Rapisarda v Colladon
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWFC 1406 |
| Docket Number | Case No: AF11D00099 and 179 other Petitions |
| Court | Family Court |
| Date | 08 May 2014 |
[2014] EWFC 1406
THE FAMILY COURT
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: AF11D00099 and 179 other Petitions
In the matter of 180 Irregular Divorces
Mr Simon P G Murray and Mr Thomas Collins (instructed by the Treasury Solicitor) for the Queen's Proctor
Ms Tina Villarosa (instructed under the Direct Public Access scheme) for the parties in AF11D00099 ( Rapisarda v Colladon)
Hearing dates: 9–10 April 2014
Sir James Munby, President of the Family Division:
I have been hearing applications by the Queen's Proctor to dismiss a large number of divorce petitions and also, in many of the cases, to set aside decrees of divorce (some nisi, some absolute) obtained in consequence of what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale. At the outset of the final hearing on 9 April 2014 – the hearing was in open court – an important question arose in relation to the possible impact on the reporting of the proceedings of the Judicial Proceedings (Regulation of Reports) Act 1926 (the 1926 Act). Needing time to consider the matter I expressed no view at the time save to remind the journalists who were present in court of the existence of the 1926 Act and to draw to their attention some words of Sir Stephen Brown P in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, 62.
The applications were issued and the hearing on 9–10 April 2014 took place in the Family Division of the High Court. In accordance with articles 2 and 3(1) of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956, the proceedings have continued on and after 22 April 2014 in the Family Court as if they had been issued in that court. It is accordingly in the Family Court that I now sit to give judgment.
Section 1 of the 1926 Act is headed "Restriction on publication of reports of judicial proceedings". As amended, it provides as follows:
"(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions."
As originally enacted subsection (1)(b) applied in relation to any judicial proceedings:
"for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights",
and subsection (2) referred to "a fine not exceeding five hundred pounds". That apart, there have been no amendments since 1926 material to anything I have to decide.
For reasons which will become apparent in due course it is not unimportant to note that section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968, as amended, extends the 1926 Act, subject to some minor adjustments not material for present purposes, to certain other proceedings, including proceedings for maintenance under section 27 of the Matrimonial Causes Act 1973.
We are, as it happens, remarkably well informed about the origins of the 1926 Act because of Dr Stephen Cretney's detailed researches. First published as 'Disgusted, Buckingham Palace?…' – The Judicial Proceedings (Regulation of Reports) Act 1926 [1997] CFLQ 43, and later republished in revised form as 'Disgusted, Buckingham Palace?…': Divorce, Indecency and the Press, 1926 in Law, Law Reform and the Family (Oxford University Press, 1998), 91–114, Cretney's researches are as scholarly as they are amusing.
As Cretney points out, the 1926 Act was the solution to a problem coeval with the creation of the Court for Divorce and Matrimonial Causes by the Matrimonial Causes Act 1857. The practice of the Ecclesiastical Courts was to take evidence in private. Section 46 of the 1857 Act, however, required witnesses in the Divorce Court to be examined orally in open court, a provision still in force in the form of FPR 2010 rules 7.16(1) and 22.2(1)(a) and reinforced by the decision of the House of Lords in Scott v Scott [1913] AC 417 that the Probate Divorce and Admiralty Division had no power to hear a nullity suit in camera in the interests of public decency. The consequence, inevitable if unintended (for many affected to believe that the shame and humiliation of having to endure a hearing in public would deter the bringing of divorce suits, and some even to be astonished by what the evidence in such cases revealed of behaviour in the bedroom), was a torrent of salacious newspaper reporting.
Kate Summerscale, in her recent retelling in Mrs Robinson's Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 "Lord Palmerston's government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence." Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
"A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. 'The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,' noted the Saturday Review in 1859." – The author, she suggests, was James Fitzjames Stephen, later Stephen J – "'Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'"
Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
"Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market."
As Thorpe LJ put it in Clibbery v Allan and Another [2002] EWCA Civ 45, [2002] Fam 261, para 87, "the tension between the principle of open justice and the consequent revulsion of respectable opinion at the salacious details of trials in the divorce court appearing in the popular press surfaced almost immediately."
The title of Cretney's article is a reference to King George V. But, as he points out, Queen Victoria had not been amused, writing in 1859 to Lord Chancellor Campbell:
"to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country."
Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell [1924] P 1, ...
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