The very same point had arisen in Moynihan v Moynihan [1997] 1 FLR 59. Sir Stephen Brown, P said, at p 62: “It will be noticed that section 1 of the Act is mandatory. It does not give the court a discretion. The court is not dealing here with an application made by an interested party to restrict publication of any material which may be made public in evidence. The whole question arises as to what the effect of section 1 of the 1926 Act shall be. The operative and particular words to be borne in mind are those at the beginning of section 1(1)(b), ‘in relation to any judicial proceedings for dissolution of marriage … Further Acts, in particular the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 and the Matrimonial Causes Act 1973, indicate that the proceedings are not concluded finally until any question arising as to the validity of any decree or order which might have been made has been finally resolved. Section 8(2) of the Matrimonial Causes Act 1973 is in point in considering the effect of the terminology as to the proceedings. Indeed the rules made under the 1973 Act indicate that the proceedings are in fact subsisting until finally rendered null and void.” (paras 19, 20).

Although driven to conclude that section 1(1)(b) applied to the present proceedings by the words Parliament chose to use in 1926, and reiterated in 1973, it was almost impossible to believe that that was an outcome intended by Parliament. Nor was it possible to understand how the protection of public morality and public decency, or indeed any other public interest, was facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan , and in the present proceedings, to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, that restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 93) previously articulated in Scott v Scott [1913] AC 417. That was not the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book was justified (paras 27, 28).

Pending any review of the 1926 Act by Parliament were there any legitimate means of avoiding the impact of section 1(1)(b)? The answer was clear: only as allowed by one or other of the express provisions of section 1(4) (inserting additional lettering and creating sub-paragraphs for ease of reference): “Nothing in this section shall apply [A] to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or [B] to the printing or publishing of any notice or report in pursuance of the directions of the court; or [C] to the printing or publishing of any matter (i) in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or (ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.” In the context of the present proceedings it was quite clear that neither [A] nor [C] could avail the media generally. But what of [B]?

Although section 1(1) was mandatory and conferred no discretion, section 1(1)(b)(iv) plainly left the judge free to include in or exclude from his judgment whatever material he thought fit—a discretion which was fettered only by the dictates of the judicial conscience. So too, limb [B] of section 1(4) conferred a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” was quite general; it was neither defined nor circumscribed. It embraced any direction of the court, whether a direction that something was to be published or a direction that something might be published. Likewise, the other words were quite general; they were neither defined nor circumscribed. Although the word “report” would no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorised, there was nothing in the 1926 Act to limit it to such documents. The word “report” was apt to include a report of the proceedings. It followed that limb [B] of section 1(4) recognised a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence had been given (paras 39–41).

There was, in his Lordship’s judgment, every reason why the media should be free to report the proceedings—proceedings which were conducted in open court and related to what was a conspiracy to pervert the course of justice on an almost industrial scale. His Lordship therefore made a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before his Lordship on 9 and 10 April 2014 they might think fit. The direction was, and was to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act (paras 42, 43).