A landmark High Court decision regarding open justice was made public last week. And given widespread public concern over police misconduct, it couldn’t be more topical.
First, a little background. In April last year, PC Terry Cooke was sacked from Hampshire Police for gross misconduct, after having inappropriate and prohibited relationships with vulnerable women he came into contact with in his role as policeman.
Mr. Cooke’s behavior was described by the legally qualified chair (“LQC”) of the Expert Panel on Police Misconduct as “the greatest severity” and “intentional, deliberate, targeted and planned”.
However, as part of the misconduct proceedings, Mr Cooke requested that the hearing be held behind closed doors – a request which was authorized by the LQC, but without hearing representations from the Independent Office for Police Conduct , whose role is to represent the broadest public interest in having hearings into police misconduct conducted in public.
When Newsquest’s Basingstoke Gazette became aware of the case and inquired about it, then-editor Katie French was told by Mr Cooke (through his solicitors) that a ” anonymity order” was in place and therefore Mr. Cooke could not be named or identified in the misconduct proceedings.
The editor was not happy with the situation, and although he tried (and failed) to better understand why the “anonymity order” had been issued, the only option Newsquest was left with was to hire a judicial review process, to challenge the decision. of the LQC to issue the “anonymity order”. Mr. Cooke was an interested party in these proceedings.
This is an unusual case, as what became clear when the LQC released its written ruling on the misconduct proceedings was that no “anonymity order” had in fact been issued. Mr Cooke had requested that the hearing itself be held behind closed doors due to concerns for his personal safety, which was granted, but no request for anonymity had been made in respect of Mr. Cooke and therefore no “anonymity order” had been granted.
As you can imagine, when the truth finally emerged, the editor and publisher (and their lawyers!) were stunned!
So what happened next?
Baffled by this unexpected turn of events, the publisher asked the court:
- leave to withdraw the application for judicial review, on the grounds that the whole reason for it had disappeared in the absence of an “order of anonymity”;
- permission to use the documents disclosed during the proceedings, in order to tell the story; and
- condemn his costs of introduction to Mr. Cooke.
This request was heard by Madam Justice Ellenbogen at the end of January, and the judgment was rendered a few days later. Newsquest won on all counts of its claim, with Judge Ellenbogen saying that Mr Cooke had behaved unreasonably in stating (through his lawyers) that there had been an “injunction order”. ‘anonymity” and that “these lawsuits were initiated because of this unreasonable behavior”.
All of the above is very interesting, but Madam Justice Ellenbogen’s key decision came in connection with a last-minute request by Mr Cooke for anonymity in relation to what remained of the judicial review proceedings.
So on what basis was Mr Cooke’s request for anonymity made?
His representatives argued that he had a reasonable expectation of privacy in relation to his identity under Article 8 of the European Convention on Human Rights, which outweighed the right to freedom of media expression guaranteed by Article 10. Lawyers for Mr Cooke argued that the right to privacy in Article 8 should prevail due to concerns surrounding
The personal safety of Mr Cooke following a campaign against him by a hostile member of the community and concerns about his mental health. They also argued that as an ordinary police officer of lower rank and without “particular public reputation“, which has not been criminally prosecuted, the story could be told”perfectly wellwithout naming him.
However, Jonathan Scherbel-Ball, the attorney representing Newsquest throughout this process, argued in the strongest terms that Mr. Cooke failed to present “clear and relevant» evidence in support of his request, and that any derogation from the principle of open justice must be exceptional.
Mr. Scherbel-Ball also argued that the circumstances in which there is a reasonable expectation of privacy in cases of gross professional misconduct are very limited, citing several instances where gross (albeit non-criminal) misconduct does not did not attract the protection of Article 8.
Mr Scherbel-Ball argued that Mr Cooke was a very experienced police officer who had received a commendation from the Chief of Police for his service to the community – therefore an inaccurate public image of Mr Cooke had been created and had to be corrected.
It was also argued on behalf of Newsquest that the judicial review proceedings were initiated by Mr Cooke”misrepresentation and refusal to provide relevant material”.
After noting that Mr. Cooke had not provided sufficient evidence to support his assertion regarding threats to his safety and mental health, Mr. Scherbel-Ball concluded by asserting that Mr. Cooke could not rely on Article 8 for “prevent the entirely foreseeable distress that occurs when people commit serious wrongdoing and thereby attract public attention”.
Madam Justice Ellenbogen fully agreed and ruled that Mr Cooke’s request for anonymity regarding the judicial review proceedings should not be granted.
In her judgment, Madam Justice Ellenbogen summarized the case law supporting the principle of open justice and concluded that nothing in Mr Cooke’s arguments was sufficient to tip the balance in favor of privacy.
Further, and perhaps most importantly, Madam Justice Ellenbogen noted that Mr. Cooke had no reasonable expectation of privacy”in connection with serious misconduct committed in the course of his professional activitiesand that his identity was an integral part of the story.
So what does this case mean for journalism?
Before the falsity of Mr. Cook’s claim that an anonymity order had been issued by the LQC (when it had not) was revealed, the importance of judicial review had to be that it would deal with the legality of instructions and decisions issued by qualified Legally Chairs, for which there was no legal precedent. Unfortunately, that fell by the wayside when the truth emerged.
Nonetheless, it is most certainly an important judgment for open justice in the context of wrongdoing in any professional capacity, and not just by police officers. It is also important because the judge, exceptionally, allowed the documents disclosed during the judicial review to be used by the Gazette to write its articles on the disciplinary proceedings.
And perhaps most telling of all, in terms of what she thought of Mr Cooke’s behavior, the judge ordered Mr Cooke to pay the Gazette’s legal costs on an indemnity basis, which is unprecedented in litigation involving police officers.
This is a case that very much hinges on its own unique and unusual facts. However, the ruling remains a very significant victory for free speech and it can certainly be used to argue that misconduct proceedings in almost any profession should not be subject to anonymity orders and waivers. to the principle of open justice.
Footnote: the Basingstoke Gazette was represented by the Jaffa Law team: Sam Brookman, Eloise Spensley. Lindsey Connett and Tony Jaffa.