A voyage round Mr Boddington
David Burrows explores the relationship between common law and court rules and practice directions, in seeking to challenge the routine privacy of family court hearings. … Continue reading
Administrative law and the family courts
This article provides some thoughts on the lawfulness of Family Procedure Rules 2010 (FPR 2010) and notes on a recent adventure into ICLR law report research. It starts from my own – unresolved – doubt as to the powers of the FPR 2010 rule-makers (Family Procedure Rules Committee (FPRC)) to make a rule which consigns the substantial majority of family cases to being heard “in private”.
Imagine I am not a qualified or practising lawyer, but someone with legal knowledge. I want to go to court with my next door neighbour, Millie. She has been abused by her husband over a number of years. I have known a little about it, but not sufficient to be called as a witness: most of what I know is hearsay (she has talked to me a little about what has happened). On one occasion I have been interviewed by the police; and after a recent incident there is a possibility that Derek, the violent husband, will be prosecuted. There are three of us who would like to go to court with Millie. We turn up with her but are told by the court staff – and they tell us this is confirmed by the judge – that we cannot go into court.
I have looked into this and I am prepared for what is happening. I tell the court staff I want to challenge the judge’s decision under the rule in Boddington (Boddington v British Transport Police [1998] UKHL 13, [1999] 2 AC 143). What is this rule and how does it work?
I will answer this question by looking at the following:
- My reservations as to the law and the way the rules operate;
- Boddington and how it works; and
- Procedure for dealing with a Boddington claim the judge in Millie’s case.
(1) Reservations at law as to operation of the rules
Reservations as to the rules
FPR 2010 r 27.10 says that unless the court or a rule says otherwise all family proceedings are to be heard “in private”. By contrast the common law says that all proceedings – all cases, criminal and civil and all the forms of proceedings (eg family, insolvency, Court of Protection etc which the Civil Procedure Rules 1998, r 2.1(2) ghettoised) – are to be in open court, save in a narrow band (summarised in common law now confirmed by CPR 1998 r 39.2(3)). This narrow band is to be heard in private.
That proceedings are heard in open court is a common law principle. It is basic to our law, and has probably been well known to us since Stuart times (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). As Toulson LJ said in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:
“[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.”
Common law can only be changed by statute; and, in the case of fundamental principles like the open court principle, by statute in clear terms (R v Secretary of State for the Home Department, ex p Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328). This was mentioned in R (on the application of Miller) v The Prime Minister [2019] UKSC 41; [2019] 3 WLR 589 (24 September 2019) where – referring to the common law and to constitutional law principles – the Supreme Court said:
“[40] … We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority…. Such principles … include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ([R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513] 567-568).”
Procedural rules and the law
In any issue with the judge in Millie’s case, we are talking about court procedural rules. The position on changes to the law, where attempted by rules, was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and much the same was said by Buxton LJ in Jaffray v Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). In Dunhill v Burgin Lady Hale 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 In re Grosvenor Hotel, London (No 2) [1965] Ch 1210 [per Lord Denning MR].”
What Lady Hale and Buxton LJ says applies to any procedural rules. They are there to regulate the way the law is applied (ie procedure), not to change or to create law. That is for Parliament or the judges (common law).
So how are the rules made? FPRC are delegated by the Courts Act 2003, ss 75 and 76 to prepare FPR 2010. That is to say ss 75 and 76 defined the rule-makers’ powers (their vires). It defines what Parliament says they can do. Examination of ss 75 and 76 shows there is nothing in FPRC’s powers that says the rule-makers can change the common law. The open justice principle is common law.
That is a summary of the argument I want to make to the judge on the powers of rule-makers in Millie’s case; but, it may be said, this is an administrative law matter which is way above the paygrade of most family court circuit and district judges. Is there any way the judge in Millie’s case can be asked to decide this point? Yes, I think so. That is where Boddington v British Transport Police [1998] UKHL 13, [1999] 2 AC 143 comes in.
(2) Boddington and how it works
The rule in Boddington
I am prepared for the judge’s rebuff. I have access to the ICLR site…
When I was first in practice someone in the office where I worked stuck into law reports tiny labels which told readers that a case had been mentioned, had been applied or had been disapproved in a later case. All being well those stickers stayed for all time. I don’t know if that still happens, but I do know that sitting in front of my lap-top I have access to the equivalent of those labels (and I’ve no need to stick them in myself) just by clicking on the + with a circle round it at the side of each case name on the ICLR site.*
I’ve known about Boddington for a long time. It’s probably in my Top 20 later 20th century cases. Armed with access to that ICLR + and their Boddington report I was able to have access to most of the case law referred to in the next part of this article.
But first, the principles which govern whether a rule or other direction is valid (in this case whether a case is heard in open or in secret) are dictated by administrative law. So how can the powers of rule-makers be challenged if need be other than the Administrative Court? And, next, how can a wrong decision of the court or its administrators to exclude anyone be challenged?
Boddington and a collateral challenge
Prior to all that: Boddington the case. Mr Boddington was a commuter from Brighton and a smoker. The railway company banned smoking on the trains on which Mr Boddington travelled. He was prosecuted for breach of a byelaw which was said to prevent him from smoking. He contended that the smoking ban was ultra vires the railway company as it went beyond the company’s statutory powers under the Transport Act 1962. How was that collateral challenge to the legality of the bye-law to be dealt with by a Brighton stipendiary magistrate?
The House of Lords held that the magistrate had been wrong to rule that Mr Boddington could not raise the underlying vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he appeared in court charged with breach. (He had not raised it in any earlier judicial review proceedings.)
Mr Boddington was entitled to make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this ([1999] 2 AC 143 at 175):
“… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….”
Challenge to the validity of subsidiary legislation
Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to “convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge”. This would involve “an injustice which cannot be tolerated in our criminal justice system”. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too “austere and indeed too authoritarian to be compatible with the traditions of the common law”.
Mr Boddington’s appeal ultimately failed because the House of Lords held that, under the relevant statutory provisions, the rail company did have power to impose a total smoking ban. The House held, however, that the magistrate would have been entitled to hear the collateral challenge to the vires of the bye-law under which he was prosecuted.
In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ (sitting with Peter Gibson and Mance LJJ) held a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51]-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) (and see Lord Irvine LC in Boddington [1999] 2 AC 143 at 161, considered below).
The question for a court or administrative tribunal, as Hale LJ explained in Howker, concerns the extent of the jurisdiction in the court to hear and decide on validity:
“[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….”
That is to say, if a question of validity of subsidiary legislation arises, can the question be dealt with in the court where it is raised?
In Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 the Queen’s Bench Divisional Court (Hickinbottom LJ, Whipple J) held that the court which tried an offence against a community protection notice (CPN), was not obliged to consider the appropriateness of the notice where a defendant had not appealed against it when the notice was first made. Boddington did not apply, said the Divisional Court, because the CPN was specific to an individual and to his behaviour (following the Divisional Court decision in Director of Public Prosecutions v T [2006] EWHC 728 (Admin); [2007] 1 WLR 209); but they reflected on the case, nevertheless.
By contrast, in White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536 (Gross LJ, Singh J) the Divisional Court applied Boddington in respect of a prosecution by a local authority which had unlawfully created a site licence and occupiers of the site had not applied in relation to it. Allowing the occupiers application for judicial review, Singh J said:
“[35] As the decision in the Boddington case itself illustrates, there will be circumstances in which the courts will allow a person to raise an ultra vires argument even in a case which is not brought by way of judicial review.”
All the cases above – and more – are there with the report in the ICLR + section on Boddington.
Friends, family or supporters not permitted attendance at court
Finally, what about the case where the court or its staff (HM Courts and Tribunal Service: HMCTS) excludes individuals who were entitled to be in court, but were kept out of any hearing. Court staff excluded me and Millies’ two other friends. In another case Matthew O’Connor (MO) was – perhaps still is – a leading member of Fathers4Justice (F4J). He was due to be tried by magistrates for a public order offence. Court managers heard that there might be a demonstration at the court and decided to bar anyone who might be associated with MO unless they were listed as defence witnesses. When MO and others interested in attending his trial – eight to ten people – attempted to enter the court building, only MO and his lay representative were permitted entry. MO applied to the court for those excluded to be admitted on the grounds that he was being denied the right to a public hearing. This application was refused after advice from the justice’s legal adviser, and that a properly authorised court manager had taken the view that there was a risk on grounds of safety and security.
In R (O’Connor and anor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 (Fulford LJ, Leggatt J), MO and two of those accompanying him applied for judicial review of the magistrates’ decision; and the magistrates agreed to adjourn his hearing before them so he could apply. The Divisional Court (the judgment was of both judges) recalled the open justice principle (at [25]) by reference to cases such as Scott v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi v Security Service [2011] UKSC 34 ; [2012] AC 531, [2011] 3 WLR 388 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618; and they set out the words of Jeremy Bentham (Collected Works, vol 9, p 493 and vol 4, p 316 (respectively):
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate.”
“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.”
This issue must be resolved by the court on the day; not by incurring the extra time and expense of judicial review in an already busy Administrative Court list (and see Chief Adjudication Officer v Foster [1993] AC 754 and comments on expediency of Lord Reid).
(3) Boddington and procedure for dealing with exclusion
The Family Court: court ‘to control its own process’
O’Connor was a criminal trial (as was Boddington). Forster and Howker (above) concerned what would now be the Upper Tribunal (where, even in child support cases, the open justice point does not arise: all hearings are in open court: Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 r 30(1); Tribunal Procedure (Upper Tribunal) Rules 2008 r 37(1)). Does it make any difference that an application in family proceedings to challenge FPR 2010 r 27.10 is in not in criminal nor tribunal proceedings?
The answer is not clear; though in O’Connor [2016] EWHC 2792 (Admin); [2017] 1 WLR 2833 the Divisional Court spoke as if they were envisaging open justice in any court – criminal or civil – being a matter for that individual court to decide. They spoke of attendance as a matter of right at any ‘public court hearing’ (see eg [28]).
The question here is whether a hearing in a family court, specifically of domestic abuse proceedings, may be public; or are they secret unless the rules say otherwise. That takes this article back to the examples of those who might want to attend court set out earlier, and who might want to challenge the assertion in FPR 2010 r 27.10 that the family court must sit ‘in private’ save where rules say otherwise.
Family court application by a non-party
The Boddington case (and see eg White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536 (Gross LJ, Singh J) and Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 (Hickinbottom LJ, Whipple J)) involve applications made by parties to proceedings, as does O’Connor.
The procedure by which a non-party to proceedings applies for what amounts to a Boddington/O’Connor declaration – say before a judge like Millie’s in the family court – is not clear (the journalist who obtained her reporting order in In re R (A Child) (Reporting restrictions) [2019] EWCA Civ 482 was already entitled to be in court and able to make her own application there: FPR 2010 r 27.11(2)(f)).
What I would have done as Millie’s neighbour is to put a note in to the judge summarising much of what is above, and asked the judge to hear me and my Boddington argument. Millie wants her injunction so she may have had to go ahead without her neighbours if I failed. And then battle may have to have been joined before a High Court judge or an appellate court. As the law stands, however, I have no clear standing in Millie’s case; so where my Benthamite arguments go in the family court if the judge is unsympathetic, I cannot be too sure.
Procedural law is unclear, as far as I know. None of the ICLR cases concern a non-party application. That, and the argument I would make as to why I should be allowed in, is for another day….
* [Editor’s comment: The + with a circle indicates an expand / contract function for the display of the Citator Index Card, an overview document showing all the indexed information about the case and its relationship to other cases, legislation and commentary. For more information, see our ICLR.3 user guide. ]