Louise Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42

Judgment date: 24 January 2025

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/42

Sir Geoffrey Vos MR, King LJ and Warby LJ. While anonymisation of judges is theoretically possible, it is highly unlikely. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.

Background; [1]–[7]

An appeal against Mr Justice Williams’ reporting restrictions order in Tickle v Surrey County Council [2024] EWHC 3330 (Fam) where the media were prevented from publishing the names of the judges (and other professionals) who had been involved in the historic proceedings (which related to Sara and to two of her siblings).

The relevant part of the Order provided as follows:

‘no person may publish any information arising from the disclosure of the documents from these proceedings to the public, or a section of it, which includes: …
 
g⁠. The name of any third parties referred to in the historic proceedings for the avoidance of doubt including social worker, guardian other named professionals and experts instructed in the proceedings and any Judge who heard the historic proceedings (save for Mr Justice Williams). …
 
including not repeating such information by reference to the disclosed documents even if it is already in the public domain’ (emphasis added)

Williams J had not been asked to anonymise the judge’s names nor had he highlighted that he was considering the issue to the parties, or heard submissions on the issue.

After Williams J’s reporting restrictions order journalists immediately sought permission to appeal the anonymisation of the historic judges. Williams J acknowledged that he had not heard argument on the point and invited written submissions, which were duly lodged. On 13 December 2024, the judge’s clerk sent an email to the parties confirming that the judge had considered the written submissions, and that he maintained his decision that the historic judges were not to be named and that reasons would follow.

In his reasoned judgment of 18 December 2024, the judge said he would not name the judges ‘without enquiries being made of them as to their health and their response to the possibility of being named’, [91], and that he would:

‘list the matter for further consideration in 3 months’ time when those who might be identified [could] be notified and given the opportunity if they wish to make representations and [he could] receive evidence about the intensity of the reactions that have been generated.’ [92]

The judge had no further opportunity to consider the adjourned application for permission to appeal, as Sir Geoffrey Vos MR granted permission on 19 December 2024.

The Court of Appeal granted the media parties permission to appeal on the same grounds on the first day of the hearing.

Appeal

Grounds; [8]

‘i⁠) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.
 
ii⁠) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.
 
iii⁠) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.
 
iv⁠) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.’

On 20 December 2024, King LJ directed that the historic judges be contacted to obtain their views. On 9 January 2025, leading and junior counsel for the historic judges filed a note indicating amongst other things that: none of the historic judges had sought anonymity, each now had serious concerns about the risks to them and their family which would arise if they were now identified, and that they considered a risk assessment should be carried out.

The HMCTS Head of Security said the historic judges:

‘do not have secure digital footprints and the ease at which the residential address details of the judges can be accessed by anybody utilising the internet, creates very significant security/safety vulnerabilities. If there is a campaign, including potential “hate” messages targeting [the historic judges], their personal safety and the personal safety of their family could be very severely affected.’

The Court of Appeal then distilled the main issues into three; [11]:

‘i) Whether the court had jurisdiction to prohibit the publication of the names of judges, and if so how and in what circumstances.
 
ii)⁠ Whether the part of the Order anonymising the historic judges was irregular for lack of submissions, evidence or reasons.
 
iii)⁠ Whether the judge’s comments in his judgment demonstrated inappropriate bias against or unfairness towards the media.’

Issue 1; [12]

On the first issue (jurisdiction to prohibit the publication of the names of judges), the media parties all argued that the court had no jurisdiction to anonymise the historic judges. They argued the only basis for such an order would be s 6(1) of the Human Rights Act 1998 which makes it ‘unlawful for a public authority to act in a way which is incompatible with’ an ECHR right, and s 37 of the Senior Courts Act 1981, which gives the court power to grant an injunction ‘in all cases in which it appears … just and convenient to do so’. It was argued that the historic judges were not vulnerable parties. Judges were appointed by the state to sit on cases and to be identified as the judge hearing any particular case, even a case heard in private. Open justice and transparency of justice were fundamental and paramount principles.

The Local Authority submitted that the article 8 threshold could be reached if there were a risk that the physical or psychological integrity of the judges or their families might be impugned.

The Guardian accepted this was not a welfare issue for the children.

Only the father opposed the appeals on this issue, arguing that the judge had been right for the reasons he gave.

The other parties were neutral.

Issue 2; [13]

On the second issue (irregularity for lack of submissions, evidence or reasons), most of the parties accepted that the judge ought to have asked for evidence and argument before pronouncing his order anonymising the historic judges, and that he ought to have given some reasons for that part of his order at the time of its making.

Issue 3; [14]

On the third issue (inappropriate bias against or unfairness towards the media), only the journalists and the other media parties made substantive submissions.

Decision

Appeal allowed. Primarily on the ground that the judge did not, in the circumstances of this case, have jurisdiction to make the part of the order that anonymised the historic judges, but also on the grounds of procedural irregularity and unfairness.

The part of the order granting anonymity to the historic judges was removed after allowing seven days for HMCTS to consider and implement whatever measures they consider appropriate to protect and safeguard the historic judges from unwarranted attacks.

Reasons

The presumption is there will be open justice – [43]–[50] – and that presumption will not easily be rebutted.

Judges are appointed to fulfil a crucial public office. The independence and integrity of judges is a cornerstone of democracy. It is the duty of judges to sit in public, save in circumstances that are closely delineated by statute (e.g. s 97), procedural rules (e.g. CPR 39.2) and the common law (see Scott v Scott at [43] above). In accepting office, all judges will or should be aware that that is the expectation, because public scrutiny of judges and the justice process is essential to the rule of law. Judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny; [66].

Judges are not obliged to tolerate any form of abuse or threats. In this case the judge had no evidence regarding whether the historic judges had been physically threatened, their private/family lives, nor that their article 8 rights were in jeopardy. He should not have speculated about generic risks faced by family judges from social media; [67]. Sir Geoffery Vos MR agreed with Nicklin J in Various Claimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB), [2022] EMLR 4 (IPSA) at [52], see [47]:

‘The civil justice system and the principles of open justice cannot be calibrated upon the risk of irrational actions of a handful of people engaging in what would be likely to amount to criminal behaviour.’

Although anonymisation of judges is theoretically possible it is highly unlikely that a judge would be anonymised.

Sir Geoffery Vos MR said at [67] that:

‘i) it is difficult to see that such an order could be justified without specific compelling evidence being available as to the risks to the judge(s) in question.
 
ii) the court would have to be satisfied that those risks could not be adequately addressed by other security measures.
 
iii) the court would have to conclude that the risks were so grave that, exceptionally, they provided a justification for overriding the fundamental principle of open justice.’

It was held that, in the circumstances of this case, the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so, and the order must be varied accordingly.

The appeal was also successful on the ground that the judge was unfair in his treatment of the journalists and Channel 4 – this was a case-specific ground based on the judges’ comments in his judgment.