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.

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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)).