ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
Mr Justice Hedley
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
SIR MARK POTTER, PRESIDENT OF THE FAMILY DIVISION
| A BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR
|- v -
|INDEPENDENT NEWS & MEDIA LIMITED, ASSOCIATED NEWSPAPERS LIMITED, GUARDIAN NEWS & MEDIA LIMITED, TIMES NEWSPAPERS LIMITED, TELEGRAPH MEDIA GROUP LIMITED and THE PRESS ASSOCIATION
Mr Antony White QC and Mr Guy Vassall-Adams (instructed by Independent News & Media Limited) for the Respondent
Hearing dates : 24 & 25 February 2010
Crown Copyright ©
The Lord Chief Justice of England and Wales:
"What is in A's best interests in respect of performing in public and his participation in commercial music, his participation in publicity/marketing, and whether a welfare and/or financial deputy needs to be appointed to manage those activities (a fried/family or independent person) and the remit of any appointed welfare and/or financial deputy."
The Legislative Structure
"General rule – hearing to be in private
90. – (1) The general rule is that a hearing is to be held in private.
(2) A private hearing is a hearing which only the following persons are entitled to attend –
(a) the parties;(b) P (whether or not a party);(c) any person acting in the proceedings as a litigation friend;(d) any legal representative of a person specified in any of sub-paragraph (a) to (c); and(e) any court officer.
(3) In relation to a private hearing, the court may make an order –
(a) authorising any person, or class of persons, to attend the hearing or a part of it; or(b) excluding any person, or class of persons, from attending the hearing or a part of it.Court's general power to authorise publication of information about proceedings
91. – (1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private may be published where the court makes an order under paragraph (2).
...2) The court may make an order authorising –
...a) the publication of such information relating to the proceedings as it may specify; or...b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.
(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may –
(a) impose restrictions on the publication of the identity of –(i) any party;(ii) P (whether or not a party);(iii) any witness; or(iv) any other person;(b) prohibit the further publication of any information that may lead to any such person being identified;(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
Power to order a public hearing
Court's power to order that a hearing be held in public
92. – (1) The court may make an order –
(a) for a hearing to be held in public;(b) for a part of a hearing to be held in public; or(c) excluding any person, or class of persons, from attending a public hearing or a part of it.
(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order –
(a) impose restrictions on the publication of the identity of –(i) any party;(ii) P (whether or not a party);(iii) any witness; or(iv) any other person;(b) prohibit the publication of any information that may lead to any such person being identified;(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
Supplementary provisions relating to public or private hearings
93. – (1) An order under rule 90, 91 or 92 may be made –
(a) only where it appears to the court that there is good reason for making the order;(b) at any time; and(c) either on the court's own initiative or on an application made by any person in accordance with Part 10.
(2) A practice direction may make further provision in connection with –
(a) private hearings;(b) public hearings; or(c) the publication of information about any proceedings."
Hedley J's judgment
"…the proceedings…are within the exceptions to the open justice principle and are therefore not immediately subject to it. Accordingly I conclude that the institution of such proceedings does not engage the article 10 rights of the media. That is, of course, not to say that they have no rights as they clearly have a right to apply under rule 91 and PD 13 A. Once they apply they undertake to demonstrate "good reason" for the order. In my judgment that is not synonymous with the immediate engagement of article 10 rights and the court undertaking the conventional balancing exercise between the respective article 8 and article 10 rights. However once "good reason" is established then that balance does indeed have to be undertaken."
And that is precisely what Hedley J did. After reflecting carefully on the provisions of article 8 and article 10 of the Convention he concluded that the legitimate concerns for A's privacy and the legitimate aspirations of the media could both be met. Accordingly he made the order now under consideration. He was not asked to order and did not order a public or open court hearing. There was, however, good reason for a partial lifting of the embargo on the presence of a limited number of representatives of the media at the hearing.
Articles 8 and 10 of the European Convention of Human Rights
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except…"
"In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … . 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 lives of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."