Scottish Human Rights Law Group

The following article was published in the  Civil Practice Bulletin (Issue 101 – October 2011), and is reproduced with the kind permission of the publisher, and of the author, SHRLG contributing editor Gordon Junor.

Introduction

As the extent to which limitation defences under s.17(2)(b) and s.19A of the Prescription and Limitation (Scotland) Act 1973 (as amended) may have become more limited and, in consequence, abuse claims are allowed to proceed to proof (see CG and MW v Glasgow City Council, 2010 CSOH 69/70 and Rep.B. 96) the importance of being able to recover any relative documentation is only increased.

Following on from that and from what remains of subsisting general guidance given from the then Lords in these respects from Somerville v Scottish Ministers, 2008 S.C. (HL) 45, issues arising, not least from the implications of arts 6, 8 and 10 of the European Convention on Human Rights and the Human Rights Act 1998, have to be dealt with. These have now been discussed and disposed of within the (anonymised) decision of Lord Stewart in LAM v A Scottish Local Authority, 2011 CSOH 113.

So far as relevant for the following generalised review, this action concerns a claim for damages for alleged culpable failure of the part of a Social Work Department to protect the pursuer from child sex abuse. In 2005 the Scottish Executive published a report of its investigation into the case. As Lord Stewart recognised, it “does not identify the individual victims: but it does give the date of each recorded concern and the age of the victim at the time” and related information is “still readily available on the internet”.

Proceedings to date

Motion for the pursuer was granted entitling the pursuer to excerpts of entries insofar as “showing or tending to show the nature and extent of the abuse suffered by the pursuer and her sisters before they came to live [in Scotland] in 1995” and “once they came to live [in Scotland] in 1995 and whilst under the care of the Social Work Department of the defenders”. The relevance of the calls in the specification to the issues raised on record, in particular the relevance of the reference to the abuse suffered by the sisters of the pursuer, was not challenged. Recovery per se was not opposed by the defenders who adopted the grounds of opposition stated by the Scottish Ministers.

Recovery was opposed by the Scottish Ministers, as havers, with the “object to ensure that the Convention rights of third parties so far as engaged are protected, in relation to, in the case of alleged abusers, the presumption of innocence and protection of reputation, and, in the case of claimed victims, in relation to sensitive personal information”. The disclosure authorised was subject to the qualification “save insofar as disclosure of those entries … would contravene the Convention rights of any person”.

As envisaged, a confidential envelope was lodged and a motion to open up the envelope was enrolled on behalf of the pursuer. That motion was granted by Lord Stewart “for the purpose simply of familiarising myself with the contents”. As a result his “provisional views” about disclosure (and intimation and the appropriate extent of redaction) were that “the whole contents are relevant and that disclosure of the whole contents is in principle necessary for the fair resolution of the pursuer’s claim (Science Research Council v Nassé [1980] A.C. 1028)”. Whether there should be intimation was not agreed and left for the court.

Convention rights

Scottish Ministers were said to have given consideration to the questions: (1) whether the art.6 ECHR rights of the alleged perpetrators were engaged; and (2) whether the art.8 ECHR rights of both alleged perpetrators and claimed victims were engaged. The view had been taken that art.6 rights were not engaged on the basis that “officials may publish information about criminal investigations and criminal charges provided that official statements do not encourage a belief in guilt or prejudge the facts” and “art.6 protection flies off once the decision not to prosecute has been made”. It was considered that disclosure of sensitive personal information can constitute an interference with the right to respect for private life contrary to art.8(1) ECHR (MS v Sweden (1999) 28 E.H.R.R. 313) and that a failure by the state to protect against reputational damage can be a violation of art.8(1) ECHR (Pfeifer v Austria (2009) 48 E.H.R.R. 8). The right to non-interference was said to be “not absolute and may be justified where and to the extent that it is necessary for legitimate aims and proportionate in terms of art.8(2) ECHR”. These propositions—and that the courts as public authorities had duty to comply with Convention obligations—were regarded as “not contentious”.

Counsel for the Scottish Ministers submitted that “intimation should be made to potentially affected parties to give those parties an opportunity to make representations about redaction and disclosure” and “[n]o person should have access to the documents prior to decisions on redaction and disclosure”. Lord Stewart recognised the “difficulty” and, in passing, that “the system can be neglectful of third party privacy rights, for example where unanonymised patient records are put in evidence in connection with lifting-injury claims by nurses and care workers”.

In support of the propositions that art.8 ECHR compliance would as a rule require third parties to have an opportunity to make representations before disclosure, reference was made to C v Chief Constable of Greater Manchester, 2011 EWCA Civ 175, and that any disclosure must be proportionate, reference was made to Clift v Slough BC, 2010 EWCA Civ 1171. It was noted there that “[a] plea of ‘administrative difficulty’ on the part of the public authority is not generally persuasive”.

Suggestion was that the court might proceed “by way of analogy with the public interest immunity procedure” (see “Somerville—Dead, but [Public Interest Immunity-Wise] Not Yet Buried”, Civ. P.B. 89) “and the procedure where professional legal privilege is invoked”. It was noted that:

“[I]t is wrong to allow parties’ advocates or ‘special advocates’ privileged access to unredacted material under conditions of confidentiality; and it is for the Court to examine the material and, balancing competing interests, to make its own assessment of the extent to which disclosure without redaction is proper” (applying Somerville v Scottish Ministers, 2008 S.C. (HL) 45 and Narden Services Ltd v Inverness Retail and Business Park Ltd, 2008 S.C. 335).

Approach of the Court

Lord Stewart accepted “that the art.8 rights of the alleged perpetrators and the claimed victims were potentially engaged” but maintained the view “that it is necessary in principle to make disclosure for a legitimate aim, namely for the fair determination of the pursuer’s claim for damages”. He further accepted “that disclosure must not be disproportionate”, which would depend “on the use to be made of the material and other measures that may be available to protect art.8 rights”, such as anonymisation, restricted disclosure, hearing witnesses behind closed doors and reporting restrictions. Somerville and Narden Services were not regarded as providing specific guidance “beyond the propositions (1) that relevant material must be disclosed to the party recovering unless, and except to the extent that, non-disclosure can be justified; and (2) that it is for the judge to decide whether and to what extent there should be non-disclosure by reading the documents and balancing the competing interests”. His “perception” was that:

“[T]he real issue in the present case is about publication beyond the doors of the Court rather than about making the information available to parties within the court room. On this understanding I would not consider it satisfactory for parties to debate, in effect, restrictions on publication without having sight of the information. That would be unreal and unequal—unequal because the havers (if they wish to participate) and the defenders already know the contents of Volumes 1 and 2 of the Findings in Fact: but the pursuer, who has the leading interest in the material, is in ignorance.”

In so far as to whether third parties must have an opportunity to make representations before disclosure of any kind, the case of C was said to support “the proposition that, as a rule, individuals have to be given an opportunity to make representations before damaging, confidential information about them, affecting more than their reputation, is disclosed by public authorities” although in MS the European Court “did not accept the submission that the applicant should have been given an opportunity to make representations before her medical records were disclosed to the social insurance service for the purpose of assessing the applicant’s claim for an industrial injury pension”.

He noted that in Mosely it had been decided that the state does not have a positive obligation to put in place a pre-notification requirement for the publication by non-state actors of information that interferes with individuals’ private lives (Mosley v United Kingdom 48009/08, 2011 E.C.H.R. 774). He took Clift to be “authority for the proposition that the requirements of proportionality as regards dissemination by public authorities may be satisfied by applying a ‘need to know’ test: some people need to know all the information including the identity of the data subject; anonymised information can meet other needs; and most people don’t need to know anything at all”.

He identified that:

“Courts have a means of complying with the negative obligation imposed by art.8(1) ECHR by anonymising judgments—to discourage if not prevent the identification of individuals whose privacy rights are at risk—and of complying with the positive obligation by restricting reporting. A general warrant for restricting reporting now lies in art.8 itself, as incorporated into United Kingdom law by the Human Rights Act 1998 (In re Guardian News and Media Ltd (SC (E)) [2010] 2 AC 697 at ss.26–32 per Lord Rodger of Earlsferry JSC giving the judgment of the Supreme Court).”

He recognised that “[m]erely anonymising judgments gives uncertain protection for privacy rights in Scotland” given the understood views of the Scottish Court Service in relation to disclosure of the names of anonymised parties to journalists on request except where children are involved and unless there is in place a specific anonymity order in terms of, for example, the Contempt of Court Act 1981 ss.4 or 11”. He noted that s.4(2) of the 1981 Act empowered the court to order postponement of reporting where there is a risk to the administration of justice; and s.11 authorised the court to prohibit publication of names and other information withheld from the public during proceedings in court but he thought “[n]either power … apt for the present predicament”.

He commented that “the life-long anonymity provisions for victims of alleged sexual offences contained in the Sexual Offences (Amendment) Act 1992, as amended, do not apply to Scotland although publication in contravention of various reporting restrictions as they apply elsewhere in the United Kingdom may be prosecuted as an offence in Scotland “ and that it seemed “unlikely that the power to prohibit publication given by Children and Young Persons (Scotland) Act 1937 s.46 can be stretched to fit the situation in this case where the claimed victims were children at the time of the alleged abuse and are now adults”.

Lord Stewart had yet to hear “from counsel whether there is a general statutory power to make prohibitory orders equivalent to the provision for England and Wales contained in the Senior Courts Act 1981 s.37; and, if not, whether the Court of Session has an inherent power at common law to make such orders against parties not involved in the proceedings. It could be argued—I have not heard submissions on the point—that the Court of Session Act 1988 s. 47 (2) gives the Court power to make orders prohibiting publication ad interim for art.8 ECHR purposes.”

The Guardian News and Media decision was noted to have given precedence to the art.10 ECHR rights of the press over the art.8 ECHR rights of individuals; although there were no submissions on this dimension he thought himself “bound to take art.10 ECHR into account in making the decisions that I have been asked to make”.

Regard also had to be had to “the art.8 privacy rights of third parties not mentioned by the havers and not represented by the defenders, such as foster parents. Applying the test suggested in C on the question “is it obvious that nothing the third parties might say could rationally or sensibly influence my mind against disclosure to the pursuer?” he concluded that:

“[N]othing could influence my mind against disclosure in principle. This is because, first, I take the view that that the pursuer has ‘a need to know’ and that in principle the documents are relevant and have to be disclosed so that there can be a fair trial of the issues and because, secondly, the pursuer already knows or has the means of knowing at least the outlines of all the concerns … as well as the identities of the alleged perpetrators and the claimed victims.”

In his view there was “no need for pre-notification”.

In relation to disclosure there were thought to be two stages involving “disclosure to the pursuer” and “disclosure of the proceedings to the world at large” for which a number of factors had “to be weighed in the balance at each stage”. At the first stage there was no dispute about concealing the identities of the alleged non-family perpetrators on the view that the art.8 ECHR rights of the non-family alleged perpetrators would be appropriately protected by anonymisation; alleged family perpetrators could also be anonymised “giving proportionate protection to those individuals without in any way disadvantaging the pursuer”; the names of foster-carers, teachers, medical practitioners, etc., could also be anonymised “for their own protection and to prevent identification of alleged perpetrators and claimed victims”. As noted “[p]art of the purpose of these redactions is to protect art.8 privacy rights in the event of inadvertent disclosure of the documents or their contents to persons who do not have a need to know”.

It was thus decided that the documents in question “be disclosed to the pursuer on the basis that, as is in any event implied, disclosure is strictly for the purposes of her action” with the result that “disclosure is restricted to the pursuer, her legal advisers, expert witnesses instructed in connection with the forthcoming proof, and witnesses to fact who may require to be precognosced in relation to the contents of the documents for the proof”. Sharing of the redacted documents with the defenders and their advisers was also authorised “in the event that a question about the redacted documents arises between parties before the documents are lodged as productions” with proviso that “[i]f the pursuer needs to disclose to other persons or needs to know the identity of anonymised individuals she can come back to court for relaxations”.

For the pursuer concerns were expressed on possible prospects that notification, at any time, to the pursuer’s family members “given that they still reside in the community where the alleged abuse took place and may be subject to embarrassment, harassment or worse” and that they may be witnesses, and that the pursuer was vulnerable and liable to pressure. As Lord Stewart saw that dimension, “[w]ithout necessarily accepting that all these concerns are relevant, they can be debated further when it comes to making decisions about disclosure of the proceedings”.

As he commented “[a] large part of the difficulty about disclosure of these proceedings arises from the fact that public authorities including the Scottish Ministers themselves have created conditions in which it is very difficult to prevent identification of the individuals involved”.

As he concluded:

“Without prejudging matters, including the matter of competency, there could be an argument for some reporting restrictions in this case. I say this on the basis of the privacy rights that are at stake and on the basis that the public interest aspect has already been substantially satisfied by the publicity given to the police operation in 2003, by the reporting of the termination of criminal proceedings in 2004 and by the coverage given to the publication of the Report in 2005.”

But, as he re-stated “[o]nly a strong case can prevail over the art.10 ECHR rights of the press and the utilitarian and constitutional arguments in favour of public justice” (in re S (A Child) (Identification: Restrictions on Publication) 2005 1 AC 593). Essentially “[t]here must be a public interest in knowing, at the very least, whether or not the defenders are liable in damages to the pursuer, and in general whether local authorities are liable in damages to victims for failures of their child protection services”.

What Lord Stewart finally decided was to correct the prior interlocutor by deleting the reference to intimation and to appoint the havers to redact the documents recovered (as discussed) with the documents once redacted to be lodged and disclosed to the pursuer. Discussions were to follow on “reporting restrictions and the question whether the third parties should be offered the opportunity to make representations about further redaction, anonymisation and reporting restrictions before the proof (scheduled for October) takes place”.

(He anonymised his Opinion ex proprio motu having regard to the advice given in Practice Note No.2 of 2007.)

Conclusions

Even assuming that limitation restrictions upon such claims can be overcome, prospective difficulties in the recovery of relative documents for any proof can be anticipated but, hopefully, dealt with in a manner which will not defeat the interests of justice for victims. The disposal of this action, to date, may be viewed as seeking to achieve that objective but may also be said to be a timely reminder that both pursuer and defenders as the parties, and others who may be concerned or affected, have human rights in such civil litigation contexts.