Y v HM Attorney-General

Article 6.1 of the European Convention on Human Rights applies only where the proceedings determine civil rights or obligations. An application by charity trustees for directions will ordinarily provide administrative guidance and will rarely determine anyone’s civil rights.

Where Article 6.1 applies, the requirement that judgment be pronounced publicly must be interpreted in the light of the nature and purpose of the proceedings. A court cannot treat a judgment as wholly private, but public access may be restricted where the hearing was properly held in private, anonymisation or abridgement is impractical, and copies remain available to persons able to demonstrate a legitimate interest under the Civil Procedure Rules 1998.

The claimant sought directions concerning the trusts of a charity. The application was heard in private under CPR 39PD1.5(10), and the Vice-Chancellor subsequently gave judgment on the application in private.

The issue was whether Article 6.1 required the judgment to be pronounced publicly, despite the private hearing and the practical impossibility of anonymising or abridging the judgment. The court considered decisions of the European Court of Human Rights concerning the relationship between public hearings and public judgments.

1. Scope of Article 6.1. Article 6.1 applies to the determination of civil rights and obligations. An application by trustees for directions generally affects, but does not determine, anyone’s civil rights. The jurisdiction is essentially administrative and provides guidance to fiduciaries exercising powers in problematic circumstances. Only rarely will such an application determine a person’s rights.
2. Public pronouncement. The Strasbourg authorities establish a flexible approach to the form of publicity required for judgments. The court must consider the nature of the proceedings and the objectives of Article 6.1. That flexibility does not permit the court simply to impose on public pronouncement the same restrictions that may justify a private hearing. A judgment cannot be wholly private, and its ultimate availability to the public cannot be excluded altogether.
3. Application to the case. The hearing was properly held in private because publicity would prejudice the interests of justice. It was not practically possible to produce an anonymised or abridged judgment. Copies could nevertheless be made available under CPR 5.4(2)(c). In those circumstances, and in any event because the directions application did not determine civil rights, the judgment could properly be pronounced in private.
4. The submission that all parties’ consent could waive the obligation of public pronouncement was left undecided.