Rapisarda v Colladon 2014 – new areas of transparency, journalism and Monarchs trying to protect public morals – it has it all.
This is a very quirky case, decided by the President. It arises from divorce and ancillary relief proceedings. In particular, it arises from an application by the Queen’s Proctor, to dismiss a large number of divorce petitions, and to set aside a number of decree absolutes and decree nisis.
(Who the heck is the Queen’s Proctor, you may be asking – well, he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973)
This case is described by the President in his opening paragraph as being
what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale
Vexingly, for me, the judgment doesn’t give chapter and verse on what on earth was going on here.
The issue that the judgment is principally concerned with, is whether the Press could report what the Court was uncovering. At the moment, they are prevented from reporting details from divorce cases (not, as you might imagine to protect the confidentiality of the individuals but to protect public decency)
That allows the President to do two of his favourite things – (a) to test where the boundaries of transparency are and whether they could be expanded; and (b) to give a history lesson as to how the current framework came to be.
For a law geek like me, (b) is really rather absorbing, and I have to say that few people have ever been as skilled as the President in doing that sort of exercise.
So, what prevents the Press reporting about what happens in divorce or ancillary relief proceedings? * (As to whether any of this applies to ancillary relief proceedings, having analysed it very carefully, the best we can do is “It might”)
It is the Judicial Proceedings (Regulation of Reports) Act 1926 (from now on in this piece “The 1926 Act”
3. Section 1 of the 1926 Act is headed “Restriction on publication of reports of judicial proceedings”. As amended, it provides as follows:
“(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
So, in normal language –
1. the Press can’t report anything arising from Court proceedings which might injure public morals (I’m not convinced that is routinely adhered to, thinking of the many sexual abuse celebrity crime reporting, or the level of detail that was published arising from evidence in murder trials – the murder of Lee Rigby springs to mind, and the Press have hardly been sparing in the Oscar Pistorius details)
2. The Press can’t report anything arising from the evidence given in divorce proceedings or PROBABLY ancillary relief proceedings (they can report things in broad summary, but not chapter and verse). And if they do, they can be prosecuted.
3. That does not stop the reporting of bona fide LAW REPORTS
The President explains how the 1926 Act developed. In effect, at around the same time as the law banned Obscene Publications the Press started publishing fairly routinely the juicy and salacious details from divorce cases to titillate and/or shock their audience.
8. Kate Summerscale, in her recent retelling in Mrs Robinson’s Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 “Lord Palmerston’s government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence.” Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
“A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. ‘The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,’ noted the Saturday Review in 1859.” – The author, she suggests, was James Fitzjames Stephen, later Stephen J – “‘Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'”
9. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
“Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.”
This state of affairs even led Queen Victoria to become involved, and she caused this letter to be written
“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”
Obviously the comparison between lurid French novels and the details of divorce reports in the English newspapers was a popular one, because the metaphor was still going in 1922, when King George V caused this correspondence to be written
12. Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell  P 1,  AC 687, and, for the eventual denouement, The Ampthill Peerage  AC 547) was opened before Sir Henry Duke P and a jury on 8 July 1922. On the fourth day of the hearing, the King’s Private Secretary, Lord Stamfordham, wrote to the Lord Chancellor, Lord Birkenhead:
“… the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman which hitherto through the recognition of the unwritten code of decency indeed of civilisation have been regarded as sacred and out of range of public eye or ear. The pages of the most extravagant French novel would hesitate to describe what has now been placed at the disposal of every boy or girl reader of the daily newspapers.”
So for all of our modern obsession that Prince Charles has been exercising influence behind the scenes and pulling strings, it is nothing new.
The King wasn’t done there, and had another try later on
14. The final catalyst seems to have been the newspaper reporting in March 1925 of Dennistoun v Dennistoun (1925) 69 Sol Jo 476. King George V returned to the point, Lord Stamfordham writing to the Lord Chancellor, now Lord Cave, in striking terms:
“The King feels sure that you will share his feelings of disgust and shame at the daily published discreditable and nauseating evidence in the Dennistoun case. His Majesty asks you whether it would not have been possible to prevent the case coming into Court, either by a refusal of the Judge to try it, or by the joint insistence of the respective Counsels to come to an arrangement, especially when, apparently, the question at issue was one of minor importance.
The King deplores the disastrous and far reaching effects throughout all classes and on all ranks of the Army of the wholesale press advertisement of this disgraceful story.”
And so the 1926 Act came about, to protect those delicate flowers that were serving in the British Army, and the vulnerable working classes from having to read such filth (the upper class could of course, afford to buy the most extravagant French novels, and get their filth that way)
[I began pondering just how juicy Dennistoun v Dennistoun was, the case that changed the law and remains law ninety years on, and which got a King so disgusted and ashamed that he wrote letters complaining about it. So I had a look - the salacious details from the trial are all here
after two pages, the strongest I found was that the wife had been having an affair, her paramour nicknamed Tiger, and he called her "Brown Mouse" - it rather pales in comparison to what we know Prince Charles said to Camilla when they were both married to other people]
The major decision about the 1926 Act, prior to this case was Moynihan v Moynihan 1997, which coincidentally, also dealt with an application by the Queen’s Proctor to set aside a decree of divorce obtained by fraud. Sir Stephen Brown P heard the case and considered that section 1 was mandatory and did not give the Court a discretion to waive it in certain cases.
24. To return to Moynihan v Moynihan, Sir Stephen continued as follows:
“The point is made by counsel for the Attorney-General that this is a statute which is mandatory in effect; it does contain a criminal sanction and therefore must be construed restrictively. No point arises, as I have already said, as to the merits of any reporting of details likely to be made public in the course of the evidence. It is merely a question as to how that will be achieved.
The matter is of importance because the representatives of the press and the media are entitled to be clear as to what their duties are and what restrictions apply to them, and I have a great deal of sympathy with their position. For that reason the question has been raised at the outset of these proceedings. However, it seems to me that the court simply cannot construe the statute in a way which is contrary to the language of the statute itself. I have to rule that the Judicial Proceedings (Regulation of Reports) Act 1926 does apply to these proceedings. The Attorney-General has through counsel indicated that he would not be very anxious to institute criminal proceedings if by some oversight there was a breach of the strict letter of the law. That is not a matter which is before me, but it seems to me that until or unless Parliament were to intervene the Act does apply in this instance.”
25. Sir Stephen concluded with these words, which I read out in the present case to the journalists present in court:
“However, having said that, it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”
26. Sir Stephen seems to have been unenthusiastic about the application of the 1926 Act to the proceedings before him but concluded that section 1(1)(b) did apply. With equal lack of enthusiasm I am driven to agree. The logic of the analysis propounded in turn by the Law Commission Report, by the LCD Review and, finally, by Sir Stephen is, in my judgment, irrefutable.
That would seem to be problematic in authorising the reporting of a case where transparency would be in the wider public interest, such as here. If there has been fraud on an industrial scale about obtaining divorces, then the Press ought to be allowed to tell us about it. But there’s no judicial discretion to relax s1(1) (b) of the 1926 Act.
But our President wouldn’t be the President if he didn’t have a sharp mind, and if there’s someone who is going to find a way on transparency, it is going to be him.
Firstly, he suggests that Parliament need to look long and hard about the 1926 Act – in our modern era, we are hardly short of titillation and scandal and we really don’t need to be mollycoddled and protected from things that might shock us from divorce proceedings. And particularly when the hearing itself is in Open Court, it seems a nonsense to prohibit the Press reporting the case. The days when one needed to go to either the tabloids or Soho if you wanted a fix of smut are long gone.
27. Though driven to this conclusion by the words Parliament chose to use in 1926, and reiterated in 1973, I find it almost impossible to believe that this is an outcome intended by Parliament. No doubt it is some imperfection on my part, but I do not begin to understand how the protection of public morality and public decency, or indeed any other public interest, is facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan v Moynihan and that I am hearing in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, this restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information)  Fam 58, 93) previously articulated in Scott v Scott  AC 417.
28. This is not, I venture to suggest, the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified
But even in the absence of that, a way has been found. We can publish, we will publish, we must publish…
36. Pending any review of the 1926 Act by Parliament are there any legitimate means of avoiding the impact of section 1(1)(b)? The answer is clear: only as allowed by one or other of the express provisions of section 1(4).
37. For convenience I set out section 1(4) again, but inserting additional lettering and creating subparagraphs for ease of reference:
“Nothing in this section shall apply
(A) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or
(B) to the printing or publishing of any notice or report in pursuance of the directions of the court; or
(C) to the printing or publishing of any matter
(i) in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or
(ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
In the context of the present proceedings it is quite clear that neither (A) nor (C) can avail the media generally. But what of (B)?
38. This is not something which Sir Stephen Brown P considered in Moynihan v Moynihan. As I have already noted, he made no reference at all to section 1(4). Indeed, so far as I am aware, there has never been any consideration of the point.
39. The language of (B) is quite general. It excludes from the ambit of the 1926 Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Although I agree with Sir Stephen that section 1(1) is mandatory and confers no discretion, section 1(1)(b)(iv) plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience. As the Law Commission Report put it (para 17):
“The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning those details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment or summing up.”
40. So too, limb (B) of section 1(4) confers a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” is quite general; it is neither defined nor circumscribed. In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word “report” will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word “report” is apt to include a report of the proceedings.
It follows, that limb (B) of section 1(4) recognises a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence has been given
So, having devised a judicial discretion, with some creative thought, to allow a Judge to authorise the publication by the media of a report of the whole of the proceedings, is the President going to exercise this discretion in this case? (If you think that the answer is “No”, then I would like to talk to you about a bridge you might be interested in buying)
42. Should I exercise that discretion? In the circumstances of the present case there can, as it seems to me, be only one answer. Publication by the media of a report of the proceedings before me does not, given the nature of the proceedings, engage the mischief at which the 1926 Act is directed. On the contrary there is, in my judgment, every reason why the media should be free to report the proceedings – proceedings which, to repeat, were conducted in open court and related to what, as I have said, was a conspiracy to pervert the course of justice on an almost industrial scale.
43. I shall, therefore, make a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before me on 9 and 10 April 2014 they may think fit. I make clear that this direction is, and is to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act.
44. On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).
We should, therefore, get chapter and verse on this whole story from the Press soon. I am a bit miffed that they get to know, in breach of a ninety year old act, whereas I, as a member of the legal profession who could legitimately get to know all the details by way of a published law report am in the dark, but such is life.