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||Neutral Citation Number:  EWHC 414 (Admin)
||Case No: CO/1406/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LAWS
THE HONOURABLE MR JUSTICE PITCHFORD
|| Her Majesty's Attorney General
||- and -
||Michael John Pelling
Mr Andrew Caldecott QC and Catrin Evans (instructed by Treasury Solicitors) for the Attorney General
Dr Michael John Pelling appeared in person
Hearing dates: 8 & 9 February 2005
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD JUSTICE LAWS:
- This is an application by Her Majesty's Attorney General for an order of committal or other appropriate penalty in respect of what is said to have been a grave criminal contempt of court perpetrated by the defendant, Michael John Pelling. The contempt alleged, as we shall explain in greater detail, is the publication by the defendant in a journal called "Contact" and on the internet of a judgment given in private by His Honour Judge Goldstein in proceedings under the Children Act 1989.
- On 30 March 2004 this court (Gage and Silber JJ) granted leave to apply for the defendant's committal pursuant to Civil Procedure Rules ("CPR") Schedule 1 Rules of the Supreme Court ("RSC") Order 52 and made a number of case directions. On 20 May 2004 Collins and Pitchers JJ heard and dismissed an application by the defendant for an order striking out the Attorney General's statement of case for want of compliance with certain procedural requirements. The defendant's complaints on that occasion included such matters as the fact that the Attorney had not used the correct form. The Attorney should have done so, as the court acknowledged. But the court held that the defendant was not remotely prejudiced. On 5 October 2004, two days before the case was listed for substantive argument and disposal, the defendant applied to Keene LJ and Hallett J for a stay or adjournment. He was acting in person and stated that he sought the benefit of legal advice and representation. The court granted legal aid and a representation order for leading and junior counsel but directed that the solicitors and counsel to be instructed should be the same as those instructed for the defendant in other extant contempt proceedings entitled Matin v Ali. The grant of legal assistance made an adjournment of the substantive proceedings inevitable. In fact the defendant had other reasons for seeking an adjournment. One was that the case should await the outcome of his petition for leave to appeal to the House of Lords in another matter to which we will refer later. The court considered that if that stood alone it would not justify an adjournment. Since, however, the case was going off anyway so that the defendant might obtain legal assistance, the court directed that the proceedings be stayed until determination of the defendant's petition by their Lordships' House and of any subsequent appeal if the petition were allowed. They granted both parties liberty to apply in the event that their Lordships' decision on the petition was delayed beyond November 2004. Amongst other directions the court also set aside an order which had been made at the hearing on 30 March 2004 by which it had been provided that no report of these proceedings should contain any information calculated or likely to identify the defendant's son Alexander, who had been the subject of proceedings under the Children Act 1989. The son had already been identified in a judgment of the Court of Appeal delivered on 1 July 2004.
- The petition to the House of Lords was dismissed on 18 October 2004. The Attorney's application came before us for substantive disposal on 8 February 2005. The defendant chose to address us in person, not by counsel. However he was assisted by a solicitor from Messrs Kingsley Napley (pursuant, presumably, to the order made on 5 October 2004). The solicitor made no oral submissions.
- There are a number of preliminary matters which we should explain before addressing the relevant facts and law.
APPLICATION FOR RECUSAL OF LAWS LJ
- First, at the outset the defendant applied for an order that Lord Justice Laws should recuse himself from the case. He stated that he could have no confidence in Laws LJ as a judge. Before that argument was developed at any length, however, the defendant submitted that the court should adjourn the proceedings so that he might apply to another judge, or another constitution of the court, for a determination of the question whether Laws LJ should stand down and take no further part in the case. If Laws LJ decided the question, albeit jointly with Pitchford J, Laws LJ would be the judge of his own partiality or impartiality; so that such a decision by us could not itself be impartial. We refused that application. There is no doubt (as we are acutely aware) that for any judge to have to decide whether he or she is actually or apparently biased in proceedings before him is an uncomfortable and unsatisfactory state of affairs. But to adjourn the case for another judge to decide the question is likely to be much more injurious to the doing of justice and, so far as we know, has never been the practice. If it were the practice, it would mean that proceedings would be liable to adjournment and thus delay in every case where an application for a judge's recusal was made, save no doubt where the judge indicated that he would indeed recuse himself. In particular the court's process would be open to manipulation and contrived delay at the hands of disaffected litigants. It is of course elementary that where an application for a judge's recusal is refused but should have been allowed, the party complaining, if ultimately he loses the case, may appeal or seek permission to appeal on the ground of bias by the judge.
- We refused the defendant's substantive application for Laws LJ's recusal. The defendant sought permission to appeal that refusal and an adjournment to seek permission from the House of Lords. We refused both applications. We stated that we would give our reasons in due course when we delivered judgment, and this we now do. The first argument put forward by the defendant concerned the listing of the case. It had been anticipated that Pill LJ would preside at the hearing, as was known to the defendant. There was a late change in the constitution of the court so that Laws LJ, instead of Pill LJ, would sit with Pitchford J to hear the application. The defendant called for an explanation. He said that the listing officer should be summoned to the witness box to explain the position. He said that he smelled corruption. He said that he (in fact he said "we": we are not sure to whom the plural referred) believed that a judge – Laws LJ – had been selected "who would favour the government and favour secrecy".
- It is convenient in describing this submission to refer also to the defendant's last point put forward to persuade the court that Laws LJ should recuse himself. That concerned a piece which appeared last year in the periodical Private Eye. Its author strongly disapproved of a recent judgment which Laws LJ had delivered, sought to associate it with certain cases in which he had been involved as First Common Law Treasury Counsel, and suggested that as a judge he would tend to favour the causes of government. The piece is written in a characteristically racy style. The defendant submitted that Laws LJ's reputation is one of "riding with the government and being a friend of secrecy".
- The defendant's other points were related to two occasions on which he had appeared before Laws LJ whilst sitting as a single judge of the Court of Appeal, when Laws LJ had refused him permission to appeal against decisions of the Divisional Court. The first of these concerned Laws LJ's refusal of permission to appeal against an order made by Otton LJ and Smedley J on 9 June 2000. On that occasion the court dismissed an application by the defendant for leave under RSC Order 52 to commit HHJ Goldstein, Mr James Matthews of the Treasury Solicitor's Department, Sir Anthony Hammond (then Treasury Solicitor) and others for criminal contempt of court. The defendant's case was in part to the effect that Judge Goldstein and the others had unlawfully deployed the transcripts of private family proceedings to discredit him in the course of judicial review proceedings which he had launched. More particularly it was said that the government, assisted by Judge Goldstein and the Treasury Solicitor's Department, had illegally obtained and made use of the very judgment which is the subject matter of these present proceedings. They deployed it before the European Court of Human Rights at Strasbourg. As we have indicated, this judgment had been given in private in family proceedings. The government had in fact sought and been given leave to disclose it to the Strasbourg court. The defendant's accusation of criminal contempt was that the copy filed at Strasbourg had been faxed to the relevant government lawyers at an earlier date.
- Otton LJ, in a judgment with which Smedley J agreed, dismissed the defendant's application for leave to commit the persons he named. On 22 September 2000 Laws LJ refused permission to appeal against that order. The defendant has two complaints about Laws LJ's conduct of his application for permission to appeal. The first is that Laws LJ read out a judgment prepared before he had heard his argument. The second is that Laws LJ departed from that text only to observe that the defendant's submissions amounted to a "tirade of abuse against the judiciary".
- We may describe the second occasion complained of by the defendant when Laws LJ refused him permission to appeal against a decision of the Divisional Court much more shortly. The defendant had launched an application for leave to seek orders quashing a rule of court and practice direction as being unlawful and ultra vires. The provisions in question concerned the conduct of possession proceedings in the county court in private. The Divisional Court refused his application. He sought permission to appeal, in relation only to the practice direction. Laws LJ refused it. The defendant submits that this demonstrates that Laws LJ cares nothing for open justice.
- Underlying all of the defendant's argument upon his application that Laws LJ should recuse himself, and much else of what he has said and written in the course of these and other proceedings, is an ingrained belief on his part that the judges (and other public office-holders) serially conspire to cover up each other's shortcomings and are ready knowingly to deploy false reasoning to that end. He believes also that there is a culture of secrecy, exemplified by the conduct of family proceedings and the delivery of judgment in such cases in private, which judges, including Laws LJ, are committed to defend. We are depressingly conscious of the fact that we are quite unable to persuade the defendant that there is no such conspiracy and no such culture; yet that is undoubtedly the true state of affairs. Procedural law and practice generally treat private or secret proceedings as exceptional, though there are some areas (notably cases involving minors) where the current judgment is that, in the service of perfectly legitimate interests, they are better heard in private. As for judicial conspiracy, appeal reports disclose plain instances where a judge is roundly criticised, albeit, rightly, in courteous language, where he or she is shown to have fallen short of standards which the judiciary ought to uphold. But as we have said, the defendant will not be persuaded of any of this.
- There is no substance in any of the defendant's specific points. His argument about the listing of the case is born of his obsessive and unreal preconceptions about the conduct of judges. In the absence of any proper ground whatever being laid to generate any objective concern about the matter, we consider it would be wrong in principle to make any enquiry or enter into any discussion as to the change of constitution, let alone summon the listing officer to the witness box. Laws LJ's preparation in advance of a note for use in giving judgment on the defendant's application for permission to appeal against the order of Otton LJ and Smedley J has no sinister connotation. It is a commonplace for judges to make such a note on an entirely provisional basis, so as to facilitate an expeditious adjudication of the case. But it is indeed provisional. The note is very likely to be departed from when judgment is actually given. Any reference in it to the conclusion to be arrived at (and there may be no such reference) may be entirely reversed once the argument is heard. As for the use of the phrase "tirade of abuse against the judiciary", there is no transcript of the hearing, but in the journal Contact the defendant quoted the submissions he made. They were indeed a tirade of abuse against the judiciary, as Laws LJ described them. Laws LJ's refusal of permission to appeal against the other judgment of the Divisional Court, concerning the procedure for possession proceedings in the county court, demonstrates only that Laws LJ saw no legal error in the court's decision. The piece in Private Eye is merely scurrilous.
INTERLOCUTORY ORDERS SOUGHT BY THE ATTORNEY GENERAL
- Another preliminary matter was raised on 8 February 2005. It was submitted by Mr Caldecott QC for the Attorney General that we should give certain directions at the outset, to the effect (we summarise) that while the judgment of Judge Goldstein, the subject of the Attorney's application, would inevitably be referred to in the course of the hearing and judgment, none of the detail of its content should be published in the course of argument or otherwise in open court; nor should the website address or addresses where, thanks to the defendant's acts complained of, the judgment might be found on the internet. We made the orders sought and later (for reasons we will give) made certain amendments to them. A very considerable part of the first day of the hearing was taken up with the defendant's submissions in response to this interlocutory application. In advancing them he put forward a good deal of argument upon which, as he acknowledged, he wished also to rely in response to the committal application itself. For this reason, and because the merits of the interlocutory orders sought by the Attorney can only be understood in light of the whole facts of the case, it is convenient to postpone our reasons for making the orders until we have explained the history of the matter.
THE DEFENDANT'S DEPARTURE FROM THE HEARING
- The Attorney's substantive application was supported by an affirmation of 11 March 2004 made by Mr Asker Husain of the Law Officers' Legal Secretariat and two affidavits of Mr Philip Golding of the Department of Constitutional Affairs sworn on the 16 March 2004 and 1 November 2004. Mr Husain's affirmation summarises the history of the matter and exhibits the relevant issue of Contact (No 5) and some other documents. Mr Golding's affidavits describe the steps he took to access Judge Goldstein's judgment on the internet. At the close of Mr Caldecott's submissions, after the midday adjournment on the second day of the hearing, the defendant applied for leave to cross-examine Mr Husain and Mr Golding. More accurately, he asserted a right to do so. He said he was entitled at common law to cross-examine his accusers in what were in truth criminal proceedings against him.
- Before the coming into force of the CPR the procedure for hearing such applications as this, brought by the Attorney General for committal for contempt, was provided by RSC Order 52. At present this procedure is preserved by Schedule 1 to the CPR, no new procedure having yet been evolved. There is also a Practice Direction supplemental to RSC Order 52 which provides that "[w]ritten evidence in support of or in opposition to a committal application must be given by affidavit". This reflects the long-standing practice on such applications. Although, as we certainly accept, these applications are in the nature of criminal process, so far as we know the law has never acknowledged any automatic right in a defendant to cross-examine the Attorney's deponents. Equally it goes without saying that the court has a discretion to allow cross-examination, and would certainly do so if justice required it: more particularly, if there were any relevant issue of fact which was disputed by the defendant or whose elucidation by cross-examination might assist the defendant's case.
- In these circumstances we enquired of the defendant to what issues his cross-examination of Mr Husain and Mr Golding might go. He replied that he believed he could elicit facts which would be favourable to his case. Pressed to indicate what these facts might be, he declined in terms to say anything more as to the basis of his proposed cross-examination. He chose to stand on what he stated was his common law right to cross-examine.
- There was no dispute as to the relevant facts of the case. The defendant's publication of Judge Goldstein's judgment, the extent of the publication, and the fact that it was intentional were all clearly admitted by the defendant. So far as the court could see, there were no facts requiring any further elucidation. The defendant entirely declined to enlighten us as to the basis on which he desired to cross-examine Mr Husain and Mr Golding. In those circumstances we discerned no perceptible reason why the court should allow the witnesses to be cross-examined. We refused the defendant permission to do so. The defendant immediately announced his intention of quitting the proceedings; but on the wise advice of the solicitor who was assisting him, he sought a short adjournment to consider his position. This we readily granted. However when we returned to court the defendant indicated that he would take no further part in the case, and left the court.
- In those circumstances we are obliged to deal with the substantive application without having heard any oral argument by the defendant in opposition. However, we have a considerable body of written material earlier submitted by him, and as we have said his submissions made to resist Mr Caldecott's application for interlocutory orders travelled over ground which is relevant to the substantive case.
- As we have said the acts said to constitute criminal contempt upon which the Attorney General relies are the publication by the defendant, in a journal called "Contact" and on the internet, of a judgment of His Honour Judge Goldstein given in private in proceedings under the Children Act 1989. The judgment was delivered at the Bow County Court on 21 August 1996. The proceedings consisted in an application by the defendant for a residence order in respect of his son Alexander pursuant to s.8 of the Act of 1989, and a cross-application for a like order by the mother. The publication of the judgment took place in the issue of Contact for April 2003, No 5, and appears under the heading "the judgment that Dame Elizabeth Butler-Sloss and the European Court of Justice did not want you to see". Contact is described as the "East London Fathers Journal". The defendant is the editor. On page 6 of Contact (No 5) under the heading "Dr Pelling publicly pronounces judgment", this appears, plainly written by the defendant:
"Now that the Human Rights Act 1998 is in force in England, Dr Pelling has decided to do what the English courts forbade in 1996 and Strasbourg forbade in 2001: to publicly pronounce his County Court Residence Judgment of August 1996. After all, Article 6(1), as now enacted by the Human Rights Act, does say, without qualification, that 'judgment shall be pronounced publicly'. So if the court won't do it then the citizen must be free to do it himself. So now the whole world can read the judgment via the Internet… and we are also producing it in this issue of CONTACT."
There is no doubt, as Mr Golding's affidavits testify, that anyone with a basic knowledge of website search facilities would be able to locate Judge Goldstein's judgment on the internet without difficulty.
- The defendant's son Michael was born on 20 November 1990, so was twelve years old at the time of the publication: fourteen now. Judge Goldstein's judgment contains details of sensitive matters relating to the boy, including substantial extracts from a welfare officer's report which contained descriptions of both parents' attitudes to the child and to each other.
- We should indicate for completeness that on 15 January 2003, the defendant made a further application under the Children Act for a joint residence order relating to Michael. He sought a hearing of that application in open court. That was rejected by Bennett J on 2 July 2003. The joint residence application proceeded in private and was dismissed. The defendant appealed against the refusal to allow a public hearing. That was dismissed by the Court of Appeal in a public judgment given on 1 July 2004. We shall have to refer further to this decision. At this stage it is necessary only to note that the Court of Appeal identified the defendant's son by name. Hence, as we have said, this court's rescission of the direction made on 30 March 2004 to protect the child's anonymity. It was the defendant's petition for leave to appeal to the House of Lords against the Court of Appeal's decision of 1 July 2004 that figured in the directions given by Keene LJ and Hallett J on 5 October 2004, and which as we have indicated was dismissed by their Lordships on 18 October 2004.
- There is an important history of attempts by the defendant through litigation to have the residence proceedings heard in open court and not in private. He made an application in the county court to that effect many months before the case was heard and judgment delivered. That application was refused by Judge Goldstein on 14 March 1996. The defendant's appeal against that refusal, brought with leave given by Judge Goldstein, was dismissed by the Court of Appeal (Butler-Sloss, Peter Gibson and Thorpe LJJ) on 20 June 1996. The House of Lords dismissed the defendant's petition for leave to appeal against the Court of Appeal's decision on 19 December 1996. By a judgment given on 24 April 2001 the European Court of Human Rights rejected the defendant's claim that these municipal decisions constituted a violation of his right under Article 6 of the European Convention on Human Rights ("ECHR") to a "fair and public hearing" in the determination of his civil rights and obligations.
- We should give some account of the Court of Appeal decision, and also that of the Strasbourg court, because they serve to focus the issues which are live in the application before us: not least by their clear demarcation of concerns which greatly provoke the defendant but which, in truth, have already been authoritatively decided so that it is no part of our duty to revisit them. In dismissing the defendant's application to have the residence proceedings heard in open court Judge Goldstein had relied on Rule 4.16(7) of the Family Proceedings Rules 1991, which applied to the substantive cross-applications before him. It provides:
"Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers".
In the Court of Appeal Butler-Sloss LJ (as she then was) said:
"The appellant does not suggest that r 4.16(7) is ultra vires the Act… What is its effect?… The appellant… suggests to us that the default position, as he describes it, if no application is made to hear the case in public, is to hear it in chambers but that the judge ought to exercise his discretion in each case to come to the inevitable conclusion that all cases should be heard in public. He set out a number of arguments in support of hearing child cases in public, including the right of the public to know what is going on, criticism of secret justice, the dangers of hearing cases in private without the scrutiny of the public and the press, the inability of litigants in person to get experience in conducting child cases, or to find out what the judge is like.
In support of his arguments he has relied upon a line of cases which set out the importance of open justice in the courts and in particular upon the decision in Scott v Scott  AC 417. In that case the House of Lords considered the jurisdiction to hear a nullity suit in camera. The principle of the open administration of justice was clearly and trenchantly asserted in the speeches (see, for instance, Lord Shaw of Dunfermline at 476 et seq). Viscount Haldane LC said at 437:
'While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or lunatic.'
The appellant recognised the long-established procedure in wardship and sought to distinguish the hearing of wardship cases from all other children cases. He is not, in my view, able to sustain that distinction. The paramount duty expressed by Viscount Haldane is now found in s 1 of the Children Act 1989 in words very similar to the previous Guardianship of Minors Acts, that 'the welfare of the child shall be the court's paramount consideration'. Further both Sir Stephen Brown P in Oxfordshire County Council v M  Fam 151,  1 FLR 195, and Lord Jauncey of Tullychettle in Re L (Police Investigation: Privilege)  1 FLR 731, referred to the non-adversarial character of Children Act proceedings which are akin to wardship proceedings."
- Concurring in Butler-Sloss LJ's reasons for dismissing the defendant's appeal, Peter Gibson LJ noted that all of their Lordships in Scott v Scott were agreed that there were exceptions to the principle of public hearings, "and wardship cases were specifically mentioned as constituting one such exception". He continued:
"I accept the Official Solicitor's submission that for this purpose proceedings under the Children Act 1989 are analogous to wardship proceedings."
Thorpe LJ agreed with both the other judgments. Addressing the conviction held by the defendant and others that child cases should be adjudicated in open court, he was at pains to emphasise "that matters of practice and procedure in the family justice system are the subject of constant interdisciplinary review", and gave chapter and verse. He concluded:
"… I entirely share my Lady's view that if there is to be a change in practice it should be preceded by the most careful consideration of the outcome of consultation and should be achieved by the legislative processes that alone can introduce uniformity throughout the family justice system."
- We should add that in dismissing the defendant's appeal the Court of Appeal directed that no report or discussion of these proceedings shall reveal the name, address or school or include any particulars calculated to lead to the identification of the child concerned in the proceedings. The Attorney General does not rely on any breach of this direction by the defendant as itself constituting contempt of court. The importance of the direction, Mr Caldecott submits, is that it underlines the plain treatment of the residence proceedings in the county court as properly to be held in private.
- As we have said the House of Lords dismissed the defendant's petition for leave to appeal against the Court of Appeal's decision on 19 December 1996. By his subsequent application to the European Court of Human Rights (which was heard and determined along with that of another applicant raising a similar complaint) the defendant asserted violations of ECHR Articles 6 and 10. As is well known Article 6(1) provides:
"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 interests 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."
Article 10 provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
- The European Court of Human Rights held (by a majority of 5 to 2) that the decision to conduct and give judgment in the residence proceedings in private involved no violation of Article 6, and (unanimously) that no separate examination of the complaint under Article 10 was necessary. As we shall show, that latter finding is of some importance given certain submissions based on Article 10 which the defendant advanced in opposition to the Attorney's application for interlocutory orders. Dealing with the defendant's specific complaint of the domestic courts' decision that judgment in the residence proceedings should not be given in public, the majority in the Strasbourg court said this:
"45. The Court recalls its long-standing case-law that the form of publicity given under the domestic law to a judgment must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Art 6(1)…
46. The Court further recalls its above finding that, in view of the type of issues requiring to be examined in cases concerning the residence of children, the domestic authorities were justified in conducting these proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice. It agrees with the Government that to pronounce the judgment in public would, to a large extent, frustrate these aims.
48. Having regard to the nature of the proceedings and the form of publicity applied by the national law, the Court considers that a literal interpretation of the terms of Art 6(1) concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of Art 6(1), which is to secure a fair hearing…
49. The Court thus concludes that the Convention did not require making available to the general public the residence judgments in the present cases, and that there has been no violation of Art 6(1) in this respect."
In relation to Article 10 the court said:
"52. The Court refers to its above findings in connection with Art 6(1) of the Convention that it was justifiable, in order to protect the privacy of the children and parties and to avoid prejudicing the interests of justice, to hold the residence proceedings in chambers and to limit the extent to which the County Courts' judgments were made available to the general public. In the light of these findings, the Court does not find it necessary to examine the complaint under Art 10 separately."
- It is convenient at this stage also to refer to the decision of the Court of Appeal of 1 July 2004. In his application for a joint residence order, lodged in the High Court on 15 January 2003, the defendant had included an application for a "[d]eclaration of incompatibility of section 97(2) Children Act 1989 with Articles 6 and 10 ECHR". S.97 provides in part:
"(2) No person shall publish any material which is intended, or likely, to identify – (a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act… may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in such proceedings…
(4) The court or the Lord Chancellor may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of subsection (2) to such extent as may be specified in the order…"
Breach of the section is made a summary offence by ss.(6), punishable with a fine. The court referred to its earlier decision of 20 June 1996 and the decision of the Strasbourg court of 24 April 2001, as well as the judgment of Bennett J under appeal. The defendant's submissions were rejected, and as we have said his appeal was dismissed. It is with respect worth setting out these paragraphs from the judgment of the court, delivered by Thorpe LJ:
"50. Standing back from Dr Pelling's detailed contentions, it is important to emphasise that the questions which he debates are essentially policy questions. Whilst we have concluded that the procedure ordained by the 1991 rules and 1989 Act are essentially convention compliant, it does not follow that the rival procedures for which Dr Pelling contends would not equally be convention compliant. During the course of his judgment in Re PB [20 June 1996]… Thorpe LJ drew attention to the opportunity, if not the obligation, of the government to complete the process of public consultation on this debate. More detailed reference to this uncompleted consultation exercise was made during the course of his judgment in Clibbery v Allan  1 AER 865 at -…
51. In her recent administrative directions issued following the judgment of the Court of Appeal, Criminal Division, in R v Cannings  EWCA Crim 1,  1 AER 725 Dame Elizabeth Butler-Sloss P stated:
'It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of "secrecy" in the family justice system, a broader approach to making judgments public may be desirable.'
REASONS FOR MAKING THE INTERLOCUTORY ORDERS SOUGHT BY THE ATTORNEY GENERAL: THE DEFENDANT'S CROSS APPLICATION
- It is convenient now to return to the application made by the Attorney General on the first day of the hearing for orders prohibiting reference being made in the course of these proceedings to the detail of Judge Goldstein's judgment of 21 August 1996 or to the website address or addresses where, thanks to the defendant's acts complained of, the judgment might be found on the internet. The Attorney's concern was that the defendant should not be allowed to deploy his rights of defence in these proceedings as a platform on which to publish Judge Goldstein's judgment. If he were allowed to do so, that would entirely stultify the earlier decisions which we have described, from the county court to the European Court of Human Rights, by which it was held that he was not entitled to publicity of the judgment. There was no perceptible basis on which public disclosure in the course of these proceedings, such as the Attorney sought to prevent, might be necessary in the interests of justice to ensure that the defendant had a fair trial. As we have said, the defendant's publication of Judge Goldstein's judgment, the extent of the publication, and the fact that it was intentional were all clearly admitted by him.
- The Attorney's application, to prohibit reference to the detail of the judgment and the website address or addresses where it might be found, was patently a modest one. In our judgment it was the least that was required to safeguard, in the context of the hearing before us, the integrity (in particular) of the Court of Appeal's decision of 20 June 1996, to which we have referred in some detail. But the defendant submitted that the order sought would constitute a gross violation of his common law rights as a defendant in what are effectively criminal proceedings. He claimed to be entitled to have read out in open court not only the affirmation of Mr Husain and the affidavits of Mr Golding, but also the text of Contact (no 5), exhibited to Mr Husain's affirmation, which contains the whole of Judge Goldstein's judgment. He stated further that he required all the other exhibits to the affirmation and affidavits, and the parties' skeleton arguments and annexures thereto, to be made available for public inspection within one week after the hearing. He said the common law entitled him to have all these things done. It will be apparent that these claims by the defendant went far beyond the scope of argument which might be advanced to resist the Attorney's application. They amounted to free-standing applications on the defendant's part.
- The defendant advanced a wide range of submissions to support the stance he was taking, both as regards the Attorney's application and his own. He referred in particular to Scott v Scott, which as we have shown was cited by Butler-Sloss LJ in the Court of Appeal on 20 June 1996 and to which we must refer further in dealing with the Attorney General's substantive case. Among other materials, the defendant referred to the statement by Lord Diplock in AG v Leveller that in criminal cases evidence communicated to the court is communicated publicly. He relied on an observation of Millett LJ as he then was in Re R (A Minor) (Wardship: Restrictions on Publication) to the effect that the wardship court has no power to protect its wards from adverse publicity which does not threaten the effective working of the court's jurisdiction. He submitted that because the judgment is already in the public domain (put there by him) there is in it no quality of confidentiality left to protect. He advanced an argument to the effect that the Attorney General was himself in contempt of court in deploying Judge Goldstein's judgment in these proceedings (by having it exhibited to Mr Husain's affirmation). The argument was that Rule 4.23 of the Family Proceedings Rules 1991 prohibits (we summarise) disclosure of documents relating to Children Act proceedings, save to certain named parties, without leave of the judge or district judge; and the Attorney has no leave to disclose the judgment to this court. In accusing the Attorney of contempt, the defendant referred to a decision of Munby J, Re B (A Child) (Disclosure), in which it was held that disclosure of a Children Act judgment by the Solicitor General to the Minister for Children was a contempt of court.
- We should make it clear that the defendant's claim was that such a contempt arose on the Attorney's own assertion that Rule 4.23 was a valid procedural rule; in fact for his part, the defendant regarded it (alongside a number of other subordinate legislative measures) as ultra vires because it was repugnant to basic common law principles of public justice. One of the other subordinate measures which he castigated was that contained in RSC Order 52 Rule 6(1)(a), empowering the court hearing an application for an order of committal to sit in private "where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant". The defendant excoriated this provision as a "monstrous denial" of a defendant's right to defend himself in open court, being "typically what is found in totalitarian states".
- The defendant also relied on ECHR Article 10(1), both to resist the Attorney's application and to mount his own. We have already set out the text of Article 10. The defendant claimed that Article 10(1) entitled him to have the full public rehearsal of the material in the case which he demanded, and submitted that the court should call on Mr Caldecott to put forward any justification for the curtailment of his right of free expression on which the Attorney General relied under Article 10(2).
- The defendant's arguments in response to the Attorney's application and in support of his own cross-claims occupied a very considerable part of the first day of the hearing. This would have been a disproportionate use of court time in a case where no more than three days had been allowed for the whole proceedings, but for the fact that (as we have indicated) the defendant in this context put forward a good deal of argument upon which he wished also to rely in response to the committal application itself: principally, his central claim that the common law, assisted by provisions of the ECHR incorporated into domestic law by the Human Rights Act 1998, entitled him to publish Judge Goldstein's judgment and no rule of court or other measure could lawfully prevent him from doing so.
- But this was a claim that was already concluded against the defendant by the Court of Appeal's decision of 20 June 1996, to which we have already extensively referred, and so far as concerns the Convention jurisprudence, the Strasbourg decision of 24 April 2001. In all these circumstances it was not open to the defendant in these proceedings to assert an entitlement to publish Judge Goldstein's judgment. That position is if anything bolstered by the Court of Appeal's later judgment in Pelling v Bruce-Williams. The defendant's application to put the whole of the judgment onto the public record in these proceedings is thus entirely misconceived, and his opposition to the Attorney's application hopelessly undercut.
- We should deal with certain specific points. The submission that Judge Goldstein's judgment is already in the public domain is true to an extent: the defendant has himself wrongfully published it as we have described. But the extent of the publication is a matter of degree. There is a qualitative difference between the limited publication perpetrated by the defendant and the judgment's being put on the record in these public contempt proceedings. The argument that by force of Rule 4.23 the Attorney General is in contempt is ingenious but fanciful. The judgment was actually supplied, by post, by the defendant to the Attorney. The Attorney has done no more than make it an exhibit to the court in proceedings of a kind which he has a special responsibility to bring if he judges the public interest so requires. It is inconceivable that Rule 4.23 should be read as inhibiting the proper execution of that process. As for ECHR Article 10, we should say that the defendant was particularly at pains to insist that we should require the Attorney to put forward any Article 10(2) defence to his claim to be entitled to publish. We declined to do so. The European Court of Human Rights has already held that Article 10 does not avail this claim of the defendant. In Pelling v Bruce-Williams the Court of Appeal stated:
"38. It is perhaps unfortunate that the judgment [sc. in Strasbourg] does not elaborate upon the rejection of Dr Pelling's art 10 complaint. Implicitly the court's findings in relation to art 6 were dispositive of his complaint under art 10. We would accept Mr Cobb's contention that, whilst Dr Pelling's rights under art 10(1) are engaged, the conduct of the proceedings in chambers are properly to be regarded as 'necessary in a democratic society… for the protection of the rights… of others, namely the rights of the respondent and the child under art 8 of the convention."
- As we have said we allowed the Attorney's application and made the orders sought. We dismissed the defendant's cross-claims. It is convenient to state at this stage that the position taken by the defendant on these issues was not merely misconceived – so much, we consider, must in truth have been plain to him: he is highly intelligent, has studied all the relevant legal texts with care, and we are sure has had no difficulty in understanding them. More than this: it became increasingly clear that his purpose was to manipulate these proceedings, if he could, into a vehicle for achieving what he knew he was forbidden to do, namely to put Judge Goldstein's judgment fair and square in the public domain. This was strikingly reinforced when, on the second day, after the orders sought by the Attorney General had been made, the defendant read out what those in court thought was a prohibited website address – only to be told by the defendant, perfectly accurately, that it was in fact an e-mail address through which the websites might be ascertained. This was cynical manipulation of a high order. We amended the orders to encompass the e-mail addresses.
THE SUBSTANTIVE ISSUES
- Now we may turn to the substance of the Attorney General's application. The fact that the law did not and does not allow the defendant to publish Judge Goldstein's judgment does not of itself entail the proposition that he commits a contempt of court by doing so. The question in the case is whether in truth a contempt is thereby committed. The defendant submits that the undisputed facts disclose no offence of contempt of court within any category known to the law.
- We may preface our discussion of the Attorney's argument with some elementary propositions. (1) The essence of criminal contempt consists in an intentional interference with the administration of justice: see for example the speeches of Lord Nicholls and Lord Hoffmann in AG v Punch Ltd. (2) The burden of proof lies on the Attorney General to prove the case to the criminal standard. (3) Because the proceedings are criminal in nature, certainty is especially important in this branch of the law. Mr Caldecott was himself rightly at pains to emphasise this aspect. He referred to the decision of the Strasbourg Court in Sunday Times v United Kingdom. In discussing the requirement that any interference with free speech must, if it is to be justified under ECHR Article 10(2), be "prescribed by law", the court expressed itself in terms which we have no doubt are equally applicable to the ascertainment of a contempt of court at common law:
"[A] norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable."
- Taking propositions (1) and (3) together, it seemed to us at first that the Attorney's case faced an immediate difficulty. As Mr Caldecott acknowledged without cavil, there can be no suggestion that the defendant's publication in April 2003 of Judge Goldstein's judgment delivered in August 1996 interfered, or might have interfered, with the fair disposal of the residence proceedings which Judge Goldstein was called on to decide. Nor could it have interfered with the fair disposal of the later proceedings launched by the defendant's further application under the Children Act on 15 January 2003. (And we may add, there was no question of the case being advanced in reliance on the strict liability rule provided for by the Contempt of Court Act 1981.) The reality is that the basis for the cloak of privacy in cases such as this is the protection of the interests of the minor in question, not the adjudication without interference of the issues arising for decision.
- In all these circumstances, in what sense might the publication be said to have interfered with the administration of justice (proposition (1))? Is the case put on the basis of some esoteric species of interference – at the risk of offending the requirement of certainty (proposition 3)? Is it based on interference with the administration of justice at all? If not, the case is yet further from the paradigm instance of criminal contempt, so that, even if there is material in the books which seems to establish such a species of contempt, we should consider whether it might be repudiated (if precedent allowed) as a serious departure from the certainty principle.
- The Attorney's answer to these questions is first based on Scott v Scott which, ironically enough, is put forward by the defendant as the very bastion of the common law's insistence on open justice; and it is certainly right that that principle is asserted in Scott in ringing terms. But here is the Attorney's argument. Scott demonstrates that in the field of cases concerning children – at that time, specifically the wardship jurisdiction – the protection of the interests of the minor in question is no more nor less than a function of the administration of justice. Protecting the former ipso facto protects the latter. It is said that this is made plain by the passage from Lord Haldane's speech cited by Butler-Sloss LJ in Re PB, the Court of Appeal's decision of 20 June 1996. We have already cited this passage. We repeat for convenience this shorter extract from what was said by Lord Haldane:
"[T]he exceptions [sc. to the rule of open justice] are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction."
- Here, the doing of justice is equated with the protection of the interests of the ward or lunatic. Precisely because the ward is in the care of the court, it is an affront to justice that a judgment or proceeding should be publicised which, in the interests of the child, the court has advisedly determined should be kept private. The speeches of their Lordships in Scott v Scott all contained extensive reasons and ranged over a broad field; having looked through all of them with some care, we have seen nothing to displace this view of the law relating to private process in wardship cases. If that is right, an unauthorised violation of this rule of privacy is as surely an affront to the administration of justice as is any more conventional instance. We should refer at this stage to part of the discussion by Scarman LJ as he then was of Scott v Scott in In re F:
"In Scott v Scott the House of Lords recognised that the court had power to hear wardship proceedings in private. If it exercised the power, the court was entitled, but not bound, to treat as a contempt the publication of information relating to the proceedings and to punish the offender. The reason for the power was not the risk that publicity might endanger a fair hearing. Such a risk did not in 1913, and does not now, really, arise in wardship proceedings, the adjudicator being a judge: also, contested questions of fact are usually very few. The true reason was the mischief likely to be done to the ward if familial proceedings, parental in character though conducted by a judge, should be exposed to the glare of publicity. But, as was also clearly stated in Scott v Scott…, the common law did not permit the cloak of secrecy to remain wrapped round the proceedings longer than was necessary in the interests of the ward."
- If we may say so, this marches precisely with Lord Haldane's reasoning. Scarman LJ proceeded to illustrate "the common law in action" in this field of contempt by reference to two cases decided at first instance in which it was held that publication of the content of wardship proceedings, against the direction of the judge prohibiting publication, was a contempt of court: In re Martindale and In re De Beaujeu's Application. Scarman LJ proceeded to elaborate the overall position as follows:
"The following propositions relating to wardship proceedings… emerge: (1) that the courts had the power, but were not obliged, to sit in private; (2) that, if a court exercised the power, it was a contempt of court to publish an account of the proceedings unless the judge expressly authorised publication; (3) that the terms, or effect, of the court's order might be published, unless the court expressly forbade it; (4) that it was no defence to say that you did not intend to commit a contempt of court."
In In re F the court held that contempt by publication of information relating to wardship proceedings would only be made out if it were proved against the defendant that he knew or must be taken to have known that what he published was prohibited by law. That issue does not arise here; the defendant in these proceedings is, at the very least, clearly to be taken as having known that his publication of Judge Goldstein's judgment was prohibited.
- The court's decision in In re F was informed by the terms of s.12 of the Administration of Justice Act 1960 ("the AJA"), to which we will come shortly. It is convenient first to notice the defendant's response to the clear learning that publication of wardship proceedings was on the face of it contemptuous at common law. He submitted that for historical reasons, which he deployed with a great deal of scholarship, wardship was in a special category. The development of the family justice system has, to use Mr Caldecott's expression, been fragmented. The High Court possessed an inherent jurisdiction acting as parens patriae; statutory jurisdictions conferred on the county courts and the magistrates' courts supervened. There has by no means been a uniform practice over the years as between open and closed hearings. The defendant points to the fact that county court proceedings concerning the welfare of children between 1886 (when jurisdiction relating to child cases was first conferred on the county court by the Guardianship of Infants Act 1886) and 1960 were typically heard in open court.
- The defendant's argument was (if we may put it in our own words) that even if authority justified the publication of wardship proceedings being treated as contemptuous, that is an anomalous rule and its extension to any other proceedings would offend the overarching principle of public justice. In this case, the relevant proceedings were not conducted under the old wardship jurisdiction, but pursuant to the Children Act. The court should not extend the law of contempt so as to apply to the publication of judgments in such instances.
- In order to address this argument we should introduce the provision made by s.12 of the AJA, as it has been amended inter alia by the Children Act 1989 with effect from 14 October 1991:
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings –
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002;
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section."
- Plainly, s.12(1)(a)(i) of the AJA is a reference in modern language to the historic jurisdiction of the High Court respecting wards of court. It seems entirely clear that its enactment, read with s.12(4), betrayed no intention by Parliament to alter the common law of contempt relating to wardship proceedings. On the face of it s.12(1)(a)(ii) puts Children Act cases on the same footing. It is time to see what the courts have made of s.12 of AJA.
- In In re F Scarman LJ concluded that the purpose of s.12 (which, obviously, he was considering in its form before the current amendments) was to clarify the law, and stated:
"… [S]ection 12 must be interpreted in the light of the pre-existing law. It is not a code of new law, but a clarification of the old."
Scarman LJ's reasoning on the way to this conclusion includes this:
"[S.12] provides that such a publication shall not 'of itself' be a contempt of court except in the cases specified in subsections (1) and (2). Subsection (1) specifies the proceedings which are excepted from the general rule of 'no contempt'. All five exceptions (the first of which is that of proceedings in wardship, adoption, and custody cases) were known to the common law: in each one it would have been a contempt to publish information relating to the proceedings if the court was sitting in private."
He proceeded to describe ss.(4) as "obscure and ambiguous". Having held that the words "of itself" in ss.(1) "need mean no more [in relation to the excepted cases at s.12(1)(a) – (e)] than that there is a contempt in the absence of a defence recognised by law", he adopted this construction of subsection (4):
"… I think it likely that the subsection was enacted to ensure that no one would in future be found guilty of contempt who would not also under the pre-existing law have been found guilty."
Scarman LJ concluded, in contrast to the judge whose decision was there under appeal, "that in this class of case… no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings".
- It is true that Scarman LJ considered this class of contempt to be comparable to other classes where disobedience to an order of the court was involved, as opposed to contempt grounded upon interference with the course of justice. We apprehend that was because, as he put it, "the contempt committed by publication or information relating to wardship proceedings arises only because the court has decided, either specifically or in accordance with its usual practice, to sit in private". In our judgment however, with great deference, this species of contempt is in truth an instance of interference with the course of justice. As we have shown that is the rationale of Lord Haldane's reasoning in Scott v Scott, with which Scarman LJ's own earlier observations in In re F, which we have already set out, are wholly consonant. Moreover it is plainly not a condition of contempt by publication that any express order of the court directing a private hearing should have been made.
- In discussing In re F we have not referred to the other judgments, of Lord Denning MR and Geoffrey Lane LJ as he then was. With respect we need only say that the court was unanimous in concluding that acts falling within any of the categories specified in AJA s.12(1) would indeed constitute contempt, subject to any general defence that might be available: in particular a defendant must be proved to have known that publication was prohibited if he was to be held in contempt.
- We should refer also to the decision of their Lordships' House in P v Liverpool Daily Post Plc in which the only reasoned speech, with which all their other Lordships agreed, was that of Lord Bridge. The case concerned an application by the plaintiff, who was detained in a medical hospital pursuant to a restriction order under what was by then s.41 of the Mental Health Act 1983, for an injunction to restrain publication of the fact that he was applying to the Mental Health Review Tribunal ("the MHRT") for his discharge under the material provisions of the Mental Health Act, and of any details about the application. Their Lordships had to consider whether any prospective publication might be contemptuous having regard to the terms of s.12(1)(b) of the AJA. It was held that there would be no contempt in publishing the bare fact that a named patient had applied to the MHRT for his discharge, on the date, time and place at which the proceedings had been or would be heard. However the details of the proceedings would or might be a different matter. Lord Bridge said this:
"There are undoubted difficulties in construing [s.12], but certain effects of the section are clear. The general rule which the section declares is that it is not a contempt to publish information relating to proceedings in court merely because the proceedings are heard in private. But the exceptions to that rule expressed in paragraph (a) to (d) of subsection (1) must indicate that it is, at least prima facie, a contempt to publish information relating to the proceedings in the cases indicated."
After citing Lord Haldane in Scott v Scott Lord Bridge continued:
"Thus the exceptions in paragraph (a) are all proceedings requiring for their just disposal the safeguard of privacy which proceedings in wardship always attracted. So also are the proceedings under Part VIII of the Act of 1959, now Part VII of the Act of 1983, which are concerned with the same subject matter as was formally under the jurisdiction of the judges in lunacy acting on behalf of the Crown as parens patriae."
Lord Bridge proceeded to express his agreement with Lord Scarman's observations (to which we have already referred) in In re F as to the effect of the words "of itself" in s.12(1) and as to the proper construction of s.12(4).
- The version of s.12(1)(a) in force at the times when In re F and P v Liverpool Daily Post were respectively decided was as follows:
"where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant".
It is apparent that this formulation is not limited to wardship proceedings as such, but covers also other forms of proceedings relating to children. It is entirely impossible to read the judgments in In re F and P – not least Lord Bridge's statement in P that "it is, at least prima facie, a contempt to publish information relating to the proceedings in the cases indicated [sc. in the subparagraphs of s.12(1)]" – as in some way confining the species of contempt recognised in s.12(1)(a) to wardship proceedings properly so called. With effect from 14 October 1991 s.12(1) has included, as we have shown, express reference to proceedings under the Children Act 1989: s.12(1)(a)(ii). Here too it is plainly impossible, in our judgment, to read s.12(1)(a) as if only ss.(1)(a)(i) (where the reference is to wardship proceedings) recognised a category of contempt of court and not also (ii) and (iii). It seems to us that the case comes full circle to what was said by Butler-Sloss LJ in Re PB, although she was not dealing with contempt. We have already set it out:
"The appellant recognised the long-established procedure in wardship and sought to distinguish the hearing of wardship cases from all other children cases. He is not, in our view, able to sustain that distinction."
- At one stage we were troubled by the question whether s.12 of the AJA created new categories of contempt. In relation to the Children Act it could not be said that the provision made by s.12(1)(a)(ii) reflected earlier learning as to the scope of contempt. There was no earlier learning: the amendment in s.12(1)(a)(ii) was introduced by the Children Act itself. But it is, we think, clear that the amendment did no more than assimilate the new Children Act jurisdiction with its predecessors for the purpose of contempt. There is nothing strange or surprising in such a legislative process.
- All these considerations conclude the case in the Attorney General's favour on the issue of the defendant's guilt of contempt of court. The species of contempt in question involves deliberate interference with the course of justice. The relevant law passes the test of legal certainty.
- We have considered whether, by the date of the defendant's publication of Judge Goldstein's judgment, so much time had gone by since its delivery that the interests of justice no longer required the judgment's protection by the law of contempt. We have concluded that the defendant cannot be acquitted on that ground. His son was, as we have said, only 12 at the time of publication.
- We would therefore find the defendant guilty of contempt of court. There remains the question of sentence.
- Mr Caldecott, we now proceed to the question of sentence. Do you have anything to say before I call on Dr Pelling to address us, so far as he wishes to do so?
- MR CALDECOTT: My Lord, I think it is a question really as to whether your Lordship would want any legal assistance on the options. Your Lordships have the facts fully on board and I do not propose to say anything about them either way, unless asked.
- LORD JUSTICE LAWS: My understanding of the legal position is that the sentencing disposals available in this class of case are very much more limited than in a conventional criminal case and there are really only three, tell me if I am wrong: there is either a fine, a sentence of imprisonment or a sentence of imprisonment suspended on such terms as the court may fix; is that correct?
- MR CALDECOTT: That is correct, my Lord.
- LORD JUSTICE LAWS: And in addition, my understanding -- and I think it is shared by my Lord and indeed it was my Lord that indicated it to me -- is that if an immediate sentence of imprisonment is passed there is no provision for release on licence or anything of that kind. The defendant serves the terms fixed by the court.
- MR CALDECOTT: My Lord, that I think has in fact changed.
- LORD JUSTICE LAWS: I want to be very sure about that before we go any further.
- MR CALDECOTT: There are one or two principles on the suspension issue which, if your Lordships were interested in it, may be worth mentioning.
- LORD JUSTICE LAWS: Please do so.
- MR CALDECOTT: Can I firstly hand in the one practice note from the Court of Appeal that, although in a different context, may provide some help. My Lord, can I just mention one or two matters? I am not suggesting for a moment that the maximum is engaged here, but just so your Lordships know, there is a maximum sentence of two years' imprisonment prescribed by section 14 of the Contempt of Court Act.
- LORD JUSTICE LAWS: The 1981 Act, I remember that.
- MR CALDECOTT: I am not suggesting it is in that area, but I thought I should mention it. Secondly, the issue of suspension and postponement is procedurally dealt with by RSC Order 52, rule 7 as applied by Schedule 1 of the CPR, and that is set out at page 1837 of volume 1. If your Lordships have the original authorities bundle, you may not have, but if you had it I think your Lordships will find the old order 52, which is what we want, is in tab 19 of the Attorney's authorities. My Lord, then look at the rule and the note to it because the rule cannot itself confer the jurisdiction.
- LORD JUSTICE LAWS: 19 of the Attorney General's authorities.
- MR CALDECOTT: My junior has a copy.
- LORD JUSTICE LAWS: My Lord has a copy and we can share.
- MR CALDECOTT: Let me hand it up.
- LORD JUSTICE LAWS: That would be helpful.
- MR CALDECOTT: My Lord, at the very bottom of page 1837, this is order 52, rule 7 as it was, now applied by Schedule 1 to the CPR:
"The court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify."
- Then if one looks at the note SC 52.7.1 headed "Suspended Committal Order", it makes the obvious point that the rule itself cannot confer jurisdiction. But there is a decision of the Court of Appeal called Lee v Walker which clearly says that there is such a jurisdiction. I can give your Lordships a copy --
- LORD JUSTICE LAWS: It cannot be in contention that there is a power to suspend.
- MR CALDECOTT: No. Then there is a case which we would submit your Lordships should not follow on the facts of this case which says that he can in theory have an indefinite power of suspension, that is a case called Griffin v Griffin, but it was in fact a case where the indefinite period of suspension was attached to an indefinite order. It had therefore a specific enforcement purpose and we would suggest that that would not be appropriate in a case of this sort. Then in the third paragraph:
"The court's power to suspend an order of committal to prison for contempt of court derives from this rule, and is not affected [and this is important] by the need for 'exceptional circumstances' before a suspended sentence can be passed in a criminal case. Section 22 of the Powers of Criminal Courts Act 1973 ( ... as amended). If a committal order is made for a fixed period but the sentence is suspended subject to the contemnor's compliance with a condition, and it is subsequently found that he has not complied with it, the power of the court is not limited to declaring that the committal order is now operative; it retains a discretion to do whatever is just in the circumstances."
- Then it refers to the right to activate it, and then of course rather special questions of applying to purge contempts and so on in the last paragraph.
- LORD JUSTICE LAWS: Yes, but with respect to the editor that does not tell us a great deal. There is clearly no rule that a first time contemnor gets a suspended sentence rather than an immediate sentence, there is nothing of that kind.
- MR CALDECOTT: Your Lordship may find a little help, however, from a Court of Appeal case called Hale v Tanner. I should stress that this has very different facts in the sense that it was a breach of a non-molestation order. But there is some general guidance in the judgment of Hale LJ. I think, if I may, she gives a list of observations starting at page 2380. But I would suggest that 2381, starting at number 3, is where your Lordships may get some help.
- LORD JUSTICE LAWS: Thank you.
- MR CALDECOTT: " ... if imprisonment is appropriate, the length of the committal shall be decided without reference to whether or not it is to be suspended".
- LORD JUSTICE LAWS: I see.
- MR CALDECOTT: "A longer period of committal is not justified because its sting is removed by virtue of its suspension ... Fourthly, the length of the committal has to depend upon the court's objectives. There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity."
- LORD JUSTICE LAWS: In a case where the contempt consists of interference with the court of justice, one would substitute for the disobedience to its order disapproval of that fact.
- MR CALDECOTT: It is the infringement of the privacy essentially:
"Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.
Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases [the is the point we have already referred to]. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court's order."
- However, of course, I only observe that this is the case where I was trying to ensure continued compliance with the specific order. But it plainly has possible relevance to the facts of this case:
"Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.
Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break-up of an intimate relationship in which emotions run high and people behave in silly ways [again, more appropriate to non-molestation orders] ...
Tenthly, it will usually be desirable for the court to explain very briefly why it has made the choices that it has made in the particular case before it ..."
- Again, I need not say anything more about that. I should perhaps just draw your Lordship's attention to what is said below letter A at the top of the next page:
"It is rare, when one looks at the reported cases, to find sentences of six months' imprisonment in the context of much more serious breaches than took place in this case. One tends to find, even in cases of violence causing quite significant injury, a shorter sentence."
- Of course, I recognise that this is really a different class of case.
- LORD JUSTICE LAWS: Some of what is said there by Hale LJ is really, with respect, no more than drawing attention to the requirement that the sentence must be proportionate to the offence.
- MR CALDECOTT: I am very conscious that your Lordship will be familiar with all those general principles. They have been conveniently set out there.
- LORD JUSTICE LAWS: Thank you.
- MR CALDECOTT: It may assist Dr Pelling in his submissions. My Lord, the other source of what may be useful material is in Arlidge and Eady, which I hope your Lordships have.
- LORD JUSTICE LAWS: Yes, we have been provided with it.
- MR CALDECOTT: Could I make it clear -- I just draw attention to it -- but make it clear that the Attorney General does not suggest that this principle does apply. At 14-8 there is a citation of a case called R v Montgomery. Which at (1) says:
"An immediate term of imprisonment is the only appropriate sentence to impose on a person who interferes with administration of justice unless the circumstances are wholly exceptional."
- However, I think it important to note that that is dealing with the rather special case of interference with witnesses in a criminal trial. We would not suggest that there is any rigid principle applying to the facts of this case either way.
- LORD JUSTICE LAWS: The facts there related to a case of Owen. That was a case of interference with witnesses, was it?
- MR CALDECOTT: I have to say, I have taken it from Montgomery which appears to pray in aid Owen. This appears to be a list of guidance given in Montgomery. I have to say I have not read Owen so I cannot tell your Lordship the background of that. But it seems to derive from Montgomery. I just want to find the question that was put to me. The question that your Lordship put to me I think is dealt with at letter M on page 854. The position I think your Lordship was putting to me in a sense is that set out in 1428 and 1429. But 1430 appears to suggest the position now is that contemnors are in no different position to any other offender. This is in relation to release after serving a certain amount of the sentence.
- LORD JUSTICE LAWS: They will earn early release if their sentences are for more than two months, but in a case of a sentence of longer than 12 months --
- MR CALDECOTT: -- only one half has to be served.
- LORD JUSTICE LAWS: If it is two months or less, the person still serves the term fixed, does he?
- MR CALDECOTT: That seems to be the effect of section 23.
- LORD JUSTICE LAWS: I am sorry, we need to pursue this because we cannot sentence this man on a basis that is not entirely clear. I am not suggesting what disposal we will take, but we must know what the exact law is. We need to get hold of the Crime (Sentences) Act 1997.
- MR CALDECOTT: My Lord, my understanding is that over two months your early release days come into effect. But if the sentence is less than two months, they do not.
- LORD JUSTICE LAWS: Can we be absolutely sure that that is the position.
- MR CALDECOTT: What I will do is while your Lordship hears other submissions, I will make sure that a copy of the section is made available.
- LORD JUSTICE LAWS: So be it.
- MR CALDECOTT: I am told that there is some later legislation in relation to this. I have certainly one supplement here which has no reference to -- there is a reference to a case called -- your Lordship has a supplement?
- LORD JUSTICE LAWS: I have a first and a second.
- MR CALDECOTT: I have a third. I think it might be helpful -- there is a decision of the Court of Appeal which is plainly relevant, called McKnight v Lawton(?). Can I hand up the supplement?
- LORD JUSTICE LAWS: Yes.
- MR CALDECOTT: 14-30(a).
- LORD JUSTICE LAWS: Thank you.
- MR CALDECOTT: It may be in the second one as well. They are cumulative supplements.
- LORD JUSTICE LAWS: Of course.
- MR CALDECOTT: My Lord, it may be a different number.
- LORD JUSTICE LAWS: I have it now.
"It was pointed out by the Court of Appeal in McKnight  ... that there is no provision for time spent on remand by alleged contemnors to be deducted ... "
- This is if they have been remanded in custody before sentence.
- MR CALDECOTT: Yes.
- LORD JUSTICE LAWS: That is another matter. That does not arise here.
- MR CALDECOTT: There is nothing else there, but if there is new legislation we need to look. My Lord, can I mention one other matter to the court which I want to be open about, and that is the question of costs. It will be obvious to your Lordship that the Attorney General will be applying for his costs. However, on previous occasions Dr Pelling has stated to the court that he is a man of very limited means. The Attorney General is in a rather different position to ordinary parties, and plainly a liability for costs is a material factor to what penalty is to be imposed, and it is a factor which has to be considered. Subject -- and I stress very much subject -- to what Dr Pelling tells the court about his means now, about which I know nothing, the Attorney General would at least consider an order for costs which he would not enforce without leave of the court, bearing in mind that, on any view, the costs are going to be a substantial five figure sum.
- There are both practical reasons about pursuing enforcement if Dr Pelling is a person of very limited means, but there are also obviously important reasons why the order for costs should be made in a case of this kind. But, my Lord, I think it is fair and right that Dr Pelling should know where he stands in relation to the enforcement for an order for costs and the court should know the position. So I at least canvas that as a possibility that the Attorney General will consider. I have no direct instructions about this, save that the Attorney General will have no objection to such an order if your Lordships thought it appropriate.
- LORD JUSTICE LAWS: Thank you. There is one matter which we think it is right to raise with you to see whether you have any instructions about it, Mr Caldecott. At the substantive hearing Dr Pelling made some submissions as to the effect of -- maybe more accurately, the absence of any effect -- of this publication on the child in question. Do you have any instructions at all about that?
- MR CALDECOTT: My Lord, I think I made it clear in argument that it is no part of the Attorney General's case that this did in fact have any adverse effect on the child. Therefore, any aggravating effect that that might have had, if it did take place, is not present.
- LORD JUSTICE LAWS: Thank you, very much.
- MR CALDECOTT: I will get that section.
- LORD JUSTICE LAWS: Dr Pelling, this is of course your opportunity to say what you would like in mitigation of sentence.
- DEFENDANT: I would first like to respond to this guidance that the Attorney General has purported to give your Lordships. I notice he is using Arlidge and Eady from 1999. I did check out the legislation myself about the remission of sentences, early release, and all that. I cannot remember the exact piece of legislation. I expected everybody to know it. I think it may be 2003 -- one of the Criminal Justice Acts -- but it is quite clear that any sentence up to 12 months you are automatically released half way.
- LORD JUSTICE LAWS: Any sentence over 12 months.
- DEFENDANT: Up to 12 months. Any sentence 12 months or less.
- LORD JUSTICE LAWS: That is contradictory to what is said in the text that we have looked at, which says the opposite. This was paragraph 14-30 of Arlidge and Eady, was it not? The passage to which we were referred says:
"By section 23 of the Crime (Sentences) Act 1997 contemnors were brought into line with other prisoners in respect of the time they have to serve. They will earn early release if their sentences are for more than 2 months, but in the case of a sentence of longer than 12 months, the position now is that only one half has to be served."
- The implication I would have thought is that if the sentence is for two months or less, the full time fixed is served, but that is what I want to be absolutely assured about.
- DEFENDANT: All this is out of date. My solicitor has just mentioned to me the Criminal Justice Act 2003, and I think that is what I did look up. My understanding is now that any sentence not exceeding 12 months, you are entitled to automatic release.
- LORD JUSTICE LAWS: We will certainly verify the position absolutely before making any order, you may rest assured.
- DEFENDANT: But of course naturally I wish to oppose a sentence of imprisonment. It seems to me very unfair to rely on R v Montgomery because that was a very serious contempt of court -- interfering with witnesses.
- LORD JUSTICE LAWS: He is not relying on it as a precedent for what should be done here.
- DEFENDANT: I am glad to hear that. Let us forget about that. I notice that even the chapter from Arlidge and Eady says on page 845, " ... imprisonment has always been a sanction in cases of contempt. It should be regarded, however, as a matter of last resort". I shall be making submissions that it is not appropriate in this case.
- Then Mr Caldecott has relied a great deal on Hale v Tanner, and again, so far as this has any relevance, I will also read what I think Mr Caldecott did not read to you at the foot of page 238O:
" ... these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe ... a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion."
- And this is indeed the first occasion. But notwithstanding that Mr Caldecott is leading counsel and knows very well his duty to bring all relevant cases before the court, I find it very strange that he omits to mention the guidance in Re G, which is actually a case in his bundle of authorities. I was going to refer to that later on in my submissions on mitigation, but I think it might be appropriate to deal with it now. Re G (Contempt: Committal)  2 FLR 58, and that is I think item number 7 in Mr Caldecott's bundle -- 8 in his bundle of authorities. Do your Lordships have it?
- LORD JUSTICE LAWS: Yes, we do.
- DEFENDANT: This case is very, very much in point because it does concern publication in contempt or allegedly in contempt of matters in family proceedings, which is precisely what I am found guilty of today. So this is much more relevant than Hale v Tanner.
- LORD JUSTICE LAWS: You show us what you would like us to see.
- DEFENDANT: I think the nub of it is page 65. I will read out from paragraph 20. The President says:
"There is a plain distinction between a case where a party to proceedings is alleged to have been in breach of an order of the court made in the proceedings and one where a party has done something which, although not in breach of a specific order, is nevertheless for one reason or another a contempt of court [that is exactly this situation]. In family cases where the court has made a prohibited steps order or granted a non-molestation order, a breach of the order will be a direct contempt and the procedure is well known. In the present case, the suspended committal order was not made because the father was in breach of a specific court order.
 Where a party may be in contempt of court by virtue of a breach of the general rules of confidentiality [which is exactly this case today], for example by publicising a welfare report, but there has been no breach of a specific court order, there may be more than one way for the court to deal with it. In some cases, the breach may be obvious. It may be admitted. It may have been intentional and serious or alternatively may not be seriously culpable. If the breach is admitted, a warning together, if necessary, with a specific undertaking or injunction in terms to prevent a recurrence of the breach may be sufficient."
- Incidentally, that is another remedy which Mr Caldecott remitted by way of sentence. It is open to you to simply impose an injunction or even to accept an undertaking from me. But I will address you more on that in due course.
"Circumstances vary widely, but a committal order, even if suspended, is a last resort normally reserved for serious, intentional and, in most cases, repeated contempt of court which has been established by due process (Danchevsky v Danchevsky  Fam 17 and Ansah v Ansah  Fam 138."
- LORD JUSTICE LAWS: Thank you. That is a helpful reference.
- DEFENDANT: Before I do go on, my solicitor has handed me a note. Apparently the relevant legislation is Criminal Justice Act 2003, sections 181 to 195.
- LORD JUSTICE LAWS: Is it in force? I know that not all of that statute is yet in force. Your solicitor is nodding.
- DEFENDANT: My solicitor advises me it is in force.
- LORD JUSTICE LAWS: Section 181 to what?
- DEFENDANT: 195.
- LORD JUSTICE LAWS: Dr Pelling, you must of course take your own course and we will look at those provisions very carefully, but while they are being got out, it would certainly be helpful to us and it might be helpful to you if you were prepared to tell us what you would wish to say in mitigation as to the facts of the matter.
- DEFENDANT: I am coming to that. I must say that, apparently from what my solicitor advises me, this is not all that helpful to me. It seems to have changed completely and it is even less helpful than I thought. But that will be looked into today.
- LORD JUSTICE LAWS: We shall ascertain what it provides.
- DEFENDANT: Could I briefly correct two errors of record when you were reading out your judgement.
- LORD JUSTICE LAWS: Certainly.
- DEFENDANT: When you first referred to the rules of the Supreme Court you said, by mistake, order 42 instead of order 52.
- LORD JUSTICE LAWS: The text has order 52. I am sorry if I was guilty of a slip of the tongue.
- DEFENDANT: It was not a slip of the tongue when you referred to 15 January 1996 when Judge Goldstein refused my application to have the residence case heard in open court.
- LORD JUSTICE LAWS: Is that date wrong?
- DEFENDANT: Yes, I made the application in January 1996. It was adjudicated on with judgment given on 29 March 1996.
- LORD JUSTICE LAWS: I see.
- DEFENDANT: That could be verified for example because it is referred to in the Strasbourg judgment. It is definitely 29 March.
- LORD JUSTICE LAWS: Thank you, very much. That will be corrected.
- MR CALDECOTT: I have just noticed that I have a date of 14 March in our skeleton argument.
- DEFENDANT: I think the 14 March was the hearing of the application and then Judge Goldstein reserved judgment, and I believe it was handed down on 29 March.
- LORD JUSTICE LAWS: I am just trying to find it in the text which you may not have yet. Yes, I see, it is paragraph 22. That application was refused by Judge Goldstein on 15 January 1996. That is the wrong date. The right date is which date in March?
- DEFENDANT: I believe it is 29 March 1996.
- LORD JUSTICE LAWS: You have a different date in March, have you, Mr Caldecott?
- MR CALDECOTT: I am just checking the ECHR decision. I have 14 March in my skeleton.
- LORD JUSTICE LAWS: That could be checked out and I will certainly correct it. Thank you for pointing it out.
- DEFENDANT: If I may say so, my Lord, on the recusal question which much exercised your mind, I decided not to take that to the House of Lords. I have filed an interlocutory petition in the House of Lords in time on 21 February, but I did not raise the recusal point and I do not propose to --
- LORD JUSTICE LAWS: It is courteous of you to inform the court. Of course, you have every right to petition the House of Lords as you choose.
- DEFENDANT: I am sure your Lordship knows that there is nothing personal in these attacks on judges. I am simply trying to protect my position as best I can.
- LORD JUSTICE LAWS: Thank you.
- DEFENDANT: While obviously I cannot, as it were, address your judgment, there is one thing which I do think I ought to say. I have to say I somewhat resent you accusing me of adducing arguments on 8 April that were not only misconceived, but it was plain to me that they were misconceived. That is not fair, my Lord. Those arguments were sincere and genuine. It is also true that although you have tried to rely on those interlocutory submissions as a statement of my case, those interlocutory submissions were very, very far from the complete case -- very far indeed, and a lot of the points in your judgment I had anticipated; for example the reliance on Viscount Haldane, and I would have addressed you at great length on the case, but clearly we cannot go into that any further today.
- So let me make my mitigation points.
- LORD JUSTICE LAWS: Yes, please.
- DEFENDANT: First I would like to say that I accept your judgment as the definitive statement of the law in this area of contempt, subject only of course to the possibility of a higher court changing things or Parliament itself intervening. As such, I do give you an apology for getting the law wrong, and I give an assurance to the court that until such time as the law may be changed, I will not further publish any Children Act 1989 judgments.
- LORD JUSTICE LAWS: If I may say so, Dr Pelling, that is important and I just wish to make a note of it. Just to make sure I have it right, the assurance you are giving --
- DEFENDANT: That I will not further publish any further Children Act 1989 judgments; or indeed I will extend that to publication of prohibited information about Children Act cases generally. You have given a very clear ruling on this about the scope of common law and section 12 of the Administration of Justice Act. I am bound by that and I accept it. But the plea that I am making is that in the publication I edited, I was acting under a mistake of law. I submit that, giving you this apology and assurance and because I acted under a mistake of law -- a sincere and genuine mistake of law -- no punishment is necessary on this case other than an order to pay or contribute to the Attorney General's costs. Later on in these submissions I will refer to earlier cases about the way the courts have dealt with this kind of publication contempt. It certainly is possible for your Lordships to make no order on the motion other than an order to pay costs. There is historical precedent for that. But I will come to that later, and I need to explain the mistake of law.
- This was not a flagrant contempt where, knowing what the law was, I deliberately published in defiance of it. Of course I knew what the conventional view of the law was, but I had very good reasons, as I understood it, for saying that the conventional view was wrong. I took the view that it is strongly arguable that the common law had never made it a contempt, save in wardship. There were indeed no reported cases whatsoever prior to 1960 in relation to this contempt under statutory jurisdiction concerning children, and notwithstanding section 12 of the AJA, there is no doubt that Re F makes it quite clear that, if there is a contempt, it must be found in the common law prior to 1960. I do not think anybody is disputing that. But there are simply no reported cases whatsoever and I was very struck by that. Even in wardship there are very, very few cases. There is essentially only one, which is Martindale. The other one, De Beaujeu, it was held there was no contempt because you could publish the order of the court. So that does not go to the heart of the matter.
- Scott v Scott carefully analysed exceptions to the open justice principle, and while including wardship, notably omitted any mention of statutory jurisdiction under the Guardianship of Infants Act 1886. There had been such statutory jurisdiction since Talfourd's Act of 1839 for 74 years. One would have expected the House of Lords to refer to it if there was an exception like wardship.
- I know the judgment you have given relies on Butler-Sloss LJ in 1996, but I would have addressed you at great length on that, why that was not correct. It was an obiter remark anyway for the purposes of that case. But we need not go into that now.
- Now, my doubts about this common law position long predated the 2003 publication of Contact (No 5). I would not like your Lordships to think that this was some sort of post-publication ad hoc defence that I was raising; not at all. I had come to the conclusion that there was something very strange and anomalous and perhaps quite wrong about the accepted view of the common law as early as 1998, and I would like to hand up some correspondence with the Official Solicitor on the matter. The Attorney General has seen this. I showed it to him at the earlier hearing. I only have one copy left which I need to refer to. I think probably it is best, my Lords, if you simply read the three letters.
- LORD JUSTICE LAWS: If you would like to sit down, we will do so (pause). Yes, thank you, very much.
- DEFENDANT: So there you see I was raising the sort of points that I wanted to raise in this case as early as 1998. Incidentally, the last paragraph 4 of the letter of 6 September, I did not carry out what I threatened to do, to give similar advice to litigants in person. That was deliberately provocative to try and force the Official Solicitor to answer because I know very well that people like that are often reluctant to give answers, and as you can see the answer he gave was totally unsatisfactory and did not address the point at all. All Mr Hinchcliffe for the Official Solicitor relied on was section 12 of the Administration of Justice Act and the amendments which made it specifically refer to the Children Act. But of course my point was that that cannot possibly affect the common law prior to 1960. You still have to look at that. So that was not an answer to the point I was raising.
- So, I took a responsible approach having had my doubts about the conventional view of the common law by trying --
- LORD JUSTICE LAWS: Dr Pelling, there is a noise outside court, it is not fair to you or us that the proceedings should continue with that interruption (pause).
- DEFENDANT: Thank you.
- LORD JUSTICE LAWS: Yes, all right.
- DEFENDANT: So I took the responsible approach and did not assume without further question my interpretation of the law was right. The relevant authorities the Official Solicitor refused to engage in any sensible discussion. Indeed I think your own judgment, or the judgment of your Lordship, shows it is not a particularly easy area of the law. It is a very strange kind of contempt. Even you yourself made the very point, or you asked perhaps a rhetorical question on the 9 February: is it a contempt sui generis? And perhaps it is. It is a rather strange kind of contempt.
- But anyway, that was not the only mistake of law that I am now seen to have made because, whatever the position of common law, of course I was strongly relying, saying it was arguable, that the Human Rights Act 1998 had changed the law by enacting Article 6 into the domestic law under the Convention and that judgment should be pronounced publicly. Now, as at April 2003, when I published, there had been no decision by the courts of England and Wales on this point. The Strasbourg decision had come out in April 2001. But I say that was manifestly defective in relation to publicly pronounced judgment. It was strongly arguable that no self-respecting English court should follow it. Indeed, under the Human Rights Act, not a binding decision anyway. The English courts only have to take the Strasbourg decision into account, they are not bound by precedent.
- I addressed the defects of the Strasbourg judgment at length in my House of Lords petition, which I provided in bundle A. Indeed, although you have not mentioned it in your judgment, there are serious criticisms which have not been answered ever about that judgment. The European Court of Human Rights reversed its own case law, because in Campbell and Fell v United Kingdom it held expressly that the judgment should be pronounced publicly flawed (inaudible). Article 6 was not subject to any implied limitation. When we came to 2001, they do make it subject to implied limitation.
- Secondly, the ECHR reversed its own case law in Werner and Szücs  which had held that this clause of Article 6(1) was not complied with by members of the public being able to apply to domestic courts for leave to have a copy of the relevant judgment. That is where the Strasbourg Court in 2001 came down and said: well, it is sufficient compliance with judgments to be pronounced publicly that members of the public can apply to the domestic court for a copy of the judgment. But that this been expressly ruled out in the previous case (inaudible). All that we set out in the House of Lords petition, so I think you have either read it or you could refer to it if you wish to.
- Thirdly, the European Court had reversed its own case law going right back to Le Compte, Van Leuven & De Meyere v Belgium  which had held that Article 6(1) requires public pronouncement of judgments by a tribunal competent to deal with both the law and the merits of the case in question. That is a principle that was often referred to in subsequent cases. You had to have a public pronounced judgment by a tribunal competent to deal with both law and merits. For the first time ever, Strasbourg departed from that in the 2001 decision. So on three counts I say they were reversing their own case law. The point that you quoted about the form of publicity from cases like Axen v Germany, which of course are relied on in the Strasbourg Court of 2001, I have addressed that in great detail in the House of Lords petition. What they were doing was a sleight of hand -- the form of publicity -- it was not whether or not they were public; whether it would be, for example, anybody can get it from a public registry; whether it has to be read out in open court, and so on. Also, it referred to appellate proceedings where the Strasbourg Court has made a difference. But it is not the first instance court where the court is dealing with law and merits. The appellate courts have been viewed in a different light for the purposes of Article 6. So I say that was simply a fudge and it should not be followed.
- But anyway, all I am saying this for is to show that there were good reasons to say in April 2003 that the Strasbourg decision was defective, should not be followed by the English courts. I took the view that I could rely on Article 6. The judgment should be pronounced publicly now the Human Rights Act was in force. In the earlier 1996 decision in Re PB, of course the Human Rights Act was not in force and any comments about it were purely obiter. I know Butler-Sloss LJ said what we do is Convention compliant, but that was a purely obiter remark. The Convention was not at that time enforceable. In domestic courts, the Human Rights Act had not been passed.
- So there is a second mistake of law, if you like, because now it has come to the test: well, your judgment is definitive and you have thrown out that argument. But in fact it was rejected in the Pelling v Bruce-Williams Court of Appeal case (1 July 2004), but that judgment took place after the publication. Indeed, the first instance decision by Bennett J again took place, as you said, in July 2003. That was post the publication. At that time there was simply no English decision. You might say to me: well, why did you not wait to see, for example, what happened with Bennett J? Well, I could not wait, my Lord, because there was a journalistic imperative in force in relation to the lead article of the Matin matter, which happened in January 2003. If I was going to write about that, it had to be done quickly. The motive in concluding the 1996 judgment was really to seek or provoke a clarification of the law in an area of constitutional importance. Open justice is a constitutional matter, that was clearly stated by Lord Shaw of Dunfermline in Scott v Scott.
- My motive is quite clear from the brief introduction on page 11 of Contact. I will just read what I wrote there.
"In the public interest and by virtue of Article 6(1) of the European Convention on Human Rights, CONTACT and its Editor now publish the Children Act Residence Judgment of His Honour Judge Goldstein of 21 August 1996 in Pelling v Bruce-Williams 94JS0001 (Bow County Court). The ECHR has no powers to punish for contempt but if her Ladyship the President, or the Attorney-General or Official Solicitor, wish to take contempt proceedings then we have a very simple defence: Article 6(1) states unequivocally and without qualification that 'Judgment shall be pronounced publicly' and that is now the law of England by virtue of the Human Rights Act 1998. Further, if proceedings are brought, then the Act is retrospective."
- There was a considerable element here of deliberately provoking a test case. I admit that. I think I was justified in doing that because the law was not clear. It did need to be clarified. We did need to get a definitive judgment, which we now have from your Lordships. If I had sought to hide things I would not have sent a copy of this Contact 5 to both the Attorney General and the Official Solicitor. The Attorney General apparently received his in early May and publication was 30 April, and the copy that they served on me or sent to me has a date stamp received 12 May. So that was probably the one I sent directly to them once it was published.
- So your judgment has now fulfilled my objective of obtaining a definitive clarification of the law. Given my motivation and the state of the law in early 2003, I submit that there is no basis or need for any punishment beyond reflection of the result in the costs. No significant harm has been done to the administration of justice given the peculiar background of this whole situation. It was a one-off test case and I would say it was beneficial in that it has led to a definitive judgment.
- It would be a different matter, of course, if I had, sort of, made a policy of publishing judgment after judgment, or if I were to continue publishing judgments, but I have said quite clearly I accept your judgment; it was a test case and, although there may have been some small harm to the administration -- and I will address that because the way the harm has to be worked out according to Mr Caldecott's submissions to you on 9 February, and which you have accepted -- you have really got to look at the interests of the child and the effect on the child. That comes into it and I will address you on that in due course.
- So the actual harm seems to me minimal even if one were to contemplate other people copying me. Or could it affect the administration of justice in other Children Act cases? No, it could not. This is a one-off test case, and the advice I would give to anybody now is, given your judgment and until such time as the law may be changed, then nobody should publish the judgments. We cannot do that now.
- Another factor to take into account in mitigation is the change of policy that has already taken place in the Family Division with regard to publication of judgments. Mr Caldecott in his submission on 9 February made a great deal about policy, and I think in some ways he was confusing two meanings of policy: the public policy that the courts lay down in making judgments and there is the policy of law makers, Parliament, politicians -- maybe policy of Family Division judges, but not when sitting in court. But anyway, be that as it may, Mr Caldecott ignored the important change in policy that is apparently now taking place and which your Lordships did refer to in your judgment today. I want to go back to the case of Re B (a Child) (Disclosure)  2 FLR in my bundle D at 34, Munby J's judgment, where Munby J quotes at paragraph 104 from the President's new administrative directions which apparently date from 28 January 2004.
- LORD JUSTICE LAWS: Bundle B?
- DEFENDANT: Bundle D in my bundle of authorities.
- LORD JUSTICE LAWS: For some reason only part of my papers have been brought into court.
- DEFENDANT: Paragraph 104, quoting from the President's administrative directions. The part under the heading "Public Judgments", and Munby J quotes this, where the President says:
"It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law ... "
- LORD JUSTICE LAWS: This is the same passage that was quoted by Thorpe LJ --
- DEFENDANT: By yourself.
- LORD JUSTICE LAWS: But that was itself a quotation, was it not -- I think it was quoted in Pelling v Bruce-Williams. Yes, very well.
- DEFENDANT: So the current convention was:
" ... judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of 'secrecy' in the family justice system, a broader approach to making judgments public may be desirable."
- To which Munby J added, "I respectfully, and emphatically, agree". Although the President wants the judgments to be anonymised, I would point out, because section 97 was referred to in your judgment, in its application to the High Court and the county court, that was only effective for cases which commenced after 27 September 1999. There was an amendment. Originally section 97 only applied to the Magistrates' Courts. The Access to Justice Act 1999 amended it to include the High Court and county court, but only for cases commencing under the Children Act after that date. So that section 97 does not apply to the 1996 proceedings and the judgment of Bow County Court in 1996, which is in issue before us.
- LORD JUSTICE LAWS: So be it.
- DEFENDANT: So what I cannot be accused of is violating anonymity under section 97 because it was not in force at the relevant time.
- LORD JUSTICE LAWS: You are not accused of that.
- DEFENDANT: No, but you did refer to it at some length and I was not sure whether you were aware of that. You might think that I have committed a more flagrant attempt because I was violating section 97, but I was not. There is no violation there. Anyway, the point is the change in the climate of opinion and policy, and what the President said is reiterated both by the President and Munby J at the recent hearings before the Parliamentary Constitutional Affairs Committee on the family justice system. In fact, Munby J complained bitterly about the lack of transparency in family courts because, he said, it enabled unjustified and unanswerable criticisms to be made of the system. In his view, if the family courts became open, then everyone could see how fair and just and humane the system actually was. So there does seem to be a change of policy under way here which I would rely on as a mitigation. Even the court's policy on anonymity has been changed later in 2004 after the President's administrative direction, because in my own case in the Court of Appeal, the Pelling v Bruce-Williams case, the Court of Appeal abolished for that court the routine and automatic anonymisation of children cases in the Court of Appeal judgments. Each case now has to be considered on its merits as to whether there is to be any restriction on identities, and many Court of Appeal child case judgments are now published unanonymised. There has been a definite change of practice there which is really due to me raising that point in that case.
- It seems to me the same principle by precedent would have to apply in the lower courts when judgments there are (inaudible). It only applies to judgments in open court. But I see no reason why you would not apply exactly the same principle. The court would have to consider on the merits whether or not there was any necessity for anonymisation. A recent example is the Blunkett v Quinn case. Ryder J in the Family Division gave the judgment in open court. Of course, it is totally unanonymised and there can be no rational basis for treating politicians any differently from the rest of us with regard to publicity of judgments.
- Now, further mitigation points: delay. In sentencing, the court should also take into account the excessive and oppressive delay in this case, caused, I say, entirely by the prosecutor, the Attorney General, which prima facie is a violation of Article 6(1) of the ECHR which says, of course, in the determination of his civil rights and obligations of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent impartial Tribunal established by law. This case has taken a full two years from publication to judgment. That is pretty incredible. It is not within a reasonable time, and I say the blame is almost entirely down to the Attorney General, and the result has been something which is really oppressive because, since I was prosecuted, it has been stressful, although of course you will say I brought it on myself. True I did, but to drag it out up two years is not reasonable. That is oppressive and, in itself, is like a punishment.
- Let us look at the chronology. Is my accusation against the Attorney General fair? Well, the chronology goes like this. On 30 April 2003 Contact 5 was published. On 12 May, or by 12 May, it was received in the Attorney General's office because I saw a receipt stamp with that date. Then the Attorney General waits nearly three months, to 31 July 2003 to write to me a letter which has been put in one of the Attorney General's bundles where he complains that I have published this and I suppose he was asking me to apologise and admit my mistake and so on and so forth, which at that stage I could not do of course because I was taking a point of law, of legal principle. So that was in vacation as well and I was about to take holidays, so they gave me an extension of time to reply. I replied on 30 August explaining that I could not really say anything more about the publication because of the legal view I took of the matter at that time. Well, you would expect in that case the Attorney General to go ahead quickly with his prosecution. But no, he waited until 12 December 2003, that is over three more months -- September, October, November -- three and a half months he waits before actually deciding to issue a summons, and he issued it, moreover, in the Family Division without leave of the court. It was served on me on 17 December 2003. Now, I noticed almost immediately that he had made a very serious mistake in issuing in the Family Division when of course it had to be the Queens Bench Division under RSC order 52, and he had to obtain leave. I issued a summons to deal with that point, asking for it to be struck out on that ground, and the summons was dated 6 January and it was delivered to the Treasury Solicitor's office on 6 January 2004 after the Christmas and New Year break. Once the Attorney General had notice of that summons, he fairly quickly accepted that he had made a fundamental error, and that summons could not proceed in relation to the publication of the Bow County Court judgment. The summons actually combined the other contempt case all in one, which was a very odd thing to do because they were completely disparate proceedings. Why should Mr Matin's case have anything to do with my son's case. But that is what he did and it was completely wrong procedurally. So that added considerable delay.
- Notwithstanding that he conceded very early on in January that he had made a mistake, he then finally gets leave from the court on 30 March 2004 and I was served on 5 April 2004. Then it proceeded to trial in a fairly conventional way. The first trial date was 7 and 8 October, so that is one-and-a-half years after the receipt by the Attorney General of Contact 5. Now, as we know, it was adjourned on 5 October on my own application, but I say that that application was occasioned primarily by the Attorney General's refusal to provide me with adequate research facilities, a violation of Article 6(3)(b) because in a criminal case a defendant must have access to reasonable facilities to prepare his defence. The Attorney General could have helped there. All I wanted was access to the Inns of Court Law Library and some assistance to get some research done. But, no, he would not co-operate. He took a strict line that he was not obliged to, and doubtless that was correct. He was not obliged to as a matter of law, no, but he could have helped and it added to delay. So I had no alternative but to go on legal aid which I did, and the criminal legal aid was granted on 5 October. Your Lordship has made the point in your judgment, although I also applied for a stay because of the House of Lords petition, that that alone would not have been enough for them to have granted the adjournment anyway. It was the legal aid matter that really was decisive there.
- So in the end result we had the trial on 8 and 9 January and the judgment and sentence comes up today -- two years after the offence was committed. It seems to me that is oppressive and it is something your Lordships ought properly to take into account. Such extraordinary delay is also contrary to case law guidelines. I have here a very recent case of R v Sarah Marga(?), and I can hand that up.
- LORD JUSTICE LAWS: If what you are seeking to establish is the general proposition that any process of a criminal nature should be proceeded with expeditiously, we do not need any authority for that because I am sure it is right.
- DEFENDANT: Okay, it is confirmed in this case in column 3, where the Court of Appeal, Criminal Division said:
"In Wilkinson v S  1 WLR 1254 it was held that there is a need for a speedy disposal or a judgment involving a person facing allegations of criminal contempt."
- LORD JUSTICE LAWS: Very well.
- DEFENDANT: The next mitigating factor relates to the child, my son, and the lapse of time. Although of course it does not provide a defence, I think it is a mitigating factor that this publication took place a long time after the actual Bow County Court proceedings in 1996. The publication was 7 years later in 2003. Plainly any supposed harm caused by the publication to my son, Alexander, or anyone else is de minimis or non-existent, and the contempt therefore, in the circumstances, I would say is de minimis because Alexander 7 years later is 12 years old, and the facts in the judgment about the parties and the child's life in 1996, when Alexander was 5, they are all ancient history. They are completely irrelevant to the lives today or in 2003 of the parties and the child. So I put that as a mitigating factor here.
- What does the case authority say about the lapse of time? Well, there was Lord Shaw in Scott v Scott, who said at page 483 in the  AC 417 report. Lord Shaw said:
"But I desire to add this further observation with regard to all of these cases, my Lords, that, when respect has thus been paid to the object of the suit, the rule of publicity may be resumed. I know of no principle which would entitle a Court to compel a ward to remain silent for life in regard to judicial proceedings which occurred during his tutelage ..."
- That was approved by Scarman LJ and Geoffrey Lane LJ in the Re F  case. In particular, Geoffrey Lane LJ said at page 170:
"The embargo on publication of matters disclosed in a private hearing is not necessarily perpetual. Silence should only be enforced for so long as is necessary to protect the interests of those for whose benefit the rule is made: see Lord Shaw of Dunfermline in Scott v Scott  AC 417, 483. Where, for example, what was once a trade secret has become common knowledge, there is no warrant for continuing the ban on the publication of proceedings. Similarly, where all necessity for preserving the confidentiality of information about an infant has with the passage of time disappeared, publication will not be a contempt."
- I would rely on that to make the point to this extent that if there is any necessity for preserving the confidentiality 7 years later, really it is a much diminished necessity and therefore that is a mitigating factor.
- LORD JUSTICE LAWS: Thank you.
- DEFENDANT: Then the court must also consider the effect of any sentence on the child himself, because if the purpose of the contempt law is, according to the Attorney General and I believe now according to your judgment, basically to protect the child's interests, it would be absurd if the sentence caused more and serious damage to the child than the breach. I was going to read something out from Mr Caldecott's submission on 9 February, but given your judgment where you have accepted that basic point that it is to protect the child's interest, that is the purpose. He said the purpose is to protect the child, and publication would undermine the efficacy of sitting in private. It is in the child's interests that it is private. So that has been accepted as the right principle in your judgment.
- What could happen with an adverse sentence today? Well, it will affect my ability to earn a living and contribute to Alexander's maintenance and school fees. It came out in the course of the earlier proceedings that he is now at Eton as a King's Scholar, and I will say something about the payment of the fees because the King's Scholarships do not give you a 100 per cent remission of the fees.
- Why would my ability to earn a living be affected by an adverse sentence? Well, fundamentally because of the particular work I do in the courts as a professional McKenzie Friend and adviser to litigants in person. That does give me a major part of my income and that work has been well spoken of by the Court of Appeal. I would refer to two cases. If I can hand up one copy here. It is only one paragraph I need to refer to. This is the case of Re H where, on my instigation, a very important precedent was set about the right to a McKenzie Friend in family proceedings. I am referred to on account of that in paragraph 12 of this judgment, and it says:
"Dr Pelling is well-known to this court. He is an active campaigner for fathers' rights. He has strong views on the evolution of family law, family policy and family practice. I myself [Thorpe LJ] have quite extensive experience with Dr Pelling in this court, acting as a McKenzie Friend, and although in a sense irrelevant to our conclusions today, I record and have never seen Dr Pelling act other than in an entirely helpful way both to the person he is assisting and to the court itself."
- It goes on. I have been criticised for being allegedly adversarial in the county court. As you can see if you read to the end of the paragraph 12, the Court of Appeal accepted that, in that particular instance, the matter was unavoidably adversarial and I was quite right to be adversarial or to encourage Mr H to be adversarial concerning some very legalistic arguments.
- LORD JUSTICE LAWS: It is a matter for you, we by no means would wish to compel it, are you willing or prepared to give us details of your financial state?
- DEFENDANT: If your Lordships will feel that that would assist you.
- LORD JUSTICE LAWS: On the basis that we should have full information in order to -- whatever the outcome is -- to pass as fair a sentence -- if any sentence passed were to be necessary -- as fair a sentence as necessary. You tell us anything that you would wish to tell us.
- DEFENDANT: I will come to the means in due course.
- LORD JUSTICE LAWS: All right.
- DEFENDANT: So there was that judgment and I was also well spoken of by the Court of appeal in, strangely enough, proceedings to do with Mr Matin in another contempt case of the Attorney General.
- LORD JUSTICE LAWS: Which paragraph?
- DEFENDANT: This is paragraph 13 and 14, my Lord. What happened there was Newman J made a criticism of me in the Queen's Bench Division and I drew the court's attention to it because I was not only that day proposing to be a McKenzie Friend to Mr Matin, but also to be an advocate, and that was allowed by the Court of Appeal. Thorpe LJ said in paragraph 14 --
- LORD JUSTICE LAWS: We have read the paragraph.
- DEFENDANT: Thank you. So they are accepting, as he says, a very valuable service in a number of cases in which litigants in person are for one reason or another prohibited from presenting their own cases. So the trouble is though, a seriously adverse sentence could put a stop to this work I do in the courts as a professional McKenzie Friend. It is mainly, of course, in family proceedings where, even to this day there is not really a that well-established right for a litigant to have a McKenzie Friend. There are still cases where, without any good reason, judges refuse them. It is still regarded legally as a matter for the judge's discretion to allow a McKenzie Friend in family proceedings in chambers. You can predict what will happen, that any time I go to court to assist somebody as a McKenzie Friend, counsel for, as it usually is, the mother, will raise this point and say: we object to Dr Pelling being a McKenzie Friend, he was sentenced to three months' imprisonment for violating the confidentiality of family proceedings. He is not fit to be a McKenzie Friend, and the judge may well accede to that, and this will pretty well wreck the work I do. That would have a seriously adverse effect on my ability to make provision for my son Alexander which is the point. I would not make this point if it did not have that knock-on effect to the child himself.
- Your Lordships may remember that what came out in the course of the hearing on 8 and 9 February was that there had been something of a rift between myself and my son, and that is mentioned in Bennett J's judgment. But I was about to resume contact with him and I told you that a meeting had been arranged for him to visit me on Friday 11 February at the end of the week after what was intended to be the three-day trial. I will hand up -- I am just producing this e-mail correspondence between Alexander and myself to verify -- what I am saying is that we had started communicating again and a visit was at that stage being planned. Alexander says he wants to come at the half term but we should arrange the exact time a bit nearer the occasion of the half-term holiday. So that e-mail correspondence was taking place in January. In due course it was arranged and he did come to see me in Forest Gate for a day on February 11, and that went very well, and really we made up our differences and things have got back to something like a normal father/son relationship, which again your Lordships may consider the effect of the sentence on even the direct relationship with my son because I was rather careful on February 11 to probe gently to find out whether he knew anything about this case. It turned out he does not. He is not aware of this contempt case, and I think it would be rather sad if he is confronted by his fellows at Eton saying: well, there is a report in the press about your father being jailed for contempt for publishing a judgment about you.
- This case has been reported in the press. Mr Aston here is sending his reports to the Scotsman and they have appeared and that is only right and proper, and it is only right and proper that they be reported if there is a serious sentence. Yes, let it be reported, that is what I believe in. But you may wish to take into account that it will be very unsettling for Alexander and possibly it could affect the relations between us.
- But financially, well, what is the financial position? Let me explain my obligations to Alexander first. There is a High Court, Family Division maintenance order. It was actually a consent order from April 1999, and I will hand up a copy, although it is -- I cannot find any other copies.
- LORD JUSTICE LAWS: I am sure it will be sufficient if you tell us about it.
- DEFENDANT: As you can see it is a High Court --
- LORD JUSTICE LAWS: All right then.
- DEFENDANT: What it says on the second page:
"By consent it is ordered that the petitioner [that was myself] do pay to the first respondent [that is the mother] periodic payments for the benefit of the child of the marriage, Michael Alexander Pelling-Bruce, born 20 November 1990, at £200 a month commencing 1 April 1999 and increasing to £250 a month with effect from 1 October 1999 until the ... child attains the age of 18 or ceases full time education."
- LORD JUSTICE LAWS: I see.
- DEFENDANT: So that is the maintenance order which has been substantially complied with, but it has not been fully complied with over the last tax year where I have actually run into difficulties, mainly due to this Attorney General case. It has had an impact on my ability to earn because of the enormous amount of time I have had to spend on the case, and also -- well, I have two employments: one is self-employed as the professional McKenzie Friend to litigants in person, and the other is a kind of sinecure job as a housing association secretary. It is a part-time job in a very small company. No one needs to work more than part-time, but I am the administrator. I am the company secretary there.
- LORD JUSTICE LAWS: Does that generate any income?
- DEFENDANT: It does. About £5,000 per annum. But not last year because other members of the committee became very concerned about the possible outcome of the Attorney General's -- well, there were two cases. One has even now not completely gone by the board. But they were very concerned about the possible effect on the administration of the company if I was actually imprisoned, and although I am still secretary, it is on a very much reduced emolument -- the last tax year only £500, and I was instructed to train somebody else to take over as secretary and that person had to therefore start doing a lot of work they would not be doing, and they were paid an emolument. I hope at the end of all this I will be in a position to say to the company: well, this matter is passed, please pay me my normal emolument, which would go back to £5,000. But it has had an effect and clearly if I were imprisoned, well, it may be the job would go altogether because company secretary is a responsible position. If one is sentenced to prison for criminal offences, it may not be possible to continue in that employment.
- Now, what is the position of Alexander's needs? Well, again I will hand up an e-mail from the mother who is asking me in this e-mail quite recently -- and again I have to say that in talking to her, she also does not appear to know anything about these ongoing proceedings. Incidentally, my Lord, if you are puzzled by why another name appears at the top, that is simply because it was printed on that person's printer. I do not actually have a printer at home.
- LORD JUSTICE LAWS: I see.
- DEFENDANT: So your Lordships have read that. Out of respect to the mother and her personal finances I do not propose to read this out, but you can see there is a difficult position here and she does need my help and I am willing to provide it. But I need to get back into fairly full-time employment and not have these proceedings hanging over me any further. That is what I wish to do. Other sentencing considerations: this is the point where I was going to refer to the Re G case which we have already read out.
- LORD JUSTICE LAWS: Yes, and of course we have been through the law fairly extensively. I think you must say anything you wish to say. I think we are probably most helped by what you have to tell us about your personal circumstances, and you have just of course been doing that.
- DEFENDANT: I have been doing that. I can say a bit more, but I think, if I may, I will finish off what I have drafted here and if you need specific further information about my particular circumstances, then I will give that.
- To sum up, I will not repeat what we read out in Re G, the criteria there. Applying it to the facts of this case, there has been only one publication. It was admitted and it was intentional. I never denied that. So, in effect --
- LORD JUSTICE LAWS: In a sense you are obviously right, but in another sense, you are not. The judgment went both into the periodical, Contact, and, as we know, onto the internet.
- DEFENDANT: My Lord, yes. But I have no control over the websites where it appears.
- LORD JUSTICE LAWS: That might be thought by some, I am not saying that it is necessarily my view, to be an aggravating factor.
- DEFENDANT: In all sincerity, I am willing to ask those who do have control to remove it. I can ask them --
- LORD JUSTICE LAWS: But you cannot compel them.
- DEFENDANT: I cannot compel them, no, because they are outside of the jurisdiction -- I simply cannot.
- LORD JUSTICE LAWS: What is the technical term? The website provider?
- DEFENDANT: The webmaster is the person who directly operates the site, and that is of course relying on the internet service provider who provides the facility to the webmaster. So, as I say, there was only one publication which was admitted, but it was done on a prima facie plausible and sincere interpretation of the law which turned out to be erroneous. So I say it is not a seriously culpable case given my motivations and the background to this. The culpability aspect is important in sentencing. In fact, there are sentencing guidelines which my solicitor has usefully provided to me which may not strictly apply in this court in a contempt case, but these guidelines do lay down that the court has to take into account the seriousness and overarching principles. The seriousness of an offence is determined by two main parameters: the culpability of the offender and the harm caused or risk being cause --
- LORD JUSTICE LAWS: That, I remember, correctly replicates the language of a provision in the new Criminal Justice Act 2003.
- DEFENDANT: It probably does. I do not know about these things, but I just have a copy of the guidelines. So, in my submission, this is not a seriously culpable case given the motive, to bring a test case, and the view I took of the law at the time in April 2003 -- both the common law and the human rights. Nor has any serious harm been caused to anybody; even the Attorney General admitted no harm as such to my son. And the administration of justice, well, I say any harm is minimal because of it being a one-off test case. I am saying we should now follow your judgment.
- LORD JUSTICE LAWS: I have written down your assurance earlier which, as I said at the time, I would attach importance, speaking for myself, as follows:
"I assure the court that I would not publish any further Children Act judgments or other prohibited information in Children Act proceedings until and unless the law is changed or shown to be different from as declared in our judgment."
- DEFENDANT: Yes, that is right.
- LORD JUSTICE LAWS: And I also recorded just a minute ago your willingness to make a request of those in charge of the relevant websites to remove the judgment from the web. You give that assurance as readily as the other assurance?
- DEFENDANT: Yes. What I wanted to go into next was historically what the courts have done in convicting and sentencing for this kind of contempt. Well, taking the most recent first, we must go back to Munby J's case of Re B. Now, a great deal of that case was about the supposed breaches of section 12 of the Administration of Justice Act and prima facie contempts committed by Sarah Harman, the solicitor for the mother, Harriet Harman, her sister the Solicitor General, and what they had done. First, Sarah Harman sent a Children Act judgment, it was Bracewell J's judgment, to her sister the Solicitor General and Harriet Harman then forwarded that, and there was also a brief case summary, to Margaret Hodge, the Minister of State for Children. Although the proceedings before Munby J were not actually committal proceedings, he did hold that there had been a breach of section 12 and prima facie --
- LORD JUSTICE LAWS: You made a submission about that at the substantive hearing, I well recall. Say anything you like to about past cases, but you will be as aware as I am that in the area of sentencing, whether contempt or criminal law in general, cases are usually extremely fact-sensitive and depend very much on their individual circumstances.
- DEFENDANT: Quite so. But, nevertheless, because there are so few of these cases, I think it might actually be helpful and I want to draw some conclusions from the early cases. So that is the most recent one where Munby J held prima facie criminal contempt. But we notice, for example, the Solicitor General, who ought to know better being a law officer, had not been prosecuted. I actually filed a complaint to the Attorney General about Harriet Harman's conduct and suggested that he should prosecute, and I got no reply to that. It seems to be one law for some people and one law for others, I am afraid.
- LORD JUSTICE LAWS: Even if that is a good point, as to which I am not expressing a view one way or the other, I doubt if it is actually mitigation. It may be a different kind of complaint.
- DEFENDANT: The policy of the prosecutor -- if he is not acting in good faith, I think that might be relevant to sentence, and I do not think the Attorney General does act in good faith, not only on relation to that contempt, but it goes back two or three years now. I have been regularly studying what appears in the press and I notice from time to time a violation of this section 97, and I make a complaint to the Attorney General and he does nothing. I would have thought out of all the actual publications if we had gone ahead with the full case after the 9th -- but I am telling you what I have done -- he does seem to be following a somewhat hypocritical standard. If a big national newspaper publishes something about a child case, identifying the parties and somebody complains, he does nothing. So why is he picking on me? I really question the motive of the Attorney General in this matter.
- LORD JUSTICE LAWS: Yes.
- DEFENDANT: Going back to the cases, we had X v Dempster  1 FLR 894. That is in my bundle D, number 20. Well, that was a case under the statutory jurisdiction of the Children Act; one of the two cases that seemed to exist post 1960. The Daily Mail decided to publish something about the Children Act case in the High Court, and the end of it is that Associated Newspapers Limited were find £10,000 and Mr Dempster, the diarist, was find £1,000. Incidentally, there has never been a case, as far as I can ascertain, of actual imprisonment for these publication attempts. There has been a fine or simply an order to pay the costs.
- Going back to the one before, we have Official Solicitor v News Group Newspapers Limited  2 FLR 174, in my bundle D at number 33. There the newspaper company was fined £5,000 by Connell J, and the editor Mr Kelvin McKenzie was fined, as Mr Dempster was, £1,000.
- Going back to Scott v Scott itself, the first instance case , Probate, Divorce and Admiralty Reports, page 4 and that was put in the bundle as case number 3. The contemnors were ordered only to pay the costs -- no order was made on the motion, only to pay the costs. But we know it was overturned eventually in the House of Lords. But that was the way the first instance court dealt with it. But before that, we have Re Martindale  3 Ch 193, which is number 18 in my bundle B, which is the one and only case really prior to 1960 for this whole edifice of contempt law. So, in a way, that is especially significant, and the contemnors were ordered only to pay the costs. That is all the motion was -- dismissed except that they should pay the costs.
- So while I certainly accept the power of this court to imprison even up to two years, historically the practice of the courts has only been to impose financial penalties.
- LORD JUSTICE LAWS: Yes, I see.
- DEFENDANT: Then Mr Caldecott in his skeleton said something about fines. He said in relation to any fine (inaudible) obviously be taken into account. There are no fixed limits of formal guidelines in relation to contempt of court as to the amount of any fine, and I would adopt that as a perfectly correct statement of the law there.
- LORD JUSTICE LAWS: Dr Pelling, I see the time. Clearly as we are concerned with the question of sentence here, you must say everything that you want to say. But it would be helpful if you could indicate how much longer you expect to be --
- DEFENDANT: I am very nearly at the end actually. It is about one paragraph.
- LORD JUSTICE LAWS: In that case, thank you very much, we will hear you out before adjourning.
- DEFENDANT: I have already addressed you on sentencing thresholds in the -- actually I have not, the sentencing thresholds in the guidelines -- well, so far as this is of relevance to you, comes from the Criminal Justice Act 2003 which provides that the court must not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone or a community sentence would be justified.
- LORD JUSTICE LAWS: That more or less replicates the language of an early Criminal Justice Act in 1991, I think. It is quite a familiar principle in the criminal courts.
- DEFENDANT: As to my means, I have explained that the last tax year has been a bad and unconventional year. My hope is that I can spend a lot less time on test cases.
- LORD JUSTICE LAWS: You have not actually said anything about your precise means in your capacity as McKenzie friend. You have said something about the money you get for being a housing association company secretary. Do you want to say anything about your earnings as a McKenzie Friend?
- DEFENDANT: If it would help your Lordships, yes. Last tax year where, as I say, things were rather down, the earnings were just under $5,000.
- LORD JUSTICE LAWS: Altogether?
- DEFENDANT: Yes. But I believe I can earn a lot more than that. I ought to explain that, in some ways, I have less conventional financial obligations than perhaps most people: for example, I live in accommodation which I do not have to pay rent on and I do not have to pay a mortgage. So I have less outgoings in many ways that most people do. I believe I could earn a great deal more concentrating on the McKenzie Friend work. I have had to turn away so many clients, as I think some people in the back would testify to -- not being able to take on cases because of the Attorney General matters, and of course there have been two matters; not just this one, the Matin case as well.
- You can see that I could earn a lot more because my present charging rate is £24 an hour. It is a flat rate which covers any time spent on anybody's case; whether having meetings with them to discuss the case; advising them; whether doing legal research; whether going to court; and I include travel and waiting time at court and actually being in court with them. So even if I got my hours up, which I believe I could do, to 30 hours a week, then you could see that I could earn quite a substantial amount which would go a long way to helping Alexander in his present school. Incidentally, although it was not in the e-mail, Eton will provide bursaries to an extent. That is the situation. The Scholarship, as the e-mail said, quite clearly now does not cover all that much of the fees. They have reduced the Scholarship from 50 per cent to only 25 per cent of the fees, and what they seem to do is they look first to get what they can out of the parents, and having forced the parents, as it were, to the line to get what money they can, then they will not go to the extent of wrecking the child's education. They will then give a bursary, but they will make very sure that the parents pay what they can. I am happy to do what I can here, but it is going to be affected, I fear, or could be affected by whatever sentence your Lordships pass.
- I cannot think of anything more that I can say unless there is anything that your Lordships want to ask me.
- LORD JUSTICE LAWS: Speaking for myself, my Lords may have other matters, the only thing I think I am concerned to be sure about is the exact state of play in relation to those statutory provisions concerning sentence. It may be that your solicitor is right in referring to section 181 and following of the 2003 Act. Mr Caldecott, I think, has some information about it.
- MR CALDECOTT: My Lord, I think that section 181 which is part of chapter 3 of the Act is disapplied if one looks at the interpretation of the section in relation to the contempt of court.
- LORD JUSTICE LAWS: Section 181 is dealing with criminal sentencing generally.
- MR CALDECOTT: Yes, generally. The critical question that we identify, which we will need to be sure as to the answer, is whether section 258 of the Criminal Justice Act 2003, which appears to require release after service of half the sentence, whatever the sentence is in relation to contempt, is in force. It was not as I understand it in force at least in early 2004. But we need to check whether it is in force now. Secondly, we need to check if it is not in force, whether the predecessor referred to in Arlidge and Eady is repealed by it, notwithstanding that this section is not yet in force.
- LORD JUSTICE LAWS: I am afraid to say we shall not conclude this matter before the short adjournment. We will rise now and sit again at 10 past 2 when any of this information that has become available can be conveyed to us.
- LORD JUSTICE LAWS: Mr Caldecott, do you have that information?
- MR CALDECOTT: I do, my Lord. Can I hand up two -- it is not as bad as it looks, my junior's computer, I am afraid, went into overdrive and printed the whole document so it looks worse than it is.
- LORD JUSTICE LAWS: I thought overdrive was supposed to save petrol.
- MR CALDECOTT: My Lord, in short outline the position is that section 258 came into force --
- LORD JUSTICE LAWS: Has Dr Pelling got this?
- MR CALDECOTT: He has and I have explained in summary the position. The position is that section 258 came into force on 4 April this year. So it is just in force.
- LORD JUSTICE LAWS: But are there no transitional provisions? Presumably, it relates only to contempt committed after that date, or is that not so?
- MR CALDECOTT: It does not appear to be so limited --
- LORD JUSTICE LAWS: Let us see what it provides.
- MR CALDECOTT: My Lord, first of all, 258(1):
"This section applies in relation to a person committed to prison ...
(b) for contempt of court or any kindred offence.
(2) As soon as a person to whom this section applies has served one-half of the term for which he was committed, it is the duty of the Secretary of State to release him unconditionally."
- LORD JUSTICE LAWS: Whatever the length of term -- whether it is a week or two years.
- MR CALDECOTT: Correct, my Lord. Could I just draw your Lordship's attention to section 303 on the next page. The repeal at (a), that is the chapter which includes section 45 which is the provision referred to in paragraph 14-28 of Arlidge and Eady. The commencement order No. 8 is at the next page, and without going through all the formal parts, one sees --
- LORD JUSTICE LAWS: Paragraph 2, 4 April 2005.
- MR CALDECOTT: Yes, and also your Lordship will see specified in paragraph 2: "shall come into force on 4 April 2007", that is at the bottom, and then 2005 is Schedule 1, and we need to turn to paragraph 19 of that commencement order to see section 258 is there, and then we see section 303, the repealing section, at paragraph 22.
- LORD JUSTICE LAWS: I see.
- MR CALDECOTT: Now, the transitional provisions -- I have not been able to find anything which suggests -- and it is not obvious why it necessarily should be limited to the time when the offence was submitted.
- LORD JUSTICE LAWS: No, because it would be favourable to a defendant, I suppose, by comparison with the previous law so that the rule against retrospectivity would not require a transitional provision to save the effect of this provision to contempts only after 4 April.
- MR CALDECOTT: That is right because the direction is in favour of the defendant and not adverse.
- LORD JUSTICE LAWS: Thank you very much. Mr Caldecott, I want to ask you a question about the costs. In the event that this court does not pass a sentence of imprisonment on Dr Pelling, do you apply for the Attorney's costs?
- MR CALDECOTT: My Lord, I do apply for an order of the costs, but I would accept, having heard what Dr Pelling said about means, that I would not seek immediately to enforce the order.
- LORD JUSTICE LAWS: If -- and we will consider it finally in a moment, we will have to consider with very great care what Dr Pelling has submitted to us, not least his proffered undertaking -- if we do not pass a prison sentence then we would think it right that a sanction relating to the Attorney's costs is in place. Of course, it is a matter for the Attorney's discretion when and to what extent he enforces them, but we would not invite the Attorney to give us any undertaking.
- MR CALDECOTT: No. Your Lordship will appreciate that I had in mind particularly the possibility of other sentences when I made that observation about an undertaking.
- LORD JUSTICE LAWS: Non-custodial sentence? I see.
- MR CALDECOTT: I had in mind (inaudible) custodial sentence because I could see that your Lordships might be troubled by a very large liability in costs as well as a custodial sentence without any undertaking in place so the court could look at the financial position if it changed. That was my concern. In those circumstances I take entirely what your Lordship says.
- LORD JUSTICE LAWS: Dr Pelling, do you wish to say anything else?
- DEFENDANT: No, my Lords, I think I have said everything on sentencing matters.
- LORD JUSTICE LAWS: Then we will retire finally and conclude what our order will be, and then we will deliver our judgment in relation to sentence.
- LORD JUSTICE LAWS: Dr Pelling, for reasons which we will explain in a very short judgment in a moment, we attach very great importance to the undertakings you have offered to give and we propose to accept them in lieu of any other penalties, save costs. It is therefore my duty, although I am sure you are very well aware of it, to indicate to you in open court that, since these will be undertakings given to the court, breach of them would be equivalent to the breach of an injunction and would itself be a separate contempt. I know you are aware of that, but it is important that I should say it. I will deal with the mechanics in the judgment I am about to give.
JUDGMENT ON SENTENCE
- In this case, we now come to pass sentence. The facts are fully set out in our judgment on Dr Pelling's liability for contempt and we do not repeat them now.
- This was a serious contempt. It was aggravated by the fact that the defendant knew precisely what he was doing. He deliberately published Judge Goldstein's judgment, and he did so on the internet well knowing, however much he disagreed with it, that this was forbidden at the very least by what he described this morning as "the conventional view of the law". His submission has been that he had reason to suppose that the conventional view was wrong. He has said in terms to us, I think I quote him exactly, that "there was a considerable element of provoking a test case". But now he says that the judgment we have given this morning is a definitive judgment bearing on this area of the law unless and until it is of course changed.
- We have no doubt, and we make it quite plain that Dr Pelling's actions were in our view a cynical exercise and initially we considered that he was simply inclined to defy the law, knowingly and deliberately, preferring his own view of it, and that in those circumstances the case might very well merit an immediate sentence of imprisonment. In the event we have come to a different view for reasons we shall explain.
- We should say that we have regard to the guidance in sentencing in contempt cases, which is to be found in Hale LJ's judgment in Hale v Tanner, and also in the case of Re G. We may perhaps be forgiven for not setting out the tests. They were referred to in the course of argument this morning.
- Mr Caldecott QC has made it plain that there is no suggestion on the Attorney's part that the defendant's son, the subject of the judgment which he published, has suffered any material harm whatsoever in consequence of the publication, and it seems to us to be right that we should proceed on that basis. We also proceed on the footing that the defendant is a man of hitherto good character.
- His means are presently modest. Although he is not required, he tells us, to pay rent or mortgage instalments, his earnings, he told us this morning, for the last tax year amounted to something a little under £5,000. His sources of income are, to use his description, "a professional McKenzie Friend in the courts and also as director of a housing association company". His low earnings last year, he said, were not typical and had in fact been depressed by his having to deal with this very application. He has called on such income as he possesses to support his son's private education, and that is something which he is anxious to fulfil. He has submitted to us that he is fully capable of earning sums considerably in excess of the modest amount which he earned last year. That may very well be right.
- What has particularly affected our minds -- what indeed has changed our minds -- is the defendant's unsolicited statement early in his mitigation assuring this court that he would not publish any further judgments given under the Children Act or any private information given in Children Act proceedings until and unless our substantive judgment were overturned, presumably either by their Lordships' House or by statute. He also indicated that he was willing to approach whoever controls the website or websites on which Judge Goldstein's judgment was published, with the request to delete or remove the judgment from the site or sites.
- We propose to accept these assurances as formal undertakings to the court, breach of which would of course amount to a separate contempt, as I have made clear only a few moments ago. We shall require Dr Pelling to approach the webmaster (if that is the right name for the person in charge of the site) with the request to which we have referred within seven days, and to furnish a letter to this court within a further seven days confirming that he has done that, and then or later if it has not then been done, indicating also the response he receives. These undertakings are to be the subject of an agreed draft by the defendant and counsel for the Attorney General, and the draft is to be submitted to the court no later than 4pm on Monday, although if it can be done this afternoon, so much the better since we would need at that stage to accept Dr Pelling's formal undertakings to the court. If there is any difficulty about the agreed draft, we give liberty to apply.
- We will also order the defendant to pay the Attorney General's costs of these proceedings, save for any costs occasioned by the Attorney's mistaken issue of proceedings in the Family Division. Those then are the orders we make.
- As to the mechanics, Mr Caldecott, as I have said, my Lord reminds me and I think it is right, given that we are going to accept undertakings, that has to be done formally in court and of course that implies the existence of an exact form of words. Now, my Lord as it happens is sitting out of London next week. I shall be here, but if there is any possibility of a draft being agreed between you or your junior and Dr Pelling before 4.15 today so that we could reconvene and deal with it rather than have a hearing some other time, that would be much better. I would imagine that, if it cannot be done today, I could probably deal with it sitting alone.
- MR CALDECOTT: I think it would be preferable to deal with it today.
- LORD JUSTICE LAWS: Then unless there is anything else that either you or Dr Pelling would have to say, we would rise now. We have a different case to deal with and a different constitution, and we will hear you at any time before 4.15 if a draft can be agreed.
- MR CALDECOTT: I hope your Lordships will not mind manuscript at this stage.
- LORD JUSTICE LAWS: Provided the words are clear and agreed, that of course would be acceptable. Dr Pelling, do you have anything to say about the mechanics of the matter? You have heard the orders we propose to make.
- DEFENDANT: No, my Lord. I think we can sort that out quite quickly. It remains, however, for me to ask for leave to appeal to the House of Lords, as I will try to pursue that avenue. I realise the prospects of success there are not particularly high.
- LORD JUSTICE LAWS: Mr Caldecott, this being contempt proceedings, there are special provisions in relation to appeal, are there not?
- MR CALDECOTT: My Lord, it lies direct to the House of Lords from the Divisional Court.
- LORD JUSTICE LAWS: It still requires leave. The provision in civil contempt, you go to the civil Court of Appeal without leave.
- MR CALDECOTT: Yes, my understanding is you do need leave to go to the House of Lords.
- LORD JUSTICE LAWS: Your junior has the text.
- MR CALDECOTT: Yes, it is paragraph 15.90: " ... only ... made with leave, such leave to be attained either from the court below or from the House itself ... "
- LORD JUSTICE LAWS: This is if the first instance proceeding is in this court, in the Divisional Court?
- MR CALDECOTT: My Lord, that is right.
- LORD JUSTICE LAWS: Thank you very much. Dr Pelling, it may not surprise you, we will not grant you leave. It will be for you to persuade their Lordships.
- DEFENDANT: I have not specified particularly what I wanted --
- LORD JUSTICE LAWS: I am sorry. I had assumed, perhaps incorrectly, that you wish to appeal against our judgment at large.
- DEFENDANT: I wish to appeal against the conviction, which is essentially the judgment. Obviously, I cannot appeal against the undertakings I will give, but that is not part of the sentence. However, the costs order seems to me on historical precedent to be something I ought to ask leave to appeal against as well.
- LORD JUSTICE LAWS: I thought you yourself had submitted that an appropriate sanction on the facts would be that you should pay the costs of the Attorney General if we were not going to impose any other penalty, which apart from the undertakings, is what we have done. It seems to me a little, how should I put it, a little Gilbertian that you should be seeking leave to appeal in those circumstances in relation to the costs. However, you are entitled to ask.
- DEFENDANT: Obviously it would stand or fall with a successful appeal on conviction, so I am just covering all points.
- LORD JUSTICE LAWS: No, you must seek to persuade their Lordships' House.
- DEFENDANT: Thank you. Just one point about the orders of the court. So far none of them have been drawn up. I was expecting the interlocutory orders to be drawn up, so now they will be.
- LORD JUSTICE LAWS: I presume so.
- DEFENDANT: Well, it is very important because I need the interlocutory orders as well (inaudible) which I sought to appeal against in the interlocutory petition which has already gone in.
- LORD JUSTICE LAWS: The associate is in court and hears what you say. No doubt that will be conveyed to whoever is responsible for actually producing the formal document.
- DEFENDANT: Maybe the associate can be assisted because you wrote me a letter or copied a letter to me where you formally refused in the letter leave to petition in relation to all of the matters which I set out in detail in my letter dated February, and these are precisely the points in the interlocutory petition. So that could be more or less copied word for word --
- LORD JUSTICE LAWS: I certainly did cause such a letter to be sent to you and I do not know if I retained a copy, probably not. If you have a copy you can give to the associate, so much the better.
- DEFENDANT: A copy can be made. This is my only copy.
- LORD JUSTICE LAWS: The usher can take a copy from that.
- DEFENDANT: It is important because the House of Lords is quite fussy about those things.
- LORD JUSTICE LAWS: I daresay that is right.
- DEFENDANT: If the sealed orders could be sent to me as well as Kingsley Napley because (inaudible) the sealed orders myself.
- LORD JUSTICE LAWS: I see no reason why that should not be done.
- DEFENDANT: Lastly, could I possibly have back the documents I handed up in the course of proceedings: two e-mails, two copies of R v Sarah Marga, the two copies of that Times law report --
- LORD JUSTICE LAWS: There is Matin.
- DEFENDANT: Yes, one copy of the Matin judgment.
- LORD JUSTICE LAWS: That is your correspondence as well.
- DEFENDANT: And one copy of the Re H judgment. It was handed up just before the Matin judgment. There is one more copy of the Official Solicitor's correspondence from 1998.
- LORD JUSTICE LAWS: I think that is everything. Very well, we will retire and reconstitute to hear the next case.
- LORD JUSTICE LAWS: We are grateful that it has been done expeditiously. I see from your note to me, Mr Caldecott, that Dr Pelling and his solicitor have agreed with this draft, but there is one short matter he wishes to raise. We will hear that in just a second. It seems to us, subject to anything anybody wants to say, that Dr Pelling should sign the top copy of the undertaking.
- Dr Pelling, what is your position?
- DEFENDANT: I have no objection to signing whatever we finally arrive at. The point I want to raise with you is undertaking clause 1, sub-clause 2, "any other information relating to such ... whose publication is prohibited". It seems to me that the word "prohibited" there needs clarification. When I proffered by assurance in court, what I understood that I was doing was not to commit any further breaches of the general law as set out in section 12 of the AJA, and therefore I would not publish judgments or information about proceedings which fall within the scope and terms of section 12, because that is what this case was about. But having had some discussions with Mr Caldecott, he wants to make that prohibition much wider. He wants it to include, for example, specific orders that might be made by a judge in Children Act proceedings which go beyond the scope of section 12. I will give you an example: orders of the court, Children Act orders, are not within the scope of section 12 -- the actual order of the court. But in some cases, more particularly in the High Court, Family Division, you get situations where the court may impose a specific injunction not to publish --
- LORD JUSTICE LAWS: I think we are getting into territory that it is probably not necessary to travel over. Let me tell you what my understanding of what you said was -- if there is a difficulty, who knows what may have to be revisited here. What I wrote down was:
"I assure the court that I will not further publish any further Children Act judgments or other prohibited information in Children Act proceedings."
- Now, I will not pretend that those are necessarily your exact words, and I do not want to get into precise areas of recollection of crossed I's and dotted T's. My understanding of the assurance which seemed to me, if I may say so, to be eminently sensible was that you would not publish a judgment itself or such matters as, for example, a welfare officer's report that is referred to in the judgment or the proceedings. That is effectively covered by the same umbrella, however one exactly expresses it. I see Mr Caldecott is nodding. I cannot believe that there is going to be a dispute about it.
- DEFENDANT: The dispute is about the scope of the umbrella. I say the umbrella is section 12 of the Administration of Justice Act, which includes everything which you have said so far: a judgment, a welfare report. Those are all within the prohibition.
- LORD JUSTICE LAWS: I am a little surprised you find it necessary to be technical about it given the stage we have reached in this case, Dr Pelling.
- DEFENDANT: I object to it including what would be a civil contempt as well. This is criminal contempt. We are only within the scope of section 12, the general law set out in the AJA. The High Court sometimes, as I said, makes specific injunctions which go far beyond section 12. That is a matter for that court if I was to breach such an order.
- LORD JUSTICE LAWS: I would imagine we are all agreed about that. Let us deal with the matter calmly and decorously if we can, otherwise we will cause ourselves difficulty. I would have thought this could readily be re-drafted. I am rather inclined to agree with you, as I think is my Lord, that the umbrella here is essentially the section 12 umbrella because -- I do not want to revisit the terms of our judgment -- that reflects the previous law, and subject to you and Mr Caldecott, I would have thought that if 2 said: "any information or any other information relating to or arising within such proceedings, and as is subject to section 12 ..."
- DEFENDANT: That was my very own --
- LORD JUSTICE LAWS: Mr Caldecott, what is your position?
- MR CALDECOTT: My Lord, my concern is about being overtechnical about this. I understand the purpose of this order and its importance to be that it is in a sense a general undertaking of good conduct in relation to respecting the privacy of Children Act proceedings.
- LORD JUSTICE LAWS: Yes.
- MR CALDECOTT: The inter-relationship between, for example, family proceedings rules, protecting the confidentiality of welfare reports, the scope of section 12 and so on, if one starts to define the extent of prohibition, whether or not particular orders made by judges should or should not be within the undertaking, we would respectfully say that it is actually much simpler to say that this is a general undertaking of good conduct. That is its value. It is not appropriate to say that this application was primarily based on section 12, which is true, but of course what one is really concerned with is respect for the privacy of Children Act proceedings. There are a host of family proceedings rules. There is section 12 and there are orders made by judges. The significance of course of this order is that, if there is a breach of it, it would add a level of gravity to the breach of whatever independent breach that it was. For that reason -- and it also incidentally reflects the wording of what Dr Pelling offered. Of course, I readily abide by any further change the court wishes to make.
- LORD JUSTICE LAWS: I have a lot of sympathy with the proposition that it is regrettable and undesirable to be overtechnical; indeed, I have said so myself. Two points strike me, one which may be in Dr Pelling's favour in a sense. We are not here concerned with an undertaking to obey individual orders, breach of which would possibly give rise to civil contempt proceedings. That is categorically a different form of contempt from that with which these proceedings are concerned. That is one thing. The other thing is that it is in the interests of all parties, and would certainly be required by the court, that the undertaking, given the penal consequences of breach, should be in clear and certain terms.
- DEFENDANT: May I suggest a short form of words (inaudible) " ... is prohibited within the terms of section 12(1) of the AJA 1960".
- LORD JUSTICE LAWS: I think there may be another way of doing it which might solve everyone's difficulties. I am not drafting as we sit here, it is always a difficult thing to do, but the formula I have in mind -- I have not discussed it with my Lords -- is something like: "any other information relating to or arising in such proceedings whose privacy is protected on the same basis as such judgments".
- My Lord is saying that really the scope of the undertaking that we have accepted is given by section 12. I must say it is difficult to see that that is wrong, Mr Caldecott.
- MR CALDECOTT: My Lord, it is. It is just that I can envisage circumstances in which misuse of the welfare report may not go so far as section 12 but may be a breach of the rules. I am just wondering if an alternative view -- because I see the point that is made about specific orders. That appears to be the main concern: "other than where the court gives leave or where the restriction is the subject of a specific court order" because that would allow the application to be made in relation to that order.
- DEFENDANT: Might I respond?
- LORD JUSTICE LAWS: Yes.
- DEFENDANT: I would like Mr Caldecott to give an example in relation to welfare reports if he is saying that, because it seems to me that any publication of a welfare report must fall within section 12. That is quite clear from Re F which specified --
- LORD JUSTICE LAWS: Dr Pelling, we are in slight danger of re-arguing the case which I am certainly not going to do. I am just looking up the text of the judgment to get the words of section 12.
- DEFENDANT: Can I point out there is another kind of prohibition, again which should not fall within the scope of this undertaking, and that is the criminal law under section 97 of the Children Act.
- MR CALDECOTT: My Lord, can I try and come up with a compromise -- and that is a matter for the criminal court -- my Lord, can I adopt to some degree your Lordship's suggestion and just adopt it a little bit. "2. In any other private information relating to such proceedings whose publication is prohibited on a like basis".
- DEFENDANT: But then you have to specify what the basis is. You cannot have an undertaking as vague as that. That is contrary to the rules about injunctions and undertakings. They have to be absolutely precise so the person knows exactly what he has to do or not do, and I do not know why we could not have a (inaudible) within the terms of section 12.
- LORD JUSTICE LAWS: My Lord is saying that this is not really a matter for negotiation at this stage because you have given the undertaking. However, the undertaking is referrable to section 12 of the Act.
- DEFENDANT: Yes.
- LORD JUSTICE LAWS: Mr Caldecott, I think this is a section 12 case. That is conformable with the reasoning in our judgment.
- MR CALDECOTT: My Lord, that is true. I readily accept that section 12 is at the heart of it. I am only concerned because one never knows what factual matrix may arise.
- LORD JUSTICE LAWS: If Dr Pelling were to -- and he will understand that I am speaking purely hypothetically because despite this rather technical argument, I am still proceeding on the basis that these undertakings are perfectly genuinely given -- if he were to publish something which is apparently in breach of some subordinate instrument but arguably not in breach of section 12 -- were it possible to construct such an example -- and the Attorney General were to take action, he would have to face all the dangers of that action, although of course one deprecates any further round of contempt proceedings. But at the moment --
- DEFENDANT: I can assure you it will not happen.
- LORD JUSTICE LAWS: I have already, I hope, made it clear I am not assuming it will happen. I think we are going to have to do this in terms of section 12, Mr Caldecott.
- MR CALDECOTT: I am content with that in the light of that indication. So limited by section 12 of the Administration Act 1960 --
- DEFENDANT: No, not limited by, because it is not a statutory contempt. The prohibition is by the common law. So it should be: prohibited within the terms of section 12.
- LORD JUSTICE LAWS: Within the terms of section 12(1) -- it will be A(ii), is it not? That is wardship, sorry (pause). So it now reads -- that is to say paragraph 1(ii) now reads:
"Any other information relating to such proceedings whose publication is prohibited within the terms of section 12(1)(a)(ii) of the Administration of Justice Act 1960."
- And the rest of the document as is. Very well then. Dr Pelling, if you would like to sign this top copy. I have added in -- it is not that legible but it is legible enough -- the additional words in black ink on the first page.
- DEFENDANT: I would be happy to sign that.
- LORD JUSTICE LAWS: And then will someone very kindly produce a typed-up copy which can indicate -- he does not have to sign it again -- which will indicate that it has been signed by him.
- DEFENDANT: Shall I just sign at the end of it?
- LORD JUSTICE LAWS: I think if you just sign at the end of the document your name and then you might add the word "defendant" and the date.
- MR CALDECOTT: My Lord, one matter I did mean to mention, it does not require any action, but I thought I should mention it, is the section 11 order. It is presently expressed to be until further order, so it continues to operate and it should continue to operate.
- LORD JUSTICE LAWS: This is the --
- MR CALDECOTT: This is the reporting restriction in relation to details of the judgment.
- LORD JUSTICE LAWS: Yes, certainly.
- MR CALDECOTT: That should continue. But it does not need any amendment because it is until further order.
- LORD JUSTICE LAWS: Yes. Thank you very much.
- That had better be in the court's keeping, presumably you have copies, and you can add in the amended words from which to draw the typescript. Dr Pelling, we do not expect to see you in like circumstances on a further occasion.
- DEFENDANT: You will not, my Lord.
Note 1 Paragraph 3.1. [Back]
Note 2 Pelling v Bruce-Williams  3 AER 875,  EWCA Civ 845. [Back]
Note 3  2 FLR 765, sub nom. Re PB (Hearings in Open Court). [Back]
Note 4 B v UK; P v UK  2 FLR 261. [Back]
Note 5 766H-767H. [Back]
Note 6 770D-E. [Back]
Note 7 Viscount Haldane LC at 437, the Earl of Halsbury at 441, Lord Atkinson at 462 and Lord Shaw at 483. [Back]
Note 8 770E. [Back]
Note 9 771C. [Back]
Note 10 771H-772A. [Back]
Note 11 Pelling v Bruce Williams  3 AER 875,  EWCA Civ 845. [Back]
Note 12  1 AER 745, 750a-b. [Back]
Note 13  2 FLR 637, 650F-G. [Back]
Note 14  2 FLR 142. [Back]
Note 15 Paragraph 109; for the facts see in particular paragraph 36(vii). [Back]
Note 16  2 FLR 261 paragraph 52, already cited. [Back]
Note 17  AC 1046, paragraphs 2 and 66. [Back]
Note 18 (1979) 2 EHRR 245. This decision led to the enactment of the Contempt of Court Act 1981. [Back]
Note 19 Paragraph 49. [Back]
Note 20  AC 417, 437. [Back]
Note 21  Fam 58. [Back]
Note 22 93E-G. [Back]
Note 23  3 Ch 193. [Back]
Note 24  Ch 230. [Back]
Note 25 95G-H. [Back]
Note 26 s.108(5) and Schedule 13 paragraph 14. [Back]
Note 27 98C-D. [Back]
Note 28 100A. [Back]
Note 29 98D-E. [Back]
Note 30 98F. [Back]
Note 31 99F. [Back]
Note 32 99H. [Back]
Note 33 100B-C. [Back]
Note 34 100C-E. [Back]
Note 35 100D-E. [Back]
Note 36 at 95G-H. [Back]
Note 37  2 AC 370. [Back]
Note 38 at 416 G-H. [Back]
Note 39 at 417D-E. [Back]
Note 40 at 421G-H. [Back]
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