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March 21, 2018

Grenfell Tower inquiry chairman applies open justice principle to anonymity requests from core participants

By PA Media Lawyer

The principles of open justice which operate in legal proceedings also apply to a public inquiry established to investigate matters of public concern, the chairman of the probe into the Grenfell Tower disaster has said.

Sir Martin Moore-Bick explained yesterday why he granted three out of seven requests by core participants to remain anonymous throughout the inquiry into the disaster, in which 71 people died, but rejected the others.

He also rejected applications from 12 people who wanted their names to be withheld from the list of core participants, and deferred a further four similar applications while he awaited further information.

Moore-Bick said that in Scott v Scott ([1913] A.C. 417) the House of Lords had established the principle that open justice could be restricted only when it was strictly necessary to do so.

“The importance of open justice as fundamental to the maintenance of the rule of law has been reiterated in many recent cases,” he said.

“In Khuja v Times Newspapers Ltd ([2017] 3 WLR 351) Lord Sumption expressed the view that its significance had, if anything, increased in an age which attaches growing importance to the public accountability of public officers and institutions and to the availability of information about the performance of their functions.”

This inevitably might involve an interference with an individual’s right to respect for private life under Article 8 of the European Convention on Human Rights, but that right was not absolute.

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Thus, the issue was one of competing rights: the individual’s right to respect for private life and the public’s right to see that justice is properly administered, Moore-Bick said.

He added: “The decided cases support the conclusion that in general the importance of open justice is sufficiently great to override the right to respect for private life.”

Moore-Bick went on: “The principles of open justice apply with their full rigour to legal proceedings in the ordinary sense, but in my view they are also applicable to a public inquiry set up under the Inquiries Act 2005 to investigate matters of public concern.

“That is particularly so where there are reasons for scrutinising in some detail the conduct of public officials and others whose actions may have contributed to a substantial loss of life.”

Section 18(1) of the Inquiries Act made clear that the inquiry’s proceedings were to be open to the public.

Section 19(1) gave the power to restrict attendance at the inquiry or the disclosure or publication of any evidence or documents provided to it only if such restrictions were required by law, would help the inquiry fulfill its terms of reference, or were necessary in the public interest.

“The clear thrust of these sections is that all aspects of the inquiry must be open to public scrutiny unless there are strong reasons to the contrary,” Moore-Bick said.

Publishing the names of core participants would be an important factor in the public’s understanding of the inquiry’s proceedings – and greater understanding would engender greater confidence in its ability to do it job, he added.

“It follows that in principle all those who have been designated as core participants should be capable of being identified in the interests of openness and transparency.”

Section 17(1) of the act gave him a general power to determine the inquiry’s procedure and conduct, subject to a requirement to act with fairness, Moore-Bick said.

“That includes, in my view, the power to decide whether a list of core participants should be published, and if so in what form, and whether the names of individual core participants should be omitted entirely or their identities masked by the use of initials.”

He had no doubt that that he had the power under section 17 to make anonymity orders, and, in appropriate cases, a duty to do so.

“It is recognised, however, that any such order involves a departure from the principle of open justice which must be justified on the grounds of necessity,” he said.

Moore-Bick said it was important to remember that what was proposed at this stage was nothing more than the publication of a list of the names of those who have been designated as core participants.

“It is not intended to include addresses or personal information of any kind. Nor is it intended to identify legal representatives,” he said.

“Core participants are in the same position as anyone else in relation to acting as witnesses; publication of their names will have no effect on that, one way or the other.

“Whether it is appropriate for the name of any particular witness to be withheld or other measures put in place to safeguard that witness is a matter that will be determined at a later date.”

The inquiry published a core participant list of 504 individuals – bereaved, survivors and local residents – of whom three were listed by letters alone, and 28 organisations.

Picture: Reuters/Hannah McKay

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