Re Trusts of X Charity
| Jurisdiction | England & Wales |
| Judge | The Vice Chancellor,The Vice-Chancellor |
| Judgment Date | 24 June 2003 |
| Neutral Citation | [2003] EWHC 1462 (Ch) |
| Docket Number | Case No. VC24603 |
| Court | Chancery Division |
| Date | 24 June 2003 |
In The Matter of the Trusts of the X Charity
[2003] EWHC 1462 (Ch)
The Vice-chancellor
Case No. VC24603
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Hearing date: Thursday 12 June 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
In the course of the hearing in private of an application by the trustees of a charity for the directions of the court in relation to certain pending proceedings the question arose whether I was obliged by Art.6.1 of the European Convention on Human Rights to give my judgment in public. I heard argument from, amongst others, junior counsel for the Attorney-General. I am most grateful to all of them. I indicated that I was satisfied that I could and should give my judgment in private and would give my reasons for that conclusion later. I have given judgment on the application. What follows are my reasons for concluding that I was entitled to do so in private.
Article 6.1 provides:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
The problem arises from the apparent distinction in the second sentence between the pronouncement of the judgment and the trial.
The hearing of the application was listed to be heard in private as it was an application within the terms of 39PD1.5(10). No application was made for the hearing to be held in public. I was and am satisfied that the nature of the application was such that a hearing in private was "strictly necessary.. .[as] publicity would prejudice the interests of justice." In those circumstances it would be surprising if my judgment, which in practice could not be anonymised, had to be given in public.
I have been referred to three decisions of the European Court of Human Rights which, as provided by s 2(1)(a) Human Rights Act 1998, I am bound to take into account. The first chronologically is Sutter v Switzerland (1984) 6 EHRR 272. In that case a Swiss national was convicted by the Divisional Court of insubordination and failure to observe service regulations during his military service. He was sentenced to 10 days' imprisonment. His appeal on a point of law to the Court of Cassation was dismissed. The relevant complaint was that the judgment of the Court of Cassation had not been given in public and so infringed Article 6.1.
It is apparent from paragraphs 20 and 34 of the report that the judgment was available to any member of the public who could demonstrate an interest in obtaining it and it was in fact published. Thus the argument appears to have been that Article 6.1 requires the court to read out its judgment in public. This contention was rejected by a majority of 11 to 4. In paragraph 33 of the judgment of the majority it is stated:
"The Court does not therefore feel bound to adopt a literal interpretation. It considers that in each case the form of publicity given to the judgment under the domestic law of the respondent state must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6.1."
It is unclear from that conclusion whether the majority considered that the restrictions contained in the second sentence of Article 6.1 apply to the obligation to pronounce judgment in public as well as to the obligation to hold the trial in public. However the concurring opinion of Judges Bernhardt, Bindschedler-Robert and Matscher (p 282) shows that they considered that they do.
The second decision is Campbell and Fell v UK (1985) 7 EHRR 165. In that case two convicted prisoners were injured during a prison disturbance. The Board of Visitors convicted them of breaches of disciplinary regulations and sentenced them to substantial loss of remission. The decision of the Board of Visitors was given in private. The European Court of Human Rights held that there had been an infringement of Article 6.1 in that respect. But the argument was not that the express restrictions contained in the second sentence should be applied to the obligation to pronounce judgment in public. The submission was that such obligation was subject to some other implied restriction. This submission was rejected. In paragraphs 91 and 92 of its judgment the court stated:
"91. The court has said in other cases that it does not feel bound to adopt a literal interpretation of the words "pronounced publicly": in each case the form of presentation given to the judgment under the domestic law of the respondent state must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6.1 in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial.
92. However, in...
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