…and a small voice in me wept for justice

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

McDonald J had just quoted this ‘succinct’ summary from a judgment of Sir James Munby P in on the subject of privacy in family proceedings in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 as follows:

[21] What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child… So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

[22] The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47… This necessitates what Lord Steyn in Re S, para [17], called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention)…. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para [33].

Common law and exceptions to the OJP

Look at the italicised passage above, again. According to Toulson LJ (in a passage not cited in either of the above two Family Division citations) the roots of the open justice principle (‘OJP’: and we are talking children law here, so it is exceptions to the OJP we are concerned with) are the common law, simple and pure:

[1] … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

Though only three years old that passage has been approved at least three times in the Supreme Court: Kennedy v The Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700. The common law roots of the principle can be seen from way before European Convention 1950 jurisprudence; and were stressed in such cases as Scott itself and Attorney General v Leveller Magazine Ltd [1979] AC 440.

Toulson LJ concluded his judgment as follows:

[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.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

He allowed the Guardian’s application to be permitted to read documents read by the district judge (magistrates’) before making her decision.

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

In Attorney-General v Leveller Lord Scarman stresses the common law point that it is for the judges in their inherent jurisdiction to determine exceptions to the rule, save where it is determined by statute (the point made by Munby P above). The child law jurisdiction has been treated, at common law (largely derived from wardship), as an exception; just as equity dictates that there should be an exception, if to publicise the subject matter of the dispute (eg patents) would destroy it; and national security can dictate privacy to proceedings (discussed fully in Leveller). These principles are noted in Administration of Justice Act 1960 and Civil Procedure Rules 1998 r 39.2(3); but they are not defined by them – any more than they are by European Convention 1950 jurisprudence.

A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion: anyone who wants chapter and verse on that is welcome to ask me).

So yes, McDonald J’s was plainly the correct decision; but I do urge him and all his brothers and sisters on the bench to be aware of the source of their powers. A simple and sound introduction is Scott tempered by Scarman (especially) in Leveller. (He cites a nice case of a ward whose details were publicised – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA including Scarman LJ – and William Deedes of the Daily Telegraph (orse ‘Dear Bill’) was not sent to prison, nor even was he in contempt. Nicholas Wilson (now Lord Wilson etc) was in it, being led by Waite QC (later LJ).

Re F is a live piece of law, though rarely cited, on the issue of whether Administration of Justice Act 1960 created new law, or declared the old. In effect the Court of Appeal held it declared the old; and that remains the case today; which brings this note full circle.

I would say, respectfully, that McDonald J should have said:

[26] …outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights defined by the common law, rather than under ECHR…

…. But then, who am I to say?

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2 thoughts on “…and a small voice in me wept for justice

  1. Reblogged this on | truthaholics and commented:
    “A common law root: does it matter?

    This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

    Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion”

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