Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that the Press were complaining a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.

I do not believe the answer is as simple as that, as I will now explain (a fuller version for those interested and with legal references is here). The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship (they mutually feed one another) between press and people like the Redknapps?

Open justice principle

The open justice principle has long been known to English common law (at least since Stuart times). One of its aims is so that we can check up on what judges do in our name. This applies to all court proceedings. There are well-known exceptions including children proceedings and a hearing where confidential information is involved and an open hearing would damage that confidentiality. Most family proceedings are held in private. However divorce hearings are a classic example of a Family Court hearing to be held in open court.

OK, so the hearing has to be in open court (so far as there is any real hearing of a divorce); but what of documents in the case? The answer of the common law is still unclear. Someone who wants to see a court document – such as a divorce petition – has no entitlement to see it; but can ask to do so. What anyone has a right to see – if they ask for it – is a copy of the ‘order made in open court’ (r 29.12(2) referred to by TP; though that is a little more than ‘nada’, if ‘nada’ means nothing). With a divorce that will be a very basic document (number of the case; names; date of marriage; dissolution etc). It will not sell many copies of the Mail.

If a ‘non-party’ – ie someone who is not a party to proceedings: could be you or me, a journalist or academic, the tax man or the Child Maintenance Service (CSA as was) – asks to see court documents they will have to say why they want them. As far as we know at present this is the common law position. Issues of privacy then crop up: see later.

Rules cannot change the law

The next cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers. They are not even approved by MPs. If a MP considers them when they are ‘laid before Parliament’, he or she can object to them (‘the negative resolution procedure’). This has never happened. The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong.

An odd side-wind blows in next. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information, may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b), not the rest of us or other media.

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents; and that even if the Mail gets them, they cannot print more than names, addresses and details of legal argument and judgement. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful.

And if the district judge didn’t give his reasons for refusal to the Mail he was wrong. He had to make a decision and he should give reasons for it (FPR 2010 r 27.2(3), if you ask) if the Mail’s application to the court was in proper form.

Privacy and the ‘celebrity’ divorce

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered by the House of Lords (judicial branch) in 2004 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached when the Mirror secretly took photos of her and – very unsecretly – published them and stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.

David Burrows

9 January 2018

Feature pic courtesy of Michell Zappa on Flickr (Creative Commons licence) – thanks!