Should judges be named?

Court of Appeal reserves judgment after two judges seek anonymity

Two retired judges who heard proceedings involving the family of the murdered schoolgirl Sara Sharif have asked the Court of Appeal not to name them.

They and a third judge have “serious concerns about the risks which would arise if they were now identified”, their barrister said in a written note to the court released yesterday.

All three judges were granted anonymity last month by a High Court judge. An appeal against Mr Justice Williams’s ruling concluded yesterday but three senior judges headed by the master of the rolls Sir Geoffrey Vos said it might take “more than just a few days” for the Court of Appeal to deliver a written judgment.

Sara Sharif. Last month, her father Urfan Sharif was sentenced to a minimum of 40 years in prison for murder and her stepmother Beinash Batool received a minimum of 33 years. Her uncle Faisal Malik was sentenced to 16 years’ imprisonment for causing or allowing her death.

None of the three unnamed judges had originally requested anonymity, they confirmed in their note to the Court of Appeal. But they drew attention to what they described as the “content and often inflammatory nature of public and media commentary arising from the intense scrutiny which has followed from Mr Justice Williams’s judgment”.

Their counsel Mathew Purchase KC stressed that “those concerns relate not only to their own personal wellbeing but also to their family members and others close to them, whose interests the court may consider should also be taken into account”.

The two retired judges who were referred to as CJ/1 and CJ/2 had made only protective orders — an emergency protection order and an interim care order respectively — and had no other involvement in the proceedings. In the circumstances, said their counsel, they considered that “it would be right for their identities to remain protected”.

Purchase continued:

The judge referred to as CJ/3 in the appellants’ skeleton argument is a sitting judge and is not able to adduce evidence in this case and does not feel it appropriate to express a position on whether their identity should or should not remain protected.

The unnamed judges requested risk assessments before any decision was taken to make their identities public. They quoted a statement from the head of security at HM Courts and Tribunals Service, which said:

The 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 these judges, their personal safety and the personal safety of their family could be very severely affected.

We are awaiting a police risk assessment to get the police view of the likely threat/risk but clearly these security vulnerabilities highlight a very serious potential safety issue if the judges’ names are disclosed.

Advocate to the court

After explaining why they could not make submissions to the Court of Appeal, CJ/1, CJ/2 and CJ/3 invited the court to reconsider its earlier decision not to seek assistance from an advocate to the court — a lawyer appointed by the attorney general to put arguments that otherwise might not be heard. The court agreed and William Tyzack was appointed by the attorney general.

He was asked by Vos, the presiding judge, to consider the question of jurisdiction — what legal power did Williams have to ban publication of names that could previously have been lawfully reported. This did not seem entirely clear from the judge’s 34-page judgment.

Tyzack argued that this might be necessary to protect a judge’s human rights. These could arise under article 8 of the human rights convention, the right to respect for a person’s private and family life. The Human Rights Act 1998 says it is unlawful for a public authority — which includes a court — to act in a way which is incompatible with a convention right.

Respect for private life could extend to professional life, Tyzack argued. But the judge’s article 8 rights would have to be balanced against the media’s right to freedom of expression under article 10.

The raised questions about the threshold for intervention and the evidence that would be needed.

Media arguments

The appeal was brought by two freelance journalists, Louse Tickle and Hannah Summers. Their counsel Chris Barnes argued that

• Williams’s failure to provide reasons for granting the judges anonymity was a procedural irregularity.

• His approach to the media was unfair, demonstrated bias and represented an unacceptable encroachment or reporters’ rights under article 10.

• The open justice principle means that anonymity for a judge cannot

  be justified within the framework of balancing article 8 and article 10.

• Williams’s order cannot be justified because it was made in the absence of any specific application or evidential foundation.

• The order is inimical to the proper administration of justice.

Barnes concluded:

[Tickle and Summers] submit that the approach adopted by the judge — in addition to being unfair, poorly reasoned, and unsustainable — represented a regrettable retrenchment that is out of step with the recognised need to promote transparency and media reporting in the family court.

Insofar as it is indicative of a lingering hostility and suspicion to the important work of reporters and media organisations, even at a senior level within the family judiciary, it emphasises the need for [the Court of Appeal] to provide clarity and appropriate guidance to ensure that the judge’s erroneous approach does not take root.

Adam Wolanski KC, representing the BBC and other media organisations, supported the two reporters’ arguments.

In written submissions, he said of Williams:

The judge failed to have any regard to the unique constitutional position of judges. Instead he wrongly held that, when deciding whether to order anonymity, the judiciary occupy the same position as other professionals working within the justice system and further wrongly held that, because judges, like those other professionals, are what he described as “third parties”, their article 8 rights “need to be of less weight to displace the article 10 rights to name them”.

Judges are the face of justice itself. They cannot be equated with “professionals” who act as witnesses or in other roles in the courts. This suggestion of equivalence with other participants in court proceedings betrays a fundamental misunderstanding of the judges’ role.

The judiciary is one of the main repositories of state power. Through the operation of the common law, they make law; they interpret legislation; they are the bulwark against rogue actions of other organs of the state, including those at the highest levels of government; they have power over the liberty of the subject; they make decisions in loco parentis as to the welfare and custody of children, amongst other things.

As in the [Sara Sharif case], these decisions can be life-and-death.

Cyrus Larizadeh KC, acting pro bono for Sara’s imprisoned father, said in his written submissions that his client

endorses the reasoning and conclusions of Mr Justice Williams in declining to grant permission to the press to publish the names of the historic judges, and in particular CJ/3 who sanctioned the child arrangements for Sara and who is the main focus of any proposed publication, without first giving those judges an opportunity to make representations and/or to be represented.

Mr Sharif is concerned that no harm should come to the judge(s) who presided in the historic proceedings.

Tickle and Summers told me after the hearing:

We are grateful to the Court of Appeal for expediting our challenge to the ban on identifying judges in the historic proceedings relating to Sara Sharif and recognising the compelling public interest in judges being known.

We remain of the view that the order was not justified and we pursued our challenge in the public interest given the importance of the public knowing who makes decisions about child welfare matters where a need for greater transparency is the standard to which we should be holding the family court.

It is important not to lose sight of the fact that our application has led to release of a considerable amount of documentation and that Mr Justice Wiliams considered that the public interest in understanding how decisions came to be made for Sara and her siblings was compelling.