APPENDIX 3: MAIN FINDINGS OF THE MASTER
OF THE ROLLS' COMMITTEE ON SUPER-INJUNCTIONS
The principle of open justice
is a fundamental constitutional principle, although it is not
an absolute principle. Derogations from open justice can only
properly be made where they are strictly necessary in order to
secure the proper administration of justice.
Frequency of super-injunctions:
since the Terry case, as far as the committee was aware,
only two known super-injunctions have been granted to protect
information said to be private or confidential.
Super-injunctions in principle:
as they incorporate derogations from the principle of open justice,
super-injunctions and anonymised injunctions can only be granted
when they are strictly necessary.
Practice Guidance should
be issued, setting out the procedure to be followed when applying
for interim injunctions, with the aim of protecting information
said to be private or confidential pending trial. It should stress
the importance of properly complying with section 12 of the Human
Rights Act 1998.[247]
Fast-track appeals: it
is already possible to seek expedition of appeals from such orders.
No new procedures are necessary.
Communications between the courts and Parliament:
Parliament's sub judice rule supports the rule of law and
ensures a citizen's right to fair trial is not compromised. There
is no adequate mechanism to enable the relevant parliamentary
authorities to ascertain whether there are active proceedings
in place. Consideration should be given to establishing a secure
database containing details of super-injunctions and anonymised
injunctions held by Her Majesty's Courts and Tribunals Service,
which could be easily searchable following any query from the
House authorities.[248]
Parliamentary privilege and court orders:
No super-injunction, or any other court order, could conceivably
restrict or prohibit parliamentary debate or proceedings; it would
be unconstitutional.
Media reporting of parliamentary proceedings:
media reporting of parliamentary proceedings is protected by the
Parliamentary Papers Act 1840, which provides qualified privilege
for individuals who publish a summary of material published in
Hansard. Qualified privilege arises where such a summary is published
in good faith and without malice. There is no judicial decision
as to whether a summary of material published in Hansard which
intentionally had the effect of frustrating a court order would
be in good faith and without malice.
247 Practice Guidance: Interim Non-Disclosure Orders
was issued by the Master of the Rolls with effect from 1 August
2011. Back
248
Practice Direction 51F provides for a pilot scheme for the recording
of data relating to non-disclosure injunctions with effect from
1 August 2011. Back
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