John Hemming's Web Log John's Reference Website
Wednesday, October 14, 2009
  John Wilkes, Trafigura and Injunctions
The saga with the Trafigura injunction and the guardian is an interesting one.

There has been a tendency to have secret court orders recently.

Part 1 of Article 6 of the ECHR states:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

This, I think, makes it quite clear when it says "Judgment shall be pronounced publicly ...

In the UK and particularly for Family Court cases it has been concluded that this applies specifically to the order. Hence to me it is quite clear that the injunctions (court orders) should not themselves be able to include the requirement to keep the order itself secret.

I would argue that "judgment" means "judgment" and hence the reasoning should also be public. However, I have not tried to take any of these cases through.

This particular case, however, also goes a bit further. Paul Farrelly asked a question in the house. That was OK because the parliamentary website and hansard (and all order papers) are covered by Article IX of the 1688 Bill of Rights (our basic constitutional law).

Such material is exempt from court consideration (other than the S&P committee which is a constitutional court), but reports of parliament are only absolutely privileged, they are not exempt from court consideration. Hence the problem with reporting it.

This brings in John Wilkes editorial in the 45th Edition of North Briton in 1745. That obtained parliamentary privilege (and I am trying to get more details of this which is quite difficult in the 1700s).

I think there has to be an ability for the press to report parliamentary proceedings notwithstanding court injunctions or indeed the fact that something is contempt of court.

Parliament is there to stand up for the powerless. If parliament cannot be reported injustice can grow.

Although the trafigura injuction was probably brought down by twitter I think it was unlawful anyway (under Article 6 and the 1998 Human Rights Act). Still the further step of ensuring that parliament can be reported needs to be resolved.

I would be happy to work with anyone who wishes to challenge the system in this way.
 
Comments:
Your reasoning in general (rather than the specifics of the Trafigura case) ignore the final sentence though:

"or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

ECHR clearly provides that in some circumstances judgements can be kept secret.

It clearly must be open to the court to allow the existence of an injunction to be kept secret when publicising the fact of that injunction would defeat the purpose of the injunction.

You also need to balance Art 6 rights with Art 8 (right to privacy). ECHR (with one exception) only provides qualified rights (often balanced against other rights) rather than absolute rights.

From what I can tell in this case the injunction is an interim one rather than a final and permanent one. When the matter is finally decided that judgement will be made public.

It's also important to note that the party(ies) injuncted will know the full details of the decision and the reasoning behind it and have the ability to appeal any decision.
 
The full phrase is:
Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The last bit does not apply to the judgment. It only applies to the trial.
 
Part 1 of Article 6 of the ECHR states:
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

NORMAN SCARTH has been imprisoned without due process or trial. He is being denied his prescription medications by both the prison and by Justice Wyn Williams. Mr. Scarth has severe muscle cramping, causing constant pain, and has been in prison since July 26, without trial. He is 85 years old and kept in solitary confinement for attempting to record a public court hearing on his mobile phone.

Today, when a new trial started, he was denied bail, which is his right - guilty until proven innocent. He is not a risk to society and not in danger of fleeing the country. He wants a trial, but the judiciary have locked him up. 6 months for attempting to record a public hearing.

http://justicefornormanscarth.wordpress.com

Anyone with a hint of public conscience, please sign the petition and follow FREENORMAN on Twitter

http://www.gopetition.com/petitions/free-wwii-veteran-norman-scarth-from-leeds-prison/signatures.html
 
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