Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 113
PD1471/08	OPINION OF LORD STEWART in the cause L.A.M. [A.P.] Pursuer; against A SCOTTISH LOCAL AUTHORITY Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Guinnane; Drummond Miller LLP

Defenders: Stuart; HBM Sayers

Havers: Poole; Scottish Government Legal Directorate

30 June 2011

[1] The pursuer claims damages for the alleged culpable failure of the defenders' Social Work Department to protect her from child sex abuse. A four week proof has been fixed for 4 October 2011.

[2] The abuse is said to have been carried on against the pursuer and two step-sisters. The alleged abusers are the pursuer's step-father and natural mother and their acquaintances. The family moved from England to Scotland in August 1995. Part of the case against the defenders is that they did not take account of the back-story of abuse in England.

[3] In 2005 the Scottish Executive published a report of its investigation into the case. The published Report at Appendix 2 contains the outlines of 222 officially recorded concerns about possible sexual abuse, physical abuse, health problems and neglect of the three siblings. The text of the Report contains additional detail of some of the concerns.

[4] Appendix 2 does not identify the individual victims: but it does give the date of each recorded concern and the age of the victim at the time. Therefore it is possible to know which of the three children was involved in each instance. It follows that the pursuer is already in a position to know, at least in outline, about all the concerns listed in Appendix 2.

[5] The names of all seven alleged perpetrators were widely published at the time of their arrests and when charges were dropped. The information is still readily available on the internet.

[6] Paragraph 7 of the Report states:

"As a result of our examination of all of the records we established key facts in the children's lives in both [Scotland] and England. These findings of fact name the children and their families, the staff involved from all of the agencies, the people who were charged and those who were arrested but not charged. Given the unique circumstances and media coverage which has named the people who were arrested, it is not possible to anonymise the findings of fact and it would not be in the interests of the children for these to be published. The findings of fact have been agreed by all of the agencies concerned."

[7] The findings referred to in the published Report are incorporated in two volumes. Findings in Fact Volume 1 relates to the period when the family was resident in England. Findings in Fact Volume 2 relates to the period from August 2005 when the family was resident in the defenders' local authority area. Altogether there are 250 pages of findings.

[8] In her pleadings the pursuer avers that the defenders' Chief Executive signed and agreed the Findings in Fact [Record 2009, No 19 of Process, 6D]. The defenders impliedly admitted this averment. The pursuer calls on the defenders to produce the Findings in Fact.

[9] The pursuer makes averments about the abuse of her step-sisters. She avers: "[the] neglect of the pursuer's siblings ought to have been taken into account by the defenders in assessing whether or not the pursuer was safe within the family home." The pleadings refer to "the concerns of neglect, suspected physical and sexual abuse as well as health concerns to which the pursuer and her siblings were subjected [sic]..." Reference is made to evidence of abuse and neglect that ought to have led to the removal of the pursuer and her siblings from the family home.

[10] On 26 January 2011 I granted the pursuer's motion, amended at the bar, for recovery of the Findings in Fact Volumes 1 and 2. The amended calls entitle the pursuer to excerpts of the entries in the respective volumes insofar as "showing or tending to show the nature and extent of the abuse suffered by the pursuer and her sisters before they came to live [in Scotland] in 1995" and "once they came to live [in Scotland] in 1995 and whilst under the care of the Social Work Department of the Defenders". Importantly the relevance of the amended calls to the issues raised on Record, in particular the relevance of the reference to the abuse suffered by the pursuer's sisters, has not been challenged. Recovery per se is not opposed by the defenders. The defenders adopt the grounds of opposition stated by the Scottish Ministers.

[11] Recovery is opposed by the Scottish Ministers, as havers. Their object is to ensure that the Convention rights of third parties so far as engaged are protected, in relation to, in the case of alleged abusers, the presumption of innocence and protection of reputation, and, in the case of claimed victims, in relation to sensitive personal information. At the instance of the havers the disclosure authorised by the interlocutor of 26 January 2011 is subject to the qualification "save insofar as disclosure of those entries in Volumes 1 and 2 would contravene the Convention rights of any person".

[12] In granting the pursuer's motion for recovery, I understood, as did parties, that the documents would be lodged with the Court in a sealed envelope marked "confidential". The confidential envelope was lodged on 16 February 2011 and marked No 21 of Process. Intimation was made to parties on that day. A motion to open up the confidential envelope was enrolled on behalf of the pursuer.

[13] On 25 February 2011 I granted the pursuer's motion to open up the confidential envelope No 21 of process for the purpose simply of familiarising myself with the contents. There was no appearance for the defenders. At that stage the procedure proposed by the havers, as set out in their opposition to the motion, was as follows:

"1 The Court should open up the confidential envelope and carry out a preliminary perusal of the Findings, without any further disclosure to any party;

2. Thereafter, the Court should fix a further hearing to consider how best the documents may be produced compatibly with Convention rights, and order intimation of that hearing upon any person whose Convention rights are likely to be affected. Those persons are (i) five persons named on Record as alleged victims or perpetrators of abuse, (ii) ten persons named in the Findings, unless the court, having looked at the Findings, [takes the view] that those people can be sufficiently anonymised by redaction of their identities from the Findings to protect their Article 8 rights;

3. Prior to the hearing the Scottish Ministers will lodge copies of the documents showing suggested redactions which, in the Ministers' view, are necessary to respect the Convention rights of third parties;

4. At that hearing the Court should hear all parties and thereafter decide on the redactions required, if any, and upon any conditions as to disclosure of the redacted documents necessary for compliance with third parties' Convention rights."

[14] In terms of paragraph 3 of the proposed procedure, redacted versions of the Findings in Fact Volumes 1 and 2 were lodged by the havers in a confidential envelope on 16 March 2011. Parties had already agreed, on 25 February, that I could open this second envelope when lodged. The proposed redactions consist of (1) anonymisation of all alleged abusers except the pursuer's step-father and the pursuer's mother and (2) removal by "whiting out" of sensitive personal information relating to the siblings. By e-mail dated 5 April the agents for the havers identified 26 April as the first date when counsel would be available to address me further.

[15] By 12 April I had read all the material twice and formed provisional views about disclosure, intimation and the appropriate extent of redaction. I reached the view then and remain of the view that the whole contents are relevant and that disclosure of the whole contents is in principle necessary for the fair resolution of the pursuer's claim [Science Research Council v Nassé [1980] AC 1028]. On 15 April I appointed the case to call By Order on 28 April. I ordered the pursuer's solicitors to intimate the hearing to the two step-sisters, the step-father and the mother. I ordered intimation on the understanding that this had been acquiesced in by pursuer's counsel on 25 February.

[16] This understanding was mistaken. The pursuer's solicitors reverted to my clerk to say that the issue of intimation remained in contention. I waived the requirement for intimation of the hearing at that stage pending further submissions. The case called By Order on 28 April when I heard further submissions.

[17] Counsel for the pursuer moved me to correct the interlocutor of 15 April quoad intimation in terms of RCS Rule 4.15 (6) and to release the documents to the pursuer's agents without intimation to any other party. There could be no hearing on redactions, it was submitted, without access to the documents. There was no appearance for the defenders.

[18] Counsel for the havers conceded that the interlocutor could competently be corrected in terms of RCS Rule 4.15 (6) and took a position of neutrality on the question whether or not the interlocutor should be corrected.

[19] As regards the Convention rights of third parties, counsel for the havers told me that the Scottish Ministers had given consideration to the questions (1) whether the Article 6 ECHR rights of the alleged perpetrators are engaged and (2) whether the Article 8 ECHR rights of both alleged perpetrators and claimed victims are engaged.

[20] In relation to Article 6 ECHR rights counsel stated that the view had been taken that these rights are not engaged. Counsel submitted that officials may publish information about criminal investigations and criminal charges provided that official statements do not encourage a belief in guilt or prejudge the facts: Article 6 protection flies off once the decision not to prosecute has been made [Krause v Switzerland 7986/77 (3 Oct 1978) 13 DR 73 (1978); Lamanna v Austria 28923/95 (unreported) 10 July 2001, ECtHR; Daktaras v Lithuania (2002) 34 EHRR 60; R (on the application of R) v Durham Constabulary [2005] 1 WLR 1184; Geerings v Netherlands (2008) 46 EHRR 49; Gaforov v Russia 25404/09 [2010] ECHR 1557]. Counsel told me that a decision not to prosecute had been made in the present case.

[21] As authority for the proposition that disclosure of sensitive personal information can constitute an interference with the right to respect for private life contrary to Article 8 (1) ECHR, counsel referred to the well-known case about medical records, MS v Sweden (1999) 28 EHRR 313.  As authority for the proposition that a failure by the state to protect against reputational damage can be a violation of Article 8 (1) ECHR counsel referred to another well-known case Pfeifer v Austria (2009) 48 EHRR 8. Counsel emphasised that the right to non-interference is not absolute and may be justified where and to the extent that it is necessary for legitimate aims and proportionate in terms of Article 8 (2) ECHR. Counsel reminded me that the Court as a public authority has a duty to comply with Convention obligations. These propositions are not contentious.

[22] Counsel submitted that intimation should be made to potentially affected parties to give those parties an opportunity to make representations about redaction and disclosure. No person should have access to the documents prior to decisions on redaction and disclosure. Reference was made to Rt Hon Lord Reed and J Murdoch, A Guide to Human Rights Law in Scotland, 2^nd edn, (Edinburgh, 2008) § 6.34, note 7:

"A difficulty under Art 8 might however arise where the documents concerned a person who was neither a party nor a haver. In such a situation, "respect" for that person's private life would probably require that he be given imitation of the application for the recovery of the documents."

I agree that this is a difficulty. I have long taken the view that the system can be neglectful of third party privacy rights, for example where unanonymised patient records are put in evidence in connection with lifting-injury claims by nurses and care workers. (This is not necessarily to say that pre-notification is always the way to deal with the issue.)

[23] As further authority for the proposition that Article 8 ECHR compliance would as a rule require third parties to have an opportunity to make representations before disclosure counsel referred to C v Chief Constable of Greater Manchester [2011] EWCA Civ 175. To support the submission that any disclosure must be proportionate, counsel referred to Clift v Slough BC [2010] EWCA Civ 1171 especially at §§ 34, 35 and 47 per Ward LJ with whom the other judges agreed. A plea of "administrative difficulty" on the part of the public authority is not generally persuasive.

[24] Counsel submitted that the Court should proceed by way of analogy with the Public Interest Immunity procedure and the procedure where professional legal privilege is invoked: it is wrong to allow parties' advocates or "special advocates" privileged access to unredacted material under conditions of confidentiality; and it is for the Court to examine the material and, balancing competing interests, to make its own assessment of the extent to which disclosure without redaction is proper [Somerville v Scottish Ministers 2008 SC (HL) 45 at 48-49, at §§ 152, 155,156 per Lord Rodger of Earlsferry; at §§ 203, 204 per Lord Mance; Narden Services Ltd v Inverness Retail and Business Park Ltd 2008 SC 335].

[25] I accept that the Article 8 rights of the alleged perpetrators and the claimed victims are potentially engaged. I also take the view that the whole contents of the Findings in Fact are relevant; and that it is necessary in principle to make disclosure for a legitimate aim, namely for the fair determination of the pursuer's claim for damages [Science Research Council v Nassé [1980] AC 1028; Somerville v Scottish Ministers 2008 SC (HL) 45 at § 62 per Lord Hope of Craighead; at § 83 per Lord Scott of Foscote].

[26] I agree with counsel for the havers that disclosure must not be disproportionate. What is proportionate in the circumstances depends on the use to be made of the material and other measures that may be available to protect Article 8 rights. The other measures that may be available include (1) anonymisation of the Findings in Fact; (2) anonymisation of published Court judgments in the case; (3) restricted disclosure; (4) hearing witnesses behind closed doors; and (5) reporting restrictions.

[27] As to process, I do not consider that the Somerville and Narden Services provide guidance for the present case beyond the propositions (1) that relevant material must be disclosed to the party recovering unless, and except to the extent that, non-disclosure can be justified; and (2) that it is for the judge to decide whether and to what extent there should be non-disclosure by reading the documents and balancing the competing interests.

[28] Classified or security-sensitive information (Somerville) and privileged information that belongs to a party to the action (Narden) are different from sensitive personal data: sensitive personal data belonging to a party to the action cannot be withheld if it is relevant; and the objections to allowing advocates privileged access to the former sorts of information do not apply or do not apply with the same force to personal data belonging to third parties.

[29] I am not convinced that minds have necessarily been applied to what might be meant by "disclosure". My perception is that the real issue in the present case is about publication beyond the doors of the Court rather than about making the information available to parties within the court room. On this understanding I would not consider it satisfactory for parties to debate, in effect, restrictions on publication without having sight of the information. That would be unreal and unequal - unequal because the havers (if they wish to participate) and the defenders already know the contents of Volumes 1 and 2 of the Findings in Fact: but the pursuer, who has the leading interest in the material, is in ignorance.

[30] Must third parties have an opportunity to make representations before disclosure of any kind? The case of C supports the proposition that, as a rule, individuals have to be given an opportunity to make representations before damaging, confidential information about them, affecting more than their reputation, is disclosed by public authorities. That case was about disclosing to a prospective employer an unproved, 15-year-old allegation that C had sexually abused his stepdaughter. The disclosure made it impossible for C to get a job in his chosen field as a welding instructor at a further education college.

[31] On the other hand the Strasbourg Court in MS did not accept the submission that the applicant should have been given an opportunity to make representations before her medical records were disclosed to the social insurance service for the purpose of assessing the applicant's claim for an industrial injury pension [§§ 21, 39 and 44]. The records contained entries showing that the symptoms preceded the accident.

[32] I also notice that the recent case of Mosley decided that the state does not have a positive obligation to put in place a pre-notification requirement for the publication by non-state actors of information that interferes with individuals' private lives [Mosley v United Kingdom 48009/08 [2011] ECHR 774 (10 May 2011)].

[33] The issue in Clift was whether the nature of the dissemination and its extent was proportionate. Mrs Clift made a complaint of anti-social behaviour which ended up with the complainer herself being placed on Slough Borough Council's Violent Person's Register. There was, surprisingly perhaps, nothing wrong with that. The problem was that e-mail and hard copy notification of the registration was sent to 66 council employees and to a number of "partner organisations"; and that the Register itself "would have been" circulated to up to 150 people.

[34] The Court of Appeal supported the trial judge's ruling that circulation of unredacted information to the majority of recipients was disproportionate by the Article 8 (2) measure; and that accordingly such "supernumary" publication was not covered by a defence of justification and qualified privilege. The reputational damage suffered by Mrs Clift because of disproportionate dissemination sounded in damages. (Paradoxically Mrs Clift vindicated her right to restricted dissemination by pursuing defamation proceedings that attracted widespread media coverage.)

[35] I take Clift to be authority for the proposition that the requirements of proportionality as regards dissemination by public authorities may be satisfied by applying a "need to know" test: some people need to know all the information including the identity of the data subject; anonymised information can meet other needs; and most people don't need to know anything at all.

[36] Courts have a means of complying with the negative obligation imposed by Article 8 (1) ECHR by anonymising judgments - to discourage if not prevent the identification of individuals whose privacy rights are at risk - and of complying with the positive obligation by restricting reporting. A general warrant for restricting reporting now lies in Article 8 itself, as incorporated into United Kingdom law by the Human Rights Act 1998 [In re Guardian News and Media Ltd (SC (E)) [2010] 2 AC 697 at §§ 26-32 per Lord Rodger of Earlsferry JSC giving the judgment of the Supreme Court].

[37] Merely anonymising judgments gives uncertain protection for privacy rights in Scotland: as I understand it, the Scottish Court Service may feel bound to disclose the names of anonymised parties to journalists on request except where children are involved and unless there is in place a specific anonymity order in terms of, for example, the Contempt of Court Act 1981 ss. 4 or 11 [cf. Practice Note No 2 of 2007, "Anonymising Opinions Published on the Internet", Parliament House Book (looseleaf) at C2063].

[38] Section 4 (2) of the 1981 Act empowers the Court to order postponement of reporting where there is a risk to the administration of justice; and section 11 authorises the Court to prohibit publication of names and other information withheld from the public during proceedings in court. Neither power is apt for the present predicament.

[39] As I understand it the life-long anonymity provisions for victims of alleged sexual offences contained in the Sexual Offences (Amendment) Act 1992, as amended, do not apply to Scotland although publication in contravention of various reporting restrictions as they apply elsewhere in the United Kingdom may be prosecuted as an offence in Scotland [Youth Justice and Criminal Evidence Act 1999, Youth Justice and Criminal Evidence Act 1999 (Commencement No 11) (Scotland) Order 2004 SI 2004/408].

[40] For completeness it seems to me unlikely that the power to prohibit publication given by Children and Young Persons (Scotland) Act 1937 s. 46 can be stretched to fit the situation in this case where the claimed victims were children at the time of the alleged abuse and are now adults.

[41] I have yet to hear from counsel whether there is a general statutory power to make prohibitory orders equivalent to the provision for England & Wales contained in the Senior Courts Act 1981 s. 37; and, if not, whether the Court of Session has an inherent power at common law to make such orders against parties not involved in the proceedings. It could be argued - I have not heard submissions on the point - that the Court of Session Act 1988 s. 47 (2) gives the Court power to make orders prohibiting publication ad interim for Article 8 ECHR purposes.

[42] The Guardian News and Media decision gave precedence to the Article 10 ECHR rights of the press over the Article 8 ECHR rights of individuals suspected by HM Treasury of facilitating the commission of acts of terrorism. Although the report of the case is included in the havers' bundle of authorities, counsel did not make submissions about Article 10 as such: but I am bound to take Article 10 ECHR into account in making the decisions that I have been asked to make.

[43] I am also bound to take into account the ECHR Article 8 privacy rights of third parties not mentioned by counsel for the havers and not represented by the defenders, such as foster parents.

[44] If I apply the test suggested in C along the lines of the question posed at paragraph 12 - "is it obvious that nothing the third parties might say could rationally or sensibly influence my mind against disclosure to the pursuer?" - then the answer is that nothing could influence my mind against disclosure in principle. This is because, first, I take the view that that the pursuer has "a need to know" and that in principle the documents are relevant and have to be disclosed so that there can be a fair trial of the issues and because, secondly, the pursuer already knows or has the means of knowing at least the outlines of all the concerns listed in Volumes 1 and 2 as well as the identities of the alleged perpetrators and the claimed victims. Accordingly my view is that there is no need for pre-notification.

[45] The question is about how to handle disclosure. There are two stages: the first stage is about disclosure to the pursuer; and the second stage is about disclosure of the proceedings to the world at large. A number of factors have to be weighed in the balance at each stage.

[46] At the first stage, there is no dispute about concealing the identities of the alleged non-family perpetrators: counsel for the pursuer states that the pursuer has no interest in knowing their identities and counsel for the havers is satisfied that the Article 8 ECHR rights of the non-family alleged perpetrators will be appropriately protected by anonymisation. I agree.

[47] The siblings, the mother and the step-father can also be anonymised in the Findings in Fact, giving proportionate protection to those individuals without in any way disadvantaging the pursuer. The names of foster-carers, teachers, medical practitioners etc may also be anonymised for their own protection and to prevent identification of alleged perpetrators and claimed victims. Part of the purpose of these redactions is to protect Article 8 privacy rights in the event of inadvertent disclosure of the documents or their contents to persons who do not have a need to know.

[48] The Findings in Fact Volumes 1 and 2 redacted in this way will be disclosed to the pursuer on the basis that, as is in any event implied, disclosure is strictly for the purposes of her action by which I would understand that disclosure is restricted to the pursuer, her legal advisers, expert witnesses instructed in connection with the forthcoming proof, and witnesses to fact who may require to be precognosced in relation to the contents of the documents for the proof.

[49] Sharing of the redacted documents with the defenders and their advisers is also authorised in the event that a question about the redacted documents arises between parties before the documents are lodged as productions. If the pursuer needs to disclose to other persons or needs to know the identity of anonymised individuals she can come back to Court for relaxations. The pursuer's concerns about pre-notification are superseded by my decision that there should not be pre-notification.

[50] Counsel for the pursuer also expressed concerns about notification in general, at any time, to the pursuer's siblings, her mother and her step-father. The concerns are that the pursuer, her mother and siblings still reside in the community where the alleged abuse took place and may be subject to embarrassment, harassment or worse; that the siblings and the mother may be witnesses; that the pursuer is vulnerable and that, if there is intimation to the mother, her mother will put pressure on the pursuer; that family members to whom notification is made will try and take money from the pursuer if her action succeeds. Without necessarily accepting that all these concerns are relevant, they can be debated further when it comes to making decisions about disclosure of the proceedings.

[51] A large part of the difficulty about disclosure of these proceedings arises from the fact that public authorities including the Scottish Ministers themselves have created conditions in which it is very difficult to prevent identification of the individuals involved: the community in which most of the affected individuals continue to live is a close-knit one; and members of the local community who hear about the pursuer's action could well make an immediate connection with the events that were widely reported in the years 2003 to 2005.

[52] Without prejudging matters, including the matter of competency, there could be an argument for some reporting restrictions in this case. I say this on the basis of the privacy rights that are at stake and on the basis that the public interest aspect has already been substantially satisfied by the publicity given to the police operation in 2003, by the reporting of the termination of criminal proceedings in 2004 and by the coverage given to the publication of the Report in 2005. Only a strong case can prevail over the Article 10 ECHR rights of the press and the utilitarian and constitutional arguments in favour of public justice [In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593].

[53] There must be a public interest in knowing, at the very least, whether or not the defenders are liable in damages to the pursuer, and in general whether local authorities are liable in damages to victims for failures of their child protection services. These matters have to be debated further.

[54] In the meantime I shall correct the interlocutor of 15 April 2011 by deleting the reference to intimation; and I shall appoint the havers to redact the documents recovered along the lines proposed above, the documents once redacted to be lodged and disclosed to the pursuer. The case will then be put out By Order to discuss reporting restrictions and the question whether the third parties should be offered the opportunity to make representations about further redaction, anonymisation and reporting restrictions before the proof takes place.

[55] I have anonymised this Opinion ex proprio motu having regard to the advice given in Practice Note No 2 of 2007.