The Press Association have covered a case concerning the potential committal to prison of a Polish woman involved in care proceedings, it appears for publication of information concerning her child via an interview with Polish media which was aired in Poland and broadcast on the internet. The article now appears in a number of places, mostly syndicated local press, but you can read it here on AOL :

Ex-MP says ‘open justice’ rules ‘must be followed to the letter’

The article is heavily based upon quotes from John Hemming, and as far as we can tell there is no independent or official record available in this case at present. It is unclear if John Hemming is the (indirect) source of the story or if the Press Association have had direct contact with one of the participants in the case (e.g. the mother), but it does not appear as if either they or John Hemming were present at the hearing referred to in the article.

The key assertions that are made by John Hemming via the Press Association piece can be summarised as follows :

  • Mr Hemming complains that once again a judge has “fallen foul of rules aimed at ensuring that people [are] not jailed in secret.”
  • On 23 December HHJ Simon Oliver ruled that the woman who is at risk of imprisonment can’t be named, in order to protect the identity of her teenaged child. There is reference to a potential “information jigsaw” from which we infer there is probably still material out there on the internet, indeed the article says the interview was broadcast “on the internet”.
  • Mr Hemming complains that the Judge did not comply with a practice direction about how committal cases should be handled, in that “the case had not been properly listed because the listing had not started with the words “for hearing in open court” and had not contained Oxfordshire County Council’s name or the woman’s full name.”
  • Mr Hemming complains that the decision to bar journalists from naming the woman was a “derogation from the principle of open justice” – but media organisations had not been warned of the proposal.
  • He implies that the Judge acted in ignorance of the rules in this area : “I think it would be a good idea if judges hearing committal applications were required to read the rules before they heard a case.”

What are the rules that John Hemming is talking about?

To be strictly accurate the “rules” John Hemming is referring to are in fact a Practice Direction, which is not quite the same as a court rule. The Practice Direction was issued by the Lord Chief Justice in 2015 and can be read here : Practice Direction: Committal for Contempt of Court – Open Court.

The Guidance* Direction makes clear that the expectation is that this sort of case will be heard in public, and that the person at risk of imprisonment will be named, and that the court list will show their name and a clear indication of the fact that the matter is to be heard in open court (unlike many family cases) in advance (so that the press or any person may attend if they wish).

The article correctly quotes several extracts from this Guidance Direction, but does not set out those parts of the Guidance Direction which make clear that in exceptional circumstances it may be appropriate to derogate (move away from) the basic principle of open justice by holding a hearing in private. The guidance Direction tells us that :

  • If a judge is considering hearing a matter in private he must put the press on notice so that they can object if they wish.
  • The fact that a child is involved does not necessarily mean that a matter should be heard in private, particularly if the child can be protected by some other order.
  • If a Judge decides to hear a matter in private he must set out his reasons in a published judgment.
  • If a person is committed to prison the court must state their name, the general nature of the contempt of court and the punishment. There are no exceptions to this requirement.

What do we actually know about this case?

Well, we know the matter was at court on 23 December but the judge and Oxfordshire County Council who had brought the application agreed that it should not be dealt with before Christmas – so it has been postponed until a date in the new year.

We know that the teenaged child was in foster care from some point prior to that.

We know there was a pre-existing order preventing the mother from identifying her child, which it appears she had breached by speaking to the Polish media. It is generally the case that a council will only apply for such an order if it has grounds for thinking it is required, so it may have been the case that the mother has been talking about going to the media for some time (or indeed that she had pre-existing connections with Mr Hemming who has a long standing interest in cases of this sort, particularly where they involve foreign EU Citizens, and who is often seen offering quotes which appear to disclose inside knowledge in such cases). It is not clear whether the judge simply reminded those present of the existing order or somehow beefed it up / made a separate and specific order to prevent the reporting of the committal aspect of it*.

And that is about it.

There are no judgments on BAILII or at the time of writing, which is unsurprising given that the hearing took place as recently as 23 December. From the fact that it took place on a day when the court was probably only dealing with urgent matters, we think this was probably an urgent hearing and that it is likely the judge was not in a position to deal with it fairly on the day, hence the adjournment (it does beg the question of whether the LA were being a bit overoptimistic in terms of what they hoped to achieve at a hastily convened hearing).

But we can also reasonably infer some other things :

There hasn’t yet been a committal hearing, just an application that’s been put off.

There hasn’t yet been any decision to hold that hearing in private (if there were we think the Press Association would say so). It might be under consideration, in which case HHJ Oliver would need to ensure that the media were on notice. But we think the Press Association would have probably mentioned if the hearing in January were specifically listed to deal with this issue.

There has been a decision not to name the mother at the moment. We don’t know if the mother will be committed to prison or punished in some other way (although it seems clear from the article that there was an order and that she accepted that she had participated in the broadcast interview which sounds like a probable breach subject to technicalities). And we have no reason to think that the court will not comply with the Guidance Direction by

  • hearing the matter in public when it does get going
  • or by hearing it in private only after putting the press on notice and hearing what they have to say
  • and by publishing the general outline of the contempt along with the mother’s name IF and when it does indeed make a committal order.

It is theoretically possible that the facts of the case would in due course justify with-holding the mother’s name, notwithstanding the fact that this was contrary to the Guidance Direction, but the facts would have to be very extreme and we think that is highly unlikely.

So, what should we make of John Hemming’s complaints?

We don’t think there is any risk of this mother being jailed in secret, since her case is already widely reported – and there is no present restriction on it being reported as long as her name is not mentioned. If there were, we wouldn’t be writing this.

We don’t know whether there was some technical deficiency in the publications of the court lists in respect of this matter, but the Guidance Direction does envisage that in cases of urgency it may not be possible to publish a list the day before. If a matter has come in urgently on 23 December it is unlikely the court list will be able to show it – or that the press would be able to be put on notice. That is not secrecy, it is practical reality. Nor is it a breach of the guidelines. And in any event it is cured by the adjournment – and indeed who is to say that the need to ensure a properly open hearing in due course was not part of the reason for that adjournment?

We aren’t surprised there is no published judgment – firstly because it doesn’t sound as if this was a hearing which called for or permitted the delivery of a reasoned judgment (everyone just agreed to adjourn it), other than perhaps brief reasons for imposing a temporary ban on the naming of the mother, and secondly because even if there was a judgment there would have been insufficient time for it to have been transcribed and published between 23 Dec and 28 Dec.

And HHJ Oliver has not breached the guidance direction about naming contemnors, because as yet there has been no committal hearing. John Hemming is simply barking up the wrong tree here. The court has not decided to sit in private – if it does it will have to comply with the rules about that. It hasn’t committed anyone to prison. If it does it will THEN have to name the contemnor (having published her name in the list prior to any PUBLIC hearing). But until it fails to do one of those things the complaint is just misplaced.

We don’t see any evidence of breach and therefore don’t see any other evidence that HHJ Oliver is not familiar with the Guidance direction. As HHJ Oliver is the Designated Family Judge for the court area in question it is highly unlikely he is not familiar with these rules as he will be responsible for dealing regularly with committal applications. That is not to say that judges always get it right, but we think that John Hemming has rather jumped the gun because so far at least HHJ Oliver hasn’t done much of note at all. He’s just made a holding order to protect a child whilst the parties are given proper time to prepare for a hearing.

If further information or judgments come to light that clarify the issues here we will link to them at the foot of this post.

*it is difficult for us to find out about this without the details of the case as the Judicial Press Office typically find it difficult to identify which case we are asking about if we have limited information – but we will see what we can find out.

* We have removed confusing references to the “guidance”. When first mentioned we correctly referred to the Practice Direction on Committals as a Practice Direction, but then slipped into calling it guidance as shorthand (which strictly speaking it isn’t). Thanks to John Hemming for correcting us.

Feature Pic : by Lefteris Heretakis on flickr – thanks!