In response to a question from a reporter at his media briefing this morning the Lord Chief Justice, Lord Judge, outlined his view on "super-injunctions".
Lord Judge :
Can we be clear what we mean by what is called "super-injunction". I understand it to mean that, following an injunction, an order is made that the fact of the injunction shall not be disclosed or published. That is what we are talking about?
"Well, there are many occasions where such an order is amply justified - sometimes against a corporation, sometimes against an individual.
"I will give you a "for instance" of something that happens quite frequently.
"There is very powerful evidence that a defendant is committing fraud. An order is made freezing his assets to prevent him from dealing with them. However, there is good evidence that he has a number of associates in the fraud. If they discover that an injunction is being taken out against him - indeed, if they discover that the stage has been reached where a court is beginning to be interested in the fraud - it would be very easy for them to dispose of their assets, or even leave the country.
"Now in this case I have no difficulty with an injunction being made that the fact of the order should not be disclosed. It is entirely justified.
"The order should only be made if failing to make it would destroy the purpose of the injunction, or cause the very damage that the injunction was designed to avoid. And the process requires that the person against whom any such order is made should be provided with an early opportunity to persuade the court that it is unnecessary.
"If I may go on - because this is an issue which certainly the Guardian newspaper, but not only the Guardian , has been raising in the context of Parliament?
"I am speaking entirely personally but I should need some very powerful persuasion indeed - and that, I suppose, is close to saying I simply cannot envisage - that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect.
"We use the words "fundamental principle" very frequently, but this is a fundamental principle.
"The absolute privilege for Members to speak freely in Parliament did not come without a price and previous generations fought, and indeed died, for it. It is a very precious heritage which, in my view, should be vigorously maintained and defended by this generation.
"There are clear conventions about the circumstances in which Parliament will or will not discuss proceedings in court and I have no doubt these conventions will be followed so as to avoid any possible interference with the administration of justice. That is not because a court has sought to order it, but because Parliament has chosen in the public interest not to insist on its privileges.
"That, I hope, is an answer to your question."
Notes for Editors
- this statement was made by the Lord Chief Justice at a media briefing this morning
- for further information, please contact the Judicial Communications Office on 020 7073 4852; or email Press Enquiries