Independent News and Media Ltd v A [2009] EWHC 2858 (Fam)

The media sought, not that the CoP hearing be public, but that they be authorised to attend the hearing and be subject to reporting restrictions. CoP proceedings are excluded from the general 'open justice principle' so the media's Article 10 rights are not automatically engaged, and the court must rather adopt a two-stage approach: (1) Whether a 'good reason' (a gatekeeping test from the Rules, the standard for which is not high) for making the order can be established; (2) If there is a 'good reason', a balancing test must be applied to P's Article 8 rights and the media's Article 10 rights. On the facts: (1) There was a 'good reason' as (a) the issues were already in the public domain, (b) the court's powers can preserve privacy, and (c) it is the public interest to understand how the court operates; (2) The media would be allowed to attend, as the concerns for privacy and publicity could both be met by permitting some reporting but requiring the media to demonstrate what should be allowed. [See appeal judgment.]

Related judgments

Re S (cited in judgment)

The following extract from Re S (A Child) (Identification: restrictions on publication) [2004] UKHL 47, [2005] 1 AC 593B deals with the balancing test:

"The interplay between article 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457B. For present purposes the decision of the House on the facts of Campbell and 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 such precedence 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. This is how I will approach the present case."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

Headnote

PRACTICE — Court of Protection — Hearings in public — Hearings within exceptions to open justice principles — “Good reason” to be demonstrated when applying for hearing to be held in public — Whether necessary to show “good reason” before Convention rights engaged — Human Rights Act 1998, Sch 1, Pt I, arts 8, 10 — Mental Capacity Act 2005, ss 45, 51 — Court of Protection Rules 2007 (SI No 2007/1744), rr 90, 91, 92, 93

Summary

Since Court of Protection proceedings were within the recognised exceptions to the open justice principle article 10 rights were not immediately engaged and it was for an applicant to demonstrate “good reason” before the court was obligated to conduct the conventional balancing exercise between article 10 and article 8 rights.

Hedley J, sitting in the Family Division, so stated when granting applications by Independent News and Media Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, Associated Newspapers Ltd, Telegraph Media Group Ltd, Independent Television News and the Press Association, for permission to attend and report proceedings in the Court of Protection in respect of A, a young adult who, despite possessing remarkable gifts, had severe learning difficulties and was likely to remain dependent on others for care and the management of his affairs.

HEDLEY J said that the Court of Protection Rules 2007, rr 90–93, supplemented by Practice Direction 13A (Hearings: including reporting restrictions), provided that ordinarily hearings should take place in private, that the burden of establishing that a particular case should be heard in public or reported lay on the applicant, and that an application should only be granted where it appeared to the court that there was good reason for so doing. Although there was no statutory commentary on “good reason”, those words did not import a concept of being exceptional and should be given their ordinary meaning. Rejecting the media’s contention that once an application was made under r 91 there was an immediate engagement of article 10 rights obliging the court to undertake the balancing exercise, with “good reason” established if the balance favoured the media, in his Lordship’s view a two stage approach was required. First the court needed to consider whether good reason was established; while its absence would preclude the making of any order at all the standard should not be set too high. Where “good reason” was found that would not automatically entitle an applicant to an order but would obligate the court to undertake the exercise prescribed in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593B, always bearing in mind the statutory purpose. It was for an applicant to demonstrate what should be allowed to be reported rather than for a respondent to show what should be restricted with everything else necessarily allowed. Here, since good reason within r 93 had been demonstrated, the balance was in favour of the media being allowed to attend what were in all other respects private proceedings, and being permitted to report material already in the public domain or which answered the legitimate questions of a reasonable person who knew what was already in the public domain. Such material would include A’s name, the nature of his talent and disability, his reliance on others for care and the management of his affairs but not, inter alia, details of his care and medical treatment, nature of his earnings or family discussions.

Other

[2009] EWHC 2858 (Fam)B; [2009] WLR (D) 332

Fam D : Hedley J : 12 November 2009

Appearances: Guy Vassall-Adams (instructed by Romana Canneti) for the applicants. Gavin Millar QC and Barbara Hewson (instructed by Irwin Mitchell) for the Official Solicitor as A’s litigation friend.

Reported by: Jeanette Burn, Barrister.

Summary from Court of Protection 2009 Report

This involved an application by the Independent Newspaper to attend Court of Protection proceedings relating to a disabled but very talented young man, about whom they and other newspapers had already published a number of articles. The judge concluded that the media should be allowed to attend these proceedings, and should be allowed to report two types of material, namely (1) that which is within the public domain already, and (2) that which answers the legitimate questions of a reasonable person who knows what is presently within the public domain. The Official Solicitor has appealed this decision.

Citations

[2009] EWHC 2858 (Fam)B, [2010] 1 FLR 916B, [2010] Fam Law 357, [2010] WTLR 55

Duplicate Bailii citation number: [2009] EWHC 2858 (COP)B

See also

External links

BAILII

ICLR website

Court of Protection: 2009 Report - published 10/6/10 - Summary on page 17