“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” That famous aphorism is commonly quoted, though perhaps not in the courts that hand down hyper-injunctions whose very existence is kept secret on the pain of imprisonment. This incredible situation was exposed in Parliament by John Hemming MP, whose work deserves to be widely read.
When you read a hyper-injunction what strikes you is the sheer sweeping arrogance of the way they make themselves almost totally secret. One of the many questions raised these injunctions is how they can be compatible with the right to a fair trial. Article 6-1 of the Human Rights Act (and the European Convention on Human Rights) says:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The point in bold is crucial. While Article 6 allows courts to exclude the public from hearings under some circumstances, there are no circumstances at all where it is acceptable for a judgment to be given in secret. And yet this is exactly what a hyper-injunction means: it makes the parties in a case and its result secret. And Article 6-1 applies just as much to civil courts as it does to criminal courts. So are British judges violating their legal duty to observe the Human Rights Act?
The government’s libel reform bill offers an excellent opportunity to deal with hyper-injunctions. If hyper-injunctions are incompatible with the Human Rights Act, the opportunity becomes an obligation.
Niklas Smith is not a lawyer. He was Junior Treasurer of Cambridge Student Liberal Democrats 2009-10 and blogs at http://niklassmith.wordpress.com
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2 Comments
There are two problems:
1) Injunctions against the media are often interim remedies – ie ones given before the case as a whole has been heard and decided. The balance will often lie heavily against the newspaper which is accused of libel, or breach of confidence or some other actionable cause. They will always be able to publish at a later date if they win the case, however the complainant will not be able to recover the damage to their reputation (only get compensation for it through damages).
2) A further problem then develops in that an injunction is of no use if the press can report something like “Former England captain Jonny Wick-Dipper was today granted an injunction preventing the reporting of details of an affair he is alleged to have had with leading model Verity Pure-Virtue (18).” Hence the super-injunction. I don’t have a particularly problem with either (1) or (2) in practice.
They aren’t particularly new – IIRC Paddy took out what looked like a super injunction in 1991 when trying to stop reports of his affair based on documents stolen from his solicitor. At least my recollection is that one tabloid ran an editorial saying there was a huge scandal in Westminster but they were prohibitied from even reporting the slightest detail because of court injunctions.
On the human rights point – it would be possible for Judgement to be given publically but then reporting to be restricted by the terms of the order (that would IMO be compatible with Art 6). Art 6 is not the only article engaged though as there is also Art 8 (Privacy) and 10 (Freedom of expression) to consider.
@Hywel: Thanks for your comment.
The difference between a hyper-injunction and a super-injunction like the one you mention is that the media cannot even report the existence of a hyper-injunction. To me that seems completely disproportionate to any purpose.
Also, the sorts of injunctions John Hemming has described (I strongly recommend reading the transcript, or at least Anna Raccoon or Alex Massie’s summaries) are permanent ones imposed at the end of a court case, not interim ones imposed to prevent the printing of allegations before they are heard in court.
It seems that reporting restrictions that started out as a reasonable effort to prevent juries being hopelessly biased before the trial hearing have suffered mission creep and become some kind of means of sweeping inconvenient news under the carpet. Not all injunctions are bad but these clearly are.