WHY FAMILY LAW GETS PRIVACY WRONG – response to ‘transparency’ consultation

RESPONSE TO CONSULTATION: ‘Family Transparency: the next steps’

This is not a blog, but merely a means of publicising my response to the ‘transparency’ consultation. I ssek to show that for a long time family lawyers have misunderstood the common law, when it comes to privacy and open court justice. Court rules may be ultra vires. The short point is that privacy in any case must be justified; though in certain categories of case (eg children law) justification will be relatively straightforward.

Consultation paper from Civil and Tribunals Judiciary

A REPLY BY DAVID BURROWS

The CTJ consultation paper

  • The paper starts by setting out the views of the CTJ, expressed by Sir James, as follows:

A key element of the family justice reforms is the transparency agenda – finding ways of opening up the workings of the Family Court to public scrutiny so as to increase understanding of what we do and how we do it, whilst at the same time preserving confidentiality and respecting the private and family lives of those whom the system serves.

The underlying principles are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

  • It goes on to point out that Sir James had ‘announced’ that he would be issuing a consultation paper. This, says the CTJ document, is that paper. It invites comment on four areas of family proceedings work:
  • Comment or Sir James’s Practice Guidance of 16 January 2014
  • Secondly the CTJ seek views on the listing of cases.
  • Thirdly the CTJ seek views on further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • Finally the paper seeks ‘preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • This reply will concentrate on the third and fourth invitations. It will touch on the first only to the extent of urging those who run the family courts system first to respect ordinary rules of precedent. That should be the extent of Sir James’s concerns with law-reporting.

Summary of reply

  • This reply will start by seeking to define the common law bases for open justice – civil or criminal; and it must be done, and seen to be done (the Sussex Justices principle). This reply will assume that family law is but part of the civil justice system; not, as Sir James has often reminded us, part of some lawless Alsatia separate from the rest of civil justice.[1]
  • The open justice principle applies to all family proceedings. There are statutory exceptions to this, which will prevent or inhibit those who may attend a family hearing and the extent to which that hearting can be reported (Sir James clearly explained these exceptions in Re J (A Child) [2013] EWHC 2694 (Fam)). FPR 2010 r 27.10 and much of r 27.11 (which declares that proceedings covered by FPR 2010 are ‘private’ and purport to sanction certain media attendance at court) are probably unlawful at common law and made ultra vires the rule-makers.
  • The same applies to publicity for documents in family proceedings, save to the extent that the common law (summarised in CPR 1998 r 31.22) inhibits their ‘use’; or to the extent that they are derived from a hearing which in law or by judicial direction is held in private.
  • I shall therefore start by defining what I understand to be the common law on open justice. I shall explain how the common law and statute have restricted openness in respect of court hearings and of documents which are disclosed and produced at those hearings (including witness statements and expert’s reports). I shall conclude this part of my reply by asserting that family law must come out of its developing Alsatianisation. Its judges must apply the common law.
  • If this common law approach to family proceedings is recognised, then the job of family lawyers, judges and of would-be reporters of family proceedings would be relatively much easier.
  • I shall suggest that, so far as the consultation paper is based on assumptions on openness which are not in accordance with common law and statute it is redundant. The ‘open justice principle’ needs to be applied clearly to family proceedings. The vires of FPR 2010 rr 2710 and 27.11 need to be properly reviewed through a common law prism; and the common law and statutory exceptions to open justice must be clearly set out for family lawyers and the press fully to understand and apply.
  • This paper therefore proceeds as follows:
  • Open justice
  • Open justice: common law and Civil Procedure Rules 1998
  • Law-making: practice directions, practice guidance and precedents
  • Documents and open justice
  • An good starting point for family law reformers would be to consolidate into one statutory provision the exceptions to common law rules in relation to children proceedings (eg in AJA 1960 s 12and CA 1989 s 97). In one clear provision the law in this area would be so much easier than now, for the many lay people concerned, to understand.

(1)        OPEN JUSTICE

‘The open justice principle’

  • A modern statement of the ‘open justice principle’ is to be found in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 per Toulson LJ:

[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.

‘Disclosure to the media of documents’

  • Though the Guardian case turned on the third main element upon which the consultation paper is concerned neither it, nor the later Kennedy case (which approved it) are mentioned. Yet, from at least the time of Bentham the principle that the press – now more widely terms the media – is society’s watchdog has been a cardinal principle of English law. The courts may not edit what the press, or others, choose report. This is fundamental to our society. The common law is ‘declared’ (as Lord Diplock described the process) in European Convention 1950 Art 10, as amplified by Human Rights Act 1998 s 12.
  • The extent of press freedom was explained fully by Sir James Munby P in Re J (A Child) [2013] EWHC 2694 (Fam) where he reminds the reader (especially at paras [20] to [40]) of his own, and number of other, cases on the subject. Sir James stresses the balance which may have to be struck between the respect for privacy for children and the right of parents and the press to give publicity to family cases. This applies especially in care and adoption proceedings.
  • In Re J, it will be recalled, a father had posted information about his daughter’s care case on ‘face-book’. Sir James defended the right of individuals aggrieved by the family court process to post their grievances on the internet, even when expressed in ‘vigorous, trenchant or outspoken terms’. He said: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.

Family lawyers: the wrong end of the telescope

  • The common law says ‘open justice’ is the starting point (explained by such House of Lords authority as Scott (above), Attorney General v Leveller Magazine Ltd [1979] AC 440 per eg Lord Scarman at 469 and so on down to Kennedy). FPR 2010 r 27.10 says the opposite. Which is right? (In much of what is written on this subject ‘transparency’ is the term used by family lawyers, adopted also by the CTJ paper. In fact family lawyers mean the opposite of ‘transparency’. They mean the extent to which FPR 2010, the court and the press permit the common law to be stifled – whether rightly or not, in subjective family terms – and thus the open justice principle to be subverted.)
  • The starting point for any debate on privacy in any civil court must be the common law. This is the correct end of the telescope from which to look. A substantial proportion of family lawyers (see eg some of the assumptions on which the CTJ paper is based and the response to it by Resolution (representing 6,000 family lawyers, mediators etc)) look into the telescope from the wrong end. They start from a presumption of privacy. Sir James is, mostly, an honourable exception to working from this assumption.
  • The common law starts from openness. Privacy can apply, where statute or the common law so assert; not where mere procedural rules (eg rr 27.10 and 27.11) – perhaps illegally – seek to provide. Openness is the correct end of the telescope to look from.

Fundamental rights: common law ‘the starting point’

  • If the common law is to be overridden this can only be by express statutory authority. Press freedom is guaranteed by European Convention 1950 Art 10. Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law (as summarised by eg CPR 1998 r 39.2(1)), confirms Art 6: ‘The general rule is that a hearing is to be in public’. Neither of these creates law, common law or otherwise. They merely provide a summary of what the law already says.
  • Having said all that, there is no question that Parliament is empowered to legislate in a way which is contrary to common law rights; but if it does so it must do so in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33; [2000] 2 AC 115 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners):

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

  • Privacy is not a matter for Parliament, since privacy is already provided for by the common law (as I explain below). The involvement of Parliament can only arise if Parliament decides to alter the common law and Human Rights Act 1998 s 12 and European Convention 1950 Art 10. There is no evidence of any Parliamentary will for promotion of privacy. Were there to have been it might have been incorporated into Children and Families Act 2014.

Statutory inhibitions on open justice

  • Open as against private justice concerns fundamental rights. Legislation at present is very limited, the most obvious being Administration of Justice Act 1960 s 12 (as explained by Sir James in Re J [2013] above). The fundamental position protected by the law is that all court hearings – civil (which includes family) as well as criminal – should heard in public. Any derogation from this must be justified: Convention rights and freedoms (the freedom to publish, being one), must be balanced against the open justice principle (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593). This is the correct end of the telescope.
  • Family lawyers have tended to think that hearings should be in private with open justice being the exception. The history to this state of affairs is traced by Thorpe LJ in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565. Family courts have therefore appropriated the term ‘transparency’.
  • This is wrong. A fundamental right, protected by the common law, can only be changed by express primary legislation (R v Secretary of State for the Home Department, exp Simms per Lord Hoffman (above); and see per Lord Hoffman again in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563, [2002] 2 WLR 1299).

Family proceedings and the ‘open justice principle’

  • FPR 2010 r 27.10 is as follows:

27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

  • FPR 2010 r 27.11 (as relevant here) then continues:

27.11 Attendance at private hearings

(1) This rule applies when proceedings are held in private, except…

(2) When this rule applies, no person shall be present during any hearing other than –

(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness;

(f) duly accredited representatives of news gathering and reporting organisations; and

(g) any other person whom the court permits to be present.

(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that –

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations.

(5) At any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) –

(a) a party to the proceedings;

(b) any witness in the proceedings;

(c) where appointed, any children’s guardian;

(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;

(e) the child, if of sufficient age and understanding.

(6) This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination.

(7) In this rule ‘duly accredited’ refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.

  • No vires for this rule are provided for, in the usual way: that is to say, by statute. The introduction to FPR 2010 states, in terms of general rule-making powers, that ‘the Family Procedure Rule Committee makes the following rules in exercise of the powers conferred by sections 75 and 76 of the Courts Act 2003…’. There is no reference to any power in the Family Procedure Rules Committee (‘FPRC’) to make rules which, in effect, override fundamental rights such as those protected by the open justice principle.
  • FPRC powers are proscribed entirely by Courts Act 2003 ss 75 and 76. There is no statutory provision – and all powers of such a body as FPRC must be defined by statute – which enables FPRC to override the common law, still less to override the European Convention 1950.
  • The probability is that r 27.10 as a whole, and at least those parts of r 27.11 which are italicised above, are ultra vires the rule-makers and therefore a nullity.

Open court: the correct end of the telescope for family lawyers

  • So what is the position in law on open justice within civil proceedings generally (which includes family proceedings)? The common law rule is that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords).
  • Publication on its own is not to be punished, said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

… unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally.

  • As Toulson LJ mentioned (at para [33] of Guardian v Westminster), another aspect of the open justice principle was picked up by Lord Scarman – ‘a thinker ahead of his time’, and in a minority in Harman (on a point which has now been altered to the position advocated by Lord Scarman: see CPR 1998 r 31.22) at that stage – in Harman v Home Office[1983] 1 AC 280, 316. Of open justice he said (at 316):

… [The judge] is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.

(2)        OPEN JUSTICE: COMMON LAW AND CPR 1998

Common law and Civil Procedure Rules 1998

  • Probably the easiest version of the common law to follow is as declared – ie the common law principle existed long before 1998 – in CPR 1998.
  • CPR 1998 rr 31.22 and 39.2 set out the principles relevant to what is under discussion here. Rule 39.2 (it makes more sense to consider r 31.22 later) provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;*

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;*

(d) a private hearing is necessary to protect the interests of any child or protected party;*

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice….*

  • Each of the sub-paras marked * would be relevant to family proceedings; and with these and any other accretions to the common law specific to family proceedings this rule would seem to be sufficient – as it is in all other civil proceedings – to dictate when a court should sit partly or entirely in chambers. That is to say, all hearings must be in open court, and any hearing in private must be justified one or more of the grounds set out in r 39.2(3) or in any other statutory provision (eg Administration of Justice Act 1960 s 12).

Common law and family proceedings

  • So what is the law today? There is no doubt. The common law rules. It dictates what the law is and what the family courts should follow. It represents the correct end of the telescope to place the lawyer’s eye. The common law can only be altered by express primary statutory provision, if that is what the legislature seeks (for which there is no evidence). FPR 2010 r 27.10 cannot alter the fundamental freedom of expression, essential to our common law.
  • The common law – as expressed by CPR 1998 r 39.2 above – serves perfectly well; and it is the common law, it is respectfully submitted here, which family court judges should follow.
  • The third subject in the JTC paper is release of documents to the media. Again, the common law deals with this as Toulson LJ explains fully in Guardian v Westminster. Family proceedings rules on disclosure, as FPRC assert (see their letter to me dated December 2013[2]), is essentially a matter for the common law.
  • The common law is declared by CPR 1998 r 31.22 and sets out a jurisdiction which arise from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides questions of ‘use’ (in this context) and the publication of proceedings overlap (considered by me further in Family Law News [2014] of 6 August 2014: Reporting restrictions in financial remedy proceedings: a review after case management in Cooper-Hohn’ (referred to above).

‘Use’ of documents

  • CPR 1998 r 31.22 (as relevant here) provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

  • There is no equivalent in FPR 2010 or in family procedural rules generally to CPR 1998 rr 39.2(3) or 31.22.
  • Issues of publicity for a hearing or of documents therefore arise in family proceedings, and in financial remedy proceedings in particular, in the following contexts:
  • Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
  • Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
  • Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
  • Even if (3) applies, whether a party can be restrained from use of the document.

Documents in financial remedy proceedings

  • The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo[2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. References to r 39.2 in family proceedings arise mostly only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108: by contrast in DE v AB [2014] EWCA Civ 1064 Ryder LJ managed to deal with privacy without any reference to r 39.2(3) at all).
  • In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

  • Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.
  • Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

  • If a document has been ‘read to or by the court, or [has been] referred to, at a hearing which has been held in public’ it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

  • In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are likely to be resolved (see eg Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)). Mr Allan’s application, on analogy with 31.22(2), failed before Munby J and before the Court of Appeal.

Release of documents to a third party

  • A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents.
  • Each case, Eder J emphasised, turns on its own facts (Crest Homes v Marks[1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

(3)        LAW-MAKING: PRACTICE DIRECTIONS, PRACTICE GUIDANCE AND        PRECEDENTS

Common law

  • Substantive legislation (eg Matrimonial Causes Act 1973, Children Act 1989) creates new law; but it may also codify or confirm the common law (eg Senior Courts Act 1981 s 37 merely confirms the High Court’s inherent jurisdiction generally to grant injunctions: by contrast MCA 1973 s 37(2) creates a new jurisdiction to restrain disposal).
  • Procedural rules, cannot create new law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). They can only do what the primary legislation enables them to do (as explained above in relation to FPR 2010, FPRC and its powers under Courts Act 2003 ss 75-76).

Practice Direction, Practice Guidance and ‘gap’ rules

  • Practice guidance divides into Practice Directions, Practice Guidance and ‘gap’ rules. Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice, who can delegate to the President of the Family Division (family proceedings Practice Directions issued by the President are endorsed as being approved by the LCJ).
  • The limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.
  • Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors (above) at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs)[2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

  • If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be.
  • A recent breach of this principle can be seen in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case Mostyn J issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other). The ‘guidance’ was no part of the ratio of the court’s decision. It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the Law Society or the Bar Council). It fills no Bovale gap necessary to enable the court to resolve a disputed issue in that case.
  • By contrast, an example of how a ‘gap’ practice direction may fairly be given by a judge can be seen in operation by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam). He set out what he proposed as practice guidance for a parent who was being prosecuted in proceedings parallel to care proceedings, and gave advocates involved a chance to be heard by him on what he proposed. A Bovale gap was filled. The law was correctly and fairly applied.

Rules of reporting family cases

  • It must follow from the above that a reporter does not need the court’s permission in any case to report it, subject to the substantial inhibitions placed upon him/her by any court order or by the statutory controls in eg Administration of Justice Act 1960, CYPA 1933 and Children Act 1989 s 97 (especially in relation to children proceedings). The 16 January 2014 Guidance is, to that extent, unnecessary.
  • It is for the reporter to decide what should be reported, and for the press to take any risk of an application to commit (see Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 (above)). Nor is it for the judges to advise the press as to what they may or may not publish, as Sir James (then Munby J) pointed out in Spencer v Spencer [2009] EWHC 1529 (Fam) (recalled eg by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)).

Precedent and citation of authorities

  • The fact that a judgment is published does not mean it is a precedent in any real sense of the word; still less does it mean that it is read. Citation depends on the authoritativeness of what is reported. A summary of what courts permit to be cited is in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001.
  • This practice direction direct – and it remains good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie citation, on this criterion, is unlawful):
  • Applications attended by one party only
  • Applications for permission to appeal
  • Decisions which establish only that a case is arguable
  • All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level.

(4)        DOCUMENTS AND OPEN JUSTICE

Use of court documents

  • Release of documents to a third party – essentially as covered by CPR 1998 r 31.22, which can be said to represent the common law and to apply in family proceedings – is the subject of the third part of the consultation. An essay to deal with the subject at common law is herewith.
  • The lead case is R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as approved by Kennedy v The Charity Commission [2014] UKSC 20 (decided after the essay below was written). Neither of these cases are referred to in the CTJ paper.
  • A simple conclusion, which answers the third part of the CTJ paper (‘III’) on a principled basis, is that the common law rules set out in CPR 1998 r 31.22, apply to all family proceedings. This is a conclusion in line with the Court of Appeal in Allan v Clibbery. If courts follow the common law – which they must – then therein lies the answer to III; and no more need be said.
  • If family judges feel they need principles to be enunciated that is for them, not for the CTJ or for Guidance from Sir James (for the reasons set out in section (3) above). The guardian case is the starting point; CPR 1998 r 31.22 the common law in summary; and, where need be, a European Convention 1950 balance between Arts 6(1), 8 and 10 (with Human Rights Act 1998 s 12(4) leavening, as need be) will be required to be conducted.
  • If children or other factors requiring privacy are involved then principles summarised on CPR 1998 r 39.2(3) will apply.

REPLY TO CTJ CONSULATION

‘Transparency’: family court emperor’s clothes

  • ‘Transparency’ is a euphemism used by family courts to justify often unlawful privacy. The history of this development is outlined by Thorpe LJ in Allan v Clibbery. Use of the term gets the law the wrong way around (the ‘wrong end of the telescope’ argument summarised above). Now is surely the time for Sir James to follow the logic of so many of his own decisions – starting with Allan v Clibbery at first instance – and to play the small boy at the family law privacy emperor’s court.
  • The panoply of case law and court rules all come down to there being no rule of privacy: the privacy emperor has no clothes. FPR 2010 r 27.10 is unlawful. In each family case – and general principles to define exceptions will be quickly developed by the common law, that is by family judges – open justice is the rule. To control indiscriminate open court hearings in family proceedings, common law principles (as summarised in CPR 1998 rr 39.2(3)) apply. This is a matter of law.
  • In respect of documents, CPR 1998 r 31.22 is the starting point, as further explained by ota Guardian v Westminster; and as elaborated upon in the essay below.
  • In the meantime the 16 January 2014 ‘guidance’ in the form put out by Sir James is not strictly necessary. It is based largely on a misunderstanding (see eg discussion of the vires of FPR 2010 r 27.10 and 27.11) as to the role of the common law and the open justice principle in family proceedings, balanced against the common law and existing statutory constraints upon that principle in family proceedings.

Reply

  • The CTJ paper invites comment on four areas of family proceedings work (as already summarised):
  • Comment or Sir James’s Practice Guidance of 16 January 2014. This Guidance is very personal to Sir James and shows no signs of having any real force in constitutional terms (see eg Constitutional Reform Act 2005 and Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).
  • Listing of cases (outside the scope of this reply).
  • Further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • ‘Preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • I feel I can offer little on (2); and that what I say about ‘guidance’ issued without reference to Constitutional Reform Act 2005 or Bovale is sufficient. Consultation on (4) is redundant if family courts consider themselves bound by common law and European Convention 1950 principles (as set out above). In my opinion they are bound by such principles; and that opinion is bolstered by a number of Sir James’s own decisions since he became a High Court judge.
  • Of (3): if the common law (summarised in CPR 1998 r 31.22) is applied – as, once more, I say it must be – then the need for any more on the subject of documents disappears. I commend my essay below on applicable legal principle (below) to CTJ (and to Sir James if it is he who takes this on for CTJ), on the subject of release or other ‘use’ of court documents.

OPEN JUSTICE AND PRIVACY IN FAMILY PROCEEDINGS

A new definition of privacy and open justice and family proceedings

  • The common law rule for any civil (including family) proceedings is simple. Privacy in any case must be justified. (FPR 2010 rr 27.10 and 27.11, and any other similar FPR 2010 rule, are to that extent unlawful, and should be revoked as soon as possible, please).
  • Justification of privacy in many family court cases and by reference to common law principles summarised in CPR 1998 r 39.2(2) will often be relatively straightforward. In children cases at least three statutory restrictions apply (as fully explained by Sir James in Re J [2013] (above)).
  • Release and other ‘use’ of documents will be governed by the common law as summarised in CPR 1998 r 31.22, as explained by the case law referred to in the essay below and as acknowledged by FPRC itself in their letter referred to above.
  • The CTJ paper asserts:

The underlying principles [of ‘transparency’] are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

Open justice: an absolute; justification of privacy

  • The need for ‘greater transparency’ is guaranteed by common law: indeed openness in justice is an absolute (see eg European Convention 1950 Art 6(1)).
  • Subject to appropriate judicially directed redaction, the public – so far as they want to – may read what is done in the family courts (the Sussex Justices principle). Any restriction of open justice must be justified according to legal principle (eg CPR 1998 r 39.2(3)).
  • In children cases there are a number of statutory exceptions to open justice, and thus limitations on, for example, liberty to ‘read’ or otherwise use documents from proceedings; and in other types of proceedings, r 39.2(2) exemptions may be used to support a privacy claim under r 31.22. This may depend, for example, on whether documents were ‘read’ in court, or whether an implied undertaking as to further use of disclosed documents applies.

‘Open justice principle’ in family proceedings

  • If the short set of principles summarised here are agreed to be a summary of English common law then it remains only to assert the ‘open justice principle’ in all family proceedings, to revoke offending rules, and to be clear as to the varied sources – statutory and common law – of the principles which guide restrictions on openness.

David Burrows

31 October 2014

1        DISCLOSURE TO THIRD PARTIES: GENERAL PRINCIPLES

Collateral disclosure

  • The rights of a party under European Convention 1950 Arts 6(1) and 10 bring into question the extent to which documents produced in court may be released to a third party whether (say) for publication or for private use. Here the public interest in an open trial – ‘the open trial principle’ – can be seen in conflict with the principle that a person who discloses documents in private litigation suffers a real incursion into his/her privacy. Any earlier case law, especially where procedures in the family court may be thought to conflict, must be seen in the light of the common law principles explained in Guardian v Westminster Magistrates’ Court (below).
  • As will be seen particular questions arise in family proceedings: the interests of children raise their own concerns. Financial remedy proceedings may give rise to special rights not to disclose derived from the concerns of family judges that spouses are not discouraged from disclosure by fear that their information will be passed on to others such as for tax assessment. A party producing documents in financial remedy proceedings may be covered by a measure of self-incrimination privilege, for example in respect of disclosure to tax authorities (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807). Subject to that disclosure is a matter which is regulated by common law principles (as explained in the main reply to the consultation); and by such inherent jurisdiction as the court may have to restrict disclosure.

Court’s inherent jurisdiction to control its own procedure: open justice principle

  • The jurisdiction of a court to permit release of disclosed documents (for example for publication) was considered by the Court of Appeal in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343. The court considered that each individual court’s jurisdiction to control disclosure of documents, where those documents had been used in court, was a matter for a court’s inherent jurisdiction to control its own procedure (and seeAttorney General v Leveller Magazine [1979] AC 440).
  • Such procedure was governed by the ‘open justice principle’ said Toulson LJ. It was founded in the common law. (The approach of Toulson LJ to common law development in this case is specifically approved by the Supreme Court in Reilly’s Application for Judicial Review [2013] UKSC 61, [2013] 3 WLR 1020 at [61]; and again in Kennedy v The Charity Commission [2014] UKSC 20).
  • It is a matter for the individual court to which application for release of documents is made, to determine to what extent this principle applies:

[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….

[73] More fundamentally, although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.

  • These general principles must now be considered in the light of particular circumstances:
  • Where permission to use documents for publication (ie release of documents so they can be published or otherwise seen by third parties) is requested
  • Where permission is sought for disclosure to government authorities (eg HMRC)

2        PERMISSION FOR PUBLICATION

Permission to third parties

  • In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 the Court of Appeal reviewed the law on access to court records and documents, in the light of Human Rights Act 1998 and of common law developments in England and Wales and abroad. Toulson LJ, with whom Lord Neuberger and Hooper LJ agreed, recognised (at para [90]) that the court’s decision ‘breaks new ground in the application of the principle of open justice’ but not, he thought, ‘in relation to the nature of the principle itself’.
  • The case concerned a successful United States extradition application of two men on bribery charges. The Westminster magistrate had held that she had no power to release to the Guardian documents which she had read and to which she had made reference in court. The Divisional Court agreed with the magistrate. The Court of Appeal considered the law afresh. It allowed the appeal and ordered that the Guardian should have access to the papers.

[87] In this case the Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.

‘The open justice principle’

  • In the course of his judgement Toulson LJ (at [33]) referred to Harman v Secretary of State for the Home Department [1983] 1 AC 280. He suggested that the principles set out in Harman can be said to be restored by r 31.22. In Harman Lord Scarman (at 316) made the following point on open justice:

‘… Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’

  • He then refers (at [34]) to Lord Bingham CJ in the Court of Appeal in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 AllER 498 (at 511-512):

Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

  • The court stressed the fact that for open justice to work in practice – where judge’s pre-read and where much evidence is in writing and literally taken as read – then it must be axiomatic that documents be released. This will be subject to any argument that public or third party disclosure will cause any risk of harm which may be caused to ‘the legitimate interests of others’. Toulson LJ explains this principle as follows:

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

3        APPLICATIONS FOR ‘USE’ BY THIRD PARTIES

Third party claims for release of financial remedy documents

  • A different set of principals can be seen at work where third party application is made for documents disclosed in financial remedy proceedings (eg under MCA 1973). This may occur, for example, where HM Revenue and Customs seek documents or information which has been disclosed. (Release to the Child Support Agency has now been put on a statutory footing: ). In the absence of agreement of both parties, the documents can only be released if the court orders. The principle was explained in the following terms by Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA 1315, [2011] 1 FLR 1427:

[76] Parties to a matrimonial dispute who bring before the court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • High Court authorities conflict. The only reported example of the Clibbery v Allan (above) principles being tested in the High Court since introduction of Family Procedure Rules 2010 arises in Revenue and Customs v Charman & Anor [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119, Coleridge J. Unfortunately Coleridge J does not reflect upon the common law position referred to above; and treated himself as proceedings under a rule which could not apply (FPR 2010 r 29.12(1)). He does not appear to have been referred to Guardian v Westminster Magistrates’ Court (above; though HMRC v Charman was decided seven weeks after the Guardian case). He does not look at the issue in the context of, or on analogy with, r 31.22 (as did the Court of Appeal ten years earlier in Allan v Clibbery (above; though Coleridge J does refer to Allan v Clibbery).
  • HMRC v Charman is directly in conflict with the views expressed by Charles J in A v A; B v B (considered separately below). That case considers the separate but analogous principle of whether a judge him/herself has any separate role in disclosure of documents to public authorities. Coleridge J only considers two cases in his judgement, and A v A; B v B is not one of them.

4        PRODUCTION ON COURT’S INITIATIVE

Report by the court

  • A separate question arises as to whether, and if so when, a judge should take it upon him/herself to report what may be regarded as abuses arising from the proceedings. This question was considered in considerable detail by Charles J in A v A; B v B [2000] 1 FLR 701. The judgement is technically obiter; but it contains a number of insights into the basis on which a judge might look at the issues of confidentiality which arise where the court is considering referring on to public authorities, balanced against the public interests which arise in such a case. Charles J pits his own views of such matters against those which can perhaps be seen in the two decisions on the same subject of Wilson J.
  • In the later Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 the Court of Appeal considered A v A; B v B but only in neutral terms (at para [70]) and without substantive comment. It remains the fact that this jurisdiction has not been considered (save in Allan v Clibbery) in any detailed way in the Court of Appeal, still less in the Supreme Court. Confronted by an application by a third party (such as HMRC) the adviser has no principled higher court guidance as to the principles to be applied.
  • A v A; B v B involved two ancillary relief claims which had been listed together before Charles J, because the two husbands’ joint business interests meant there was a considerable overlap in their financial affairs. By the time of the hearing the husbands had admitted attempting to hide the true extent of their assets and of their tax liabilities. Agreement was reached at the end of the first day, and consent orders were approved by the court. Before the orders were drawn up, Charles J indicated that he was considering whether to refer the papers in the case to various third parties, including the Inland Revenue and the DPP. The cases were adjourned to enable the parties to prepare argument on issues relating to disclosure. The judge sent a draft judgment to the parties which dealt with issues of disclosure to public authorities, to give them an opportunity to make further submissions.
  • This case will be considered at some length since it provides a full judicial essay in explaining when the court should, on its own initiative, breach any implied undertaking given to it, override the general principles in CPR 1998 r 31.22, and to adopt a principled approach to the overriding of the self-incrimination privilege which otherwise applies in financial remedy proceedings (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807).

Disclosure volunteered by the court

  • Charles J (at 711-2) started from the proposition that there was no clear authority to which he had been referred or that he had found ‘relating to the approach the court should adopt in deciding whether itself to initiate and make disclosure of material coming to its attention’. He referred extensively to the decisions of Wilson J in S v S (above) and R v R (Disclosure to Revenue)[1998] 1 FLR 922.
  • These cases, he said, confirmed the lack of directly relevant authority. He distinguished his decision from that of Wilson J. Those decisions were concerned with granting permission (prospectively or retrospectively) to a party to make disclosure or to a third party to receive disclosure. His decision concerned ‘as to what disclosure should be initiated and thus volunteered by the court’. But he continued: ‘…in my judgment the approach to both questions should fall to be determined by the same general underlying considerations’.
  • In either respect – disclosure to third parties on application by a party or third party, or volunteered by the court – Charles J took the view that the factors for the court to

consider were as follows (at 712):

Generally 

In my judgment when a court considers issues relating to disclosure of documents or information it is important to identify why the court’s permission or direction is necessary and thus (i) the relevant statutory provisions or rules, (ii) the extent and purpose of the relevant duties of confidence, (iii) the relevant private interests, and (iv) the relevant competing public interests.

  • Under the heading ‘statute and rules’ he sets out references to Administration of Justice Act 1960 s 12 (which he holds not to be relevant in these proceedings) and the then relevant rules in Family Procedure Rules 1991 as follows:
  • FPR 1991 r 2.66(2)
  • FPR 1991 r 4.16(7) with Re PB (Hearings in Open Court)[1996] 2 FLR 765 on r 4.16(7) which is in similar terms)
  • FPR 1991 rr 10.15 and 10.20

Release of documents to the Attorney General

  • In Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P considered the extent to which that court had a right – a duty even – to release confidential documents to the Law Officers in the context of children contempt proceedings. Papers had been released by the court so that consideration could be given by the Attorney General to an application for committal of a mother in child abduction proceedings. Her advocate – ‘as he was entitled to’ (para [11]) – challenged the standing of the law officers to make application for her committal (the President answered this question fully in paragraphs [14]-[17] of his judgement).
  • Of the court’s entitlement to release documents to ‘some outside agency’ Sir James Munby P said:

[12] It is well known that, on occasions, judges refer the papers in a case which has been before them to some outside agency with a view to that agency considering whether or not to take any steps arising out of the matters referred by the judge. Sometimes the papers are referred to the police, the Crown Prosecution Service or the Director of Public Prosecutions with a view to the possible commencement of criminal proceedings. Sometimes the referral is to some professional or other regulator. Sometimes the referral is to Her Majesty’s Revenue and Customs. Sometimes, as here, the referral is to the Law Officers. No doubt there are other instances. Although the basis upon which such referrals are made has not very often been explored in any depth – the judgment of Charles J in A v A; B v B [2000] 1 FLR 701 is an exception – there can be no question about the right of the judges to act in his way. Nor, in my judgment, can there be any objection to a judge, as here, referring the papers to the Law Officers with a view to them considering whether or not to bring proceedings for contempt; and, I should make clear, whether the contempt is criminal or, as in the present case, civil….

Confidentiality and the court’s order

  • Charles J considers any role he might have in ordering release of court documents in the context of confidentiality. The documents he was considering are confidential documents disclosed in private proceedings. He points out (at 715) that duties of confidence can arise in various ways which include where documents are provided as a duty or volunteered, or in accordance with court rules. The duty of confidence will be defined as follows:

In each case the reason(s) why, and the purpose(s) for which, the information is volunteered, or the duty is imposed will define the extent of the duty of confidence, and thus of the use or disclosure that is authorised without the need to seek the permission of the provider of the information, or to consider where the overall public interest lies.

  • He is clear in his view that confidential information which is disclosed pursuant to statutory or other duties should be used only for the purposes for which it is disclosed (which proposition he backs with extensive authority). It is in the public interest that such disclosure should be limited; but ‘it must be remembered that such limitation includes use and disclosure in the overall public interest’. He connotes these limitations with the implied undertaking’ in relation to disclosed documents.
  • He concedes however, that one of the purposes of the implied undertaking is to induce or encourage litigants to make full disclosure. He cites the comments of Lord Oliver in Crest Homes plc v Marks[1987] 1 AC 829, 857F Lord Oliver as an example:

Mr Morritt, however, on behalf of the corporate appellants, has rightly drawn attention to the importance, stressed in Home Office v Harman [1983] 1 AC 280, of preserving the implied undertaking. It should not be relaxed, it is said, as a matter of public policy, for otherwise litigants may be deterred from making full and frank disclosure.’

  • He concludes his survey of confidentiality, the implied undertaking and the issue before him (disclosure to a third party) by looking at these issues in the light of the ancillary relief jurisdiction. He refers to the duty of disclosure arising from Livesey v Jenkins (at 717):

It is well established that in proceedings for ancillary relief there is a duty on the parties to provide full and frank disclosure as to their means and other relevant circumstances (see, for example, Jenkins v Livesey (Formerly Jenkins) [1985] 1 AC 424, 437H—438A, sub nom Livesey (Fornerly Jenkins) v Jenkins  [1985] FLR 813, 821C and Baker v Baker  [1995] 2 FLR 829, 831—833 and 837). In my judgment this means that parties do not have a choice as to what information they provide relating to their means and other relevant circumstances. In my judgment, such information, whether provided by affidavit, or in answer to questions (before or after orders of the court), is provided under compulsion for the purposes of the application of the implied undertaking.

  • On the basis that ancillary relief proceedings are generally held in private then ‘rights of confidentiality and privilege are reserved in respect of all material provided by the parties for ancillary relief proceedings with the consequence that the implied undertaking applies to all of that material’. Thus, he says, his decision on further disclosure should operate as follows (at 718):

(a) that if a party had sought leave to disclose or use the material the implied undertaking would apply and disclosure or use in breach of it would be a contempt. This corresponds with the point made above under the heading ‘Statute and rules’ that disclosure of material covered by rr 10.15 and 10.20 of the 1991 rules without the permission of the court would be a contempt, and

(b) that in any event the court should apply an approach to those questions equivalent to that taken when the implied undertaking applies.

  • He concluded his decision in relation to confidentiality and the implied undertaking by referring to the absence of statutory provision preventing the court from ordering disclosure. From this absence he concludes that he is entitled to ‘release or modify’ the confidentiality conditions on which documents are disclosed between the parties:

In the absence of statutory provision precluding use in the overall public interest, the general position is that confidential material can be so disclosed, and used, and this is reflected in the cases relating to disclosure of material with the leave of the court, whether that leave is required because of the implied undertaking or by a rule of court (see for example Re Arrows Ltd (No 4) [1995] 2 AC 75, 103H—104,…  Re EC (Disclosure of Material)  [1996] 2 FLR 725, 728E—733H and Vernon v Bosley (No 2) [1998] 1 FLR 304, 319B—D and 344F—G). It follows in my judgment that a court can release or modify the implied undertaking, or give leave to disclose material subject to it, if it concludes that to do so would be in the overall public interest.

  • On the basis of its findings as to the inherent jurisdiction of the court to define its own jurisdiction on this subject (see ota Guardian News and Media Ltd (above)) it seems unlikely that a Court of Appeal faced with this decision, would differ from Charles J, and his view of the extent of his discretion as to disclosure to third parties. And this might be the more so if the public interest (eg that individuals should pay their taxes) is held to demand it.

Relevant public and private interest

  • Charles J summarises how he sees the relevant public interests (at 722), and then the professional duties which arise and impact upon his decision (he had been concerned as to the extent to which lawyers in the case may have permitted the court to be misled). He holds that there are ‘strong public interests’ as follows:
  • In ‘the proper and efficient investigation and prosecution of crime’;
  • That all tax should be paid and that in serious cases evaders of tax should be convicted and sentenced (a ‘factor in this public interest is that taxpayers have a duty to inform the Revenue as to their affairs and cannot remain silent’)
  • In the proper, fair and efficient administration of justice.
  • A v A; B v B was published some years before R v K and must be seen alongside that decision. For present purposes the decision in R v K concerns the extent to which a party to financial remedy proceedings can claim self-incrimination privilege in subsequent criminal proceedings (as compared with a judge dealing with an application to release or ‘use’ documents; or to release information on his/her own initiative). Self-incrimination privilege is available in other proceedings, because disclosure of information in financial remedy proceedings is treated as being required by compulsion. The balancing of public interests in any question of overriding self-incrimination privilege is governed by the Privy Council decision in Brown v Stott [2001] 2 WLR 817, PC.
  • In that case, Lord Bingham explained the qualification of any right to self-incrimination privilege, comprised as it is as part of the right to a fair trial. In particular he stresses the balance of the needs of the individual as against those of the community. He explains his view as follows (at 704):

The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.

Release to a public body: the balance after R v K

  • In R v K the Court of Appeal treated Brown v Stott as establishing the following principle:

[41] …. that a restriction of an accused person’s right not to incriminate himself will not infringe his right to a fair trial provided that the compulsion under which the information is obtained is of a moderate nature and the use of the evidence obtained by it represents a proportionate response to a pressing social need.

  • So said the court if they were to allow the Revenue to rely on K’s evidence – in effect to release it for open use (in terms of r 31.22) they must consider the extent of the ‘social need’. In R v K it was to suppress tax evasion; but in the context of the information being required of him originally under threat of imprisonment, which the court regarded as ‘severe’. They reasoned their view of release or not of the information, and their discharge of the balancing exercise required of them, as follows:

[42] … The social purpose for which the Crown seeks to adduce the evidence in criminal proceedings is the suppression of tax evasion. No doubt the protection of the public revenue is an important social objective, but the question is whether the admission of evidence obtained from the accused under threat of imprisonment is a reasonable and proportionate response to that social need. In our view it is not. This is an unusual case in as much as the Crown accepts that without the admissions made by K it has insufficient evidence to maintain a case against him. In many cases information obtained by way of disclosure in ancillary relief proceedings will provide leads that enable the Crown to obtain evidence from other sources that is sufficient to support a prosecution and in such cases there will be no need to rely on evidence obtained from the accused himself. That has not been possible in this case, but even so, we do not think that the need to punish and deter tax evasion is sufficient to justify such an infringement of the right of the accused not to incriminate himself.

Release of documents; self-incrimination privilege

  • R v K dealt with the position as to privilege in respect of information already available to the Crown, and whether it could be deployed in court. A v A deals with the prior position. To that extent the two cases are no analogous. Charles J’s analysis, though obiter, holds true for a judge’s assessment of the balance required to release the information and documents. Whether or not they are covered by self-incrimination privilege is a second stage in the process of their use by the public body concerned.
  • Charles J summarised his judgement with a list of conclusions. Perhaps the most direct and assertive of the role of the judge – to avoid the cheapening of the law (as he sees it) – is as follows (at 746):

(13) It seems to me that generally there is very considerable force in the proposition that as Wilson J said in S v S tax evasion is greedy and antisocial which has the consequence that the court should not condone it, or be seen to condone it, in any way. As Wilson J says in S v S at 777G:

It feels unseemly that a judge to whose notice tax evasion is brought should turn a blind eye to it by not causing it to be reported to the Revenue. In one sense that would almost cheapen the law.

I would go further and say that to do so would cheapen the law.

[1] See comments of Munby LJ in eg Richardson v Richardson [2011] EWCA Civ 79

[2] After careful consideration the Committee concluded that the Family Procedure Rules in relation to disclosure provide as much as is needed. The Committee had not wanted to provide for open-ended disclosure by list, so had included only those provisions that were necessary. The rules in Part 9 (Applications for a financial remedy) and 21 (Miscellaneous Rules about Disclosure and Inspection of Documents) were not restrictive and did not undermine the common law duty of disclosure. It was considered that this was a training issue rather than one that required rule amendment.

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4 thoughts on “WHY FAMILY LAW GETS PRIVACY WRONG – response to ‘transparency’ consultation

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