Family law no island (3): Criminal contempt, private lives and children proceedings
Continuing his series discussing the impact on family law and practice of reported cases arising in other areas of law, David Burrows considers contempt of court and limitations of the freedom to report on matters of public interest being litigated in court, particularly where they affect children.
Beyond ‘fair and temperate criticism’
A spectrum of contempt proceedings applies “criminal contempt” (as defined by Lord Diplock, see below) to protection of privacy of children and other protected parties. And contempt is fully considered in a judgment of Scarman LJ – still of importance – on contempt in relation to children proceedings, Administration of Justice Act 1960 (AJA 1960) s 12(1) and “Dear Bill” Deedes of the Daily Telegraph (In re F (orse A) (A Minor) (Publication of Information)  Fam 58,CA).
The impetus for reflections on criminal contempt is the press response to the judgment of the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) in R (Miller) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin) ;  WLR(D) 564 (‘Miller’). It led to reporting from newspapers which supported EU withdrawal. This included the Daily Mail headline, the day after the judgment which described the judges as “Enemies of the people”. Private Eye published examples of other publication of that term including Robespierre (1793), Lenin (1917), of Jews in the German press (1938). A dictionary definition of contempt includes that a person is in some way unworthy of respect. Within that definition many people would say the Daily Mail headline was contemptuous. In law more is needed.
Any contempt assumes interference with the administration of justice. In Attorney-General v Times Newspapers Ltd  AC 273 the House of Lords considered whether the proposed publication by the Sunday Times of its views, disapproving of the proposals put forward by Distillers (manufacturers of the drug Thalidomide) for settlement of litigation on behalf of children affected by the drug, could be contempt.
Prejudice to the administration of justice
Lord Reid defined the origins of the law of contempt, at  AC 273, 294E:
The law on this subject is and must be founded entirely on public policy… and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.”
He drew attention (at 296D) to the need for balance between justice and freedom of speech: “There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations”. (For the balance between competing interests through the prism of European Convention 1950 see Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47 ;  1 AC 593,  1 FLR 591: see in particular at ).
“Fair and temperate criticism is legitimate, said Lord Reid (at 297H). “Anything which goes beyond that may well involve contempt of court.”
Forms of contempt
So what does freedom of expression permit? Lord Morris (at 302A-C) said:
The phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits…. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest.”
Lord Diplock (at 307H-308) explained the difference between (1) “civil contempt”: the disobedience to a court order by one party to proceedings; and (2) “criminal contempt”, which (at 308C-D and 310G) he defined as:
“… [It] must relate to some specific case in which litigation in a court of law is actually proceeding…. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.
“[It] extends also to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his ease before they have been determined by the court….”
Contempt: public dissuasion from litigation
In The Merchant of Venice it would have been permissible privately to discourage Shylock from insisting on his bond; but to do so publicly where “he was seeking to enforce in a court of competent jurisdiction legal rights to which he was entitled under the law as it existed at that time … would have been a contempt”, said Lord Diplock; and he continued (at 313E):
In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court, the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused.”
This discouragement to a litigant is what happened in Attorney-General v Hislop  1 QB 514. Two articles had been published in Private Eye about Sonia Sutcliffe (SS; wife of the “Yorkshire Ripper”). When the hearing of SS’s action was imminent, two further articles defaming her were published. After she had been awarded damages in the first action the Attorney-General issued committal proceedings. The judge considered that the articles did not cross the contempt line: there was no risk of prejudice to the jury. The Attorney-General appealed.
The Court of Appeal said there had been a “serious contempt”, which went “beyond fair and temperate criticism” (at 527D and 528D). Its content was plainly intended to put pressure on SS to give up her litigation. Nicholls LJ (at 532C-D) echoed the words of Attorney-General v Times:
Part of the mischief of this particular type of contempt is the impact which publication of articles of this nature can be expected to have on other litigants. As Lord Reid said in Attorney-General v Times … (at 295): ‘Of course parties must be protected from scurrilous abuse: otherwise many litigants would fear to bring their cases to court.’ Likewise Lord Diplock said, at p. 310: ‘If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy … potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.’”
Contempt: privacy of court proceedings
A third wide category of contempt was envisaged by the House of Lords in Scott v Scott  UKHL 2 ;  AC 417 as exceptions to the open justice principle, as Viscount Haldane LC explained (at p 437) (and see Lord Reed in A v British Broadcasting Corporation  UKSC 25 ;  1 AC 588 at ):
In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.”
The exceptions to the open justice principle where court privacy may be ordered are reflected in CPR r 39.2(3). This summarises the common law rule that all hearings are to be in open court and where this rule may be overridden and the hearing be in private, if:
(3) (a) publicity would defeat the object of the hearing;… 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;… (g) the court considers this to be necessary, in the interests of justice.”
These principles apply equally in family proceedings; and – the main concern here – to proceedings in relation to children and protected parties (ie ‘a party, or an intended party, who lacks capacity to conduct the proceedings’ (CPR r 21.1)). Prominence is given to them under AJA 1960 s 12(1) which (as relevant here) provides:
12 Publication of information relating to proceedings in private
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be 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 respect to minors; (ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under the Mental Capacity Act 2005,…”
It is not necessarily a contempt to publish information as to proceedings in private, save in the excepted cases in s 12(1). Even then it may not be contempt if it would not have been before s 12 was in force (Pickering v Liverpool Daily Post  2 AC 370 at 420F), for example if the publisher did not know a child was a ward, as in Re F (above).
Contempt and children proceedings
Concern for children and the law of contempt coalesce in Re F (above) where the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) heard Waite LJ (as he became) leading Lord Wilson (as he then was not) for the Official Solicitor; Leon Brittan represented Slough Daily Mail. The application was by the OS to commit William Deedes, editor of Daily Telegraph, and the editor of the Slough Mail.
Lord Denning introduced the facts,  Fam 58 at p 82:
“This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a ‘hippy’ gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.”
F’s parents made her a ward. An outcome of those proceedings was that she was provided with a home by the local authority; but they (with support from the OS) allowed her still to see the man. The parents were unhappy and contacted the Telegraph. They told its journalist that the wardship order was only temporary. He contacted the OS and was told the same. The Telegraph published a story which was also picked up by the parents’ local paper in Slough.
Contempt was found proved by the judge. The Court of Appeal disagreed. They said that AJA 1960 s 12(1) must be treated as a clarification of the pre-1960 law (as Scarman LJ (at 99) and Geoffrey Lane LJ (at 105) read s 12(4)). A contempt was only committed if the newspapers knew that their reports contained information relating to children proceedings (per Scarman LJ at 100). Here that was not the case.
Pickering and what are “proceedings”
The court’s view of the law in Re F was considered by the House of Lords in Pickering v Liverpool Echo (above). P was convicted of manslaughter with sex offences and had been detained in a mental hospital. To secure release he must apply to a tribunal. He suspected that newspapers might publish information about his application; and he applied for an injunction to stop them. The judge rejected his application. The Court of Appeal by a majority made a reporting restriction order but gave the newspapers leave to appeal.
Lord Bridge (at 421D-422G) explained Re F and its view of AJA 1960 s 12; and he agreed with Scarman LJ as to the nature of s 12(1) and an absolute offence:
[The court] rejected the view that the effect of the exceptions in section 12(1) was to constitute the publication of information relating to proceedings in the excepted categories an absolute offence of contempt. Scarman LJ said, at 99: ‘I cannot read the words “of itself” in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private. The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law.’ I agree with this.”
He then went on to look at the question of what is “protected from publication” (at 422A). In Re F Scarman LJ said, at p 99:
As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt: …”
In support of this proposition Scarman LJ, in Re F, cited In re Martindale  3 Ch 193 where Ford Madox Ford (then “one Hueffer a young poet and novelist”: he changed his name after the 1914-1918 war) had married a ward. He told a journalist friend of it; and “allowed… an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings”. The contempt was not that the journalist’s paper had published the name or the fact of the bride being a ward, but that what was published would be understood as “what took place in my private room” and what “the judge had decided” (per North J).
Publication of “information in proceedings”
What may not be published? Lord Bridge quotes Geoffrey Lane LJ (at 105) in Re F, where he explained what was included as part of “information relating to proceedings” in s 12(1):
‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot. Thus in the instant case the reports of the Official Solicitor and the social worker were clearly part of the proceedings and were protected by section 12.”
Publication of such documents (passing them to a journalist (as in Re B (A Child) (Disclosure)  EWHC 411 (Fam),  2 FLR 142) invites an application based on this breach of privacy contempt. In Re B (above, at ) Munby J gave a summary of his view of the operation of AJA 1960 s 12(1). This subject is considered separately in an earlier post on this blog: Family law no island (2): Release of family courts hearing documents.
By late 2013 Sir James Munby P had further confirmed his view on information which can be published (Re J (Reporting Restriction: Internet: Video)  EWHC 2694 (Fam),  1 FLR 523):
 … Section 12 does not protect the identity of anyone involved in the proceedings, not even the child: see Re B (A Child) (Disclosure)  EWHC 411 (Fam),  2 FLR 142, para , A v Ward  EWHC 16 (Fam),  1 FLR 1497, para , In re X and others (Children) (Morgan and others intervening)  EWHC 1157 (Fam),  1 WLR 182, sub nom Re X, Y and Z (Expert Witness),  2 FLR 1437, para . So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.”
Whether the Daily Mail, or any other newspaper, was guilty of contempt in the Miller case is for others – not this article – to decide*. Where the line is drawn on publication of information about family proceedings and where a risk of contempt starts will depend on the law summarised above; on any court order which regulate the position in the particular case; and, if those two bounds have been overstepped (on the facts), on any intent of the person said to be in contempt.
David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings is published by LexisNexis/Family Law this month.
He writes a blog at DB Family Law
In the Times law Brief dated 15 November, Jonathan Caplan QC (of 5 Paper Buildings) suggests contempt proceedings should be considered by the Attorney General against the Daily Mail et al over their treatment of the High Court judges in the Miller case, for two reasons:
Firstly, it is scurrilous to imply that particular judges lacked honesty, integrity and independence without any justification. Sometimes, where the circumstances warrant, such journalism can perform a public service and some miscarriages of justice have been corrected in consequence. But such licence can equally be an abuse of journalistic traditions, and of the law, where the comment simply seeks to undermine the authority of the courts and to ridicule.
Secondly, these are continuing proceedings and will soon be heard by the justices of the Supreme Court. The treatment accorded to the three judges of the High Court carries with it the risk – however remote – that the Supreme Court members can expect the same treatment if they were to decide in a similar way and that they would be well advised to moderate their views.
Both of these risks are a breach of the law and a serious contempt of court if the publisher had the intention to interfere with the course of justice.”