Open court hearings: thoughts for family law reform

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1        INTRODUCTION AND BACKGROUND

 

Straws in the wind

 

Work has been done by the President, Sir Andrew McFarlane P, and his predecessor on publication of judgements; and ‘legal bloggers’ are allowed into courts otherwise closed by Family Procedure Rules 2010 (FPR 2010) r 27.10. A new draft practice guidance – not a practice direction? – is at large (in draft or made as guidance?) on ‘Guidance as to reporting in the family courts’.

 

The Family Procedure Rules Committee (FPRC) has ruled that hearings under FPR 2010 (unless otherwise stated) are to be ‘in private’ (FPR 2010 r 27.10); but what this means beyond the actual hearing of the case (eg as to release of documents and information to those attending court, anonymisation, publication of material from a hearing and so on) is not clear.

 

Perhaps the time is appropriate for review of the following:

 

  • What is the position of release of court material after Guardian v Westminster (below) and Cape Intermediate v Dring (below);
  • If the Supreme Court can release parties’ skeleton arguments (see in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 (24 September 2019)) cannot other courts do so, anonymised where suitably directed;
  • Is it time for review of Sir James Munby P’s Transparency

 

Open court: the default position

 

The default position for all common law litigation is that it be heard in open court, unless exceptional circumstances dictate that part or all of a hearing be heard privately. In the recent R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster) Toulson LJ explained this as:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process….

 

In the recent Supreme Court case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (29 July 2019) the court was considering the jurisdiction of the courts generally to permit release of court material ton non-parties. Of the context for their decision they said:

 

[34] …However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.

 

All courts at whatever level are subject to the open justice principle.

 

Family proceedings and open justice

 

Family Procedure Rules 2010 (FPR 2010) r 27.10 says that all hearings’ or family ‘proceedings’ should be in private save where stated otherwise (eg divorce: r 7.16(1)):

 

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.

 

In Guardian v Westminster Lord Toulson emphasised the substantive law – the common law – source of the open justice principle:

 

[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.

 

In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and see the same point in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75) Lady Hale said:

 

[27] [Court rules cannot] change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210

 

The power to make FPR 2010 is delegated to the FPRC by Courts Act 2003 ss 75 and 76. There is no power, vested in FPRC by ss 75 or 76, to rewrite the common law in relation to open justice. It is likely that, if challenged, r 27.10 would be found to be ultra vires the rule-makers (ie outside the powers given to them by Parliament). Perhaps that is for another day….

 

Open justice and related issues

 

For the present it is necessary to recall that open justice principles apply also to other aspect of court proceedings; and to accept, for now, that FPR 2010 rule-makers have the power to alter the common law. The hearing may be ‘in private’; but what of other open justice related issues (Guardian v Westminster was about a press request for documents after a magistrates’ court extradition proceedings hearing). Such open justice related issues include:

 

  • Release of documents prior to a hearing to help anyone one (eg a journalist under FPR 2010 r 27.11(2)(f)) to understand what is happening;
  • Release of documents after a hearing (Cape Intermediate v Dring);
  • Publication of a judgment anonymised or not
  • Reporting restrictions orders; and – especially – for how long (and for how long are parties to be embargoed from releasing, or the press from publishing, material in the case?
  • Anonymisation or parties, and of witnesses (eg witnesses, especially experts, social workers, accountants, medics and valuers)

 

In law, all of these topics start from open justice principles; but none are related directly to whether or not a hearing takes place in private. FPR 2010 r 27.10 does not necessarily apply.

 

Hearing in ‘private’

 

Although each of Administration of Justice Act 1960 (AJA 1960) s 12(1), FPR 2010 r 27.10 and CPR 1998 r 39.2(3) speak of hearing ‘in private’, only r 27.10 tells us that ‘proceedings held “in private”’ means the public have no right to be present. Case law tells us a lot more. This was explained in ‘Private hearing, in secret and in chambers’. So what then are the consequences of a hearing being held ‘in private’?

 

 

2        AREAS FOR REFORM

 

Areas for immediate review or reform

 

The areas referred to above for reform can be boiled down to:

 

  • Anonymisation of parties and of witnesses.
  • Release of documents prior to a hearing, with permission of the court.
  • Release of documents after a hearing to non-parties (Cape Intermediate v Dring), with permission of the court.
  • Publication or ‘use’ of disclosed documents.
  • Publication of a judgment anonymised or not
  • Reporting and other restriction orders: for how long?

 

This note will touch on the first to the fourth of these.

 

(1)        Anonymisation

 

I know work is being done in other parts of the common law jurisdictions on this. I will only mention it here because, in a case which is to be dealt with privately, anonymisation on terms directed by the court, or agreed by the parties, will be important early on. Any documents – such as skeleton arguments, statements (without enclosures) etc – released to non-parties (eg to the press; under (2) in the above list) – can be suitably anonymised from an early stage in proceedings.

 

By the way, calling parties first, second etc ‘respondent’ does not anonymise them: it just confuses the reader, especially when the case may be entitled Re x. And then in the Court of Appeal the parties may all be something different. Please give the parties names, or – if anonymised – false names or letters. (One case I was involved in recently the judge just took all the initials and moved them one place in the alphabet: I am not sure that was much by way of anonymisation.)

 

(2)        Release of material prior to hearing

 

Because a hearing is in private does not mean material cannot be release from, or in relation, to it. FPR 2010 r 29.12 says:

 

29.12 Access to and inspection of documents retained in court

(1)  Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission.

 

In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J said – obiter (ie it was not part of his decision, and is not therefore law) – that

 

[13] … the press are not allowed any access to documents whatsoever – see FPR 2010, r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly. Further still, PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

 

This comment is open to three main criticisms:

 

  • Parliament does not ‘pass’ rules. They do not have the weight of statute. They are made by delegated authority under Courts Act 2003 (as explained above) and by the negative resolution procedure: Courts Act 2003 s 79(6))

 

  • It is impossible to see that r 29.12(1) says what Mostyn J says. It specifically says that with permission ‘any person’ (ie including a non-party such as the press) with permission can inspect documents and can take copies.

 

  • FPR 2010 r 29.12(1) must be looked at alongside CPR 1998 r 5.4C.

 

The nearest equivalent in civil proceedings to r 29.12(1) is CPR 1998 r 5.4C(1) and (2) (though this rule deals with non-party access, specifically, which would – of course – include the press):

 

Supply of documents to a non-party from court records

(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of [a statement of case etc; any judgment etc].

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

 

The working of this rule is dealt with in Cape Intermediate v Dring (see the next part of this note); but it is important to mention it here because its reach goes to all court proceedings (civil (including family) and criminal); and in principal it can apply to pre- and post-hearing documents as appropriate.

 

Guardian v Westminster concerned an application after the hearing for documents; but there was a helpful discussion by Toulson LJ, especially at [33]-[35], of the reason for pre-hearing disclosure. He explained the need for this to bring modern practice of courts – where a lot of reading is being done alone by judges – into line with the need for an open system of justice.

 

(3)        Release of material after a hearing; access by non-parties to court material

 

In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) the issues were summarised by Lady Hale (who gave the judgment of the Supreme Court: Lord Briggs, Lady Arden and Lords Kitchen and Sales) at [15] as:

 

  • What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records?
  • Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
  • If there is such a power, how far does it extend and how should it be exercised?

 

The case applies to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). The decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster.

 

[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.

 

How does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?

 

The case gave the court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to non-parties’. It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 (both cited in the Supreme Court and note in [33]-[35] of Guardian v Westminster).

 

The court held that a court could give permission for release to a non-party the following (see [9] to [11]):

 

  • The routine documents summarised in CPR5A1 para 4.2 (above); but not including, necessarily, trial bundles.

 

  • In its inherent jurisdiction the court generally, has jurisdiction to permit non-parties to obtain certain documents (see eg GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 994-5).

 

The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:

 

  • skeleton arguments and other written submissions (Cape Intermediate in the Court of Appeal at [69]; GIO (above));
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at [96]), but not their exhibits (Cape Intermediate at [100]); and
  • any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at [110]).

 

If documents are suitable anonymised and to accord with principles of open justice – at least for those permitted into court: FPR 2010 r 27.11(2) – the question must be: why cannot any of these documents be released to non-parties (subject to any issue which arises under AJA 1960 s 12 and ‘the implied undertaking’)?

 

(4)        Incidence of the ‘implied undertaking’

 

Alongside release of documents to non-parties must also come the question of the ‘implied undertaking’ as to release of documents which a party has been compelled to disclose (eg by the requirement for full and frank disclosure in financial relief proceedings).

 

The undertaking has been codified in CPR 1998 r 31.22(1)-(3) as ‘subsequent use of disclosed documents’ as follows

 

Subsequent use of disclosed documents…

(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.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.

 

It can reasonably be assumed that this rule in this form applies to family proceedings (see discussion in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565); but then the question is, was the hearing ‘in public’. If not and the hearing was ‘in private’ which of the definitions above applies?

 

CPR 1998 r 5.4C deals with application by a non-party. Rule 31.22(1)(a) deals with the extent to which a party can publish documents. The consequence of the rule in Clibbery v Allan – which has not been altered by the subsequent making of FPR 2010 – is that a party to proceedings can ‘use’ (ie publish, as did Ms Clibbery) a document disclosed in proceedings heard ‘in private’ where it has been read by the court; or otherwise with permission or agreement of her opponent (neither of which applied).

 

All of this is most emphatically subject to the statutory restraints of AJA 1960 s 12(1); but for most family proceedings purposes, only s 12(1)(a) (ie children proceedings) applies for open court hearings.

 

The party who wishes to publish following a hearing – say to pass to the press details of her husband’s financial dealings after the hearing – must decide whether the judge has ‘read’ the documents concerned. If so, the fact that a hearing was ‘in private’ – at least on the case law of 1999-2004 – suggests there is no breach of the ‘implied undertaking’. If there is the remedy is private, not the criminal contempt implied by AJA 1960 s 12 (Attorney General v Leveller Magazine Ltd [1979] AC 440).

 

Proposals for reform will follow in a later article.

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Private hearing, in secret and in chambers

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What is ‘private’: a need for clarity in law

 

Both sets of relatively recent court rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but without any attempt in either to define ‘private’. More seriously the earlier Administration of Justice Act 1960 s 12(1) uses ‘private’ without any attempt in the Act to define it. I say ‘more seriously’ because s 12(1), in its inscrutable way, suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison. But why should anyone be sent to prison if they don’t know that what they have done is wrong because ‘private’ is not defined?

 

Lord Bingham’s first rule of law, in his David Williams memorial lecture in 2006 concerned clarity in law:

 

‘First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.’

 

This accessibility is most obviously associated with criminal proceedings, but it applies generally to all law. In the case of contempt and imprisonment for a possible breach of court privacy, it assuredly applies. If you don’t know that a court is truly sitting ‘in private’, or – worse still – it perhaps should not be sitting in private, then can you still be sent to prison for alleged breach of the law. If you are threatened with prison the condition for that – what you may publish from a ‘private hearing’ – depends on its defining condition, that the court is ‘in private’ and what that means, in law.

 

Each of the statute and sets of rules have interpretation or definition sections; yet none of them say what is meant by ‘private’, save that FPR 2010 r 27.10(2) says what it is not: namely ‘proceedings at which the general public have no right to be present’. I will therefore set out the relevant provisions and then set out what the courts have said to explain ‘private’.

 

‘In private’: statute and rules

 

AJA 1960 s 12(1) under the heading: ‘Publication of information relating to proceedings in private’ says:

 

‘(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(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 [etc];

(c)where the court sits in private for reasons of national security…;

(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.’

 

Nothing is said here about the main variety of family proceedings, save children proceedings. Such proceedings – especially financial proceedings – may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)). Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a  child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11; Re J (A Child) (contra mundum injunction) [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P).)

 

CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:

 

‘(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(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;..’

 

And finally, FPR 2010 r 27.10(1) says:

 

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.

 

‘In private’ and the common law

 

In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say, what do the judges say. The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith [1998] 1 All ER 973, [1998] 1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):

 

‘The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.’

 

Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became Civil Procedure Rules 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.

 

Public access to chambers hearings

 

The court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:

 

‘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] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).’

 

The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:

 

‘However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.

 

It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, CA (judgment on 30 September 1999)

 

[24] We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.

 

Clibbery v Allan

 

So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:

 

‘[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.

 

Dame Elizabeth summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.

 

In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] EWCA Civ 314, [2005] QB 207 the Court of Appeal – Mance LJ – provided a synthesis of their earlier decisions in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no: arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.

 

Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,

 

‘[26] Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at [120]–[121]), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.’

 

Scott v Scott: no absolute rule of open court

 

There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court [2000] EWHC 636 (Admin) QB Div Ct reminds us of that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.

 

The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was a contrary order) judgements from a hearing ‘in private’ can be published.

 

Such as it is, attendance at private hearings and publication of judgments from chambers hearings (subject to exclusion by AJA 1960 s 12(1) and CA 1989 s 97) is what the case law seems to say; and in the 20 years since Hodgson, its comment that the law on this subject was ‘virtually free from authority’, still applies. Authority on what is ‘private’ remains sparse.

Open justice: when is secrecy lawful in family proceedings? – Part 3

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(3) CAN A FAMILY COURT DECIDE WHETHER A COURT RULE IS VALID

 

This series asks to what extent is the provision in Family Procedure Rules 2010 (FPR 2010) r 27.10 that all family proceedings (save where rules say otherwise) must be heard in secret (‘private’) within the powers of the rule-makers? And this Part asks: in what court an applicant who wants to challenge the validity of the secrecy in r 27.10 makes that challenge? The short answer is that the challenge to a rule’s validity can be made in the court (here the appropriate level of family court) in which the question arises. (As has already been explained in Part 2, it is doubtful whether the rule-makers can lawfully say that some family proceedings should be private, such as domestic abuse proceedings.)

 

This question follows on from Part 1 which considered what the common law – applicable in all English courts – says about hearings in open court.?

 

Domestic abuse proceedings in the Family Court

 

The illustration behind this final Part is family proceedings in which a man (B) is alleged to have been violent to a complainant woman (C) whom he lived with. She made a statement to police under Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, March 2011, Ministry of Justice   (ABE procedures) which can be heard in court. The police have statements from neighbours in which they speak of hearing her screams and of noises which are consistent with what she has said to the police.

 

B is a local footballer (relatively well-known in the local press). He made a statement to the police in which he denied what she alleged. Statements were made to the police by his fellow players that they had seen C being abusive towards him when she was drunk, and how restrained he had been. The police have not yet decided whether to prosecute.

 

C seeks protection for herself, and to exclude B from their home for her and for the sake of their 3 year old child. She applies to the Family Court. Two members of the local paper would like to attend court; and A, a friend of C, believes that she is entitled to attend court to hear the case. Each want to read the statements prepared for the case. A would like to be able to speak to the local and national press after any court hearing.

 

Application to attend court

 

In this case there are three categories of individual who may want to come into court:

 

  • Friends, family or other contacts of a party to the proceedings;
  • Non-parties who for professional reasons want to attend and write about or otherwise discuss the case: say a journalist or a legal blogger (they may be entitled to come into a family court (FPR 2010 r 27.11(2)(e)); but what they think they can publish may be limited (Administration of Justice Act 1960 s 12(1)); and
  • Member of the general public (ie someone who is not a party to the case or otherwise involved in any way) who just want to come into court.

 

On whether a hearing should be ‘in private’ or not, FPR 2010 r 27.10 says:

 

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.

 

If any of those who want to go into court, but they are excluded but they think they should have been allowed in, what can she do about it? In what court should any challenge be made; and what legal principles direct the way in which any application – in whatever court – should be disposed of?

 

Is the case open court: a matter of administrative law

 

The principles which govern whether a rule or other direction is valid (in this case whether a case is heard in open or in secret) are dictated by administrative law. First how can the powers of rule-makers be challenged; and, secondly, how can a wrong decision of the court or its administrators to exclude anyone be challenged?

 

In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ (sitting with Peter Gibson and Mance LJJ) considered these questions. In Howker a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) (and see Lord Irvine LC in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 at 161, considered below).

 

The question for a court or administrative tribunal, as Hale LJ explained in Howker concerns the extent of the jurisdiction in the court to hear and decide on validity:

 

[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….

 

That is to say, if a question of validity of secondary legislation arises, can the question be dealt with in the court where it is raised?

 

Boddington and a collateral challenge

 

In Boddington, the case on which most of the discussion in this Part depends, the background was that Mr Boddington was prosecuted for breach of a byelaw which was said to prevent him from smoking on a train. He contended that the smoking ban was ultra vires the railway company as it went beyond the company’s statutory powers under the Transport Act 1962.

 

The House of Lords held that the stipendiary magistrate had been wrong to rule that Mr Boddington could not raise the vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he was charged with breach. (He had not raised it on judicial review.)

 

So was Mr Boddington entitled to challenge the validity (vires) of the bye-law under which he was prosecuted in the court which dealt with his criminal charge? The House of Lords said, yes he could make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this (at 175):

 

… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….

 

Challenge to the validity of subsidiary legislation

 

Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to ‘convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge’. This would involve ‘an injustice which cannot be tolerated in our criminal justice system’. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too ‘austere and indeed too authoritarian to be compatible with the traditions of the common law’.

 

Mr Boddington’s appeal ultimately failed because the House of Lords held that, under the relevant statutory provisions, the rail company did have power to impose a total smoking ban. The House held, however, that the magistrate would have been entitled to hear the collateral challenge to the vires of the bye-law under which he was prosecuted.

 

In Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 the Queen’s Bench Divisional Court (Hickinbottom LJ, Whipple J) held that, likewise, the court which tried an offence against community protection notice (CPN), was not obliged to consider the appropriateness of the notice where a defendant had not appealled against it when the notice was first made. Boddington did not apply, said the Divisional Court, because the CPN was specific to an individual and to his behaviour.

 

Friends, family or supporters not permitted attendance at court

 

Finally is the case where the court or its staff (HM Courts and Tribunal Service: HMCTS) excludes individuals who were entitled to be in court, but were kept out of any hearing. Matthew O’Connor (MO) was – perhaps still is – a leading member of Fathers4Justice (F4J). He was due to be tried by magistrates for a public order offence. Court managers heard that there might be a demonstration at the court and decided to bar anyone who might be associated with MO unless they were listed as defence witnesses. When MO and others interested in attending his trial – eight to ten people – attempted to enter the court building, only MO and his lay representative were permitted entry. MO applied to the court for those excluded to be admitted on the grounds that he was being denied the right to a public hearing. This application was refused after advice from the justice’s legal adviser, and that a properly authorised court manager had taken the view that there was a risk on grounds of safety and security.

 

In R (O’Connor and anor) v Aldershot Magistrates’ Court, QB Divisional Court, Fulford LJ, Leggatt J) [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 MO and two of those accompanying him applied for judicial review of the magistrates’ decision; and the magistrates agreed to adjourn his hearing before them so he could apply. The Divisional Court (the judgment was of both judges) recalled the open justice principle (at [25]) by reference to cases such as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531, [2011] 3 WLR 388 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618; and they set out the words of Jeremy Bentham (Collected Works, vol 9, p 493 and vol 4, p 316 (respectively):

 

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate.

 

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.

 

‘Importance of openness and transparency’

 

And the judgment emphasises (at [25]) that: ‘The authorities also stress the vital importance of openness and transparency to maintaining public confidence in the fairness of the justice system.’

 

Neither the court administration (HMCTS) had the power to exclude from the court building nor did the court have power to exclude from the court itself. The Divisional Court concluded: if exclusion is ordered, any application to deal with that should be dealt with by the court (not the administration) when it arises; and not by judicial review (see Lord Bridge’s comments in Forster, above):

 
[34] … Where a member of the public is seeking to attend a particular court hearing and there is a dispute or room for dispute about whether they have the right to do so, that question should be decided by the court concerned at the time the question arises. If a person is wrongly being denied entry, they should not be left in the position of having to incur the substantial burden of bringing proceedings after the event to vindicate their right, when the opportunity to be present has been lost.

 

And the court which should deal with any such application?

 

[34] … Furthermore… decisions to exclude members of the public potentially affect the fairness and validity of the court process. It is therefore integral to the court’s ability to control its own process that such decisions are taken by the court.

 

The justices’ decision to uphold the exclusion from the court building was ‘flawed’ (at [39]) and a declaration that their decision was unlawful followed ([53]).

 

The Family Court: court ‘to control its own process’

 

O’Connor was a criminal trial (as was eg Boddington). Forster and Howker (above) concerned what would now be the Upper Tribunal (where, even in child support cases, the open justice point does not arise: all hearings are in open court: Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 r 30(1); Tribunal Procedure (Upper Tribunal) Rules 2008 r 37(1)). Does it make any difference that an application in family proceedings to challenge FPR 2010 r 27.10 is in not in criminal nor tribunal proceedings?

 

The answer is not clear; though in O’Connor the Divisional Court spoke as if they were envisaging open justice in any court – criminal or civil – being a matter for that individual court to decide. They spoke of attendance as a matter of right at any ‘public court hearing’ (see eg [28]).

 

The question here is whether a hearing in a family court, specifically of domestic abuse proceedings, may be public; or are they secret unless the rules (not, as the rule-makers see it, either common law or statute) say otherwise. That takes this article back to the examples of those who might want to attend court set out earlier, and who might want to challenge the assertion in FPR 2010 r 27.10 that the family court must sit ‘in private’ save where rules say otherwise.

 

Domestic abuse: hearing in open court?

 

Each of the individuals in the categories below believes that the law is that proceedings under Family Law Act 1996 Pt 4 (domestic abuse) and as explained in Parts 1 and 2 of this series should be in open court.

 

(1)        Friends, family or other contacts of a party to the proceedings

 

Here application can be made by the applicant (C in the case study above) as was application made by Matthew O’Connor for his supporters in his case above. Issues may be raised as to (1) whether the O’Connor case is binding on a family court, and (2) then the Boddington point arises: can the validity of r 27.10 be challenged in the Family Court? The criminal/family proceedings point may be raised there again by the court or by the other party (B) if he wants the case to remain secret.

 

A further argument, which C is entitled to raise for those who wish to come into court with her, is that the domestic abuse case, on exactly the same facts (if B is prosecuted) will be in open court (like all criminal proceedings); and B’s name will be published. In both jurisdictions the parties’ child will remain anonymous. This point was considered in an earlier post.

 

Application by A is as for any application in proceedings under FPR 2010 Pt 18 and (as an urgent interim application, under FPR 2010 Pt 20).

 

(2)        Non-parties who, out of professional interest, want to attend a case

 

(3)        A member of the general public who just wants to come into court

 

For these two categories of would-be court attenders the question is how they can apply to the court. Unquestionably they have the right to challenge whether or not r 27.10 applies to them and to any right they have to attend court. The court procedure for them to make any application is not clear as it is for the party to the case (C above).

 

Family court application by a non-party

 

The Boddington case (and see eg White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536, QB Div Ct (Gross LJ, Singh J) and Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 QB Div Ct (Hickinbottom LJ, Whipple J)) involve applications made by parties to proceedings, as does O’Connor. The procedure by which a non-party to proceedings applies for what amounts to a Boddington/O’Connor declaration – say before magistrates sitting in the Family Court – is not clear (the journalist who obtained her reporting order in R (A Child) [2019] EWCA Civ 482 was already entitled to be in court and able to make her own application there).

 

Armed with the arguments set out in the three parts of this series an applicant can try to persuade the court there is jurisdiction for that applicant to challenge the validity of the secrecy required by the rules in a domestic abuse case. Having established the Boddington/O’Connor jurisdiction to enable the challenge to be made, the second stage is for the applicant (or a party to proceedings already in court) to try to persuade a judge that r 27.10 is unlawful in an appropriate case where it excludes individuals which the common law permits to be in court; and which no substantive law – statute law or common law – has excluded (see the earlier Parts of this series).

 

David Burrows

9 September 2019

 

 

9 September 2019

Open justice: when is secrecy lawful in family proceedings? – Part 2

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(2)        OPEN JUSTICE AND FAMILY PROCEDURE RULES 2010

 

Family proceedings: how ‘private’?

 

This series asks to what extent do court rules say family proceedings are permitted to be heard in secret (‘private’); and to how far does the law say such proceedings should be heard in open court (like the majority of other court proceedings). Within that question, this series will look only at hearings and publication of court documents. It will refer in particular to proceedings under FLA 1996 Pt 4 (domestic abuse injunctions) as its starting point.

 

The series will look at the following topics:

 

  • What does the law say about open court principles and about the powers of the court to permit publicity for court material (Part 1)?
  • To what extent is what is said about open justice in Family Procedure Rules 2010 (FPR 2010) within the powers of the rule-makers as defined by Courts Act 2003 (as explained in this Part)?
  • If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.

 

The final topic will be considered in the next Part.

 

Open justice and the common law

 

As explained in Part 1 law is made by Parliament (statute law) and by judges at High Court, and higher, levels (the common law). Open justice is a common law principle as explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

[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.

 

Neither form of substantive law can be changed by court rules (or by other delegated legislation) unless an Act of Parliament says so. Senior Courts Act 1981 s 51(1) provides an example. It defines the law for payment of costs in civil proceedings (including in family proceedings). The award of costs ‘shall be in the discretion of the courts’; but that is always subject to the opening words of s 51(1), namely that how a judge decides on costs is ‘Subject to the provisions of this or any other enactment and to rules of the court’. And CPR 1998 r 44.2 encapsulates the long-standing common law principle that – all other things being equal – the loser pays the successful party’s costs: costs follow the event.

 

As already mentioned (in Part 1) Lady hale emphasised this point in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 when she said: [27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute…

 

Powers to make court rules for family proceedings

 

Rules for family proceedings are made by Family Procedure Rules Committee (FPRC) under Courts Act 2003 ss 75 and 76. The question then is: are there any statutory provisions in Courts Act 2003 which enables FPRC to alter substantive law, akin to those set out in SCA 1981 s 51(1)?

 

Courts Act 2003 ss 75 and 76 set up the FPRC and say what it powers are to be (delegates to it what Parliament permits it to do). There are to be court rules (namely Family Procedure Rules) made by the FPRC (ss 75(1) and (2)). But what do ss 75 and 76 say about altering existing law? As far as I can see, the only provisions which may be said to permit altering existing substantive law are:

 

75 Family Procedure Rules

(4)The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—

(a)for a specified court or description of courts, or

(b)for specified descriptions of proceedings or a specified jurisdiction.

76 Further provision about scope of Family Procedure Rules

(2)Family Procedure Rules may —

(a)modify or exclude the application of any provision of the County Courts Act 1984 (c. 28)…

(2A)Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.]

(3)Family Procedure Rules may modify the rules of evidence as they apply to family proceedings in any court within the scope of the rules.

 

Family Procedure Rules 2010 and the common law

 

Two rules in FPR 2010 impact on secrecy (privacy) of family court proceedings are those which restrict attendance at family court hearings and which are said to restrict release of documents.

 

The open justice principle is denied by the rules – I emphasise, by the rules – for family court hearings in the following terms:

 

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.

 

For release to ‘any person’ (ie including to non-parties, press etc) of any document filed in family courts, FPR 2010 r 29.12(1) says:

 

(1) … No document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.

 

In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J said r 29.12(1) meant: ‘[13] … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’ This is not what the law says (see eg Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) discussed most recently at ‘Release of hearings documents’).

 

Many readers – lawyer and non-party alike – will treat what Mostyn J says in Appleton as a statement of the law. Whether this was ever the law was always doubtful, surely? It is not what r 29.12(1) actually says. And it was not part of what Mostyn J had been asked to decide anyway (not what lawyers call part of the ratio decidendi of his decision, which he defined as: ‘[5] All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified,… It is highly important that I should exercise my powers very carefully and cautiously…’. Nothing is said here about an contested decision on non-party release of documents. Mostyn J’s comment was said by the way (obiter): it does not define legal principle or add anything to the common law.

 

Common law and secret family proceedings

 

What the common law says about hearings in open court generally was summarised in Part 1. As the Guardian v Westminster and Cape Intermediate v Dring cases (both mentioned above) confirm there may well be circumstances in any type of proceedings (criminal and civil (including family)) where court materials may be released to non-parties (such as a journalist).

 

The rules assertion of secrecy (‘in private’) in all cases save as otherwise permitted by the rules and any blanket ‘access to documents whatsoever’ is not what the law says; and there is no evidence that I can see that such a broad denial of the open justice principle is open to the rule-makers under the powers given to them by Parliament (Courts Act 2003 ss 75 and 76). There is nothing in ss 75 or 76 about altering or modifying the common law; still less does the 2003 Act say the FPRC can reverse the common law.

 

Properly considered I do not believe that either FPR 2010 rr 27.10 or 29.12 (if r 29.12 says what Mostyn J says it says) represent the law; and that the exceptions to open justice summarised by CPR 1998 r 39.2(3) (set out in Part 2) and Administration of Justice Act 1960 would be more appropriate for family courts. Save where children were the subject of proceedings (or any other aspect of r 39.2(3) apply) this would require the Family Court to hear domestic abuse proceedings in open court.

 

And if a family court refuses to sit in public how does a person who wants to hear the case challenge the court’s refusal. I will attempt to deal with this in Part 3…

 

David Burrows

3 September 2019

Open justice: when is secrecy lawful in family proceedings? – Part 1

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Can court rules change substantive law?

 

What substantive law (ie common law and statute law) defines the English and Welsh system of open justice? And can any family courts court rule change open justice principles in relation to family proceedings?

 

The common law (judge-made law) can only be changed (1) where a statute does so; (2) where a statute says delegated legislation (such as Family Procedure Rules 2010 (FPR 2010)) can do so; or (3) a judge (having full regard to the rules of precedent) reframes the terms of the common law. For a rule to change (as opposed to summarise: see Civil Procedure Rules 1998 (CPR 1998) r 39.2 (below)) the law there must be statute law which permits it (as in the limited circumstances defined by Courts Act 2003 ss 75-76 for FPR 2010 (see later)).

 

Put another way: it is essential that substantive law is clear first by anyone who wants to define the law; and that that law and its effectiveness is not muddled up with what delegated legislation says and if it conflict (eg in this case, with what is said in court rules). For substantive law, much of what follows is common law. Because it must be deduced from case law, that is not always easy; but in most respects the common law open justice principle is relatively easy to deduce from such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (considered further below).

 

The question which started this this article was: should domestic abuse hearings (mostly under Family Law Act 1996 Part 4 and 4A) be in open court. On common law principles, and subject to any limitations summarised in the law as defined by CPR 1998 r 39.2(3), eg in relation to rights of children), hearings under Part 4. Many other domestic abuse hearings must surely be in open court. The same charges against an alleged abuser would be heard in open court in criminal proceedings (see my ‘Non-molestation and open court hearings’ (27 December 2017 ). So, subject to common law privacy exceptions, can closed hearings of domestic abuse cases be justified by the family proceedings courts administration?

 

‘Transparency’ and the family courts

 

Hearings of domestic abuse proceedings goes to the question of what family lawyers euphemistically call ‘transparency’ (as open court principles in the family courts were euphemistically described by the then President of the Family Division, Sir James Munby P, in Practice Guidance 16 January 2014: Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733). ‘Transparency’ in family hearing relates to its opposite, namely privacy of hearings for family cases.

 

This series will look only at hearings and publication of court documents using FLA 1996 Pt as is underlay. The series will look at the following topics:

 

  • What does the law say about open court principles and about the powers of the court to permit publicity for court material?
  • To what extent is what is said about open justice in FPR 2010 within the powers of the rule-makers (Family Procedure Rules Committee; FPRC)?
  • If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.

 

 

(1)        OPEN JUSTICE AND THE LAW

 

Open justice: a common law principle

 

Substantive law is made up of common law and statute law. In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 Lady Hale in the Supreme Court summarised the extent to which rules (and this includes FPR 2010) could alter substantive law:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

A similar point was made in the Court of Appeal in by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75. A barrister had tried to urge that court to say a new rule ‘prevailed over any previous jurisprudence that might be argued to limit the jurisdiction’ under that rule. The new rule should be ‘reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind’ as Buxton LJ described the submission. He replied:

 

[8] That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628….

 

The concept of open justice is a common law principle. This was asserted (in words since approved by the Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558 and Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (above):

 

[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.

 

Open justice, privacy and statute law

 

The leading case still cited almost daily in all courts (criminal and civil, family and administrative tribunals) is still Scott & Anor v Scott (above) where (at 445) Earl Loreburn said:

 

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,… I speak of the trial of actions including petitions for divorce or nullity in the High Court. To this rule of publicity there are exceptions, and we must see whether any principle can be deduced from the cases in which the exception has been allowed. It has been held that when 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.

 

This approach – with additions, such as for questions of national security and for confidential information generally – defines the law still more than 100 years later. And, it must be recalled, Scott was a family case, decided at a time when no distinction between rules for civil proceedings and for family law (proceedings now covered by FPR 2010) would have been recognised by judges.

 

Alongside all this FPR 2010 r 27.10 says boldly:

 

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.

 

And save for Holman J (see eg Fields v Fields [2015] EWHC 1670 (Fam), [2016] 1 FLR 1186) most family lawyers go along with what the rule says. The y do not obviously reflect on the extent to which the rule may conflict with the law. But to what extent is the rule itself not lawful?

 

Law summarised by Civil Procedure Rules 1998: open justice

 

In 2019 the law in relation to exceptions to the open justice principle can best be seen summarised in CPR 1998 r 39.2(3) (which is in almost identical terms to FPR 2010 r 7.16(3) for open court defended divorces). Under the heading ‘General rule – hearing to be in public’, r 39.2(1) states the common law default position: ‘(1) The general rule is that a hearing is to be in public’; and ‘hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)’.

 

If the court is contemplating ordering a private hearing it ‘must consider any duty to protect or have regard to a right to freedom of expression which may be affected’ (r 39.2(2); a factor protected by press rights under Human Rights Act 1998 s 12).

 

CPR 1998 r 39.2 then continues to list the factors which may permit the court to order that a hearing be in private (parts of which are clearly predicted in Scott v Scott (above)):

 

(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(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;… or

(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

 

What bits of this list would family lawyers object to as a definition for when family hearings should be in private (with a modernised Administration of Justice Act 1960 s 12(1) to back any breaches of privacy).

 

CPR 1998 r 39.2(3) and Clibbery v Allan

 

The content of the list in r 39.3(3) sets out the common law (as do many of the provisions on disclosure in CPR 1998 Part 31, which must be imported into family proceedings given the poverty of rule-making in the parallel FPR 2010 Part 21). I would expect any family judge to follow it if application were made (eg in a committal application or a domestic abuse hearing). The extent of the rule (in contrast to Administration of Justice Act 1960 s 12(1)) was considered by Dame Elizabeth Butler-Sloss P in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at eg [24]-[27] and [68].

 

That case deals with the common law on open court principles and release of documents in relation to Family Law Act 1996 Part 4 (FLA 1996 Pt 4; UK’s present domestic abuse legislation). It explains the common law and – in relation to publicity – it conflicts with Mostyn J’s assertion of what r 29.12 was said to mean. It is very much still good law as Mostyn J himself makes clear (see his citations at [7]-[11]) in Appleton v Gallagher (to be considered in the next part).

 

Clibbery v Allan concerned proceedings where a circuit judge had refused to make an occupation order injunction (under FLA 1996 Pt 4) on Ms Clibbery’s application. After the hearing she passed some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction to prevent such publication by Ms Clibbery or by the newspaper. An interim injunction was granted. On its return it was refused by Munby J on the return date (Clibbery v Allan [2001] 2 FLR 819). The Court of Appeal decision turned on the extent to which proceedings such as these were private, and to what extent confidentiality of documents therefore applied.

 

The issue for the Court of Appeal was: were the proceedings under Family Law Act 1996 Pt 4 in ‘private’ (as they defined it: and see Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056); and if they were, could there be subsequent publication or other release of documents, as Ms Clibbery had done. Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication by Ms Clibbery in this way was lawful. Mr Allan’s interim injunction was discharged.

 

These findings conflict with the restrictions on the open court principle and publicity of family proceedings documents set out in FPR 2010 rr 27.10 and 29.12; and it represents the common law in relation to LFA 1996 Pt 4 hearings, not what is said in the rules, so far as they do conflict.

 

The common law and family proceedings

 

For now it will be assumed that CPR 1998 r 39.2(3) summarises the circumstances in which any civil proceedings (including family proceedings) may, at common law, may be considered for hearing in private (ie in secret and to the exclusion of the public).

 

Using the list in r 39.2, to what extent is what is said about open justice in FPR 2010 within the powers of FPRC. And how does an individual enforce any right they have to be in court? These topics will be dealt with in the following parts of this series.