All your resources at your fingertips.Learn More
' I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.'Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.
 The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.
"A large and important book that should be on the shelf of every family lawyer." Sir James Munby
 The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords inCampbell v MGN Ltd  2 WLR 1232. For present purposes the decision of the House on the facts of Campbelland the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as suchprecedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166 and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25,  1 AC 338. In Lifely v Lifely  EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:
' The Campbell case also involved the balancing of Miss Campbell's right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court "to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure." For Article 10 in that case, read Article 6 in this [Lifely]case.
 In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the "ultimate balancing test" [as above]:…
 In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew's property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,…was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.'
'No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.'This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).