V v Associated Newspapers Ltd & Ors

In December 2015 this case attracted a considerable amount of media attention much of which can be characterised as reporting that engaged the prurient interest of the public in the personal details of the lives of others rather than the public interest in important issues relating to:

The COP concluded that the subject of the proceedings (C) had capacity to make the relevant decisions, she decided to refuse the treatment and died.

At the hearing on the issue of capacity MacDonald J, sitting as a judge of the COP, heard oral evidence from one of C’s adult daughters about C’s lifestyle and from three psychiatrists. He gave a public but anonymised judgment which contains a description of aspects of C’s life and lifestyle. It is reported as Re Kings College Hospital NHS Foundation Trust v C & V [2015] EWCOP 80.

The application before me is for a reporting restrictions order that extends beyond the period of the reporting restrictions order granted at the first hearing for directions in the case and was not altered by Macdonald J. By its terms it ended on C’s death.

At the hearing before me, as they had at an earlier out of hours hearing before Theis J, the media Respondents argued that I should dismiss the application. I am pleased to record that since then they have all recognised that I can and should make a reporting restrictions order.

A dispute remains on the duration of that order which engages the general approach that the COP should take to granting reporting restrictions orders / anonymity orders. Whilst:

Other issues have been raised since the hearing before me and I will return to them.

My discussion of the general approach to be taken by the COP explains why I agree with the parties to this application that an injunction should be granted. It also shows the approach that I think should be taken to the assessment of the competing factors on the disputed issue of its duration. More generally, I hope that it, and the points I raise in the Schedule to this judgment concerning the transparency pilot introduced from 29 January 2016 by a Practice Direction (the Transparency Pilot) and serious medical treatment cases, will be of assistance in:

I have concluded:

The COP proceedings were brought by King’s College Hospital NHS Trust (the NHS Trust) by way of an urgent application on 9 November 2015. Moor J, the urgent applications judge, made a reporting restrictions order in the terms proposed by the NHS Trust and gave directions for the urgent provision of an independent assessment of C’s capacity, so that the application could be determined on 13 November 2015. The applicant before me (V) and her sister (G) who are adult daughters of C were made aware of the application by the NHS Trust. V instructed solicitors and was made a party to the proceedings but G was not.

The reporting restrictions order was based on a precedent that has been used for some time and included terms preventing:

At the hearing on 13 November 2015, MacDonald J did not consider further the reporting restrictions order made by Moor J but approved its continuation. V was too distressed to give oral evidence, and her sister G, who was not legally represented, gave oral evidence. Mr Brian Farmer of the Press Association attended the hearing and subsequently published a summary of the case on 13 November 2015. He has told me that MacDonald J announced his decision at about 8 pm and that, contrary to Mr Farmer’s general (and in my view helpful) practice he did not raise the issue of reporting/naming after C’s death because of the obvious distress of C’s daughters. His summary was picked up by others and was published by them.

This publicity contained a photograph of the Royal Courts of Justice and did not identify C. The headline and opening three paragraphs of this Press Association report were:

Woman “mentally capable of refusing medical treatment”

A woman has persuaded a judge that her 50-year-old mother - -who wants to die because she thinks she has lost her “sparkle” -- is mentally capable of deciding to refuse medical treatment in hospital.

The woman told Mr Justice MacDonald that no one in the family wanted her mother to die.

She said she thought that her mother had made a “horrible” decision.

MacDonald J’s judgment was emailed in draft to the parties’ legal representatives on 25 November 2015, with suggested typographical amendments to be returned on 27 November 2015.

After the hearing C was moved to a hospice where her condition deteriorated. She died on Saturday 28 November 2015. V and her sister G had spent the last two nights of their mother’s life at the hospice sleeping on camp beds next to her.

MacDonald J’s judgment was handed down (without attendance) on 30 November 2015 and published on Bailii that day or shortly afterwards. The judge had not been informed of C’s death and, as I understand it, he had not been informed whether or not C had refused the life-saving treatment that her doctors were advising her to have if she wished to live.

After publication of the judgment, there was a significant increase in media interest in reporting the case. It was featured in a number of newspapers and was discussed on Radio 4’s Today programme. In the Guardian, a columnist criticised the evidence of C’s family, and its acceptance by the court. V’s solicitors received 24 press enquiries on 2 December 2015. Around 40 of the people who contacted G around this time told her that they had been approached by journalists.

On 2 December 2015, an application was made out of hours by V for an interim order that the reporting restrictions order be extended. This was granted by Theis J until 9 December 2015. In that order, the members of C’s family from whom information was not to be sought were identified in a confidential attached schedule.

On 3 December 2015, Theis J gave her reasons for extending the reporting restrictions order in a written judgment ([2015] EWCOP 83). In it she records that, based on a short hearing and limited submissions, she was of the view that “there is no public interest in C or her family being identified.”

The application came before me on 9 December 2015. In summary, the statements filed in support of it show that:

Before the reporting restrictions order was extended:

More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.

Some of the coverage contains pixelated photographs of C, V and G. It is plain that some of these photographs have been chosen as photographs that emphasise the aspects of the published accounts that are of prurient interest and there is at least a risk, particularly in respect to C, that she would be recognised by some people.

Examples of reporting in the Times (4 December), the Daily Mail (6 December) and the Sun Online (6 December), are highlighted by V:

The only evidence filed on behalf of the media Respondents for the hearing on 9 December 2015 was sworn by a solicitor and it related to issues concerning the service of the reporting restrictions order, getting copies of it and the giving of notice of the out of hours hearing before Theis J. This evidence was not directed to a request for more time to consider or to take instructions on the evidence put in on behalf of the Applicant or the issues.

I acknowledge that the media Respondents had very little time to consider and respond to that evidence (some of which was served the day before) but:

Naturally I accept that this evidence has not been tested by cross examination and that some parts of it might be disputed, but to my mind:

I acknowledge that:

But, in my view it should have been clear to anyone with any compassion that the focus of much of the reporting on C’s lifestyle, some of the pixelated photographs that were used, and the nature of some of the approaches and investigations pursued by journalists would greatly add to the distress of C’s family and in particular that of her adult daughters. I am satisfied that it did so and that V and G are correct in asserting that much of the publicity was precipitated not only by a wish to report and comment on the bases on which the Court reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with them and A).

Further, in my view it is obvious that the naming or other identification of C and her family would increase the distress caused to C’s family.

This is natural because it is one thing for the family to have to endure media attention that will identify them to some and quite another for them to have to endure media attention that names them and so makes them known to a much wider range of people who could subject them to on line and internet comment or in the case of the youngest daughter to problems at school.

To my mind, it is obvious that it is very likely if not inevitable that if C and members of her family were identified in it that both of the following would be significantly more distressing to the members of C’s family and particularly all of her children:

A (the teenage daughter) is in a different position to her adult sisters because she was shielded from the earlier publicity, or at least from some of it, and for very understandable reasons she has not been asked about it or her reactions to it.

However, there is compelling evidence from the family and a teacher, which I accept, that there is real risk (in the sense of it being more likely than not - rather than a risk that cannot sensibly be ignored) that the identification of C and her family would cause serious and possibly long term harm and distress to A. Indeed, I consider that this would be much more likely than not.

These levels of distress and risk for and to C’s family and the Convention rights and public interests they engage have to be weighed against the Convention rights and public interests that favour accurate and fair reporting and publicity of the subject matter of these proceedings with or without C and so her family being identified.

At the hearing Counsel for the media Respondents:

This stance was taken against the background of a submission that as a matter of law either:

In light of the comment made by Theis J, and the need for a balancing exercise if I was against the media Respondents on their legal arguments, I asked counsel whether his clients wanted to put in any evidence or comment on why the balance was that it would be in the public interest to publicise C’s identity. I also asked if they wanted an opportunity to put in evidence on:

Counsel took instructions over lunchtime and informed me that he had instructions:

As appears from my ex tempore judgment ([2015] EWCOP 88) I was not persuaded by those legal arguments, and made the point that in my view the wider points that the media Respondents had indicated they would like to address engaged the public interest in the administration of justice, as had been identified and accepted by their counsel.

I extended the order made by Theis J until 4.30 pm on the day I handed down this judgment. I did not set time limits for such further evidence and comment. It arrived at the end of January 2016 in the form of (a) a witness statement from Mr Steafel (the Deputy Editor of the Daily Mail) dated 27 January 2016, (b) a note from Gavin Millar QC and Adam Wolanski of counsel on behalf of the first, second and third Respondents dated 28 January 2016 and (c) a note from Independent Print Ltd (IPL) dated January 2016.

The Applicant responded through submissions by her counsel dated 12 February 2016 and on 24 February 2016 counsel informed me that his media clients did not want to make any further comments.

I have identified two relevant cases have been reported since the hearing on 9 December 2015 and pre-date the further submissions. They are R (on the application of C) v Secretary of State for Justice [2016] UKSC 2 and PJS v News Group Newspapers Ltd [2016] EWCA Civ 100. I have also been referred by counsel to Re W (Children) [2016] EWCA Civ 113 and Affaire Societe de Conception de Presse v France [2016] ECHR 216 – judgment in French, with translation by Hugh Tomlinson QC.

No-one asked for a further hearing.

As I have already mentioned, the media Respondents have all recognised that a reporting restrictions order should be made and thus that the legal arguments advanced on 9 December 2015 did not warrant a refusal of the application. I agree.

It is asserted, that the primary reason for this change of position is a lack of time to consider the Applicant’s evidence prior to the hearing on 9 December 2015. However, as I have mentioned already this was not suggested at that hearing and that evidence was addressed in detail by their counsel to identify its alleged shortcomings, to refute its assertions of distress and harm and to support his submission that I should dismiss the application there and then.

IPL asks for guidance to the effect that the default position in serious medical treatment cases should be that reporting restrictions orders made by the COP should, absent exceptional circumstances, end on the death of P. Any such guidance relates to the general approach to be taken by the COP to the dispute over the duration of the injunction.

As I understand it, all of the media Respondents (but in any event those other than IPL and perhaps Associated Newspapers Ltd):

In the written exchanges the Applicant invites me to extend the injunction to cover C’s inquest. Counsel for some of the media Respondents points out that no application for this has been served but state that their clients are neutral on this. No response on this point has been sent to me by IPL.

I am pleased that he decided to give evidence in respect of what I regard as important matters on which the COP needs evidence from the media to enable it to strike the right balance.

In particular I note that he says:

“I accept that in some cases anonymity will be necessary to protect the rights of parties and their families in court cases, including proceedings in the Court of Protection. I also accept that in some cases the public interest in open justice can still be served despite the existence of anonymity orders. But I believe that there are and will continue to be cases in which the public interest requires parties to be identified. Although in this particular case ANL accepts that the balance is in favour of the family members’ Article 8 rights. I do not accept that there can never be a case in which those rights could not be outweighed by Article 10 rights.”

I agree with and welcome the balanced approach signified by what he says in that paragraph. I express the hope that it is reflected in the approach taken in the future by the media.

His evidence does not address:

Making the unlikely assumption in favour of the reporter that it did not occur to her that A might be at home when she called unannounced, and without any explanation of why that visit was thought appropriate it seems to me that it was a breach of that Code and so the professional standards to be expected.

Also, Mr Steafel does not directly address why it would be in the public interest to identify C (and her children and other members of her family) after A’s 18^th birthday. Rather his comments on identifying the subjects of reporting are made in more general terms and are not related back to this case. I shall return to this issue and the prurient nature of some of the reporting when assessing (a) the balance he refers to in the passage I have cited from his evidence on the dispute concerning the duration of the injunction, and (b) the application to extend the injunction to cover C’s inquest.

In most cases there are two stages to proceedings in the COP:

Other aspects of the substantive jurisdiction of the COP in respect of persons who lack capacity are not governed by, or only by, an application of the best interests test (e.g. applications under s. 21A in respect of authorisations of a deprivation of liberty and issues relating to a lasting power of attorney under s. 23) but I need not explore that part of the jurisdiction conferred on the COP in this judgment.

Although I note the possibility raised by McFarlane LJ at paragraphs 41 to 43 of his judgment in Re M that the paramountcy principle set out in the Children Act 1989 might govern the grant of a reporting restrictions order in the case of a child (and absent argument on the point) I am of the view that the structure and language of the MCA (see in particular ss. 16 and 47) and the nature of the relief and the competing Convention rights that it engages mean the grant of a reporting restrictions or anonymity order is not governed by the best interests test and I proceed on that basis, as did the parties before me (See also the comment of Lady Hale referred to in paragraph 69 below).

In this case C’s capacity was in issue. The most relevant provisions relating to the “capacity test” are, with my emphasis:

It is apparent from those provisions that in a number of cases where the capacity of P is in issue the COP will be given, or will seek, evidence about P and his or her approach to life and important decisions in P’s life. An obvious source of such evidence is P and members of P’s family.

As appears from MacDonald J’s judgment this is what happened in this case.

If the NHS Trust had been satisfied that C had capacity to decide to refuse life-saving treatment it would not have initiated the proceedings in the COP and would have had to respect C’s autonomy and so her decision to refuse the treatment.

This would have led to C making her decision and her family facing its consequences without having to go through the court process and without there being a public but anonymised judgment.

MacDonald J’s judgment shows that C did not give oral evidence but that oral evidence about her life and lifestyle that was relevant to the very serious issue whether she had the capacity to refuse life-saving treatment was given by one of her adult daughters.

So:

In many other cases relating to medical treatment, other health and welfare issues and matters and to P’s property and affairs the jurisdiction will go on to the second stage. When that stage is reached the court applies a best interests test and, in doing so, it must apply s. 4 of the MCA which provides by ss. 4(2) and (6) with my emphasis that:

As this case shows, the matters that must be considered pursuant to s. 4(6) may have been examined and taken into account when determining the capacity issue. For example, they inform whether P has the capacity to make what others may conclude is a bad decision.

In many cases it is likely that the evidence about such matters will come from members of P’s family and friends and will involve them giving an account of matters that are private and personal to them as well as to P. For example, their views about P, family incidents and P’s personal and private affairs and beliefs. However, in my experience save where P has a relevant religious or moral belief about types of treatment, such evidence is rare in serious medical treatment cases and much more common in other cases.

Unsurprisingly, there was a significant overlap between the parties on the leading cases to be considered in the context of the legal principles to be applied and so on the need to weigh the competing Convention rights. Indeed, at paragraph 20 of her judgment in R(C) v the Secretary of State for Justice [2016] UKSC 2 Lady Hale describes this as trite law (citing Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593).

In Re S is an important decision in this area. In it the House of Lords was considering the identification of a child through publication of a criminal trial of the child’s mother for the murder of the child’s sibling.

The decision and reasoning of the House of Lords is helpfully and accurately summarised in the headnote but the following extracts from the speech of Lord Steyn (with my emphasis) are worth noting:

The Re S exercise has been called one of parallel reasoning and in the context of this and other similar cases it engages competing titans who start level and none of them hold a trump card. As was accepted by the media Respondents one of the factors (and so titans) in this case is the administration of justice.

As Baker J points out in In re M (A Patient) (Court of Protection: Reporting Restrictions) [2012] 1 WLR 287 at paragraph 44 of his judgment (where he cites from the judgment ofMaurice Kay LJ in Donald v Ntuli (Guardian News & Media Ltd intervening) [2011] 1 WLR 294):

In my ex tempore judgment these points are reflected by my comment that it is important to remember that in exercising its jurisdiction the COP invades family life.

The COP has an investigatory jurisdiction with adversarial elements (e.g. on resolving disputes of fact). The jurisdiction relates to a person, referred to as P in the MCA, who lacks capacity to make the relevant decision. So the COP must investigate and make findings that found its jurisdiction and, if it has jurisdiction, enable it to make evidence based decisions on behalf of P. Those decisions and the evidence on which they are based relate to matters concerning and which affect private and family life.

Plainly that jurisdiction invades the private and family life of the subject of the proceedings because:

Additionally, the COP, like other courts, makes evidence based decisions and so it will regularly hear evidence from a range of people about P and, particularly in the case of family members, such evidence is likely to cover their views and other matters that engage their own personal and family life and which may well relate to very personal matters. And, as is clear from this case, this evidence based approach means that the invasion can extend beyond P’s individual life because it can directly and indirectly engage the family life of other members of P’s family and others as witnesses or participators in relevant events.

The nature and this inevitable effect of the jurisdiction of the COP and the principle of open justice are clearly important factors to be taken into account by the COP in its assessment of whether generally the administration of justice will be best served by a private hearing (with or without the publication of some documents or material e.g. a judgment), or by a public hearing (with or without reporting restrictions). In each case, this general conclusion and the reasoning for it will be a factor to be taken into account in what Lord Steyn refers to as the ultimate balancing test to determine where the overall balance between the competing Convention rights lies.

The general default position is set by Rule 90 which provides that hearings in the COP are to be held in private with the result that s. 12 of the Administration of Justice Act 1960 (the AJA 1960) applies and so publication of information about the proceedings is generally a contempt of court. This default rule does not apply to applications for contempt of court, where the default rule is that the hearing is to be in public (see Rule 188(2)).

An order for a public hearing is a departure from this default position. However, it has always been the case that the COP should consider whether that default position should apply and Rule 5(2)(l) and (m) now expressly provide and confirm that in managing a case the COP must consider whether any hearing should be in public and whether any document relating to the proceedings should be a public document and if so whether it should be redacted.

Rule 92 provides:

Rule 93 provides that an order under Rule 92 may only be made where it appears to the court that there is good reason for making it and that it can be made at any time either on the court’s own initiative or on application.

Rule 92 has two parts but its starting point (namely the default rule that hearings will be held in private and publication of information about the proceedings will generally be a contempt) means that in most, if not all, cases in which the COP considers whether there is a good reason for a public hearing:

The general approach of not considering whether there should be a public hearing without also considering what reporting restrictions should be imposed is not based simply on the Rules. Rather, the Rules and this process reflect the nature and effect of the jurisdiction of the COP and one of the long established exceptions to the general rule that courts sit in public (see Scott v Scott [1913] AC 417).

Those exceptions are based on the balance between open justice and the need to do justice in certain types of case, as are presumptions of anonymity in certain types of proceedings and the ECHR has held that the default rule for hearings of this type to be in private is Convention (and so Article 6) compliant (see B v United Kingdom (2001) 34 EHRR 529 at paragraph 38 and X (Residence and contact – Rights of the Media to Attend) [2009] EWHC 178 (Fam), [2009] EMLR 26 at paragraph 30, which both concern Family proceedings but engage the same underlying point (and see R(C) at paragraph 17).

It would be wrong to take an approach to issues relating to reporting restrictions or anonymity orders made by the COP, and therefore to the weight to be given to competing Convention rights, that the starting points are that:

Rather, the starting point is the default rule which:

The general approach described above to the making of an order by the COP for a public hearing underlies and is reflected in:

Independent Media News and Media Ltd v A [2009]EWHC 2858 (Fam) and [2010] EWCA Civ 343and Re C support a staged approach that applies the relevant rules and so, in the COP, starts with the consideration of whether there is a good reason for a public hearing.

But, this first stage is not an isolated or preliminary stage that founds an approach that the second stage is addressed on the premise that, if such a good reason exists, the COP proceedings are treated in the same way as other proceedings where the default rule is that they are heard in public. This is because the weight of the main competing factors at this stage namely:

Rather the default rule, and any practice direction that modifies it, represent a general conclusion on how best to administer justice. In reaching that conclusion a balance will have been struck between the relevant competing Convention rights and the factors, propositions and public interests that underlie them. But Re S makes it clear that this is not the end of the process and that as between Articles 8 and 10 (and so the factors and matters and public interests that underlie and promote them) neither takes precedence as such in a given case and so, in my view, it would be wrong to approach a default rule or practice as creating a presumption. Rather, it is part of the structure for a reasoning process that applies the Re S approach to a given case.

This staged approach accords with the approach taken by Lady Hale in Re C where in contrast to the earlier proceedings in the First-tier Tribunal, which had been held in private pursuant to its default Rule (see paragraph 23), the relevant default Rule for the judicial review (see paragraph 14) was for a public hearing and at paragraphs 1 and 36 Lady Hale said (with my emphasis):

Lady Hale also referred to the default Rules in the COP and the proposed transparency pilot (see paragraph 25) and commented that in all other jurisdictions dealing with the detention, care and treatment of people with mental disorders and disabilities, the starting point is usually privacy and always anonymity, although either or both may be relaxed. She went on to comment that this reflects the long-standing practice based on Scott v Scott. She also makes it clear that in answering the questions set by CPR 39.2(4) and so in striking the balance the approach to be applied is that described in Re S (see paragraph 20). And at paragraph 18 of her judgment she introduces her reference to well- known passages relating to the importance of a name and so in the identification of those involved to reporting that engages the attention of the public (cited at paragraph 154 below) (the “naming propositions”) with the following:

In my view this recognition of the validity of a conclusion that generally in certain types of case (including proceedings in the COP) the administration of justice will be best promoted by either a private hearing or a public hearing with effective reporting restrictions, supports the view that on a staged approach to a particular case of that type the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.

The weight to be given to the naming propositions and the conclusion on what generally best promotes the administration of justice will vary from case to case. For example:

I suggest that generally the COP should address the following questions:

The answer to question (i) is almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing points 96 (ii) to (iv).

As I have already mentioned this jurisdictional point is raised by the media Respondents but they do not resist me making an injunction as a High Court judge. They base the argument on the finding of capacity made by MacDonald J. The Applicant addresses the relevant jurisdictional effect of this finding and of C’s death.

The media Respondents rely by analogy on In re Trinity Mirror Plc and others [2008] QB 770 concerning s.45(4) of the Supreme Court Act 1981 which provided that in “all other matters incidental to its jurisdiction” the Crown Court was to have the like powers, rights, privileges and authority as the High Court. The Court of Appeal held that the Crown Court has no inherent jurisdiction to grant injunctions and that unless “the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking”.

Section 47 of the MCA is worded slightly differently and provides that: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. It is generally accepted that the COP does not have an inherent jurisdiction so the issue is whether it can grant an injunction because it is exercising that power “in connection with its jurisdiction”.

At the time that the reporting restrictions order was made in this case by Moor J, sitting as a judge of the COP, I consider that it is clear that he was making that order in connection with the jurisdiction of the COP to determine initially whether or not C had capacity. In my view, it follows that he could in reliance on s. 47 have made that order for a period extending beyond any finding made that C had capacity, or the death of C (as to which see further below), if he had thought that that was appropriate. He did not do so.

The effect of the argument of the media Respondents is that if the hearing on 13 November 2015 had been before a judge, other than a High Court judge (which is not the practice in serious medical treatment cases but could occur in other cases) that judge having determined and announced his decision that C had capacity as a judge of the COP had no jurisdiction to continue, vary or discharge the injunction granted by Moor J. To my mind, that would be an unfortunate and odd result particularly, for example, if C had asked for it to be discharged. However, in my view, it does not arise because I consider that the termination, continuation or variation of an injunction made by the COP in the exercise of its jurisdiction conferred by s. 47 would also be within the jurisdiction so conferred as being “in connection with its jurisdiction”.

However, by its terms the injunction that was granted by Moor J expired on the death of C and so the present application is for a new injunction that was made at a time when for two reasons the COP no longer had jurisdiction over C and was therefore functus officio.

The Applicant points to a number of sections in the MCA which give the COP jurisdiction to make orders in respect of persons whether they have or lack capacity (see ss 15 (1)(c), 21A, 23 and 26(3)) but, in my view, this does not provide an answer because in this case the COP was not exercising jurisdiction under any of those sections.

To my mind the question on this application is whether the COP has power to grant a new injunction because it relates to proceedings that were before it although by reason of its decision and/or the death of P it no longer has any jurisdiction to make the welfare order sought. The answer is determined by considering whether in those circumstances it is exercising a power “in connection with its jurisdiction”. In my view the answer is that it is. This is because, in my view, the nature and extent of the relevant Article 8 rights relied on flows from the existence of the earlier proceedings before the COP, in which it exercised its jurisdiction and I see no reason to construe s. 47 to limit the power it confers to the period during which that jurisdiction continues to exist over the subject of the proceedings.

Indeed, I agree with the Applicant that the principle that legislation should be interpreted so far as possible to be compatible with Convention rights supports this conclusion because:

That grain links back to the points I have already made that the jurisdiction of the COP invades not only the life of its subject P but also on many occasions the lives of others and in particular P’s family members.

Conclusion. I can make the injunction sought as a judge of the COP and I do so. However to avoid any jurisdictional argument in the future, and if and so far as this is necessary, I also make it as a High Court judge exercising the jurisdiction of that court.

Counsel for the media Respondents submitted that that the application was founded on three or four grounds and none of them provided a sound basis in law for the grant of the injunction sought. The reference to three or four grounds was based on a distinction that could be made between the Article 8 rights of the adult daughters and those of the teenage daughter. The other grounds identified were (a) C’s medical confidentiality, which it was argued did not survive her death, and (b) the administration of justice. It is convenient to deal with the last ground when I consider the balancing exercise in this case.

The argument on the Article 8 rights of C’s daughters advanced on 9 December 2015. It was argued that the impact of publication of C’s identity, and so the identities of her daughters, did not found a cause of action by engaging the Article 8 rights of C’s daughters or otherwise and further or alternatively that existing authority showed that their rights did not provide the basis for an injunction. The focus of the argument was on the teenage daughter because it was accepted that her case had additional features to those of the two adult daughters which made her case on the harm that she would suffer as a result of the publication of C’s identity (and so her identity) stronger.

The argument was founded on OPO v MLA [2014] EWCA Civ 1277: [2015] EMLR 4. It was argued that none of the articles had been or were likely to be about C’s children and so any impact on them of articles identifying C, and directed to C’s private life, would be indirect and the threshold for establishing actionable rights based on the publication of material about another’s private life was high and A (and a fortiori her adult sisters) did not meet it.

OPO was a child. His father MLA had written a book. OPO (through a litigation friend) sought an injunction to restrain its publication. One of the causes of action advanced to found the relief was misuse of private information. The Court of Appeal held that OPO had no such cause of action and so upheld the refusal of the court below to grant an injunction on that basis. However, the Court of Appeal did grant an interim injunction founded on the prospects of success of one of OPO’s other causes of action, namely the intentional infliction of emotional harm by MLA. That is not relevant here.

The evidence of the risk of harm and the severity of such harm to OPO can be said to be higher than that to A. But, to my mind, any such differences do not matter and the argument of the media Respondents did not turn on degree of harm or its likelihood. Rather, the argument was that the private information was MLA’s as it related to him and in particular his tormented childhood. I am not clear whether there were any references in the book that referred to OPO or were directly linked to OPO (see paragraphs 14 and 17 of the judgment of Arden LJ) and I confess that I am also unclear what the ratio for the conclusion that OPO had no cause of action for misuse of private information (MPI) is (see paragraphs 45 to 47). But it is clear that the Court of Appeal decided that OPO had no such cause of action against his father.

I do not understand why it was concluded by the Court of Appeal that only the Family courts had a jurisdiction based on a child’s right to private and family life that is the subject of Re S. All public authorities and so courts must take Convention rights into account (see s. 6 of the Human Rights Act 1998) and I note that in taking the jurisdictional point on the limits of the COP to grant the injunction sought it was not argued that the OPO case founded or supported an argument that only the COP could grant the injunction sought here.

Rather, counsel for the media Respondents relied on both OPO and Re S to support his alternative submission that the indirect engagement of the Article 8 rights of all of C’s daughters could not or did not outweigh Article 10.

In Re S, it was accepted that the child’s Article 8 rights were engaged and that the circumstances of a publication relating to the criminal trial would be dreadfully painful times for the child (see paragraph 24 of Lord Steyn’s speech). It was also pointed out that the basis for the injunction sought could not be confined to children because adults also have Article 8 rights (see paragraph 32).

Conclusion on the argument on the Article 8 rights of C’s daughters advanced on 9 December 2015. As I have already mentioned in my view the media Respondents were correct to abandon their stance that as a matter of law, or precedent on the relevant balancing exercise, these arguments found the dismissal of the application before me.

A general and decisive reason for this is that each case has to be addressed by reference to its own circumstances. That means that a starting point that none of C’s children would have a cause of action for MPI against their mother or a publisher does not take one anywhere not least because none of them are asserting such a cause of action and their mother (and so the media) is not seeking to publish her identity as part of an account she wants to give of her private information or her perspective on her private and family life.

Rather here, as in the different circumstances in PJS v News Group Newspapers [2016] EWCA Civ 100 the Applicant is relying on the duty of the court not to act in a way that is incompatible with the Convention rights of C’s family. And so, by reference to the first stage of the reasoning process described by Jackson LJ, the Applicant is relying on the nature and effect of the COP’s jurisdiction, its Rules and practice which reflect the long standing Scott v Scott exception to establish the reasonable expectation of privacy and the Article 8 rights of C’s family.

The essential reason for the engagement of those Article 8 rights is that the COP has invaded their private and family lives and made a finding on its jurisdiction that has had a profound effect and impact on C’s family and is based on evidence that relates to the private and family lives of C and her family (and in particular her children).

That approach means that the point that the impact or much of the impact on C’s children is indirect does not of itself provide an answer to whether their Article 8 rights are engaged. Indeed, such a conclusion would run counter to acceptance in Re S that the indirect impact on the child in that case engaged the Article 8 rights of that child. I also note that in Affaire Societe de Conception de Pressethe Strasbourg court proceeded, albeit in very different circumstances, on the basis that the publication of a photograph of a person engaged the Article 8 rights of his family members.

Further, it cannot be said that the result of the balancing exercise in Re S provides the answer here because the intense scrutiny it triggered engages other factors, and in particular the reporting of criminal proceedings without restriction.

If one is looking for an analogy the closest in the cases I was referred to is in X v Dartford and Gravesend NHS Trust (Personal Injury Bar Association and another intervening) [2015] 1WLR 3647 in particular at paragraphs 25 to 35. This relates to anonymity orders in respect of the settlement of cases for damages for personal injuries and shows that in contrast to the position in Re S the conclusion was that normally it should be recognised that the court is dealing with what is essentially private business albeit in open court and so should without the need for any formal application and so prior notice of any such application being given to the media should normally make an anonymity order (i.e. an order that prohibit the identification of the claimant and his or her immediate family and his or her litigation friend (see paragraph 34)).

C’s medical confidentiality. If the only basis on which the injunction was sought was to preserve the duties of confidence owed to C in respect of her medical information there would be force in the point that such a duty should not found the injunctive relief sought after C’s death (see for example the LM case (cited below at paragraph 144) at paragraph 40 of the judgment of Peter Jackson J). But this was not the only basis on which the Applicant sought the injunction and in any event it would not render a balancing exercise unnecessary on the facts of this case (again see the LM case).

Conclusion on the argument relating to C’s medical confidentiality. As I have already mentioned in my view the media Respondents were correct to abandon their stance that as a matter of law or precedent on the relevant balancing exercise this argument founds the dismissal of the application in this case.

At paragraph 96 I posed a set of questions to be addressed. In accordance with the normal approach to serious medical treatment cases they resulted in an order for a public hearing of this case and a reporting restrictions order based on an established precedent. It expired on C’s death.

The last three of my questions now apply to the disputed issue relating to the duration of the reporting restrictions order and so the Re S exercise against the background that there has been a public hearing, an anonymised judgment, some publicity and the expiry of the original reporting restrictions order.

In that context:

That issue clearly involves an identification of the competing factors that have founded the original orders and the common ground that reporting restrictions should remain in force. This is because they provide the background to the assessment of whether the balance between them warrants either a fixed term order or one until further order.

The good reasons for a public hearing. In this case it is clear that such reasons are provided by (a) the general benefits that flow from a public hearing, (b) the issues involved in and affected by the case, (c) the public interest in people who are interested in the case, the wider public and the media knowing what the decision making process of the COP is in such cases. The existence of such good reasons has been recognised for a long time in serious medical treatment cases and founds the practice of the COP in them.

Effectively the same reasons underlie the Transparency Pilot.

One of the general benefits of a public hearing is that it promotes high standards in the presentation and determination of cases. Based on my experience of private and public hearings I consider that this is a weighty factor.

There are significant flaws in the counter argument that unless there is a private hearing the quality of the decision making will be reduced because those involved in COP proceedings will be inhibited from bringing or taking part in those proceedings or from giving a full account of relevant events. I acknowledge that this wish for privacy reflects a natural reaction but that reaction applies to many proceedings that are heard in public (e.g. criminal trials, personal injury and medical negligence injury claims and partnership disputes) where parties and witnesses give full evidence. Also, it seems to me that privacy is not something that necessarily promotes honesty or openness and the prospect that a public hearing would deter people from advancing irrelevant or incorrect assertions should be factored in.

The point that no absolute guarantee of confidentiality can be given greatly weakens the counter argument (see for example disclosure pursuant to Rule 91 and Part 3 of Practice Direction 13A). Also, so far as I am aware, there is no research on the question of what harm is done by partial, incorrect or incomplete accounts being given of private proceedings in the local community, whether the giving of such accounts would be reduced if there was a public hearing and how any such harm would be alleviated by such accounts being corrected and an accurate account of both sides of a dispute being given.

To my mind, as with the engagement of the Article 8 rights of participants in COP proceedings, the essential reason for a conclusion that the administration of justice by the COP is best promoted by either a private hearing or a public hearing with reporting restrictions is the invasion by the COP into the private and family life of the relevant people on the basis that the subject to the proceedings lacks, or may, lack capacity to make the relevant decisions. Naturally, the argument for a private hearing on that basis (or the basis referred to in the last two paragraphs) is greatly weakened by effective reporting restrictions and a responsible approach being taken by the public generally (e.g. on social media and the internet) and the national and local media.

The Article 8 rights and the good reasons for a private hearing or reporting restrictions. On changing their position the media Respondents through Mr Steafel (see citation at paragraph 51 above) refer to the family members’ Article 8 rights but the underlying thrust of their point that the injunction should end on A’s 18^th birthday is that the adult children either do not have any relevant Article 8 rights, or that those that they do have are (and will) not be strong enough to found an injunction on the ultimate balancing test. I disagree.

Firstly, in my view the application of the points that I have made relating to the nature and effect of the jurisdiction and evidence based decision making of the COP, its rules and practice found the conclusion that all of C’s children have Article 8 rights that the COP must take into account. This is supported by Re S. In other cases other witnesses and/or parties will for the same reasons have Article 8 rights.

I repeat that the essential reason for the engagement of the Article 8 rights of C’s children is that the COP has invaded their private and family lives and made a finding as to its jurisdiction that has had a profound effect and impact on C’s family and is based on evidence that relates to the private and family lives of C and her family (and in particular her children).

To my mind it is clear that the nature of the evidence that V was too distressed to give and so which G gave clearly:

It only takes a moment to realise how personal and emotionally difficult it was for them to give or support the giving of evidence concerning their lives and that of their mother which could found the view that their mother had the capacity to make a decision effectively to end her life that they thought was unwise and they did not want her to make. The giving of that evidence took courage and I suggest shows a recognition by C’s children of the importance of their mother’s wishes, feelings and beliefs being made known to the COP and thus of their devotion and responsibility. Much of the evidence is extremely personal and goes to the core of the private mother and child relationship which clearly does not end when the child attains the age of majority.

I have already made findings on the distress caused and likely to be caused to those adult children V and G (see paragraphs 27 to 35 above).

Turning to A, there is no magic in her attaining the age of 18 and nothing to indicate that by that, or any other age, she will have overcome her existing vulnerabilities, or that they will have been reduced to the extent that the naming of C and her children will not cause significant harm to A.

Further, in my view the suggestion that she or her sisters should seek an extension of the injunction shortly before her 18^th birthday when, if things go to plan, she will shortly be sitting her A levels is callous particularly as no assertion has been made that is specifically related to the circumstances of this case that publicity at that date that named of C and her family would promote Article 10 and the public interests on which it is based (see paragraphs 154 to 169 below).

The death of C. On 9 December 2015, I was invited not to follow two decisions at first instance namely Re Gladys Meek; Jones v Parking and Others [2014] EWCOP 1 (in particular at paragraph 104) and The Press Association v Newcastle upon Tyne Hospitals Foundation Trust [2014] EWCOP 6 (the LM case) (in particular at paragraphs 33, 39 to 43) which support the view that a reporting restrictions order made in respect of proceedings in the COP can continue after the death of the subject of those proceedings (P). I did not do so and in my view the acceptance by the media Respondents that a reporting restrictions order can be continued after the death of P is correct.

In my view, the relevant jurisdiction as exercised in those cases, and by Baker J in In re M,does enable the COP (or the High Court) to grant an injunction that extends beyond the death of P. I agree with and gratefully adopt what Peter Jackson J said at paragraph 42 of Re LM namely:

42.

I conclude that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death, and to balance the factors that arise in the particular case.

To my mind, this is also recognised by paragraphs 27 and 29 of Practice Direction 13A.

It follows that I reject:

To my mind, any such guidance or approach would run counter to the conclusion in Re C that there should not be a presumption or its equivalent namely “a default position absent exceptional reasons” because in each case there is a balance to be struck. Any such balance is a two-way street in which both sides need to show why the overall balance supports the result they seek and neither hold a trump or decisive card.

Naturally, I accept that in some serious medical treatment cases that balance should be struck by a reporting restrictions order that ends on P’s death and Re LM is an example of that conclusion being reached in respect of the naming of LMbut not of the naming of LM’s carers and two Jehovah’s Witnesses (if it would lead to them being connected to the COP proceedings).

I also accept that in contrast to many cases covered by the Transparency Pilot, a number of serious medical treatment cases focus on the pros and cons of particular medical treatments and so do not engage wider issues relating to P’s private life or that or P’s family. And it may be that this will lead to a number of injunctions in such cases being limited to P’s lifetime. But, in my view, this should not be a presumption or default position.

As I have explained, in my view the starting point for the relevant process of reasoning is the Rules and Practice Directions which reflect the nature and effect of the jurisdiction of the COP. In my view, as reflected in the Transparency Pilot, the reasoning that founds this approach points to an injunction that is to last until further order rather than a fixed date or event. This is because it recognises that the invasion into private and family life by the COP is regularly not limited to that of P as an individual and will have an impact for an undefinable time.

The cases including Re S refer to the financial and other burdens that applications relating to reporting restrictions orders impose on national and local media. They are or are potentially cumulative. On the other hand, as this case shows, significant financial and emotional burdens are likely to be placed on the individuals involved in a given case if they have to initiate a further application. In my view, the balance of those burdens, coupled with the prospects of an agreed solution being reached, also favours the normal duration of a reporting restrictions order being until further order as in the Transparency Pilot. If a member or representative of the media seek a change that permits wider or unlimited reporting they have a limited pool of people who they can seek consent from, whereas the parties cannot practically obtain consent to a continued or tighter order.

Whatever time limit is placed on the injunction I agree with the point made by Mr Farmer that everyone involved should at each stage flag the issue of duration. He mentions a practice of Peter Jackson J of doing this and providing that the injunction lasts until a month after the death of P in a serious medical treatment case. An alternative would be to provide that it lasts until judgment on the substantive issues. On both alternatives, and in any event, it seems to me that the terms, including the duration of the injunction, should be revisited at the substantive hearing or when judgment is given because it is only then that it will be known what (a) the nature and extent of the COP’s invasion into the private and family life of P, P’s family and others has been, (b) the relevant issues and decisions are and (c) the impact of any reporting restrictions on the competing Article 8 and Article 10 rights are likely to be in that case.

The value of naming the people involved. As I have mentioned at paragraph 18 of her judgment in Re C Lady Hale refers to the well-known paragraphs in Lord Rodger’s speech in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697 where he said:

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: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, "judges are not newspaper editors." See also Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR 142, 152, para 25. 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.

These paragraphs are and record propositions of high authority that I have called the naming propositions. They are of significant importance in identifying the roles of the media and the court.

The naming propositions are reflected in the following points made by Mr Steafel:

The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.

Where proceedings are anonymised, it is more difficult to engage our readers as the real people involved in the cases are necessarily invisible and the stories therefore lack a vital human dimension. It is human nature to find it more difficult to take an interest in a story about problems arising from, say, dementia or the right to die if the story does not feature identifiable individuals. If we cannot publish stories about important issues that people are drawn to read, this will inevitably limit and reduce the quality of public debate around these issues. It is in my view important in a democratic society that we should encourage informed debate I believe that the media, including the popular press, fulfils a vital function in this regard. By reading about the experiences of others, readers are likely to be able to identify with those people and understand what they are going through. But they are much less engaged - and correspondingly less focused on the surrounding public debate - where they cannot identify with real people, places and events. Pictures are a hugely potent way of engaging readers and one of the problems with covering anonymised cases is that it is impossible to include pictures in our stories which identify those involved.

I agree that fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.

On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off.But, I hasten to accept that this distinction:

As I have already said (see paragraphs 94 and 95 above) the weight to be given to (a) the naming propositions, and (b) the conclusion on what generally best promotes the administration of justice will vary from case to case and on a staged approach to a particular case the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.

As I have already mentioned, although he refers to and relies on the naming propositions Mr Steafel does not say why in this case the relevant public interests, rather than the gratification of a prurient curiosity or interest of the public:

Rather, he refers to three cases concerning assisted dying. Although they relate to persons with serious illnesses who wanted to die these cases raise different issues to this case which relates to the right to refuse treatment and not to assisted dying or suicide. Also they are not cases in which the COP had to become involved because of an issue whether the relevant person had capacity. Further:

Further, respectfully and mindful of the force of the naming propositions, when cases engage issues of such high public importance and interest I am unpersuaded by Mr Steafel’s assertion that anonymised reporting of them would become “arid and academic philosophical debates” and “would not engage the public in any meaningful way”. For example, the point raised by Mr Steafel that the Archbishop of Canterbury has noted that assisted dying (and so not this case) is one of the “biggest dilemmas of our time” necessarily raises important issues of public interest and debate that should engage the interest of the public and are not linked to individual cases.

Also, his evidence does not persuade me that in most COP cases Article 10 will not be effectively and proportionately recognised and promoted by reporting that does not identify P and members of his family (and in some cases others) in a way that links them to the COP proceedings. Having said that I hope that it is apparent from what I have said (see for example paragraph 95 above) that I agree with Mr Steafel that:

But this agreement reflects the need for a case specific analysis of the impact of the competing factors, propositions and public interests for and against anonymistaion. That exercise of parallel reasoning is not an exact or mathematical one because it is an “apple and pears” argument but it requires an intense scrutiny in the circumstances of the given case of the weight of the competing factors.

So, to my mind, in this exercise the COP needs to consider why and how the naming propositions, and so the proposed naming or photographs of C and her family members that links them to the COP proceedings, would or would be likely to engage or enhance the engagement of the interest of the public in matters of public interest rather than in those of prurient or sensational interest.

This has not been done in this case. But in contrast evidence has been put in on the likely harm to the relevant individuals that such reporting would cause.

The ultimate balance in this case on the dispute relating to duration. On one side are:

On the other side are the general propositions relating to the benefits of naming the individuals involved.

I accept that Thiess J’s statement that “there is no public interest in C and her family being identified” and my indications of agreement with it at the hearing go too far because of the well-known and important naming propositions and the public interests that underlie them. But, in my view, the absence of an explanation of why:

The earlier orders provide that the injunction does not restrict publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public. It seems to me therefore that the result the Applicant seeks would be achieved by changing the word “including” to “excluding”.

This is much closer to the position in Re S and Potter P addressed such an application in Re LM [2007] EWHC 1902 (Fam) where he said:

He carried out a detailed balance between the competing rights emphasising the strength and importance of a public hearing of the inquest and so the general conclusion on what promotes the administration of justice in such proceedings. Having done so he refused the injunction sought that the parents should not be identified.

Here the important issue of child protection is absent.

In the note of counsel for some of the media Respondents dated 28 January 2016 points are made about the importance of a proviso permitting the reporting of other proceedings conducted in open court, including a coroner’s court. But after the Applicant sought this extension junior counsel responded (as mentioned in paragraph 49 above) that his clients are neutral on this point.

As the approach of Potter P confirms an application for restrictions on the reporting of other proceedings conducted in open court engages important and powerful interests against the making of such an order. However, in my view:

The essential question is therefore whether, unless the court makes a further order, C’s family should be at risk of publicity relating to the inquest that makes the connection between them and the COP proceedings and so effectively of suffering the harm and distress that any other reporting that identifies them and makes that link would bring.

The history of the prurient nature of some of the earlier reporting is a clear indicator that such reporting might be repeated. But, even if that risk is discounted I have concluded that the balance comes down firmly in favour of extending the order to cover the inquest.

The main factors to be taken into account overlap with those to be taken into account in respect of the duration of the order.

On the one side are:

On the other side are:

It is clearly important that s. 12 of the HRA and the relevant practice directions are followed in respect of the notification of applications and that any reporting restrictions orders that are made are properly and promptly served. Accordingly, as I have done before and others have done, I emphasise this and record that the difficulties that the solicitor for the media Respondents describes in connection with obtaining a copy of the sealed order (or a copy of the order in the terms actually made rather than the draft served when notification of the application heard by Moor J was given) from the solicitors acting for the NHS Trust and the Applicant are regrettable.

I suggest that the lesson to be learned is that copies of the order in the terms granted should not only be promptly and properly served but should be held by the parties so that they can be easily and quickly provided on request. Also the COP should try to ensure that it can do this.

Complaint was also made by the media Respondents about the timing and notification of the out of hours hearing before Theis J, of which Mr Farmer was given direct notice and the media was not. But ANL heard about the application and instructed counsel who made submissions to Theis J on the notification and other points.

Theis J addresses the lack of notification through CopyDirect and concluded that the reasons for not giving such notice did not stand up to scrutiny but nonetheless she granted the relief sought. It is however clear from what I have been told that counsel for the Applicant had thought about the notice point and concluded that it was appropriate to make a without notice application. He tried to do so to the applications court; but was turned away and so had to pursue an out of hours application given the urgency and the nature and extent of the media interest. So, although Theis J disagreed with him, I consider that counsel for the Applicant acted properly and I add that in my view some of his reasons for acting as he did and which he acknowledges he could have explained them better to Theis J were properly arguable.

As I understood it the notification points were not relied on before me on 9 December 2015 as a ground for dismissing the application (and, in any event, they were certainly not pressed on that basis). In my view that approach was correct in the circumstances of this case.

Rather, what was pressed before me at that hearing were the other points that had been made before Theis J and which the media Respondents have now correctly recognised were flawed. So, with the benefit of hindsight, the media Respondents should be relieved that they failed to persuade both Theis J and me to refuse the application with the result that they were free to publish and did publish articles in terms that they now accept would not have accorded with the correct balance between the competing Convention rights.

I will address and confirm the terms of the reporting restrictions order and any applications that are made when I hand down judgment. If an order is agreed and I approve it the judgment can be handed down without attendance.

In the Schedule to this judgment I have made points about the precedent for and the terms of reporting restrictions orders but as the order I made on 9 December 2015 continued that made by Theis J and it seems to me that this should be reflected in the order that will come into effect when I hand down this judgment.

The Transparency Pilot provides for attended hearings to be heard in public with restrictions being put in place on the publication of information about the proceedings.

It does not apply to serious medical treatment cases to which Practice Directions 9E and 13A continue to apply.

The Transparency Pilot provides that if it conflicts with Practice Direction 13A it takes precedence and the order set out in the Annex to the Transparency Pilot Direction Practice Direction (the Pilot Order) is in different terms to the precedent used for reporting restrictions orders in serious medical treatment cases (see for example In re M (A Patient) (Court of Protection Reporting Restrictions) [2011] EWHC 1197 (Fam); [2012] 1 WLR 287) which was used in this case (a PD 13A Reporting Restrictions Order).

Both a Pilot Order and a PD 13A Reporting Restrictions Order link what cannot be published to the existence of proceedings in the COP. But they do so in differing ways and there are other differences between them.

The Pilot Order provides that:

The intention is that in most cases the Information that cannot be published will be limited to that defined in paragraph (5)(B)(i)(a) and so to:

So the Pilot Order:

Practice Direction 13A provides that:

And, in contrast to a Pilot Order, a PD 13A Reporting Restrictions Order:

Under the Transparency Pilot the media is not normally given notice on a case by case basis that a Pilot Order imposing restrictions on publication will be made as and when an order for an attended public hearing is made.

In contrast, notice of the intention to apply for a PD 13A Reporting Restrictions Order should normally be given to the media.

Practice Direction 13A contains the following:

Part 2

Notification in relation to reporting restrictions

10.

In connection with the imposition of reporting restrictions, attention is drawn to section 12(2) of the Human Rights Act 1998. This means that where an application has been made for an order restricting the exercise of the right to freedom of expression, the order must not be made where the person against whom the application is made is neither present nor represented unless the court is satisfied -

(a)

that the applicant has taken all practicable steps to notify the respondent; or

(b)

that there are compelling reasons why the respondent should not be notified.

11.

The need to ensure that P’s Convention rights are protected may be an issue when the court is considering whether to make an order that a public hearing should be held. Part 2 of this practice direction should therefore be complied with where the court is considering making an order under rule 92 (2) of its own initiative.

12 In summary, the requirement to notify in accordance with the requirements of Part 2 of this practice direction will apply in any case where:

(a)

---

(b)

the court has already made an order for a hearing to be made in public and:

(i)

an application founded on Convention rights is made to the court for an order under rule 92 (2) which would impose restrictions (or further restriction) on the information that may be published, or

(ii)

of its own initiative, the court is considering whether to vary or impose further such restrictions.

Notice of reporting restrictions to be given to national news media

13 Notice of the possibility that reporting restrictions may be imposed can be effected via the Press Association’s Copy Direct service --------------- . Such service should be the norm. The court retains the power to make orders without notice (whether in response to an application or of its own initiative) but such cases will be exceptional.

Notice of own initiative order to be given by court

20 In any case where the court gives advance notice of an own initiative order to the national media, it will send such of the information listed in paragraph 15 as it considers necessary.

I have never found these terms of this Practice Direction easy to follow in respect of “own initiative” orders particularly if they are made contemporaneously with an order for a public hearing. But in practice an “own initiative” order is rare and when an application is being made for a reporting restrictions order the Practice Direction requires notice to be given to the media.

The public note that I wrote in respect of the Transparency Pilot states:

The differences between the Transparency Pilot and the PD 9A and 13A processes and the terms of the two order were deliberate.

They are not simply based on pragmatism.

The focus on attending the hearing and so to acquiring the Information removes:

The point that the reporting restriction in both orders is to making the link between the relevant people and the COP proceedings avoids or ameliorates problems relating to an accidental publication of a name or photograph.

If experience shows that stories / accounts / assertions / internet or social media communication that are based on information obtained through or because of the COP proceedings are published without making the connection to the proceedings and they engage and breach Article 8 rights both forms of order may need to be changed.

It also seems to me that:

It also seems to me that many of the points made in my note on notification of the media could apply to the making of a PD 13A Reporting Restrictions Order on the first directions hearing. My experience is that the media (apart from the Press Association) rarely attend such hearings and I am not aware of a case where the order has been objected to on such a hearing. Indeed, although the existing precedent of a PD 13A Reporting Restrictions Order is not used rigidly its general overall effect is accepted as a standard or default position that is based on established and solid legal foundations (i.e. the COP Rules and the Scott v Scott exceptions).

It is at least arguable that under the PD 13A procedure prior notification of an application at the first directions hearing for a PD 13A Reporting Restrictions Order adds little, if anything, to service of the order particularly if that order and the listing information contains a description of the subject matter of the proceedings (and so mirrors the Transparency Pilot). Urgency, particularly if substantive relief is sought on the first or an early directions hearing may require notice of that hearing but equally may provide the “compelling reason” why notice was not given. Different issues arise when, as in this case, an application is made after judgment and the expiry of the original reporting restrictions order.

Even in urgent cases, and many serious medical treatment cases are urgent, it is the substantive issues and the content of the evidence that informs the balance that that has to be carried out between Articles 8 and 10. This means that it is unlikely that this balancing exercise can be properly argued and considered at a directions hearing and so disputes on the grant / extent of reporting restrictions are likely to be best dealt with at later stages of the proceedings.

To my mind proper notification to the media of the existence of the proceedings and of the date of the public hearing of a case relating to serious medical treatment and the terms of any reporting restrictions order made when a public hearing is directed is what really matters. And when that order follows a standard process referred to in a practice direction or rules it seems to me that:

If those bound by the order (and so the media) have such notification they can then attend the hearing knowing, in general terms, what the case is about and the terms of the reporting restrictions order and they can challenge that order then or at another time.

The assessment of the Transparency Pilot will inform the issues set out above. Some of them have already been discussed with representatives of some media organisations.

It is highly likely that the ad hoc Committee on the COP Rules (which I chair) will want to consider whether separate practice directions and different standard orders should continue in respect of serious medical treatment cases and/or whether the existing practice/template order in such cases should be changed. This will be informed by the assessment of the Transparency Pilot.

Comment and contributions from the media and others on the points made above and generally on the practice relating to and the terms of Pilot Orders and PD 13A Reporting Restrictions orders would be most welcome.

The ad hoc Committee on the COP Rules regard the Transparency Pilot as an important exercise that is directed to finding the best approach to achieving the result that, on a case by case basis, the COP identifies and directs the correct balance between Articles 8 and 10 and thereby correctly promotes the powerful public interests they engage and reflect.