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  in Rapisarda v Colladon (In the matter of 180 Irregular Divorces)  EWFC 1406,  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)  EWCA Civ 420,  QB 618,  3 WLR 1343; NAB v Serco Ltd & Anor  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  Ch 302,  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  UKHL 2,  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  Ch 302,  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  EWCA Civ 908,  Fam 116,  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)).