Judges are not above scrutiny

The Court of Appeal last week rightly decided to allow the naming of anonymised judges involved in the Sara Sharif proceedings. It rejected, in no uncertain terms, the idea that judges are entitled to sit in secrecy, away from public scrutiny.

Sara Sharif, a 10 year old, was murdered by her father and step-mother. Her death was preceded by years of abuse, mainly at the hands of her father, Urfan Sharif. In his sentencing remarks, Mr Justice Cavanaugh said that the prolonged violence could be described, without exaggeration, as being torture. When her body was examined after death, medical experts found 71 separate recent injuries and 25 fractures to the bones in her body. She had untreated burn marks on her body, bite marks and signs that she had been tied up by her parents, as well as being hooded. She was often left in soiled nappies without assistance. There was evidence of strangulation and a blow to her head, which had caused brain injury. Instead of seeking medical assistance, Urfan Sharif repeatedly beat his daughter when she was acting unwell as a result of her injuries.

The seriousness of the offending was such that Urfan Sharif was sentenced to life imprisonment with a minimum term of 40 years. Beinash Batool, Sara’s step-mother, was sentenced to life imprisonment with a minimum term of 33 years. Faisal Malik, Sara’s uncle, who was convicted of causing or allowing the death of a child, was sentenced to 16 years’ imprisonment.

Following the sentencing of Sharif, Batool, and Malik, questions were raised as to whether the authorities could have intervened sooner to prevent the abuse. Mr Justice Cavanaugh expressed concern at the ease at which Sara had been homeschooled by malign parents, especially after Sara’s school had noted safeguarding issues. Importantly, there were also questions as to the role of the courts. Sara had been involved in historic private family law proceedings. There had been allegations that her mother, Olga Domin, had engaged in unlawful chastisement and had left her unattended. Sara subsequently lived with her father and step-mother, with the support of Olga. The court, relying on a report by social services, varied a child arrangements order so that Sara should live with her father and her step-mother, Beinash Batool, whilst maintaining contact with her mother. According to the report, there was evidence (which in hindsight was flawed) that Sara could live a safe and stable life with her father and step-mother. Previous proceedings, however, had determined that Urfan and Olga were responsible for violence against another child, Z, who was the subject of a care order and who remains in foster care. Olga had also made accusations that Urfan had been violent to her.

Given the concerns regarding the role of the courts, media parties, including Louise Tickle and Hannah Summers, applied for disclosure of papers from the historic proceedings and for the lifting of reporting restrictions. Mr Justice Williams, in the High Court, did allow reporting several documents from the proceedings, but decided to anonymise the names of the judges involved, despite not having heard submissions from any of the parties on the matter.

Williams J’s 19 December judgment used rather strained logic on the matter, complaining of occasions where the papers had misreported or presented skewed perspectives on judgments and adding that cases of his own had been unfairly reported. Williams J relied on the fact that there had been some targeted attacks against immigration solicitors, on his own personal experiences and on surveys of the judiciary in deciding not to name the judges. Yet, there was no evidence of specific threats against the judges in the Sharif cases. Even so, Williams J determined that the interference with the European Convention on Human Rights’ (ECHR’s) articles 8 (respect for family and private life), 3 (freedom from torture and inhuman or degrading treatment) and 2 (right to life) rights of the judges outweighed the article 10 (freedom of expression) rights of the media and the public.

Williams J defended the decisions in the Sharif proceedings in his judgment and added the following rather unpersuasive analogy regarding responsibility:

Seeking to argue that individual social workers or guardians or judges should be held accountable is equivalent to holding the lookout on the Titanic responsible for its sinking rather than the decision making of Captain Smith and the owners of the White Star Line or blaming the soldiers who went over the top in the Somme on 1 July 1916 for the failure of the offensive rather than the decision making of the generals who drew up the plans.

Of course, judges are closer to Captain Smith or generals than they are to lookouts or soldiers in our legal system: they are representatives of state power who have particular immunities and privileges under the law.

The Court of Appeal’s judgment, then, was a welcome clarification of the law of anonymity. Sir Geoffrey Vos, the Master of the Rolls, found that Williams J lacked even the jurisdiction to make the decision. Sir Geoffrey Vos noted the importance of the principle of open justice. In Scott v Scott, Lord Atkinson said that: “it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect”. Felixstowe Justices later determined that magistrates could not have their names withheld as there was a general right to know who sits in judgment. As to the idea that unfair press coverage could provide a justification for anonymising judges’ names, Munby J’s judgment in Harris (in the context of contempt) provided a defence of the media’s right to critique the judiciary, even in strong terms:

For that which is lawful if expressed in the temperate or scholarly language of a legal periodical or the broadsheet press does not become unlawful simply because expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. Judges, after all, are expected to be, and I have no doubt are, men and women of fortitude, able to thrive in a hardy climate, and the vehemence of the language used cannot of itself measure the power to punish for contempt.

Sir Geoffrey Vos observed that judges are in a “special position”. Except for closely confined exceptions, the judiciary would be expected to sit in public. Public scrutiny and accountability is part of the rule of law, even in cases where the proceedings are in private.

Taking into account these principles, the Court of Appeal found that Williams J lacked jurisdiction because he was acting on his own motion. There was no request for anonymity and no specific evidence that any threats had made it  necessary. This was not a foundation on which Williams J could make an order, even on an ECHR basis. Williams J could have decided to inform His Majesty’s Courts and Tribunals Service so that measures could be put in place for the protection of judges. Anonymisation could be necessary in the circumstances where such measures would be unable to address concerns. Otherwise, the presumption of open justice would not be displaced.

Moreover, since Williams J had not received evidence and submissions on whether naming judges was inappropriate he had acted irregularly. The parties did not have opportunity to properly challenge the basis on which the order would be made and there was no evidence on which it could be made, save for Williams J’s personal experience and general complaints as to the position of the judiciary.

Even when comment may be unpleasant and vociferous, open justice is an important factor in maintaining confidence in the legal system

Finally, Williams J had acted with bias against the media. Sir Geoffrey Vos noted the strongly personal line taken against the media with the accusation that The Guardian had inaccurately reported that Williams J had refused permission to appeal when he had, in fact, adjourned the decision. That adjournment had nonetheless led to the appeal to the Court of Appeal. Further, Williams J had complained about a Channel 4 documentary, saying, “Thank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict!”. This was, according to Sir Geoffrey Vos, an example of the judge getting “carried away” and making “inappropriate and unfair” remarks — a firm rebuke, considering how the Court of Appeal is often restrained when referring to judges in the court below. As such, Sir Geoffrey Vos directed that a different Family Division judge should hear the case in the future.

The judges involved in the Sharif proceedings would be given seven days until they would be named so that any relevant measures could be put in place for their protection. The Court of Appeal rightly decided against anonymity. This is a welcome pushback against a trend which seeks to manage potentially damaging information that might reach the general public at the expense of freedom of information. Even when comment may be unpleasant and vociferous, open justice is an important factor in maintaining confidence in the legal system. In such a disturbing case as Sharif’s, judges should be prepared for scrutiny of themselves and any failings that might have occurred.