An important decision from the High Court concerning open justice was made public last week. And bearing in mind the widespread public concern about police misconduct, it could not be more topical.

First, a little background. In April last year, PC Terry Cooke was dismissed from Hampshire Police for gross misconduct, having pursued inappropriate and prohibited relationships with vulnerable women who he came into contact with through his role as a police officer.

Mr Cooke’s behaviour was described by the Legally Qualified Chair  (“LQC”) of the Police Misconduct Panel as being of the “utmost severity” and “intentional, deliberate, targeted and planned”.

However, as part of the misconduct proceedings, Mr Cooke applied for the hearing to be held in private – a request that was allowed by the LQC, albeit without hearing representations from the Independent Office for Police Conduct, whose role it is to represent the wider public interest in police misconduct hearings taking place in public.

Upon Newsquest’s Basingstoke Gazette becoming aware of, and making enquiries about, the case, then editor, Katie French, was told by Mr. Cooke (through his lawyers) that an “anonymity order” was in place and therefore, Mr Cooke could not be named or identified in relation to the misconduct proceedings.

The publisher was dissatisfied with the situation, and despite attempting (and failing) to gain a better understanding as to why the “anonymity order” was made, the only option left to Newsquest was to issue proceedings for a Judicial Review, to challenge the decision of the LQC to make the “anonymity order”.  Mr Cooke was an interested party in those proceedings.

This is an unusual case, because what became apparent when the LQC disclosed his written ruling in relation to the misconduct proceedings, was that no “anonymity order” had actually been made.  Mr Cooke had applied for the hearing itself to be held in private because of concerns for his personal safety, which had been granted, but no application for anonymity was made in respect of Mr Cooke, and therefore no “anonymity order” had been granted.

As you can imagine, when the truth finally emerged, the editor and publisher (as well as their lawyers!) were astonished!

So what happened next?

Baffled by this unexpected turn of events, the publisher applied to the court for:

1. permission to withdraw the application for Judicial Review, on the basis that the whole reason for it had fallen away in the absence of an “anonymity order”;
2. permission to use the documents disclosed during the course of the proceedings, in order to tell the story; and
3. an order that its costs of bringing the proceedings be paid by Mr Cooke.

That application was heard by Mrs. Justice Ellenbogen at the end of January, with Judgment being handed down a few days later.  Newsquest was successful on every point of its application, with Mrs. Justice Ellenbogen stating that Mr Cooke had behaved unreasonably in stating (through his lawyers) that there had been an “anonymity order”, and that “these proceedings have come about by reason of that unreasonable behaviour”.

The above is all very interesting, but the key decision from Mrs. Justice Ellenbogen came in relation to a last minute application from Mr Cooke to be granted anonymity in relation to what remained of the Judicial Review proceedings.

So, on what basis was Mr Cooke’s application for anonymity made?

His representatives argued that he had a reasonable expectation of privacy in relation to his identity under Article 8 of the European Convention of Human Rights, which outweighed the media’s Article 10 right to freedom of expression.  Mr Cooke’s lawyers argued that the Article 8 right to privacy should prevail due to concerns surrounding

Mr Cooke’s personal safety following a campaign against him by a hostile member of the community, and concerns regarding his mental health.  They also submitted that as an ordinary police officer with a low rank and no “particular public reputation”, who has not been the subject of criminal proceedings, the story could be told “perfectly well” without naming him.

However, Jonathan Scherbel-Ball, the barrister representing Newsquest throughout this process, argued in the strongest terms that Mr Cooke had failed to present “clear and cogent” evidence to support his application, and that any derogation from the principle of open justice should be exceptional.

Mr Scherbel-Ball also argued that the circumstances in which there is a reasonable expectation of privacy in cases of serious professional wrongdoing are very limited, citing several cases where serious (although not criminal) misconduct did not attract the protection of Article 8.

Mr Scherbel-Ball argued that Mr Cooke was a highly experienced police officer who has received a commendation from the chief constable for services to the community – therefore, an inaccurate public image of Mr Cooke had been created which needed to be corrected.

It was also argued on behalf of Newsquest that the judicial review proceedings had been brought about by Mr Cooke’s “false representations and refusal to provide relevant material”.

After noting that Mr Cooke had not provided sufficient evidence to substantiate his assertion regarding threats to his safety and mental health, Mr Scherbel-Ball concluded with the submission that Mr Cooke could not rely on Article 8 to “prevent entirely foreseeable distress which occurs when people commit acts of serious wrongdoing and thereby come to the public’s attention”.

Mrs Justice Ellenbogen agreed completely, and she ruled that Mr Cooke’s application for anonymity in respect of the Judicial Review proceedings should not be granted.

In her judgment, Mrs Justice Ellenbogen summarised the case law in support of the open justice principle, and concluded that nothing presented in Mr Cooke’s arguments was sufficient to tilt the balance in favour of privacy.

Further, and perhaps most importantly, Mrs Justice Ellenbogen noted that Mr Cooke does not have a reasonable expectation of privacy “in relation to acts of serious misconduct committed in the context of his professional activities”, and that his identity was an integral part of the story.

So, what does this case mean for journalism?

Before the falsity of Mr Cook’s claim that an anonymity order had been made by the LQC (when it had not) came to light, the importance of the Judicial Review was expected to be that it would address the legality of directions and rulings made by Legally Qualified Chairs, for which there was no legal precedent.  Disappointingly, this fell by the wayside when the truth emerged.

Nevertheless, this is most definitely an important judgment for open justice in the context of wrongdoing in any professional capacity, not just by police officers.  It is also important because the judge, unusually, allowed documents disclosed in the course of the Judicial Review to be used by the Gazette to write its stories about the disciplinary proceedings.

And perhaps most tellingly of all, in terms of what she thought of Mr. Cooke’s behaviour, the Judge ordered Mr. Cooke to pay the Gazette’s legal costs on an indemnity basis, something which is unheard of in legal disputes involving police officers.

This is a case which very much turns on its own unique and unusual facts.  However, the decision is still a very important win for freedom of expression and it can certainly be used to argue that misconduct proceedings in almost any profession should not be subject to anonymity orders and derogations from the principle of open justice.

Footnote: the Basingstoke Gazette was represented by the team at Jaffa Law: Sam Brookman, Eloise Spensley. Lindsey Connett, and Tony Jaffa.