QUEEN'S BENCH DIVISION
Strand, London WC2
B e f o r e :
MR JUSTICE PENRY-DAVEY
|ON THE APPLICATION OF|
|MICHAEL JOHN PELLING|
|BOW COUNTY COURT|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
MESSRS P SALES & A CHOUDHURY (instructed by Treasury Solicitors, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the respondent
Crown Copyright ©
(1) The case was estimated to last for one day. That was an estimate that even if not made by Dr Pelling, he concurred in to the extent of recording it at the beginning of his skeleton argument, and the case was accordingly listed and other cases today equally listed on that assumption. The case was listed to come on at 12 noon yesterday and was called on at that hour. Dr Pelling had not then arrived in court, owing to transport difficulties which he properly explained to us later, but was able to commence his submissions at 12.30. At 4.15 yesterday we told him that the court would sit today at 10 o'clock but that he must conclude his oral submissions by 11.30; that is to say, allowing him over four hours of court time to address us. Dr Pelling indicated that that would cause him difficulty. However, we bore in mind not only the time allocation that we had already indicated, but also that we had received and carefully read extensive written submissions from Dr Pelling, including a 20-page submission on the implications of the European Convention on Human Rights, a matter that he indicated would need to be dealt with extensively. We were also conscious, as we always are, of our duty to manage the time of the court in the interests of all litigants, including those litigants who, on the basis of the original time estimate, are now in court waiting for their cases to be heard. We were satisfied that we could do justice to Dr Pelling's case and to his arguments within the time limited to oral argument as we have described. In the event, Dr Pelling was able to conclude his address to us shortly before 11.30 and was good enough to say that that time had been sufficient to him; though I would not want that to be read as any more than a courteous observation to the court, rather than any waiver or withdrawal on his part of the submissions that he had made on the previous day.
(2) Dr Pelling submitted at the outset of the hearing that he would be handicapped in the presentation of his case by being required to sit in that part of the seats in the court which are usually allocated to litigants in person. He drew our attention to a substantial written submission that he had previously made indicating the particular difficulty that he would encounter. He asked to be permitted to move elsewhere. We agreed to that adjustment of Dr Pelling's position in the court in the light of the particular difficulties that he had outlined. We made it clear to him, and repeat, that we were establishing no general approach on the part of the court. Our decision is limited to this constitution hearing this case.
(3) In his original Form 86A Dr Pelling had sought to challenge an extensive part of the Civil Procedure Rules and the Practice Directions. In order to explain this point, and for reference purposes later on in this judgment, it is necessary to set out the relief that he sought, explaining as we do so what the content is of the provisions to which he takes objection. The relief sought was:
"1. A declaration that Civil Procedure Rules 1998 Rules 39.2(3)(c) and 39.2(3)(d) and 39.2(4) are ultra vires."
"A hearing, or any part of it, may be in private if...
(c) 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 patient."
"2. Declaration that CPR 1998 Practice Direction 39PD "Miscellaneous Provisions Relating to Hearings" paragraphs 1.5, 1.6, & 1.7 are ultra vires."
"1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c), namely...",
"(2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent;
(3) an application to suspend a warrant of execution or a warrant of possession or to stay execution where the court is being invited to consider the ability of a party to make payments to another party."
"Rule 39.2(3)(d) states that a hearing may be in private where it involves the interests of a child or patient. This includes the approval of a compromise or settlement on behalf of a child or patient or an application for a payment of money out of court to such a person."
"Attention is drawn to paragraph 5.1 of the practice direction which supplements Part 27 (relating to the hearing of claims in the small claims track), which provides that the judge may decide to hold a small claim hearing in private if the parties agree or if a ground mentioned in rule 39.2(3) applies. A hearing of a small claim in premises other than the court will not be a hearing in public."
"Declaration that CPR 1998 Practice Direction 27PD "Small Claims Track" paragraph 4.1(2) is ultra vires."
"The judge may decide to hold it in private if -
(a) the parties agree, or;
(b) a ground mentioned in rule 39.2(3) applies."
"Mandemus requiring Bow County Court to hold all civil trials in open court without concealment identities of parties/witnesses, unless authorised otherwise at Common Law or by enactment, and without impeding the access of the public to the hearings."
"(i) the question of whether statute gave power to the rule makers to provide that hearings may be in private in the circumstances described in Part 39.2(3)(c)
(ii) the question of whether the rules if they were ultra vires gave power to issue the particular practice direction relating to possession proceedings commencing in private 39PD 1.5(2)
(iii) what the practice should be as regards possession hearings should also be established so that there is not a different practice in one court rather than another
(iv) whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of a member of the Court staff is a hearing in public."
(4) The respondent sought to adduce a witness statement of a District judge, DJ Gypps, who in fact sits at the Southend-on-Sea County Court, not at Bow County Court. He wished to give evidence about two matters. Firstly, he was a member of the Civil Procedure Rule Committee and on various working parties assisting the Vice-Chancellor in his making of practice directions, and he gave some evidence in paragraphs 2 to 8 of his witness statement of the mode whereby the rules had been made. Then from paragraph 9 onwards of his witness statement he gave an account of the practice in his court, and as he believed in other courts, with regard to the making of possession orders, that being the subject matter within which Dr Pelling's complaints arose, and made observations about the circumstances of litigants in such actions and the reason why it was seen as desirable that there should be at least a facility for hearing such actions in private. We had some considerable doubt as to whether the first part of that evidence, that is to say about the rule-making process, was indeed relevant, or indeed admissible, and on the matter being raised with him, Mr Sales indicated that he would not wish to rely on that part of the evidence. He did however submit in his skeleton argument that the matter from paragraph 9 onwards described the experience of a District Judge in dealing with possession actions and the effect of publicity on applicants, and he submitted that it was a useful element of background information of the sort that is often seen in judicial review cases. We, of course, have read the whole of the statement. We did not think that in the event the evidence of DJ Gypps, even that part that we were minded provisionally to admit, could be in any way decisive with any of the issues of the case, and I do not refer to it further in this judgment. We were however minded to agree with Mr Sales that it could serve as useful background information in the manner that I have indicated.
(i) he said that the evidence was not in the form now required by the Civil Procedure Rules, and, in particular, contrary to those rules, assumed that the evidence would prima facie be given other than orally. In my judgment that objection is misconceived. It is, in my judgement, quite clear from the general form and provisions of the Civil Procedure Rules as they at present stand and the retention of order 53 of the rules of the Supreme Court that are not intended to apply in the specialist jurisdiction of judicial review.
(ii) Dr Pelling said that if he was wrong on the first point, he would wish to apply to cross-examine DJ Gypps even though it would be emphasised that his principal objection, as I have already indicated, was that the evidence should not be in written form at all. It is, as is well-known, unusual for there to be cross-examination in a judicial review case. That was made clear, for instance, in the judgment of Laws J, as he then was, in the Arts Council Case  COD 175. In particular, we considered that given the limited range of DJ Gypps' evidence, it was not possible to say that the interests of justice required him to be cross-examined. We have to say that we were fortified in that conclusion by hearing a detailed account from Dr Pelling of the matters that he intended to ventilate in such cross-examination: which, it became clear to us, would have gone far beyond examination of factual issues and would have rapidly descended into argument. We therefore did not order DJ Gypps to attend for cross-examination.
"A hearing, or any part of it, may be in private if ...
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality."
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament apply principles of constitutionality little difficult from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done."
"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield."
"The judge in deciding whether to hold a hearing in public or in private must make the decision having regard to representations that have been made to him",
"The judge should also have regard to article 6.1 of the European Convention on Human Rights. This requires that in general court hearings are to be held in public but the press and public may be excluded in the circumstances specified in that article. Article 6.1 will usually be relevant, for example, where a party applies for a hearing which would normally be held in public to be held in private as well as where a hearing would normally be held in private. The judge may need to consider whether the case is within any of the exceptions permitted by article 6.1."
"In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention."
(i) first of all, the objection under article 6 falls in the face of the terms and nature of the rule that is said to be in breach of that article. As I have already pointed out, it does not bar the citizen from the courts in all circumstances. It gives weight in terms to the requirements of article 6 itself as indeed paragraph 39.4A of the practice direction emphasises.
(ii) article 6 itself does not create absolute rights. That is demonstrated by a number of cases which we were shown, all of which, in my judgment, contain the same theme. An example is the case of Hakansson and Sturesson v Sweden  13 EHHR 1. That was concerned with waiver on the part of the litigants of a right to publicity, the terms in which that was admissible, and the effect it had on the article 6 right. The court said at paragraph 66 of its judgment:
"The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of article 6. Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will either expressly or tacitly an entitlement to have his case heard in public. However a waiver must be made in an unequivocal manner and must not rub counter to any important public interest."
"Furthermore, it does not appear that the litigation involved any questions of public interest which could have made a public hearing necessary."
(iii) the European Convention recognises a discretionary judgment in the national court in the way in which it applies the precepts of article 6 within the national legal order. That perception is sometimes confused with the doctrine of margin of appreciation, which is of course a doctrine available to the Strasbourg court and not available in those terms to the national authority. At the same time, however, the fact that the doctrine of margin of appreciation exists in the jurisprudence of the Strasbourg court underlines the degree to which the rules themselves contain a latitude for judgment on the part of the national authorities. That relationship between the doctrine of margin of appreciation and the binding terms of the Convention was addressed by Lord Hope of Craighead in Regina v Director of Public Prosecutions ex parte Kebilene  3 WLR 994 C, when he said:
"It will be easier for a [discretionary area of judgment] to be recognised where the Convention itself requires a balance to be struck..."
"The court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, 'basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him'. That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion."
"Where, as here, an inquiry purports to be a public inquiry, as opposed to an internal domestic inquiry, there is now in law what really amounts to presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although Article 10 of the European Convention is not yet incorporated into English law it does no more than give expression to existing law as to the right to receive and impart information."
"The general rule is that the hearing is to be in public."
"1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3), namely...
(2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent."
"what the practice should be as regards possession hearings should also be established so that there is not a different practice in one court rather than another."
"whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of the Court staff is a hearing in public."
"At 12 noon I proceeded downstairs, desirous of attending Small Claims cases of which there was a list of 1 hour cases before District Judges Mullis & Mitchell. As you know [this letter is of course written to the Court Manager] there are 4 or so District Judges' rooms or chambers on the Ground Floor, to which access by the public is through a single door, which I call the outer door, leading into passages through to the respective chambers. Unfortunately when I tried to go through the outer door I found it was locked. I therefore spoke to the usher, Ms Rita Brown, saying I would like to attend the Small Claims cases on District Judges Mullis & Mitchell's (joint) list but the entrance door was locked. She said that the public could request to attend and she would then inform the judge. I said I was so requesting to attend and that the public were entitled to attend Small Claims (having in mind 27PD Para 4.1(1)). Miss Brown (and I wrote this down) then said 'Only on the basis that I take you through that door'. This is not a criticism of Ms Brown whom I am sure is only obeying instructions of the District Judges.
6. Miss Brown then went in and shortly after took me through to 'Chambers C' where to my surprise I found District Judge Naqvi hearing a case. This was not what I had asked for, but I seated myself nonetheless to hear what it was about. Unfortunately it was boring, so when later at 12.25 pm the usher came back I left Chambers C with her and asked if I could attend a Small Claim on the list for DJs Mullis & Mitchell. She said DJ Mullis was not sitting but she would ask the other District Judge, and in due course I was permitted to enter 'Chambers A' to hear to the end the case being dealt with by (I assume) District Judge Mitchell, which concluded at 13.05 pm.
7. Chambers A and C had no signs on their respective doors save a bare 'Chambers A' and 'Chambers C'. The door to Chambers C was kept wedged open, the door to Chambers A was kept shut. Neither door has windows. Chambers A had 2 chairs and C had 4, for public use. The list outside showed DJ Naqvi was hearing a 1 day Small Claim case."
"In order to address ground (iv) as defined in the order of the Court of Appeal I will begin by describing briefly the layout of the areas of Bow County Court to which the public has access. On entering the building the counter used for issuing claims and applications and other such business is to the right. Directly in front of the entrance to the building is a desk manned by a security guard and the court ushers, and behind that is the entrance to Court 5, which is normally used for hearings before Circuit Judges. Immediately to the left of the entrance is a staircase leading to Courts 1, 2, 3 and 4. Adjacent to the staircase is the locked door which leads to the three rooms used by District Judges on the ground floor.
4. Usually three ushers work on the ground floor, and at least one usher is always on duty there at any time when the court building is open to the public. On the first floor there is always at least one usher, and sometimes two, on duty.
5. The three rooms used by District Judges on the ground floor are called simply rooms A, B and C. These are small rooms, in which the District Judge, the parties and their representatives, and a maximum of 4 or 5 persons may sit in reasonable comfort. These rooms are used for hearings conducted by the District Judge, and also the offices in which District Judges work on their papers. Each room will therefore typically contain various case papers relating to different matters, standard office equipment and some personal papers and other items belong to the individual occupant. None of these three rooms has a locking door.
6. When conducting hearings in their room the District Judges are not attended by any other court staff, and there is no system for showing whether or not a hearing is in progress at any particular time, for example in the form of an adjustable sign or system of lights. When working on papers the District Judges may work with their doors open or shut, and the District Judges leave their rooms unattended from time to time during the day.
7. At Bow it is thought necessary to keep the door leading to the District Judge's rooms on the ground floor locked for security reasons. It would be too easy for someone to enter that corridor unnoticed or unchallenged, given its position in the building. No equivalent measure is in force in relation to the District Judges's rooms on the first floor. It is also the case that no security problem is perceived to exist there; people coming up the stairs will inevitably meet an usher before reaching those rooms. 8. The locked door leading to the District Judges rooms on the ground floor does not have a sign on it, nor has it ever had a sign as far as I know. Persons unfamiliar with Bow County Court would not be aware that District Judges rooms were to be found in the corridor leading from that door. In the foyer of the court are displayed cause lists. Any member of the public wishing to attend a hearing in chambers which is open to the public can ask an usher who will escort them to the room in question. In practice this occurs very rarely, although we are now and then approached by persons studying law or some other profession. There is nothing displayed in writing at Bow County Court which would tend to suggest to members of the public that they were not entitled to attend hearings of small claims cases before District Judges, and no member of the court staff would seek to give that impression. At one time the sign referred to and exhibited as page 10 to exhibit M of the applicant's affidavit was displayed in various parts of the building."
"No persons beyond this point unless instructed by a member of staff."]
"I think that it originated when, due to building works and serious pressure on accommodation, what was Court 4 on the ground floor was used for a variety of hearings, including chambers hearings in family matters, and it was thought prudent to warn members of the public not to enter unless they had received confirmation that they were entitled to do so. The wording of the sign was then adopted elsewhere in the building, but after the applicant complained in November 1999 all these signs were removed and have not been used since."