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Contradictions in Judgment in re: Watson

[2011] EWHC 2376 (Fam)Doncaster v Watson has been published in which Wall P says: "The first myth I wish to explode is that a person can be sent to prison "in secret". Nobody in this country is sent to prison for contempt of court "in secret"."

He also makes reference to:
[2007] EWCA Civ 248 Hammerton v Hammerton in which it is clear that someone was sent to prison "in secret". Hence he is wrong in that someone 'can be sent to prison "in secret"' and he has given an example of it. The contradiction is referred to in his own judgment.

I know of other more recent cases where people have been sent to prison in secret. Obviously I cannot name them here.

It is quite clear that secret trials are less reliable than those subject to public scrutiny. The key accountability of the judicial system (as a whole) is transparency and public accountability.

Prosecutions for Contempt are for all intents and purposes criminal prosecutions. People have been imprisoned in this country after a secret trial and with their identity subject to reporting restrictions. This is not in accordance with the rules, but it happens.

Vicky Haigh's trial for asking a question at a meeting which I chaired in parliament was subject to reporting restrictions that prevented her from being identified.

My view is that for the system to operate properly and for justice to be done that such criminal prosecutions should occur without reporting restrictions save as to any material that relates to any underlying care case.

I am doing some research into wider jurisprudence here to identify what the norm is throughout Europe, but it remains that this country has been locking people up in secret and shouldn't.

We also need to look at the reliability of the appeals process. There are many problems here, not least the general resistance of the secret courts to timely production of transcripts of judgments (and refusal to allow parties to record the judgments to produce their own transcripts).


Hywel said…
JOhn - it would be more accurate to quote President Wall's comments in full:

"As it happens, I sat in open court to hear Ms. Watson's case and I gave judgment in open court. Had I sent her to prison in private my decision would have been unlawful and the Court of Appeal would have had the power to set it aside. I, myself, have been very critical of a judge who sentenced a contemnor without hearing mitigation and without going into open court to do so; see the case of Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 133, in which the order of the judge was set aside."

IN other words he is clear that the decision in Hammerton was incorrect and unlawful (and most of his comments in Hammerton support your position).
John Hemming said…
I do give a link to Hammerton.

My point is that judges in the court of first instance do lock people up in secret. I believe that the requirements of Article 6 are that such trials should be in public with the party trying to jail someone being identified (eg Doncaster) and the party facing jailing being identified.

The UK court rules do not go this far, but they are subject to Article 6. I am doing further work on the jurisprudence here.
Jimmy said…
There is no contradiction. You have been repeatedly told that sending people to prison in secret is unlawful. Hammerton is clear author for that proposition. Do you still refuse to accept it?
John Hemming said…
I have said it is wrong and unlawful. We went into that argument which ended on the 1998 Human Rights Act.

Wall P said: "The first myth I wish to explode is that a person can be sent to prison "in secret". Nobody in this country is sent to prison for contempt of court "in secret".""

"Can" - is the word as to whether it is possible or not. Clearly it happens. I accept it is unlawful, but unlawful things are done ... at times by judges.

People are sent to prison in secret. Clearly, therefore, they can be sent to prison in secret.

Hammerton was secret for 18 months.
Jimmy said…
"I have said it is wrong and unlawful."

And the Court of Appeal agrees.

I think you're straining at a gnat with your interpretation of the word "can". I doubt the Court was attempting to convey the suggestion that breaking the law was physically impossible.
John Hemming said…
It is clear that the judgement indicates that secret imprisonment can not happen, but it does. It may be unlawful, but it happens.
Will Benson said…
Is it possible for you, Jimmy, to answer a direct question? What is your agenda here? You continually support the judiciary. You constantly defend the corrupt Family Courts of England & Wales.

It is obvious to anyone that unlawful decisions (orders, judgements) are made on numerous occasions in the courts up and down the land. If someone does not have have the time or the money to appeal them, then those unlawful decisions can stand as 'lawful'. If Hammerton had not appealed then HHJ Collins' judgement and order would have stood.

Wall P clearly contradicted himself. His pomposity rose to new levels hitherto unseen - I find his comments "that the independent Family Justice Review, whilst making a number of criticisms of the Family Justice System, went out of its way in paragraph 7 of its Interim Report to say: "We have been impressed by the dedication and capability of those who work in the Family Justice System. Their work is hugely demanding and often highly stressful". Those who criticise the System and the integrity of those who work within it would do well to bear these findings in mind." pathetic on the one hand and outright arrogant on the other.
Jimmy said…
"Obviously I cannot name them here."

Why? Even you now appear to accept that secret jailing is unlawful. There can be no possible obstacle to naming these supposed secret prisoners unless you have invented them. Even if you had any such concern you could name them in the House. It's hardly a less important issue than who Ryan Giggs is getting his leg over surely?
John Hemming said…
I have named some in the house. However, contravening an unlawful court order is still unlawful itself.
Jimmy said…
Can you give the Hansard reference then?
John Hemming said…
It is me speaking to the Back Bench Business Committee evidence session.

Try looking on my weblog.
Jimmy said…
Thank you for that. I've looked at the passage and it seems we may be talking at cross purposes. I understood you to be saying that there were other cases in which people had been sent to prison other than by a court sitting in public. I've not been able to find details on all of the individuals (four I believe) but as at least one of the people you name was found guilty after a jury trial it seems pretty unlikely that he can by any definition be called a "secret prisoner". Just for clarity, is it your assertion that any of the individuals named by you received a sentence of imprisonment from a court from which the public was excluded?
John Hemming said…
The threshold is that the identity of the prisoner is subject to reporting restrictions.

A sort of temporary - suddenly the court is open to the public and then suddenly closed - open court really does not suffice as it is not subject to scrutiny.

It is a bit like Schroedingers cat.
Jimmy said…
I think that's a "no" then to my question.

So when you say "secret" what you really mean is "anonymised", is that it?
John Hemming said…
There are two issues:

One is the reliability of criminal proceedings which are held without scrutiny.

The other is the imprisonment of adults where it is a criminal offence to identify them and the reason why they are imprisoned.

Both of these happen. Both are wrong.
Will Benson said…
John, who is this "Jimmy the troll"? You keep feeding him.

He clearly is not interested in the corruption and injustices going on in the Family Courts of England & Wales - he is an apologist for the pompous judiciary.

By the way, have you been following Mr Booker's latest account of a family who have had their children taken away? People unlawfully imprisoned for contempt, people arrested for no good reason - it stinks! (There's your righteous and just Family Justice System, Jimmy!).
Jake Maverick said…
"he is wrong",

do you mean to say he is aa LIAR?

what is the official g-man term for a spade these days?

typical to endlessly contradict themselves to, I think they call it 'jargon'...

and it's worse than that Jim! there's many 'people' in this country who routinely lock up (and torture) people in THIS country without even bothering to put them before a judge, secret or otherwise....of course they don't even officially call them prisons!

people that know know what it is really going to take to change that....

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