Court documents: Part 2 – the open justice principle

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Hearing documents and the open court principle

 

Part 1 of this series has looked at who may attend family courts and what types of family court hearings. This Part deals with the question of: why should documents be made available for those who attend any court? Part 3 will deal with the important case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’); will analyse the documents concerned; and looks at how these may be available for release to non-parties. Finally, Part 4 will apply the law, as explained in the first three Parts, specifically to documents in family proceedings and to non-parties who may attend private hearings; or who may want to see documents later (eg journalists, lawyers, academics or family members – even perhaps a child as the child gets older).

 

In this series documents are categorised as:

 

  • Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules.
  • Trial documents – Documents prepared for the judge and at a court hearing.

 

The background to Cape Intermediate v Dring and a review of much that it decided will be considered in Part 3. In approaching his determination of the appeal as to whether and if so what documents from civil court proceedings might be released to non-parties, Hamblen LJ relied extensively on the case law underpinning the open court principle. Since this approach to open justice may to be central to any argument in family proceedings that documents be released this Part will deal with its context in court proceedings.

 

He started by setting out some ‘Well known statements of the principle’ (at [27]) and emphasising that ‘the common law has long recognised the importance of the constitutional principle of open justice’. He drew attention in particular:

 

[27] … Well known statements of the principle and its rationale include:

(1) Lord Shaw in Scott v Scott [1913] AC 417 at 477 (citing Jeremy Bentham):

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

(2) Lord Diplock in Home Office v Harman [1983] AC 280 at p303:

“…the reason for the rule is to discipline the judiciary – to keep the judges themselves up to the mark – the form that it takes [is] that justice is to be administered in open court where anyone present may listen to and report what was said”.

 

He concluded his short introduction to the open justice principle by reference (at [28]) to the central modern case to this subject: R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618. If there were any doubt on the subject, Cape Intermediate v Dring confirms that the Guardian v Westminster case applies equally to documents in criminal as to civil proceedings. He recalls Toulson LJ’s words where he spoke of the open justice principle:

 

‘[28] … Being “at the heart of our system of justice and vital to the rule of law” and [that he] explained how it enables the rule of law to be policed through “the transparency of the legal process”. He stressed at [2] that it is “not only the individual judge who is open to scrutiny but the process of justice”. It ensures that “judges are accountable in the performance of their judicial duties” and “maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny”.’

 

Later in his judgment Hamblen LJ returns to Guardian v Westminster, when he considered the inherent jurisdiction of the court to order release of documents. He explained that the case concerned a Guardian journalist’s request of a magistrate, refused by her, that he be permitted to read documents the court had read in an extradition case:

 

‘[85] …. [The Guardian] contended that these were documents that would have been pre-read, that it was not possible to understand the full case against those extradited without seeing the documents, and that they were needed for the journalistic purpose of stimulating informed debate about matters of public interest. The [Guardian’s] application was granted on appeal….’

 

Hamblen LJ pointed out that Toulson LJ had said much on the subject of the open justice, such as (quoted by Hamblen LJ at [85]):

 

‘[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state.’

 

Release of hearing documents

 

Toulson LJ and Hamblen LJ both draw particular attention to a series of cases when it comes to open justice and release of documents; and especially the need for the court to make sure that anyone attending a case is not kept from understanding what is happening because increasingly courts rely on written information read privately by the judge (eg witness statements and expert reports, skeleton arguments and position statements).

 

Toulson LJ referred to a line of authority starting with Lord Scarman – ‘a thinker ahead of his time’ – in Home Office v Harman [1983] 1 AC 280 at 316 on why ‘justice should be done openly’ (at [33]). Lord Scarman said:

 

‘Reasonable expedition is, of course, a duty of the judge [said Lord Scarman]. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw referred with approval, at 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done …’

 

Toulson LJ continued (at [34]) by reference to Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498:

 

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

 

Lord Bingham concluded with the point which, 20 years later, the rules have still not clearly answered (though Hamblen LJ has gone a long way to doing so). He continued:

 

‘… Public access to documents referred to in open court (but not in fact read aloud and comprehensibly in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.’

 

Part 3 will consider what was said in Cape Intermediate v Dring and especially in the light of the above open justice considerations.

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Parole Board, Mr Warboys (now Radford) and the open justice principle

A rule, a fundamental right and the legality of its restriction

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In R (DSD and NBV) v Parole Board and Secretary of State for Justice [2018] EWHC 694 (Admin) (28 March 2018: IP Radford/Warboys) two rape victims of Mr Warboys (with the Mayor of London who was said not to have standing (ie sufficient interest)) claimed a review of the Parole Board’s decision to release Mr Warboys (the name by which he is still mostly known). The court upheld the victims’ applications: first, that the board were irrational in failing to consider evidence wider than that presented to them; and, secondly, that a provision preventing publication of material was not within the powers of the statute under which the Board’s relevant procedures ran.

 

For the family lawyer this raises administrative law issues. For example, did the fostering panel in the recent Re T (A Child) [2018] EWCA Civ 650 ask enough, or the right, questions about the grandmother proposed for fostering; and, if not, did their considerations have the quality of decision-making involved in the Parole Board case? And as to vires: the Family Procedure Rules 2010 are full of examples where, as the Divisional Court held of the Parole Board, rules are not clearly backed by substantive legislation to justify the rule change. That is the rules, as in the case of the Parole Board, are outside any powers granted by legislation. The open justice principle – in issue in the Parole Board case – is an example. The principle is paid scant regard by family proceedings rule-makers. They see those prosecuted for domestic abuse in open court. On the same facts it is said that the same person – perhaps proved to be an abuser in a criminal court – is still dealt with in secret by family courts (FPR 2010 r 27.10). The fundamental right in Parole Board seems to be of no account to family proceedings rule-makers.

 

Parole Board: the case

 

On 13 March 2009, John Warboys (now Radford) was convicted of 19 serious sexual offences committed between October 2006 and February 2008 involving twelve victims. He was sentenced to an indeterminate sentence for public protection specifying a minimum term of imprisonment of eight years (being the equivalent of a determinate sentence of 16 years), less time spent on remand. That period expired on 14 February 2016, and Mr Radford/Warboys became eligible to be released on parole, at the direction of the Parole Board (ie if it was satisfied that it was no longer necessary for the protection of the public for him to be held in prison).

 

On 26th December 2017, the Parole Board determined that prison was no longer necessary in Mr Radford’s case and directed his release. Three sets of judicial review proceedings were instituted: by the Mayor of London: he was held to have no standing to make the application. The second set of proceedings was brought by two victims of Mr Warboys DSD and NBV, against the Parole Board and the Secretary of State for Justice. Mr Radford was joined in that application as an interested party. NBV is one of the 12 victims who gave evidence at Mr Radford’s criminal trial; DSD was not one of the 12, although she had obtained a settlement in civil proceedings brought against him. The third claim was by News Group Newspapers Ltd against the Parole Board and the Secretary of State for Justice.

 

Parole Board Rules 2016 (‘Rule 25’) r 25 states:

 

(1) Information about proceedings under these Rules and the names of the persons concerned in the proceedings must not be made public.

(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result.

 

The public law issues: ‘irrationality’ and vires of the rule

 

On the challenges of DSD and NBV the court dealt with two issues:

 

  • Was the Board’s failure to undertake further inquiry as to the background to, and other alleged offending of, Mr Radford’s application rational; and
  • Was Rule 25 within the powers of the Secretary of State in making the 2016 Rules; and in particular to what extent might it be expected that information about parole Board proceedings should be made public?

 

On the ‘irrationality’ challenge – ‘this rare sub-category of judicial review’ ([116]) – the court made it clear how high was the mountain the applicants had to climb. After full testing of the law, the court concluded that the question for the Board should have been to ask if there was other material they should have considered; and if so was it irrational for the Board not to have undertaken further inquiry. Yes it was, said the court: ‘[159] … in the particular circumstances of this case, the Parole Board ought to have carried out, or have instigated the carrying out of, further inquiry.’

 

Open justice

 

The court agreed that Rule 25 issue and that of open justice went together. Release of information therefore turned on the extent to which it could be said that the Board ‘exercises the judicial powers of the state’ ([171]; Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370; 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 at [46] approved by Kennedy v The Charity Commission [2014] UKSC 20 (at [115]).

 

Yes, they said. Fundamental rights are in play. ‘[171] … Adjudications upon matters of individual liberty are paradigm examples of the exercise of a judicial function.’ The ‘open justice principle retains its vigour’, even in situations where national security may demand hearing be heard part in private ([174]). And fundamental rights being in play, if statute was to derogate from such principles it must do so in unambiguous terms (the ‘principle of legality’): see for example Lord Hoffman in R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328 at 131:

 

… Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

 

The rights of victims to challenge arose not from any common law right for a person to be given reasons ([183]), but from the fact that the release decision is irrational, and separately there is a rule which prevents the Board from giving them information about the proceedings ([184]). The restriction ‘is unnecessary and/or disproportionate cannot [therefore] be regarded as authorised by the enabling statute as a matter of necessary implication’ ([198]). Rule 25 ‘clearly goes too far’. Criminal Justice Act 2003 s 239(5) (which confers functions on the Parole Board in respect of life prisoners) which is the basis for the rule does not enable to the court to imply a provision which restricts fundamental rights:

 

[198] Accordingly, the question is whether the Rule goes too far, because it imposes a prohibition which is not the minimum necessary to protect [the rights of private individuals]. Unlike Simms (ibid 130D-G), this is not a case where it is possible, in applying the principle of legality, to construe Rule 25 in a manner which preserves fundamental rights. In line with the approach in [R v Secretary of State for the Home Department exp Daly [2001] UKHL 26, [2001] AC 532], we have concluded that a provision which is unnecessary and/or disproportionate cannot be regarded as authorised by the enabling statute as a matter of necessary implication.

 

Need for further inquiry and to permit open justice

 

The court upheld the challenge by DSD and NBV to the rationality of the decision of the Parole Board directing the release of Mr Radford on the basis that it should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability. That is so even in relation to the offences of which he was convicted, let alone any other offending. Mr Radford’s release direction is quashed and Mr Radford’s case remitted to the Parole Board for fresh determination before a differently constituted panel.

 

The court left it to the Board to decide the procedure appropriate to the redetermination of Mr Radford’s case, taking into account the terms of its judgment, including the observations we have made regarding the need to undertake further inquiry; but suggested a serving or retired judge might chair the panel. The court also upheld the challenge to Rule 25(1). It would be for the Secretary of State for Justice to decide how Rule 25 should be reformulated.

 

Finally, the court felt that there are no obvious reasons why the open justice principle should not apply to the Parole Board to provide information on matters of public concern to the very group of individuals who have concerns, namely the public itself.

Privacy, the common law and a celebrity divorce

Court divorce papers: how private?

 

Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

 

‘What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.’

 

I do not believe the answer is as simple as that. The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

 

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

 

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship between press and people like the Redknapps?

 

Open justice principle

 

The common law applies to all aspects of English law, save where it is changed by statute. In R (ota 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 the Court of Appeal considered whether a newspaper could have released to it papers considered by a magistrate’s court district judge in relation to extradition proceedings. The judge said she could not release papers; and the Divisional Court agreed with her.

 

Toulson LJ gave the main judgment in the Court of Appeal which he started as follows:

 

[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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

Toulson LJ continued

 

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

[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.

 

And in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (a case about anonymity and terrorism) Lord Roger commented:

 

[63] What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.

 

Press freedom and privacy call for a balance to be struck.

 

Human rights

 

To affirm all this, not only does the common law open justice principle ‘let in the light and allows the public to scrutinise the workings of the law, for better or for worse’ (see Toulson LJ above); but it is demanded by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6.1. This requires all court hearings to be in public; but with certain limits. These limits are summarised in the latter part of Art 6.1 as:

 

1 … The press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

In English common law the position is best summarised by CPR 1998 r 39.2(3); and for this article it is suggested that these limitations operate for all court proceedings (criminal, civil or family). If a case comes within this list application can be made to claim privacy for any hearing, even though it might otherwise have been heard in public:

 

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

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

(b) it involves matters relating to national security;

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

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

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

 

Privacy is bolstered by European Convention 1950 Art 8, that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 

However, the right – countervailing that of privacy – is for all of us, that of ‘freedom of expression’ (Art 10). This protects private individuals, press and social media alike. Thus, ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’.

 

None of these takes priority one over the other (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591); but it is clear that the courts will generally strongly influenced by the Convention emphasis on freedom of expression (Human Rights Act 1998 s 12(4)).

 

Rules cannot change the law

 

The second cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers (given powers to do so by Courts Act 2003 ss 75-76). They are not considered by MPs but are dealt with by the negative resolution procedure (Courts Act 2003 s 79).

 

The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong; and there is certainly nothing in those rules ‘expressly permitting’ that the rule makers can alter common law principles.

 

That this is not possible, constitutionally, is confirmed by for example Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale in the Supreme Court 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: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

Generally proceedings under FPR 2010 are heard in private (FPR 2010 r 27.10); unless the rules say something else. Proceedings under FPR 2010 Pt 7 (mostly for divorce) are to be heard in open court (r 7.16(1)), save in the circumstances listed in r 7.16(3) (which provides a list similar to CPR 1998 r 39.2(3)) which sets out when court hearings, otherwise open, may be in private.

 

This is openness subject to the condition that only certain information may be publicised by the printed press (publisher or printer) Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b). But what is meant here by a ‘hearing’ and, subject to that, what documents can be released to those who attend court?

 

A side comment on this is provided by r 29.12(2). If there has been a hearing in open court anyone can ask for a copy of the order made. In the case of divorce proceedings this is unremarkable. A divorce order is in rem: it speaks to the world. This tells us nothing about whether, for example, a journalist can obtain a couple’s divorce petition and if so, to what extent his or her newspaper can publish anything.

 

If the journalist can obtain documents – as could the Guardian in the Westminster Magistrates’ case – is it consistent with the right to respect for a couple’s private life that they should be allowed to publish (European Convention 1950 Art 8.1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457)? If no, does it make any difference that one or both of the couple concerned are ‘celebrities’ (ie spend much of their life developing a symbiotic relations ship with the press, as in Naomi Campbell’s case)? Probably not; but this is part of a much wider subject, and must be the subject of a separate later article. In the meantime, what can be released to non-parties: that is to anyone who is not a party to the proceedings?

 

Divorce papers and release of hearing documents

 

What court documents – such as divorce papers which set out why one party says he or she should not have to live with the other – should be permitted for release? The law is unclear on this (as explained in my ‘Release of family courts hearing documents’).

 

Here an odd statutory side-wind blows in. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 (considered more fully here) – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information (such as names, addresses etc of the parties and details of legal argument and judgement), may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b). It does not catch the rest of us nor other media.

 

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents. This was established by the Guardian v Westminster case; and backed up by NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J. If application is made, the Mail must explain why it wants the documents. As Toulson LJ (with whom Lord Neuberger LJ and Hooper LJ agreed):

 

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

 

It may be worth adding that as Hooper LJ pointed out (at [95]), the position on disclosure in criminal proceedings (then Criminal Procedure Rules 2011 r 5.8(7) now 2015 r 5.7(5)) is:

 

If the court so directs, the court officer will— (a) supply to the applicant, by word of mouth, other information about the case; or (b) allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

 

This is supplemented, as Hooper LJ points out, by a note that the supply of information may be affected by European Convention 1950 Arts 6, 8 and 10 ‘and the court’s duty to have regard to the importance of— (i) dealing with criminal cases in public, and (ii) allowing a public hearing to be reported to the public’. It will be recalled that, as ever, it is the same common law which regulate criminal and family proceedings.

 

If the Mail gets them, they cannot print more than names, addresses and the judgment. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful. Guardian v Westminster makes it clear that the court must consider any application and deal with it on its merits and according to the individual facts of the case. In the case of the Redknapps the district judge had to make deal with the application and give reasons for his decision (FPR 2010 r 27.2(3)).

 

Privacy and the ‘celebrity’ divorce

 

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached. Secretly the Mirror had arranged for photos to be taken of her. These were published them with further stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

 

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.

Protection of public morals: a view from 2018

Protection for the divorcing public; or ‘troublesome irrelevance’?

 

I have spent 45 years as a family lawyer; and until this week-end I had not read – save fleetingly – the single section Judicial Proceedings (Regulation of Reports) Act 1926. Under the impetus of the case referred to here I now find that I should have paid more attention.

 

Subliminally I was perhaps aware that my guru Dr Stephen Cretney has said that the 1926 Act was ‘an occasionally troublesome irrelevance’; and that Sir James Munby P, after quoting Dr Cretney, suggested (at [28] in Rapisarda v Colladon (In the matter of 180 Irregular Divorces) [2014] EWFC 1406, [2015] 1 FLR 584) that ‘Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified’. Both these eminent family lawyers regard the Act as largely a waste of statute-book space.

 

This may be so. However it imposes limitations on the media and other publishers of printed information (but not eg users of Facebook or Twitter or other ‘social media’) which form a useful undertow to more conventional open justice principles in Matrimonial Causes Act 1973 divorce etc and Civil Partnership Act 2004 proceedings. Generally speaking, a defended divorce must be in open court (FPR 2010 r 7.16(1)). An open court hearing means the press is entitled to ask for – and generally to receive (see eg 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; NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J) – documents referred to in court. That might include lurid statements of the matrimonial life of any ‘celebrity’ – what exactly does that word mean? – who is unwise enough to defend his or her divorce.

 

‘Injury to public morals’: unlawful printing or publication

 

So what is the 1926 Act all about? Its objective is set out in its very short ‘long title’. It is intended to be ‘An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals’. Anyone in the group intended to be caught by it – mostly the broadcast and press media (see s 1(2)) – can be prosecuted if the Attorney-General agrees (s 1(3)).

 

The fact of there being criminal liability in all this indirectly creates the ability for the court to impose what have become known often as ‘super injunctions’ in family proceedings. Ungoed-Thomas J explained this in the still entirely relevant case of Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2 WLR 790 considered further below. And if that injunction is breached, this may then give rise to civil committal proceedings (which have nothing to do with s 1(3) or the Attorney-General).

 

Section 1(1) of the Act creates two separate sources of restriction on publicity by media and print. One depends on injury to public morals (s 1(1)(a)) and is likely to be in Dr Cretney’s ‘irrelevance’ category. Section 1(1)(b) says that in divorce, nullity, judicial separation (and the same for civil partnership proceedings), all but some prescribed information – names, addresses etc of the parties; ‘a concise statement of the ‘charges, defences and counter-charges’; submissions on points of law and the judgment – are caught, and under the Act may not be published. Nothing is said in s 1(1)(b) of injury to public morals, which is what the Act’s pre-amble says it is supposed to be all about.

 

For the day-to-day defended divorce – relatively few of these though there may be – s 1(1)(b) makes it unlawful to publish any but the prescribed information. This is so, even though the hearing is in open court. Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417  (which still lays the modern foundation for all proceedings being in public) was a nullity case. Rule 7.16, already mentioned, says that a divorce etc hearing – especially a defended divorce hearing – must be in public. So the press and public are allowed in; but only the details in s 1(1)(b) can be reported by the press.

 

It is striking, from all this, that the gap between the divorce proceedings information train and the platform edge of ‘injury to public morals’ (set out in the pre-amble and s 1(1)(a)) is very wide indeed. In short, it is difficult to see how s 1(1)(b) fits with the pre-amble to the Act; but the details it prevents from publication are plainly set out in the 1926 Act.

 

Duchess of Argyll: super family law injunctions in 2018

 

The case of Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2 WLR 790 Ungoed-Thomas J remains an essential source of legal principle on the 1926 Act. It concerned a breach of confidentiality injunction (a form of reporting restrictions order or ‘super injunction’). Following an eight year marriage the Duke presented an adultery divorce petition in Scotland. The Scottish judge, Lord Wheatley, commented on the Duchess that her attitude to the sanctity of marriage was ‘what the moderns might call sophisticated but what in plain language can only be described as wholly immoral’. Thus a view from the Scottish bench in 1963, and that in the year in which Lady Chatterley’s Lover was prosecuted – unsuccessfully – as obscene (for a discussion see here).

 

The Duke was granted a divorce. That year articles by the Duchess appeared in a newspaper, concerning the Duke’s drug habit, and that he had borrowed money to do up property from the Duchess’s family. Of these Ungoed-Thomas J said: ‘though not free from objection [the Duchess’s articles leave] on my mind a more sympathetic and favourable impression of the Duke than do his own articles’ and the Duke’s descriptions of her and their private life.

 

The Duchess sought interlocutory injunctions to restrain the Duke from communicating to the defendant editor, and newspaper proprietors details of the Duchess’s private life, personal affairs or private conduct communicated to him in confidence during the subsistence of their marriage and not hitherto made public. She claimed in respect of the Scottish proceedings under s 1(1)(b) of the 1926 Act and she claimed that publication of statements about her were in breach of marital confidence. Of those confidences she said:

 

‘During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence.’

 

This created between the couple, said Ungoed-Thomas J, an implication of confidence which the law must respect. He could – and so ordered – protect the confidences by reporting restrictions injunction. What the judge said of marital confidences remains important in the law today (as more recent case law confirms: see eg Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814).

 

Despite defended divorces being in open court – when that would normally mean that all that was said, and all documents read in court or referred to could be published – s 1(1)(b) puts a clear statutory brake on such publication. That means the media can only publish and print with care; and in the terms only of the information set out in Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b).

 

And if a media representative or other non-party to proceedings formally want information about a divorce, they can ask the court afterwards for a copy of any order made in open court (FPR 2010 r 29.12(2)).

A child and the open justice principle

Application of the open justice principle to a child in criminal proceedings

 

Why was the name of the 17 year-old Charlie Pearce (born 3 July 200), a double rapist and attempt murderer publicised whilst he was still a child (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); but the names kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). Why is it that parents who have been responsible for allowing their children to suffer sometimes serious harm while in their care are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who was not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49).

 

Most startlingly, a man (say) can be brought (as were T’s parents) anonymously – as family lawyers call it, ‘in private’ – before the family courts for relatively dire forms of ‘molestation’ of their partner or children; yet be prosecuted in public on the same facts. Are the family courts, it might fairly be asked, trying to keep something secret. Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors?

 

R v Pearce rehearses the arguments which relate to questions of anonymity – or not – in the context of prosecution of a child. The principles it sets out could apply equally to all family proceedings where privacy is assumed; but where privacy, it can be argued, should not – in law – rule the day. (It should also be said that the case shows why the rule of law – and therefore English and Welsh society as a whole – needs judges of the conscientiousness of Haddon-Cave J (I find it difficult to believe that the judge did other than write up his judgement as he passed a quiet evening in his lodgings in Leicester).)

 

In this note I will look at the Pearce case. In a separate article I will deal with the question of whether in cases like Re T, and others involving ‘molestation’ – ie abuse – of a party, it is lawful for family judges and magistrates (despite what Family Procedure Rules 2010 may say) to grant anonymity, other than for any children involved.

 

Anonymity for Charlie Pearce?

 

Pearce’s was a nasty crime of ‘sheer brutality’ ([50]). Aged just 17 he went out in Leicester with a ‘concrete slab’ and clubbed down a student. Whilst she was unconscious he raped her vaginally and anally, and stole her had-bag. He was found guilty of attempted murder and pleaded guilty to two rape and other charges. His victim survived thanks to excellent and prompt medical attention. Because Pearce was under 18 should his name be published?

 

The statutory provision which permits child witnesses, victims and defendant under 18 not to be named is a statutory exception to the open justice principle. It is set out in Youth Justice and Criminal Evidence Act 1999 s 45, which as Haddon-Cave J explains subtly, but distinctively, alters the previous position as to anonymity of children in criminal proceedings (Children and Young Persons Act 1933 s 39: (1) There must be good reason for the court to impose anonymity; and (2) this can only last while a person remains under 18 ([22]).

 

Haddon-Cave J provides a text-book summary of the law in relation to open justice ([14]-[18]); and in particular to its operation in children cases and where the European Convention 1950 (human rights) balance – ‘intense focus on comparative… rights’ – is required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (he calls the case Re S (FC) (a child) see eg [25]). He relates his assessment of the law to United Nations Convention on the Rights of the Child 1989 especially Arts 3 (best interests a primary consideration); 16 (no child subjected to arbitrary interference with privacy etc) and 40 (privacy of child suspects).

 

Haddon-Cave J refers specifically to the child’s ‘voice’ – a factor more family courts judges could perhaps bear in mind – as set out in Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, which he explains thus:

 

[27] The rights of a child to have a “voice” finds expression in Article 24 of the EU Charter of Fundamental Rights entitled “The Rights of a Child” (“UNCFR”). Under Article 24(1) UNCFR children have the right to such protection and care as is necessary for their wellbeing: “They may express their views freely. Such views shall be taken into consideration on the matters which concern them in accordance with their age and maturity”.

[28] Under Article 24(2) UNCFR, in all actions relating to children a child’s best interests must be a primary consideration. Article 24(3) states: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.

 

All that said, cases under YJCEA 1999 s 45 are fact specific (R v Markham and Edwards [2017] EWCA Crim 739). Applications for anonymity should not be based only on abstract open justice principles.

 

Human rights balance

 

In his assessment of the Re S European Convention 1950 ‘balancing exercise’ Haddon-Cave J had little difficulty in saying it would not be right to ‘keep the public in the dark about [Pearce’s] identity’; and anyway he would be 18 in only seven months’ time. Article 10 (freedom of expression) and the open justice principle trumped any force in Pearce’s Art 8 (right to a private life) arguments.

 

Many of the same arguments as to privacy and publicity can now be addressed to the domestic abuser in family proceedings. He, or she (such as in the case of T’s mother), may not have abused another person on the scale undertaken by Charlie Pearce; but the open justice principle is a very long-standing principle which cannot be overridden by a mere rule made by subsidiary legislation passed by the negative resolution procedure. Watch this space….

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.