Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin) 15 January 2016, Nicol J

The High Court quashed a decision of the Solicitors Disciplinary Tribunal ('SDT') to give anonymity to a solicitor who had been found guilty of one of seven offences with which he was charged. The Solicitors Regulation Authority ('SRA') challenged the anonymity decision. Mr Justice Nicol's judgment is a comprehensive discussion of the principles of open justice in disciplinary matters.

In 2014 and 2015 the SDT heard proceedings brought by the SRA against three solicitors, including Mr Spector ('Mr S'). In its public decision, the SDT indicated that its written findings, which were to follow, would anonymise Mr S's identity. The SDT's Judgment Publication Policy ('the Policy') states that where no allegations are found proved, the SDT will consider an application that the Judgment on the SDT website be anonymised. The SDT imposed no sanction and did not require Mr S to pay any of the SRA's costs. In line with an earlier decision of the SDT (SRA v Grindrod No. 11030-2012 14 November 2013) the SDT granted Mr S's application that his name not be used and he duly remained anonymous in the SDT's written decision. The 'spirit' of the SDT's decision on anonymity was stated as being to protect Mr S so that 'he would not be tainted with a record of a Tribunal appearance.' The SRA appealed.

Allowing the appeal against the order, Nicol J held that the SDT erred in law, that its decision was contrary to principle and that the decision could not rationally be made on the facts of the case. His starting point was that open justice is a fundamental principle of the common law (Scott v Scott [1913] AC 417), comprising (unless abrogated/varied by statute or otherwise in the interests of the administration of justice) the public's freedom to attend court hearings, the freedom to report proceedings (A-G v Leveller Magazine Ltd[1979] AC 440) and the freedom to identify persons involved (Re Guardian News and Media [2010] 2 AC 697). He explicitly drew attention to the High Court's decision in Yassin v GMC [2015] EWHC 2955 in which Cranston J noted that'there is a general interest in the public being able to know the identities of those who have been subject to disciplinary proceedings'.

Nicol J held that in the present case, full openness was required unless an exception was necessary in the interests of the administration of justice. He noted that the hearing itself had been open, that Mr S's name was published on the SDT's daily cause list, and that his name was used during the hearings. It was irrelevant whether any member of the public had actually attended. Nicol J noted there had been no restriction on reporting the proceedings and that any report of the SDT would lose much force if it were to be neutered by anonymity.

Moreover, citing Re S (A Child) [2005] 1 AC 593 he noted that there may be a public interest in learning about an acquittal as well as a conviction. He also concluded that, to the extent that the Policy led the SDT to have regard to theoutcome of the proceedings, the Policy itself was misconceived, since it seemed to be based on the premise that it is 'discreditable' to have been acquitted by the SDT of charges. Conversely, in Nicol J's view, Mr S's professional reputation had been vindicated and any argument that the bringing of charges had imputed a 'taint' on Mr S's reputation was not sufficient justification to depart from open justice. Beyond this, he noted that the SDT's order put the SRA in 'a wholly invidious position', effectively preventing it from performing its statutory duty of transparency.

In addition to the common law arguments, Nicol J determined that no competing ECHR rights were in play. Even if, as a public authority, the SRA did not enjoy freedom of expression under Article 10, the public had a right to receive information about S unless Article 10(2) restrictions on freedom of expression could be justified (which he did not consider to be the case).

The judgment is a ringing endorsement of the requirement of open justice in disciplinary proceedings. While there will inevitably be occasions where statute, rules of practice or common law and ECHR considerations mean that anonymity orders can and should be made, the bar is generally high. Unless there is any 'secret to be preserved', an order should not be made.