(Family Division; Munby J; 23 June 2009)
Both the husband and wife applied for exclusion of the media from the ancillary relief proceedings. The case had begun long before the change in the rules to allow the media access to private hearings in family proceedings. The parties argued that in ancillary relief cases there was no jurisdiction to grant injunctive relief against publication, as there undoubtedly was in children cases, that the only protection against publication was the Judicial Proceedings (Regulation of Reports) Act 1926, s 1(1)(b), and that, therefore, the only way of protecting the human rights of the parties was by excluding the media altogether. It was also claimed that, given the allegations of conduct on both sides, there was a significant risk that a witness would not give full or frank evidence in the presence of media representatives.
The court had jurisdiction to grant injunctions against publication of information revealed at court hearings, which was based not on the inherent jurisdiction, but on the European Convention on Human Rights, and the Convention applied equally to adults and children. The court could therefore, in an appropriate case, grant injunctions in relation to a particular case. It was, however, true that Administration of Justice Act 1960, s 12, restricting publication of information concerning the maintenance or upbringing of a minor, would be applicable only to very unusual ancillary relief cases, and was unlikely in the extreme to apply in the generality of such cases. It certainly did not apply in this case. The court declined to rule on whether in fact Judicial Proceedings (Regulation of Reports) Act 1926, s 1(1)(b) applied to all ancillary relief proceedings; judges did not give advisory opinions, least of all when they had heard no adversarial argument on the point. The issue whether the media should be excluded was not simply a question of balancing the Art 8 rights of the parties as against the Art 10 rights of the media; important rights under Art 6 concerning the promotion of the administration of justice were also involved. The public standing of the litigants was not an irrelevant consideration, but was not of itself sufficient to tip the balance: the media could not be excluded merely on the basis that litigants were people in whom the media had an unusual interest, as this would have the potential to privilege those who attracted the attention of the media over and above those who did not. With respect to the fact that this was a transitional case, begun before the rule change, the court was sympathetic to those whose litigation had begun before the recent rule change, recognizing their sense of grievance and injustice that the rules of the game had changed. However, Parliament had seen fit to change the law without including any transitional provisions. Whatever one's views might be as to the lack of consultation, and the unfortunate fact that the change in the law had not thus far addressed the equally important question of reporting restrictions, both the court and the parties had to take the law as it was, namely that the new arrangements applied both to pending cases and to cases part-heard. If there was a risk that the evidence of a particular witness might be affected adversely by the presence of the media, that would properly be a basis for excluding the media from that part of the proceedings in which the particular witness was affected, but it would not generally be, and was not in this case, a reason for excluding the media from the hearing as a whole.