The development of privacy law in England has generated difficult issues concerning the balance between  the privacy rights of claimants and the principles of open justice.  These have been thrown into sharp relief by the controversy over the use of “super injunctions” – which provide strong privacy protection but prevent public scrutiny of the decision making process.  Other more limited methods of privacy protection have been considered in recent case law.  First of all it is necessary  to look at the basic common law and Convention principles of open justice.

The principle of “open justice” is a fundamental one which is deeply rooted in the common law and which is subject only to narrow exceptions (See Scott v Scott [1913] AC 417).  As Lord Diplock put it in Attorney General v Leveller Magazine Limited ([1979] AC 440 at 450A to C):

“If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.  The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.”

The principle has been reinforced by Articles 6 and 10 of the Convention.  As Lord Steyn said in the case of In Re S (A Child) (Identification: Restrictions on Publication)([2005] 1 AC 593)

“under the ECHR there is a general and strong rule in favour of unrestricted publicity of any proceedings in a criminal trial … the common law has long adopted a similar approach” [15]

The common law position was rationalized following the introduction of Civil Procedure Rules and the implementation of the HRA, where the court as a public authority has to act compatibly with convention rights (section 6 HRA and see In the matter of Brandon Webster [2006] EWHC 2733 (Fam) [2007] EMLR 199).

The Convention and public hearings

Article 6(1) expressly recognises that the press or public may be excluded from all or part of the trial. It provides;

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests 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.”

Furthermore the European Court has recognised in B v United Kingdom; P v United Kingdom ([2001] 2 FLR 261) that the Article 6 requirement to hold a public hearing was subject to exceptions. The court said:

“….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that ‘the press and public may be excluded from all or part of the trial…. where the interests of juveniles or 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’. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …” [37]

For the purpose of Article 6, a “determination” must in general be a final determination of a civil right or obligation or a criminal charge (See R (Wright) v Secretary of State for Health [2009] UKHL3). Accordingly interim decisions in interim hearings will not be subject to the guarantees under Article 6. Although there is a general right to a public hearing (See Werner v Austria [1998] 26 EHRR310, and Scarth v UK [1998] 26 EHRR. CD 154) this is therefore subject to exceptions and does not apply to interim hearings except where the interim measure could be considered effectively to determine the civil right or obligation at stake (Micallef v Malta (2009) 28 BHRC 31).

 

Public Judgments

If the trial is held in private, there is an obligation to hand down a written judgment in public (See Werner v Austria). However there may be exceptions where it is not possible to produce an anonymised or abridged version (See Y v Attorney General [2003] EWHC1462).  Whether or not the hearing is in private, where a public judgment is being handed down it should avoid reference to the private/confidential material. This principle applies even where the court has declined to restrain the information so that it is for the defendant publisher to decide whether to publish and risk a claim in damages, otherwise the judgment would undermine any available remedy in damages (See Cream Holdings v Banerjee [2005] 1 AC 263 at [26]).

Derogations

 

Accordingly the default position is open justice in relation to the nature of hearings and public availability of court documents and documents referred to in court. The court may derogate from some or all these open justice principals where there is evidence justifying such a course of action. The exceptions to open justice principals include super injunctions, anonymising of proceedings, private hearings and withholding of private documents from public inspection.

As the court made clear in Terry v Person Unknown ([2010] EWHC 119 (QB)), any application for such derogation should be supported by evidence in an application.  As Mr Justice Tugendhat put it:

“Open justice is one of the oldest principles of English law, going back to before Magna Carta. It is now set out in CPR39, and in Art 6, in terms which it is unnecessary to repeat here…

There is of course an obvious difficulty in at the same time complying with the principle of open justice and giving an effective remedy for threatened misuse of private information. But as was stated in Re S, there is no presumptive priority between ECHR rights. That applies as much to tensions between Art 6 and Art 8 as it does to tensions between Art 8 and Art 10. Art 8 does not have a presumptive priority over Art 6 and open justice. Each derogation from Art 6 and open justice must be justified on the particular facts of the case, in accordance with the intense scrutiny required.”

Public and Private Hearings

 

The general rule under CPR 39.1 is that a hearing is to be in public unless;

(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;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice (CPR 39.2(1) and CPR 39.2(3)).

The mere fact that that a hearing is held in private does mean that publication of information from a private hearing would constitute a contempt of court. The position is governed by section 12 of the Administration of Justice Act 1980 which provides:

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court except in the following cases, that is to say –

(a)        where the proceedings –

(i)         relate to the exercise of the inherent jurisdiction of the High Court with regard to minors;

(ii)        are brought under the Children Act 1989; or    otherwise relate wholly or mainly to the maintenance or upbringing of a minor.”

(b)        where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;

(c)        where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d)        where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e)        where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

(2)    Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having the power to do so) expressly prohibits the publication.

(3)     In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.

(4)   Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section.”

 

Reporting Restrictions for the Private Hearing

In the light of the Administration of Justice Act 1960, in order to ensure that there is no reporting of the matters raised in a private hearing it may be necessary to order under CPR 39 not only that the hearing is in private but also that there be no reporting of the same.  This was the form of order that Mr Justice Tugendhat granted in the Terry case.

Such orders have been granted in breach of confidence claims numerous times both before and after the Human Rights Act. Whatever the precise historical basis for making such orders, it is now clear that the power to grant reporting restrictions and anonymity orders drives from the Human Rights Act obligation for public authorities to respect convention rights that this as a result of section 6 of the Human Rights Act.  This appears to be the effect of the Supreme Court decision in In re Guardian News and Media Ltd ([30-31]) as analysed by Mr Justice Tugendhat in Gray v UVW.

“DFT Orders”

A recent High Court decision has suggested a new way of balancing open justice and privacy.  In the case of DFT v TFD ([2010] EWHC 2335) Mrs Justice Sharp made a new form of order which provides a careful balance between privacy and open justice.  A public judgment was handed down but an order was made which was designed to prevent disclosure of the matters restrained and also of matters leading to the possible jigsaw identification of the anonymised claimant.   The operative part of the order (which was subject to the usual “public domain provisos”) provided that

The Defendant must not disclose, publish, republish, syndicate, use, communicate or disclose to any person (other than to legal advisors instructed in relation to these proceedings for the purpose of obtaining legal advice):

(a)        Any information concerning the subject matter of these proceedings or the identity of the parties, save for that contained in the public judgment of the Court handed down on Monday 27 September 2010 and/or

(b)        any of the information set out in Confidential Annexure A to this Order”

Similar orders were made Mr Justice Tugendhat in AMM v HXW ([2010] EWHC  2457) and Gray v UVW ([2010] EWHC 2367). In the lattercase Mr Justice Tugendhat said:

“For the reasons given above in relation to the order for anonymity of the Defendant, I also find that it is necessary to order that there be no report of these proceedings or their subject matter of any information which is not included in this judgment.”

A “DFT” order strikes the balance between transparency and privacy – with the public judgment containing information about the case but the order preventing further “piecemeal” disclosure of information about the claimant.