QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE PITCHFORD
| Her Majesty's Attorney General
|- and -
|Michael John Pelling
Dr Michael John Pelling appeared in person
Hearing dates: 8 & 9 February 2005
Crown Copyright ©
LORD JUSTICE LAWS:
APPLICATION FOR RECUSAL OF LAWS LJ
INTERLOCUTORY ORDERS SOUGHT BY THE ATTORNEY GENERAL
THE DEFENDANT'S DEPARTURE FROM THE HEARING
"Now that the Human Rights Act 1998 is in force in England, Dr Pelling has decided to do what the English courts forbade in 1996 and Strasbourg forbade in 2001: to publicly pronounce his County Court Residence Judgment of August 1996. After all, Article 6(1), as now enacted by the Human Rights Act, does say, without qualification, that 'judgment shall be pronounced publicly'. So if the court won't do it then the citizen must be free to do it himself. So now the whole world can read the judgment via the Internet… and we are also producing it in this issue of CONTACT."
There is no doubt, as Mr Golding's affidavits testify, that anyone with a basic knowledge of website search facilities would be able to locate Judge Goldstein's judgment on the internet without difficulty.
"Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers".
In the Court of Appeal Butler-Sloss LJ (as she then was) said:
"The appellant does not suggest that r 4.16(7) is ultra vires the Act… What is its effect?… The appellant… suggests to us that the default position, as he describes it, if no application is made to hear the case in public, is to hear it in chambers but that the judge ought to exercise his discretion in each case to come to the inevitable conclusion that all cases should be heard in public. He set out a number of arguments in support of hearing child cases in public, including the right of the public to know what is going on, criticism of secret justice, the dangers of hearing cases in private without the scrutiny of the public and the press, the inability of litigants in person to get experience in conducting child cases, or to find out what the judge is like.
In support of his arguments he has relied upon a line of cases which set out the importance of open justice in the courts and in particular upon the decision in Scott v Scott  AC 417. In that case the House of Lords considered the jurisdiction to hear a nullity suit in camera. The principle of the open administration of justice was clearly and trenchantly asserted in the speeches (see, for instance, Lord Shaw of Dunfermline at 476 et seq). Viscount Haldane LC said at 437:
'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. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or lunatic.'
The appellant recognised the long-established procedure in wardship and sought to distinguish the hearing of wardship cases from all other children cases. He is not, in my view, able to sustain that distinction. The paramount duty expressed by Viscount Haldane is now found in s 1 of the Children Act 1989 in words very similar to the previous Guardianship of Minors Acts, that 'the welfare of the child shall be the court's paramount consideration'. Further both Sir Stephen Brown P in Oxfordshire County Council v M  Fam 151,  1 FLR 195, and Lord Jauncey of Tullychettle in Re L (Police Investigation: Privilege)  1 FLR 731, referred to the non-adversarial character of Children Act proceedings which are akin to wardship proceedings."
"I accept the Official Solicitor's submission that for this purpose proceedings under the Children Act 1989 are analogous to wardship proceedings."
Thorpe LJ agreed with both the other judgments. Addressing the conviction held by the defendant and others that child cases should be adjudicated in open court, he was at pains to emphasise "that matters of practice and procedure in the family justice system are the subject of constant interdisciplinary review", and gave chapter and verse. He concluded:
"… I entirely share my Lady's view that if there is to be a change in practice it should be preceded by the most careful consideration of the outcome of consultation and should be achieved by the legislative processes that alone can introduce uniformity throughout the family justice system."
"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. 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 life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Article 10 provides:
"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."
"45. The Court recalls its long-standing case-law that the form of publicity given under the domestic law to a judgment must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Art 6(1)…
46. The Court further recalls its above finding that, in view of the type of issues requiring to be examined in cases concerning the residence of children, the domestic authorities were justified in conducting these proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice. It agrees with the Government that to pronounce the judgment in public would, to a large extent, frustrate these aims.
48. Having regard to the nature of the proceedings and the form of publicity applied by the national law, the Court considers that a literal interpretation of the terms of Art 6(1) concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of Art 6(1), which is to secure a fair hearing…
49. The Court thus concludes that the Convention did not require making available to the general public the residence judgments in the present cases, and that there has been no violation of Art 6(1) in this respect."
In relation to Article 10 the court said:
"52. The Court refers to its above findings in connection with Art 6(1) of the Convention that it was justifiable, in order to protect the privacy of the children and parties and to avoid prejudicing the interests of justice, to hold the residence proceedings in chambers and to limit the extent to which the County Courts' judgments were made available to the general public. In the light of these findings, the Court does not find it necessary to examine the complaint under Art 10 separately."
"(2) No person shall publish any material which is intended, or likely, to identify – (a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act… may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in such proceedings…
(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order…"
Breach of the section is made a summary offence by ss.(6), punishable with a fine. The court referred to its earlier decision of 20 June 1996 and the decision of the Strasbourg court of 24 April 2001, as well as the judgment of Bennett J under appeal. The defendant's submissions were rejected, and as we have said his appeal was dismissed. It is with respect worth setting out these paragraphs from the judgment of the court, delivered by Thorpe LJ:
"50. Standing back from Dr Pelling's detailed contentions, it is important to emphasise that the questions which he debates are essentially policy questions. Whilst we have concluded that the procedure ordained by the 1991 rules and 1989 Act are essentially convention compliant, it does not follow that the rival procedures for which Dr Pelling contends would not equally be convention compliant. During the course of his judgment in Re PB [20 June 1996]… Thorpe LJ drew attention to the opportunity, if not the obligation, of the government to complete the process of public consultation on this debate. More detailed reference to this uncompleted consultation exercise was made during the course of his judgment in Clibbery v Allan  1 AER 865 at -…
51. In her recent administrative directions issued following the judgment of the Court of Appeal, Criminal Division, in R v Cannings  EWCA Crim 1,  1 AER 725 Dame Elizabeth Butler-Sloss P stated:
'It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of "secrecy" in the family justice system, a broader approach to making judgments public may be desirable.'
REASONS FOR MAKING THE INTERLOCUTORY ORDERS SOUGHT BY THE ATTORNEY GENERAL: THE DEFENDANT'S CROSS APPLICATION
"38. It is perhaps unfortunate that the judgment [sc. in Strasbourg] does not elaborate upon the rejection of Dr Pelling's art 10 complaint. Implicitly the court's findings in relation to art 6 were dispositive of his complaint under art 10. We would accept Mr Cobb's contention that, whilst Dr Pelling's rights under art 10(1) are engaged, the conduct of the proceedings in chambers are properly to be regarded as 'necessary in a democratic society… for the protection of the rights… of others, namely the rights of the respondent and the child under art 8 of the convention."
THE SUBSTANTIVE ISSUES
"[A] norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable."
"[T]he exceptions [sc. to the rule of open justice] 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. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction."
"In Scott v Scott the House of Lords recognised that the court had power to hear wardship proceedings in private. If it exercised the power, the court was entitled, but not bound, to treat as a contempt the publication of information relating to the proceedings and to punish the offender. The reason for the power was not the risk that publicity might endanger a fair hearing. Such a risk did not in 1913, and does not now, really, arise in wardship proceedings, the adjudicator being a judge: also, contested questions of fact are usually very few. The true reason was the mischief likely to be done to the ward if familial proceedings, parental in character though conducted by a judge, should be exposed to the glare of publicity. But, as was also clearly stated in Scott v Scott…, the common law did not permit the cloak of secrecy to remain wrapped round the proceedings longer than was necessary in the interests of the ward."
"The following propositions relating to wardship proceedings… emerge: (1) that the courts had the power, but were not obliged, to sit in private; (2) that, if a court exercised the power, it was a contempt of court to publish an account of the proceedings unless the judge expressly authorised publication; (3) that the terms, or effect, of the court's order might be published, unless the court expressly forbade it; (4) that it was no defence to say that you did not intend to commit a contempt of court."
In In re F the court held that contempt by publication of information relating to wardship proceedings would only be made out if it were proved against the defendant that he knew or must be taken to have known that what he published was prohibited by law. That issue does not arise here; the defendant in these proceedings is, at the very least, clearly to be taken as having known that his publication of Judge Goldstein's judgment was prohibited.
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings –
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002;
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section."
"… [S]ection 12 must be interpreted in the light of the pre-existing law. It is not a code of new law, but a clarification of the old."
Scarman LJ's reasoning on the way to this conclusion includes this:
"[S.12] provides that such a publication shall not 'of itself' be a contempt of court except in the cases specified in subsections (1) and (2). Subsection (1) specifies the proceedings which are excepted from the general rule of 'no contempt'. All five exceptions (the first of which is that of proceedings in wardship, adoption, and custody cases) were known to the common law: in each one it would have been a contempt to publish information relating to the proceedings if the court was sitting in private."
He proceeded to describe ss.(4) as "obscure and ambiguous". Having held that the words "of itself" in ss.(1) "need mean no more [in relation to the excepted cases at s.12(1)(a) – (e)] than that there is a contempt in the absence of a defence recognised by law", he adopted this construction of subsection (4):
"… I think it likely that the subsection was enacted to ensure that no one would in future be found guilty of contempt who would not also under the pre-existing law have been found guilty."
Scarman LJ concluded, in contrast to the judge whose decision was there under appeal, "that in this class of case… no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings".
"There are undoubted difficulties in construing [s.12], but certain effects of the section are clear. The general rule which the section declares is that it is not a contempt to publish information relating to proceedings in court merely because the proceedings are heard in private. But the exceptions to that rule expressed in paragraph (a) to (d) of subsection (1) must indicate that it is, at least prima facie, a contempt to publish information relating to the proceedings in the cases indicated."
After citing Lord Haldane in Scott v Scott Lord Bridge continued:
"Thus the exceptions in paragraph (a) are all proceedings requiring for their just disposal the safeguard of privacy which proceedings in wardship always attracted. So also are the proceedings under Part VIII of the Act of 1959, now Part VII of the Act of 1983, which are concerned with the same subject matter as was formally under the jurisdiction of the judges in lunacy acting on behalf of the Crown as parens patriae."
Lord Bridge proceeded to express his agreement with Lord Scarman's observations (to which we have already referred) in In re F as to the effect of the words "of itself" in s.12(1) and as to the proper construction of s.12(4).
"where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant".
It is apparent that this formulation is not limited to wardship proceedings as such, but covers also other forms of proceedings relating to children. It is entirely impossible to read the judgments in In re F and P – not least Lord Bridge's statement in P that "it is, at least prima facie, a contempt to publish information relating to the proceedings in the cases indicated [sc. in the subparagraphs of s.12(1)]" – as in some way confining the species of contempt recognised in s.12(1)(a) to wardship proceedings properly so called. With effect from 14 October 1991 s.12(1) has included, as we have shown, express reference to proceedings under the Children Act 1989: s.12(1)(a)(ii). Here too it is plainly impossible, in our judgment, to read s.12(1)(a) as if only ss.(1)(a)(i) (where the reference is to wardship proceedings) recognised a category of contempt of court and not also (ii) and (iii). It seems to us that the case comes full circle to what was said by Butler-Sloss LJ in Re PB, although she was not dealing with contempt. We have already set it out:
"The appellant recognised the long-established procedure in wardship and sought to distinguish the hearing of wardship cases from all other children cases. He is not, in our view, able to sustain that distinction."
"The court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify."
"The court's power to suspend an order of committal to prison for contempt of court derives from this rule, and is not affected [and this is important] by the need for 'exceptional circumstances' before a suspended sentence can be passed in a criminal case. Section 22 of the Powers of Criminal Courts Act 1973 ( ... as amended). If a committal order is made for a fixed period but the sentence is suspended subject to the contemnor's compliance with a condition, and it is subsequently found that he has not complied with it, the power of the court is not limited to declaring that the committal order is now operative; it retains a discretion to do whatever is just in the circumstances."
"Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.
Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases [the is the point we have already referred to]. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court's order."
"Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.
Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break-up of an intimate relationship in which emotions run high and people behave in silly ways [again, more appropriate to non-molestation orders] ...
Tenthly, it will usually be desirable for the court to explain very briefly why it has made the choices that it has made in the particular case before it ..."
"It is rare, when one looks at the reported cases, to find sentences of six months' imprisonment in the context of much more serious breaches than took place in this case. One tends to find, even in cases of violence causing quite significant injury, a shorter sentence."
"An immediate term of imprisonment is the only appropriate sentence to impose on a person who interferes with administration of justice unless the circumstances are wholly exceptional."
"It was pointed out by the Court of Appeal in McKnight  ... that there is no provision for time spent on remand by alleged contemnors to be deducted ... "
"By section 23 of the Crime (Sentences) Act 1997 contemnors were brought into line with other prisoners in respect of the time they have to serve. They will earn early release if their sentences are for more than 2 months, but in the case of a sentence of longer than 12 months, the position now is that only one half has to be served."
" ... these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe ... a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion."
"There is a plain distinction between a case where a party to proceedings is alleged to have been in breach of an order of the court made in the proceedings and one where a party has done something which, although not in breach of a specific order, is nevertheless for one reason or another a contempt of court [that is exactly this situation]. In family cases where the court has made a prohibited steps order or granted a non-molestation order, a breach of the order will be a direct contempt and the procedure is well known. In the present case, the suspended committal order was not made because the father was in breach of a specific court order.
 Where a party may be in contempt of court by virtue of a breach of the general rules of confidentiality [which is exactly this case today], for example by publicising a welfare report, but there has been no breach of a specific court order, there may be more than one way for the court to deal with it. In some cases, the breach may be obvious. It may be admitted. It may have been intentional and serious or alternatively may not be seriously culpable. If the breach is admitted, a warning together, if necessary, with a specific undertaking or injunction in terms to prevent a recurrence of the breach may be sufficient."
"Circumstances vary widely, but a committal order, even if suspended, is a last resort normally reserved for serious, intentional and, in most cases, repeated contempt of court which has been established by due process (Danchevsky v Danchevsky  Fam 17 and Ansah v Ansah  Fam 138."
"In the public interest and by virtue of Article 6(1) of the European Convention on Human Rights, CONTACT and its Editor now publish the Children Act Residence Judgment of His Honour Judge Goldstein of 21 August 1996 in Pelling v Bruce-Williams 94JS0001 (Bow County Court). The ECHR has no powers to punish for contempt but if her Ladyship the President, or the Attorney-General or Official Solicitor, wish to take contempt proceedings then we have a very simple defence: Article 6(1) states unequivocally and without qualification that 'Judgment shall be pronounced publicly' and that is now the law of England by virtue of the Human Rights Act 1998. Further, if proceedings are brought, then the Act is retrospective."
"It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law ... "
" ... judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of 'secrecy' in the family justice system, a broader approach to making judgments public may be desirable."
"In Wilkinson v S  1 WLR 1254 it was held that there is a need for a speedy disposal or a judgment involving a person facing allegations of criminal contempt."
"But I desire to add this further observation with regard to all of these cases, my Lords, that, when respect has thus been paid to the object of the suit, the rule of publicity may be resumed. I know of no principle which would entitle a Court to compel a ward to remain silent for life in regard to judicial proceedings which occurred during his tutelage ..."
"The embargo on publication of matters disclosed in a private hearing is not necessarily perpetual. Silence should only be enforced for so long as is necessary to protect the interests of those for whose benefit the rule is made: see Lord Shaw of Dunfermline in Scott v Scott  AC 417, 483. Where, for example, what was once a trade secret has become common knowledge, there is no warrant for continuing the ban on the publication of proceedings. Similarly, where all necessity for preserving the confidentiality of information about an infant has with the passage of time disappeared, publication will not be a contempt."
"Dr Pelling is well-known to this court. He is an active campaigner for fathers' rights. He has strong views on the evolution of family law, family policy and family practice. I myself [Thorpe LJ] have quite extensive experience with Dr Pelling in this court, acting as a McKenzie Friend, and although in a sense irrelevant to our conclusions today, I record and have never seen Dr Pelling act other than in an entirely helpful way both to the person he is assisting and to the court itself."
"By consent it is ordered that the petitioner [that was myself] do pay to the first respondent [that is the mother] periodic payments for the benefit of the child of the marriage, Michael Alexander Pelling-Bruce, born 20 November 1990, at £200 a month commencing 1 April 1999 and increasing to £250 a month with effect from 1 October 1999 until the ... child attains the age of 18 or ceases full time education."
"I assure the court that I would not publish any further Children Act judgments or other prohibited information in Children Act proceedings until and unless the law is changed or shown to be different from as declared in our judgment."
"This section applies in relation to a person committed to prison ...
(b) for contempt of court or any kindred offence.
(2) As soon as a person to whom this section applies has served one-half of the term for which he was committed, it is the duty of the Secretary of State to release him unconditionally."
JUDGMENT ON SENTENCE
"I assure the court that I will not further publish any further Children Act judgments or other prohibited information in Children Act proceedings."
"Any other information relating to such proceedings whose publication is prohibited within the terms of section 12(1)(a)(ii) of the Administration of Justice Act 1960."