The law and open justice
In Open justice: family law development in 2019 I looked back over the past year at what had been happening on open justice in relation to family courts in 2019. This post looks forward to what we might hope to expect from the next decade. Two particular factors impact at the beginning of 2020: the recent case of JH v MF  EWHC 86 (Fam) (22 January 2020) where Russell J was critical of a family court judge and his approach to lack of consent of a young mother to sexual intercourse in a domestic abuse trial; and the domestic abuse bill promised in the late 2019 Queen’s Speech.
I assume here that the open justice principle has four main components:
- Courts should be open so people know what judges are dong in their name, unless there is some pressing reason in law (eg proceedings concerning children) why not – or as Jeremy Bentham put it: that judges while judging can be judged;
- Anonymisation of the names of parties and of others involved in proceedings;
- Release of court material before a hearing to those interested in the case (eg court reporters, journalists who are allowed by rules into court): a subject anticipated by Lord Scarman in Harman v Secretary of State for the Home Department  1 AC 280,  2 WLR 338 but where the common law still stumbles; and
- Release of court material during or following a hearing for good cause : R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (Guardian v Westminster); Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38,  3 WLR 429.
Open justice principle
This post concentrates on the first of these. It recalls that when Family Procedure Rules 2010 (FPR 2010) were introduced in April 2011 the Family Procedure Rules Committee (FPRC) decreed, under r 27.10, that “(1) Proceedings to which these rules apply will be held in private,” save where the rules “or any other enactment” say otherwise, or subject to that where the court directs differently. “Private” – exhaustively defined by the common law (see eg Hodgson v Imperial Tobacco Ltd  1 WLR 1056; Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565) – is said by the committee to mean “proceedings at which the general public have no right to be present” which begs a number of questions and, as interpreted by courts administrators today, means something different to what Dame Elizabeth Butler-Sloss P said “private” meant in Clibbery v Allan Fam 261:
“ … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’
 I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.”
So the law remains that documents can be released where a hearing is in private (as were Mr Allan’s papers in Cibbery v Allan). The attention of FPRC was perhaps not drawn to this case and the common law on the meaning of “private”. There is no question but that a definition of the open justice principle is jealously retained by the judges. In Guardian News and Media  QB 618, Toulson LJ said:
“ 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.”
The common law cannot be overridden by a rule, save where this is expressly permitted by statute: R v Secretary of State for the Home Department, ex p Simms  UKHL 33,  2 AC 115, 131-132 per Lord Hoffman. Very limited examples are permitted to FPRC by Courts Act 2003 ss 75 and 76, which emphatically do not include the open justice principle. As Lady Hale in Supreme Court explained in Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 (and see eg Jaffray v The Society of Lloyds  EWCA Civ 586,  1 WLR 75):
“ 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 Re Grosvenor Hotel Ltd (No 2)  Ch 1210. Thus, it is argued, section 1 of the Civil Procedure Act 1997 gave the Civil Procedure Rule Committee power to make rules governing “the practice and procedure” to be followed in the civil courts and as further provided in Schedule 1 to the Act. Paragraph 4 of that Schedule provides that the Rules may modify the rules of evidence, thus showing that where it is intended that the Rules could modify the substantive law, express provision is made for this.”
FPR 2010 r 27.10 is almost certainly unlawful to the extent that it seeks to render secret court hearings which the common law does not permit to be. A rule on its own is not law.
Common law and open justice
So what does the common law say about all this? The starting point remains Scott v Scott  UKHL 2,  AC 417 (discussed here). This has now been codified in CPR 1998 r 39.2(3) which for present purposes mentions includes that privacy “is necessary to protect the interests of any child” (r 39.2(3)(d)) or that confidential information (including personal finances) requires protection (r 39.2(3)(c)); though even then only so much secrecy for a hearing as is strictly necessary will be permitted (Attorney General v Leveller Magazine Ltd  AC 440).
Within the terms of FPR 2010 r 27.10(1) only the following are held in open court, as court practice now operates: divorce proceedings; proceedings for committal for contempt (civil or criminal); (probably) non-children declarations (eg as to marital status or parentage); and appeals within the family courts (FPR 2010 r 30.12A) where the court so orders. All other types of family proceedings are listed as private.
But is this the law, as opposed to what the rule-makers say? And if it is the rule, why is it thus in relation to domestic abuse? That is a subject which achieves high relief at present: (1) as a promised domestic abuse bill seems likely to be on the statute book in this session of Parliament (rules will take much longer); and (2) after experience of the behaviour of the family specialist circuit judge Tolson in JH v MF (above).
Domestic abuse and secret court hearings
The question which arises from Judge Tolson’s disposal of JH v MF relates directly to how domestic abuse cases are dealt with by all common law courts (criminal, civil and family) in the future. The question becomes much more than one of “transparency” (which in reality is a euphemism for how far secrecy is permitted in any court). For a variety of reasons it is important to be clear how abuse allegations are dealt with in the variety of courts which may be dealing with them (see also Open justice and domestic abuse court hearings: now and under the bill). And it is reasonable to ask: how many men (it will mostly be men) will go on acting again and again (with different partners) in a way which is abusive or coercive, if they know they will always be dealt with in secret by family courts?
This leads on to the question: how does our domestic abuse law and court procedure apply on the same facts to three completely separate areas of law:
- A possible criminal trial prosecuted by the police
- Damages proceedings in the county court
- Domestic abuse proceedings in the family courts
It must be recalled that the third of these – the domestic abuse in the family courts – might also be tied up also with children proceedings (as it was in JH v MF ); but the standard of proof required for (1) (the criminal standard of “beyond reasonable doubt”) is different from the other two (the civil standard, “on a balance of probabilities”). Our legislators have not so far done anything to try to put this procedural and evidential jungle right in the two – so far abandoned – domestic abuse bills which Parliament has started on since early 2017. (When I was first in practice the only way to get what would now be called a domestic abuse injunction for an unmarried partner was by relying on the tort of assault (ie (2) above); but have we really come that far in those 40-odd years?)
Domestic abuse as an issue separate from children issues
In 2020 all civil courts, including family courts, are familiar with the concept of separate trial of one or more issues. Domestic abuse is a separate issue from (say) what is to happen to children. There is no reason to try issues of domestic abuse at the same time as dealing with the welfare of children. For example, although in JH v MF the issues of domestic abuse arose in the context of a father’s claim concerning his child, there is no reason why the judge should not have dealt with domestic abuse as a separate matter, set down for a separate hearing.
From there it would be a short step to saying that liability in tort (ie (2) above: the harassment or assault damages claim) should be put over to another day for damages to be decided based on the findings of the preliminary hearing.
How a criminal trial can be dealt with is more difficult since the procedures in criminal courts – all this has to be dealt with now under three separate sets of procedural rules – are so different from those in civil (and family, where different) courts. Most starkly, the standard of proof (considered for domestic abuse family proceedings by Russell J at - in JH v MF ) between civil and criminal trials, is different.
If the issue of domestic abuse is – as it must surely be – dealt with as an issue separate from other family matters (such as children), why cannot it be dealt with entirely as a discrete or separate trial? That trial can be – must be, surely? – in open court, as with any criminal aspect of the case. There is no reason at common law (see eg Scott v Scott) why it may not be. (It is accepted that in a family court the media could be present even though the hearing was in secret (FPR 2010 r 27.11(2)(f)); but that misses the point. It does not make the hearing public as understood by the common law and as happens in all other courts concerned on the facts alleged.)
Open court hearings
Scott v Scott (a family case, by the way) emphasised – as judges have frequently ever since – that all cases, except for a very narrow number of examples (eg children cases) must be in open court. Why? Because it is important – and this is still the law today – that people be able to see and hear (if they wish) what is being done by judges in their name. This is so – subject to a few very narrow exceptions (which might include the vulnerability of a witness of party: though in open court their evidence could be by video-link) – even if a trial might cause embarrassment (see eg per Lord Atkinson in Scott v Scott  AC 417, 463):
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”
And if Judge Tolson had not sat in secret in JH v MF, it is important to reflect that his decision might have been different (though publicity did not deter him from brushing off Mrs Owens’s complaints as to her husband’s alleged behaviour in a case which ended in the Supreme Court: Owens v Owens  UKSC 41,  AC 899,  2 FLR 1067). An open court hearing might have encouraged him to ensure disposal in accordance with Lord Atkinson’s “pure, impartial, and efficient administration of justice” – who knows?
And you think a hearing should be in open court?
If – like Holman J (who hears financial relief cases in open court: see eg Fields v Fields  EWHC 1670 (Fam);  1 FLR 1186) – a family lawyer thinks the law (as opposed to a rule) requires a hearing to be in open court, what does that family lawyer do? Like Mat O’Connor (see R (O’Connor) v Aldershot Magistrates’ Court  EWHC 2792 (Admin),  1 WLR 2833) you challenge the judge’s or HMCTS’s decision; but the administrative law challenge can be made in the court which raises the point, not by a separate judicial review application (as explained here in “A voyage round Mr Boddington”, citing Boddington v British Transport Police  UKHL 13;  2 AC 143).
And if you are going to court and anticipate the issue – perhaps you have a domestic abuse client who wants her friends and family to be there to support her – then, if no issue directly relating to children arises, there is no reason (as I understand the law) why friends and family (and anyone else who want to be in court) should not be there. So go to court armed by your arguments under Boddington (most of which are anticipated in this post).
Once you convince HMCTS that domestic abuse hearings should be in open court, it is a short step to asking: why, if the children are not in court and their names are anonymised, should not the care proceedings be in open court? More use of video evidence and screens might be needed; but where a local authority is the applicant – essentially an administrative law matter – why should not most of the case be dealt with in public? That might be thought a heresy; but in 2020 where much evidence need no longer be viva voce it is a question which must be asked, perhaps?