No Place to Hide? The Privacy of Divorce in the Scottish Courts

Posted On: 09 February 2010

Author: Janys M Scott QC

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The woes of former English football captain and of golfing star Tiger Woods have made publicity in relation to matrimonial indiscretion a hot topic.  In their first decision of 2010 Application by Guardian News and Media Ltd in HM Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 1 the Supreme Court addressed the issue of publicity of court proceedings.  Janys Scott QC was one of an international team of speakers discussing media intrusion in family law at the Four Jurisdictions Family Law Conference in Dublin on 30 January 2010.  Her paper as delivered, with changes to reflect the Supreme Court's decision, is attached.

NO PLACE TO HIDE?
THE PRIVACY OF DIVORCE IN THE SCOTTISH COURTS

[1]  Privacy of divorce proceedings in Scotland is in a state of confusion.  The general principle is that all judicial proceedings are heard and determined in public.  Scots law and procedure held to the principle of "a fair and public hearing" long before the principle was enshrined in article 6 of the European Convention on Human Rights.  The principle applies in divorce proceedings just as in other proceedings.  In a Scottish divorce all issues are generally determined together, that is the divorce, financial provision and the future of children.  If the case requires final judicial determination then the judge sits in a court that is open to the public and hears the case.  The press, the friends and relations and the general public can all sit and listen. 

[2]   The general restraint on the press remains the Judicial Proceedings (Regulation of Reports) Act 1926.  This is a measure that applies in Scotland, England and Wales, not Northern Ireland.  It is designed, according to the long title, to prevent injury to public morals.  It contains a general prohibition on publishing indecent matter from judicial proceedings.  Divorce proceedings are clearly regarded as a particular threat to public morals, as there is an express ban on publishing anything other than:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and counter-charges 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.

[3]  This Act was the subject of comment in the Supreme Court in a judgment given on 27 January 2010 in a case involving anonymity orders for alleged Al-Qaida facilitators (Application by Guardian News and Media Ltd in HM Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 1).  Aggrieved parties in family proceedings now have the highest authority for comparing their about to be ex-spouses with terrorists. 

[4]  The origins of the Act lie in the unhappy circumstances of the birth of a child, whose appearance sadly gave rise to lengthy proceedings for divorce before a jury in the High Court in London.  In the first trial the jury disagreed, and the case was reheard, at great expense and to the considerable embarrassment of those concerned as "the most private and embarrassing marital intimacies were investigated and extensively regaled to a salacious public" (Ampthill Peerage Case [1977] AC 547, per Lord Simon of Glaisdale at p575B-D).  Parliament were alarmed and passed the 1926 Act.  Ironically the baby at the centre of the furore went on to become the deputy chairman of Express Newspapers Limited. 

[5]  Lest it is thought that this old statute has no modern relevance, it was given a face-lift by the Civil Partnership Act 2004, which extended its application to dissolution of civil partnership.

[6]  Contravention of the 1926 Act carries criminal sanction. Only a proprietor, editor, master printer or publisher is liable to be convicted, but on summary conviction those persons may be fined up to level 5 (currently £5,000). The offence also carries a penalty of imprisonment for up to four months.  There does not appear to have been a plethora of prosecutions.  In 1998 five Scottish newspapers carried reports about divorce proceedings in the sheriff court in Paisley between a Mr and Mrs McIlroy.  The procurator fiscal in Paisley prosecuted all five in Paisley sheriff court.  The prosecution failed on the ground that the sheriff in Paisley did not have jurisdiction to try the case as the offence had not been committed in the relevant sheriff court district.  The procurator fiscal argued that the circulation of the newspapers concerned in Paisley resulted in the principal harm being done in that area.  The sheriff, whose decision was sustained by the High Court of Justiciary held that the newspapers had not been published in Paisley.  A newspaper is published for the purposes of the 1926 Act at the point where it is printed and the publisher offers it for sale or distribution. The decision of the High Court of Justiciary was delivered by the Lord Justice-General Lord Rodger who rejected the Crown's argument partly because it "rested on a misunderstanding of the purpose of the legislation: it was not introduced to protect the privacy of those involved in the proceedings but to prevent injury to the morals of those who might read the reports in the newpapers" (Friel v Scott 2000 JC 86). Lord Rodger, giving the unanimous judgment of the Supreme Court on 27 January 2010 confirmed this is the purpose of the legislation.

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