Cross-posted from Liberal Democrat Voice.
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” That famous aphorism is commonly quoted, though perhaps not in the courts that hand down hyper-injunctions whose very existence is kept secret on the pain of imprisonment. This incredible situation was exposed in Parliament by John Hemming MP, whose work deserves to be widely read.
When you read a hyper-injunction what strikes you is the sheer sweeping arrogance of the way they make themselves almost totally secret. One of the many questions raised these injunctions is how they can be compatible with the right to a fair trial. Article 6-1 of the Human Rights Act (and the European Convention on Human Rights) says:
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 interest 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 point in bold is crucial. While Article 6 allows courts to exclude the public from hearings under some circumstances, there are no circumstances at all where it is acceptable for a judgment to be given in secret. And yet this is exactly what a hyper-injunction means: it makes the parties in a case and its result secret. And Article 6-1 applies just as much to civil courts as it does to criminal courts. So are British judges violating their legal duty to observe the Human Rights Act?
The government’s libel reform bill offers an excellent opportunity to deal with hyper-injunctions. If hyper-injunctions are incompatible with the Human Rights Act, the opportunity becomes an obligation.
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