Court documents: Part 2 – the open justice principle

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Hearing documents and the open court principle

 

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

 

In this series documents are categorised as:

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Release of hearing documents

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Release of court documents to the security services in children proceedings

Confidentiality a pre-requisite

 

In X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam) judgment on 6 October 2016 (headed Commissioner for Police of the Metropolis v A Local Authority) McDonald J dealt with an application by the Metropolitan Police (MPS) to release a judgment and mother’s statement in unconcluded care proceedings to the security services (otherwise MI5). MPS had received the documents on their own earlier application. MPS wanted to release the documents to assist in their enquiries (eg in case MI5 could provide them with information about any criminal, including radicalisation, information about the mother: MI5 were not a party to the application).

 

The mother did not consent nor oppose. All other parties agreed to release. The case turned on whether there should be, and if so what, conditions upon release. MPS said release should be unconditional. Taking the lead for the respondents, Frank Feehan QC (acting for the three-year old’s grandmother) said release should be conditional. McDonald J agreed: the court should maintain control of confidentiality in the documents.

 

McDonald J provides a masterful summary of the relevant law:

 

  • Children Act 1989 (CA 1989) proceedings (eg care proceedings, as here) are private, and are embargoed from ‘publication’ (Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J) by Administration of Justice Act 1960 (AJA 1960) s 12(1)) (paras [16] and [17]).
  • Publication will not be a contempt under AJA 1960 s 12(1) if it is within the ‘communication of information’ provisions of Family Procedure Rules 2010 (FPR 2010) Part 12 Ch 7 (per AJA 1960 s 12(4)); and as explained by Baker J in Re X and Y (Disclosure of Judgment to Police)[2014] EWHC 278 (Fam), [2015] 1 FLR 1218) ([17]-[18]).
  • The security services (eg MI5) are not included in Part 12 Ch 7 (see table in Practice Direction 12G), so the applicant MI5 must justify to the court any order for release ([19]-[20]).
  • CA 1989 s 98(2) dictates when admissions by a parent should be released (Re EC (Disclosure of Material) [1996] 2 FLR 725, which still defines the court’s approach to s 98(2)) ([21]-[22]).
  • As ever, s 98 is intended to encourage frankness by parties in children proceedings subject to its inherent limitations ([23]).
  • In making any release order the court must have in mind any European Convention 1950 rights in play (especially those in Art 6 and 8) ([24]).
  • If an order is to be made the court will consider what conditions should be imposed to guarantee confidentiality (including a staged approach) ([25]-[26]). Release to MI5 unconditionally might not be sufficient to guarantee confidentiality. Conditional release was justified ([27]-[35]).

 

The judge summarises the balance the court must strike: first, between maintaining confidentiality for family proceedings and ‘the strong public interest in the prosecution of serious crime and the punishment of offenders’ which includes ‘the public interest in identifying those who have been guilty of grave offences under the anti-terrorism legislation’; and, secondly, the need to uphold laws ‘aimed at guaranteeing the fundamental rights of the parties to these proceedings, the maintenance and protection of which rights the work of the police and intelligence agencies in a liberal democracy is designed to achieve’ (para [57]). Where disclosure is sought, the tension created between these competing principles must be balanced fairly and in a Convention-compliant manner by reference to the factors set out in Re EC (above).

 

Conditions to protect confidentiality in family proceedings

 

The ratio of the decision was that the court must not interfere with the investigation of serious crime. The judge was satisfied that to refuse the requested permission to MPS might compromise its investigation (para [69]). However, where need be conditions should be imposed to ensure a proper balance between the ‘various rights and interests engaged [and] having regard to the particular circumstances of the case’ (para [70]). It was important that the court encourage co-operation between agencies (see eg 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 (http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf)) (para [72]); but the overriding of confidentiality conditions which – as in X, Y and Z – would confidentiality must be justified if release was to be unconditional:

 

[71] … However, in circumstances where what is in issue is the disclosure of confidential, and in some cases highly sensitive, material, the court will require evidence concerning the operational impact of refusing disclosure or imposing conditions that goes beyond mere inconvenience. The mere fact that an agency will be required to return to court to obtain permission for onward disclosure is unlikely to be sufficient…

 

McDonald J was not prepared to override ‘the statutory principle of confidentiality’ (most would probably regard confidentiality as common law, perhaps: see eg Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6, [1990] 1 AC 109). He was unwilling to order ‘onward disclosure’ unconditionally (para [79]. He therefore ordered release of documents subject to conditions which maintained control of confidentiality in the documents with the family courts (see paras [58]-[60]).

 

MI5 must come back to court, if need be by closed material procedure (considered as a coda to the judgment at paras [89] to [95]), for further release. The emphasis will remain – so far as possible – for the family courts to preserve the frankness which s 98(2) is intended to encourage; and to do so alongside the rights to confidentiality of the children and other parties involved.