“(1) The general rule is that a hearing is to be in public. … (3) A hearing, or any part of it, may be in private if – (a) publicity would defeat the object of the hearing; … (g) the court considers this to be necessary, in the interests of justice.” … (a) publicity would defeat the object of the hearing; … (g) the court considers this to be necessary, in the interests of justice.”
“But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with the by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as of turning, not on convenience, but on necessity.”
“A mere desire to consider feelings of delicacy or to exclude from publicity the details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.”
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.”
“What has happened is a usurpation – a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.”
“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or 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.”
“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.”
“But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right.”
“In the present case M’s private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann’s formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.”
“51. … [counsel] seeks to fortify [his] submission by inviting us to dilute the test of necessity referred to in the earlier authorities on the basis that they preceded theHuman Rights Act 1998 which, in providing for competing qualified rights (private life and freedom of expression), requires a more nuanced approach … 52. In my judgment, there is no need for a new approach. Indeed, it is significant that Article 6 … itself prescribes a test of strict necessity in the context of publicity being permitted to be restricted in the interests of justice. However, as part of its consideration of all the circumstances of the case, a court will have regard to the respective and sometimes competing Convention rights of the parties.”
“10. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice … Derogations should, where justified, be no more than strictly necessary to achieve their purpose. 11. The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to neither grant the derogation or refuse it when it has applied the relevant test … 12. There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusion must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying to such an exclusion whether something short of exclusion can meet their concerns. … Anonymity will only be granted where it is strictly necessary, and then only to that extent. 13. The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott … 14. When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication ofArticle 8 of the Convention , where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on theirArticle 8 Convention right is entitled …”
“79. The authorities on the open justice principle are emphatic as to the central importance of that principle in our systems of civil and criminal justice … Speaking generally, the consequences for the reputation of individuals are generally not considered to be a sufficient reason for derogating from the open justice principle to the considerable extent of conducting court hearings in private. This indicates to me that the importance which has always been attached, and still is attached, to the open justice principle is comparatively greater than the importance attached to the right to a reputation.”
“… neither Article [8 nor 10] has as such precedence over the other.”
“In carrying out the balancing exercise, I need to address the various matters relied upon by the Applicants, in particular, those which are the subject of [their solicitor’s] ninth witness statement.”
“… I am prepared to assume that … the disputed allegations, if false, could be sufficiently serious attacks on the reputation of the of the Applicants … as to have an inevitable direct effect on their private lives so as to affect their personal integrity.”
“85. … The difficulty with that submission is that many of the facts relied upon by the Appellants are disputed and those disputes of fact cannot be resolved on this application. They allege that the Apex parties have fabricated documents and made up allegations and, having done so, have threatened to give wide and damaging publicity to the allegations with a view to extorting money from their victims, the Applicants. The Apex parties contend that the Applicants have been guilty of serious wrongdoing, that the Apex parties have come to a court of justice to seek appropriate redress and are prepared to settle the claim for a sum which reflects the strength of their claim. The Apex parties would say that they are not doing anything inappropriate in expecting the court to act in the normal way by holding court hearings in public. Nor are the Apex parties doing anything inappropriate, particularly in the context of cross-examination under section 994 of the 2006 Act, in making it clear that they are prepared to settle on what the Apex parties will say are fair terms. If the Applicants are concerned about publicity, particularly publicity for allegations which the Apex parties say they will prove, and if the Applicants are the more willing to be realistic about offering to settle the claim, then the Apex parties are not doing anything wrong in hoping that that will happen. 86. If I were able to determine at this interlocutory stage that the Apex parties were knowingly putting forward false claims and were abusing the process of the court by seeking to take advantage of the Applicants’ concern about publicity in relation to false allegations, then I would be very concerned and would have to consider what relief to grant to protect the victims of abusive behaviour. However, it is wholly unrealistic for the Applicants to submit that I can form that view on the material before me and grant relief accordingly.”