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The risk of criticising third parties in decisions and reports

Sarah Ellson
10/03/2022

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United Kingdom

This blog summarises the recent decision of SW v The United Kingdom (Application no. 87/18) in which the UK was ordered by the European Court of Human Rights (ECtHR) to pay compensation to a social worker (SW) following a manifestly unfair judgment delivered in the Family Court. Whilst distinct from regulatory and inquiry decisions the case touches on important principles of fairness when making critical remarks about third parties

The facts

SW originally testified as a professional witness in childcare proceedings concerning the alleged sexual abuse of a number of siblings. After rejecting the allegations, the Family Court judge criticised the local authority and, in particular, found SW to be the principal instigator in a joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and the relevant professional guidelines. SW was not granted anonymity. The judge's findings were shared with all relevant local authorities and professional bodies and SW's employment was terminated without notice.

SW appealed the decision on the basis that SW had received no notice of the adverse findings nor the opportunity to respond to them. In the appeal, the UK Court of Appeal (CA) examined the process, or lack of process, and found the judgment manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Article 8 of the Convention. However, under Section 9(3) of the Human Rights Act, SW would have had to prove a lack of good faith on the part of the judge to receive any compensation. SW's regulator, the Health Care Professions Council, did not take action and, once parts of the judgment were redacted, concluded that there was no credible evidence to suggest SW's fitness to practise was impaired.

SW appealed to the ECtHR, under Articles 6, 8 and 13 of the Convention, and submitted that the proceedings were unfair, did not adequately safeguard SW's private life and that SW had been unable to claim damages for such violations. The Strasbourg court agreed that, even though the CA had directed parts of the judgment be redacted, the interference with the applicant’s right to a private life reached a sufficient level of seriousness for Article 8 to come into play and held that the CA decision did not afford appropriate and sufficient redress of SW's complaint. The ECtHR awarded monetary compensation.

The principle of procedural fairness

The CA decision found that the judgment had been unfair because the adverse comments about SW fell entirely outside the issues that were properly before the court and the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge. Most importantly, they had certainly never been ‘put’ to SW and the judge did not raise them even after the evidence had closed and the judge was hearing submissions.

These very issues, and how they might be addressed in civil procedures, were considered carefully in Lord Justice Salmon's report in 1966 as the Chair of the Royal Commission on Tribunals of Inquiry. This referenced cardinal principles of fair procedure under the Tribunals and Inquiries Act 1921, which came to be known as the 'Salmon principles'. These include, but are not limited to, the requirements to:

  • Inform any person involved in any legal proceedings of any allegations made against them and the substance of the evidence in support of these
  • Provide an adequate opportunity to the individual to prepare their case and take legal advice
  • Provide an adequate opportunity of testing by cross-examination any evidence which may affect the witness
Today, the above requires letters to be sent to participants to an investigation, notifying them of any potential criticism of their conduct, and providing them with an opportunity to respond before the publication of the findings.

For inquiries conducted under the Inquiries Act 2005, the Salmon letters have been codified into a process of 'warning letters' under Rule 13 of the Inquiries Rules 2006. The letters are sent to those who are participants in the investigation to warn those concerned of possible criticism of their conduct so that they would have an opportunity to respond before the publication of the findings.

In other proceedings the process is also known as 'Maxwellisation' (coined after the case of Maxwell v Department of Trade and Industry [1974] QB 523).

The risk of naming third parties

The case of SW highlights the importance of undertaking a fair process with third parties when making criticisms in a judgment or published report. The case emphasises how decision makers need to consider the rights of those who may be criticised in a decision and who have not been a direct party to the hearing (and may not have attended at all).
If decision makers must refer to third parties, they should consider carefully how third parties' rights, including the rights to a private life, employment prospects and not to be caused distress, can be adequately protected. In this case, the Family Court had reached views as to SW's conduct without SW having the opportunity to give evidence about, or comment upon, these issues. SW argued, and both CA and ECtHR agreed, that this was unfair in light of the inadequate consideration of SW's rights prior to the delivery of the judgment.

Final remarks

The case of SW v United Kingdom provides a helpful reminder that procedural shortcomings may result in interference with Convention rights unless offset by effective counter-balancing measures. It may also cause decision makers to pause and consider whether third party criticism are relevant or necessary.

How we can help

We understand that the involvement in any form of investigation can be a daunting and unfamiliar prospect. Our public law and regulatory team has extensive experience in advising professionals, organisations and interested parties in a range of sectors. Whether you are conducting, or are subject to, an investigation, they can advise on the conduct of the investigation, as well as any interactions with regulators and other enforcement bodies, to prevent or minimise any subsequent legal action.

For further information, please contact Sarah Ellson or Andrea Carrera.

This article was co-authored by Andrea Carrera.
 

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