When is it appropriate to hold a private hearing?

Anonymity

As a general rule, administration of justice within England and Wales requires that proceedings are held in public. As part of their obligation to maintain public confidence in the professions they regulate, healthcare regulators generally try to ensure that wherever possible, hearings are conducted in public.

There are, of course, exceptions to this general rule, with each regulator having their own policies and guidance about when anonymity or private hearings might be appropriate, often requiring one of the parties to make an application for such measures.

Discussion

Mr Justice Kerr said that there is a common misconception that if the identity of a person in legal proceedings is not directly relevant, there is no public interest in that person’s name being known. Being brutally honest about the impact that the, “creeping march of anonymity and redaction,” could have on open justice, Mr Justice Kerr stated that, “Clarity and a sense of purpose are lost. Reading or writing reports about nameless people is tedious.”

The judge discussed the applicable principles, stating that, “the common law principle of open justice is well known,” and that the trend towards less open justice and more anonymity, is not a good direction of travel for the law.

Mr Justice Kerr noted that whilst there was no appeal in respect of the SDT’s decision to hold the hearing in private, he felt that the decision to do so was convenient, rather than necessary. He specifically criticised the test for sitting in private as set out in rule 35 of The Solicitors (Disciplinary Proceedings) Rules 2019, as being, “out of tune,” with the common law principle of open justice, and expressed hope that it would be looked at again.

In discussing the SDT’s decision-making in respect of anonymity, Mr Justice Kerr stated that Courts and Tribunals should not be squeamish about naming innocent people caught up in the wrongdoing of others. “It is part of the price of open justice and there is no presumption that their privacy is more important than open justice.”

Conclusion

Whilst Mr Justice Kerr’s judgement may result in some internal discussions, and possibly changes, at the SDT, what other regulators make of it, remains to be seen. It may be though, that tribunals will need to take heed of Mr Justice Kerr’s judgment if they are to avoid similar appeals in the future.