The regime for disclosure of historic information about convictions/cautions has been subject to a number of successful judicial challenges in recent years.

The Supreme Court has recognised that, despite taking place in public, convictions can recede to become an aspect of an individual’s private life with the passage of time.

Public access to judgments

Most convictions do not result in publicly accessible judgments forming part of the catalogue of court judgments available through legal search engines. However, a significant proportion of judgments in civil cases litigated in High Court or Tribunals result in judgments which identify the parties being added to legal databases.

If the litigant is unfortunate enough to be involved in a case which articulates or clarifies important points of law, their name may become a byword for the development. The contents of such judgments may be no less damaging to an individual’s reputation than details of a historic criminal matter. Any internet user may readily access the factual details of the case. The material contained in a judgment may have been surpassed by events.

Chakrabarty v Ipswich Hospitals NHS Trust

By way of example, anyone reading the High Court judgment in the contractual proceedings between Dr Sisiresh Chakrabarty and Ipswich Hospitals NHS Trust[1] would be forgiven for concluding that there was compelling and reliable evidence of a lack of professional competence on Dr Chakrabarty’s part, in the form of a GMC Performance Assessment report.

Surely, the reader would think, such a report reflected a fair and reliable assessment of Dr Chakrabarty through a respected and established assessment process. The High Court hearing took place before the GMC’s case was tested in the Medical Practitioners Tribunal (MPT). The High Court was determining the contractual rights of the parties. It was not required to, and did not, decide whether the findings of the Performance Assessment were accurate.

What those reading the High Court judgment will not appreciate is that the Performance Assessment report was subject to detailed consideration before the MPT and that panel found none of the allegations arising from it proved.

That information is not available in the public domain. For understandable and commendable reasons, the GMC/MPT do not publish a database of Tribunal determinations where allegations are not upheld.

However, the High Court judgment continues to be publicly available and easily accessible through internet search engines and presents quite a different impression. Thus the combined effect of the MPT’s publication policy and the ready availability of High Court judgments is that only one side of the Performance Assessment story is readily accessible.

Whilst the High Court judgment continues to be an important document from the perspective of a niche group of lawyers, setting out as it does important legal principles that apply generally in the context of the application of disciplinary procedures to doctors and dentists employed in the NHS, those principles can be adequately described without reliance on identifying the litigant.

The judgment can also be readily accessed by lawyers using other search terms within databases of judgments.

Public access and right to private life

Whilst public access to the court, and free and contemporaneous reporting of proceedings and judgment, can be reconciled with the principle of open justice, the arguments in favour of routine ongoing publication to the world at large in an identifiable form are weaker. The fact that that information is rendered ubiquitous through powerful internet search engines makes its impact on the litigant’s right to private and family life all the more significant.

In a 2013 speech on the topic of data protection in the judiciary, the European Data Protection Supervisor, Giovanni Buttarelli, made a number of interesting points relevant to the issue of ongoing and freely accessible court judgments. In particular he noted:

‘…the decisions handed down by every judicial authority must be transparent and readily accessible, and also be published on the website of the judicial authority itself. However, some common sense should also be applied, given that such decisions are often also published in online legal journals;

Consequently, the parties to the proceedings (and third parties) should be able to access a transparent mechanism in order to prevent certain sensitive data relating to minors, family issues, violence, etc. from being exposed not by the original decision, but rather by any copies made accessible….

broadly speaking, sentences and other decisions published on the Internet should not be revealed by search engines external to the website, but instead remain searchable only through internal search engines.’[2]

In an important statement of principle he observed ‘…criminal, civil and administrative courts are not ‘free from areas’ where the respect of individual rights such as privacy, personal identity and dignity can be put aside.’

Conclusion: Open justice v privacy rights

Decisions in litigation are snapshots in time so far as the factual circumstances are concerned.

A real question must arise as to whether the ongoing publication of judgments in a manner that continues to identify litigants long after the litigation has been concluded, is consistent with the right to privacy under Article 8 of the European Convention on Human Rights.

Is there not a powerful analogy to be drawn with the acceptance that convictions can recede to form an aspect of a person’s private life?

The GDPR comes into effect on 25 May 2018. Unlike its predecessor it specifically states that it applies to the judiciary. Given Mr Buttarelli’s comments this is an area where we are likely to see a push for more nuanced and sophisticated steps to balance the principle of open justice with privacy rights. The ongoing indexing of judgments against the names of litigants by internet search engines is directly at odds with Mr Buttarelli’s observation above. It can only be a matter of time before the courts are called upon to provide clearer guidance on where the line should be drawn.