Robb Simms-Davies v Southwark Crown Court

This is the judgment of the Court to which we have both contributed.

This claim for judicial review concerns a deferred prosecution agreement (“DPA”) entered into by the Serious Fraud Office (“SFO)” and a company pursuant to the provisions of section 45 and Schedule 17 to the Crime and Courts Act 2013 (“the Act”). The DPA provided that the SFO would not prosecute the company for five offences of bribery in connection with certain contracts provided that the company complied with the terms of the DPA. A second DPA was also entered into with a second company relating to another offence of failing to prevent bribery.

The DPAs were the subject of negotiations between the companies and the SFO. After the commencement of negotiations, the SFO applied for declarations from the Crown Court at Southwark that entering into the DPAs was likely to be in the interests of justice and that the proposed terms of the DPAs were fair, reasonable and proportionate (see paragraph 7 of Schedule 17 to the Act). Those declarations were granted.

The SFO and the companies then finalised the terms of the DPAs and the SFO applied to the Crown Court at Southwark for approval of the DPAs pursuant to paragraph 8 of Schedule 17 to the Act. On 19 July 2019, May J. as she then was (“the judge”), sitting in the Crown Court at Southwark, held an oral hearing to consider that application. She approved the finalised DPAs and declared that they were in the interests of justice and their terms were fair, reasonable and proportionate. The judge handed down a judgment in which she gave her reasons for making the declarations. That judgment dealt with the offences committed by the companies. It also dealt with the role of two individual directors of one company who were being prosecuted (with others) for criminal offences for their alleged roles in the bribery offences. Given the existence of those criminal proceedings, the judge did two things. First, the judgment handed down did not refer to those two individuals by name but referred to them respectively as “Director 1” and “Director 2” and did not give the company’s name but referred to it as “AB Ltd”. Secondly, the judge made an order prohibiting the publication of certain material, including any report of the oral hearing of the application for a declaration approving the DPA and the judgment that she had handed down.

The individual directors were tried but were acquitted. They were, and remain, innocent of the criminal offences with which they were charged. Following the acquittals, HHJ Grieve KC, sitting in the Crown Court at Southwark, lifted the prohibition on the publication of, amongst other things, the judgment of the judge. Secondly, the judge handed down a version of the judgment in which she now named the company and the two individual directors. In practical terms, that meant that the actual names of the two individuals replaced the words “Director 1” and “Director 2” and the company was named rather than being referred to by the initials “AB”. The other company in the other DPA was also named instead of being referred to by initials.

The claimant is the person named as Director 1 in the judgment as originally handed down and is named as Robb Simms-Davies in the de-anonymised version of the judgment. May J. held a hearing, and gave a separate judgment which was handed down on 7 March 2024, setting out her reasons for handing down the version of the judgment in a de-anonymised form, that is, in a form which included the names of the individuals. The judge considered that the correct approach was to balance the principle of open justice in enabling a full understanding of how and why the court approved the DPA against the right of the claimant to respect for his private life pursuant to Article 8 of the Convention for the Protection of Human Freedoms and Fundamental Freedoms (“the Convention”). It was for the claimant to establish that it was necessary for the proper protection of his rights that his identity should continue to be withheld following his acquittal. The judge considered that the balance fell in favour of naming the individuals including the claimant in her judgment.

The claimant sought judicial review, seeking a quashing order, of the decision of the judge to publish the judgment in de-anonymised form. In summary, he submitted that the judge was wrong to approach the question on the basis that the principle of open justice applied and that the claimant had to establish that it was necessary for the proper protection of his rights that his identity should continue to be withheld. He submitted that he was not a party to any proceedings in the Crown Court. Those proceedings concerned negotiations, and an agreement, between the company and the SFO. He was not party to those negotiations, or the agreement. The court had not been provided with his name in open court. The judge was, therefore, wrong to approach the question on the basis that she did. Rather, she should have considered whether there was any necessity for the claimant’s identity to be disclosed in the judgment.

In summary, a DPA concerns economic or financial offences committed by a body corporate, a partnership or an unincorporated association (referred to in this judgment for convenience as a company) for which the only penalty, or sanction, is a financial one. A DPA provides that the body will not be prosecuted provided it complies with the terms of the DPA. The DPA does not apply to (nor does it protect from prosecution) any individual. A DPA is defined in paragraph 1 of Schedule 17 to the Act in the following terms:

“(1)

A deferred prosecution agreement (a “DPA”) is an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the “alleged offence”).

(2)

Under a DPA — (a) P agrees to comply with the requirements imposed on P by the agreement; (b) the prosecutor agrees that, upon approval of the DPA by the court (see paragraph 8), paragraph 2 is to apply in relation to the prosecution of P for the alleged offence.”

The designated prosecutors in this jurisdiction are the SFO and the Director of Public Prosecutions. There is a Code of Practice on Deferred Prosecution Agreements issued in accordance with paragraph 6 of Schedule 17 to the Act. That describes a DPA, sets out how the SFO may decide to negotiate such a DPA and the appropriate terms for such DPAs.

The court has a two-fold role to play. First, after commencement of negotiations, but before the terms of the DPA are agreed, paragraph 7 of Schedule 17 provides for a preliminary hearing at which that the prosecutor must apply to the Crown Court for a declaration that the entering into a DPA is likely to be in the interests of justice and the proposed terms are fair, reasonable and proportionate. A hearing at which such an application is considered must be held in private. If the court makes a declaration, then it must do so, and give its reasons, in private.

Secondly, paragraph 8 of Schedule 17 provides for the approval of the DPA by the Crown Court. That will be done at a hearing which may be in public, but may be in private. If the court approves of the DPA, it must make the appropriate declaration, and give its reasons, in open court. Paragraph 8 provides, so far as material, that:

“(1)

When a prosecutor and P have agreed the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—

(a)

the DPA is in the interests of justice, and

(b)

the terms of the DPA are fair, reasonable and proportionate.

(2)

But the prosecutor may not make an application under sub-paragraph (1) unless the court has made a declaration under paragraph 7(1) (declaration on preliminary hearing).

(3)

A DPA only comes into force when it is approved by the Crown Court making a declaration under sub-paragraph (1).

(4)

The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).

(5)

A hearing at which an application under this paragraph is determined may be held in private.

(6)

But if the court decides to approve the DPA and make a declaration under subparagraph (1) it must do so, and give its reasons, in open court.”

Thereafter, there are further obligations on the prosecutor to publish certain material. Paragraph 8(7) of Schedule 17 to the Act provides that:

“(7)

Upon approval of the DPA by the court, the prosecutor must publish—

(a)

the DPA,

(b)

the declaration of the court under paragraph 7 and the reasons for its decision to make the declaration,

(c)

in a case where the court initially declined to make a declaration under paragraph 7, the court's reason for that decision, and

(d)

the court's declaration under this paragraph and the reasons for its decision to make the declaration,

unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings)”

The DPA process has been considered and summarised in a number of judgments. The following description (cited by Dame Victoria Sharp P in Director of the Serious Fraud Office v Airbus SE) [2020] WL 00733359) is taken from the preliminary and final judgments given by Sir Brian Leveson P in his preliminary judgment in Serious Fraud v Standard Bank Plc:

"1.

The traditional approach to the resolution of alleged criminal conduct is for a prosecution authority to commence proceedings by summons or charge which then proceeds in court to trial and, if a conviction follows, to the imposition of a sentence determined by the court. By s. 45 and Schedule 17 of the Crime and Courts Act 2013 ("the 2013 Act"), a new mechanism of deferred prosecution agreement ("DPA") was introduced into the law whereby an agreement may be reached between a designated prosecutor and an organisation facing prosecution for certain economic or financial offences. The effect of such an agreement is that proceedings are instituted by preferring a bill of indictment, but then deferred on terms: these terms can include the payment of a financial penalty, compensation, payment to charity and disgorgement of profit along with implementation of a compliance programme, co-operation with the investigation and payment of costs. If, within the specified time, the terms of the agreement are met, proceedings are discontinued; a breach of the terms of the agreement can lead to the suspension being lifted and the prosecution pursued.

2.

By para. 7-8 of Schedule 17 to the 2013 Act, after negotiations have commenced between a prosecutor and relevant organisation, the prosecutor must apply to the court, in private, for a declaration that entering into a deferred prosecution agreement in the circumstances which obtain is likely to be in the interests of justice and that the proposed terms are "fair, reasonable and proportionate". Reasons must be given for the conclusion expressed by the court and in the event of such a declaration (either initially or following further negotiation and review), formal agreement can then be reached between the parties. In that event, a further hearing is necessary for the court to declare that the agreement is, in fact, in the interests of justice and that the terms (no longer proposed, but agreed) are fair, reasonable and proportionate.

3.

If a DPA is reached and finally approved, the relevant declaration, with reasons, must be pronounced in public. Thereafter, the prosecutor must also publish the agreement and the initial or provisional positive declaration (along with any earlier refusal to grant the declaration) in each case with the reasons provided. In that way, the entirety of the process, albeit then resolved, becomes open to public scrutiny. …"

and in his final judgment in that case, Sir Brian Leveson P said:

"2.

In contra-distinction to the United States, a critical feature of the statutory scheme in the UK is the requirement that the court examine the proposed agreement in detail, decide whether the statutory conditions are satisfied and, if appropriate, approve the DPA. … The court retains control of the ultimate outcome …

…..

4.

Thus, even having agreed that a DPA is likely to be in the interests of justice and that its proposed terms are fair, reasonable and proportionate, the court continues to retain control and can decline to conclude that it is, in fact, in the interests of justice or that its terms are fair, reasonable and proportionate. To that end, it remains open to continue the argument in private, again on the basis that, if a declaration under para. 8(1) is not forthcoming, a prosecution is not jeopardised. Once the court is minded to approve, however, the declaration, along with the reasons for it, must be provided in open court. The engagement of the parties with the court then becomes open to public scrutiny, consistent with the principles of open justice …."

DPAs are agreed between the prosecuting authority and the company involved. They concern the criminal liability of those companies. Almost inevitably, however, the crimes carried out will have involved actions on the part of individuals as well. Those individuals may well face being charged and prosecuted for their part in any alleged crimes. The courts have, therefore, had to consider carefully the position of any individuals when handing down their judgments giving their reasons for approving a DPA in order to determine whether to anonymise the identity of individuals. Courts have also had to consider the question of making orders postponing publication of the judgment handed down by the court, and the publication by the prosecution of the Statement of Facts and the DPA itself, pursuant to paragraph 12 of Schedule 17 to the Act, or making an order prohibiting the identification of individuals pursuant to section 4(2) of the Contempt of Court Act 1981.

In some instances, it may be possible for judgment to be given setting out the reasons for making a declaration approving a DPA without identifying individuals. In such cases, the judgment may be capable of being handed down and reported in full (although other steps may be necessary, such as making orders prohibiting the identification of individuals pending the conclusion of criminal proceedings) see e.g. the judgment of William Davis J in Serious Fraud Office v Serco Geografix Ltd. 4 July 2019 at paragraphs 45 and 46. In other cases, it may not be possible to explain why a DPA is in the public interest or why its terms are fair, reasonable and proportionate without referring to the roles played by individuals, in which case, a court may make an order postponing publication of the judgment: see e.g. the judgment William Davis J in Serious Fraud Office v Guralp Systems Ltd 22 October 2019 at paragraphs 46 to 48. In the present case, the judge considered it necessary to explain the role of individuals when giving reasons for approving the DPAs and both anonymised the identity of individuals in the judgment and postponed publication of the anonymised judgment. In other instances, individuals may not yet have been charged with any criminal offence and it may not be appropriate to name them in a judgment in those circumstances, as appears to have been the case in Director of the Serious Fraud Office v Airline Services Ltd. judgment of May J of 30 October 2020. The precise circumstances vary from case to case and a judge giving a judgment approving a DPA will need to consider carefully what, if any, steps are necessary in terms of the content of the judgment and the publication of that judgment and other material.

The company involved in the first DPA was Bluu Solutions Limited (“Bluu”). The company involved in the second DPA was Tetris-Projects Limited (“Tetris”). They were active in the construction industry. Bluu was, until 2015, a privately-owned company founded by the claimant who was a director and held the majority shareholding in Bluu, with the remaining shares being divided between two other directors. Tetris was a wholly owned subsidiary of a third company which, in 2015, acquired the shares in Bluu.

On 10 June 2021, the claimant was charged, together with others, with offences of bribery contrary to sections 1 and 2 of the Bribery Act 2010 and with another offence.

The SFO also entered into negotiations with Bluu concerning a possible DPA. The SFO applied to the Crown Court for a declaration pursuant to paragraph 7. That application was accompanied by a Statement of Facts, and details of the proposed DPA, as required by the Criminal Procedure Rules Part 11.3. A similar application was made in relation to Tetris.

On 7 July 2021, the judge held a private hearing at Southwark Crown Court pursuant to paragraph 7 of Schedule 17 to the Act. That private hearing resumed on the morning of 19 July 2021. We were told that the judge was given the names of the claimant and the other director during the course of that private hearing. The judge made a declaration in accordance with paragraph 7 that entering a DPA with Bluu was likely to be in the public interest and the proposed terms were fair, reasonable and proportionate and made a similar declaration in relation to Tetris.

On 19 July 2021, the judge also held an open hearing pursuant to paragraph 8 of Schedule 17 to the Act. The parties were the Director of the Serious Fraud Office and the two companies, Bluu and Tetris. The judge handed down an anonymised version of her judgment giving her reasons for making the declaration under paragraph 7 and then paragraph 8. The judgment described the corporate set up of the two companies (which she referred to as AB Ltd. and CD Ltd), and the role of the claimant and the other director (referring to them as Director 1 and Director 2). The judgment described the procedural history, the legal framework and the court’s role in the process as what she described. In describing the court’s role, the judge said this:

“14.

Both the prosecutor and the defendant are required to provide written declarations as to the accuracy and completeness of information disclosed and provided to the court, see CrPR Part 11.2(3). It is no part of the court’s role at either hearing to make any findings of fact or to resolve any factual dispute, something that is underlined by paragraph 6.2 of the DPA code which provides, in relation to the Statement of Facts, that:

“The parties should resolve any factual issues necessary to allow the court to agree terms of the DPA on a clear, fair and accurate basis. The court does not have the power to adjudicate upon factual differences in DPA proceedings.”

15.

As is apparent from the above, in deciding whether or not to approve the DPA, the court exercises no fact-finding function, being dependent for its assessment upon the facts agreed between the parties and presented to it as part of the application. The court’s role is one of oversight only, making an independent assessment of the public interest in arriving at the DPA and of the reasonableness, fairness and proportionality of the particular terms which the parties have agreed.

16.

That assessment must necessarily include consideration of the level of seriousness of the offending and the culpability of the company concerned. As companies can only act through individuals it will often – almost invariably – be the case that a consideration of the seriousness of the corporate offending will involve reference to the actions of individuals. That is certainly the case here. However the facts which have been agreed between the SFO and the corporate Respondents and set out in the Statement of Facts in this case, or presented orally to me at the hearings, have not been asked for their comments. Accordingly where, for the purposes of explaining my reasons for granting the necessary declarations, I make reference to the conduct of individuals I wish to emphasise that I am making no findings of fact concerning them.”

The judge also said this at paragraph 22 of her judgment:

“22.

I should make it clear that, for the purpose of seeking the court’s approval, the names of all individuals and companies were made known to me during the course of the private hearing, so that I could properly appreciate the significance of the roles which each individual and company played.”

The judge then went on to describe the facts of the offending forming the basis of the charges against Bluu (in relation to five offences of bribery) which were the subject of one DPA) and Tetris in relation to the other offence and the other DPA. In the course of dealing with the facts, the judge recorded what the SFO and the relevant company had agreed as being facts concerning the involvement of the claimant and the other director. The judge then undertook a detailed analysis of whether entering the proposed DPA was in the interests of justice and concluded that it was. She undertook an analysis of the terms of the DPA, which involved the companies disgorging the profits made and making payments broadly comparable to the fine that would have been imposed if they had been prosecuted. She made declarations pursuant to paragraph 8 of Schedule 17 to the Act.

The judge anonymised the two companies and the two individual directors in the judgment. In addition, the judge considered whether to postpone publication of the anonymised judgment until the outcome of the criminal proceedings against the individuals. She heard submissions on behalf of the SFO, the two companies, and the individual defendants. She made an order pursuant to section 4(2) of the Contempt of Court Act 1981 and paragraph 12 of Schedule 17 to the Act ordering amongst other things that publication of the following be postponed until the conclusion of the criminal proceedings against named individuals or other order:

The order also provided that any reporting of the matter contained in the press release had to include the following statement:

“The DPAs only relate to the potential criminal liability of the companies and do not address whether liability of any sort attaches to any current or former employee or agent of the companies. Upon determining the issue of approval of the DPAs, the Court did not make findings of fact. No process took place by which the culpability of individual people was determined or assessed.”

On 23 January 2023, the claimant was acquitted by a jury of the remaining charges against him. Not guilty verdicts had earlier been entered in relation to certain charges where the prosecution had offered no evidence. The other director of Bluu was also acquitted. In fact, all bar one of the individuals concerned were acquitted of any wrongdoing.

On 2 March 2023, HHJ Grieve KC, sitting in the Crown Court at Southwark, ordered that the postponement of the publication of the matters referred to in paragraph 23 above be lifted. That order was subject to the SFO undertaking to maintain the anonymous references in the Statement of Facts to Director 1 and Director 2 (rather than including the names of the claimant, and the other director). Subject to that, there was no longer any restriction on the SFO from publishing the Statement of Facts and the DPA on its website. Similarly, there was no longer any restriction on reporting the judgment handed down by the judge in July 2019 when she had granted declarations approving the DPAs.

At that stage, the only judgment in existence was that handed down by the judge in July 2021 which had anonymised the names of the companies and the individuals. On 23 March 2023, the judge’s clerk contacted counsel for the parties, explaining that the case was now no longer subject to anonymisation, a reporter wished to publish an un-anonymised version of the judgment and the judge was seeking confirmation that counsel did not have any issues in relation to that issue. On 11 July 2023, the judge’s clerk contacted all parties and the representatives of the acquitted defendants explaining that the judge was finalising her judgment for publication. That e-mail said that “Given the starting point of open justice…” the judge “would like your submissions on the extent to which there is any proper reason for continuing to anonymise the persons involved”.

For some reason that e-mail was not seen by the claimant. On 28 July 2023, the judgment was published in a un-anonymised form, i.e. with the names of the companies, and with the names of the claimant and the other director replacing the words “Director 1” and “Director 2” respectively. On 31 July 2023, the claimant’s solicitors contacted the SFO to express concern about the publication of the un-anonymised judgment. Publication was then suspended pending an oral hearing. That took place on 27 November 2023 with the SFO and the claimant being represented.

On 7 March 2024, the judge gave a full judgment as to why she had decided that the judgment should be published in an un-anonymised form. That is the decision under challenge in this claim for judicial review.

In discussing the legal principles, the judge observed that:

“13.

There is no automatic statutory reporting restriction which applies to DPAs, or to judgments approving DPAs. It follows that the court is being invited to exercise a discretionary remedy conferring anonymity in order to prevent an unjustified breach of Article 8 rights. The provisions of section 4(2) of the Contempt of Court Act 1981 and paragraph 12 to Schedule 17 of the Crime and Courts Act 2013, under which reporting restrictions were imposed at the time of approving the DPAs no longer apply as there are no more legal proceedings which might be prejudiced.

14.

The applicable legal principles have recently been re-stated by the Divisional Court in the case of Marandi at [43] and are, in summary, as follows:

i)

The starting point is the common law principle of open justice, as identified in the "foundational" decision of Scott v Scott [1913] AC 417.

ii)

The common law principle encompasses mentioning names: R(C) vSecretary of State for Justice [2016] UKSC 2, at [36]; In Re Guardian News and Media Ltd [2010] UKSC 1 at [63] and Khuja v Times Newspapers Ltd [2017] UKSC 49, at [14].

iii)

Any derogation from the principle of open justice is required to be justified by the party seeking the derogation on the ground of necessity "in the interests of justice": Khuja.

iv)

This exception is of narrow scope.

v)

The "threshold question" is whether allowing disclosure of the person's name and any consequent publicity would amount to an interference with that person's Article 8 rights.

vi)

If so, then the court is required to conduct a balancing exercise:

"The question implicit in the judge's reasoning process is whether the consequences of disclosure would be so serious an interference with the claimant's rights that it was necessary and proportionate to interfere with the ordinary rule of open justice", per Warby LJ in Marandi at [34(5)]

vii)

Clear and cogent evidence is needed to make good a claim to anonymity.

At paragraph 24, the judge noted that she alone had jurisdiction over the final form of my published judgment. She observed that “What I have to decide is whether, before publication of that judgment finally occurs, anonymity given to individuals at the time my judgment was first notified to the parties should now be removed.”

Dealing with the question of the correct approach, the judge said this:

“25.

Moving from jurisdiction to the question of whether anonymity should be lifted, I do not accept, if that is what Mr Darbishire [counsel for the claimant] was suggesting, that any special principle of confidentiality applies to the background facts which underpin a court's approval of a DPA. Open justice is not to be qualified by reference to any particular decision which a court takes. A derogation can only occur as provided for under common law or by statutory provisions which restrict publication of certain facts under certain circumstances. Marandiand previous decisions referred to by the Divisional Court in that case make it clear that the identity of individuals is encompassed by the principle of open justice.

26.

It follows that in my view the only exercise for this court to undertake is the balancing exercise between, on the one hand, the requirement of open justice in enabling a full understanding of how and why a DPA agreement has been approved by the court and, on the other, the article 8 right to private life of the acquitted individual.

27.

The key is necessity. In relation to this the question is not, as Mr Darbishire sought to argue, whether it is necessary to publish the identity of individuals in order for there to be proper public scrutiny of the approval process; rather it is the extent to which his client has established that it is necessary for the proper protection of his art 8 rights that his identity continues to be withheld following his acquittal. The starting point must be publication; the question for me is whether Mr Darbishire's client has established sufficiently that his interests require publication to be restricted.”

The judge then conducted that balancing exercise. She noted that each case turned on its own particular facts. In this case, the individuals had all been named in the criminal proceedings. A report of the proceedings had appeared on the SFO website, next to a report of the DPA, making the connection between the individuals and the events described in the DPA obvious. She noted the submissions of counsel for the claimant that, as she had made no findings of fact in her judgment, the principle of open justice did not apply. The judge noted the alternative view was that as she had made it clear that approval of the DPA involved no findings of fact in relation to individuals, any harm to reputation would be negligible. The judge pointed out that it was accepted that there were no reporting restrictions in place and any journalist who was able to identify the claimant was free to name him. She considered that, in those circumstances, retaining anonymity in the judgment “is simply confusing, and pointless given the ease with which that link can be made”. The judge concluded that:

“32.

Even accepting Mr Darbishire's point that the public interest in identifying the names of individuals implicated by the statement of facts agreed between the SFO and the companies is low, I cannot see that the interest of his client in retaining his anonymity in the judgment is of such weight as to shift the balance away from publication. No evidence has been advanced of any specific disadvantage which will result from his client being identified in the judgment approving the DPA. None of the other acquitted individuals have suggested that they should remain anonymous; if their names are published then Mr Darbishire's client's position becomes even less tenable.

33.

In any event I am not persuaded that the public interest is as low as Mr Darbishire suggested: proper scrutiny of the SFO and of the companies in reaching agreement may very well involve a comparison of the facts upon which the agreement was advanced to the court from whom approval was sought with the facts as found (or in this case as rejected) by the court and jury in criminal proceedings. Such a comparison must necessarily involve identifying the individuals.

34.

Whether the hearing is treated as an application by Mr Darbishire's client for a reporting restriction order, or for the withdrawal and re-issue of the published (de-anonymised) judgment, the principles of open justice to be applied are the same. For the reasons given above I conclude that in this case the balance falls in favour of de-anonymising the judgment; accordingly, it will be published in that form.”

The claimant has been granted permission to challenge the decision to publish the judgment in an un-anonymised form on one ground only, namely that the judge was wrong to approach the issue as if the claimant were applying for reporting restrictions in respect of information disclosed in open court. The ground asserted that the judge was wrong, therefore, to consider that the claimant had to establish that it was necessary to derogate from the principle of open justice in order to safeguard his rights, applying the principles recognised in R (Marandi) v Westminster Magistrates’ Court [2023] 2 Cr App R 215.

There are a number of preliminary observations to be made. First, it is accepted that the judge had jurisdiction to determine whether or not the judgment, finally published, should be in an un-anonymised form. She was entitled to revisit her initial decision to publish it in an anonymised form.

Secondly, it is accepted that if the judge was correct to approach the issue in the way that she did, i.e. that the claimant needed to establish that it was necessary to demonstrate a reason for departing from the principle of open justice, there was no basis for challenging the decision that she made. In other words, if the judge’s approach was correct, the way in which she balanced the competing interests was not open to criticism.

Thirdly, although there was reference to the publication of the Statement of Facts and the DPAs, this case concerns solely a claim for judicial review of the decision of the judge to publish her judgment in an un-anonymised form. The obligation to publish a DPA, and a Statement of Facts, lies upon the prosecuting authority not the judge. Any challenge to a decision by the prosecuting authority as to what they would publish following the order of HHJ Grieve KC would be a separate matter and falls outside the confines of this claim for judicial review.

Mr Darbishire KC, with Mr Doble, for the claimant, submitted that the issue in this case did not involve the question of open justice. The judicial process in this case concerned the product of negotiations between the SFO and two companies leading to agreements between those parties. The claimant was not involved in those negotiations and he was not a party to any agreement. He was not a party to the court proceedings and he was not named in open court. He was not seeking reporting restrictions to prevent any part of the judicial process from being reported. He was simply seeking to maintain the absence of a reference to his identity in the judgment reached in the proceedings between the SFO and the companies.

Mr Darbishire submitted that one of the purposes of anonymising the individuals was because factual assertions will have been included in the judgment approving the DPA about the conduct of individuals but they had not had any opportunity to make comments about how their role in the events may have been characterised, something recognised by May J in the Director of the Serious Fraud Office v Airline Services Ltd 10 October 2020 at paragraph 13. That was reflected in the current practice of the courts in relation to the DPAs where individuals were anonymised. There was a difference between reporting restrictions and anonymisation. The former was concerned with a time-limited protection to protect the trial process, ensuring that information identifying individuals was not disclosed until after criminal proceedings were concluded. Anonymity reflected an enduring interest in protecting the rights of individuals. In the latter case, the starting point was not open justice and it was not for the individual to demonstrate that continued anonymisation was necessary to protect the interests of the individual and that outweighed the interest in open justice. Rather, the test was whether it was necessary to name the individual. Furthermore, Mr Darbishire accepted that the link between the individual named as “Director 1” in the anonymised judgment and the claimant could easily be made and his identity discovered. However, he submitted that the inclusion of the claimant’s name in a judgment would stand as a continuing statement that the SFO believed that the claimant had committed the offences described and the DPA has been approved by the court. That, he submitted, involved a breach of the claimant’s rights, relying upon the decision of the Supreme Court in XYZ v Bloomberg LP [2022] UKSC, [2022] AC 1158 and the decision of the European Court of Human Rights in Del Campo v Spain (2019) 68 EHRR 2739.

Mr O’Sullivan KC, with Mr Lewis, for the SFO, remained neutral on the underlying question of whether the claimant should be identified in the judgment approving the DPA. The SFO made representations solely with a view to assisting the court on issues of principle and practice. Mr O’Sullivan submitted that there was no statutory requirement for anonymity to granted to individuals within DPA proceedings. Nor did the Code of Practice issued in accordance with Schedule 17 provide for the general anonymity of individuals in connection with a DPA. The practice of the courts had not been consistent. He submitted that the correct starting point was the principle of maintaining open justice and any derogation from that principle had to be justified. The starting point in this case was, therefore, correctly identified by May J and the relevant principles were those set out in Marandi.

The process of a court approving a DPA by granting a declaration that the DPA is in the interests of justice, and that the terms of the DPA are fair, reasonable and proportionate, is a judicial process and is part of the system of the administration of justice. The concept of open justice applies. A court deciding whether or not to include particular material in such a judgment, including details of individuals said to be connected with the activity covered by the DPA, does so as part of that judicial process. In assessing the seriousness of the offence and the culpability of the organisations concerned, a court may well conclude that it is necessary to address the actions of the individuals through whom the organisation acted. A court may well consider that understanding the alleged actions of individuals is necessary, or relevant, to understanding the court’s reasons for considering that it is in the interests of justice for a DPA to be entered into (rather than the organisation being prosecuted) or why the court considers the particular terms of the DPA are fair, reasonable and proportionate.

In deciding whether to name, or withhold the names of, individuals, within a judgment setting out the court’s reasons for approving a DPA, the starting point is that the principle of open justice applies. The courts will make that information available unless the individual concerned can demonstrate that it is necessary to protect their rights such as their right to respect for private life under Article 8 of the Convention, or any relevant common law right.

We reach that conclusion for the following reason. First, the context in which the issue arises is one involving consideration of the prosecution of organisations for criminal wrongdoing. The legislation governing DPAs recognises that, in certain circumstances, it may not be in the public interest to bring a prosecution but, instead, to enter into a DPA whereby criminal proceedings are instituted but then deferred on terms, which can include terms providing for the payment of a financial penalty, compensation or the disgorgement of profits.

Secondly, Parliament, through the provisions of schedule 17 to the Act, has conferred a specific role on courts in relation to the approval of DPAs as part of the process of the administration of justice. The courts must decide at a hearing that the DPA is in the interests of justice and its terms are fair, reasonable and proportionate. That hearing may be held in public or private. If it is satisfied of those matters, it must grant a declaration and, until it does so, the DPA does not come into force. The court must give its reasons in public for making the declaration. See paragraph 8(1), (3) and (4) of Schedule 17 to the Act. The approval of a DPA is, therefore, intrinsically part of a court process where the ultimate decision on whether the DPA is approved is given to the courts.

Against that background, the arguments put forward on behalf of the claimant do not, on analysis, lead to the conclusion that approval of a DPA is not part of the administration of justice or that the principle of open justice does not apply. First, it is correct that negotiations take place between the company and the SFO. Individuals such as the claimant are not involved in the process of negotiation, are not parties to the agreement, and are not normally party to the proceedings dealing with an application for a declaration pursuant to paragraph 8 of Schedule 17 to the Act. That does not, however, mean that the arrangements, so far as they concern individuals, fall outside the scope of the administration of justice. As explained above, where a court is considering whether or not to approve a DPA it may, and often will, be necessary to consider the role of individuals connected with the subject matter of the DPA. A court may consider that it is necessary to identify individuals in order to enable the public to understand its reasons for concluding that it is right to make the declaration sought. The process of deciding whether it is necessary to do so is part of the administration of justice. The principle of open justice applies to that process (whether or not the individuals were parties to the negotiations or the agreement or to the proceedings in which a declaration is sought). The question of whether the individuals should be named (and when) will involve considering if it is necessary to depart from the principle of open justice.

That understanding is consistent with the way in which courts have approached the question of approval of DPAs. Sir Brian Leveson P explained the central features, and the significance of the court’s involvement in the approval of a DPA, in the Standard Bank case and the material extracts of his judgments are set out at paragraph 13 above. The centrality of the principle of open justice to such proceedings was confirmed by William Davis J at paragraph 43 of his judgment in Serious Fraud Office v Serco Geografix Ltd where he said:

“43.

It is an essential part of the DPA process that final approval of the DPA is the subject of a public hearing. Open justice is essential so that the public can understand why the process has been determined to be appropriate. That is particularly appropriate where the fraud was committed against the public purse…..”.

Those observations are not binding on this court. But we share their sentiments and they reinforce our conclusion that the process of granting a declaration, and giving final approval to a DPA, pursuant to paragraph 8 of Schedule 17 to the Act is part of the process of the administration of justice to which the principle of open justice applies.

We do not accept Mr Darbishire’s submission that there is, in the present context, a distinction between an application for reporting restrictions and the maintenance of anonymity. Both matters are matters to be addressed in the context of the principle of open justice. In some instances, they may address different concerns. Reporting restrictions may be concerned with preserving the fairness and integrity of future trials. Anonymising judgments may be concerned with protecting the rights of individuals by, for example, not naming a person not yet charged with an offence (although, in this case, anonymisation was a further safeguard to ensure the fairness of the trial process for the individuals concerned). In either case, the starting point is the importance of open justice, and derogations from that principle have to be shown to be necessary to protect the rights of individuals.

We do not accept that the inclusion of the claimant’s name in the judgment does involve a statement that the claimant is guilty of criminal offences. The judgment itself explains the role of the court in approving a DPA. Paragraph 16 of the judgment, set out above, explains that the individuals have not agreed any of the matters set out in the statement of facts or the DPA and the individuals had not been asked for comments. The judgment makes it clear the judge “is making no findings of fact concerning them”. The situation is different from that in Del Campo. There a teacher brought a claim against the regional government alleging that the government had failed to take measures to prevent the alleged bullying and harassment of the individual in the school where she worked by another teacher. The other teacher was not party to the proceedings and was unaware of them. In its judgment, the domestic court disclosed the other’s teacher’s identity and held that his conduct had amounted to psychological harassment and bullying. The publication of the findings adversely affected the other teacher’s enjoyment of private and family life. It was for that reason that the European Court found that the complaint fell within the scope of article 8 of the Convention. The present situation is different. The judgment expressly makes it clear that it is not finding facts. In any event, the decision in Del Campo does not assist the claimant. The question in this case is the approach to be taken by the court in deciding whether the name of the claimant should be included in a judgment. The starting point is open justice which calls for the individual to be identified – but that is subject to an exception namely, that the name cannot be published if that is necessary to protect any rights derived from the Convention. The application of the principles governing open justice, therefore, respect, and ensure that there will be no breach of, rights derived from the Convention.

Furthermore, we do not consider that the decision in XYC assists. That case concerned a claim for misuse of private information. A journalist had obtained, and published, information about the activities of a company suspected of committing criminal conduct in another country. The information was obtained from a confidential letter of request sent by the foreign state concerned to the relevant law enforcement body in the United Kingdom. The Supreme Court held that consideration of that claim involved two stages: first, whether the claimant objectively had a reasonable expectation of privacy and secondly, whether that expectation was outweighed by the publisher’s right to freedom of expression. It held that, in relation to stage one, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. See [2022] AC 1158 at paragraphs 26, 76 and 146. That decision does not assist in the present case in determining the correct approach to deciding whether the name of an individual should be included in a judgment published after the individual has been charged and, indeed, the criminal proceedings have concluded. We express no view on how a judge will balance the considerations underlying open justice against the interests of an individual suspected, but not charged, with criminal conduct in the context of approval of a DPA. That matter is best considered in a case where those considerations arise.

For those reasons, we would dismiss this claim for judicial review. The judge adopted the correct approach in determining whether to include the name of the claimant in a judgment setting out the reasons for approving a DPA pursuant to paragraph 8 of Schedule 17 to the Act following the conclusion of the criminal proceedings against that individual (which, in fact, resulted in his acquittal). The judge was correct to consider that the principles underlying open justice applied and to consider whether the claimant has established that it was necessary to depart or derogate from those principles to protect rights enjoyed by the claimant.