‘The Right to Justice’: political slogan or something more sinister?

Right to justice report

 

The Right to Justice (Fabian Policy Report, September 2017 http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf) (the Report) produced by an informal ‘Commission’ chaired by a labour politician (Willy Bach) provides a snappy – and potentially sinister – politician’s title for a serious subject. The idea that politicians can bestow a ‘right to justice’ is needlessly mixed up with the more serious subject of right to representation (or legal aid).

 

Most people in United Kingdom believe that they already have a right to justice; and so far as they believe that they are right. Politicians must not ever be permitted to interfere with it. ‘Right to justice’ is called a ‘fair trial’ in European Convention 1950 though the idea probably goes back 1,000 years before 1950. And, with the exception of the editor of the Daily Mail, most people probably think that justice is what British judges do very well (see eg the Miller case and EU withdrawal (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583) and the UNISON case (below)). In these totalitarian (or ‘populist’ as the journalists call it) times we do not need to be given justice, or any right to it, by any politicians.

 

The extent to which the Report can be taken seriously may be judged – sad to relate – by the fact that almost the whole of page 8 is taken up with a picture of a gavel. Gavels have nothing to do with English law (though can be seen in films in use by US judges). In UK (as far as is know) only auctioneers use gavels.

 

Bach: areas of reform

 

The Report has three main areas of proposed reform:

 

  • It proposes a statute to enshrine a ‘right to justice’ alongside a ‘right to reasonable legal assistance’. These must be backed by a ‘Right to Justice Act’ and a Justice Commission.
  • It suggests reforms to the administration of legal aid; and a fairer scheme for means-testing reforms. It proposes changes to the scope of work which can be done on legal aid.
  • It urges greater education in law and access to legal information.

 

This article takes the second area first. A number of helpful reforms are proposed. Many are a welcome return to pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 conditions. A legal aid scheme has three elements: a means test (which the Bach proposals will simplify and make more generous to applicants); a scope test (what proceedings will be covered by a certificate: the Report proposes extensions to this); and a merits test (does a case justify the tax-payer spending money on it?). The merits test has become increasingly complex (see now Civil Legal Aid (Merits Criteria) Regulations 2013), especially since Access to Justice Act 1999.

 

Calculating the merit of a case, within the terms of the merits regulations is hard for a lawyer. It must seem prohibitively difficult for an intending legal aid applicant. If this report is to be taken any further those who deal with it must address the complexities of the merits test. They could start – and even finish – with what was in Legal Aid Act 1988 (and earlier legal aid acts) for relative simplicity.

 

‘Right to justice’

 

‘Right to Justice’ is a political slogan. With its proposed ‘Right to Justice Act’ and ‘Justice Commission’, it recalls George Orwell’s Nineteen Eighty-Four. The idea that there could be a ‘Justice Commission’ where hitherto justice had been the preserve of the judiciary is straight out of Orwell. And Orwell would have been the first to point out, that what a politician gives another politician – especially in these increasingly totalitarian times (the modern Tory party want to control Parliament in a way not justified by its minority standing; and the Labour left seeks to increase its sway within the Party) – can take away.

 

One thing our judges do very well is justice. They do not need a commission to ‘guide’ them. Indeed the idea that Parliament should contemplate such a thing is constitutionally abhorrent. Politicians have sheared off rights already: LASPOA 2012 and benefits reforms are two obvious examples; and the National Health Service seems likely to follow. Judges seek to constrain politicians. In a country governed by the common law, their ability to provide a fair trial – justice, ‘right to a fair trial’ – should not needlessly be surrendered to politicians.

 

In the recent R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 Lord Kerr gives a brief background ([66]-[85]) to justice in England and Wales, now in the United Kingdom as a whole. Many in England have had access to justice since Anglo Saxon times; and certainly since Magna Carta (1215). By the 1620s Sir Edward Coke wrote of the right of ‘every subject of this Realme, for injury done… by any other subject may take his remedy by the course of law, and have justice’. For Blackstone in his Commentaries (1765-1769) it was the ‘right of every [man] of applying to the courts of justice for redress of injuries’. Both of these writers used the term ‘justice’. There was no need to justice, or the right to it, to be created or defined by statute.

 

Justice against totalitarianism

 

Justice is a judge’s job. It is developed by the common law. As Lord Kerr explained (at [68]): ‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’. Justice, by another name, is a ‘fair trial’. European Convention 1950 declares – it does not create – the existence of a right to a fair trial (Art 6.1). The Convention was the work in large part of British common lawyers. They were well aware of the long-standing right to justice which was a fundamental part of our common law. They needed no act of parliament to create that right. It is something which comes anyway, and as a matter of right, as a result of living within the jurisdiction of the English courts.

 

This country does not need another quango in the form of an Orwellian ‘Justice Commission’: to provide ‘guidance’ or ‘monitoring’ to judges. Judges have extensive case law to guide them. If they need to be ‘monitored’ that is already done by appellate courts. And a commission could be more sinister. In times of encroaching totalitarianism (Trump in the US; the AfD in Germany; the nationalist parties around Europe) then any right with which politicians can interfere must be guarded very carefully; and especially so if they plan to interfere with the judiciary. Scope of legal aid is for the politicians to decide upon. They must never be allowed to tamper with the scope of justice.

 

If by a ‘Justice Commission’ is meant someone to keep an eye on the operation of legal aid; then insofar as the legal aid administrators fail to do that, should not MPs do it themselves?

 

Right to legal representation

 

What this report is trying to do to is to redevelop the right to legal representation (ie legal aid) which was so drastically cut back by LASPOA 2012. A Legal Aid Act or a Right to Legal Representation bill, may not provide the politicians with such seductive titles; but this is what is wanted. ‘Right to Justice’ as a slogan is silly or sinister, according to the way things go. Legal representation paid for by the tax-payer is what is proposed.

 

Politicians are entitled to make political decisions on legal aid; whilst any ‘right to justice’ must be out of bounds to them. Politicians can decide on the extent of each of the tests of eligibility for legal aid: means, merit and scope. These are the political variables. Where does the political cursor stop? The Tories have made the means test more miserly. LASPOA 2012 has made the scope test both narrower than before, and absurdly complex (beset by legislative double and triple negatives). Superimposed on the scope test is an increasingly more obscure merits test. If clarity and accessibility by the public, where individuals must rely on it, is the test of good modern legislation the Tory legal aid legislation fails spectacularly.

 

This aspect of the Report is imaginative. It proposes return of legal aid for a number of areas of litigation, including aspects of children law; housing and immigration; and for judicial review and inquests. Representation by specialist lawyers is what defines legal aid. It is that which is so precious to the rights of ordinary people. As legislation and case law accrete, so the law and its application become more complex.

 

Lay education in law

 

Finally, the Report emphasises the importance of education in law for the general public. The internet provides access to the raw material of law which is impressive: Government web-sites (eg for legislation – not always up-to-date – and other government material) and BAILLI reports provide a superb array of source material. For the lay person – and indeed for many lawyers – the problem is that is undigested. BAILLI cannot provide head-notes to simplify the presentation of case reports: how could they? Statutory material fresh off the page is rarely easy to digest.

 

Yes, education in law should be provided; but that is a matter for the education departments – with help from lawyers – not for those concerned with the operation of the law. But to ease education in law, first more clarity is essential.

 

Lord Bingham’s first rule in his Rule of Law (Penguin 2010) was that ‘a law must be accessible and so far as possible intelligible, clear and predictable’ (pp 37-38). You must know, and that means understand, what the law is if you are to rely on it. Rights are only real if you know about them. Is my child entitled to school-transport; can I do anything about the leylandii my neighbour has planted and which is blocking my view; what right do I have as a child to express a view in my parent’s proceedings about me? Each of these may create rights for the person concerned; but they are not rights if that person does not know exactly what they are and how to do something about them.

 

This requires two things: clearer laws with more straightforward legal procedures; and, where need be, a right to legal representation for those who cannot otherwise afford it. The second – legal representation – is a question for legal aid. The first, clarity of law, is a massive – but fundamental – subject. Even if only at a preliminary (ie pre-advice) stage, an individual should know of rights. Otherwise that individual will not know that there is something to see a lawyer about.

 

A right is no right if you cannot understand the law which defines it

 

If you have a pain which does not get better, you can go and see a doctor. Under the UK National Health system the consultation is free. If you have a right which is being interfered with – or, like school transport, may not be being properly dealt with by your local authority – you need first to know there is a legal pain which could be made better. If you do not even know it is a treatable pain, because you do not know you have the right in the first place, your life is needlessly, or unfairly, the poorer.

 

So first, the need is for a Legal Aid Act; or a ‘right to legal representation act’, or even an ‘access to justice act’. Call it whatever the politicians will, so long as it is not called, still less that it pretends to give, a ‘right to justice’. Secondly, whatever the right to representation act is called, let it be written clearly. Anyone – including a child who, for example, wishes to know what legal part she or he can play in the child’s parents’ court proceedings over the child – must know that they have the right to seek legal advice if their income is such as to justify free legal assistance; and that, if need be, they can apply to a court for help.

 

If a person has a right to representation but cannot understand the triple negative law that defines that right, it is not a right.

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Mediation and the judge’s letter to ‘Sam’

Judges need to ‘use their imaginations’

 

In a recent Huffpost article Jane Robey criticises Peter Jackson J’s judgment – Re A (Letter to a Young Person) [2017] EWFC 48 – written in the form of a letter to ‘Sam’, the ‘young person’ concerned. She does so not to oppose the style of writing chosen by the judge. She uses the style of the judgment, as I see it, as a way to draw attention to mediation: ‘A novel approach to writing a verdict [yes, really, ‘a verdict’) is one thing’ she says; ‘but it’s time for judges to use their imaginations in a completely different way’.

 

Using judicial ‘imaginations’ is linked to the importance of people involved in family breakdown going to mediation. However, I can assure Janet Robey that – as far as I know – no family judge gets any pleasure form sitting through many of the family breakdown cases which they hear. They do it because other attempts have failed. Their job is to impose a solution. They must hear evidence to do so. Doctors don’t want people to be sick; but because people are sick in one way or another, doctors remain in work. But they also help to find ways – medical research – to stop people being sick.

 

The analogy with judges and mediation (ie parallel to preventative medicine) is close to doctors and illness. To suggest that a judge sits and hears cases because the judge prefers that to mediation – an interpretation which could be put on Robey’s letter – is unhelpful. I have been involved in mediation from the outside (ie I am not a mediator) since I helped set up this country’s first ‘conciliation service’ in Bristol in 1975. From the start judges (Family Division judges; circuit judges and district judges and magistrates’ clerks: we held our first steering committee in the Bristol Magistrates’ Court) were actively involved in developing the idea.

 

Mediation: a need for publicity

 

Information and publicity for mediation is, surely, the real problem? Many people involved in family breakdown – couples and their children, alike – do not know about mediation. Most judges encourage it, and have done for many years; but awareness is need long before the family breakdown gets to the judge. If others who are in contact with a couple whose relationship is coming apart – friends, children’s teachers, health professionals etc – do not know about mediation, then they will not know to pass on the important information about mediators.

 

And so back to Peter Jackson J’s letter (I cannot believe that patronising remarks from a mediator about his genuine effort, helps mediation information and publicity; but that is for NFM to decide…). Says Jane Robey:

 

On the face of it [the letter was] a fuzzy and humane (sic: perhaps ‘human’?) approach, yes, but that doesn’t alter the fact that as ever in divorce and separation cases that go to a court, parents’ and children’s futures get determined by a judge: the one person on the scene who knows least about the family.

I say it’s high time for the judiciary to become more creative and vocal in its efforts to avoid court battles that expose the dirty laundry of a separating family, often in the full glare of the people most affected: the children.

 

Peter Jackson J: a letter to ‘Sam’

 

Indeed, but some people – even with the most skilled mediator – cannot reach agreement. Jane Robey know that, I am sure. And if people cannot agree that is what judges are for. Very few people want to go to court. For some, perhaps, the only way out is the catharsis of a court hearing, and for a judge to make up their minds and impose a solution. No mediator can generally get around that. And I cannot help wondering how susceptible to mediation Sam’s father might have been.

 

Sam is a 14 year old boy who had applied to court to travel with his father to live in an unnamed Scandinavian country. His mother opposed the plan. The judge in his letter to Sam described the issues for him to decide as:

 

The decisions that I have to take are these: (1) should you go and live in Scandinavia? (2) should you become a citizen there? (3) if all your parents [he had a step-father as well] are living in England, should you spend more time with your dad? (4) if your dad goes to Scandinavia, and you stay here, how often should you see him?

 

He did not agree with Sam’s application (taken over for him by his father) to go to Scandinavia. Of the father, the judge said in his letter to Sam (as one of the ‘factors he had to take into account’):

 

… He is a man with some great qualities. When he is relaxed, he has charm and intelligence. But underneath that, I see someone who is troubled, not happy. He has not achieved his goals in life – apart of course from having you. Because of his personality style, and the love you feel for him, he has a lot of influence over you. All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t.

 

Mediation and a paternal influence

 

I wonder how a mediator would have dealt with the level of paternal influence over Sam? The judge concluded:

 

Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You’ve lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don’t agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough…

 

A constructive way forward – rather than criticising destructively a real attempt by a judge to communicate with a child who was the subject of the case before him – would be to accept that the judge was involved. At that stage (we do not know what mediation had been tried in Sam’s case) the judge had to make a decision. He did so; and he involved the boy (one of the actors in the case) in his decision-making and its outcome.

 

If Jane Robey thinks the means of communication is not appropriate, how would she – as a judge (ie on the assumption that mediation had not been possible: I avoid the word ‘failed’) – have communicated with Sam and his parents?

Justice: how open in family proceedings?

‘Advocacy assistance’ and open justice

 

When the Government proposals come on stream – as surely they will, eventually – for instruction of a court advocate to cross-examine a domestic violence complainant (‘advocacy assistance’) where her alleged abuser acts in person, the question of whether the hearings in question are secret (also called ‘confidential’), private or in open court will revive. The media surely will want to see how the new scheme – which had such publicity earlier in the year (see eg Observer/Guardian of 12 February 2017) – is working.

 

The Family Procedure Rules Committee has defined all proceedings covered by the rules for which they are responsible – Family Procedure Rules 2010 (FPR 2010) – as to be heard in ‘private’ (FPR 2010 r 27.10), save where otherwise indicated. The term ‘private’ is not defined. Plainly it is something different from ‘open court’; but does it mean entirely secret, or confidential (see Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565), or does it mean only that public may be admitted if the court agrees. And if so, are the parties to remain anonymous; is the judgment public; and can anyone see any of the documents generated by the proceedings?

 

Open justice principle in civil and criminal proceedings

 

Much of a definition of ‘private’ turns on application of the open justice principle to a variety of different family proceedings; but it is worth being clear at the outset that this principle applies to procedural issues in family as it does in all court proceedings, including, for example:

 

  • Non-parties being able to read hearing documents (as was the case in Guardian v Westminster (below); and by ‘hearing documents’ is meant those read by the judge in connection with the case: eg skeleton arguments, filed statements etc: per Lord Bingham in Smithkline Beecham v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 per Lord Bingham CJ);
  • Restrictions on release of disclosed documents (‘the implied undertaking’, Riddick v Thames Board Mills [1971] 1 QB 881, CA; and CPR 1998 r 31.22);
  • Publicity or not, for the names of parties (see eg PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251);
  • Publication of the court’s judgement, anonymised or not (Norman v Norman [2017] EWCA Civ 49)
  • Anonymity for children in public proceedings (JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, [2015] 1 WLR 3647);
  • Anonymity of witnesses, expert witnesses etc (Attorney General v Leveller Magazine Ltd[1979] AC 440; Khuja (below);
  • The Art 8 rights of children balanced against those (Art 10 and Human Rights Act 1998 s 12(4)) of the press (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; PJS (above)).

 

Space does not permit that all of these subjects be covered here; but the same principles recur. For example in PJS Lady Hale made comments on the importance of consideration of the Art 8 rights of children affected, where publicity is concerned; and Guardian v Westminster (above) dealt with whether the Guardian – after the hearing of an extradition case – could see papers read by the court (yes they could). Neither case was directly concerned with whether anyone could attend a hearing in open court.

 

The Humpty-Dumpty question: open court, private or secret

 

The issues raised by this article require a return to what is meant by (1) ‘open court’, (2) ‘private’ (or ‘chambers’) hearings and (3) secret hearings (formerly called ‘in camera’). This is territory tramped over by a variety case law and statutory feet (and see Dame Elizabeth Butler-Sloss P and Humpty Dumpty (below)); but the starting point is the common law. This was recently explained by Lord Sumption (with whom his four Supreme Court justice colleagues agreed) in Khuja v Times Newspapers Ltd [2017] UKSC 49:

 

[12] With limited exceptions, the English courts administer judgment in public, at hearings which anyone may attend within the limits of the court’s capacity and which the press may report. In the leading case, Scott v Scott [1913] AC 417, public hearings were described by Lord Loreburn (p 445) as the ‘inveterate rule’ and the historical record bears this out. In the common law courts the practice can be dated back to the origins of the court system.

 

It is the ‘limited’ exceptions with which this article is concerned; for the ‘open justice principle’ (as Toulson LJ defined it in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343) probably runs parallel with the origins and history of the court system itself.

 

In Scott (a nullity case which should have been heard in open court) Earl Loreburn dealt with the main exceptions to the open justice principle as follows (at [1913] AC 417 at 445:

 

I cannot think that the High Court has an unqualified power in its discretion to hear civil proceedings with closed doors. The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court, or of what may be done in chambers, which is a distinct and by no means short subject, or of special statutory restrictions. I speak of the trial of actions including petitions for divorce or nullity in the High Court…

 

He added, as did other of their lordships, where ‘the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed’. To deny this might be to deny justice: ‘an aggrieved person, entitled to protection against one man who had stolen his secret, would not ask for it on the terms that the secret was to be communicated to all the world. There would be in effect a denial of justice.’

 

The ‘parental jurisdiction’, which subsists in proceedings under Children Act 1989 and in many cases in the Court of Protection (though open court principles are being developed there) – that is, Lord Sumption’s ‘exceptions’ – was explained by Viscount Haldane LC (at 437) as follows:

 

… The exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.

 

He went on to deal with the ‘secret process’ point, and concluded:

 

… As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

 

The modern law

 

Starting from the open justice principle, as stated in Scott and reaffirmed countless times since then, what may be said to be the modern exceptions.

 

In criminal proceedings the principle in relation to freedom of expression (European Convention 1950 Art 10) has been held to override the interests of a child’s right to protection of family life (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; R (Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770).

 

In civil proceedings generally Administration of Justice Act 1960 s 12 provides that just because a court is sitting in private does not mean that publicity will be a contempt of court except in the case of a list in s 12(1). These would have been recognised by their lordships in Scott (subject to addition of national security (which might have occurred to them in 1914, the year after Scott was decided) and of modern statutory references). The list in s 12(1) is as follows:

 

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;]

(b)where the proceedings are brought under the Mental Capacity Act 2005…;

(c)where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d)where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

 

CPR 1998 r 39.2(3) provides a similar list to which only are added (c), (e) and (f) (below):

 

(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.

 

For family proceedings covered by Family Procedure Rules 2010, the rules committee have asserted, somewhat inscrutably:

 

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.

 

Neither this rule, nor either of s 12(1) or r 39.2(3) (nor CPR 1998 as a whole) defines what is meant by ‘private’, save to say that the public have no right to be present (as distinct from, presumably, the right to ask to be present?). The rule must also be read subject to the right of ‘accredited representatives’ of the press and other media and others, with permission, to be in court for private hearings (r 27.11(2)(f) and (g)).

 

The question remains: is there any law on what is meant by ‘private’; and if so can the rules committee override that law? The seeker for an answer to that question goes back, again, to the common law.

 

Meaning of ‘private’

 

As the then new CPR 1998 (in accordance with Civil Procedure Act 1997) were approaching a final draft, the committee chairman, Lord Woolf MR (with Aldous and Chadwick LJJ: it was a judgement of the court) considered the meaning of open court and ‘chambers’ hearings in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (judgment: 12 February 1998). The court’s conclusion was that it was open to a party to publish what was said in chambers (ie ‘in private’: see 1070) unless the case comes within those listed in s 12(1).

 

Proceedings excluded from publication (AJA 1960 s 12(1)) are described as ‘secret’ (emphases supplied by the judges):

 

As [AJA 1960 s 12(1)] makes clear, the publication of information relating to proceedings held in private (i.e. chambers) is not in itself contempt except in the specific cases identified in s 12(1) (which do not apply here) unless the court makes an order prohibiting publication when it has “power to do so” (s 12(1)(e)). Nor is the publication of the whole or part of the order made by a court sitting in private a contempt (s 12(2)). The general position is that any judgment including a judgment in chambers is normally a public document….

A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in Scott v. Scott   [1913] AC 417 or the court sits in chambers and the case falls in the categories specified in section 12(1) of the Act of 1960 (which include issues involving children, national security, secret processes and the like). Section 12(1) also refers to the court having prohibited publication. Such proceedings are appropriately described as secret; proceedings in chambers otherwise are not appropriately so described.

 

As can be seen the Court of Appeal distinguishes between hearings ‘in private’ (or in chambers) where information can be published and the public may be admitted; and hearings ‘in secret’ (formerly in camera) which are those to which the exceptions in Scott and s 12(1) apply.

 

Allan v Clibbery: ‘private’ and Family Law Act 1996 Part 4

 

What are ‘chambers’ (ie ‘private’) hearings? Of chambers hearings the Court of Appeal in Hodgson said (at 1072):

 

In relation to hearings in chambers … The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available but, if requested, permission should be granted to attend when and to the extent that this is practical.

 

And this is what r 27.10(2) appears, almost exactly, to say: ‘no right to be present’; and, as will be seen, this is the formula preferred by Dame Elizabeth Butler-Sloss P in a later constitution of the Court of Appeal (Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565).

 

Allan v Clibbery (above) remains the main source for family lawyers considering open justice and the principles on which it is based. It is also of relevance to the question of press attendance at hearings of, or publicity arising from, cases under Family Law Act 1996 Pt 4 (which include Allan v Clibbery itself and the cases of alleged abusers cross-examining complainants in person). It was a case under Pt 4, where Ms Clibbery published information and documents arising from the case to, amongst others, the Daily Mail. On appeal from Munby J, the Court of Appeal agreed with him in the result and held that she could publicise information and certain documents from the proceedings; though the proceedings should have been held, on Dame Elizabeth’s definition, ‘in private’.

 

There is no reason which that definition should not be the same in FPR 2010; so that the exception occurs for ‘secret’ hearings cases, that is those listed in AJA 1960 s 12(1).

 

Common law and open justice

 

The starting point for a review of the law on open justice, and private’ or ‘secret’ (or ‘confidential’) hearings, must be Toulson LJ in the Court of Appeal in Guardian v Westminster (above) (subsequently approved by Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558). He explained the status in law of the open justice principle 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.

 

Generally speaking a fundamental rights – and as a common law principle open justice has been confirmed by European Convention 1950 Art 6.1 – cannot be overridden, even by Parliament, by ‘general or ambiguous words’ (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33; [2000] 2 AC 115) This was explained by Lord Hoffman in exp Simms (at [2000] 2 AC 115 at 131) as follows:

 

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 Allan v Clibbery Dame Elizabeth Butler-Sloss P referred to Scott, Administration of Justice Act 1960 s 12(1), Hodgson v Imperial (above) and CPR 1998 r 39.2(3). Whilst she concluded that the then Family Proceedings Rules 1991 were intra vires the then rule-makers, she also concluded on terminology that the different types of court hearing broke down into open court, private and confidential. Dame Elizabeth said:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

On this basis, the Family Law Act 1996 Pt 4 proceedings were ‘in private’ but not confidential. Miss Clibbery was therefore permitted to release documents from the proceedings to the waiting press (as she had already done). Mr Allan’s injunction was discharged. In Norman v Norman [2017] EWCA Civ 49 Lewison LJ described that outcome and the meaning of ‘private’ (in the context of proceedings being reported) as follows:

 

[85] … The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings: Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261 at [17] and [51]. However, the fact that parties are required to make full and frank disclosure of financial information may justify reporting restrictions relating to that information: Clibbery v Allan at [73] and [79]. But there is no blanket ban: Clibbery v Allan at [83].

 

The Court of Appeal definition is the common law which applies to family as to all other types of proceedings. As ever, a rule cannot make, still less override, the law (Jaffray v The Society of Lloyds [2007] EWCA Civ 586), [2008] 1 WLR 75); and nothing was said of all this in the statute which empowers the rule-makers (Courts Act 2003 ss 75 and 76). Either on this basis or under exp Simms principles, the rule-makers – who are not Parliament – cannot override a common law principle. It may be worth adding that FPR 2010 are made by the negative resolution procedure (Courts Act 2003 s 79(6)) so they do not need formal approval by Parliament. Mostyn J’s comment in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 – that ‘[14] …. Parliament when passing the rules specifically maintained [ancillary relief] proceedings as private, and denied members of the public admission to them’ must be read with s 79(6) in mind.

 

Even if the rule-makers do have a power to override the common law by r 27.10, the drafting of the rule is ambiguous. Rue 27.10 says the same as the Court of Appeal said in Hodgson as to what is the meaning of ‘chambers’; and that means something different from ‘secret’ proceedings. ‘Secret’ proceedings are those covered by the exceptions which run in a line from Scott, through AJA 1960 s 12(1) to the modern CPR 1998 r 39.2(3). Other proceedings under FPR 2010 which are not expressly open court (such as divorce and committal) are ‘private’. As Hodgson and Allan v Clibbery both say, they are ‘in chambers’ but, space permitting, the public may be admitted; save for those listed in s 12(1) which are ‘secret’.

 

Allegations of a ‘criminal nature’

 

For family proceedings, as for all others, perhaps the last word can go to Lord Atkinson in Scott (cited by Lord Sumption as a conclusion to the passage above):

 

[12] As Lord Atkinson observed in [Scott] at p 463, this may produce inconvenience and even injustice to individuals: ‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

 

And as to allegations ‘of a criminal nature’: it must be recalled that under Prison and Courts Bill cl 47 (which is the proposed statutory amendment with which this article begins) it is allegations which have been the subject of existing findings by a court – criminal or in injunction proceedings – which forms the basis of an application for advocacy assistance.

 

Surely there is no reason why cases where such allegations are being made should not be open to public scrutiny (if anyone is interested to attend)? After all, the origin of the Scott case was that Mrs Scott wanted her former husband’s family to understand the true nature of what she had alleged about him, and which the court had found, against him. The modern equivalent of Mrs Scott might be the physically abused woman.

 

Scott makes clear that the presumption is that all cases will be heard in open court. As Viscount Haldane states (see passage above): the burden is on anyone ‘seeking to displace [the presumption] in the particular case to make out that the ordinary rule must as of necessity be superseded’. And then, he goes on, it is not a matter of judicial discretion was to whether an application for privacy is allowed but one of legal principle (see eg R v Legal Aid Board (exp Kiam Todner (a firm)) [1999] QB 966, [1998] 3 WLR 925, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J). Just because the parties agree to exclude the press does not mean the court should go along with them.