Anthony Metzer KC and Brenda Efurhievwe represented a client pro bono challenging the disclosure of their file in a sensitive appeal before the Criminal Injuries Compensation First-tier Tribunal (“FTT”).
The Appellant (R) received compensation under the Criminal Injuries Compensation Scheme 2012 (“CICS”) following a 2022 appeal to the FTT. The compensation related to several historic incidents of domestic violence, reported to the police. The FTT appeal considered relevant evidence, including police records and R’s oral evidence. R succeeded in her appeal, receiving damages for the incidents in question.
Several years later, R’s former partner (“AB”) made an application to the FTT seeking non-party disclosure of the FTT decision. Written submissions were drafted by counsel for R in relation to the appeal.
Anthony Metzer KC and Brenda Efurhievwe prepared robust submissions, challenging the disclosure of confidential documents relating to the 2022 appeal, arguing that granting AB non-party access was contrary to the purpose of CICS and increased the risk that sensitive evidence, given with the expectation of confidentiality, may become public. It was stressed that sharing this confidential information with the alleged perpetrator risks creating a precedent which could deter other victims of crimes of violence from seeking compensation under the Scheme.
In their submissions, they argued that the application amounted to an attempt to abuse of the open justice principle, as its primary purpose was to obtain material to pursue future litigation, including a potential defamation claim. Disclosure in these circumstances would risk causing R significant harm, while not advancing the public understanding of the FTT’s work.
The Appellant successfully opposed AB’s application for non-party access to documents. The Tribunal refused the application, stating that balance clearly fell against disclosure, as the application was not concerned with the proper functioning of the justice system or the advancement of the public interest.
The FTT accepted that R is a vulnerable individual and the subject matter of the appeal was of a highly sensitive and person nature. Given the procedural framework at the time, the FTT accepted that R had a legitimate expectation that the matters raised in the appeal would remain private and that she would not have pursued the appeal if the material could later be disclosed.
The FTT found that disclosure of the requested material would breach R’s right to privacy as the requested documents contain confidential and sensitive matters. Furthermore, the application was considered to be motivated primarily by personal concerns and based on speculative reasons. AB’s distress at having not been present during the appeal, did not provide a basis for disclosure, as he had no right to attend the hearing in question. It was held that distress does not advance the principle of open justice enough to justify overriding R’s right to privacy.
The FTT also agreed that breaching the principle of privacy in these circumstances may create a significant disincentive to other victims of crimes of violence from pursuing an appeal at the FTT. An FTT appellant’s reasonable expectation of privacy should only be displaced for cogent and persuasive reasons. While the FTT retains control of its procedure, procedure rules do not confer any right on alleged perpetrators to be joined as a party or attend a hearing in a CICS appeal.
Anthony Metzer KC is a member of the civil, criminal, immigration and public law and family law teams.
Brenda Efurhievwe is a member of the Civil Law, and Immigration and Public Law teams.
Related barristers: Brenda Efurhievwe (Efu-rie-ve), Anthony Metzer KC
