R (on the application of Newsquest Media Group Ltd) v Legally Qualified Chair of the Police Misconduct Tribunal

Newsquest (C) is the publisher of the Basingstoke Gazette. The newspaper sought to report statutory police disciplinary proceedings which had taken place in April 2021, and which had led to the dismissal for gross misconduct of a local police officer, Terry Cooke, from Hampshire Police. Those disciplinary proceedings had been chaired by the Legally Qualified Chair (D).

The Police Misconduct Tribunal had concluded that Mr Cooke had systematically abused his role as a police officer to use information obtained during the course of his duties for his own private purposes, namely, to pursue inappropriate and prohibited relationships with vulnerable women.

The Basingstoke Gazette had sought to report on the Tribunal’s decisions. Mr Cooke had threatened to bring a claim for misuse of private information against C if the Basingstoke Gazette published his name in connection with the disciplinary proceedings. This threatened claim was based on Mr Cooke’s assertion that D had made an anonymity direction in respect of Mr Cooke and had ordered that the hearing of the disciplinary proceedings take place in private.

Newsquest asked Mr Cooke to provide it with the details of the decisions made by D, the reasons for those decisions and the evidence and submissions on which they were based so that it could consider them. Mr Cooke refused to provide these.

Newsquest then wrote to D asking for the same information and asking D to convene a hearing so that it could challenge the decisions which D had purportedly made. D refused to take either of these steps.

Newsquest then brought judicial review proceedings against D with Mr Cooke, Hampshire Police and the Independent Office for Police Conduct (“IOPC”) as interested parties. C challenged (i) D’s refusal to provide the documentation sought and to convene a hearing to allow those decisions to be challenged, (ii) the anonymity direction made in favour of Mr Cooke on the ground that it was ultra vires and (iii) the anonymity direction and hearing in private direction on the basis that they were an unwarranted interference with the open justice principle and C’s Article 10 ECHR rights.

After the judicial review proceedings had been commenced, D provided disclosure of the decisions he had made, Mr Cooke’s applications and the way they had been addressed by D and Hampshire Police. These revealed that in fact D had not made any anonymity direction in respect of Mr Cooke.

No party filed an Acknowledgment of Service contesting the grant of permission for C to bring the judicial review proceedings. The IOPC contended in their Acknowledgment of Service that, inappropriately, they not been included in the process in which Mr Cooke’s applications to D had been determined and were therefore not able to make representations regarding the importance of transparency as part of public confidence in the police disciplinary system.

As the judicial review proceedings had been commenced on a false basis, C issued an application seeking the court’s permission to discontinue the claim but with an order that its costs be paid on an indemnity basis. C also sought the Court’s permission, pursuant to CPR r.31.14, to use the disclosed documents for the purpose of reporting on the judicial review proceedings and the police disciplinary proceedings. Mr Cooke opposed this application and made a cross-application for anonymity in the judicial review proceedings.

Should:
(i) C be granted permission pursuant to CPR r.31.14 to use specified documents which had been disclosed in the judicial review proceedings for the purpose of its journalism and reporting on the proceedings.
(ii) Mr Cooke be granted anonymity pursuant to CPR r.39.4 in the judicial review proceedings.
(iii) C be granted permission to discontinue the JR proceedings with its costs paid on an indemnity basis by Mr Cooke. Alternatively, should D pay a portion of any of C’s costs in conjunction with Mr Cooke.

Mr Cooke’s application for anonymity was refused. C’s application for permission to use documents pursuant to CPR r.31.14 and for its costs to be paid by Mr Cooke were granted.

1. Mr Cooke’s application for anonymity was refused for three primary reasons:

a. The Court rejected the submission that the proper forum for addressing his rights was a claim for misuse of private information in the Media and Communications List. Mr Cooke could advance all the evidence he wanted to in the judicial review proceedings and there was no material difference between the basis on which the Administrative Court had to assess the anonymity application and those on which would be used to assess the issue in a private law privacy claim. [42]

b. Mr Cooke’s Article 8 ECHR rights were not grounds for granting anonymity. The evidence relied on was insufficient and out of date. It was not causatively linked to the proposed reporting of the proceedings. In all the circumstances it was inadequate to override the strong presumption of open justice which applied equally to disciplinary proceedings of the statutorily regulated professions. Any report of the present proceedings would lose much of its force if neutered by anonymity – applying Yassin v General Medical Council [2015] EWHC 2955 (Admin) and SRA v Spector [2016] 4 WLR 16. Moreover, Mr Cooke did not have a reasonable expectation of privacy in respect of the serious acts of misconduct committed in the context of his professional activities. [44] – [45]

c. An anonymity order would serve no practical purpose. There was no restriction on reporting Mr Cooke’s anonymity in respect of the disciplinary proceedings and therefore no purpose in making such an order in the judicial review proceedings. [45(j)].

2. C’s application for permission to use disclosed documents for the purpose of its journalism was granted. It was appropriate to grant such use to allow the judicial review proceedings and police disciplinary proceedings to be reporting in their full and proper context. It was “in the interests of justice that decisions of the tribunal in this case be capable of being reported, together with the respective position of the parties in relation to them.” The absence of the involvement of the IOPC, the stance taken by Hampshire Police and the subsequent anonymization of the Tribunal’s Report and the IOPC’s Press Release absent an anonymity direction all justified media scrutiny and reporting on the case. Mr Cooke’s opposition to the application was grounded on the same basis as his anonymity application which for the same reasons was inadequate to prevent reporting. [47] – [53]

3. C’s application for payment of its costs of the claim in full and on the indemnity basis was granted. In this regard the Court concluded that:

a. When it was apparent that no anonymity direction had been made through disclosure, the rest of the claim became otiose, and C had achieved its purpose. [54]

b. While a costs order against an interested party in judicial review proceedings was unusual, it was justified in this case. Mr Cooke had asserted that he had the benefit of an anonymity direction and had relied on this in his solicitors’ correspondence. He had refused to provide the documents requested by C. C had corresponded appropriately with D and Mr Cooke prior to proceedings. While Mr Cooke said he was under a misapprehension as to the nature of the directions made by D, there was insufficient evidence as to how this misapprehension had arisen and indeed Mr Cooke had at no stage applied for an anonymity order in the disciplinary proceedings. [55]

c. Mr Cooke’s behaviour was in the circumstances unreasonable which took the case outside of the norm. An order for indemnity costs was therefore appropriate. [57]

d. It was not appropriate to limit C’s recoverable costs to 25% on the basis that the anonymity direction was one of only four decisions challenged. That approach ignored the issues at the heart of the case. It was artificial to allocate costs by reference simply to the number of decisions challenged [58].

e. While it was regrettable that D had not disclosed the relevant documents earlier, it was not appropriate for D as a neutral tribunal to descend into the ring, particularly where Mr Cooke was aware of the orders which had been applied for and which had been made. D had complied with his disclosure obligations and in the round had not behaved inappropriately or unreasonably and had not taken an active part in the proceedings. Accordingly, it was not appropriate to make a costs order against D.

This was an unusual case on its facts and a rare example of indemnity costs being awarded against an interested party to judicial review proceedings. However, there are two general points of principle of broader significance which emerge from the case.

First, it is an important restatement of the importance of open justice principles in the context of statutory disciplinary proceedings, applying for example to solicitors, barristers and the police. It reinforces the importance of the exceptionality of such orders. In particular it highlights the need for clear and cogent evidence and careful scrutiny of that evidence to depart from the presumption of open justice.

Second, the case demonstrates the importance of both the media and affected parties engaging responsibly and transparently at an early stage to understand the basis on which reporting restrictions have been made. A significant factor in C’s success in this case was the responsible and appropriate way it had sought access to the relevant information from Mr Cooke and D (on a not for publication basis) to understand the position and the evidence in support. It was the refusal to provide this information which had led to the judicial review proceedings and contributed to the subsequent orders made in C’s favour.