MP reveals “hyper” injunctions in name of open justice
20 March 2011
Updated | It all started with the reporting of an injunction, supposedly obtained by former Royal Bank of Scotland chief executive, “preventing him being identified as a banker”. A mildly interesting story, made marginally more so by the fact that the injunction had been breached by an MP during a Parliamentary debate.
But there is more to the story. As bloggers Anna Raccoon, Charon QC and Obiter J have reported, on a Parliamentary debate on Thursday the same Liberal Democrat MP, John Hemming, revealed the details of a number of other (what he called) “hyper” injunctions. The common feature was that courts had ordered not only that the parties to litigation were to be prevented from revealing details of their cases to the public, but also to their MPs.
How did Hemming bypass the otherwise watertight court orders? Normally anyone breaching such an order would be liable to prosecution for contempt of court. But he relied upon a centuries old protection under article 9 of the 1688 Bill of Rights:
Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
He also quoted article 13, which provides:
And that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently.
His point was that in order for Parliament to “Redress… all Grievances”, MPs need to know what is going on in their constituencies. They cannot know if constituents are threatened with contempt of court for telling them their grievances.
By coincidence, Hemming’s revelations coincide with a potentially groundbreaking speech by Lord Neuberger, the head of the court of appeal, on open justice. He is chairing a working party on so-called “super” injunctions, which have been used to prevent the press finding out salacious details of cases involving celebrities. As Inforrm’s blog points out, he is very much alive to concerns that
they have, as Professor Zuckerman has put it, developed into a form of entirely secret form of procedure. As he put it, ‘English administration of justice has not (previously) allowed’, that is ‘for the entire legal process to be conducted out of the public view and for its very existence to be kept permanently secret under pain of contempt.
Hemming’s worries feed into this, although Neuberger’s nuanced approach in his speech suggests he will not go as far as banning the super-injunction altogether. It will be fascinating to see if more MPs use their Parliamentary privilege to reveal other such “hyper” injunctions, and whether they may end up being breached as a matter of course.
The reason for secrecy injunctions, as pointed out by a commenter below, is that a case should not be prejudiced by public revelations. On the one hand, it is worrying that there are matters which are so secretive that they cannot even reach a Parliamentary representative. On the other, if MPs enthusiastically use their rights of privilege to reveal such orders – and presumably this may sometimes be for political rather than “open justice” motivations – this does appear to prove why they exist in the first place.
Update – The Telegraph have reported the story here
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May I respond the crux is simply about the freedom and the right of an individual to speak with his or her elected member of parliament?
When corporatism use the power of wealth to dictate to the law of the courts this is a catastrophe within the British society.
Injunctions such as debated by Mr Hemming are simply wrong as this type of injunction prevents the corporate power from ever being investigated for any criminal activity.
If more members of parliament had the bottle to do as Mr Hemming has these injunctions would simply stop corporate dictating their will.
While hiding behind injunctions corporate management are evading prosecution they black people in their process as they dictate to the courts their will.
Injunctions should not be in place which prevents the prosecution of corporate management.
This injunction has done just that.
We have a horror unfolding within the corridors of power within the judicial system. Without transparency justice served is an injustice.
All judges should not be party to suppression in the form Mr John Hemming has brought before parliament.
Mr John Hemming is a man of integrity and his good integrity is the benefit of all
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Injunctions to protect the identity of children and vulnerable adults I can accept. Injunctions (used in moderation) to prevent the media prejudicing important criminal trials – quite understand. But an injunction simply to prevent the media from reporting that someone rich and famous has possibly had an affair or that a company is possibly responsible for pollution (so that the person or company can maintain the illusion of respectability) – now that seems like nonsense.
How come these cases get so much protection, yet someone accused of rape is tried in the court of public opinion long before they get to meet the judge?
You kindly quote Lord Neuberger’s recent and excellent speech on open justice in your ‘squatting blog’:
“Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law… Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”
Which is all well and good – but if the judgement cannot be reported – if the evidence cannot be presented, then how can people be expected to understand or agree with the judgement or the law (or respect the system if it operates in secret)? By preventing open discussion you make space for propaganda, for inaccurate and misleading reporting – and for fear.
If super injunctions have a place in law then their use should be carefully regulated – possibly by requiring the application for the injunction to go to a higher court or a review panel. They should also, where possible, be time limited to the period of any trial – so that people can understand why they have been used.
Many people perceive the Trafigura case to be a panacea for free speech, however looked at forensically the question remains whether it was in fact beneficial to society for a Member of Parliament to act in a way which defeated a legally obtained injunction preventing the disclosure of the parties (regardless how odious that party might be). The object of the injunction was not to decide the matter but merely to place the case in stasis until the substantive case was heard (which would have, of course, been accessible to the public).
This same principle applies to the celebrity privacy cases, you say the injunctions granted in these cases are “nonsense” – a judge might agree and decide the case in the newspapers favour. The critical issue is whether the subject of the story has protection until the court has decided that matter. As a matter of principle, no one has yet proffered a compelling reason why courts shouldn’t strive to protect individuals until their substantive cases are heard. The courts are waking up to the fact that these cases should be disposed of quickly as the “societal harm” of restraint is finely balanced against the individuals rights, but again there is no reason why the use of the injunction is fundamentally wrong.
Turning to your larger point, i.e. why individuals in criminal cases seem to be “less protected” than the parties to a civil action? It is a fascinating point. Some would point to the fact that, a criminal case is the individual versus the state and as a consequence requires a greater degree of openness because it is only through that openness might a defendant achieve any equality of arms (as openness allows scrutiny and ensures that justice can be “seen to be done”). But, I admit its not an easy square to circle.
Lastly, as regards your ideas for “super injunctions” – my first suggestion is that we stop giving injunctions silly names. There is nothing “super” or “hyper” about any of these injunctions – the media label serves a role only to make them sound even more extraordinary (and therefore “evil”) than a normal injunction – which they are not. Secondly, the idea that they need any further “regulation” is fanciful – the test for obtaining any injunction is pretty onerous and for every injunction granted I would guess that thousands are denied. Thirdly, the idea that the decision concerning an injunction application should go any higher than the High Court is a non-starter. Court of Appeal judges and Supreme Court judges are busy enough than having to hear petty interim applications. A review panel is the last refuge of those without ideas: who would sit on these panels? How would it define which applications they should hear? How would this panel not be judicially reviewable by the High Court using its inherent jurisdiction? – the more I think about this idea the quicker it disintegrates. Finally, in respect of time limited – all injunctions already are – hence their “interim” status. Their purpose is to preserve the status quo until the substantive hearing. Of course the wider media pretends as though these injunctions last forever and a day.
Thank you for clearing up those points – you do a very good job of defending what (to a layman) at times seems indefensible.
Perhaps the courts should do more to explain their thinking (particularly your point about all injunctions being interim) – and clearly indicate when these injunctions are lifted.
Until the courts make a more compelling case (as you have done) for injunctions, the press will get away with scaremongering. For instance, this morning we ‘learn’ that there is an injunction that (apparently) prevents a defendant discussing their case with anyone, even a lawyer – so how can they mount a credible defence if they cannot engage a lawyer?
I am sure there is more to this case (and others like it) than the press knows or allows – but without a counter argument from the courts these urban myths will continue to undermine respect for our legal system (and bring about many more ‘Victor Meldrew’ responses from the blogosphere).
PS: A case when an injunction would have been beneficial was during the Bristol murder investigation when the press seemed intent on hounding a man who apparently turned out to be innocent.
Injunctions? Super Injunctions? Hyper Injunctions? Whilst this makes for explosive headlines in newspapers – the courts have *always* possessed a power to prevent parties from operating in a manner that might prejudice a case. An injunction is, for all intents and purposes an order that prevents a party from doing something they might ordinary be allowed to do. Regrettably, what some people are forgetting (or in the case of certain media outlets, consciously ignoring) is that in some cases disclosure of the facts of the case can be prejudicial to the outcome of a case (to digress briefly the real scandal is that the High Courts ICT is so poor that it has no way of tracking how many injunction applications exist or have gone through the system).
Are these types of “injunction” really as “contemptible” as @HuwSayer suggests? Well, erm – No. The non-disclosure “super” injunction has long served a legitimate role in our legal system, e.g. IP disputes, where two competitors might wish to remain anonymous so as not to inform their competitors about what they are developing or family disputes (in a number of ways so lengthy and obvious that it needs not be listed). It was only when newspapers were restrained in this way did they start to be a bad thing.
The purpose of the so called hyper injunction is to prevent the parties from prejudicing their case through disclosure. If the court had already granted anonymisation and non-disclosure requirements and they (rightly or wrongly) believed that their was enough political fire in the case that an MP might raise the matter in Parliament the judge is perfectly entitled to grant such an injunction to preserve justice – this is the courts role and any political interference would put our entire constitution in disrepute. A judge might hope that the sub-judice rule would prevent an MP from acting in such a disreputable way – however as is often written about judgments and orders – they are not for the media, they are for the parties and it is absolutely imperative that they understand what their responsibilities are – which explains why an order may be drafted to explicitly prevent disclosure to MP’s.
Thank you – see my reply to myself above!
PS: Civil super injunctions are contemptible and make the courts and our justice system appear so.
I accept Corrupted Mind’s response below – and stand corrected. Learning my lesson that knee-jerk responses to emotive issues rarely produce good arguments.
If even the injunction is hidden how can anyone legitimately challenge the injunction? Secret trials undermine public trust in the rule of law – secret evidence is no evidence at all since there is no effective way of judging the validity of that evidence except in open court.
Injunctions in a few serious criminal cases may be appropriate (to protect witnesses or those convicted from reprisals) – however I can see no excuse for such super injunctions in civil cases. If someone’s public reputation depends on us not knowing what they have done, then surely their reputation is effectively a shame and it is in the public interest for that sham to be exposed?
On the subject of “justice” being administered in secret I recall Michael Howard, the then Home Secretary, refusing to allow a criminal case to go to appeal on the ground that he was in possession of secret evidence about the case. There was, indeed, “something of the night” about him.
He was careful to avoid discussion of any “active” cases (sub judice rule by which Parliament voluntarily avoids discussing cases before the courts). The Chairman of the Meeting (Peter Bone MP) was at pains to ensure this did not happen. Great to see an MP raising these issues though. All power to his elbow.
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