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Section numbers from the book are used where relevant. The book should be read too. Its content provides fuller explanations and context.
18.1.2 Further detail on ‘administrative justice’ tribunals
Reforms in the Tribunals, Courts and Enforcement Act 2007 created the First-tier Tribunal as a generic tribunal to merge the administration of most tribunals dealing with appeals against decisions made by state officials. A decision of the First-tier Tribunal may, in some instances, be appealed to, or be reviewed by, the Upper Tribunal, also created by the 2007 Act. The Upper Tribunal’s rulings are binding as precedents on the First-tier Tribunal. Appeals on a point of law from Upper Tribunal decisions may in some instances be made to the Court of Appeal, or the Upper Tribunal can transfer some types of case to the High Court. See Figure 18.1 in McNae’s.
The First-tier Tribunal is organised administratively into sections, called ‘chambers’, in which tribunals are grouped according to their field of work. Members (that is, decision-makers) in the First-tier tribunals and Upper Tribunal are, if legally-qualified, known as judges (and include judges who preside in the High Court and other courts). Some tribunals consist of a judge sitting alone as a single member. Others include members who are experts in the relevant field - for example, surveyors, doctors, disability experts.
In 2011 the Government merged the administration of courts and tribunals into Her Majesty’s Courts and Tribunals Service (HMCTS), an agency of the Ministry of Justice, and unified the judiciary of courts and tribunals.
18.3 Open justice, exclusion, and reporting restrictions in rules
Each chamber of the First-tier Tribunal has its own procedural rules, as does the Upper Tribunal. The First-tier rules state that hearings must be held in public subject to certain exceptions. For example, the rules of the Health, Education and Social Care Chamber say that hearings in special educational needs cases, disability discrimination in schools cases, and mental health cases must be held in private unless the tribunal considers that it is in the interests of justice for such a hearing to be public. A hearing in a criminal injuries compensation case must be held in private unless the appellant consents to the hearing being public and the tribunal considers that it is in the interests of justice for the hearing to be public, according to the rules of the Social Entitlement Chamber. Upper Tribunal rules state that its hearings must be held in public unless it directs otherwise.
The rules for this tribunal system, which are set out in various statutory instruments, can be accessed through a Government webpage - see Useful Websites, at the end of this Additional Material. Other types of tribunal have their own rules. Their websites should show their rules.
The procedural rules for the First-tier Tribunal chambers and the Upper Tribunal state that the tribunal may make an order to prohibit the disclosure or publication of specified documents or information relating to its proceedings, or of any matter likely to lead members of the public to identify a person who the tribunal has decided should not be identified in connection with the case. As regards any directive that such a document or information should not be disclosed to another person, the rules state that the tribunal must be satisfied that otherwise disclosure would be likely to cause some person serious harm and that having regard to the interests of justice it is proportionate to give such a direction. The term ‘document’ embraces anything in which information is recorded in any form.
Rule 14(7) of the Health, Education and Social Care Chamber states that unless the tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public. This applies, for example to the First-tier Tribunal (Mental Health) which rules on applications for the discharge of patients detained in psychiatric hospitals, and which is part of that Chamber.
Such rules are primarily directed to the parties and legal representatives in cases at these tribunals. But the Upper Tribunal has High Court powers, in all matters incidental to its functions, to protect those functions, and - because it and the First-tier Tribunal are classed in law as courts - breach of their rules or of an order made under them, including any breach by the media in what is published, could be punished as a contempt of court. A person who commits a contempt of court can by punished by a fine for which there is no statutory limit and/or by a jail term of up to two years. An individual who suffered psychological or other harm from breach by a publisher of an Upper or a First-tier Tribunal rule or order could sue the publisher for damages - for example, if private information about the person’s health was published in a case report which identified them despite the tribunal making an anonymity order. Privacy rights in general are outlined in ch. 27 in McNae’s, and see in particular 27.12.1.
Remember: A journalist excluded from a tribunal hearing of any type, or who is ordered by a tribunal to restrict what is reported from a case, should ask under what rule the exclusion or order was made, if this is not clear, in case he/she chooses to challenge the decision
18.3.1 Journalists’ access to case material
A journalist applying to see case material referred to in a public hearing of any tribunal should cite the Supreme Court’s judgment in Cape Intermediate Holdings v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, hereafter referred to as Dring, and the Court of Appeal’s judgment in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420. They firmly established - because of the principle of open justice - that there is a presumption in law that non-parties such as journalists should have access to case material to help them report the cases of any type of court, including tribunals classed as courts. For fuller details of this right, see 15.19 in McNae’s. These judgments and case law evolving from them make clear that the application for access to case material must be considered even if the journalist did not attend that public hearing and even if the case has ended (see, for example, the Employment Appeal Tribunal judgment covered later in this Additional Material, at 18.7.3.1). Ideally the application should be made before the case ends, because if there has to be a hearing solely for the tribunal to rule on the application, one or more of the parties may argue that their costs arising from that hearing should be met by the journalist or her or his media organisation.
Case study: In 2018 reporter Gareth Corfield, of technology and science news website The Register, won a landmark victory in the Upper Tribunal by persuading it to let him see case documents in a tax appeal case. The appeal was by Aria Technology Ltd (ATL) against a ruling by the Tax Chamber of the First-tier Tribunal, which arose from ATL's wholesale supply of computer hardware equipment to customers in Spain, Luxembourg, Portugal and Canada. The First-tier Tribunal ruled that HM Customs and Revenue (HMRC) ‘had established fraudulent tax losses and that there was an orchestrated scheme for the fraudulent evasion of VAT connected with’ those transactions, and that ATL knew that the deals were connected to fraud or ought to have known this. Mr Corfield applied to see ATL's notice of appeal, with contained detailed grounds of appeal, and HMRC's response to it. Judge Greg Sinfield granted that application, ruling that the Upper Tribunal has an inherent power to grant a third party access to documents relating to proceedings which are held in its records - and a duty at common law to do so in response to a request unless it considers that they should not be disclosed. The ruling establishes that journalists have a presumptive right of access to documents filed in Upper Tribunal cases. Judge Sinfield pointed out that in the Guardian News and Media case Lord Justice Toulson had stated: ‘Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state’. Thus, Judge Sinfield ruled, the Upper Tribunal had an inherent jurisdiction (power) to determine how the principle of open justice should be applied. He said that this ability to apply the principle was put beyond argument by section 25 of the Tribunals, Courts and Enforcement Act 2007, which provided that, in relation to the production and inspection of documents and all other matters incidental to its functions, the Upper Tribunal had the same powers, rights, privileges and authority as the High Court. Judge Sinfield said that while Part 5.4C of the Civil Procedure Rules (CPR) applied to civil courts, not tribunals, the CPR provided helpful guidance where the Upper Tribunal’s own rules were silent or uncertain in scope. Aria Taheri, ATL's sole director, had objected to Mr Corfield's application to see the documents. Mr Taheri feared that reporting of the case before his appeal was heard could damage his reputation and the business. But Judge Sinfield said: ‘In my view, Mr Taheri has not demonstrated that allowing Mr Corfield and The Register access to ATL's notice of appeal and grounds and HMRC's response would lead to any unfairness or is likely to cause ATL or any other person real harm.’ The judge added: ‘I have been given no reason to doubt Mr Corfield's statement that he is required to report the proceedings fairly and accurately’ (Aria Technology Ltd v Commissioner for HM Revenue and Customs, with Situation Publishing Ltd as a Third Party [2018] UKUT 0111 (TCC)).
18.4 Examples of disciplinary tribunals
The disciplinary tribunals listed below, being those of regulated professions, are not part of the ‘administrative justice’ system. But their powers too derive from statutes, and their decisions may mean a person is banned from working in that profession.
The Medical Practitioners Tribunal Service This tribunal of the General Medical Council hears complaints against doctors in its fitness to practise panels.
The Solicitors Disciplinary Tribunal This must, in general, sit in public to hear allegations of professional misconduct against solicitors.
The Bar Tribunals and Adjudication Service has fitness to practise panels, which rule on complaints against barristers, on behalf of the Bar Standards Council.
The Nursing and Midwifery Council has fitness to practise panels which consider complaints against nurses and midwives on its register.
The Teaching Regulation Agency has professional conduct hearing panels to consider complaints against teachers.
The Health and Care Professions Tribunal Service has fitness to practise panels to consider complaints against health, psychological and social work professionals.
Each of these disciplinary tribunals has its own rules on when hearings are held in private, and procedural powers for it to decide whether the professionals or witnesses are named in hearings or to the media. See Useful Websites, at the end of this Additional Material, for the rules of the tribunals listed above.
As regards a disciplinary tribunal classed as a court (see 18.2 in McNae’s for context), breach of one of its rules or of an order made under a rule – for example, an order banning publication of a person’s identity - could be punished as a contempt of court (which means, as stated earlier, the punishment could be a fine or jail term). Again, an individual who suffered harm from breach of a rule or order could sue those responsible for damages - for example, for breach of privacy.
If the disciplinary tribunal concerns a statutorily-regulated profession, it should be assumed that it is a court (and its rules in a statutory instrument are a form of law).
In 2009 the High Court judge Mr Justice Eady said that a media account of the proceedings of the Solicitors’ Disciplinary Tribunal enjoyed absolute privilege in defamation law (Karim v Newsquest Media Group Ltd [2009] EWHC 3205 (QB); and Media Lawyer, 29 October and 21 December 2009). This means he accepted the argument that it was a court. See 18.5 in McNae’s about privilege applying to reports of tribunal cases.
18.4.1 Police misconduct proceedings
Police misconduct cases are decided by a type of tribunal. The Holdthefrontpage.co.uk and Press Gazette websites have reports expressing journalists’ concerns that a large number of these misconduct hearings are held in private, and that anonymity orders are made for many of the police officers involved.
For example, in the High Court proceedings about whether the Basingstoke Gazette could fully report a misconduct case, referred to later in this Additional Material, it was said that between 2016 and 2020 a third of disciplinary proceedings concerning Hampshire police officers were heard in private, not counting the misconduct case which the newspaper wished to report (which too was heard in private). Journalists argue that the high total of private hearings suggests that the system for misconduct proceedings is not sufficiently complying with the common law principle that justice should be conducted openly.
A finding by a tribunal that misconduct occurred means that the officer or special constable can be given a written warning or a final written warning, or be demoted or sacked without notice and barred from holding such office again.
Misconduct proceedings are governed by the Police (Conduct) Regulations 2020, which is a statutory instrument (SI 2020/4). For these regulations, see Useful Websites at the end of this Additional Material.
A tribunal (that is, a ‘panel’ convened under the regulations for a particular case) has three members: the chair, who is legally qualified, a police officer of superintendent rank or above, and an independent member who is layperson (that is, not a police officer).
Regulation 29 says that the chair of the tribunal must take appropriate action to ensure that its proceedings are conducted in a ‘transparent manner’. But the experience of the media is that these regulations are weak in promoting transparency.
Regulation 39, although stating a default position that a misconduct hearing must be in public, gives the chair power, as she/he sees fit, to exclude any person from the hearing—which means that it can sit in private – and/or to ban the publication of ‘any matter relating to the proceedings’ (that is, to impose a reporting restriction).
Regulation 39 says that the chair’s power to order that information should not be disclosed can be used to the extent that the chair considers that preventing disclosure to an attendee is:
(a) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings;
(b) necessary in the interests of national security;
(c) necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(d) necessary for the purpose of the prevention or detection of misconduct by other police officers or police staff members or their apprehension for such matters;
(e) necessary and proportionate for the protection of the welfare and safety of any informant or witness;
(f) otherwise in the public interest.
The chair’s consideration of the (a) – (f) criteria is referred to by the Home Office guidance about misconduct proceedings, see later, as the ‘harm test’ – that is, consideration of the harm which disclosure of the information might cause. The chair can hold a ‘pre-hearing’ in private to take case management decisions, including initial decisions on whether the misconduct hearing will be in private and whether there will be any reporting restrictions.
Regulation 36 says that the chair ‘may’ require the ‘appropriate authority’ (for example, the relevant police force or the area’s police and crime commissioner) to use its website to give the public advance notice of the hearing, including when and where it is taking place, the name of the officer involved, and ‘the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be’. The regulation does not say this must be done by the chair. The regulation says if required to post advance notice on its website, the authority must do this as soon as practicable after the officer is given notice of the hearing.
Home Office guidance issued in 2020 on police misconduct proceedings says in its paragraph 11.7: ‘The presumption is that misconduct hearings must be held in public (regulation 39 of the Conduct Regulations [the 2020 Regulations]) and open to the public and the media to attend. This is in keeping with a general principle that discipline proceedings should be as open, transparent and fair as possible for both the public and parties to the procedures. Restrictions on attendance should be the exception.’
The guidance says that when advance notice is given: ‘This should be done in a way that is transparent and easily accessible for the public. For example, the public should be able to navigate their way to the notice with clear signposting on the force’s website’ (para. 11.74)
The guidance says of such advance notices: ‘There may be certain circumstances where it would not be appropriate for an officer to be named. Two such examples are a firearms officer where a court has made an anonymity order, or where the officer is an undercover officer and their identity should be protected. The welfare of the officer should also be considered, particularly where there may be a severe adverse effect on the officer’s health or there are dangers or threats to the officer that might arise from being named publicly. All parties to proceedings will have the opportunity to make representations to the chair on such matters and the chair will make the final decision regarding publicly naming an officer’ (para. 11.75).
‘Similarly, where the naming of an officer or notice of the subject matter of an investigation could risk the identification of a vulnerable victim or complainant against their wishes, this should be considered by the person chairing the hearing. These matters will have been discussed at the pre-hearing but the chair should consider any representations made prior to the deadline they specify before deciding whether notice of the hearing should be published, or what the content of any notice should be’ (para. 11.76).
‘The expectation is that notice will be given where a hearing is to be held wholly or partly in public in the absence of a compelling reason for not doing so and therefore consideration should be given to representations on the issue of attendance and on the publication of the notice in the light of those discussions’ (para. 11.77).
‘Notices given to the public should also contain information relating to any conditions that the chair has decided to impose on attendance which have been determined at the point where the notice is required’ (para. 11.78).
‘Where, in exceptional circumstances, a decision is taken in advance to hold all of the hearing in private, under regulation 39 of the Conduct Regulations, then in the interests of transparency the chair may consider that it would be appropriate to ask the appropriate authority to publish a notice on its website explaining the decision’ (para. 11.79).
‘At the pre-hearing, the chair will have discussed with participants the reporting restrictions or exclusions from the hearing proposed by the appropriate authority or the officer concerned. This will not be a final determination but an initial position from which, following public notification, the chair will be able to take representations (see regulation 36(3) and (5) of the Conduct Regulations) from: a) the officer concerned, b) the appropriate authority, c) the complainant, d) any interested person, e) witnesses, f) the Director General [of the Independent Office for Police Conduct] g) representatives of the media’ (para.11.80).
The guidance continues (paras. 11.81-11.83): ‘Representations can be in relation to whether any person should be excluded from the whole or part of a hearing and whether any conditions should be imposed on attendance in order to facilitate the proper conduct of the proceedings. It is for the chair to determine the deadline by which any such representations must be made. The appropriate authority should inform any parties listed at (a)-(g) of this deadline. Following those representations, the chair will make their determination under regulation 39 of the Conduct Regulations. This decision should be based on the principle that misconduct hearings should be in public. ‘In public’ means that the public is able to attend and the media report on the proceedings. This is in keeping with long standing traditions in courts and tribunals and any restrictions should be on the basis of strict criteria.’
Regulation 36 gives ‘any representative of the media’ the right to make written representations to the chair about whether the hearing should be in public or about a proposed reporting restriction, The regulation says that these representations must be submitted within the deadline set by the chair.
Para. 11.84 of the Home Office guidance says: ‘The chair may consider imposing some restrictions based on their assessment. In assessing whether any person should be excluded from a hearing or any part of a hearing, the chair may take into account a variety of factors. These may include but are not limited to those factors listed at (a)-(k) below. a) the need for transparency of the police discipline and/or complaints system, b) the public interest* in the proceedings and public interest in transparency thereof, c) the vulnerability, physical and mental health and/or the welfare of witnesses who may be called to give evidence at the hearing, d) the involvement or naming of any children, e) where a misconduct hearing is being held as a result of a complaint, the vulnerability, physical and mental health and/or the welfare of the complainant(s), f) the physical and mental health and/or welfare of the officer(s) subject to the misconduct hearing, g) the welfare of any third party not listed above, i.e. a victim that is not a complainant or witness, h) any factors relating to sensitive police operations that may not be appropriate for public disclosure, including where there would be a risk of the identification of covert human intelligence sources, confidential informants or covert police assets, i) whether holding a hearing in public would jeopardise or interfere with any criminal proceedings, j) whether holding the hearing in public would interfere with the prevention or detection of crime or the apprehension of offenders, k) any relevant national security issues.
* The meaning of ‘public interest is specified to be: ‘the wider public interest in, for example, seeing justice done, understanding the police disciplinary system, upholding the integrity of the police etc. rather than the interest of the public in the case’.
The guidance says in paras. 11.85 – 11.87: ‘As a general principle, wherever restrictions are needed, blanket restrictions should be avoided and careful consideration should be given to which parts of the hearing can remain open. Having taken into account any of the factors listed at (a)-(k), any representations that have been made and any other factors they consider relevant, the chair should consider whether the particular circumstances of the case outweigh the public interest in holding the hearing in public. Effort should be made to ensure as much of a hearing is held in public as possible. The presumption should be of transparency where possible. A hearing should not be held privately or notice withheld for administrative reasons or because of concerns to the reputation of the force or police arising from the hearing being public.’
‘It will normally be appropriate for the chair to prohibit the taking of photographs and the use of film or sound recording equipment during the hearing, except for official use. The use of live, text-based communications [such as tweeting] for the purposes of simultaneous reporting of proceedings may be permitted if the chair is satisfied that it does not interfere with the orderly conduct of proceedings’ (para. 11.91).
The guidance says that the chair can authorise a transmission of the proceedings to another room if the people wanting to attend cannot be accommodated in the hearing room.
Para. 11.94 says the chair may also decide to impose other conditions in advance of, or during, a hearing, including ‘any restrictions on reporting that members of the public or the media must adhere to in order to be granted access to the hearing’.
‘The rationale for the imposition of any condition(s) on attendance should be explained in the notice given to the public or, where a decision is made at the hearing itself, orally by the chair’ (para 11.95).
The guidance also says the chair can hear representations [for example, about reporting restrictions] at the hearing itself (para. 11.96), but does not specify that representations can be made by the media then.
However, a journalist attending could argue that failure to consider representations from the media, if the officer’s lawyer is arguing at the misconduct meeting for it to go into private session or for a reporting restriction to be imposed, would itself breach the common law principle of open justice and the rights of the media and public under Article 10 of the European Convention on Human Rights (for general context of that law, see 15.1 and 15.5 in McNae’s).
The guidance says: ‘If the chair decides, after the hearing has begun in public, that it should go into a private session, the chair should announce that decision openly at the hearing with reasons, unless the chair considers that it would be inappropriate to do so’ (para. 11.97).
The tribunal must ensure that the misconduct hearing is recorded verbatim ‘whether by tape recording or any other recording method’ (para. 11.110)
The tribunal (‘panel’) members can sit in private to discuss matters during the hearing and to decide whether misconduct occurred (the findings), and if the findings are that it did, what should happen to the officer (the outcome), The tribunal will consider any mitigation submitted by or for the officer.
‘Where the officer concerned requests that any person at the hearing be excluded while a submission is made in mitigation on the officer’s behalf, the chair may require those persons to withdraw while the submission is made. In particular, this will be in cases involving sensitive matters of a private and personal nature or where medical matters involving the officer concerned are to be disclosed’ (para. 11.98).
‘The decision about whether to allow any person to remain or not whilst submissions are made in mitigation is a decision for the chair, having considered any representations made by the officer either in advance of the hearing or at the hearing itself. If any person has been excluded whilst mitigation is given, the chair must, subject to the need to keep them excluded for any other reason, invite them back into the hearing for the communication of the finding and the outcome of the proceedings (para. 11.97).
Para. 11.156 of the guidance says that unless the chair decides that publication of the tribunal’s ‘full determination’ is not appropriate for any of the reasons set out in regulation 43(9)(a) of the Conduct Regulations, which is ‘broadly speaking the harm test’, the chair must require the appropriate authority to publish it, which ‘must be done as soon as practicable following the officer being informed of the outcome’ and the determination must remain on its website for at least 28 calendar days.
Under the regulations there can be redactions in what the authority publishes, for example, to avoid identification of anyone given anonymity as regards the misconduct hearing.
For this Home Office guidance in full, see Useful Websites at the end of this Additional Material.
As stated earlier, regulation 39 enables the chair to ban reports of a misconduct hearing from identifying the police officer or a special constable accused of misconduct, or anyone else, such as a witness, in relation to the proceedings.
It is common for officers facing misconduct proceedings to apply for such an anonymity order.
Case study: In March 2022 a High Court judge rejected an application by former police constable Terry Cooke that he should have anonymity in the reporting of a misconduct case. In a misconduct hearing in 2021, Cooke, who had served in Hampshire police for around 20 years, was found by the tribunal to have pursued ‘inappropriate and prohibited’ relationships with vulnerable women whose details he obtained in the course of his work. The misconduct hearing was held in private after Cooke successfully applied for this, including by submitting medical evidence about the state of his mental health. The advance notice of the hearing and the tribunal’s report of its outcome did not identify him. The tribunal decided that Cooke’s misconduct had been of ‘the utmost severity’ and that there were ‘multiple aggravating factors’ in it ‘including targeting, malign intent, abuse of power, sustained behaviour over a period of time, vulnerable and multiple victims and multiple proven breaches’. As a result, he was sacked for gross misconduct. When the Basingstoke Gazette sought to retrospectively report the misconduct case, including by identifying Mr Cooke, he threatened to sue the newspaper for ‘misuse of private information’. He asserted that the chair of the tribunal had made an order giving him anonymity. When the newspaper’s parent group Newsquest asked the chair to confirm this, and to convene a hearing so that the claimed anonymity order, and the chair’s decision that the misconduct hearing be private, could be challenged, the chair refused to take either of these steps. Newsquest asked the High Court to judicially review those refusals. It transpired that no anonymity order had been made. Mr Cooke told the High Court he had made a genuine mistake in thinking it had been made, and argued that nevertheless he should have such anonymity. He submitted a report from a psychologist which said that Mr Cooke’s mental health had seriously deteriorated, and that there was a real risk that if he was identified in relation to the misconduct proceedings this would create a ‘real possibility’ that he would self-harm or kill himself. The High Court judge, Mrs Justice Ellenbogen ruled that Mr Cooke should not have anonymity, because in the circumstances of the case, the open justice principle meant he should be identified. She was critical of the psychologist’s report, saying it had been prepared five months previously, did not relate the ill-health it detailed to the possible identification of Mr Cooke in connection with the misconduct proceedings, and relied exclusively on his account of the circumstances which led to him being sacked. Also, she said, there was no evidence that he had taken up the psychologist’s suggestion that he seek ‘urgent primary care intervention’ concerning his mental health. Mrs Justice Ellenbogen said she was applying the principles summarised by the High Court in the Rai case (see in 16.11.4 McNae’s) about risk of suicide or self-harm. She said that Mr Cooke’s submission asking for anonymity ‘does not accord with the principle that derogations from open justice are exceptional, require clear justification and should be made only when strictly necessary to secure the proper administration of justice.’ She said that while it was regrettable that the chair of the tribunal did not consider himself able in law after the misconduct proceedings had ended and until the High Court proceedings commenced, to disclose to Newsquest that there was no anonymity order, he did not behave improperly or unreasonably. She agreed that Newsquest could use documents from the misconduct proceedings, including about Cooke’s targeting of vulnerable women, which had been disclosed in the High Court case, to report the misconduct proceedings retrospectively, subject to anonymity orders which were made by the chair for some people concerned. Mrs Justice Ellenbogen said that granting Newsquest’s application to use the documents was justified on open justice principles. She said the application was justified because there had been no involvement of The Independent Office for Police Conduct prior to the tribunal chair’s ruling that the misconduct hearing should be in private; ‘the stance adopted by Hampshire police in that connection’; because the tribunal’s report of the hearing outcome and the IOPC’s press release about it had not identified Mr Cooke, despite there being no anonymity order applying to him; and because of the public interest in understanding of the full context of the High Court proceedings. She ordered that Mr Cooke pay the legal costs which Newsquest incurred in respect of the High Court case. In its arguments to the High Court, Newsquest said the Cooke case was ‘an exemplar of how openness and transparency in police disciplinary procedures which underpin police accountability, can be undermined, even in the most important of cases, thereby having a deleterious impact on public trust in policing generally’. It also said that Cooke had made attempts, through his Police Federation-funded lawyers, to prevent any publicity relating to the misconduct hearing. Newsquest said the significant context of its application to be able to fully report Mr Cooke’s misconduct case included ‘the heightened concern about the trust which women, and the public generally, have in the police forces which serve their communities’. In its successful application to be able to use the documents from the misconduct case to report, it, Newsquest pointed out that key parts of Mr Cooke’s serious misconduct took place at around the same time (December 2017) as he had received a special commendation from the chief constable, who had described him as one of ten officers who were a ‘true credit to the policing family and the communities they serve’. Newsquest said that Mr Cooke’s public record had been, therefore, as a police officer who has gone ‘above and beyond’ to protect vulnerable individuals, rather than – as the misconduct case showed - one who repeatedly abused his position to pursue vulnerable women (R on the application of Newsquest Media Group Limited v The Legally Qualified Chair of the Police Misconduct Tribunal [2022] EWHC 299 (Admin)). NB: the regulations governing the Cooke case were not the 2020 regulations. They were a previous set, with some similar content.
For the Basingstoke Gazette’s coverage of the Cooke case, see Useful Websites, below.
In the High Court proceedings, The Independent Office for Police Conduct (IOPC) told Mrs Justice Ellenbogen that despite having engaged in correspondence with Hampshire police concerning Cooke’s misconduct hearing, the IOPC was not made aware of Mr Cooke’s application for it to be a private hearing and was, therefore, not invited and, therefore, unable to make any representations on the matter prior to any deadline set by the hearing’s chair, and that this was ‘contrary to natural justice and the Home Office guidance’. The IOPC said that consequently, it was unable to participate in the decision-making process to represent the wider public interest in police misconduct hearings taking place in public and assist the chair in balancing the particular concerns of Cooke against the public interest and the general presumption in favour of police misconduct cases being open to the public and the press. The IOPC said it believes that ‘there was a procedural irregularity which could have had the effect of undermining public confidence in the decisions reached by the misconduct panel.”
18.4.2 Journalists’ access to documents in disciplinary tribunal cases
A journalist covering a disciplinary tribunal may need to see case documents to report the proceedings fairly and accurately. The journalist can ask the tribunal for access to such documents – for example, witness statements which are referred to in a public hearing but ‘taken as read’ by the tribunal - whether the journalist attended that hearing or not, and can cite the Dring and Guardian News and Media judgments in support of the application. See 18.3.1, above. If the disciplinary tribunal is classed in law as a court, those judgments have direct relevance, and citing them may have an effect even if the tribunal is not a court.
18.5 Defamation issues in reporting tribunals
The proceedings of many tribunals are not as formal as those in criminal or civil court. An appellant or party might not be represented by a lawyer. A journalist publishing a non-contemporaneous report of tribunal proceedings should bear in mind that in defamation law the defence of qualified privilege covers published matter which is ‘of public interest’ and the publication of which is ‘for the public benefit’- see 22.7.1 in McNae’s. A flare-up of irrelevant, personal abuse about someone unconnected with the case may not be such matter, and so caution must be exercised about quoting this verbatim from the proceedings, though reporting in general terms fairly and accurately that the person was abusive in the hearing would be protected by the defence, because of what it tells the public of the abuser’s character.
If a journalist discovers what is said in a private session of a tribunal, they should bear in mind that a report of such matter will not be protected by privilege.
For more details about defamation law concerning reporting of tribunals, see 18.5 in McNae’s.
18.6 Automatic restrictions will apply if the tribunal is a court
If a tribunal is classed as a court, the Contempt of Court Act 1981 applies, which means that the media should not publish material which could create ‘a substantial risk of serious prejudice or impediment’ to any of the tribunal’s ‘active’ cases. Contempt law is explained generally in McNae’s ch. 19, mostly in the context of coverage of criminal cases, but some of what is said there applies to coverage of tribunal cases. Under the Act a tribunal case is ‘active’ when arrangements for the hearing are made or, if no such arrangements are previously made, from the time the hearing begins. It remains ‘active’ until ‘the proceedings are ‘disposed of or discontinued or withdrawn’.
Tribunals do not have juries so the risk of media coverage breaching the 1981 Act by what is published is much lower than it would otherwise be. But it is possible that, if the tribunal is classed as a court, matter published about one of its ‘active’ cases could be ruled to have created ‘a substantial risk of serious prejudice or impediment’ in respect of lay witnesses or a tribunal member who is not a judge or lawyer or doctor.
In the House of Lords judgment in Pickering v Liverpool Daily Post [1991] 1 All ER 622, Lord Bridge of Harwich - referring to the possibility of media coverage prejudicing a mental health review tribunal hearing - said he would not expect the tribunal members or medical witnesses to be consciously influenced by the media. But he added that editors and publishers ‘will be well advised to exercise great care not to overstep the mark in this regard’.
18.6.1 Bans on reporting the private proceedings of some types of tribunal cases
If a tribunal which is a court holds a hearing in private, anyone who publishes what was said in that hearing, or what was said in any document prepared for it, could be punished for contempt of court under section 12 of the Administration of Justice Act 1960 if the case concerns mental health, national security, the welfare or upbringing of children, or secret processes or is any other type of case in which the tribunal expressly banned publication of information. That law is explained in 12.6 in McNae’s and applies, for example, as regards hearings held in private by the First-tier Tribunal (Mental Health), see earlier.
18.6.2 Reporting restrictions and other restrictions
Use of any camera in a hearing of a tribunal classed as a court, or publication of a photo or footage taken there, in that building or its precincts could be punished as a breach of the Criminal Justice Act 1925 if the image is of a judge, a party or a witness, or as a contempt in common law, and unauthorised use there of a device which records sound or even merely taking one into the hearing to use it could be punished as a breach of section 9 of the Contempt of Court Act 1981. Also, if the tribunal is conducting a remote (‘virtual’) or ‘hybrid’ hearing, in which people are taking part remotely, it is illegal to ‘record’ any sound of image from the tribunal’s transmission of its proceedings, or of anyone taking part in or observing the hearing remotely, or to publish such a sound or image. For context, see 12.1 and 18.6.3 in McNae’s. A journalist wanting to use an audio recorder merely as an ‘aide memoire’ for note-taking could ask any type of tribunal for permission to do this, and could point out that the Chief Coroner’s guidance is that coroners should give such permission, if appropriate, for journalists covering inquests – see 17.10 in McNae’s. But if the tribunal is a court, it would breach section 9 of the 1981 Act to play, to any section of the public, the audio of any recording of its proceedings.
If the tribunal is classed as a court, contact by a journalist with a witness due to give evidence could be punished as a contempt in common law if it was ruled to amount to improper influence on what his or her evidence might be or was, or to have deterred the witness from giving evidence at all. See 19.3 in McNae’s, including about other common law contempts which could be committed by a journalist. Also, to publish the content of a document disclosed from one party to another in a tribunal case, but which has not been aired in the tribunal’s public proceedings nor released with its permission to aid media coverage, could be ruled to be a contempt if it is classed as a court – see 12.7 in McNae’s.
18.7 Employment tribunals
Employment tribunals adjudicate on complaints against employers—for example, of unfair dismissal, or of ‘constructive dismissal’ in which a person claims that they had to quit the job because of improper conduct by another/others in the workplace. They also adjudicate on complaints that employers discriminated on grounds of gender, race or age.
Employment tribunals are based in regional centres. For some types of case an employment tribunal has three members: a lawyer—appointed to be an ‘employment judge’—who is chair and two lay members, one with experience as an employer and one with a background as an employee (for example, a trade unionist). Unfair dismissal claims are now among those which can be decided by an employment judge sitting alone.
Guidance issued for employment tribunal staff by Her Majesty’s Courts and Tribunals Service (HMCTS) says they can verbally (including by phone – see the general guidance) tell journalists the names of the parties in a case, the names of their solicitors, the judge’s full name, the case number, the nature of the claim, whether there is a reporting restriction, and the case’s outcome, if such details are already a matter of public record.
Lists of hearings due to take place can also be obtained a week in advance through the CourtServe website.
Journalists wanting a copy of a judgment can, if a regional tribunal office cannot or refuses to supply it, get it from the public register of judgments which keeps them for at least six years. There is an online archive of the decisions (including judgments) made by employment tribunals since February 2017. The older judgments on the register are kept at Bury St Edmunds County Court. EAT judgments can be read online.
See Useful Websites, at the end of this Additional Material, for the HMCTS guidance for staff, the Courtserve site, and the online archive.
18.7.1 Rules and procedure of employment tribunals
Employment tribunal hearings in England, Wales and Scotland are governed by rules set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) and by the Employment Tribunals Act 1996. See Useful Websites, at the end of this Additional Material, for these rules.
The rules cited in this Additional Material are in Schedule 1 of the Regulations. Northern Ireland has its own system of employment tribunals (they are ‘industrial tribunals’) – see the online ch. 36.
Hearings in employment tribunal cases tend to be informal. A case may have more than one ‘preliminary hearing’ for rulings by an employment judge on whether the case can proceed or on case management. If it proceeds, there is a further hearing, referred to in the rules as the ‘final’ hearing. This may last several days. In it the tribunal first decides on liability—whether the complaint against the employer is justified. This decision may be announced in summary on the same day it is made. But it may not be revealed until sent out later in a written judgment. If the employer is held liable, subsequently—often after an adjournment of some weeks—there is another ‘final hearing’ in which the tribunal decides the remedy—for example, requiring the employer to pay compensation to someone sacked unfairly. If the tribunal finds employment law has been breached, it can also impose a financial penalty on the employer.
Appeals on points of law from employment tribunal decisions can be made to the Employment Appeal Tribunal (EAT). It has its own rules. See Useful Websites, below.
18.7.2 Admission to employment tribunal cases
Rule 56 in the 2013 Regulations states that a preliminary hearing shall be conducted in public if it involves a ruling on a ‘preliminary issue’, or is considering if all or part of a claim or response should be struck out—for example, because it has no reasonable prospect of success. This means that a preliminary hearing can be held in private if dealing with case management or exploring if there can be a settlement. Rule 59 says final hearings shall be in public. But rules 56 and 59 are subject to other rules which empower a tribunal to sit in private.
Rule 50 says that a tribunal can sit in private if it considers this necessary ‘in the interests of justice’, or in circumstances set out in section 10A of the Employment Tribunals Act 1996, or to protect a person’s rights under the European Convention on Human Rights—for example, the Article 8 right to privacy explained in ch. 27 of McNae’s.
Section 10A of the 1996 Act says an employment tribunal can sit in private:
- when a witness’s evidence is likely to contain:
– information which they cannot disclose without breaking statutory law or without breaking an obligation of confidence; or
– information the disclosure of which would cause substantial injury to any undertaking of their, or their employer’s, for reasons other than any effect on collective negotiations over pay, conditions, trade union membership or representation.
Remember your rights! The rule 50 provision—that an employment tribunal can exclude the public (and therefore journalists too) from a hearing in order to protect a person’s Convention rights—reflects case law developments in recent years. This rule could lead to more instances of people or companies arguing that parts of cases should be heard in private. Journalists wishing to argue against an order to exclude them should remember that, according to rule 50, a tribunal deciding whether to sit in private ‘shall give full weight to the principle of open justice’ and to the right to freedom of expression (in the Convention’s Article 10). McNae’s ch. 15 covers open justice, including in 15.1.1 which categorises the purposes (societal benefits) of open justice, in a list drawing on case law. As relevant, some content in that list can be used to remind a tribunal of such benefits, to counter a proposal for a hearing to be held in private.
Rule 50 adds that any person with a legitimate interest (which would include a journalist wanting to cover the case) who has not had a reasonable opportunity to make representations against an exclusion order ‘may apply to the tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing’.
Case study: The High Court has ruled that an employment tribunal is not empowered to sit in private merely because there is to be evidence of a sensitive or salacious nature when sexual misconduct is alleged (R v Southampton Industrial Tribunal, ex p INS News Group Ltd and Express Newspapers plc [1995] IRLR 247).
A Minister of the Crown, under the 1996 Act’s section 10 and rule 94 of the 2013 Regulations can direct an employment tribunal to hear a case in private in the interests of national security—if the tribunal has not already decided to do so.
18.7.2.2 Hearings conducted by use of electronic communication
Rule 46 permits all or part of a tribunal hearing to be conducted ‘by use of electronic communication’ (that is, a ‘virtual’ or ‘hybrid’ hearing), including by telephone, provided that the tribunal considers that it would be just and equitable to do so and provided that the parties and members of the public attending the hearing are able to hear what the tribunal hears and, so far as practicable, see any witness as seen by the tribunal. For context, see too 15.4.4 and 18.7.1.1 in McNae’s, including about authorised transmissions of hearings.
18.7.3 Journalists’ access case material in employment tribunals
In an employment tribunal, as in a civil court, usually a witness’s written statement is their evidence-in-chief (a term defined in the Glossary in McNae’s). The witness may give oral evidence too, but a journalist will probably need to see the written statement to understand the case.
Rule 44 says that any witness statement which stands as evidence-in-chief shall be available for inspection during the hearing by members of the public (and therefore journalists) attending it unless the tribunal decides that all or any part of the statement is not to be admitted as evidence. It adds: ‘Where a hearing is conducted by electronic communication under rule 46, inspection of the witness statement may be otherwise than during the course of a hearing’.
A journalist’s right to see case material referred to in the public proceedings of employment tribunals extends further than the inspection right in rule 44. For context, see 18.3.1 above about the Dring and Guardian News and Media judgments.
The President of Employment Tribunals, in guidance on ‘general case management’, says
parties should bring to a hearing a copy of each witness statement and a copy of the whole ‘bundle’ of documents in the case for these to be shown to the public and media, where appropriate (Guidance Note 2 at para 15, and Guidance Note 3 at para. 19). HMCTS guidance to employment tribunal staff says: ‘At the hearing, the public and the media are entitled to be shown a copy of the hearing bundle and any witness statement or other documents referred to in evidence, unless the tribunal orders otherwise.’ See Useful Websites, at the end of this Additional Material, for these sets of guidance.
If necessary, a journalist can remind a tribunal that in the EAT judgment Guardian News and Media v Dmitri Rozanov and EFG Private Bank Ltd [2022] EAT 12, the judge made clear that case material can be provided digitally to journalists – see 18.7.3.1, below. Therefore, there may be no need for a journalist covering a hearing remotely to visit the tribunal’s or a party’s premises to see a document. Also, as shown in 18.7.3.1, that judgment made clear that it is possible for a journalist to successfully apply for copies of case material, including witness statements, after the relevant tribunal case has concluded.
If a journalist needs to argue for the right to see case material referred to in a public hearing of an employment tribunal, to help ensure fair and accurate reporting of the case, or of a related matter of public interest, whether the journalist attended that hearing or not, she or he should cite this EAT judgment, and the Dring and Guardian News and Media judgments.
The tribunal has specific power under rules 50 (for example, on privacy grounds) or 94 (national security grounds) to refuse to allow inspection of a witness statement.
18.7.3.1 EAT judgment about journalistic access to case materials
In 2022 His Honour Judge James Tayler ruled in the Employment Appeal Tribunal that The Guardian newspaper could have copies of case material from an employment tribunal case which had ended several weeks before the newspaper requested the copies. This was an important ruling which journalists applying for access to case material from employment tribunals and other types of court can cite, as appropriate, whenever they apply for access, including because Judge Tayler dismissed suggestions that supplying the copies would be costly for the relevant party. The account given here is mainly from Judge Tayler’s judgment.
The Guardian wanted case material from the employment tribunal case in which Dimitri Rozanov, a former employee of EFG Private Bank Ltd (EFG), claimed the bank had unfairly dismissed him after he raised legitimate concerns (‘protected disclosures’) in which he alleged internally to it that other staff had failed to comply with regulatory requirements, including in respect of a number of specific transactions (in essence, his claim to the tribunal was that he was sacked because he was a ‘whistleblower’).
In its judgment, sent out in October 2018, the tribunal accepted that most of the disclosures Mr Rozanov made were ‘protected’ but rejected his claim that they were the reason for his dismissal, so his claim failed (Rozanov v EFG, case number 2208031/2017). Seven weeks after the judgment was sent out, Guardian journalist David Pegg wrote to the tribunal asking for copies of the ET1 claim form submitted by Mr Rozanov to initiate the case, EFG’s response to it (the ET3 form) and other related or clarifying ‘statements of case’ documents; skeleton arguments and witness statements ‘relied upon in open court’; and 54 documents referred to in the judgment. His letter explained that he wanted this material because he considered the judgment raised matters of public interest, including:
- ‘evidence that EFG Private Bank Ltd repeatedly and deliberately colluded with high-risk clients and politically-exposed persons in breach of UK anti-money laundering regulations’
- ‘evidence that an employee of EFG Private Bank Ltd attempted to facilitate a transaction of $100m sourced from associates of Ramzan Kadyrov, a Chechen warlord who has been credibly accused of serious human rights atrocities’;
- ‘evidence that senior management at EFG Private Bank, including its chief executive, failed to take action when evidence emerged that the same employee had failed to abide by anti-money laundering regulations.’
Mr Pegg’s letter also stated: ‘I require these documents for journalistic reasons, including (1) to better understand the matters referred to in the judgment; (2) to ensure that any reporting of this matter fairly and accurately reflects all the relevant matters in the hearing; (3) for the journalistic purpose of stimulating informed debate about matters of public interest; (4) to obtain further information about this matter that may assist in further enquiries. I believe these give rise to a legitimate interest on my part to have access to these documents.’
Mr Pegg’s employer, Guardian News and Media (GNM) subsequently expanded the request to include copies of the full ‘bundle’ of documents in the case, saying that the documents sought ‘would greatly assist in facilitating a better understanding of the case and the judgment itself’ and that the ‘wider view of evidence referred to in the judgment and in open court would allow fair and accurate reporting of the matter.’ GNM added: ‘The underlying subject matter discussed in the judgment is of public interest including questions of compliance with Financial Conduct Authority and Prudential Regulatory Authority obligations as well as the bank’s handling of the dismissal [of Mr Rozanov]. Consequently, the material is also sought to obtain further information to assist in enquiries.’
Mr Rozanov did not object to GNM having access to the documents, but EFG did. At a hearing in April 2019, the tribunal considered a submission from EFG that the tribunal did not have the power to order that GNM be given copies of the material because it had completed its task in the case and so had no remaining jurisdiction to make such order. EFG also argued that that fair reporting of employment tribunal proceedings can only be undertaken by a journalist who has listened to the oral evidence (or at least has a transcript of the oral evidence) and that employment tribunal rules provide ‘a full and appropriate scheme’ for access to documents during, but not after, a hearing. The tribunal decided to postpone ruling on the GNM request until the Supreme Court made its decision in the Dring case (see 15.9 in McNae’s about Dring). After the Dring judgment was delivered, EFG accepted that an employment tribunal did have power to order non-party access to case material after the relevant case had ended, but continued its objections on other grounds.
In January 2020 the employment tribunal ruled that GNM could only have copies of the ET1 claim form and EFG’s response to it (the ET3 form). Giving its reason for refusing access to the other documents, the tribunal quoted what the Supreme Court Justice, Baroness Hale (who at that time was Lady Hale), said in Dring about the ‘two principal purposes’ of the open justice principle. The tribunal said: ‘In short, they are to hold judges to account and subject them to public scrutiny, and to enable the public to understand how the justice system works and why decisions are taken. The Guardian's purpose does not advance these purposes because it does not aim to examine the claimant's [Mr Rozanov’s] treatment (which was the subject of his claim) or the tribunal's investigation of that issue. We bear in mind that, had Guardian reporters attended the hearing, they could have made any use of the information revealed as they wished. However, they did not attend, and now make an application based on the principle of open justice.’
The tribunal also said: ‘Having regard to the three matters of public interest identified in Mr Pegg's letter, we find that the reason for requesting access is to explore whether the Bank colluded with high-risk clients in breach of the UK's money-laundering regulations. Although GNM's formal submissions of 12 March 2019 add that the public interest included questions of compliance with regulatory authorities as well as the Bank's handling of the dismissal we do not accept the latter was the purpose. It was not referred to in Mr Pegg's letter and is referred to only briefly as an afterthought in the legal submission. The Guardian has therefore not satisfied us that its purpose relates to the treatment of the claimant.’
It added: ‘We do not go as far as saying the principle of open justice is not engaged at all. Dring contemplates there could be further purposes for the open justice principle, although there is no indication as to what these might be. Furthermore, it is possible that GNM might pursue avenues of exploration which are tangentially relevant to the claimant's treatment and his case. However, this is not a situation where a newspaper wishes to report on the case itself or on issues of treatment of whistleblowers for example. When put into the equation with conflicting rights and interests, the argument that granting access will advance the open justice principle is weaker than it might otherwise be when a request is made by the media.’
It pointed out that, other than the ET1 and ET3, it did not hold ‘clean’ copies of the documents, and therefore were GNM to be granted access to the rest of the ‘bundle’, it would have to order EFG to supply these. The tribunal said: ‘The Guardian did not apply for disclosure until roughly six weeks after the judgment was sent out and four months after the last day of the hearing…Had GNM attended the original hearing and made its requests then, it would have been far simpler. Facilities are available for journalists to attend and see all the documents referred to. We appreciate that GNM may not have resources to attend every hearing, but we are in a more difficult situation now where an order would have to be made against the respondent. The respondent [EFG] would have to retrieve the papers, identify clean copies, identify the categories of document ordered and supply them to GNM. It would have to calculate the copying costs, which GNM has undertaken to cover. It would be entitled to request the costs of legal supervision of the exercise. The tribunal could order this, but in turn the amount might become the subject of dispute…. We cannot now say which documents we did read other than those explicitly referred to us by the parties during evidence or set out by us in the judgment. If we were to order disclosure of only those documents referred to in the judgment, there is then the additional task, falling on either the respondent and/or the tribunal of identifying the page number of the documents referred to and highlit by GNM. When weighed against the principle of open justice, we believe this is disproportionate. The case was heard in open court. There was a very detailed judgment. Other newspapers were able to make reports at the time. Media and other third parties were free to attend, listen and take copies. It is now more than six months after the hearing concluded and three months since the judgment was sent out. We have mentioned why we do not believe the principle of open justice is powerfully engaged by the purpose of GNM's application. But even if we are completely wrong on that and it is a strong factor, we still think an order against the respondent [an order for EFG to supply to GNM the requested case material] now would be disproportionate for the reasons given above.’
GNM appealed this decision to the Employment Appeal Tribunal (and amended its request so that it was for witness statements, skeleton arguments and documents referred to in the tribunal’s judgment in the Rozanov case, not the whole bundle). The EAT judge, James Tayler ruled that the request should be granted, and so required EFG to give copies of these documents to GNM (Guardian News and Media v Dmitri Rozanov and EFG Private Bank Ltd [2022] EAT 12).
Judge Tayler said in this EAT judgment that in refusing GNM’s request, the employment tribunal ‘adopted far too narrow an approach to the open justice principle’. He said there were ‘authorities’ (examples in case law) which ‘clearly go wider’ than the two principal purposes of the open justice principle identified by Baroness Hale in Dring.
Judge Tayler referred to what Lord Scarman said in Home Office v Harman ([1983] 1 AC 280, 316), that ‘trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’
Judge Tayler said: ‘Material should be made available so that the [employment tribunal] judgment [in Rozanov] can be properly understood. It may result in material being released that is of wider general public interest than the matters in issue in the particular hearing, as was stated by Lord Scarman in Home Office v Harman.’
Judge Tayler also cited as an ‘authority’ the High Court judgment in Goodley v The Hut Group and Nobahar-Cookson and Barclays Private Bank and Trust Ltd ([2021] EWHC 1193 (Comm)), which said that the open justice principle will ‘typically be advanced by disclosure to a journalist in pursuit of a serious journalistic story of a document referred to in open court which may be germane to that story’ (see 15.19.3 in McNae’s about the Goodley case).
Judge Tayler said of the GNM request for the Rozanov documents: ‘Far from this being a case in which the principal of open justice was not strongly engaged, the converse was the case. GNM set out proper journalistic reasons for seeking provision of the documentation. The public interest in the underlying subject matter of the proceedings was something that should also have weighed in favour of granting the application.’
Judge Tayler did not regard as relevant the fact that The Guardian did not have a reporter at the Rozanov case: He said: ‘It would be unrealistic not to take judicial notice of the fact that the resources of the media are limited, and increasingly thinly spread, with the consequence that just as in the case of members of the public there are “purely practical reasons” why the press cannot attend every hearing, or attend every day of a lengthy hearing. The press have an important role in reporting the judgments of courts and tribunals. It is in the public interest that they have the necessary information to be able to do so fairly and accurately.’
He said that the employment tribunal rule scheme permitted inspection of witness statements and documents at a tribunal hearing. ‘This begs the question of whether there is an implicit limitation allowing inspection during the hearing, but not thereafter. To cut to the chase – there is not.’ He said this is clear from the Guardian News and Media and Dring judgments.
‘While I accept that the tribunal was entitled to note that the application [for the documents] could have been dealt with more easily at trial, I do not see how any practical difficulty resulting from the delay in the application could have been found by a reasonable employment tribunal to have been sufficient to countervail the principle of open justice.’
Judge Tayler also dismissed the argument that it would be disproportionate for practical reasons to order EFG to supply copies of the documents (which, he noted, had in some instances had been redacted in the tribunal’s proceedings to prevent identification of people given anonymity in the Rozanov case, to protect their privacy rights under Article 8 of the European Convention on Human Rights).
He said: ‘It is implausible that the respondent [EFG], having known since six weeks after the [Rozanov] judgment was sent to the parties, that the documentation was being sought by GNM, cannot easily obtain clean electronic copies of the skeletons and witness statements from their computer records. In this case there was no evidence to suggest that there was any real practical difficulty in providing copies of skeleton arguments and witness statements and no particularised evidence of any real difficulty or significant cost in providing copies of the redacted documents referred to in the judgment. The concerns that the employment tribunal raised of its own motion harked back to days where boxes of hardcopy documents would have to be obtained and then the relevant documents would need to be extracted and individually photocopied.’
He said that the tribunal’s judgment refusing GNM’s application, by suggesting there would be practical problems in supplying the documents, ‘conjures up a picture of a solicitor’s office of the 70s’. He pointed out: ‘In Dring Baroness Hale noted that the increasing digitisation of court materials would make provision of documentation easier. That process has accelerated during the coronavirus pandemic.”
Judge Tayler went on: ‘There was no evidence before the tribunal to suggest that there would be significant cost involved in providing the documents. In Dring it is stated that those seeking provision of documents may be required to pay reasonable costs. I consider that the costs referred to are those of copying documents. Often there will be no such costs in the digital age. I do not consider that the authorities support the suggestion of the employment tribunal that EFG’s solicitors could charge for the cost of legal supervision when identifying and providing the documents. Parties are able to resolve their disputes in the employment tribunal free of charge. As a component of the costs of bringing or defending a claim the parties provide documentation to the tribunal. Subject to reasonable copying costs, where appropriate in this digital age, the very limited cost involved in complying with an application of the type in this appeal should be seen as part of the costs of preparation for the hearing, as is the provision of spare witness statements for the public at the hearing and ensuring that an unmarked copy of the bundle is available for those attending. The fact that spare witness statements and a clean copy of the bundle were required to be available for the public at the hearing should mean that those copies would be available after the hearing without any additional expense… I consider that the decision of the employment tribunal to give more weight to the possible minor inconvenience in providing the documents than to the principal of open justice means that the determination reached by the employment tribunal was wrong. If necessary I would say plainly wrong, and go so far as to find it was perverse in the sense of it being a decision that no reasonable tribunal could have reached in the circumstances of this case on a proper direction of law.’
Judge Tayler added: ‘It is important that in drafting skeleton arguments and witness statements parties remember that such documents can generally be inspected at hearings, and may be provided thereafter. Parties should also bear in mind that the bundle of documents will generally be open for inspection at or, in appropriate circumstances, after a hearing.’
He noted that GNM’s amendment to its request, so that it was no longer asking for the whole case ‘bundle’, had simplified matters: ‘The practical problems in dealing with such applications after a hearing are potentially much greater where documentation is sought from the bundle which may include material that raises Article 8 [privacy] issues or otherwise infringes confidentiality rights of the parties, or others. In such cases it may be necessary for the matter to be considered at a hearing.’
18.7.4 Reporting and disclosure restrictions under the rules
Rule 50 of the 2013 Regulations empowers employment tribunals, on their own initiative or at the request of a party, to make an order ‘with a view to preventing or restricting the public disclosure of any aspect of those proceedings’ if the tribunal considers this necessary ‘in the interests of justice’ or in order to protect the Convention rights—including the privacy—of any person, or in the circumstances described in section 10A of the 1996 Act (which are set out in 18.7.2, above).
Such an order can ban indefinitely the disclosure of parts of the evidence and/or the identities of ‘specified parties, witnesses or other persons’ in reports of the proceedings, or in any documents ‘forming part of the public record’ of the case, including its listing and judgment.
Such an order can, then, permanently prevent a media report of the case from identifying the complainant and/or respondent—for example, the employer. The order could make it illegal to publish any identifying detail—not just a person’s name— which would mean care must be taken by journalists to avoid ‘jigsaw identification’ (a term explained in 10.8 in McNae’s).
This power in rule 50 to protect people’s Convention rights may be implemented, as regards one part of that rule, through older powers to restrict reporting, explained below in 18.7.4.1, which are set out in the 1996 Act’s section 11, relating to cases in which sexual misconduct is alleged, and in the Act’s section 12, relating to cases in which discrimination on grounds of disability is alleged. These older powers enable employment tribunals to ban reports of these types of case from identifying people as being involved in them. But, as explained below, such anonymity when based on these section 11 and section 12 powers is only temporary. Anyone arguing in such cases to be granted anonymity in reports could ask for it to be bestowed by another part of rule 50, in respect of Convention rights, which would mean that the anonymity provided may be of indefinite duration, not temporary. But the media can argue that principles laid down in judgments about the section 11 and 12 reporting restrictions should apply too when a tribunal decides if a reporting restriction made possible by the other part of rule 50 is justified in that particular case.
18.7.4.1 Anonymity in sexual misconduct and disability cases
Section 11 of the 1996 Act and rule 50 give employment tribunals discretionary power to make temporary anonymity orders, known as ‘restricted reporting orders’, in cases involving allegations of sexual misconduct—for example, that a woman was forced to leave her job because her boss sexually harassed her. Sexual misconduct is defined as a sexual offence or sexual harassment or other adverse conduct (of whatever nature) related to sex, or to the sexual orientation of the person at whom the conduct is directed.
In a restricted reporting order, an employment tribunal can ban the inclusion in reports of any matter likely to lead members of the public to identify:
- the person making the allegation of sexual misconduct; and/or
- anyone ‘affected’ by it—for example, the person(s) accused of such misconduct or any witness due to give evidence in such a case.
The tribunal can decide in each such case who should have such anonymity, if anyone. It may, for example, decide not to grant anonymity for the accuser, but grant it for the person accused of the misconduct, to safeguard his/her reputation until the tribunal’s judgment is made on whether the accusation is proved. Such an order cannot specifically bestow such anonymity on an employer which is a company or institution, so its corporate name can be published if this does not identify a person given anonymity by the order (Leicester University v A [1999] IRLR 352). But in a case where the employing organisation is small—for example, a small firm—it may be that to preserve anonymity for the person the firm itself cannot be identified in reports of the case while the order remains in force, because mere reference to the person’s gender or age or job description, or to some event within the firm, could identify him/her to people who know he/she works there.
Case study: In 1997 the Court of Appeal said it was important that tribunals should recognise that their power to make these orders in cases of sexual misconduct was not to be exercised automatically and that the public interest in the media’s ability to communicate information should be considered (Kearney v Smith New Court Securities [1997] EWCA Civ 1211).
Section 12 of the 1996 Act and rule 50 enable employment tribunals to make restricted reporting orders when considering claims that an employer unlawfully discriminated on disability grounds, if evidence ‘of a personal nature’ is likely to be heard and is likely to cause significant embarrassment if published.
Rule 50 says a restricted reporting order made under sections 11 or 12 of the Act shall specify the person whose identity is protected and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification, and that the order should also specify the duration of the restriction. The rule adds that a notice that such an order has been made should be displayed on the notice board of the tribunal with any list of cases taking place and on the door of the room in which the case affected by the order is being heard.
Remember!
The automatic reporting restrictions in the Sexual Offences (Amendment) Act 1992 mean that anyone in employment tribunal proceedings who states that they are, or who is alleged to be, a victim of a sexual offence—for example, rape or sexual assault—must not be identified in their lifetime in reports of the case, unless they have given valid written consent for this. This law is explained in 11.1-11.2 and 11.5 in McNae’s, and related ethical considerations are explained in 11.7. This anonymity in the 1992 Act applies irrespective of whether a restricted reporting order under the Employment Tribunals Act 1996 has been imposed or expired.
Case study: In articles published in 2019, The Times expressed frustration that an anonymity order made under rule 50 and section 11 of the 1996 Act prevented it from identifying a ‘multi-millionaire businessman’ in reports of a case. The order was made by Judge Wade at the London (Central) employment tribunal. In the case, two women accused the businessman of sexual misconduct in the form of sexual harassment and sexual offences which they said he inflicted on them when they were employees. He denied any such misconduct. They could not be identified either, because as alleged victims of sexual offences they have lifetime anonymity under the Sexual Offences (Amendment) Act 1992 as regards reports of the case. The man’s lawyers had successfully applied for him to be given anonymity by the tribunal as regards such reports. They said his rights under Article 8 of the Convention, protecting his private and family life, meant that his honour and reputation should be safeguarded from the unproven allegations. Judge Wade refused an application from the two women that the man should not have this anonymity, ruling that it should last until any ‘remedy’ decision in the case, if that decision was needed. The women and The Times appealed to Employment Appeal Tribunal (EAT) against that granting of anonymity to the man. At the EAT, Mr Justice Soole ruled that Judge Wade had been wrong to decide that one reason for the man – ‘a well-known public figure’ - to have such anonymity was that it would enable the tribunal case to proceed ‘without fear of misreporting’ by the media. Mr Justice Soole said there had been no evidence put forward to justify such ‘fear’. But he also said, referring to the appellants’ arguments against the man’s anonymity: ‘I do not agree that a tribunal is required to proceed on the basis that distress and damage to reputation from the report of unproven allegations of sexual offences have to be ignored; nor that the public must be taken to understand the difference between such allegations and their proof; nor that if the allegations are false the judgment will necessarily provide a sufficient vindication.’ Nevertheless, he ruled that Judge Wade had been wrong in interpreting the law on how long section 11 anonymity could remain in place, and ruled that the challenge to the man’s anonymity should be considered again, by a different tribunal judge. However, the case ended because it was settled, with the man’s anonymity continuing, before the date set for the tribunal’s main hearing which would have decided whether the women’s allegations were proved. In the settlement they accepted ‘large financial settlements’ from him in ‘non-disclosure agreements’, a condition of which was that they did not repeat the allegations, The Times reported. It said it believed that the agreements did not stop the women reporting the man to the police, but understood they had not done that (The Times online, 5 and 8 July 2019; (A and another (Appellants) v X and others (respondents) UKEAT/0113/18/JOJ).
The Times’ articles indicated that part of its concern was that Mr Justice Soole in effect said, as set out above, that there could be validity in argument made by the businessman’s lawyers that he needed anonymity as the case progressed because members of the public might not sufficiently understand that the allegations against him were not proved. That the public can distinguish between unproved and proved allegations can be a point made by media organisations when arguing against reporting restrictions, so they are concerned whenever a senior judge states, as some in effect have, that even when a case is reported fairly and accurately, the public may not be able to make this distinction. For what another EAT judge said in other cases about the risk of such misunderstanding by the public, see the Roden and Fallows case studies in 18.7.6, below.
18.7.4.2 Revocation or lapse of section 11 and 12 anonymity
The 1996 Act says that employment tribunal which has made a restricted reporting order based on sections 11 or 12:
- can revoke (that is, cancel) the order at any stage – for example, while the case is ongoing, or when it makes a verbal announcement of its decision on liability – to permit media reports to immediately identify the person formerly covered by the order;
- but, anyway, if not revoked, the order only has effect ‘until the promulgation of the decision of the tribunal’, according to the Act. The EAT has ruled that this means promulgation of the liability decision (A and another (Appellants) v X and others (respondents) cited earlier). Promulgation is the sending of the decision to the parties.
18.7.4.3 Penalty for breach of anonymity
Publishing material which breaches a restricted reporting order based on the Act’s section 11 or 12 is a summary offence punishable by a fine for which there is no limit specified in statute. Any proprietor, editor or publisher held responsible will be liable to pay it. It is a defence for the person or company prosecuted to show that he/she/it was not aware, and neither suspected nor had reason to suspect, that what was published breached the order. Breach of anonymity bestowed by other provision in rule 50 could be deemed a contempt of court, for which the punishment is a fine for which there no upper limit in law, and/or a jail term of up to two years.
18.7.5 National security reporting restrictions
Rule 94 of the 2013 Regulations, reflecting section 10 of the 1996 Act, says a Minister of the Crown can order an employment tribunal to conceal the identity of a witness in a case concerning national security issues, and order it to keep secret all or part of the reasons for its decision in such a case, or the tribunal can, on its own initiative, take either of these courses of action. When the tribunal has taken such steps, it is an offence to publish anything likely to lead to the identification of the witness or to publish any part of a decision the tribunal intended to keep secret. Again, there is no limit on the fine which can be imposed for this offence.
18.7.6 Challenging reporting restrictions
A journalist covering an employment tribunal case may wish to challenge the imposition or continuation or scope of an anonymity order made under rule 50 as regards Convention rights, whether made under the 1996 Act’s sections 11 or 12, or another part of the rule. Rule 50(4) gives anyone ‘with a legitimate interest’ the right to make a challenge by written or verbal representations, just as it does in the case of an order that a hearing should be in private—see earlier. Again, rule 50(4) requires the tribunal considering imposing a restriction, or deciding on a challenge to it, to give full weight to the open justice principle and Article 10 rights.
Case study: In 2015 the BBC successfully challenged an anonymity order granted under rule 50 by an employment tribunal judge to a man who had allegedly committed serious sexual assaults. D Roden was claiming he was unfairly and wrongfully dismissed by the BBC from his contract job as a development producer. By the time this contract ended in 2013, the BBC had been told that serious allegations of a sexual nature had been made against him in Glasgow. Police later told the BBC they had information suggesting he posed a risk to young men with whom he came into contact during his BBC work. During the tribunal proceedings, it emerged he had not told the BBC that he had been dismissed for gross misconduct from a previous job—with a theatre attached to a college—following distribution of a photo that showed him simulating oral sex with a student in fancy dress. Employment judge Andrew Glennie ruled that Mr Roden should have permanent anonymity in respect of the proceedings because the allegations of sexual assaults were not directly an issue in them and so he would not have any opportunity of gaining a finding which disproved the allegations. In the Employment Appeal Tribunal, Mrs Justice Simler heard the BBC’s appeal against the anonymity order, which she revoked. She said that the principle of open justice was of paramount importance, and that Judge Glennie was wrong to think that it and the strong public interest in full publication were outweighed by the risk of the public not understanding that the sexual assault allegations against Mr Roden were unproven. She said there was no evidence to support the claim that if a report of the case were to identify Mr Roden, this could have ‘devasting consequences’ for him. She added that he had chosen to bring a claim against the BBC in a public tribunal while knowing he had not been honest about the circumstances of his dismissal from a previous job, and the tribunal had dismissed most of his claim. ‘The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment’, Mrs Justice Simler said (BBC v D Roden, UKEAT/0385/14/DA).
Case study: In 2013 the Associated Newspapers group successfully argued at an employment tribunal that anonymity orders should cease to apply. The tribunal had rejected a man’s claims of constructive dismissal, unfair dismissal and sexual harassment. The claimant had been a managing director. His allegations included that he was obliged by his boss, the group’s chief executive, to take part in sex parties against his will. The tribunal, having ruled the claims were ‘totally without merit’, then ruled that the claimant did not deserve to retain anonymity because any damage to his reputation was because of ‘his own actions’. It also ruled that the chief executive should not retain anonymity either, having found that there were ‘sexual encounters’ from 2001 to 2009 which involved both men having sex with women other than their wives and partners. The tribunal said that the chief executive was responsible for a company ethos which allowed the managing director to rule over employees ‘by fear’, and that removal of the chief executive’s anonymity in reports of the case would let employees know why this was (Media Lawyer, 20 August 2013).
Case study: An employment tribunal can take account of previous publicity when refusing to make a restricted reporting order. In 2000 a tribunal refused to make an order which would have granted temporary anonymity to a businessman accused of sexual harassment. Both parties wanted the order made. But the Daily Record successfully argued that both parties had previously willingly given information about the case to the media (Scottish Daily Record and Sunday Mail Ltd v Margaret McAvoy and others, EAT/1271/01).
18.7.6.1 An anonymity order can be lifted after a settlement
If an anonymity order is made under the 1996 Act’s section 11 or 12, or under another part of rule 50 because of Convention rights, but a settlement is reached in the employment tribunal case, and so it does not proceed to any judgment, the media can apply to have the order revoked, if it wishes to identify the person in reporting of the case, even though the settlement means there will be no, or no further public hearing, of the case’s evidence.
Case study: In 2016 Mrs Justice Simler at the Employment Appeal Tribunal upheld a decision by an employment tribunal judge that anonymity orders should be lifted so that the media could identify the parties in the underlying case. In the case, John Fallows had brought claims against Sir Elton John, William A Bong Limited and HST Global Limited on 19 August 2015, alleging unfair dismissal and unlawful sex discrimination. His claim included allegations of sexual misconduct. Mr Fallows had been employed by Sir Elton and William A Bong Limited to provide hairdressing services to HST. Sir Elton and the companies, as respondents in the tribunal case, strongly denied Mr Fallow’s claims, and he withdrew them after the case was resolved in a confidential settlement without proceeding to a public hearing. News Group Newspapers, publishers of The Sun on Sunday, applied for the anonymity orders – which the tribunal judge had imposed as an interim measure - to be lifted. That application was opposed by Mr Fallows and the respondents. Employment judge Simon Auerbach considered their privacy rights but declined – to preserve open justice and the Article 10 rights of News Group and the public – to make the anonymity permanent. But interim anonymity orders remained in force until an appeal could be heard against his decision to lift them. In the appeal ruling, Mrs Justice Simler noted that News Group had argued that because Sir Elton is a well-known public figure ‘his behaviour as an employer against whom allegations of employee mistreatment and sexual misconduct have been made is a legitimate subject for public scrutiny’. Mrs Justice Simler said: ‘It seems to me (in agreement with the employment judge) that this is a matter of legitimate public interest in this case. The fact that allegations made by Mr Fallows against the respondents to the underlying proceedings have been withdrawn on settlement does not mean that there can no longer be any public interest in the allegations of wrongdoing. There is no suggestion that Mr Fallows now says the allegations were false from the outset (though that is the position of the respondents) and the fact that they are not pursued to a hearing does not mean that they are false and to be treated as never having been made.’ She added: ‘It is also right to recognise that the fact of settlement and withdrawal of the claim means that allegations originally made remain untested and have not been adjudicated on. However, the public is to be trusted to understand that unproven allegations made and then withdrawn, are no more than that.’ She also said: ‘There is no presumption in favour of non-reporting of settlements or settled proceedings, nor should there be. While there is a public interest in settlement of litigation which is to be encouraged, it does not outweigh the fundamental principle of open justice’ (Fallows, John, William A Bong and HST Global Ltd v News Group Newspapers Ltd, UKEAT/0075/16/RN). An appeal against Mrs Justice Simler’s ruling was withdrawn. This meant that the identities of Mr Fallows, Sir Elton and the other respondents could be published in reports of the employment tribunal case having been settled, The Sun on Sunday quoted its own spokesman as saying: ‘This case raised a fundamental issue of a free press being able to report legal cases against celebrities with deep pockets and armies of expensive lawyers who want to keep even the fact of such litigation against them from the public. The Sun on Sunday does not suggest the claims, which we accept were denied by Sir Elton and which were subsequently withdrawn, are true. We simply wanted to report the fact the case had been settled’ (Media Lawyer, 19 July 2016).
18.7.7 Defamation and other contempt law affecting coverage of employment tribunals
Employment tribunals and the Employment Appeal Tribunal are classed as courts. Therefore, as explained in 18.5 in McNae’s, media reports of their hearings can enjoy privilege against defamation actions.
As explained in 18.6 above, parts of the Contempt of Court Act 1981 and other reporting restrictions apply to coverage of the proceedings of all types of tribunals classed as courts. For the ban on audio-recording in courts, in the context of an employment tribunal, see Neckles v Yorkshire Rider Ltd [2002] All ER (D) 111 (Jan), although that case did not involve the media.
18.8 Public inquiries
Public inquiries can be broadly categorised either as local inquiries, set up routinely in certain circumstances, or those which are set up ad hoc to consider a matter of national concern.
18.8.1 Local public inquiries
Some Acts of Parliament provide that an inquiry hearing must be held before certain decisions are made affecting the rights of individuals or of public authorities. An inquiry might be held, for example, before planning schemes are approved. In some cases, an ‘Inspector’ appointed by a Minister to chair the inquiry decides the matter at issue. In others, they must report to the Minister, who subsequently announces a decision and the reasons for it. Some statutes under which inquiries are held stipulate that they must be held in public. In others, this is discretionary. Local authorities and health trusts also have general statutory powers under which they can fund an ad hoc inquiry into a matter of local (or national) concern, though it will be at their discretion whether it is held in public.
18.8.2 Public inquiries into matters of national concern
Public inquiries initiated ad hoc by Government Ministers have in recent years included:
- the inquiry announced by the Home Secretary in October 2019 into the deaths of 23 people (including the attacker) killed by the terrorist suicide bombing at Manchester Arena in 2017. The inquiry, chaired by Sir John Saunders, was established under the Inquiries Act 2005. See https://manchesterarenainquiry.org.uk/
- the Grenfell Tower inquiry, chaired by Sir Martin Moore-Bick, into the fire which killed 71 people in the London block of flats in 2017 – see https://www.grenfelltowerinquiry.org.uk/. This too was established under the 2005 Act.
- the inquiry into the abduction, rape and murder of Sarah Everard by a serving Metropolitan Police officer, Wayne Couzens. This was established in 2021 on a non-statutory basis, but the Home Secretary may agree to convert it into a statutory inquiry, following advice from its chair Lady Elish Angiolini QC - see https://www.angiolini.independent-inquiry.uk/
If an inquiry is held on a non-statutory basis, it has no legal powers to compel witnesses to give evidence, but is seen as a flexible option when full cooperation is anticipated, including more flexibility to sit in private. See Useful Websites, below, for a House of Commons Library Briefing Note on public inquiries held on this basis.
For inquiries established on a statutory basis, the presumption in the relevant law is that the inquiry’s proceedings are normally in public. This means its chair can only justify it going into private session - excluding the public and journalists - if this is on a ground specified in a rule in that law, or because the law enables a Government Minister to order that particular evidence must be heard in private.
18.8.3 The Inquiries Act 2005
If the inquiry is established on statutory basis this is usually under the 2005 Act. Its section 19 gives both the Minister who has commissioned the inquiry and the inquiry’s chair power to restrict who attends it - for example, it can proceed in private. The grounds on which such a restriction can be imposed are worded to be wide - for example, to ensure ‘the efficiency’ of the inquiry or to protect someone from death or injury or to prevent disclosure of commercially sensitive information. Another ground is to protect national security.
18.8.3.1 Reporting restrictions in the 2005 Act
Sections 19 and 20 of the Act give both the commissioning Minister and the inquiry’s chair power to restrict the disclosure or publication of an item of evidence or documents, or of the identity of a witness. The restriction can be specified as temporary, but otherwise continues indefinitely, unless varied or revoked. The grounds on which such a restriction can be imposed are the same as for a restriction on attendance.
Under the Act’s section 36, an inquiry chair has power to ‘certify’ to the High Court that someone has failed to comply with a restriction on disclosure or publication. The High Court has power to punish non-compliance as a contempt of court, by imposing a fine unlimited by statute or a jail sentence of up to two years.
But the Act’s Explanatory Notes state: ‘Disclosure restrictions would not prevent a person not involved in the inquiry from disclosing or publishing information that had come into his possession through means unconnected with the inquiry.’ See Useful Websites, below, for these Notes.
18.8.3.2 Failure to produce evidence/name a source to an inquiry
Section 35 of the 2005 Act makes it a summary offence to fail to obey an inquiry’s order for evidence to be provided, with a maximum jail term of 51 weeks. This power to order production of evidence is similar to that in other statutes relating to local inquiries. But under the 2005 Act, an inquiry chair also has power to ‘certify’ to the High Court that someone has failed to obey such an order. The 2005 Act repealed the Tribunals of Inquiry (Evidence) Act 1921 - the statute under which journalists Brendan Mulholland and Reg Foster were jailed in the 1960s for refusing to disclose to the Vassall inquiry their sources of information. But the power to ‘certify’ means that a journalist who refuses to co-operate with an inquiry held under the 2005 Act could be punished by the High Court for contempt of court – for example, if the journalist refuses to provide evidence which could identify a confidential source. For general context, see ch. 33 in McNae’s about journalists’ sources.
Case study: Lord Saville, chairman of the inquiry established in 1998 under the 1921 Act to investigate the 1972 Bloody Sunday killings in Northern Ireland, threatened three journalists - Alex Thomson and Lena Ferguson of Channel 4, and Toby Harnden of the Daily Telegraph - with actions for contempt of court after they refused to name the sources of stories about the killings. The Act gave tribunals wide powers to send for and examine witnesses. In 2000 Harnden was ‘placed in contempt’ of the inquiry. Lord Saville had ordered him to disclose the identity of a soldier he interviewed in early 1999 about events on Bloody Sunday, but Harnden refused. After the interviews, Harnden had destroyed his notes and tapes, to ensure that they could not be used to identify the two soldiers he had interviewed. Lord Saville initiated contempt proceedings by referring Harnden’s refusal to the High Court. But these proceedings were – after a legal battle - eventually dropped in 2004, and Lord Saville announced he would not bring contempt proceedings against Thomson or Ferguson, despite their refusals (Media Lawyer, 19 April and 10 June 2004).
18.8.3.3 Rights to attend and see information at an inquiry
Section 18 of the 2005 Act says that its chair must take such steps as they consider reasonable ‘to secure that members of the public (including reporters) are able...to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry.’
Section 18 also says that the chair must take steps to allow the public and reporters to obtain or view a record of evidence and documents given, produced or provided to the inquiry, subject to any restriction imposed.
Once the public inquiry is over, journalists can make requests under the Freedom of Information Act 2000 for information in evidence or documents not disclosed in public sessions of an inquiry, because such material will be passed to a public authority, for example, the Government department whose Minister commissioned the inquiry. But requests may be refused under that Act’s exemptions. The online chapter 37 explains the Freedom of Information Act.
18.8.3.4 Recording and broadcasting proceedings
The 2005 Act’s section 18 says that any recording and broadcast of an inquiry’s proceedings must be sanctioned by the chair.
18.8.4 Coverage of public inquiries—defamation law
Reports of public inquiries held under the Inquiries Act 2005 have, under its section 37, the same privilege ‘as would be the case if those proceedings were proceedings before a court’. This means that, as regards proceedings held in public, absolute privilege applies under section 14 of the Defamation Act 1996 to contemporaneous reports and qualified privilege applies under Part 1 of Schedule 1 to the 1996 Act to non-contemporaneous reports if the respective requirements of these defences are met, including that the reports fairly and accurately reflect the proceedings. For these defences, see 22.5 and 22.7 in McNae’s. The Schedule is set out in Appendix 2 of McNae’s.
Part 1 of the Schedule also applies qualified privilege, subject to the same requirements, to media reports of the proceedings in public ‘of a person appointed to hold a public inquiry by a government or legislature anywhere in the world’. Media reports of public inquiries of the type defined in paragraph 11 in Part 2 of the Schedule enjoy qualified privilege subject to the additional requirement to publish ‘explanation or contradiction’ if this is requested – see 22.7.1.2 in McNae’s. The 1996 Act does not make clear in Part 2 of the Schedule how what it describes as a person appointed by ‘a Minister of the Crown’ to run an inquiry differs from what Part 1 of the Schedule describes as a person appointed to do this ‘by a government’. But it is an established legal principle that when an event/circumstance is described both generally and specifically in a statute, the part which is most specific applies.
Also, is the case with some tribunals, proceedings of public inquiries are not as formal as those in an ordinary court of law, so if a witness makes abusive and defamatory comments about another person which are irrelevant to the inquiry’s purpose, particular care must be exercised as regards what is published verbatim from such comments if qualified privilege under the 1996 Act is relied on. This is because the defence requires that what is published must be a matter of public interest, the publication of which is for the public benefit —see 22.7.1 in McNae’s. However, the basic fact that the witness was being so abusive would normally be such a matter, because of what this reveals about his or her character.
If a journalist discovers what is said in a private session of an inquiry, they should bear in mind that a report of such matter will not be protected by privilege.
18.8.4 1. Privilege for reports of an inquiry’s findings
The findings of a public inquiry are usually published by a government department, by Parliament or by the relevant local authority.
Under the Defamation Act 1996:
- a fair and accurate report of such findings, when they have been officially published by a government or legislature anywhere in the world, is protected by qualified privilege under Part 1 of the Act’s Schedule 1 (paragraph 7);
- a fair and accurate media report of findings officially published by a local authority anywhere in the world is protected by qualified privilege under Part 2 of the Schedule (paragraph 9).
Useful Websites
https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service/about
HMCTS site which has links to First-Tier tribunal sites and procedural rules for Chambers
www.gov.uk/government/publications/upper-tribunal-procedure-rules
Procedural rules for the Upper Tribunal
HMCTS general guidance to courts and tribunals staff on media access
HMCTS guidance to tribunals staff on media access
Medical Practitioners Tribunal Service
http://www.solicitorstribunal.org.uk/
Solicitors Disciplinary Tribunal
Bar Tribunals and Adjudication Service
Nursing and Midwifery Council
https://www.gov.uk/government/organisations/teaching-regulation-agency/about
Teaching Regulation Agency
Health and Care Professions Tribunal Service
www.legislation.gov.uk/uksi/2020/4/made
The Police (Conduct) Regulations 2020
Home Office guidance on police misconduct proceedings
www.basingstokegazette.co.uk/news/19965956.terry-cooke-abused-position-target-young-women/
Basingstoke Gazette coverage of the Terry Cooke misconduct case
www.justice.gov.uk/tribunals/employment
Government guidance on employment tribunals
www.gov.uk/government/publications/employment-tribunal-procedure-rules
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
https://www.gov.uk/government/publications/employment-appeal-tribunal-rules
Employment Appeal Tribunal rules
Courtserve.net
Courtserve website
www.gov.uk/employment-tribunal-decisions
Online archive of employment tribunal judgments and decisions
www.gov.uk/appeal-employment-appeal-tribunal
Government guidance on the Employment Appeal Tribunal
https://www.gov.uk/employment-appeal-tribunal-decisions
Employment Appeal Tribunal decisions
Guidance on ‘general case management’ issued by the President of Employment Tribunals
www.legislation.gov.uk/ukpga/2005/12/notes/contents
Government’s Explanatory Notes to the Inquiries Act 2005
https://commonslibrary.parliament.uk/research-briefings/sn02599/
House of Commons Library Briefing Note on non-statutory, public inquiries
https://commonslibrary.parliament.uk/research-briefings/sn06410/
House of Commons Library Briefing Note on the Inquiries Act 2005