]
(a) any offence under any of the provisions of the Sexual Offences Act 1956 mentioned in subsection (2);
[ … ]
(2) The provisions of the Act of 1956 are—
[ … ]
(k) section 14 (indecent assault on a woman);
[ … ]
5. [(1) If any matter is included in a publication in contravention of section 1, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) where the publication is a relevant programme—
(i) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;
(c) in the case of any other publication, any person publishing it.]
(2) Where a person is charged with an offence under this section in respect of the [inclusion of any matter in a publication], it shall be a defence, subject to subsection (3), to prove that the publication … in which the matter appeared was one in respect of which the person against whom the offence mentioned in section 1 is alleged to have been committed had given written consent to the appearance of matter of that description.
(3) Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it [, or that person was under the age of 16 at the time when it was given].
[ … ]”
Submissions
The claimant submitted that the court had no jurisdiction to consider the fourth ground of appeal at all. This (it said) was not a case where it was suggested that the reasoning was deficient or that there was an obvious error, as in eg Space Air-Conditioning v Guy [2012] EWCA Civ 1664, [8], [53]. Nor was the so-called Barrell jurisdiction (from Re Barrell Enterprises Ltd [1973] 1 WLR 19, CA) available, because judgment had already been entered and perfected. In addition, the claimant sought to distinguish the decision of the Court of Appeal in Roche v Chief Constable of Greater Manchester Police [2005] EWCA Civ 1454, where the court took into account a further judgment from the court below in considering an appeal against an order by the same judge following an earlier judgment.
However, the claimant also submitted that, in any event, the 1992 Act had no application to this case. It submitted that it could apply only where there was a risk that a person in relation to whom an offence to which the Act applies has been alleged to have been committed would be identified in the proceedings as such a person. However, the present proceedings were not related to the commission of any such offence, and it was no part of the case made in the proceedings that such an offence had been committed. Accordingly, it was not “likely” that any members of the public would be led to identify that person as a victim of such an offence.
In this connection, the claimant referred to paragraph 26 of my decision of 14 March 2022, in which I said:
“This litigation is not concerned with the defendant's former relationship or with her personal life now, including where she lives. None of the details of these things is likely to be relevant or need to be discussed and written about.”
As I have already said, this litigation is instead about the downloading of personal data in the context of an employment relationship between the parties. The decision of 14 March 2022 was, as I have also said, not the subject of any appeal.
In her response to these submissions, the defendant submitted that the present proceedings were related to earlier proceedings between her and her former partner, and that she wished to refer to her history as a survivor of domestic abuse because (i) it was relevant to her state of mind at the time of the allegations made by the claimant, and (ii) the claimant's knowledge of such matters was relevant to its treatment of her as an employee and its conduct in bringing the claim against her. In addition, the defendant submitted that she had made it clear “from the outset” that she was claiming anonymity, and that in so doing she was relying on various legislation, including the 1992 Act.
Discussion
Reliance on the 1992 Act
I can deal with the last point straight away. As is clear from my original written decision, I do not think that her reliance on the 1992 Act was clear at all. In my decision of 4 August 2022, refusing permission to appeal on the other grounds, I said that the 1992 Act
“… was not referred to in the defendant's written submissions on either of the anonymity applications that she made. Nor was it referred to in the 20-page ‘Response to the draft judgment’ that she sent to the court on 5 July 2022, after receiving a copy of my judgment in draft. I note however that it was referred to on the last page of an 8-page letter which she wrote to the Employment Tribunal on 18 May 2021 to ask for reasonable adjustments (including anonymity) in the proceedings that she had instituted against the claimant before that tribunal.”
The defendant appends a chronology to her written submissions which, she says, “focuses in the main on the many occasions I have asked for my letter of 18 May 2021 … to be considered in full”. She says that this confirms that she has “consistently made reference to the 1992 Act”. I do not agree. The reference to her letter of 18 May 2021 is a reference to her asking for reasonable adjustments to be made in the proceedings concerned. It is not in my judgment an effective invocation of the provisions of the 1992 Act. Before her application for permission to appeal, I had no idea that she was in any way relying on the 1992 Act.
Can the defendant raise the matter now?
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