Publicity of evidence given in cases part 1
Heather Mills, having recently had judgement in her divorce case from Sir Paul McCartney now wants to return to court on two grounds. One we shall consider in a subsequent Friday article. The first however is the publication of documents allegedly exposing his behaviour during the marriage. Presumably, since the judgement was critical of her, she wants to alter any possible adverse public perception of her by putting the marriage breakdown into perspective. To do this she wants to refer to certain documents. The full nature of those documents is not necessarily clear.
This involves considerations of three matters, all of which are important regarding hearings. Firstly, whether hearings are to be in public or private and the consequences. Secondly use of documents disclosed in hearings. Thirdly rights to confidence and privacy.
The starting point is how hearings operate. The general rule under CPR 39.2 is that a hearing is to be in public. This follows the rights under Article 6 of the European Convention on Human Rights which in the determination of civil rights and obligations gives an entitlement to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.". Although the general rule is that judgment is to be in public if proceedings are heard in private the court may give judgment openly or privately (CPR 39.2.9). Hearings can be in private if the court considers that that is appropriate. Article 6 expressly envisages that hearings may be in private (whether as to all or part), with morals, public order, national security, interests of juveniles, protection of the private life of the parties all being specified as possible reasons of privacy, with it also being open to the court to keep it private "in special circumstances where publicity would prejudice the interests of justice.". The court is given powers under CPR 39.2(3) and (4) and 39PD.1 to hold hearings in private.
The court is given a general power under CPR 39.2(3)(g) to hold a hearing in private if the court considers it to be necessary in the interests of justice. The rule also specifies various specific circumstances where a private hearing is justified. For example if publicity would defeat the object of the hearing (for example a hearing to keep something private) or where there is a without notice application and having the hearing in public could prejudice a party. (Sometimes an application will be made without notice because of urgency, or because an allegation is being made that the other party would do something improper in response to having been given notice. It may be that eventually this would all be proved to be nonsense, but reporting the application at that stage might do serious damage to a party's reputation, or undermine the failure to give notice). Other reasons for privacy include national security, confidential information (including personal financial matters) the administration of trusts or of a dead person's estate, or to protect the interests of any child or mental patient.
This is why so many family hearings are in private, to avoid any prejudice to the interests of the child. Of course that has led to criticism that in practice this protects wrongful acts by local authorities or social workers rather the children themselves. It is probably true that wherever possible the courts (as long as the privacy of children is protected) would wish to encourage family proceedings to be as open as possible so that public confidence in the system of justice is maintained.
Unless therefore the court orders a hearing to be private, it will be in public. If the hearing is public then subject to paying the appropriate fee members of the public have an automatic right to a transcript of the proceedings. That will deal with both submissions made by the lawyers, and the evidence given in court. If the hearing is in private then leave of the judge is required for any non-party to obtain a copy of the transcript. There is obviously no point in having a hearing in private if the contents of that hearing could be distributed publicly. Presumably therefore one thing which Heather Mills is contemplating is having the transcripts published if the judge agrees. It is always difficult to comment on the case when you know nothing about it, but in general terms if the judge has decided that the hearing ought to be in private, it is most unlikely that he would allow the transcript is to be published by any of the parties, certainly if the aim was to try and betray them in a favourable light. The judge will undoubtedly consider that he has set out what needs to be said in his judgement, and has made that public. That is likely to be treated as the end of the matter.
Next week we shall consider use of documents disclosed in hearings.