Readers will be familiar with the prosecution and conviction of the disgraced ex-MP Charlie Elphicke. Back in September, he was convicted of three sexual assaults on two younger women, and is now serving a two-year prison sentence.
Following the sentencing hearing, The Times, the Mail, and the Guardian, applied for the disclosure of character references which the judge had read when sentencing him.
34 character references had been submitted to the court, and naturally, journalists wanted to know what had been said on his behalf, and by whom. It was Elphicke’s case that the references should not be disclosed at all, or at the very least, the individual referees should have an opportunity to make submissions or redactions.
Matters were complicated by the fact that eight of the referees voluntarily published their references (some with conditions attached) and of the remaining 26, there were a range of views.
The arguments came down to this: the publishers contended that the references were not confidential documents and that the default position was that there should be disclosure, with a fact-specific balancing exercise being conducted to determine whether the whole or any part of a refence should be kept confidential.
The defendant, on the other hand, argued that the references were confidential to the court, and were similar to pre-sentence reports, medical reports, and victim impact statements. He also put forward some detailed arguments about Articles 8 and 10 of the European Convention of Human Rights, the Data Protection Act, and privacy.
The judge, Mrs. Justice Whipple, was very clear in deciding that character references are not provided in confidence to the court, and so are documents which should be available to the media. She added that if any of the referees had been told that their references would remain confidential, they had been misled; and if any referee had expected confidentiality, that was a misapprehension.
Character references are evidence, and like any other evidence used in a trial, the starting point is that they are documents which generally should be made available on request.
Open justice, she said, was ultimately a safeguard for individual rights, not a threat to them. In saying all of this, the judge was clear that she was not creating any new law or breaking any existing convention or practice. Rather, she was applying well-established principles which confirmed that criminal justice has to be open.
However, as the applicant publishers recognised and argued, this was only the first stage of the process. It was then necessary to conduct “a fact-sensitive balancing exercise” in relation to each reference before determining whether, and if so in what form and to what extent, it should be disclosed.
The judge agreed, and held that all the character references should be disclosed as the value of their disclosure lay in the promotion of open justice, but that all sensitive personal information would be redacted.
And this is where it got interesting. Mrs. Justice Whipple said that there was a sliding scale to be applied. At one end of the scale are elected officials and public officials who represent their communities, with ordinary private individuals (such as Elphicke’s former constituents) are at the other end. Others fall somewhere in between. As is frequently the case, it all depends on the facts as to how much information about those others is to be released.
This interesting decision will be seen as a welcome boost to open justice. Character references are often submitted in advance of sentencing hearings, and it is now beyond doubt that these documents should be disclosed by the courts if they are requested to do so, especially if the referee is a public official.
It’s true that the number of specialist court reporters has declined in recent years. However, those who continue to sit on the press benches day in and day out, can look to a new source of informative and interesting copy.
And don’t forget, just as with all other evidence, reports based on these character references will have the protection of absolute privilege.