I’ve now come across two cases in which judges of the First-tier Tribunal Immigration and Asylum Chamber have imposed unwanted anonymity orders on parties without any application or notice. One case is reported here and the other can’t be reported because of, well, the anonymity order. In both cases there was media interest beforehand and the orders acts as a gagging orders, preventing the parties from discussing their case with the media, even though the cases and the identities of the appellants had already been reported. In one of the cases the appellant had a child and that provided the reason or pretext for imposing anonymity. In the other unreported case children are named in the determination but are entirely tangental to the case and could easily have not been named.

Where such an order is imposed, is there anything a party can do about it?

Open justice principles

The first point to make is that such orders should not be imposed in the first place. The courts have been clear that anonymity should rarely be granted and even more rarely imposed on parties without their consent. A long line of cases, including Scott v Scott [1913] AC 417, In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, Guardian News and Media Ltd [2010] 2 WLR 325 and A v British Broadcasting Corporation (Secretary of State for the Home Department intervening) [2014] UKSC 25) emphasise the importance of open justice and the importance of the parties being named.

Asylum cases and some cases directly involving children form potential exceptions to the general rule, but even then exceptions are increasingly being made. The refugee in Secretary of State for the Home Department v JR (Jamaica) [2014] EWCA Civ 477 was ultimately named, for example, and just recently a child defendant in the high profile Ann Maguire murder case was controversially named by the judge.

In the case of In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at paragraph 32, Lord Steyn said:

It is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.

Lord Rodger cited this passage with approval in the Supreme Court case of Guardian News and Media Ltd [2010] 2 WLR 325 and at paragraph 63 commented:

What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39, quoted at para 35 above.

Lord Rodger goes on to make the same point as Lord Steyn about the importance of debate, discussion and understanding of the law.

If some degree of privacy is warranted, in many cases it will be possible for the judge simply to write a determination in such a way that it can be disseminated without unnecessarily identifying non parties. Maurice Kay LJ held in Ntuli v Donald [2010] EWCA Civ 1276, for example, that it would have been “possible and appropriate” for the judge below to have written his determination in publishable form.

Rules and guidance

None of these principles are reflected in the only practice direction I’m aware deals with this issue, which is the out of date Presidential Guidance Note No 2 of 2011: Anonymity Directions in the FtT(IAC).

The relevant rule under the new Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 is now rule 13:

13.  (1)  The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

Rule 13 goes on to make additional provision in respect of matters in 13(a) — documents or information — but no further direct reference to matters in 13(b) — identification of a person — is made. As far as I’m aware, that is it in terms of rules and guidance to judges.

The standard form of anonymity order derives from the Presidential Guidance Note:

The appellant be granted anonymity throughout these proceedings, unless and until a tribunal or court directs otherwise, and be referred to as [initials of appellant]. No report of these proceedings shall directly or indirectly identify him/her or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to a contempt of court.

Some judges in the First-tier Tribunal seem to be going a little wild with their powers. In the absence of sensible guidance, their apparent ignorance of the basic principles of open justice is unsurprising but regrettable. Some further guidance from senior judges might be helpful.

Remedies

One possible way forward is to appeal a determination. A direction forms part of the determination and can be appealed. Why should a successful party have to go to the bother and cost of appealing a decision allowing their appeal when the anonymity order was imposed without notice or opportunity for representations, though? And how can that possibly be good use of precious tribunal resources?

One alternative is, given the terms of the standard order above, simply to ask for a further direction that amends or lifts the anonymity order. This might well be dealt with on the papers or a limited issue hearing could be convened, potentially. There is no clear process for this in the procedure rules, though, and it is not clear that a non party such as a media organisation, would be able to make such an application, as they can in the civil courts.

Another possibility is to apply for that part of the determination to be set aside under the new rule 32 procedure:

Setting aside a decision which disposes of proceedings

32.  (1)  The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if—

(a) the Tribunal considers that it is in the interests of justice to do so; and

(b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a) a document relating to the proceedings was not provided to, or was not received at an appropriate time by, a party or a party’s representative;

(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate time;

(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or

(d) there has been some other procedural irregularity in the proceedings.

(3) An application for a decision, or part of a decision, to be set aside under paragraph (1) must be made—

(a) if the appellant is outside the United Kingdom, within 28 days; or

(b) in any other case, within 14 days,

of the date on which the party was sent the notice of decision.

Again, this way forward has its limitations. There is a time limit (although time limits can be extended) and it is not clear that a media organisation would be able to apply. Importantly, one of the conditions at paragraph 2 must always be met. Where there was no notice and no opportunity for representations on the issue, as in the two cases I’ve mentioned, this could certainly be argued to be a procedural irregularity.

So, as you might have guessed, one of the two cases is one of mine and we’re making an application. It was made over a month ago and we have heard nothing back yet. If anything interesting happens, I’ll let you know!

UPDATE 2 Feb 2015: It worked.