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THE LAW COMMISSION

REPORT ON THE POWERS OF APPEAL COURTS

AND

THE RESTRICTIONS ON PUBLICITY IN

DOMESTIC PROCEEDINGS

TO SIT IN PRIVATE

REPORT ON A REFERENCE UNDER SECTION 3(l)(e)

OF THE LAW COMMISSIONS ACT 1965

Presented to Parliament by the Lord High Chancellor

by Command of Her Majesty

November 1966

LONDON

HER MAJESTY'S STATIONERY OFFICE

TWO SHILLINGS NET

Cmnd. 3149

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are

The Honourable Mr. Justice Scarman, O.B.E., Chairman

Mr. L. C. B. Gower, M.B.E.

Mr. Neil Lawson, Q.C.

M i N. S. Marsh

Mr. Andrew Martin, Q.C.

Mr. Arthur Stapleton Cotton is a special consultant to the Commission.

The Secretary of the Commission is Mr. H. Boggis-Rolfe, C.B.E., and its offices are at Lacon House, Theobald's Road, London, W.C.l.

.

LONDON :

Printed and published by Her Majesty's Stationery Office

1966

CONTENTS

	Paragraph
Introduction	1
The Present Position
Sittings in Open Court, in Camera, and in Chambers	3
Publication of Proceedings	14
Need for Genera1 Review	17
Appeals
Present Power to Sit in Private	19
Law Commission's Proposals	24
Draft Legislation	36
Restrictions on Publicity
Present Power to Sit in Private in Legitimacy Proceedings	37
Law Commission's Proposals
A. Legitimacy Proceedings	41
B. Miscellaneous	46
Draft Legislation	48
Consultation with Scottish Law Commission	49
Appendix: Draft Clauses	Appendix

LAW COMMISSION

REPORT ON THE POWERS OF APPEAL COURTS TO SIT

IN PRIVATE

and

THE RESTRICTIONS UPON PUBLICITY IN DOMESTIC

PROCEEDINGS

Report by the Law Commission on a Reference under section 3(l)(e) of the

Law Commissions Act 1965

To the Right Honourable the Lord Gardiner, Lord High Chancellor of Great Britain

MY LORD,

INTRODUCTION

As an immediate response to the recent decision in B. (otherwise P.) v. A. G., now reported in [1965] 3 All E.R. 253, and [1966] 2 W.L.R. 58, the Law Commission began an investigation into whether the court should have power to sit in private when hearing an application for a legitimacy declaration. In the course of this investigation it became clear that there was a widespread feeling that it was equally urgent to consider a change in the law which would confer on the Court of Appeal the power (which it has in recent years held itself precluded under the existing law from exercising) of sitting in private, especially in custody and wardship cases. Accordingly, on 10th February 1966 you directed us to extend the inquiry "so as to include an examination of the desirability of the Court of Appeal's having the same powers to sit in private or in chambers as are enjoyed by the court from whose decision the appeal is brought" and to provide advice on the subject in pursuance of section 3(l)(e) of the Law Commisions Act, 1965.

Hence these Proposals relate primarily to two different but related topics. However, we have considered these in the broader context which we proceed to summarise, and, for reasons which will appear, have made certain recommendations which extend somewhat more widely.

THE PRESENT POSITIQN

Sittings in Open Court, in Camera, and in Chambers

Normally a judge (or magistrate) must sit in open court to which the public are admitted. Sometimes, however, he may sit in private. There are two ways in which he can do so. The fist, technically known as a hearing in camera, is when the judge orders the court to be closed during the whole or part of the trial. The second is when the judge is technically not sitting in court at all but in chambers. Although he may then sit in his usual courtroom, wigs and gowns are not worn, and there is a wider right of audience, for, even in the High Court, solicitors and, with the leave of the judge, their clerks may be heard. In both cases the public are not admitted.

In this paper the expression "in private" is used to describe both these types of hearing; the technical expressions "in camera" and "in chambers" being used only for the purpose of distinguishing between two methods of achieving a private hearing.

The leading case on the duty to administer justice in open court is Scott v. Scott [1913] AC 417, in which it was held by the House of Lords that the Probate, Divorce and Admiralty Division had no power, either with or without the consent of the parties, to hear a matrimonial suit in camera in the interests of public decency. Although Earl Loreburn was prepared to recognise that the court might sit in private where publicity would reasonably deter a litigant from proceeding, that view was not supported by the other Law Lords and has now been held to be wrong: B. (otherwise P.) v. A. G., supra, following Greenway v. A. G. (1927) 44 T.L.R. 124. On the other hand, it is recognised that a trial can be in camera where trade secrets are involved since otherwise the subject matter of the action, the secret, would be destroyed and justice thereby be denied. Similarly a hearing in camera may be ordered in the interest of national security. It was also accepted in Scott v. Scott, supra, that, where the court acts in its parental or administrative jurisdiction when dealing with infants (for example in wardship cases) or with persons suffering from mental disorder, it may sit in private. Normally that is achieved by sitting in chambers, but sometimes there has to be a hearing in court sitting in camera: see paragraphs 9 and 11. Moreover the obligation to sit in open court applies only to the trial itself and not to the preliminary interlocutory matters or matters of an administrative character. The disposal of these in private is now, in most cases, expressly authorised by statute or rules of court. Thus examining magistrates when conducting preliminary enquiries to lead to committal do not have to sit in open court^[1] though at present they nearly always do so. In the High Court many interlocutory matters are not dealt with by a judge but by a master or registrar sitting in chambers. Even as regards matters dealt with by a judge there is authority for saying that "where Parliament has conferred a jurisdiction upon the High Court or any of its predecessors, the court has power to delegate that jurisdiction to a single judge sitting in chambers unless Parliament has also provided that the court itself, and not a single judge, is to exercise the jurisdiction"^[2]. Section 61 of the Judicature Act 1925 appears to provide that in such circumstances delegation to a judge in chambers may be effected by rules of court. When the statute concerned refers to "the court or a judge" it is accepted that Parliament has authorised delegation to a single judge sitting in chambers, but it appears that the omission of the reference to a judge does not necessarily amount to a prohibition on such delegation.^[3]

Accordingly there are four overlapping sources from which a court may derive power to sit in private:

(a) When this is permitted under an exception to the rule in Scott v. Scott;

(b) In interlocutory and administrative matters:

(c) When the jurisdiction has been validly delegated to a single judge sitting in chambers;

(d) Under express statutory provision.

As will be seen from the following paragraphs, under the rules and practice of the counts there is now quite a wide range of cases in which there may be a private hearing, generally by sitting in chambers. The rules and practice presumably derive from one or other of the above sources, though it is not always easy to determine which. In some cases the judge has a discretion to sit in private; in others he must do so.

In the Chancery Division, where the administrative role of the court looms largest, there is a wide power to sit in chambers: the former R.S.C. O. 55 r. 2 listed a number of matters to be heard in chambers and concluded with:

"(18) Such other matters as the Judge may think fit to dispose of in Chambers".

In the revised Rules which came into force on 1st October 1966, these are no longer listed in one place but the more important of them (those which do not relate to obviously administrative matters) are referred to below. The concluding rule 2(18) is replaced in the following terms in the revised Rules as O. 32 r. 19:

"The judge may by any judgment or order made in court in any proceedings direct that such matters (if any) in the proceedings as he may specify shall be disposed of in chambers".

The recognised practice of sitting in private in wardship cases has been extended to all applications as to guardianship, maintenance and advancement of infants ^[4] and to adoption proceedings.^[5] Although motions for committal must normally be heard in open court, the court is expressly authorised to sit in camera in cases relating to infants or to persons suffering from mental disorder, or to secret processes, or "where it appears to the court that in the interests of the administration of justice or for reasons of national security the application should be heard in private".^[6] Under an amendment to the Rules in 1965, if an order is made as a result of a hearing in private in these cases a statement must be made in open court.^[7] In the Chancery and in the Probate, Divorce and Admiralty Divisions motions for an injunction also have to be moved in open court, but in the Chancery Division if infants are concerned the judge normally accedes to a request to hear the case in camera. In the Queen's Bench Division interlocutory applications for injunctions are made to a judge in chambers so that privacy is automatically ensured unless there is an adjournment into open court. Summonses under section 26 of the Matrimonial Causes Act 1965 (maintenance from the estate of a former spouse) are dealt with in chambers in the Probate, Divorce and Admiralty Division: Re Bellnzan, supra, in which it was held that this practice was authorised by r. 58B of the Matrimonial Causes Rules 1957 and that the Rule was intra vires under the general power to delegate jurisdiction to a single judge (see paragraph 5). Analogous actions in the Chancery Division under the Inheritance (Family Provision) Act 1938 are, however, dealt with in open court unless the interests of an infant or other person under disability are affected, in which event there may be a hearing in chambers.^[8]

Applications to a county court under Part IV of the Mental Health Act 1959 must, unless otherwise ordered, be heard and determined in chambers ^[9] and applications under Part VIII of that Act are normally heard in chambers.^[10]

Further, it is now a statutory rule that in nullity proceedings evidence on the question of sexual capacity must be heard in camera – thus overruling the actual decision in Scott v. Scott – unless the judge is satisfied that, in the interests of justice, any such evidence ought to be heard in open court?^[11] This, however, is limited to evidence of sexual capacity. Hence it does not apply to evidence of attempts to have sexual intercourse in petitions for nullity based on wilful refusal to consummate the marriage. A number of Divorce Judges have drawn our attention to the acute and stultifying embarrassment frequently suffered by parties of both sexes when they are required to give evidence in open court about attempted consummation. Under the Magistrates' Courts Act 1952, the general public have no right to be present during the hearing of domestic proceedings^[12] and, although the Press have a right to be present, the court may be cleared and the Press excluded during the taking of any indecent evidence if this is thought necessary in the interests of the administration of justice or of public decency.^[13] However if an appeal is brought, whether to quarter sessions or the High Court, from a determination of a magistrates' court in a domestic proceeding, it seems that the protection afforded to the case as a domestic proceeding no longer attaches. The Children and Young Persons Act 1933 imposes similar restrictions on the right of the public to be present at sittings of juvenile courts^[14] (except in proceedings under Part I of the Children Act 1958^[15] or under Pant IV of the Adoption Act 1958,^[16]) land entitles the bench to clear the court (but not to exclude the Press) while children are giving evidence in cases involving conduct contrary to decency or mora1ity.^[17]

Section 4(2) of the Defence Contracts Act 1958 provides for the determination of certain disputes by the High Court, and by virtue of section 4(3) the court may make such orders for the exclusion of the public from proceedings under that section and for prohibiting the publication of certain information so far as disclosed or recorded in the proceedings, as appear to the court to be necessary or expedient in the public interest or in the interests of any parties to the proceedings.

The Court of Appeal has no chambers and accordingly an appeal to it from a Judge in chambers has to be heard in open court (see paragraph 19 below) unless the circumstances are such as to fall within an exception recognised by Scott v. Scott, supra, or unless there is express statutory authority to sit in camera. A similar rule presumably applies to other appeal courts which have no chambers (see paragraph 23 below).

Publication of Proceedings

When the trial is heard in open court it follows that the Press can be present and normally is free to publish a full report. This freedom is protected by section 3 of the Law of Libel Amendment Act 1888 and section 8 of the Defamation Act 1952, whereby a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority within the United Kingdom is immune from an action of defamation if published contemporaneously with the proceedings.^[18] This protection has been extended to news broadcasts by section 9(2) of the Defamation Act 1952. It will be observed that the privilege does not extend to matters heard in camera or in-chambers. Such publication is not itself contempt of court, but will be if the proceedings relate to wardship, adoption, guardianship, custody, maintenance or upbringing of, or rights of access to, an infant; or to certain provisions of the Mental Health Act 1959; or if the court sits in private for reasons of national security; or if the information relates to a secret process, etc., in issue in the proceedings; or if "the court (having power to do so) expressly prohibits the publication of all information . . . or of information of the description which is published"^[19]. And if the published information is incorrect it may be contempt and an actionable libel. But even in these cases publication of the text or summary of an order made in private will not of itself be contempt of court unless the court has exercised its power expressly to prohibit the publication^[20] and any person may obtain copies of such orders and of the writ or other originating process.^[21]

There are also certain statutory restrictions on the right to publish details of judicial proceedings heard in public. The Judicial Proceedings (Regulation of Reports) Act 1926 forbids the publication in relation to any judicial proceedings of "any indecent matter or indecent medical, surgical or physiological details being matters or details the publication of which would be calculated to injure public morals''.^[22] Further, in relation to any judicial proceedings for dissolution or nullity of marriage or for judicial separation or restitution of conjugal rights, no particulars may be published other than the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences and counter charges; submissions and decisions on any point of law; and the summing up of the judge, the finding of the jury, and the judgment of the court and observations made by the judge in giving judgment.^[23] This prohibition does not extend to legitimacy declarations. Nor does it apply to applications for periodical payments, based on wilful neglect to maintain, under section 22 of the Matrimonial Causes Act 1965. As these applications are heard in open court (although the actual quantum of the award may be settled in chambers after liability bas been established) they receive none of the protection from publicity afforded to other types of application for maintenance which are normally dealt with in chambers and which in any case fall within the Act of 1926 as proceedings ancillary to those mentioned in the Act. Under section 58 of the Magistrates' Courts Act 1952 there is a similar limitation on publication of evidence in domestic proceedings (which include affiliation proceedings) in magistrates' courts, and under section 57(3),^[24] press representatives are among those who may be excluded during the taking of indecent evidence. Under section 39^[25] of the Children and Young Persons Act 1933, a court may direct that no newspaper report or picture or sound or television broadcast shall be published which might lead to the identification of any child or young person concerned as a panty or witness in the case or in respect of whom the proceedings are taken. It seems that this applies to all civil and criminal proceedings, notwithstanding the heading to the Part of the Act in which the section appears, but this is frequently overlooked. In proceedings in juvenile courts and on any appeal there from any such publication is prohibited without the need for a direction to that effect.^[26]

The Tucker Committee on Proceedings before Examining Justices ^[27] recommended that there should be restrictions on reporting committal proceedings. This recommendation has not yet been implemented, but it is understood that it is to be dealt with in the forthcoming Criminal Justice Bill.

Need for General Review

It will be observed that there are now quite extensive exceptions to the general rule that proceedings must be conducted in public and can be freely reported. The extensions since Scott v. Scott, supra, seem all to be based either upon the protection of public decency (thus reversing Scott v. Scott which held need to protect infants or mental patients. But the present position can hardly be regarded as satisfactory. Although the House of Lords in Scott v. Scott stressed the paramount need to hear in public cases involving status, it is precisely in such cases that the main exceptions have been recognised. In other civil litigation there have been no extensions to the exceptions recognised in Scott v. Scott, notwithstanding that it has been repeated stressed that the general rule deters resort to the courts and encourages the use of arbitration instead; see, for example, the Report of the Commercial Court Users' Conference ^[28]. The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning these details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment that this was not a sufficient reason for hearing a case in private) or on the or summing up (unless the Press consider that publication "would be calculated to injure public morals "). What is more serious is that the parties and, more especially, their innocent children whose identity is frequently revealed as a result of the details which can be published, suffer the disturbing experience of having the most intimate details of the family life exposed. While it may be said that the parties have only themselves to blame, no such argument can apply to the children whose privacy the law takes pains to protect in other cases. It is also anomalous that a young offender may have greater privacy in court than, say, a young victim of a sexual assault a fact which sometimes makes it impossible to obtain the necessary evidence for a prosecution. Perhaps most anomalous of all is the fact that on an appeal from a judge in chambers to the Court of Appeal privacy is lost. Almost equally anomalous is the fact that applications for legitimacy declarations cannot be heard in camera and, unlike most other forms of relief dealt with in the Matrimonial Causes Act, publication of the evidence is not forbidden by section l(l)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926.

It is principally with these two last anomalies that these Proposals are concerned. Those we have consulted have stressed the desirability of a more general review but this would be a lengthy operation and might raise controversial issues. On the other hand, our consultations suggest that immediate action on these specific points would be generally welcomed and not be regarded as controversial.

APPEALS

Present Power to Sit in Private

The position regarding the powers of the Court of Appeal to sit in camera was reviewed in the two fairly recent cases of Re Agricultural Industries Ltd. [1952] 1 All E.R. 1188, C.A. and Re Green (a Bankrupt) [1958] 1 W.L.R. 405, [1958] 2 All E.R. 57, C.A. In the former case, an appeal in an interlocutory matter from a judge in chambers, Evershed M.R. pointed out that the Court of Appeal had no power to sit in chambers and that accordingly the court could sit in private, even on an appeal from a judge in chambers, only if it could be shown in the particular case that, as laid down in Scott v. Scott, the ends of justice would otherwise be liable to be defeated. The court heard the arguments in camera and then delivered judgment in open court dismissing the appeal. In Re Green the court heard in open court the application that it should sit in camera but then granted the application and cleared the court. It appears from the brief judgment of Jenkins, L.J. that it did so because satisfied that the case was of a nature which under Scott v. Scott could be heard in camera. However, counsel had also argued that in that particular case the Court of Appeal was exercising the original jurisdiction of the registrar and bankruptcy judge and that, the proceedings involved no lis so that the court could sit in private on this ground. It is not clear from the reports whether that argument had any effect on the decision.

The Evershed Committee on Supreme Court Practice and Procedure ^[29] considered a suggestion that, for the hearing of interlocutory appeals from a judge in chambers, the Court of Appeal should itself sit in private. They pointed out that: "It would appear logical at first sight that the business which is habitually dealt with in chambers below should be similarly dealt with in the Court of Appeal . . .", though they emphasised that "legislation would be required for such purpose, there being no 'chambers' of the Court of Appeal and no statutory power for the Court of Appeal – as there is for the Judges of the High Court under the Judicature Act – to 'sit in chambers"^[30]. Two arguments were put forward in support of the suggestion: reduction of costs and avoidance of "blackmailing" appeals taken for the express purpose of obtaining publicity. The Committee did not recommend the adoption of the suggestion. They said^[31]: "In our view the powers conferredl by Scott v. Scott are adequate to protect any litigant whose interests would be prejudiced by a hearing in public". They did recommend, however, that "where application is made to the Court of Appeal to exercise the powers conferred by Scott v. Scott to hear an appeal in camera that application should itself be heard in camera"^[32]. That recommendation has not been embodied in legislation and the practice seems to vary.^[33]

The Evershed Committee did not consider the matter except in relation to interlocutory appeals. It is clear, however, that the Committee assumed that the Court of Appeal had power to sit in private-as it then used to-when concerned with the parental jurisdiction over infants. Specific reference was made to this in paragraph 608 of the Repart: "It was pointed out that the Court of Appeal already has occasion from time to time to sit in camera, e.g. when dealing with any question relating to the custody of an infant." That practice has now been discontinued. The court now sits in public but the Press is requested to refrain from publishing the names of the parties and the case is reported as Re A or the like. Although the Press loyally comply with the request this does not necessarily prevent the parties and their children from being identified by people in their locality since the published facts will often leave no doubt who they are.

It would seem that the Court of Appeal has taken the view that, when matters are heard at first instance in chambers, this is not because they are matters which come within recognised exceptions to the general rule upheld in Scott v. Scott, but rather because "chambers" are a special institution distinct from open court. Since the Court of Appeal has no chambers, in an appeal to it the case has to be heard in open court unless its particular facts are such as to justify a hearing in camera because the ends of justice would otherwise be liable to be defeated. In the light of the decision in B. (otherwise P.) v. A. G., supra, it appears that the formula is narrower than was often thought (for example by the Evershed Committee), since it is not sufficient to show that a litigant would be reasonably deterred from proceeding with the action.

The limitations on the powers of the Court of Appeal to sit in private because it has no chambers presumably apply equally to other appeal courts which have no chambers. The expression "chambers" appears to be used only in relation to the High Court and the county court. Presumably therefore quarter sessions cannot sit in chambers. The position of a Divisional Court in this respect is somewhat obscure; although each individual judge has his chambers it is not clear whether the Divisional Court itself can sit in chambers. The position of the House of Lords is also unclear. In principle one would suppose that it can exercise the privilege which it certainly has while sitting as a legislative body to exclude strangers. But it has been repeatedly stressed that both the Appellate and Appeal Committees of the Lords are essentially courts of law, and on that basis it can be argued that they can sit in private only when empowered to do so by Scott v. Scott or by statute. In practice they always sit in public, though formerly the Appeal Committee sat in private when hearing applications for leave to appeal.

Law Commission's Proposals

The Evershed Committee rejected the suggestion that the Court of Appeal should itself sit in private when hearing an appeal in an interlocutory matter from a judge in chambers. We agree that there should be no fixed rule requiring the court to do so. As the Evershed Committee pointed out: ^[34]

"Interlocutory appeals normally reach the Court of Appeal only if they raise some point of outstanding importance. [This perhaps overstates the case.] We think that in the interests of the administration of the law as a whole it is vitally important that the decisions of the Court of Appeal in interlocutory questions should be reached in public, so that they can be properly reported for the future guidance of practitioners".

Nevertheless we consider that the court should have power to hear the whole or any part of the appeal in private if it thinks fit to do so. It is believed that this power is required for the second of the two arguments put to the Evershed Committee, namely to prevent appeals on interlocutory matters being taken to the Court of Appeal wholly or partly for the express purpose of obtaining publicity. Even in such a case the judgment could be delivered in open court and reported if an important point of law was involved. If the judgment was delivered in private, we would see no objection to a transcript being placed in the Bar Library, in accordance with the usual arrangements, thus making it available to the legal profession.

Appeals which are totally unmeritorious and which can only be regarded as akin to blackmail are believed to be very rare. But they do occasionally occur. The Evershed Report ^[35] gives the following illustration:

"[A] plaintiff who has a clear right of action is met with a defence raising scandalous accusations against him which have no bearing on the case. He applies to strike out the defence and obtains an order from the Master which is affirmed on appeal to the Judge in chambers. The defendant, however, obtains leave to appeal to the Court of Appeal and this involves that under the present procedure the scandalous accusations will be discussed in public. What is the plaintiff to do? If he allows the appeal to proceed, even though he wins the appeal, the damage will have been done – for the accusations will have been ventilated in public. His only alternative is to discontinue his action, thereby perhaps suffering an injustice through having to abandon a perfectly good claim."

This is an extreme example and therefore an extremely rare one; so extreme that one wonders how the defendant could succeed in obtaining leave to appeal. But the injustice is just as great where the case of the plaintiff is not so overwhelmingly strong and the conduct of the defendant not so obviously inexcusable – a much more common case. This sometimes occurs where the defendant is resisting an application for summary judgment under Order 14. In his affidavit he may make accusations reflecting on the conduct or reputation of the plaintiff. If he is refused leave to defend he has a right of appeal (without leave) from the judge in chambers to the Court of Appeal^[36] and can thus ensure that his accusations are made public. This has been known to cause the plaintiff to give up.

In our opinion, if a litigant has legitimate grounds for bringing or defending an appeal from an interlocutory decision made in private, he should not be forced to forego his rights because he is not prepared to face a public hearing at that stage. It is the nature of the proceedings, not the elevation of the court, which should be decisive. If it is appropriate that interlocutory matters should normally be dealt with in private, there should be power to deal with them in private irrespective whether the tribunal concerned is a master, judge or the Court of Appeal. Unless there is such a power one party will be encouraged to appeal against a rejection of his scurrilous attacks on the other and that other will be discouraged from defending the appeal.

It appears that the Evershed Committee refrained from making a similar recommendation only because they believed that " the powers conferred by Scott v. Scott are adequate to protect any litigant whose interests would be prejudiced by a hearing in public". But B. (otherwise P.) v. A. G. has now held that Scott v. Scott does not empower the court to sit in private because a litigant would be reasonably deterred from pursuing his claim if it were heard in open court.

We consider that the case for empowering the Court of Appeal to sit in private is even stronger in the case of appeals in non-interlocutory matters in which the court from which the appeal is brought sits in chambers or otherwise in private. This is especially so in guardianship and wardship cases, where the present practice is liable to destroy the infant's protection against publicity so carefully preserved in the court below. It seems that the Evershed Committee assumed that the Court of Appeal could sit in private – as it then did – in such cases.

Although your reference to the Law Commission was expressed to relate to the powers of the Court of Appeal, it would obviously be undesirable if any legislation which results were to leave in doubt the powers of other appeal courts to sit in private. As pointed out in paragraph 23 above, certain courts which exercise an appellate jurisdiction (for example quarter sessions) appear to be in the same position as the Court of Appeal, while the position of others (for example Divisional Courts and the House of Lords) is obscure. Divisional Courts and quarter sessions when hearing appeals in domestic proceedings should obviously be empowered to sit in private. It is not very likely that either the Appellate Committee or the Appeal Committee of the House of Lords would often wish to sit in private but it seems to us that it should certainly be able to do so in an appeal in a custody, adoption or wardship case.

It is not considered that the power of the appeal court to sit in private should be solely dependent on whether the court below has sat in camera or in chambers. Nor do we think it is necessary to draw any distinction between cases where the court below was bound to sit in private and cases where it has exercised a discretion to do so. It is recommended that the appeal court should be empowered in its unfettered discretion to hear the whole or any part of the appeal in private if the court from which the appeal is brought had power to sit in private or in chambers for any part of the hearing. This would enable the appeal court to sit in private notwithstanding that the court below had not exercised its power to do so and to refrain from sitting in private notwithstanding that the court below had done so. It would also enable part only of the hearing – for example delivery of judgment – to be in open court.

The power to sit in private should extend not only to the hearing of the appeal itself, but also to the hearing of any application for leave to appeal. It would obviously be pointless to hear an appeal in private if all the issues had already been ventilated in public on an application for leave to appeal.

We also consider that, as recommended by the Evershed Committee, where application is made to hear an appeal in private, the application should itself normally be heard in private. Once again, however, it is considered that the court should have a discretion and that it should suffice if it were laid down that the application should be heard in private unless the court otherwise directs. It seems that this flexibility is needed; it might be desirable, for example, to adjourn into open court for the purpose of giving judgment on the application, as the court did in Re Agricultural Industries Ltd., supra.

It is not recommended that chambers should be created in the Court of Appeal or other courts where they do not at present exist. All that is sought to be achieved is a power to sit in private and for this purpose there is no point in creating chambers where none exist at present. Of the other distinctions between open court and chambers the only one, apart from privacy, which may be of any relevance is the slightly lesser degree of formality that prevails in chambers and the fact that solicitors have a right of audience. It is argued that this might reduce costs and it was on this ground as well as that of privacy that it was suggested to the Evershed Committee that the Court of Appeal should have power to sit in chambers. The Law Commission is acutely conscious of the need to diminish the expense of litigation but does not believe that this is the way to do it. As the Evershed Committee pointed out ^[37] in almost every case which reached the Court of Appeal counsel would be briefed to argue the appeal. If, as previously recommended, the court has power to sit in private there will be less likelihood of unmeritorious "blackmailing" appeals, where the respondent might not consider it necessary to brief counsel since no question of real importance was involved. The availability of legal aid will ensure that the respondent is not deterred on grounds of expense, and if the appellant's case lacks merit he should be deterred by the likelihood that he will have to bear the costs.

In any case we are opposed to the reform of the law by the use of fictions. If it is thought that solicitors' rights of audience should be extended this should be done openly and not clandestinely by the pretence that the Court of Appeal is not sitting as such but in chambers.

The Evershed Committee pointed out that legislation would be necessary to enable the Court of Appeal to sit in chambers. It seems clear that the same applies to the alternative proposed, namely, that there should be a wider power to sit in camera. It is thought that this could not be achieved by rules of court rather than by statute: see paragraphs 5-12. On the other hand, the recommendation that an application to hear an appeal in private should itself normally be heard in private could, it is thought, be implemented by rule of court, once the court has had conferred on it by statute power to sit in private when hearing the appeal. However, many of those we have consulted have expressed the view, with which we agree, that it would be more helpful to the profession to deal with all points in the same piece of legislation.

Draft Legislation

Draft Clause 1 in the Appendix hereto is designed to give effect to the foregoing proposals. In the light of what is said in paragraph 29 the power to sit in private conferred by subsection (1) is expressed to apply to appeals from the courts listed in subsection (3) rather than to appeals only to the Court of Appeal. The courts so listed are what may be termed the ordinary courts of law as opposed to statutory or domestic tribunals. The justification for excluding the latter is that whether or not they have chosen to sit in private may well depend on their practice and not on whether the Legislature has expressly authorised them to do so either generally or in certain circumstances. The power applies equally to hearings of applications for leave to appeal (see paragraph 31). Subsection (2) is based on the analogy of R.S.C. O.52 r. 6(2) referred to in paragraph 9 above. Subsections (4) and (6) cover the points made in paragraphs 32 and 33 respectively. The final provision in subsection (7) is directed to section 17 of the Criminal Appeal Act 1907 which provides that certain powers of the court (now the Court of Appeal) may be exercised by a judge.

RESTRICTIONS ON PUBLICITY

Present Power to Sit in Private in Legitimacy Proceedings

The present position relating to publicity in applications for legitimacy declarations was highlighted by the recent decision in B. (otherwise P.) v. A.G. to which reference has already been made. That case concerned consolidated petitions for declarations of legitimacy brought by two small children through their mother acting as next friend. At the commencement of the hearing, counsel for the children applied for the petitions to be heard in camera. Wrangham, J., in his judgment rejecting this application, stated :

"I was told, and accept of course from counsel who appears for the infant petitioners, that their mother took the view that the public discussion of the matters which would have to be disclosed in evidence in order to support the petitions would be so harmful to the interests of the children that she would not think it right on their behalf to proceed with these petitions unless they were heard in private. . . .

It is not necessary for me either to agree or disagree with the views which the mother has expressed. It is sufficient for me to say that it seems to me to be a view that could perfectly reasonably be held upon full consideration.

The position, 'therefore, is that in this particular case there is ground for supposing that the litigants would be reasonably deterred from bringing their consolidated suits to a final hearing if that final hearing were not ordered to be in private. The question that arises, therefore, is whether the reasonable apprehension that they would be so deterred is sufficient justification in law for making the order that the hearing shall be held in camera "?^[38]

Applying Greenway v. A.G. (1927) 44 T.L.R. 124, the learned Judge came to the conclusion that:

"I have no jurisdiction, whatever my wishes might be, to order that this trial take place in camera"^[39]

The Judge, at the request of counsel, then passed on an appeal that to save the infants from harm the public should withdraw and the Press refrain from publishing anything which would enable the parties to be identified.^[40] It would appear that he could have given a direction to the Press under section 39 of the Children and Young Persons Act 1933, as amended by the 1963 Act^[41] but this does not seem to have been suggested. After a short adjournment counsel stated that the mother "while never doubting the integrity of the Press, was not prepared to run the risk of the suit coming to the notice of the children involved, and was not prepared to continue "^[42] The hearing was then adjourned generally. There has been no appeal against the Judge's decision, which seems to have been inevitable in the present state of the authorities. It is understood that adoption proceedings were instituted instead, thus achieving in privacy the aim of regularising the position of the children, though in a manner that could be less advantageous to them.

Legitimacy petitions are, no doubt, distinguishable from adoption and the other proceedings concerning children which are heard in chambers or in camera in that they do not inevitably concern infants and, even where they do, are less likely to require the infants to give evidence. Moreover while adoption proceedings are designed to conceal natural parenthood, legitimacy proceedings are designed to establish it. This affords valid reasons for not insisting that legitimacy procedings shall be in private, but does not seem a valid ground for denying the court the right to sit in private if satisfied that a hearing in public would adversely affect infants. In most respects the analogy between legitimacy and adoption proceedings is very close, for both raise the same issues of status and citizenship. Moreover, in legitimacy petitions there is an additional protection against any abuse resulting from privacy because the Attorney General has to be made a respondent.^[43]

Legitimacy petitions are also distinguished from most other forms of relief dealt with in the Matrimonial Causes Act in that the restriction on the publication of evidence imposed by section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to them. Hence there is no legal restriction on the publication of all the details except the general prohibition in section 1(1)(a) of publication of indecent matter calculated to injure public morals. Protection of infants against harmful publicity is therefore dependent on the self-restraint of the public and the Press and on their response to any appeal or direction from the Bench. Although it seems that under the amended section 39 of the Children and Young Persons Act 1933 a direction to the Press can be given in legitimacy proceedings, that is so only if the children are concerned as parties or witnesses, which may or may not be the case. While judicial appeals for discretion seem generally to be effective, the layman can scarcely be blamed for not being willing to rely on this. Moreover, no judicial appeal or direction will necessarily be effective in preventing local gossip. In any case it is unsatisfactory that everything should depend on the discretion of the Press and such members of the public as happen to be present in court.

Law Commission's Proposals

A. Legitimacy Proceedings

L appears to us to be wrong in principle and liable to result in a denial of justice that people should be deterred from establishing their legitimacy or that of their children through a reasonable fear of the adverse effects that publicity may have on the children. Accordingly we recommend that section 39 of the Matrimonial Causes Act 1965 should be amended by conferring on the court (including the county court) a discretion to sit in private when hearing applications for legitimacy declarations. This discretionary power should be exercisable in respect of the whole or any part of the proceedings. It is not envisaged that the discretion would normally be exercised in favour of a private hearing unless infant children were concerned and then only if the court were satisfied that the publicity would be likely to be harmful to them. On the other hand, it is not thought advisable expressly to impose any such limitation on the court's discretion; the court can be trusted to exercise it with good sense and restraint. There may be some exceptional cases where the interests even of adults of full capacity require and deserve protection, especially perhaps where they are involved in the proceedings involuntarily.

Secondly it is recommended, consistently with the similar recommendation relating to appeal courts, that an application to hear such a petition in private should itself be heard in private unless the court otherwise directs.

I t is arguable that the objects to be achieved by the foregoing recommendations could be attained by an amendment of the rules of court providing for hearings by a judge in chambers (see paragraphs 5-12). But, as with the recommendations relating to appeal courts, it is thought that it would be safer and preferable to enact by statute that the court should have power to sit in private rather than to leave it to rules of court to provide for hearings in chambers. The power to sit in private in nullity cases is conferred by statute ^[44] and it is thought that the same should apply to legitimacy declarations. This is especially so since the power is to be conferred on the county court as well as the High Court and it is not certain whether, in the absence of statutory authority, a rule could be made authorising a county court to hear a legitimacy petition in private.

It is further recommended that the restrictions on publication imposed by section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926 should be extended to proceedings for legitimacy declarations. This would operate when the court had not exercised its discretion to sit in private and would enable the judge to deal with an application for a private hearing in the knowledge that even if he refused it there could not be unbridled publicity. We can see no valid reason for treating these proceedings differently from divorce, nullity, judicial separation and restitution of conjugal rights. The evidence is likely to be of an equally intimate character; the only difference being that it may relate to the misdeeds of an earlier generation. The Act permits quite extensive reporting, including the identity of the parties, the nature of the claims, the legal submissions and the judgment, and it is considered that this is more than adequate to satisfy any legitimate public interest in the trial and the needs of the legal profession.

In implementing this recommendation it would be necessary to provide that the matters allowed to be reported should include particulars of the declaration sought in the petition (instead of a statement of the charges, etc.).

E. Miscellaneous

In the course of our consultations two further questions have emerged in relation to which there appears to be general agreement. The first of these relates to the exclusion from section 1(1)(b) of the 1926 Act of applications for periodical payments under section 22 of the Matrimonial Causes Act 1965. Attention has already been drawn (see paragraph 15) to the extreme anomaly of their exclusion which appears to be due solely to the fact that the introduction of this type of relief was subsequent to the Act of 1926. We think that legislative action is desirable here. The second relates to the doubts expressed concerning the ambit of section 39 (as amended) of the Children and Young Persons Act 1933 (see paragraphs 15 and 38 above). In our view it is clear that the section extends to all proceedings civil or criminal, and enables all courts to prohibit the publication of the identities of children concerned as parties or witnesses. Had we thought the contrary view to be a possible one we should have recommended, as many of those that we have consulted have urged, that declaratory legislation should put the matter beyond doubt. But in our view it is already beyond doubt and accordingly no legislative clarification appears to be necessary. We hope that the publicity given to this point will ensure that in future the existence and ambit of the power under section 39 are not overlooked, as has sometimes occurred in the past.

It is accordingly recommended that applications under section 22 of the Matrimonial Causes Act 1965 should be brought within the scope of section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926.

Draft Legislation

Draft Clause 2 in the Appendix is designed to give effect to the foregoing proposals relating to legitimacy declarations and proceedings under section 22 of the Matrimonial Causes Act 1965. The effect of subsections 1(a) and (2) is to empower the court to direct that applications for legitimacy declarations may be heard in private (the Latin expression ''in camera" is used since that is the term adopted elsewhere in the Act). The effect of subsections 1(a) and (b) and (3) is to bring both types of proceedings within the ambit of section 1(1)(b) of the Act of 1926.

Consultation with Scottish Law Commission

As the suggested legislation referred to in the foregoing paragraph may affect Scots Law we have consulted the Scottish Law Commission who have authorised us to say that they have no objection to the proposals in so far as they apply to Scotland.

LESLIE SCARMAN, Chairman

L. C. B. GOWER

NEIL LAWSON

ANDREW MARTIN

NORMAN s. MARSH

HUME BOGGIS-ROLFE, Secretary

21st October, 1966.

APPENDIX

DRAFT CLAUSES

Power of court hearing certain appeals and applications to sit in private.

(1) Where an appeal is brought against a decision of any of the courts mentioned in subsection (3) below, or an application is made for leave to appeal against a decision of any of those courts, and that court had power to sit in private during the whole or any part of the proceedings in which the decision was given, then, subject to subsection (2) below, the court hearing the appeal or application shall have power to sit in private during the whole or any part of the proceedings on the appeal or application.

(2) Where the decision of any of the courts mentioned in subsection (3) below against which an appeal is brought

(a) is a conviction, or a sentence or other order made on conviction, or

(b) was given in the exercise of jurisdiction to punish for contempt the court hearing the appeal or any further appeal arising out of the same proceedings shall, notwithstanding that it sat in private during the whole or any part of the proceedings on the appeal, state in open court the order made by it on the appeal.

(3) The courts referred to in subsections (1) and (2) above are the Court of Appeal, the High Court, the Chancery Court of a County Palatine, the Crown Court at Liverpool, the Crown Court at Manchester, a court of quarter sessions, a county court and a magistrates' court.

(4) An application to a court to sit in private during the whole or any part of the proceedings on such an appeal or application as is mentioned in subsection (1) above shall be heard in private unless the court otherwise directs.

(5) The powers conferred on a court by this section shall be in addition to any other power of the court to sit in private.

(6) In this section references to a power to sit in private are references to a power to sit in camera or in chambers, but the power conferred by this section on a court which has no power to sit in chambers is a power to sit in camera only.

(7) In this section " appeal " includes appeal by case stated, and references to a court include references to a judge exercising the powers of a court.

Restriction of publicity for legitimacy proceedings, etc. and certain Proceedings by a wife for maintenance.

(1) The following provisions of this section shall have effect with a view to preventing or restricting publicity for:

(a) proceedings under section 39 of the Matrimonial Causes Act 1965 (which relates to declarations of legitimacy and the like), including any proceedings begun before the commencement of that Act and carried on under that section ; and

(b) proceedings under section 22 of that Act (which relates to proceedings by a wife against her husband for maintenance), including any proceedings begun before the said commencement and carried on under that section and any proceedings for the discharge or variation of an order made or deemed to have been made under that section or for the temporary suspension of any provision of any such order or the revival of the operation of any provision so suspended.

(2) At the end of the said section 39 there shall be added the following

"(9) The court (including a county court) by which any proceedings under this section are heard may direct that the whole or any part of the proceedings shall be heard in camera, and an application for a direction under this subsection shall be heard in camera unless the court otherwise directs."

(3) Section l(l)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926 (which restricts the reporting of matrimonial causes) shall extend to any such proceedings as are mentioned in subsection (1) above subject, in the case of the proceedings mentioned in subsection (1)(a) above, to the modification that the matters allowed to be printed or published by virtue of sub-paragraph (ii) of the said section 1(1)(b) shall be particulars of the declaration sought by a petition (instead of a concise statement of the charges, defences and countercharges in support of which evidence has been given).

Note 1   Magistrates’ Courts Act 1952, s. 4(2).    [Back]

Note 2   Re Bellman decd. [1963] P. 239 at p. 242, citing Smeeton v. Collier (1847) 1 Ex. 457 and Re Davidson [1899] 2 QB 103, D.C.    [Back]

Note 3   Re Bellman, supra, Friend v. Wallman [1946] K.B. 493, 499, C.A.    [Back]

Note 4   See R.S.C., O. 91 rr. 9 and 10; C.C.R., O. 46 r. 1, and the Guardianship of Infants (Summary Jurisdiction) Rules 1925, r. 3.    [Back]

Note 5   See Adoption Act 1958 s. 9(5); the Adoption (High Court) Rules 1959, rr. 1, 26A; the Adoption (County Court) Rules 1959, rr. 16, 27A; and the Adoption (Juvenile Court) Rules 1959, rr. 16, 31A.    [Back]

Note 6   R.S.C., O. 52 r. 6(1).    [Back]

Note 7   R.S.C., O. 52 r. 6(2).    [Back]

Note 8   R.S.C., O. 99 r. 4.    [Back]

Note 9   C.C.R., O.46 r. 18.    [Back]

Note 10   Court of Protection Rules 1959, r. 44.    [Back]

Note 11   Matrimonial Causes Act 1965, s. 43(3).    [Back]

Note 12   S. 57(2).    [Back]

Note 13   S. 57(3).    [Back]

Note 14   S. 47(2).    [Back]

Note 15   See s. 10 of that Act.    [Back]

Note 16   See s. 47 of that Act.    [Back]

Note 17   S. 37.    [Back]

Note 18   As regards reports of proceedings outside the United Kingdom, see the Defamation Act 1952, s. 7 and Part I of the Schedule, and Webb v. Times PubIishing Co., [1960] 2 Q.B. 535.    [Back]

Note 19   Administration of Justice Act 1960, s. 12.    [Back]

Note 20   lbid s. 12(2).    [Back]

Note 21   Under R.S.C., 0. 63 r. 4.    [Back]

Note 22   S. l(l)(a).    [Back]

Note 23   S. l(l)(b).    [Back]

Note 24   Supra, paragraph 11.    [Back]

Note 25   As amended bv s. 57 of the Children and Young Persons Act 1963.    [Back]

Note 26   Ibid. s. 49 as amended by s. 57 of the 1963 Act.    [Back]

Note 27   Cmnd. 479 of 1958.    [Back]

Note 28   Cmnd. 1616 of 1962.    [Back]

Note 29   Cmd. 8878 of 1953.    [Back]

Note 30   Paragraph 608    [Back]

Note 31   Paragraph 612.    [Back]

Note 32   Ibid.    [Back]

Note 33   Cf. Re Agricultural Industries Ltd., supra and Re Green, supra.    [Back]

Note 34   Paragraph 612.     [Back]

Note 35   Paragraph 608.    [Back]

Note 36   Judicature Act 1925 s. 31(2).    [Back]

Note 37   Paragraph 609.    [Back]

Note 38   [1966] 2 W.L.R. at p. 59.    [Back]

Note 39   Ibid. p. 63A.    [Back]

Note 40   Ibid. at p. 63.    [Back]

Note 41   Supra, paragraph 15.    [Back]

Note 42   The Times, 16th June 1965.    [Back]

Note 43   Matrimonial Causes Act 1965, s. 39(6).    [Back]

Note 44   Matrimonial Causes Act 1965, s. 43(3).    [Back]

JISCBAILII_GENERAL_LR_1966