Y v HM Attorney-General [2003] EWHC 1462 (Ch)

Case No. VC24603[2003] EWHC 1462 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 24 th June 2003
Before
THE VICE-CHANCELLOR
Between
YClaimantHM Attorney-GeneralDefendant
In the matter of the trusts of the X Charity
Hearing Hearing dates : Thursday, 12 th June 2003
Approved JudgmentThe Vice Chancellor :
[1]In the course of the hearing in private of an application by the trustees of a charity for the directions of the court in relation to certain pending proceedings the question arose whether I was obliged by Art.6.1 European Convention on Human Rights to give my judgment in public. I heard argument from, amongst others, junior counsel for the Attorney-General. I am most grateful to all of them. I indicated that I was satisfied that I could and should give my judgment in private and would give my reasons for that conclusion later. I have given judgment on the application. What follows are my reasons for concluding that I was entitled to do so in private.[2]Article 6.1 provides:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 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."
The problem arises from the apparent distinction in the second sentence between the pronouncement of the judgment and the trial.[3]The hearing of the application was listed to be heard in private as it was an application within the terms of 39PD1.5(10). No application was made for the hearing to be held in public. I was and am satisfied that the nature of the application was such that a hearing in private was "strictly necessary...[as] publicity would prejudice the interests of justice." In those circumstances it would be surprising if my judgment, which in practice could not be anonymised, had to be given in public.[4]I have been referred to three decisions of the European Court of Human Rights which, as provided by s.2(1)(a) Human Rights Act 1998, I am bound to take into account. The first chronologically is Sutter v Switzerland (1984) 6 EHRR 272. In that case a Swiss national was convicted by the Divisional Court of insubordination and failure to observe service regulations during his military service. He was sentenced to 10 days imprisonment. His appeal on a point of law to the Court of Cassation was dismissed. The relevant complaint was that the judgment of the Court of Cassation had not been given in public and so infringed Article 6.1.[5]It is apparent from paragraphs 20 and 34 of the report that the judgment was available to any member of the public who could demonstrate an interest in obtaining it and it was in fact published. Thus the argument appears to have been that Article 6.1 requires the court to read out its judgment in public. This contention was rejected by a majority of 11 to 4. In paragraph 33 of the judgment of the majority it is stated "The Court does not therefore feel bound to adopt a literal interpretation. It considers that in each case the form of publicity given to the judgment under the domestic law of the respondent state must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6.1." It is unclear from that conclusion whether the majority considered that the restrictions contained in the second sentence of Article 6.1 apply to the obligation to pronounce judgment in public as well as to the obligation to hold the trial in public. However the concurring opinion of Judges Bernhardt, Bindschedler-Robert and Matscher (p.282) shows that they considered that they do.[6]The second decision is Campbell and Fell v UK (1985) 7 EHRR 165. In that case two convicted prisoners were injured during a prison disturbance. The Board of Visitors convicted them of breaches of disciplinary regulations and sentenced them to substantial loss of remission. The decision of the Board of Visitors was given in private. The European Court of Human Rights held that there had been an infringement of Article 6.1 in that respect. But the argument was not that the express restrictions contained in the second sentence should be applied to the obligation to pronounce judgment in public. The submission was that such obligation was subject to some other implied restriction. This submission was rejected. In paragraphs 91 and 92 of its judgment the court stated: "91. The court has said in other cases that it does not feel bound to adopt a literal interpretation of the words "pronounced publicly": in each case the form of presentation given to the judgment under the domestic law of the respondent state must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6.1 in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial.[92]However, in the present case it does not appear that any steps were taken to make public the Board of Visitors’ decision. There has accordingly been a violation of Article 6.1 on this point."[7]The third decision of the European Court of Human Rights to which I was referred is B and P v UK [2001] 2 FLR 261. That case concerned applications for residence orders. Each of the applicants applied for the hearings to be in public. The applications were refused and such refusal was upheld on appeal in each case because private hearings were required by r 4.16(7) Family Proceedings Rules. Accordingly the hearings were private and the judgments were given in private too. A third party could obtain a copy of the judgments but only with the permission of the court.[8]The UK government submitted that if judgment had to be given in public it would subvert the reasons for the hearing being conducted in private. The applicants relied on the facts that the obligation is expressed in unqualified terms and the court had rejected any implied restriction in Campbell and Fell v UK. The court rejected the complaint by a majority of 5 to 2. In paragraph 45 it recalled its case law to the effect that the extent and nature of the requisite publicity depended on the nature of the proceedings and the objectives of Article 6.1. In paragraph 46 it recalled that it had upheld the decisions to conduct the hearings in private and expressly agreed with the UK government "that to pronounce the judgment in public would, to a large extent, frustrate these aims". In paragraph 47 the court noted that copies of the judgment could be made available to third parties who could establish an interest and obtain the permission of the court. It concluded in paragraphs 48 and 49: "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 Article 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 Article 6.1 which is to secure a fair hearing (see, mutatis mutandis, the above-mentioned Sutter judgment para 34).[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 there has been no violation of Article 6.1 in this respect."[9]Judge Bratza concurred in the conclusion but for reasons he set out in a separate opinion of his own (p.275). He accepted the proposition advanced by the applicants that the obligation to pronounce judgment in public, unlike that relating to the trial, is expressed in unqualified terms. He drew attention to the distinction in this respect between Article 6.1 and Article 14 of the International Covenant on Civil and Political rights. He expressed sympathy for the dissenting opinion of Judge Cremona and others in Sutter v Switzerland to the effect that restricted access to judgments falls short of what the Convention requires. Nevertheless he decided that there was in those cases sufficient compliance with the requirements of Article 6.1. The essence of his conclusion is contained in paragraph (2) where he said:
"It is well-established that Article 6.1 of the Convention must be read as a whole. There is, as the majority judgment recognises, a logical relationship between the public nature of the proceedings and the public pronouncement of the judgment which is the result of those proceedings. If the public may legitimately be excluded from the hearing for the purpose of protecting the interests of children or the private lives of parties to a matrimonial dispute, the requirement that the judgment should be pronounced publicly should not be interpreted in such a way as to undermine that protection. It seems to me that it is not a satisfactory answer to this point to argue that the judgment could be entirely anonymised so that it contained no details capable of identifying the parties or the children concerned and/or abridged to the point where only the operative part of the court’s decision was made public. Even if such a course could be said to be adequate to protect the interests of the children or the parties concerned, it is difficult to see how the publication of a judgment so anonymised or abridged could be said to serve the aim of public scrutability of judicial proceedings."
[10]Judge Bratza drew attention to the case law of the court (p.277) to the effect that notwithstanding the apparently unqualified requirement it had been interpreted with "some flexibility" so that the form of publicity was to be assessed in the light of the nature of the proceedings. He concluded that on the facts of the case the fact that the judgment would be made available to one who could demonstrate a legitimate interest in obtaining a copy and who obtained the permission of the court was enough to satisfy the requirement.[11]As I have already indicated I was satisfied that the hearing should be held in private because the interests of justice so required. I was also satisfied that it was not a practical possibility to produce an anonymised or abridged version. Copies can be made available in accordance with CPR 5.4(2)(c). In those circumstances there is nothing in the decisions to which I must have regard to suggest that I should have given my judgment in public. It is, I think, clear that the flexible interpretation of Article 6.1 to which Judge Bratza referred does not entitle the court simply to apply by analogy to the obligation to pronounce judgment in public the same restrictions as are available in relation to the obligation to hold the trial in public. This is no doubt for the good reason that the judgment of a court of justice cannot be a wholly private document. Its ultimate availability to the public can no doubt be hedged around with restrictions in appropriate cases but should not be excluded altogether.[12]There is however another ground on which the pronouncement of my judgment in private was justified. As the opening words of Article 6.1 make plain it only applies to "the determination of..civil rights". An application to the court by trustees for directions may well affect but does not normally determine the civil rights of anyone. Similar procedures exist for the protection of other fiduciaries such as liquidators or receivers. Cf Craig v Humberclyde Industrial Finance Ltd [1999] 1 WLR 129, 135-136, paras 15-19. This, essentially administrative, jurisdiction is designed to provide guidance to the fiduciary as to the proper exercise of his powers in the problematic circumstances with which he is faced. Only rarely could it be said to determine the rights of anyone.[13]Counsel for the Attorney-General also submitted that the obligation to pronounce judgment in public may be overridden by the consent of all parties to the proceedings. He relied on the decision of the European Court of Human Rights in Hakansson and Sturesson v Sweden (1991) 13 EHRR 1 to the effect that an individual may waive his right to a public hearing. In view of my conclusions on the applicability and ambit of Article 6.1 I do not have to reach a final conclusion on this submission. Suffice it to say that I should take a good deal of persuasion to conclude that it is right. To uphold it would seem to me to introduce into Article 6.1 an implied restriction contrary to the decision in Sutter v Switzerland and to undermine the policy both domestic and European which requires hearings to be held in public.[14]In summary I conclude that I was entitled to pronounce my judgment in private because: a) it did not determine the civil rights of anyone, but even if it did b) in the circumstances of a hearing in private, justified by the restriction in relation to the interests of justice, the practical impossibility of producing an anonymised or abridged version and the provisions of CPR 5.4(2)(c) it was permitted by Article 6.1.

Cited in 1 later judgment