Release of hearings documents in family proceedings: Part 2

20160419_174504

Release of hearings documents: general principles

 

The first of these two articles  considered the recent Supreme Court decision of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019). On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998. However, it confirmed that, as the Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings, including – plainly – family proceedings under Family Procedure Rules 2010 (FPR 2010). As with all other civil proceedings this is subject to the exceptions (summarised in [46]) where the court will order a private hearing (see eg CPR 1998 r 39.2(3) and Administration of Justice Act 1960 s 12(1))).

 

The rule in question in Cape Intermediate v Dring is CPR 1998 r 5.4C which as relevant here says (under the heading ‘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) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(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.

 

So how does all this impact specifically on family proceedings? Part 1 explained the extent to which the case affects release of court material to non-parties. This article considers to what extent any rule, in FPR 2010, can override the common law principles which are addressed in Cape Intermediate v Dring apply to family proceedings? Can these common law principles be overlaid by any rule which applies to family proceedings?

 

Rule-making powers and the common law

 

As explained in Part 1, and – as the Supreme Court makes clear – its decision is very much influenced by the Court of Appeal decision in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster). Lest there be any doubt here, in Guardian v Westminster, Toulson LJ, who gave the lead judgment, explained the part of the common law and open justice 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.

 

As Toulson LJ says, the common law is subject only to ‘statutory provision’; and, subject to that, the courts have jurisdiction as to how – in this case – the open justice principle should be applied.

 

The question which must be answered here is the lawfulness of restrictions – such as they are – in family proceedings in the existing FPR 2010 r 29.12 (set out in full below). After Cape Intermediate v Dring, especially, can the rule be said represent the law at all? Does it prevent release of documents to non-parties where application is made to the court?

 

Release of court material to non-parties in family proceedings

 

The nearest FPR 2010 get to dealing with release of documents to non-parties is, as mentioned, is at r 29.12(1). Of release to ‘any person’ (ie including non-parties) 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 pen 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.

 

So, according to the rules the court the court can give ‘permission’.

 

In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J took on this provision head on and said what he thought it meant. Dealing with release to non-parties – in this case ‘the press’ he asserted: ‘[13] … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’

 

Many readers – lawyer and non-party alike – will treat this as a statement of the law (see eg Magrath et al[1]). This always was doubtful; and any way it is not what r 29.12(1) actually says. And if Mostyn J’s comment is what the law said, it is made the more unlikely in the light of the definition of the common law by the Court of Appeal and the Supreme Court in Cape Intermediate v Dring.

Further Mostyn J’s statement at [13] (above) is not part of what he was asked to decide (the ratio decidendi) of the case. He had earlier explained what this was:

 

[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 so as not to pre-empt [the trial judge’s] decision about publication, anonymisation or redaction of his judgment (italics added).

 

Nothing is said about a decision on non-party release of documents. This would be for the judge who tries the case. Mostyn J’s comments on r 29.12 are incidental (obiter) to what he had to decide, and cannot form part of the law which the rest of us are required to follow. And insofar as they explain the meaning of r 29.12, they must go on to deal with the conflict between the common law and the rule.

 

Family Procedure Rules 2010 r 29.12 as law

 

But let us say Mostyn J was correct in his obiter comment on what r 29.12(1) means. If that is not in accordance with primary law (statute or common law) where does that leave its lawfulness? A rule does not represent the law save where it summarises the law. CPR 1998 r 39.2(3) provides a good example of a rule which attempts to summarise the law. There it is the list of civil proceedings which may be heard in private (and which is entirely apt to this discussion).

 

A rule regulates the way the law is operated, as explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75:

 

[8] … The CPR (in that case CPR 1998 r 52.17), 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….

 

A rule cannon change statute or common law. Lady Hale makes this point in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and in Dring (see below)) at [27] ‘[Rules cannot] change the substantive law unless expressly permitted so to do by statute’.

 

But do rule makers have any powers to change primary law? They can only do so – possibly: even that is not constitutionally entirely clear – if Parliament says so. Courts Act 2003 ss 75 and 76 define the terms of reference – delegated powers – of family proceedings rule makers (ie Family Procedure Rules Committee). To a very limited extent that committee can ‘modify’ certain legal principles.

 

Nothing is said in Courts Act 2003 about it being able to alter the common law. It is significant that still in 2019 a family proceedings case (nullity, now under Matrimonial Causes Act 1973) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 – is treated by all common law courts as determinative of open justice principles over 100 years later. Rule-makers under Courts Act 2003 or otherwise have no power to change that.

 

Clibbery v Allan

 

The common law conflict with Mostyn J’s assertion of what r 29.12 said to mean can be easily illustrated by Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 which predates FPR 2010, but which those rules cannot change. The case is very much still good law as Mostyn J himself makes clear (see his citations at [7]-[11]) in Appleton v Gallagher. It concerned proceedings where a circuit judge had refused to make an occupation order injunction (under Family Law Act 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 publication by Ms Clibbery or the newspaper.

 

The injunction was granted on an interim basis, but refused by Munby J on the return date (Clibbery v Allan [2001] 2 FLR 819). Much of the judgement in the Court of Appeal turned on the extent to which proceedings such as these (under Pt 4 of the 1996 Act) 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 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 in this way – that is release of the documents in the case by Ms Clibbery, was permitted. Mr Allan’s injunction was discharged.

 

Thus, the common law now stands, on release of court documents in family proceedings such as this. Clibbery v Allan directly contradicts what was asserted by Mostyn J in Appleton; and there is no statute law which says rule-makers can do this (if Mostyn J is correct that they have). Each case must be decided on its facts if a non-party applies for release; or if a party seeks to release.

 

Cape Intermediate v Dring and common law courts

 

Cape Intermediate v Dring applies to all courts covered by the common law (includes all family courts). There may be more exceptions in family courts (see Dring at [46]: eg for children proceedings and ‘privacy interests’; and see eg Administration of Justice Act 1960 s 12(1)). At [41] the case stresses that it applies to all ‘courts and tribunals’ and that ‘the extent of any access permitted by the court’s rules is not determinative’ – that is, it is not the end of the story. The question is: how the jurisdiction to release documents in a particular case – any case – should be exercised.

 

Each case (family proceedings or otherwise), where a non-party applies – eg media; other researcher; interested charity or other group etc – must be considered on its individual facts. If the rules do indeed say something else, this cannot be ‘determinative’ of the issue of what documents can be released. Clibbery v Allan and Cape Intermediate v Dring explains what documents can be released from family proceedings; subject always to statutory (such as s 12(1) (above)) and to common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).

[1] Need to make reference to Transparency book, which is not to hand as I write).

Advertisements

Anonymity: private and public proceedings

20160419_174504Open justice principle

 

Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

[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?… 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… ‘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.’

 

In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).

 

If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:

 

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

(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

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

 

Anonymity and Civil Procedure Rules 1998

 

Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.

 

By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:

 

  • In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
  • only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
  • parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
  • the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
  • the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed

 

Anonymity and divorce proceedings

 

On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.

 

M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).

 

Appeals: family proceedings

 

Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).

 

No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.

 

FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.

 

Procedure

 

Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).

 

Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.

Family proceedings: open justice and legal principle – Part 1

20160422_155058.jpgPublic hearings: what do the rules say?

 

This series of posts deals with most proceedings on family breakdown, and the extent to which they are – or should be – in open court (Part 2). To what extent is someone who attends court is entitled to know before-hand about the proceedings; and if so, what? This post looks at some underlying legal principles. To make the needlessly complex subject even more complex, different rules apply according to whether couples are married or not (see eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mostyn J).

 

The common law and statute law in this area apply to all children and domestic abuse proceedings, whether a child’s parents were married or not. Procedural rules depend on whether your proceedings are covered by Family Procedure Rules 2010 (FPR 2010), as are all proceedings on married family breakdown, children proceedings and domestic abuse. Couples who seek help from the courts to deal with their property where they were not married are mostly outside what follows.

 

Secrecy and family proceedings

 

FPR 2010 rr 27.10 (secret court hearings) and 29.12 (release of documents to non-parties) deal with secrecy in family proceedings. First r 27.10 says that, in the case of family courts hearings under the rules (not family cases where couples were not married) are in secret (‘private’), save where rules say otherwise (eg the rarely occurring defended divorce). In law ‘private’ does not mean what the rule-makers think: see Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 (below and in Part 2). Rule 29.12 deals with release of documents ‘to any person without permission of the court’; and it is assumed that such release of documents applies to journalists who attend court.

 

To understand these two rules certain basic legal principles need explanation:

 

  • What is the common law and how can it be overridden?
  • Who makes FPR 2010, under what statutory authority and what are the rule-makers powers?
  • Can rules override the law?
  • When do judges make new law?
  • What is the common law in the field of open justice; and to what extent is this the default position for court hearings?

 

Each of these applies to the following areas of this subject:

 

  • Public, private and secret hearings of cases covered by FPR 2010 (ie not family proceedings which are not covered by FPR 2010 (eg where a cohabitant couple seek a decision on their property from the court);
  • Release of court documents to non-parties (including the press and other media) for them to understand hearings they may attend;
  • Release of court documents after the hearing; and
  • Anonymisation of family cases

 

The first of these areas will be considered here and a succeeding post (ie the open justice principle in Part 2). The remaining three areas will be considered later.

 

Fundamental principles: common law and statute

 

The extent to which family court proceedings should be in secret is governed almost entirely by the common law (with a smattering of codifying statute law: eg Administration of Justice Act 1960 s 12(1); and see Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA (considered in Part 2).

 

Explanation of the term ‘secret’ will illustrate how the common law works. In Allan v Clibbery the Court of Appeal (Dame Elizabeth Butler-Sloss P and Thorpe LJ) were concerned to establish the venue for the court’s consideration of an application by Ms Clibbery to be allowed to live in Mr Allan’s flat in London. The court had said no. Ms Clibbery gave all the papers to a newspaper. Mr Allan wanted the newspaper prevented from publishing anything. Munby J refused a restriction order; and the Court of Appeal said he was right.

 

In the course of her judgment Dame Elizabeth said of the venue for court hearings; and this is what establishes the common law which cannot be changed by rules (see below):

 

[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.

 

So, as will be explained in Part 2, a hearing could be ‘in secret’, in ‘open court’ and, as Dame Elizabeth Butler-Sloss P explained, ‘in private’. The rules cannot change this. This then raises some very basic points of legal principle.

 

Statute law and delegated legislation

 

The highest legal authority is statute law. Delegated legislation, because made under statute, comes a step down the statutory hierarchy. Subject to that, the common law binds all of us, save where it is overridden, or re-defined, by statute law. Neither common law nor statute can be overridden by delegated legislation or (in the case of common law, by superior court authority: High Court judge overridden by Court of Appeal; Court of Appeal by Supreme Court); save in the case of enforceable Henry VIII powers (R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387: see Lord Neuberger at [25] A Henry VIII power is ‘… a delegated power under which subordinate legislation is enabled to amend primary legislation’. Any court must test very warily against the powers granted by Parliament to a minister.)

 

A problem for all of us is to define what is the common law; and to know when it changes. Statutes are written down and published. If the copy of the statute you refer to has been updated (which the Government legislation website generally achieves) that, subject to judicial interpretation (see in relation to Re F (Part 2)), it is the body of UK statute law. In what follows I shall do my best to say what I think is the common law in the areas under review.

 

For the avoidance of doubt, the common law applies equally to family and to all other court proceedings. As Sir James Munby, then Munby LJ, said of a family finance case, Richardson v Richardson [2011] EWCA Civ 79:

 

[53] … The Family Division is part of the High Court. It is not some legal Alsatia [ie an area near Blackfriars between the Thames and Fleet Street: in the 17th century the lair of a variety of criminals, now mostly barristers chambers] where the common law and equity do not apply….

 

Common law and the open justice principle

 

Family Procedure Rules 2010 are made by Family Procedure Rules Committee (FPRC) under powers in Courts Act 2003 ss 75-76. Sections 75-76 give powers eg to ‘modify’ rules of evidence; but no power to override the common law that I can see: no Henry VIII power for a family proceedings rule-maker. So if rule-makers are to override the common law on the open justice principle – if that is what they have done in eg FPR 2010 r 27.10, as Part 2 will explain – what powers do they have to do this?

 

It is perhaps too obvious to say, but I’ll mention it all the same. Any power used by any public body or person (eg a government minister) must be traceable to a statutory source. A statutory body, like the FPRC – and the same goes for a local authority – cannot act outside what it set out in their empowering statute. (A curious side point is that Parliament told the rule-makers to make the rules ‘simple and simply expressed’ (Courts Act 2003 s 75(5): a nice judicial review point would be to challenge the complexity of the rules – eg for child representation under FPR 2010 Pt 16. The applicant would ask the High Court to find the rule in question unlawful. After all even Lady Black (as she now is) declared aspects of Pt 16 to be ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027) and misunderstood them, in my view (as explained in Children’s views and evidence by David Burrows, Bloomsbury Professional, 2017 at Preface and Ch 6)).

 

Rules cannot change the law

 

There is ample authority for the proposition that a rule only regulates the law: it cannot create or change the law (save within powers in its empowering statute). That applies changing all primary law (statute and common law). Thus see eg Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

[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 [per Lord Denning MR].

 

Two more court of appeal authorities will suffice on this point: British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628; and Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75.

 

The question in this post will therefore be: what is the common law; and does the rule diverge from it? If the answer to the second question is ‘yes’, then the rule may be ultra vires (outside the powers of) the rule-maker. It can be challenged on judicial review.

 

As will be explained in Part 2, the two rules – FPR 2010 rr 27.10 and 29.12 – are not, in my opinion, compliant with the common law. Part 2 explains what I understand to be the common law – mainly the open justice principle. I shall base what I say on decided cases. I will show why I believe the rules to be unlawful in the sense that they are inconsistent with the common law and are outside the powers of the rule makers.

 

Aspects of the rules of precedent

 

It is appropriate here the common law rule as to what aspect of a judgment creates law, and what does not. High Court and Upper Tribunal judges and still higher judges (Court of Appeal and Supreme Court) create law. What they say binds other courts and mostly their brother and sister judges of similar level. However, law only represents what is necessary as a legal finding, to decide a case (the ration decidendi). Anything else is said ‘by the way’ (obiter) and, if said by a High Court judge and higher, is probably important – authoritative – but it does not bind any other judge (or magistrate or tribunal).

 

One example will suffice. In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J helpfully sets out in his judgment precisely what he was asked to do in the case before him:

 

[5] All I am being asked to decide today is whether the existing [reporting restrictions] order which restricts the reporting of the proceedings, should be lifted, or modified, at this point.

 

He explained why he was not prepared to extend permission to the press to report what went on in the Gallagher-Appleton case. He then went on to comment on release of documents from court cases as follows:

 

[13] This strict ‘watchdog’ [media] role is confirmed by the terms of the rules themselves. Rule 27.11 of the FPR 2010, which permits the admission of the press, confirms that the proceedings are held in private…. Further 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….

 

This paragraph precisely shows up the ratio point. The first sentence deals with what Mostyn J was asked to decide. The rest of the paragraph is comment (obiter): it is the judge’s view of a related issue, but not one he was called upon to decide. In spite of this, the comment of Mostyn J is treated by many lawyers as saying r 29.12 prevents the press seeing documents in a family case. I very much doubt that this is in truth the law; but that is for another day… In the meantime, Part 2 will look at what is meant by the open court principle and how this applies in family proceedings.

Why does the Family Court hear domestic abuse cases in private? (1)

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle drew attention to the dire circumstances of mothers who lost their children because of domestic violence. This might be to the care of a local authority. A judge in care cases (she suggests it is quite frequent) ‘is told that the mother has “failed to prioritise her children’s needs over her own”. Social services know perfectly well that the abuse isn’t the victim’s fault – but, they tell the court, she’s the only protective factor in her kids’ lives. And she’s failing at it.’

 

This post will assume that the complainant partner or spouse is (as is mostly the case) a mother. The social services department, if involved, assumes that the children will remain with her. The father has been responsible for domestic abuse (violence, controlling behaviour and so on: a subject considered by me eg here and here (in relation to ‘open court hearings’)).

 

The treatment of a complainant parent in the way described by Louise Tickle way is, as the Guardian says, ‘grotesque’. And it is grotesque on a number of levels. This and a following post look will look at three features of the way domestic abuse cases are dealt with by the family courts, namely:

 

  • 1 Claims by mothers are being dealt with in private (or secret). This is probably unlawful. Criminal proceedings on the same domestic abuse facts are dealt with in open court; so that the ‘grotesque’ features described by Louise Tickle go unchecked.
  • 2 In all family courts hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 3 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

The first question, which this post seeks to address, is that of private family courts. (Meanwhile domestic abuse proceedings are the subject of Home Office consultation (previously discussed by me here).) The procedural matters which arise from the second two questions will be dealt with in a separate post.

 

At present the abused parent – in the procedure discussed by Louise Tickle – applies to the Family Court for a non-molestation order. If the complainant proves she has been ‘molested’ (ie made the subject of domestic abuse) she will have an injunctions (a court order which tells her former partner not to ‘molest’ her); and her former partner may also be excluded from their home (if he is still there). If he breaches the orders – ie is responsible for further abusive behaviour, which is proved – he may be sent to prison (though this is often not until after a number of successive complaints to the Family Court have been made by a wife/mother).

 

Meanwhile, says Louise Tickle, ‘children are being taken into care in unprecedented numbers, and losing their human right to live with their birth families because women are being blamed, rather than helped. Removing children from mothers suffering domestic abuse prioritises short-term safety over the much bigger win that would help keep a family physically and psychologically intact in the longer term.’

 

Open court or private hearings

 

So should cases be heard in open court? And if not, why not?

 

Domestic abuse proceedings are ‘family proceedings’ (ie they deal with issues which need to be resolved for a broken family). Family proceedings are dealt with in private (ie no one but the parties and court staff etc) can go into court. This privacy is required by the court rules. For good measure the rules say, in the part which deals with domestic abuse, ‘applications for an occupation order or non-molestation order will be in private’. But is this the law?

 

It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).

 

In 1913 in a family law nullity case, where a husband had said he did not want everyone to know he was incapable of sex with his wife, the House of Lords said to him, ‘tough’; only a limited band of cases (and his was not one) could be heard privately (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In 1913 this limited band was as Lord Shaw said (echoing the words of other law lords), confined to three categories of case which are (adopting the terminology of the time): ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause.’

 

To this list the common law in 2018 has added

 

  • Matters relating to national security
  • Proceedings concerning confidential information, where publicity would damage that confidentiality
  • An interim hearing where publicity would be unjust (eg the recent Philip Green Court of Appeal hearing and Peter Hain)

 

None of this list of six categories of case – which still represent the law over 100 years later – includes domestic abuse, whether in the Family Court or in any other court. But can the rule makers (who are entirely undemocratic) change the common law. No, they are not. Subsequent Supreme Court authority has confirmed that. Only another decision of the Supreme Court or a statute can change what is in the common law.

 

Why hearings in open court?

 

The reason for open court hearings has been explained by judges frequently. Recently in a case where the Guardian sought documents from a magistrates’ court extradition hearing (which the Court of Appeal agreed the Guardian should have) Lord Justice Toulson said of ‘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.’

 

The judge continued: ‘Jeremy Bentham explained this: “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.”’

 

And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.

 

If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.

Court documents: Part 2 – the open justice principle

20160419_170156

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.

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

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

20170722_161644

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.