‘TRANSPARENCY’ AND THE COMMON LAW

‘Open justice’: the common law starting point

 

‘Transparency’ in family proceedings – as it is known – in reality means the opposite. It means the extent to which family lawyers permit the common law open justice principle to be restricted and made more opaque (ie not transparent at all). Recently Roberts J, described her job as ‘to find a way through somewhat rocky terrain [in a matrimonial financial case] where, as everybody appears to agree, there is no clear roadmap’ (in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2014/2314.html). Family lawyers have found it hard to read the maps in what is, essentially, relatively straightforward legal terrain if you start with the common law. It is the common law which this note outlines.

 

The starting point is open justice. Lord Bingham said that laws should be ‘publicly administered in the courts’ (‘Rule of Law’ (2006 – http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php). Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law, as summarised by Civil Procedure Rules 1998 r 39.2(1), confirms it: ‘The general rule is that a hearing is to be in public’; or as Toulson LJ (now Lord Toulson) recently explained it in Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (http://www.bailii.org/ew/cases/EWCA/Civ/2012/420.html) :

 

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

Family proceedings: exceptions to ‘open justice principle’

 

Family proceedings are bound by these rules as are all other civil (ie non-criminal) proceedings save where Parliament has said something different (eg to protect children proceedings). Exceptions exist at common law – Lord Toulson’s ‘unwritten text’. Three areas of civil and family proceedings need to be considered:

 

• Children proceedings (including care proceedings and adoption)
• Family money proceedings (like the Hohn case)
• Other family proceedings: divorce, domestic abuse, parentage etc

 

Though we speak of ‘privacy’ the criterion is not that the hearing is private; but mostly that nothing, or only parts of it, can be published. Publicity is the general rule, unless something in a statute, or a court order in the particular case, says something different. Thus, even of proceedings ‘in private’, it is not illegal to publish ‘information relating to proceedings’ unless they are in respect of children or their upbringing (Administration of Justice Act 1960 s 12). That leaves open season on all other family proceedings, save as dictated by the common law or as ordered by the court.

 

The law is most easily approached as it is summarised by CPR 1998 r 39.2(3) which sets out a simple list of those types of individual case where publicity may be restricted by the court. The list includes:

 

• A hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (eg enable someone to get rid of assets which the applicant was trying to freeze);
• The case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (which would apply in many matrimonial financial proceedings, such as Cooper-Hohn); and
• ‘The court considers this to be necessary, in the interests of justice’.

 

If the family court considers these provisions and then balances them against the right of the press – generally – to publish, then Mrs Justice Roberts’s map simplifies itself.

 

‘Use’ of documents following the court proceedings

 

Beyond this, a question remains as to the ‘use’ of court documents outside the proceedings. The law distinguishes between three categories of use:

 

• The document disclosed under compulsion: ie because the law says the document must be produced (ie most documents produced in civil proceedings);
• Documents ‘referred’ to in court; and
• Documents where publicity is restricted but which a party wants to release (ie publicise in some way), or a third party wants to see.

 

It has long been the law that documents in category (1) – whether they are produced in public or private proceedings – are immune from being released to third parties (ie published in the broadest sense of the word, which may include to the press: know to lawyers as the ‘implied undertaking’ by the party who receives the documents not to release them further). This would cover many financial documents in family proceedings.

 

In category (2) there may be an issue as to whether the document has been ‘referred’ to in court; and this includes documents merely read by the judge as part of his/her preparation for the case. The document may then be referred to in court almost only in passing. If it is in this category, the document may be published outside the proceedings, unless the court says otherwise (it was in this type of proceedings that the Lord Toulson quote above arose). A party, or a third party to whom the document belongs, can ask the family court to restrict publication.

 

Of category (3): a particular line of family cases has arisen where the court is asked by one party or a third party (eg the tax authorities) for release of documents. On this the law is unsettled: some judges think wrong-doing (eg tax evasion) should be exposed, whatever the risk to future disclosure; whilst others – perhaps the majority – feel that possible dishonesty should be kept private, even from state authorities.

 

Conclusion

 

It is to be hoped that if the common law is followed, as outline above, the road will not be as ‘rocky’ as Mrs Justice Roberts sees it. The questions for judge and legal adviser to ask are:

 

• Is it a children case: publicity will generally be denied subject to order of the court?
• In any other category of family case: is there any positive reason (such as those referred to above) why the case should be heard in private (eg private financial information)? And if documents have been ‘referred’ to: should their publication be restricted?
• If a third party or government body want to see documents: how is privacy to be balanced against the need for the court not to condone dishonesty?