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)).

Advertisements

#CHILD SEX ABUSE – LIFETIME REPORTING RESTRICTION FOR SURVIVOR

Life-time reporting restrictions orders

Is the court entitled in exceptional circumstances to make a life-time reporting restrictions order (‘RRO’) to restrict publicity for the lifetime of a child, say a survivor of child sexual abuse? It so what types of facts might justify such an order?

In December 2014 in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl (‘AB’). He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the child sexual exploitation (‘CSE’) inflicted on her. His order included a RRO for AB to last till she was 18 years old, in August 2015. No RRO was made in respect of her assailants though whether such an order could, or should be made, was part of the court’s consideration in the December case.

In Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam) (Riaz, AB), (24 June 2015) Keehan J considered an application, by the City Council with support from AB, that the reporting restrictions order should last for AB’s lifetime. The newspapers represented before Keehan J said they had no intention of reporting on AB nor intruding on her privacy; but they were concerned, as their advocate explained (quoted by Keehan J at [35]), at the exceptional nature of the RRO which the court was being asked to make:

… the concern is that for the court to make an order such as that requested would be an extraordinary, exceptional, and, we submit, unjustified extension of the court’s use of its jurisdiction, and an unwarranted and unjustifiable intrusion on and limitation of the public and the media’s rights to freedom of expression under Article 10. The concern of the PA and TNL is that if the court makes an order in a case such as this, it will extend the range of injunctions available to local authorities far beyond anything considered in [earlier cases]. An injunction would leave the press bound for the rest of AB’s life.

Jurisdiction

In Riaz, AB the first question for the court was, given the approach of AB’s 18th birthday, had the court any jurisdiction to continue the RRO? This resolved itself into whether the court had jurisdiction to make an order at all; and if so whether it should be operated in respect of AB.

In Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 Lord Steyn stressed the extent of existing statutory provision (cited by Keehan J at §[26]):

[20] There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.

Early on in his judgement Keehan J had referred to JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 in which, it might be said, the Court of Appeal had recently explained how, at common law, the open justice principle can be overridden (and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). A mother was concerned at her and her daughter’s loss of privacy following court approval of her substantial damages settlement. The Court of Appeal set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. The court concluded that the criterion for decision as to whether a RRO should be made was whether it was ‘necessary’ to derogate from the principle of open justice (§§[33] and [34]); and that in this type of case – ‘dealing with… essentially private business’ the claimant was entitled to a RRO. Generally such orders should be made for a protected party in a case such as that of JXMX, subject to the press having a chance to object in an individual case.

Keehan J sets out his view of the JXMX decision as follows:

[13] … the decision reflects the emphasis the courts now place on the need to accord due respect to the Article 8 rights of litigants, especially of children, young people and protected parties balanced against the Article 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said:

The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant’s identity.

I respectfully agree.

He considered the cases where RROs had been made to protect a new identity (Thompson and Venables, Mary Bell and Maxine Carr) (§§[14]-[18]) and to the age limitations – to 18 for any reporting restriction on a child in court proceedings – in Children and Young Person’s Act 1939 s 39 (R (ota JC and RT) v The Central Criminal Court and others [2014] EWCA Civ 1777). He drew attention (§[20]) to the fact the ota JC and RT case had led to a life reporting direction protection being granted for life to under 18 witnesses and victims in criminal proceedings (Youth Justice and Criminal Evidence Act 1999 s 45(2) and (3)).

Conclusion and reporting restrictions order

The passage from Lord Steyn’s opinion in Re S (above) had been cited to the judge by the advocate for the press. In response Keehan J drew attention to Lord Steyn’s concluding exception for ‘the most compelling circumstances’ (§[27]) for his being able to find further exceptions to the open justice principle. He went on:

[28] In my judgment, however, two matters are plain:

  1. a) a high priority is given by Parliament to young victims or witnesses in criminal proceedings and to the victims of sexual offences and of female genital mutilation; and
  2. b) as I repeat, the approach of the courts has advanced over the course of the last decade or so to protect the Convention rights of litigants in civil proceedings as most recently exemplified by the decision of the Court of Appeal in JXMX 

The judge held that he was entitled to make a life-time RRO, even though AB would no longer be a child for most of the period it covered. Should he do so in AB’s case?

In making this decision the judge must balance the private interests of AB against the public interest in freedom of expression. He addressed the public interests – as advocated by the press representative – as against AB’s private interests as follows:

[40] It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.

[41] What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.

[42] AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.

He concluded from this that these private interests of AB overrode any public interest there might be in press publicity:

[46] I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.

Public interest in victims being encouraged to come forward

Finally the judge emphasised the public interest of the importance of victims of CSE coming forward if they might be capable of being guaranteed life-time reporting restrictions (though each case will depend on its individual facts (injunction applications to be ‘determined on their own merits’: italicised passage below).

[47] I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

Each case will depend on its own facts: the public/private balance must be tested in each instance. However, if Keehan J is followed – and he explains why he considers that the common law in 2015 is with him – then children, who may justify continued anonymity (including survivors of child sexual abuse), can seek orders for restrictions of the reporting of their cases beyond childhood.