Notable cases (3) - Scott v Scott 1913 - Open justice

Viscount Haldane LC (1856-1928)

'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial' - Jeremy Bentham

Open justice:

Scott v Scott  was decided by the House of Lords in 1913 - Viscount Haldane LC, Earl of Halsbury, Earl Loreburn, Lord Atkinson and Lord Shaw of Dunfermline.

Mrs. Scott (appellant) filed her petition
against her husband (respondent), for a declaration that their marriage was void because of his impotence.  The case was heard in camera and Mrs Scott obtained her decree of nullity.  However,  she sent copies of the shorthand notes of the proceedings to the respondent's father and sister and also to a third person.  Mr Scott asked the court to find Mrs Scott in contempt of court for sending the notes.  He argued that this was a breach of the order for the hearing in camera.  Bargrave Deane J held that there had been contempt of Court and this was appealed.  The Court of Appeal dismissed the appeal.

In the House of Lords, Viscount Haldane LC said - ' ... the question which we have now to decide necessitates consideration of the jurisdiction to hear in camera in nullity proceedings, and of the power of the judge to make an order which not only excludes the public from the hearing, but restrains the parties from afterwards making public the details of what took place ...'

Viscount Haldane indicated that in some cases an in camera hearings was permissible but such a course had to be 'strictly necessary for the attainment of justice.'

Scott v Scott ' remains a beacon of the common law.   Outside three exceptional areas of wardship, lunacy and trade secrets ... the House of Lords emphasised the paramountcy of open justice - per Maurice Kay LJ in Global Torch [2013] EWCA Civ 819 at para 13.

Maurice Kay LJ highlighted other extracts from Scott v Scott which illustrate the principle -

Viscount Haldane LC :

"But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with the by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as of turning, not on convenience, but on necessity."

He added:

"A mere desire to consider feelings of delicacy or to exclude from publicity the details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made."

Lord Atkinson stated :

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect."

Perhaps the most trenchant observations were those of Lord Shaw of Dunfermline who referred to

"A violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security."

In criticising the closure of the hearings below he said :

"What has happened is a usurpation – a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."

Lord Shaw also cited the view of Jeremy Bentham quoted at the start of this post.

Interestingly, the House of Lords in Scott essentially affirmed the long-standing practice of the courts.  The speech of Viscount Haldane contains a description of the process used in the old ecclesiastical courts where it was not the practice to take evidence viva voce in open Court. The evidence was taken in the form of depositions before commissioners, who conducted their proceedings in private.  The House held that such procedure had not survived the Matrimonial Causes Act 1857 which had abolished the matrimonial jurisdiction of the ecclesiastical courts.  The 1857 Act created the Court for Divorce and Matrimonial Causes which existed until the Supreme Court of Judicature Act 1873 s.16 transferred its juridiction to the newly formed High Court.

Since Scott v Scott the common law has remained resolute, subject to later exceptions provided for by statute.


Recently:

Thus, in Al Rawi v Security Service [2011] UKSC 34, Lord Dyson said - 'The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417,  Lord Shaw of Dunfermline criticised the decision of the lower court to hold a hearing in camera as "constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security." Lord Haldane LC said that any judge faced with a demand to depart from the general rule must treat the question "as one of principle, and as turning, not on convenience, but on necessity."

In Al Rawi, the Supreme Court held that there is no power at common law to replace public interest immunity (“PII”), whereby a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. Such a change could only be for Parliament to make: [67]-[69], [107], [152], [192].   Lords Dyson, Hope, Brown and Kerr further hold that there is no power at common law to introduce a closed material procedure following the conclusion of the normal PII process. A closed material procedure, unlike the law relating to PII, involves a departure from the principles of open and natural justice, which are essential features of a common law trial: [10]-[14]. In certain specified cases, Parliament has enacted legislation which departs from the open justice and natural justice principles in introducing a form of closed material procedure and special advocates. This legislation responds to the increasing need in recent years to balance the public interest in maintaining a fair justice system with the public interest in the protection of national security.  

A significant statutory departure from the open justice principle is Closed Material Procedure in civil litigation under the Justice and Security Act 2013 .  As the UK Human Rights Blog - 7 December 2017 noted - 'The [Act] introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.'

Supreme Court:

Cape Intermediate Holdings Ltd  v Dring ( for and on behalf of Asbestos Victims Support Groups Forum) - This case is about how much of the written material placed before the court in a civil action should be accessible to people who are not parties to the proceedings and how it should be made accessible to them. It is, in short, about the extent and operation of the principle of open justice. 

Reading:

Bargrave Deane

Inforrm - Open Justice and Article 6 - General principles

Keep Calm and Talk Law - Open Justice: the soul of our legal system

UK Constitutional Law Association - Tom Hickman: Turning out the lights? The Justice and Security Act 2013