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




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

One thought on “Open justice: when is secrecy lawful in family proceedings? – Part 3

  1. Reblogged this on | truthaholics and commented:
    “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).”

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