The prosecution of Max Clifford is just one of a number of recent high profile cases that have contained the revelation of embarrassing private information. The submissions and evidence concerning his anatomical proportions had the press and, in particular, social media in raptures.
It’s about the easiest joke imaginable and Clifford’s previous role as the celebrity spin doctor made the mocking irresistible, even to those usually more restrained. But what if Clifford had been found not guilty? He would be an innocent man, but a laughing stock.
Anyone accused of a sexual offence, inevitably, faces a devastating attack upon their reputation. Those, like Clifford, who have been prosecuted following the now infamous police investigation, Operation Yewtree, are, of course, particularly likely to attract enormous publicity, and scant sympathy, given the high profile of the defendants and the link (albeit highly tenuous in some cases) to the prolific paedophile Jimmy Saville. The interest of the media will be intense and, in most cases, legitimate. And the media have particular reason to be vigilant given that the dazzling glare of stardom may have been the very reason why Saville was never prosecuted for the offences he committed.
But do all cases that have high profile defendants, or any defendant for that matter, need every otherwise private fact revealed? Even alleged offences that do not have to connection to sex can see sexual revelations emerge and, thereafter, subjected to the full glare of publicity. Recall Andy Coulson and Rebecca Brooks whose extra marital relationship has been repeatedly mentioned in Court and reported upon (with added schadenfreude given their previous trade in exposing private lives) during their trial for voicemail interception and related offences. In the same trial Charlie Brooks has faced embarrassing revelations about his pornography collection. Both facts may be pertinent to the case and, therefore, relevant to the judge and jury, but does anyone else really need to know?
Moving towards more obviously sympathetic circumstances perhaps: how about Nigella Lawson? Nigella, not even a defendant, but a witness in the trial of the Grillo sisters, nevertheless had her alleged occasional drug use, but also her financial and household affairs picked over during the trial and then inevitably in the media.
Likewise, some of the witnesses in the Phone Hacking trial, such as Jude Law, Daniel Craig and Sienna Miller have had their private lives rehashed again and analysed in great detail by virtue of having had these private lives exposed by the News of the World during the last decade. Even the excruciatingly intimate voicemail exchanges of Prince William and the then Kate Middleton, neither or whom are witnesses in the trial, were laid bare for public consumption. And this is in a trial where privacy and reporting restrictions have been to the fore, possibly to an unprecedented extent.
Nigel Evans MP, as with Max Clifford, was tried for serious sexual offences. Unlike Clifford, he was found not guilty and has recently had the Tory whip restored so as to bring him back into the fold of the Conservative Party and attempt to reignite his successful political career from the back benches. But the extent to which he can continue after the reputational damage of the trial remains to be seen. The trial process is extremely damaging.
In financial terms, Clifford estimated, before being convicted, that the trial had cost his PR business about £1 million in lost fees. In the Evans case the Court heard detail of the politician’s drunken evenings, “inappropriate passes” and sexual encounters. Following the case he has called for the Home Secretary to reconsider the issue of those accused of sexual offences being entitled the same anonymity as alleged victims given the reputational damage of the prosecution and the trial process.
The glare of a criminal trial is clearly uncompromising and hugely uncomfortable for everyone concerned. Parties to civil Court proceedings should perhaps expect greater latitude, particularly where those proceedings relate to the attempt to protect or prosecute their own privacy rights. Well, not necessarily.
Max Mosley described his experience of bringing a privacy claim as “like going to hospital to have a broken leg treated, only for the doctors to break the other leg, and send you a substantial bill for doing so“. Other privacy claimants may have come to regret enforcing their legal rights due to the process of obtaining justice through Court proceedings. Naomi Campbell’s successful privacy claim was famously mocked by Piers Morgan’s Daily Mirror. Unsuccessful claimants such as Ryan Giggs and John Terry received even less mercy. It is not just Claimants who seek exceptions to the principles of open justice. In Sharma v Associated Newspapers Ltd ( EWHC 399 (QB)) the publishers of the Daily Mail sought anonymity for its witness who had complained of harassment “with a sexual background” by the Claimant. Eady J did not consider that the reasons for the anonymity application were sufficiently serious to depart from the status quo.
The principle of open justice is firmly established in English law. A statement of the principle was set out in the case of Scott v Scott  AC 417. In R v Legal Aid Board, ex p Kaim Todner ( QB 966), the Court stated that it was important not to forget why proceedings need to be held under the full glare of a public hearing because there was a natural tendency for the general principle to be eroded. The reasons given were:
- Open justice promotes the rule of law. Citizens of all ranks in a democracy must be subject to transparent legal restraint, especially those holding judicial or executive offices. Publicity, whether in the Courts, or press, or both, is a powerful deterrent to abuse of power and improper behaviour (see also ex p Guardian Newspapers Ltd  1 WLR 2130);
- It maintains the public’s confidence in the impartial administration of justice;
- It can result in evidence becoming available which would not become available if proceedings are conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed;
- It makes uninformed and inaccurate comment about the proceedings less likely;
- If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked;
- Taking evidence from witnesses out of the glare of public scrutiny allows such witnesses to embellish their testimony rather than to adhere to the unvarnished truth (this sixth reason was added by R v Secretary of State for Health, ex p Wagstaff  1 WLR 292).
Following the Human Rights Act other considerations have come into play. Article 6.1 provides for the following:
“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.”
The presumption is, therefore, that hearings will be in public, but that the Court may exclude the public and media to protect the private lives (a convention right by virtue of Article 8) of the parties. In the Strasbourg case of Doorson v Netherlands (1996) 22 EHRR 330, the Court emphasised an implicit obligation upon the Courts of Convention states to consider whether the press and the public are required to be excluded for all or part of a trial for the protection of the privacy: “principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” In Z v Finland the same Court found Finland in breach of Article 8 of the Convention by disclosing the name of Z’s name and medical information (in a relation to a case whereby one of the issues related to when Z’s husband’s contracted HIV).
The obligation to protect privacy does not seem to be weighing heavily upon the judiciary of the Courts of England and Wales, nor indeed Scotland who have sought to give greater access to the Court, not least by televising Court proceedings. Transparency has been the dominant principle, not least in the Family Courts, which opened its doors to the media in 2009 but, according to Sir James Munby this week, have not gone far enough:
“A vital aspect of this transformation of family justice has to be reform of our still creaking rules about access to and reporting of family cases. Nothing short of radical reform will enable us to rid ourselves of the relentlessly repeated and inevitably damaging charge that we operate a system of private – some say secret- justice”.
In all proceedings, including those in the Family Courts, there are mechanisms whereby the presumption of openness can be overcome by the need for some or all of the proceedings to be heard behind closed doors, but in this jurisdiction the Courts’ doors start to open and will only be closed with increasingly extreme reluctance. In arbitration proceedings, which accounts for a significant proportion of commercial cases (particularly those of a very high value), the doors are firmly closed.
Lord Justice Leveson recommended arbitration as a means of resolving cases involving the press, and in doing so seek to reduce the time and enormous cost that libel and privacy Court proceedings involve. A private mechanism for resolving disputes does not just prevent the exposure of private facts, it can also allow the process to be more efficient, cutting out the need for theatrics and convention that can be a maddening feature of Court proceedings. The drama of the libel Courts comes at a cost and access to justice is too high a price to pay.
Inevitably there is a balance to be struck. The primary purpose of Court proceedings is providing justice. Demonstrating that justice is being done should not be a dominant objective, and its obligation to consider the parties and witnesses to the case, including their Article 8 privacy rights and reputation, should be taken seriously. Leaving a reputation in shreds, no matter what the outcome, should not be shrugged off as an unfortunate but inevitable bi-product of British justice.
Dominic Crossley is a Partner at Payne Hicks Beach and specialises in defamation and privacy law. (With thanks to Andrew Willan, a solicitor in the team at Payne Hicks Beach, assisted with this article).