Spencer v Spencer

Under rule 10.28 of the Family Proceedings Rules 1991, accredited media representatives are entitled to attend family proceedings held in private unless exclusion is necessary or justice would otherwise be impeded or prejudiced. The power must be exercised through parallel analysis and balancing of Articles 6, 8 and 10. High public profile, commercial media interest, or a general preference for privacy will not ordinarily justify total exclusion. A credible risk that a particular witness will not give full and frank evidence may justify excluding the media for that evidence, but ordinarily not for the hearing as a whole.

The parties were engaged in final ancillary relief proceedings. They jointly applied to exclude media representatives from the hearing, relying principally on the risk that the parties might not give full or frank evidence in the media’s presence and on their expectation of privacy when the proceedings began.

The application followed the coming into force of rule 10.28 of the Family Proceedings Rules 1991 on 27 April 2009. The rule applied to pending proceedings and created a general entitlement for accredited media representatives to attend private family hearings, subject to the court’s power of exclusion. The central issue was whether total exclusion was justified under rule 10.28(4).

1. Application refused. The media were not excluded from the remainder of the ancillary relief hearing.
2. Rule 10.28 applied to the proceedings, although they had begun before 27 April 2009. The absence of transitional provisions did not prevent its application to pending or part-heard proceedings.
3. The rule established attendance as the starting point. The party seeking exclusion had to satisfy the court that exclusion was necessary under rule 10.28(4)(a), or that justice would otherwise be impeded or prejudiced under rule 10.28(4)(b). Necessity required a pressing social need.
4. The circumstances did not engage rule 10.28(4)(a). There was no demonstrated necessity relating to the children’s interests, the safety or protection of a person, or the orderly conduct of the proceedings.
5. The court had jurisdiction in principle to grant an injunction restraining publicity in appropriate ancillary relief proceedings. That jurisdiction derived from Convention rights and was not confined to cases concerning children. The judge expressed no view on when such an injunction should be granted.
6. The exclusion issue required parallel analysis of the competing rights and interests under Articles 6, 8 and 10. Article 8 protected the parties’ privacy and confidentiality; Article 10 protected the media’s rights to attend and report; and Article 6 protected open justice and the proper administration of justice.
7. The parties’ high public profile and the media’s interest in them did not, by themselves, justify total exclusion. Nor did their transitional expectation of privacy.
8. A credible risk that a particular witness would not give full or frank evidence could justify excluding the media while that witness gave evidence. It did not justify excluding the media from the hearing as a whole on the facts before the court.
9. The judge declined to determine the true meaning and effect of section 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act 1926, because no relief under that provision was sought and the issue had not been argued adversarially. The later reporting-injunction application was never determined; the ancillary relief proceedings ended by consent order.