PRACTICE — Court of Protection — Hearings, public or private — Permissive power to permit attendance at and reporting of proceedings — Application by media for such authorisation — “Good reason” to be demonstrated — Proper approach to determination of such applications — Whether necessary to show “good reason” before Convention rights engaged — Human Rights Act 1998, Sch 1, Pt 1, arts 8, 10 — Mental Capacity Act 2005, s 51 — Court of Protection Rules 2007 (SI 2007/1744), rr 90, 92, 93
Hearings held in the Court of Protection would normally be held in private but in certain circumstances the media could be authorised to attend and report proceedings.
The Court of Appeal so stated when dismissing (i) the appeal of A, by his litigation friend, the Official Solicitor, and (ii) the cross-appeal of Independent News and Media Ltd, Associated Newspapers Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, Telegraph Media Group Ltd and the Press Association from a decision of Hedley J  EWHC 2858 (Fam), sitting in the Family Division on 16 November 2009, granting the media groups’ application for authorisation for the attendance of a limited number of media representatives at what would otherwise be a private hearing, who would then, having listened to the case, be able to make informed submissions about what, if any, matters they should seek to publish.
A was a 30-year-old man who was blind and suffered from other severe disabilities but was gifted with the abilities of a musical prodigy. The judge had considered such matters as the danger of confusing the public interest with matters which the public found interesting; the concern that this particular case would receive a degree of publicity and attention when A’s story arose from circumstances quite beyond his control; and the public interest in having the issues raised for A and the media heard in public, and also in the jurisdiction and powers of the Court of Protection, and how they were exercised, being understood. He had also considered arts 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and concluded that the legitimate concerns for A’s privacy and the legitimate aspirations of the media could both be met by the order he was to make: there was good reason for a partial lifting of the embargo on the presence of a limited number of representatives of the media at the hearing. A appealed against the authorisation and the media cross-appealed as to the judge’s findings about the applicability of art 10 of the Convention.
LORD JUDGE CJ, giving the judgment of the court, said, in relation to A’s appeal, that r 90 of the Court of Protection Rules 2007, made under s 51 of the Mental Capacity Act 2005, was clear: hearings would normally be held in private. However, the court was vested with a permissive power to enable anyone, or any class of people, to be present at the hearing; and the permissive power was not confined to but included representatives of the media. Similarly, with the court’s jurisdiction to authorise the publication of information which related to the proceedings, including the hearing itself: anyone or any class of people could apply. None of such orders could be made unless there was “good reason” for making it: r 93(1). No doubt more compelling reasons would be likely to be required in support of a full public hearing rather than a suitably anonymised publication of the court’s judgment; and where good reason appeared, before the necessary authorisation could be granted better reasons might lead the court to refuse it. Provided good reason existed, the court would then assess all the relevant considerations and make a balanced, fact-specific judgment whether the specific authorisation should be granted. Thus, before the court made an order under rr 90 to 92, a “two-stage process” was required: the first involved deciding whether there was “good reason” to make an order under r 90(2), 91(1) or 92; and if there was, the second stage was to decide whether the requisite balancing exercise justified the making of the order.
The correct approach to the judge’s decision was identified in Lord Browne of Madingley v Associated Newspapers  QB 103, para 45: the court should not interfere “unless the judge has erred in principle or reached a conclusion that was plainly wrong or, put another way, was outside the ambit of conclusion which a judge could reasonably reach”. It was submitted for A that there was nothing, or nothing of any special significance, which the attendance of the media at the hearing would reveal and for which authorisation to publish would be granted. However, it was just because A’s remarkable situation, including (in particular through the medium of the published biography) details of his private life, was already in the public domain that the interests of the public and the media were legitimately engaged, and there was nothing prurient about that interest: on the contrary, it told us all something, perhaps indefinable, but for all that something inspiring about the triumph of the human spirit over adversity. The presence of selected representatives of the media, in limited numbers so that the hearing was not turned into a publicity circus, would ensure that matters of legitimate public interest could be drawn to the attention of the judge as possible matters for publication. However the litigation was about A’s interests, and the involvement of his devoted family, and the judge after a hearing had to concentrate on them and would produce a judgment which reflected his decision about the matters in issue before him. He was not qualified to determine what was or might be of interest to the public: that was the function of the media, not the judiciary. In any event, it would be an inappropriate exercise of a judge’s responsibility if he were to tailor the contents of his judgment to what he believed to be the needs or concerns of the media. Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which might be of legitimate interest to the public and to make better informed submissions to the judge about the matters for which publication should be authorised. Further, it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes and it was valuable for the public to be fully informed of precisely what happened in a court in which the overwhelming majority of hearings were, in accordance with the statutory structure governing its process, to be conducted in private.
In relation to the media cross-appeal: the considerations which arose under art 8 of the Convention were effectively encompassed within the legislative structure of the 2005 Act and the rules made under it: the privacy rights of those involved in proceedings in the Court of Protection were addressed by the over-arching principle that the hearing should normally be a private hearing from which the media, or indeed any other outsiders, were excluded; and rr 90 to 93 also complied with art 6. When deciding whether to exercise any power under rr 90(3), 91(2) or 92, even in the absence of the Human Rights Act 1998, the court would give very great weight to the actual or potential invasive or other effect which an order might have on the private or family life of any person whose privacy was intended to be protected by r 90(1); and, in many cases, or the great majority, art 8 of the Convention would add little, if anything, to the reasoning or conclusion of the court. However, whenever the court was considering whether to exercise any of its powers under rr 90 to 93, it should, as the judge did, specifically consider the art 8 rights of any party whose private life might be in some way intruded upon if an order was made. While in the great majority of cases art 8 considerations would add nothing to the factors, or even the weight to be accorded to the factors, which the common law would require to be taken into account, in rare cases it might intensify the focus on such rights, and in other cases it could conceivably affect the outcome.
Turning to art 10: s 12(4) of the 1998 Act made particular provision relating to freedom of expression, by emphasising that, when issues relating to freedom of expression might arise, the court had to have particular regard to its importance. The judge held that the art 10 rights of the media were not engaged until “good reason” had been established under r 93(1); in other words, that such rights were not engaged until the “second stage”; but the media contended that such rights were engaged at the very earliest stage of the process, in effect before it began, but, if not then, at the moment when any application for an authorisation was made. The statutory structure properly and sufficiently ensured that the art 10 rights of the media were given their proper weight in the process. The question when art 10 was engaged would therefore, at least normally, not matter in any particular case where the court was being asked by the media to make an order under rr 90 to 93. As with art 8, the factors which the common law would require to be taken into account, and the weight to be given to them, would usually be the same as if the issue was being addressed by reference to art 10. Nonetheless, again as with art 8, if art 10 was engaged, it might involve a more intense focus than under the common law, and it could conceivably sometimes yield a different result. On the face of it, there was considerable force in the view that art 10 was not engaged until the court had decided that there was “good reason” under r 93(1)(a). However, having regard, inter alia, to In re Guardian News and Media Ltd  2 WLR 325, Leander v Sweden (1987) 9 EHRR 433, Atkinson, Crook and The Independent v United Kingdom (Application No 13366/87) (1990) 67 DR 244, Tarsasag a Szabadsagjogokert v Hungary (Application No 37374/05) 14 April 2009 and Sdruzeni Jihoceske Matky v Czech Republic (Application No 19101/03) 10 July 2006, the conclusion in this case was that art 10 had been engaged at the time that the application was made by the media. However, the fact that the court took a different view from the judge, to whom not all the authorities had been cited, could not possibly mean that his decision was flawed: if he had concluded that art 10 was engaged at an earlier stage than he concluded, it would, at best, have reinforced his view that the media had shown “good reason” at the first stage of his two-stage process.
Independent News & Media Ltd and others v A  EWCA Civ 343;  WLR (D) 94
CA: Lord Judge CJ, Lord Neuberger of Abbotsbury MR, Sir Mark Potter P: 31 March 2010
Appearances: Gavin Millar QC and Barbara Hewson (instructed by Irwin Mitchell) for A; Antony White QC and Guy Vassall-Adams (instructed by Independent News & Media Limited) for the media groups.
Reported by: Matthew Brotherton, barrister