What is the 'it'?

Riddle me this, Batman: when is an anonymisation not an anonymisation?

Answer: when it is somebody’s name, and it only looks like an anonymisation.

Exhibit one: “SKA” or “Ska”?

The latter is a dance craze from Jamaica that was popular in London circa 1980. You may have heard of Madness. (See above.) Or The Specials. Or pork pie hats and nutty boys. But it could also, I suppose, be somebody’s name. (“Mr Ska”. I might adopt that as my DJ name.)

The former, on the other hand, is an anonymisation: see the High Court decision of SKA v The Queen (2011) 243 CLR 400. “SKA” is a set of fake initials. They may or may not bear any resemblance to the offender’s real name – you would hope they don’t, or else it’s not an entirely successful attempt at anonymisation, especially if the person hails from a small country town (in which case their identity, and more importantly the identity of the victims of their offending, is probably already well known, at least locally; the deflection of same I would have thought is the whole point of anonymisation).

Exhibit two: “EM” or “Em”?

The latter is an item of typography, most commonly used to measure the length of “em dashes”, ie, the long dashes in printed text which you would normally find in books, newspapers and magazines as an item of punctuation, generally to divide one part of a sentence from another part.

But what about the former? There is a High Court case the name of which appears in the Commonwealth Law Reports, in all capitals, as EM v THE QUEEN. You would be forgiven for thinking that “EM”, like “SKA”, is an anonymisation of the name of the offender. But, in this case, you would be wrong: unlike SKA, “Em” is in fact the surname of the offender. Therefore, if your judge is citing the case, they shouldn’t be using “EM” at all. The correct citation is:

Em v The Queen (2007) 232 CLR 67

And if it’s “Em v The Queen”, it might also be Imm v The Queen (2016) 257 CLR 300. And yet it isn’t. It’s “IMM v The Queen”. WHY DO THINGS HAVE TO BE THIS DIFFICULT?

How would anybody be expected to know that one is “SKA” (or “IMM”) and the other is “Em”? If your judge is citing (as they should be) the Commonwealth Law Reports for these cases, both parts of the name appear in all capitals: “EM v THE QUEEN”; “SKA v THE QUEEN”. What you need is an iteration of the case name that only uses initial capitals. Some courts (the High Court happens to be one of them) repeat the title of the case, using only initial capitals, somewhere on the front page of their published judgments, presumably for this very reason. (This is also useful for confirming the capitalisation of names like “WorkCover”, or “LibertyWorks”, or, so help me God, “PricewaterhouseCoopers”.) But you have to know to look for it; it is likely to be buried somewhere amidst a host of other information, and the boldness and prominence of the all-capitals title means that that is likely to be what your eye is drawn to.

Similarly, most law reports will include a case name on each page (so you know you are still reading the same case), either running down the side of the page or across the top. But sometimes these, too, are in all capitals, in which case the only way you will be able to confirm whether you are dealing with a name, or an anonymisation that looks like a name, is by checking the table of cases for the relevant volume of the law report. These usually live at the front of the volume. The problem for you, as a denizen of the digital realm, is that if the table of cases is available online at all it will be somewhere entirely different from where you found the case itself. You might have to – shock, horror – find the physical book.

Thus, a case name like “Em v The Queen” is likely to fall into the totally unhelpful category of “if you know, you know”.

(On the other hand, the mistaken use of all capitals might give Mr Em some plausible deniability in relation to his criminal past.)

* * *

There are other problems with anonymisation. In Victoria, for example, recent practice has been to invent what looks like a legitimate name for an anonymous accused. The Supreme Court will give the judgment in one of these cases a name that looks like this:

Stanley Emmerson (a pseudonym) v The King

The citation question I find myself wrestling with is: what part of the name should you keep and what can you throw away?

Two relevant rules are in play here. The first is the usual rule for case citations, which is to ignore first names. The second is that it is not uncommon, when constructing a name, to jettison things that are in parentheses.

Adopting both of those rules would give you a case name that looks like this:

Emmerson v The King

Is that okay? It looks like a case name. But there is nothing there that provides even the slightest hint that we are dealing with an anonymisation – unlike, say, “SKA”. Any actual Emmersons in the jurisdiction might feel unfairly maligned. This might suggest that the “(a pseudonym)” part of the name should stay in – it is clearly doing useful work.

But what about the first name? This raises a philosophical or existential question (sorry not sorry): if the entirety of “Stanley Emmerson” is an invention, is “Stanley” even a first name at all (and thus, by usual convention, omitted from a citation)? Or is it something different? And what would that be? A string of letters which might look like a name but which in reality is neither a first name nor a surname – a “construct”? And if “Stanley” is not a “first name” then what is the basis for not including it as part of the case name? If it was a company name, you wouldn’t be leaving part of it out. Is there any real difference?

Oopsie, I think I just broke my own brain.

In other words, there is an argument that we are stuck with using the whole thing:

Stanley Emmerson (a pseudonym) v The King

That is more than anybody should be required to put in a citation, if you ask me. As a matter of practical reality, “Emmerson (a pseudonym) v The King” seems perfectly fine. I probably wouldn’t go any shorter, but there isn’t much to be gained by making it any longer.

* * *

And then there is South Australia, where, in recent years, an approach has developed whereby anonymisation of offenders’ names has been by way of using their initials, but with the last initial first, followed by a comma. In other words, if the person’s initials are SBE, the case name would be:

E, SB v The King

Is a judge supposed to know how to cite that in a judgment? Verbatim, it looks a bit like the judge’s cat ran across their keyboard. You could omit the comma and space, and just go with “ESB”, I suppose, but that would subvert South Australia’s presumed intention, as it scrambles the person’s initials, which are “SBE”. But if you went with “SBE’, would that be searchable against the original case name? It’s a long way from “E, SB”. On the other hand, referring once more to the usual rule about not using first names, should it just be “E”? There must be an answer. But I am struggling to find a good one.

* * *

The Victorian and South Australian approaches both strike me as falling within the category of things that seemed like good ideas at the time. I have had a few of those. They generally don’t end well.