Chris Milsom has secured an important win for the Claimants and the principle of open justice in the EAT appeal of A and B v X and Y (Times Newspapers Ltd Intervening).
The Claimants advanced allegations of sexual harassment against “a public figure with a well-known family name” which crossed the criminal threshold meaning that they were entitled to automatic anonymization by way of s.1 Sexual Offences Amendment Act 1992. The alleged individual perpetrator and employer, who were both Respondents, sought parity in terms of anonymity which the ET granted.
Overturning the ET’s decision, the EAT held that there had been insufficient weight afforded to the paramount principle of open justice. Open justice is not a corollary to Article 10 but the bedrock of the legal system itself. It requires more than proceedings being conducted in open court: the accountability of a public trial with media commentary should not lightly be sacrificed. Similarly, the ET was wrong to seek parity between accuser and accused where Parliament had consciously decided to treat them differently.
This is the first decision of the EAT to consider the role of privacy orders in the context of sexual harassment at the trial stage. Interestingly, the Claimants’ positions were supported by the Times as intervener.
A further hearing is scheduled on 9 May 2019 to consider whether the anonymity of “X” and “Y” should be lifted following the resolution of proceedings.