Public Guardian v JM (Rev 1)

On 16 January 2014 I issued Practice Guidance: Transparency in the Court of Protection: Publication of Judgments [2014] COPLR 78. In paragraph 17(iv) I indicated that in “any case where the issues include whether a person should be restrained from acting as an attorney … or that an appointment should be revoked” the starting point is that “permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published.”

In paragraph 20 I said this:

“In all cases where a judge gives permission for a judgment to be published:

(i)

public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;

(ii)

the person who is the subject of proceedings in the Court of Protection and other members of their family should not normally be named in the judgment approved for publication unless the judge otherwise orders;

(iii)

anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.”

I emphasise that there was nothing novel in this approach. Although P’s identity (like the identity of a child in proceedings in the Family Court, protected by section 97 of the Children Act 1989) is usually protected by an order made in accordance with rule 91 of the Court of Protection Rules 2007, it has long been settled law that section 12 of the Administration of Justice Act 1960 does not protect the identities of those involved in the proceedings. If the anonymity of persons other than P is to be preserved, an order of the court is required. The burden is on those seeking such an order to establish the need for anonymity; not on those seeking publicity to establish why there should not be anonymity: see A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, paras 129-131.

This is reflected in paragraph 27 of PD13A, Practice Direction A – Hearings (including reporting restrictions):

“The aim should be to protect P rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified … other persons … in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order.”

On 11 February 2014 Senior Judge Lush gave a judgment, Re DP, The Public Guardian v JM [2014] EWCOP B4, explaining why he was revoking, under section 22(4)(b) of the Mental Capacity Act 2005, a lasting power of attorney executed by DP dated 31 October 2011 and registered by the Office of the Public Guardian (OPG) on 20 February 2012. It appointed a man referred to in the judgment as JM to be DP’s sole attorney. As the Senior Judge observed, the judgment therefore fell within paragraph 17(iv) of the Practice Guidance.

The judgment is freely available to all on the BAILII website. Extensive quotation is therefore unnecessary. The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had “behaved in a way that has both contravened his authority and has not been in DP’s best interests.”

Amongst the matters to which the Senior Judge drew specific attention in his judgment were the facts (i) that JM had sold DP’s house for £165,000 and placed the net proceeds of sale in an account in his name (subsequently arranging to put the account in DP’s name when he became aware that the OPG was investigating), (ii) that JM had attempted (unsuccessfully) to persuade Aviva to transfer DP’s investment bond into an account in his own name, (iii) that JM had made a gift to himself of £38,000 from DP’s monies (this being a breach of section 12 of the Act), (iv) that JM was unable to account for drawings from DP’s monies totalling £10,020, and (v) that JM had paid himself a ‘salary’ totalling £8,340 (a claim that the Senior Judge described as an “inherent artificiality” and in any event a breach of the terms of the lasting power of attorney).

As the Senior Judge records in his judgment, JM had asked why he was still being investigated by the OPG when the police, following an investigation, had concluded that he had no case to answer. As the Senior Judge commented drily (para 44):

“The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM’s guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable.”

The Senior Judge did not name JM in his judgment. He did not explain why (nor, indeed, is there anything in his judgment to show that this is a matter to which he expressly directed his mind). Possibly bearing on the point are certain matters to which he did refer: the fact that JM lives in the Dartford postcode area, that he had known DP since 2006 and been her gardener when she lived in Orpington, and that DP is now living in a residential care home in the London Borough of Bromley.

On 10 March 2014 the court appointed Suzanne Jane Marriott of Charles Russell Solicitors to be DP’s property and affairs deputy.

On 17 March 2014 the Daily Mail published a prominently displayed story about the case. Headlined ‘Handyman took £200,000 from woman, 89, after secret court gave him control of her bank account’, the story expressed strong criticism of the fact that JM had not been named:

“Astonishingly, although the court has now ruled the man can no longer manage the woman’s affairs, it has ruled that his name should be kept secret.

Details of the case were disclosed in a Court of Protection judgment under new legal rules demanding greater openness.

But critics said the ruling wrongly protects the gardener and leaves other elderly and vulnerable people and their families without warning of his record.”

Mr John Hemming MP was quoted as saying:

“This is not exactly naming and shaming.

It is clear that the secrecy here is acting to protect someone who has been trying to extort money from someone, and will do nothing to protect other elderly people in a similar situation.”

The following day, 18 March 2014, the Daily Mail published an equally prominent story under the heading ‘So why wasn’t he charged? Outrage over gardener who ‘fleeced’ widow, 89: MPs criticise secret court that let him get off scot-free’. The tone of the article can be gauged from the following extracts:

“Anger grew yesterday after it was revealed that a gardener who drained £200,000 from the accounts of a vulnerable elderly woman will escape punishment … Legal experts yesterday described the decision not to pursue a case for theft or fraud as ‘astonishing’ and challenged the common sense of the rules that allowed him to get away scot free.”

A criminologist was quoted as saying:

“This is a particularly astonishing case because on the surface it is a very clear-cut case of fraud and exploitation of a vulnerable person. The most disturbing thing is that this case has not resulted in a charge in the criminal courts.”

The clear innuendo is that JM is a thief who has escaped his just deserts because of a failure of the criminal justice system.

On 3 April 2014 Associated Newspapers Limited (ANL) the publishers of the Daily Mail applied to the court for an order permitting the identification of JM in reports of the case. At my direction the application was listed before me. On 30 May 2014 I gave directions. My order contained a recital that there was no need for DP to be joined as a party “so long as her interests are represented as provided for below.” Paragraph 2 of the order invited the deputy “to make such representations on behalf of DP in relation to the application as may be appropriate in her best interests.” The application came on for hearing on 18 June 2014. ANL was represented by Ms Victoria Jolliffe. DP’s deputy did not appear, but Ms Grainne Feeney of her firm was in court with a watching brief. JM appeared in person. He made clear that, despite having only very recently received some of the papers, he did not want an adjournment and wished the hearing to proceed. Both the OPG and the deputy had confirmed to the court in writing that they took a neutral stance, the deputy’s neutral position being confirmed to me by Ms Feeney.

At the end of the hearing I announced my decision, namely that the person referred to as JM in the Senior Judge’s judgment may be identified in reports of the case. I now give my reasons.

I make clear at the outset what this application is about and what it is not about.

JM complains that ANL is wrongly and unfairly branding him as a thief and, thus, trying to go behind both the decision of the CPS not to prosecute and, indeed, the terms of the Senior Judge’s judgment. He says that he is being used as a scapegoat by ANL which is using his case to make a political point in order to get the law changed. ANL, he says, is being very unfair to him. Ms Jolliffe responds that ANL is merely exercising its right of fair comment in relation to a public judgment.

The fact is that I am not, I cannot be, concerned with any of these matters. If JM is being defamed or treated unfairly by a newspaper he has remedies elsewhere. But they are not matters for this court. I venture to repeat what I said in Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] FLR forthcoming, para 26:

“So far as concerns the relationship between the media and the court I … merely repeat … , so as to emphasise, three key principles (Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, paras 37-39). First, that “It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish”. Second, that “Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is … not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar”. Third, that “It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory … If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction.”

Exactly the same goes, in my judgment, for the Court of Protection.

What I am concerned with is simply and solely whether JM should be identified, a matter to be determined in accordance with well established principles equally applicable in the Court of Protection as in the Family Court: see, in addition to the authorities already referred to, In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, sub nom Re Webster (A Child) [2007] EMLR 7, and Independent News and Media Ltd and others v A [2010] EWCA Civ 343, [2010] 1 WLR 2262.

Ms Jolliffe draws my attention to what Lord Rodger of Earlsferry JSC said, giving the judgment of the Supreme Court, in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] 2 AC 697, paras 63-64. The passage is well-known, at least in some quarters, but merits quotation in full for the benefit of those practising or sitting in the Court of Protection (or, for that matter, in the Family Court):

“63

What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed … This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64

Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that

“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.”

Ms Jolliffe correctly acknowledges that, in addition to the rights under Article 10 enjoyed by both ANL and its readers, I have to have regard to and weigh in the balance both JM’s Article 8 rights and DP’s Article 8 rights. DP’s Article 8 rights – her interests and her welfare – are plainly of great importance. I must, to adopt the words of Lord Steyn in In re S, paras 17, 25, subject them to “intense focus” and “measure the nature of the impact” on DP of what is proposed. So too, in relation to JM’s Article 8 rights.

So far as concerns the impact on DP if JM is identified, Ms Jolliffe submits that it is likely to be minimal. In his judgment the Senior Judge quotes the Visitor’s report dated 28 March 2013 as saying that DP has a diagnosis of dementia with confusion and as reporting that, when given JM’s name, DP replied, “It sounds familiar – but I don’t know who he is.” Moreover, Ms Jolliffe submits, identifying JM would identify DP only to the limited number of people who already know her and who already know that JM was either her gardener or her attorney. Put another way, she submits that the number of people, over and above those who can already identify DP from the anonymised judgment, who will be able to identify her if JM’s name is published, is likely to be minimal. JM disputes this. He says that readers would link him with DP. Revealingly he also says that everyone locally, everyone in his community, knows about him and DP. But far from blunting her point that seems to me to support Ms Jolliffe’s basic submission.

In my judgment, the impact on DP if JM is identified is indeed, as Ms Jolliffe submits, likely to be minimal. Quite apart from DP’s current state of health, the reality is that few if any additional people will be able to link JM to DP if he is now identified. Almost all, in my assessment, are already ‘in the know’, either because they were already aware of what was happening or because, having read the Daily Mail articles, they have been able to make the link.

What of JM’s Article 8 rights?

Ms Jolliffe submits that an important question here is to identify the additional impact on JM of being publicly identified over and above the impact already occasioned by the Senior Judge’s findings and the publication of his anonymised judgment. While on JM’s own case there will be many, already ‘in the know’, who have in all probability made the connection between him and the anonymous man referred to in the Daily Mail articles, it is idle to imagine that the publication of his name, and no doubt his photograph, will not have a very significant additional and unpleasant impact on him.

But – and this is Ms Jolliffe’s key submission – any impact of this additional unwelcome publicity on JM must be balanced against, and, she says, is heavily outweighed by, the public interest in reporting court proceedings and identifying individuals found by a court to have committed serious wrongdoing. Why, she asks rhetorically, should a wrongdoer like JM, guilty she says of serious misconduct, have any reasonable expectation of privacy in respect of his wrongdoing. Even if his Article 8 rights are engaged in these circumstances, which she questions, they can, she says, carry very little weight. His misconduct should be exposed. There is, she submits, a very strong public interest in identifying an individual who has acted, as JM has, in serious breach of his duties as attorney to someone as vulnerable as DP.

There is also, she says, a public interest in identifying JM, in circumstances where any impact on DP will be minimal, so as to avoid any perception that the court is in some way protecting him. For the unintended consequence of what has happened thus far is, she says, a perception that the court is protecting JM as opposed to DP. Identifying JM will in fact, she says, further the objectives of the Practice Guidance, improving public understanding of the court process and confidence in the court system. She points to paragraph 11, which says that use of the rubric which conventionally protects the identity of P and members of P’s family “may be inappropriate in cases where findings have been made against a person and someone else contends and/or the court concludes that it is in the public interest for that person to be identified in any published version of the judgment.” All the more so, where, as here, JM is not a member of DP’s family.

I agree with the thrust of Ms Jolliffe’s submissions. At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge’s findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be if his self-same conduct was being considered in the Chancery Division or the Crown Court?

The only possible argument to the contrary is dependent upon the impact, if any, on DP. But the reality, as I have already concluded, is that any impact on DP is likely to be minimal.

In these circumstances, and with all respect to the Senior Judge, the balance comes down heavily and decisively in favour of the public being told who JM is; in favour of the Daily Mail and others being free to identify him as the person referred to by the Senior Judge in his judgment. JM is John Marney.

ANL is accordingly entitled to the order it seeks.