In R (C) v Secretary of State for Justice, the Supreme Court had to decide whether a patient could keep his identity private when challenging a decision about leave from hospital. Anonymity depended on the risks that identification posed in his particular case.
The appeal did not revive the challenge to the Secretary of State’s refusal of unescorted community leave. Cranston J had rejected that challenge, and permission to appeal on it was refused. The only issue was whether the appellant, referred to as C, should remain anonymous. Lady Hale, with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hughes agreed, divided that issue into two questions: whether such proceedings should begin from a presumption of anonymity, and whether anonymity was necessary for C.
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C’s detention and the proceedings below
C was serving a life sentence. By the time of the judicial review, the minimum term set for punishment had expired.
C had been transferred to a secure hospital under sections 47 and 49 of the Mental Health Act 1983. His clinician sought consent for unescorted leave as a step towards assessing his suitability for discharge. The Secretary of State refused.
C sought judicial review after the Secretary of State reconsidered the refusal and reached the same decision. The High Court initially granted anonymity.
After dismissing the substantive claim, Cranston J considered anonymity. The responsible clinician asked that it continue, citing hospital security, media intrusion, the effect on C and other patients, distress to the victims’ relatives, and earlier concerns for C’s safety. Cranston J held that earlier proceedings were already public and that the public had a right to know his decision. He anonymised only the hospital and staff. The Court of Appeal dismissed C’s appeal on anonymity, but the original anonymity order remained in force pending this appeal.
By the time of the Supreme Court hearing, the Parole Board had directed C’s release on life licence. The court considered the effect that identification would have on his return to the community.
No presumption of anonymity
The proceedings were governed by the Civil Procedure Rules. Whether the hearing should be private was not in issue. Rule 39.2(4) allows the court to withhold the identity of a party or witness where non-disclosure is necessary to protect that person’s interests. Lady Hale distinguished two aspects of open justice: a public hearing, so that evidence and argument are not taken behind the backs of those interested, and publication of names. A public hearing can often secure the first without the second. Naming people engages a different interest, because identifiable stories are more likely to be read. Restrictions require a balance between article 8 and article 10 of the European Convention on Human Rights. The parties’ agreement cannot relieve the court of striking that balance.
Counsel could not recall a case about compulsory detention, care or treatment in which anonymity had been refused unless the patient wanted to be named. In the First-tier Tribunal, mental health hearings are private unless a public hearing is in the interests of justice, and names are not made public unless the Tribunal directs otherwise. The Upper Tribunal generally sits in public but applies the same anonymity rule. Court of Protection rules also started from privacy and anonymity. Lady Hale linked this to the protective jurisdiction discussed in Scott v Scott.
Maurice Kay LJ had discounted that history. He said these statutory powers did not then exist and that public-law litigation of this kind was virtually unknown; he also treated the tribunals as often deciding medical issues, whereas judicial review assessed risk. Lady Hale rejected both points. Comparable compulsory powers and private judicial safeguards existed in earlier legislation, and tribunal decisions about detention, treatment, protection of others, recall and continued detention involve risk as well as diagnosis. Leave and transfer decisions mix therapy with risk assessment and depend on confidential medical information. Judicial review of the Secretary of State is no different.
She also identified a “chilling effect”. If patients fear later disclosure, they may be less frank with those treating them, harming both treatment and risk assessment, and may be deterred from challenging detention and treatment without consent. Article 5 requires regular independent review of that deprivation of liberty. Confidence is protected in the tribunals and Court of Protection, but not automatically if a case reaches the High Court or Court of Appeal.
Those considerations did not create a presumption. An order in every case would be wrong. The public is entitled to know what the courts are doing and, particularly where notorious crimes are involved, who the principal actors are, so that it can be reassured that sensible decisions are being made. That must be balanced against harm to the therapeutic enterprise, to patients who need a reasonable expectation that they will not be identified without consent, and sometimes to the patient, hospital, staff and other patients.
Why anonymity was necessary here
The killings had caused incalculable distress. Lady Hale noted the limited rights of victims under the Domestic Violence, Crime and Victims Act 2004, exercised through probation providers, which should allow the families to be reassured about the discharge arrangements. Public oversight of the decision-making was protected by holding the hearing in public, even if C was not named. The Secretary of State was neutral; the competing interest was principally that of the media.
Against disclosure were the risks to health and recovery, the chilling effect after the punitive tariff had expired, the clinician’s specific concerns, and the risk from members of the public acknowledged in the Secretary of State’s letters. Escorted community leave had already demonstrated the need for anonymity, and release made the case stronger. Without it, there was a very real risk that years of progress would be jeopardised and that reintegration, an important purpose of the transfer to hospital, would fail.
Verdict: The Court unanimously allowed C’s appeal and maintained the anonymity order. The refusal of unescorted leave stood.
