NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES [27 August 2019] OPEN JUSTICE OPEN JUSTICE “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity” (Jeremy Bentham). 1. The Appeal Division (Judge of Appeal Storey and Deemster Doyle) in Reid v McNicholas (judgment [2] 24 July 2018) referred to the important principles of open justice and stressed the need for courts to be vigilant when the parties consent to derogations for open justice. The Appeal Division referred to Rules 9.2(1), (2) and (3) and stated: “25. Such procedural rules must, of course, be read in light of the leading judgments in this important area of the law. 26. The local jurisprudence is set out in numerous judgments including this court's judgment (differently constituted) in Taylor v Attorney General (No 2) 2012 MLR 199, Deemster Doyle's judgments in Harding and Re Delphi Trust 2014 MLR 51, Deemster Corlett's judgment in Gubay v Willers 2009/11 (J 1734: 3 December 2015) and this court's judgment in Attorney General v Kelly 2017/12 (24 November 2017). 27. The principle of open justice is well established in Manx law. An Act of Tynwald in 1731 referred to the opportunity to be present "in open Court". Deemster Farrant in Myers 1921-51 MLR 331 at page 337 stressed, in the context of apparent bias, that "justice must not only be done but must be seen to be done" (lines 14 – 15). In the 21st century Deemster Kerruish in Byrne 2005-06 MLR N14 (30 March 2006) at paragraph [14] put it succinctly when he stated: "The general rule is that all hearings ought to be in public." 28. In Taylor this court at paragraph [97] stated: "… Anonymity is inconsistent with the overriding requirement for open justice and transparency. We agree with Deemster Doyle that judgments styled like alphabet soup, using the provocative words referred to in Re Guardian News and Media Ltd [2010] UKSC 1, … have no place in the judicial kitchen." 29. In Delphi Trust Deemster Doyle set out the position in respect of open justice generally at paragraphs [51] to [87] stating at paragraphs [60] and [62] on pages 80 – 81: "[60] In another judgment delivered in Taylor v A-G on 17 June 2011 in respect of doleance claims and wasted costs orders I stated at para [32](10): 1 'Wasted costs hearings should, in the normal course of events, take place in open court and the orders and judgments, unless the most exceptional circumstances arise, should refer to the names of the parties and anonymity should not prevail. The overriding requirement in this jurisdiction should be for open justice and transparency. We do not want judgments styled like alphabet soup (to use the provocative words referred to in [Re Guardian News and Media Ltd [2010] UKSC 1 … (at [1]) unless that is, in the interests of justice, really necessary.' [62] There may, of course, be occasions when judgments styled like alphabet soup will be necessary. Anonymity and privacy orders may on occasions have a place in the judicial kitchen in cupboards marked: Family (children), Mental Health (patients) and indeed, as will be apparent from this judgment, one marked Trusts (non-contentious directions). These cupboards will on rare occasions have to be opened, and judgments styled like alphabet soup will have to be produced. For recent examples at appeal level see three judgments delivered by the Appeal Division on 15 October 2013 namely K v G 2013 MLR 432 Re C and B (15 October 2013) and A and B (removal from jurisdiction: shared care) 2013 MLR 455 which appear on www.judgments.im. For an example at first instance see Deemster Corlett's judgment in Re Child 1 and Child 2 (adoption: parental consent: assisted reproduction) 2012 MLR 581 which is also to be found on www.judgments.im The requirement for open justice and transparency has to be balanced against legitimate privacy and confidentiality concerns." 30. Deemster Corlett in Gubay v Willers (3 December 2015) did not accede to an application that a hearing be held in private. The application appears to have been made in an attempt to keep private evidence in respect of Mr Gubay's life expectancy. Deemster Corlett at paragraph 5 stated: "It is important that the principle of hearings not being kept behind closed doors be respected, and I do not believe that Rule 9.2 of our Rules of Court specifically deals with this issue at all …" 31. In Kelly this court at paragraph 12 stated: "The principle of open justice is an important principle in this jurisdiction … The publication of judgments in respect of appeals in open court is an important aspect of that principle …" 32. Across the water on the adjacent isle Lady Hale DPSC put it well in R(C) v Secretary of State for Justice at paragraph 1 when she stated: "The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this 2 principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule. There is a long-standing practice that certain classes of people, principally children and mental patients, should not be named in proceedings about their care, treatment and property. The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 ("the 1983 Act"). The second issue is whether there should be an anonymity order on the facts of this particular case." 33. Deripaska v Cherney [2012] EWCA Civ 1235 was a case involving threats to witnesses by Russian organised crime groups. The appeal was in respect of witness protection orders to protect the witnesses' right of life guaranteed by Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 [the 'Convention']. The judge, Andrew Smith J, had directed himself (and such direction was not criticised by the English Court of Appeal – see paragraph 8 of the judgment) that there would have to be demonstrated a real and immediate risk to the witnesses' lives that is to say that they faced "a real risk that [was] objectively verified and an immediate risk that [was] present and continuing" and that the risk would be materially increased. That criterion was one "that is not and should not be readily satisfied: in other words, the threshold is high". 34. At paragraph 14 Lewison LJ (with whom Munby and Maurice Kay LJJ agreed) referred to the judge taking as his starting point the general principle that justice must be done in public: "Any application to depart from the principle should be allowed only if and to the extent that justice strictly requires. This is not a question of the court's discretion: it is a question whether the necessity for a derogation from the general principle has been established. In considering whether the necessity for a derogation has been established it is appropriate to take into account the extent of the interference with the general rule that is involved. If the restriction relates only to the identity of a witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors. The judge also directed himself that a witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or 3 she will be prejudiced by publicity, since the courts depend on their co- operation. Again neither party criticises the judge's self-direction. Since neither side criticises the judge's formulation of the legal principles, there is no need for this court to engage in jurisprudential analysis." 35. Sometimes anonymity is required because of the risk of death or really serious ill-treatment in violation of the rights protected by Articles 2 and 3 of the Convention. 36. In A v British Broadcasting Corp (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588 Lord Reed JSC delivered the judgment of the court in respect of an appeal which raised important issues concerning the principle of open justice: in particular, issues concerning the legal basis of the principle, the circumstances in which it could be departed from and the procedure which should be followed (paragraph 1 of the judgment). 37. In respect of the first respondent there was a risk of death or ill-treatment and effective protection from the police was unlikely if he was returned to his country of origin (paragraph 6). There had been threats of violence in the past, an attack in a public park and police concerns that a house might be fire- bombed.