Civil procedure: anonymity and non-disclosure

In certain circumstances, a person with HIV may be involved in some aspect of civil litigation and would not want their HIV status to be disclosed either to the other party or to the general public. This can be done either if a court case is heard ‘in camera’ (i.e., in private, where the press and general public are excluded), or if reporting restrictions are imposed.

Any court has the power to sit in camera where a public hearing would defeat the ends of justice.^1,2 Other than cases involving children and mental patients, it is extremely unlikely that a court would sit in camera to prevent publicity in a case involving HIV. Two identifiable grounds exist which tend to indicate that a public hearing would defeat the ends of justice. These are:

(a) The subject matter of the litigation would be destroyed by a hearing in open court. For example if the object of the proceedings is to keep certain information secret those proceedings need to be held in camera.

(b) Where a witness or a party is reasonably deterred from proceeding in public, a court is justified in sitting in camera. This point is more difficult to prove, but as a proposition it exists in law.

As stated above, a court would be most unlikely to be prepared to sit in private in an HIV-related case. There is a power for a court to order that a name or other information be withheld from publicity where a case is heard in public (section 11, Contempt of Court Act 1981). This power was considered in the case of R v. Westminster City Council ex parte Castelli and Tristran-Garcia.³ The applicants were two men diagnosed with HIV who had earlier commenced judicial review proceedings against the council for failure to provide housing and, as a result of the publicity their case generated, sought to prohibit any further publication of their names, addresses or other means of identifying them.

The judge stated that the test to be satisfied before an order under s.11 would be granted was whether the applicant would reasonably be deterred from seeking justice at the hands of the court if not protected by an s.11 order. In the event, the judge held that there was not sufficient material before him to establish the need for anonymity, especially since the proceedings raised questions of public interest, i.e., entitlement of EU nationals to public housing.

However, he also laid great emphasis on the fact that a further and insurmountable problem was that substantial publicity had already occurred as a result of one of the applicant's leave application. As he was unable to make a retrospective order, an order made at this stage in the hearing would be ineffectual. The applicants’ names were already in the public domain and they had therefore lost their anonymity.

The judgment does however give helpful guidance on making applications for anonymity. It states that in cases where the applicant's name alone will not provoke publicity, then at the ‘leave stage’ (preliminary consideration stage) an application for anonymity and for an s.11 order can be made. This application would be dealt with ex parte (done by one side only) and, if necessary, in camera. If the court decides in favour of making the order, it will be granted for a short time to enable notice to be given to the press and the Attorney–General and there can then be a full hearing.

In cases where listing the case by name could itself give rise to publicity, the application for anonymity will have to be made as soon as the papers are lodged. The papers should not be lodged until the Crown Office has confirmed that the application for anonymity can be heard by a judge immediately.

In the unusual case of Re W (Children) (Identification: Restrictions on Publication),⁴ a woman was prosecuted for recklessly infecting her former partner with HIV. She had two young children who were the subject of care proceedings (one was not HIV-positive; the other could not be reliably tested until he was older).

The local authority concerned with their care successfully sought an injunction prohibiting any media organisation from publishing information which could lead to the identification of the children, which included the identity of the defendant or the complainant in the criminal case. This action, based on the potential consequences to the children of widespread media publicity, was based on the right to respect for private and family life under article 8 of the European Convention on Human Rights. Although the application for an injunction was a civil case, it had the effect of conferring anonymity on those in the related criminal proceedings. Such circumstances are, however, very unusual and do not appear to have been replicated in any other criminal prosecution.