M v Press Association

On 19 November 2015 I handed down judgement in relation to an application made pursuant to section 15 of the mental capacity act 2005 for a declaration determining whether it was in the best interests of a Mrs N to receive life-sustaining treatment by means of clinically assisted nutrition and hydration. At that stage treatment was provided through percutaneous endoscopic gastrostomy tube. In the course of that judgement I considered the medical evidence, the carefully considered views of the family and the framework of the law. I came to the clear conclusion that respect for Mrs N’s dignity and human freedom overwhelmed further prolongation of life and I granted the declaration in the terms annexed to the judgement.

In the course of the judgment I had particular cause to commend the family for what I have described as the complete candour of their respective accounts. I observed that none of them made even the slightest attempt to shape the evidence to their preferred outcome. In specific terms I stated “where evidence was ambivalent, in the sense that it carried a potential interpretation which pointed away from the course that they considered to be in Mrs N’s best interests, they offered it to me without embellishment or distortion”. I went on to observe how each of them had a very different relationship with Mrs N and how in their different ways each loved her but was unprepared to overlook her manifest faults and foibles. I concluded that Mrs N emerged as a woman who could be “capricious selfish and seemingly at times quite shallow” in her interests. That said, I made it perfectly clear that her prevailing characteristics were that she was immensely proud of her family, jealous of her privacy, extraordinary feisty and profoundly loyal to her children. The family’s emphasis on Mrs N’s basic and unvarnished humanity enabled her own voice to come through to the court room and I was left in no doubt as to what she would have wished for in the parlous situation that she found herself.

The hearing had taken place over four days in early November. On 2 November 2015 I made a reporting restriction order, prohibiting the identification of the first respondent and Mrs N in any press reporting “during her lifetime” I also decided that, for a period of seven days after her death, the injunction should continue.

On 17 December 2015 the applicant, M, applied to vary the RRO to extend its duration until “14 days after the final judgment in the matter of V v Associated Newspapers Ltd” [2016] EWCOP 21. In that case, to which I will refer below, Charles J was considering the scope and ambit of such Reporting Restriction Orders following the death of P. On 13 January 2016 I varied the order in the terms applied for, no party sought to contest it. On 16 December 2015 Mrs N died.

On 25 April 2016 Charles J delivered the judgment in V (supra) and on 4 May 2016 M applied to vary the RRO to extend the duration “until further order of the court”. Reliance was placed upon Charles J’s judgment in V in support of the application, which was made on notice to the parties and to the press. On 5 May 2016 I refused the application which it had been anticipated might proceed on paper and instead listed a hearing today, 22 June 2016. This hearing is on notice to the press and I have received detailed written submissions from the Press Association opposing the application.

Unlike this case the case of V attracted a considerable amount of adverse media attention which was assessed by Charles J to be “prurient rather than in the public interest”. The real interest, he considered, related to:

By contrast, the reporting in this case has been almost entirely confined to precisely these issues. Mrs M’s case was particularly significant to the legal and medical professions because it represented an evolution in the existing case law, extending declaratory relief for the first time, to those in a minimally conscious state (MCS). Such declarations had previously been confined to those in a vegetative state (VS). I do not need further to burden this judgment by expanding my reasoning on these issues, they are in the public domain Re N [2015] EWCOP 76.

In summarising his conclusions, Charles J suggested that the COP should address the following questions:

In response to the first of those questions Charles J suggested that the answer was almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise (see below) will be engaged by addressing points i to iv above.

In paragraph 20 of her judgment, in Re (C) v the Secretary of State for Justice [2016] UKSC 2, Lady Hale considers the framework of the law in this area can now properly be regarded as “trite” (citing Re S (a child) (identification: restrictions on publication) [2005] 1 AC 593) as establishing the general propositions. The essence of the exercise is one of a parallel analysis in which neither the Article 8 ECHR rights, that broadly protect individual privacy, nor Article 10 rights, which safeguard freedom of expression, have precedence. To adopt Charles J’s analogy in Re V, it is a clash of titanic proportions in which the public interest in the effective administration of justice plays a significant role. It follows that whilst the framework of the law to be applied is now easy to state its application, in this highly fact sensitive arena maybe anything but.

In Re (C) v the Secretary of State for Justice (supra)Lady Hale articulates the reasoning that underpins the principle of open justice thus:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule. There is a long-standing practice that certain classes of people, principally children and mental patients, should not be named in proceedings about their care, treatment and property. The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 (“the 1983 Act”). The second issue is whether there should be an anonymity order on the facts of this particular case.

Lady Hale also makes it clear that there is no presumption of any order in any case:

36.

The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public’s right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure.”

As Charles J observed in V v ANL:

“Care needs to be taken in transporting comment on the weight of the rival factors from one type of case to another”

I would respectfully agree with this observation, which seems to me to be an important one.

It follows that I must start my analysis of the weight to be given to the competing rights and interest in focus in Mrs N’s case entirely free from preconception. The Press begin their submissions with Toulson LJ’s powerful assertion in R (on the application of Guardian News and Media Ltd v City of Westminster Magistrates’ Court ([2012] 3 WLR 1343; [2012] 3 All ER 551; [2012] EMLR 22):

“Open Justice. The words express a principle at the heart of our system of justice and vital to the rule of law”

I am reminded, in a helpful and succinct format, of some of the key principles to be applied, which require to be identified:

“i.

Orders restricting reporting should be made only when they are necessary in the interests of the administration of justice – see Scott v Scott ([1913] AC 417);

ii.

The person or body applying for the reporting restriction bears the burden of justifying it – it is not for the media to justify its wish to report on a case;

iii.

Such an application must be supported by cogent and compelling evidence – see R v Jolleys, Ex Parte Press Association, ([2013] EWCA Crim 1135; [2014] 1 Cr App R 15; [2014] EMLR 16), R v Central Criminal Court ex parte W, B and C ([2001] 1 Cr App R 2) and, in civil cases, the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1033 and Derispaska v Cherney ([2012] EWCA Civ 1235, per Lewison LJ (at paragraph 14)).”

The Press Association, rightly in my view, submit that the application here is, in effect, for an interim order because it seeks to extend anonymity ‘until further order’. It is contended that this falls foul of the Practice Guidance (para 40):

“A return date is particularly important where an order contains derogations from the principle of open justice. It is the means by which the court ensures that those derogations are in place for no longer than strictly necessary. It is also the means by which the court ensures that the interim non-disclosure order does not become a substitute for a full and fair adjudication (X & Y v Persons Unknown [2007] EMLR 290 at [78]). ”

Moreover, the general principles summarised in para 15, resonate clearly with the wider Practice Guidance, especially paragraphs 9 -11:

“9.

Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: see Article 6(1) of the Convention, CPR 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (17056/06) [2009] ECHR 1571 at [75]ff; Ntuli v Donald [2010] EWCA Civ 1276 (Ntuli) at [50].

10.

Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R v Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] Q.B. 227 at 235; Nutuli at [52] – [53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

11.

The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].

I do not consider it necessary to set out each of the arguments advanced by the Press Association, they are wide ranging and vary in weight and cogency. They do make an important short preliminary submission which requires to be set out in full:

“Both the births and deaths of citizens are public events. Births and deaths are required to be recorded in registers complied and maintained at public expense and open to inspection by the public – see the Births and Deaths Registration Act 1953, sections 1, 15, 30, 35, and 36. In addition, it may be said that although a death is an event of an intimate nature, it is not solely within the private sphere of those people immediately concerned with it, but also falls within the public sphere, since it is in principle accompanied by a public statement – the death certificate. A news report about a death cannot be considered, in itself, as a disclosure concerning exclusively the details of the private life of others, intended merely to satisfy the public’s curiosity.”

Mr Dodd submits that the differences between the facts in V v ANL and this instant case are ‘startling’. In contrast to the colourful background there, the facts here are sad and upsetting. Mrs N died following a period of initial suffering followed by relentless degeneration over 16 years. As such, not least because it would offend the Editor’s Codes of Practice, overseen by the Independent Press Standards Organisation (IPSO), media intrusion into this family’s life would be highly unlikely. I was referred to clause 4 of the Code of Practice: ‘Intrusion into grief or shock’. It also requires re-emphasis here:

“In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.”

Mr Dodd informs me that IPSO operates a scheme which will alert news media organisations to the wishes of individuals or families to ‘be left alone by journalists’. I should like to take the perhaps unusual step of identifying that website address in this judgment https://www.ipso.co.uk/IPSO/harassment.html

Finally, the importance of the principle of open justice, it is said, is illuminated by way of parity of analysis in the media’s right to report Inquests and I would add the public’s right to receive such reports:

This leads Mr Dodd to submit that it would be extremely unlikely that a Coroner would agree to hear an inquest into Mrs N’s death in private and further that ‘the circumstances of her death do not make this such an “unusual or exceptional case” as to justify the imposition by the court of an anonymity order which would have a similar effect’.

In the days leading up to this hearing M has plainly become very anxious both about the outcome of the application and the cost. For entirely understandable reasons she has concluded that she cannot bear further costs in this litigation. Through her solicitors, who have been energetic on her behalf, she has, this morning, indicated that she would wish me to consider her application on the basis of the available documentation and a short written submission made by her counsel, Mr Parishil Patel. No party has attended. I should say that at the time Mr Patel submitted his document he had not anticipated opposition from the Press.

M makes the following submissions in support of the application that the RRO should last “until further order”:

“a.

Her article 8 rights (and those of her brother and her father) remain engaged notwithstanding the death of her mother. Hayden J’s judgment contained intimate details of Mrs. N’s life and relationship with her family, which but for the COP proceedings, would not be in the public domain;

b.

There would significant interference to the family’s Article 8 rights if the court permitted Mrs. N to be identified. Whilst it may be unlikely that no press reporting is likely to take place, the impact of any intrusion upon their private life would be significant. This is a private Jewish family, well-known in the wider community;

c.

The evidence before the court is that the family have been distressed by their involvement in COP proceedings and by the press interest. Following Hayden J’s decision, there was significant press interest in the case. There were a number of requests by the press to the family for publicity. In response, the family’s constant wish was for their privacy to be respected;

d.

The press has not set out why, in this case, the public interest in the reporting of the case would be engaged or enhanced by the identification of Mrs. N and/or her family. The public interest in the medical issues arising in these cases can be disseminated widely by the press (and has been) without identifying Mrs. N and her family. Similarly, as regards the public interest in the practices and procedures of the Court of Protection being more widely understood;

e.

The article 8 considerations in maintaining the family’s privacy (and the harm which would be caused to them if their identity was revealed) outweigh the article 10 considerations. In light of the nature and effect of the jurisdiction of the COP, and the practical considerations, the appropriate duration of the RRO in this case is “until further order”.

As I related in my substantive judgment (para’s 51 & 52) Mrs N was herself involved in litigation, now over 40 years ago, concerning her son’s paternity. This involved her discussing in court the most personal aspects of her private life. All this was in the 1960’s where public attitudes were still far less liberal and people perhaps quicker to condemn the private lives of others than they are today. I note that these proceedings took place in a courtroom to which the press would have had full access. As I re-read those paragraphs of my earlier judgment they strike me has having some resonance in this application. For this reason I set them out again:

“51.

At 18 years old Mrs. N found herself in a very difficult situation. Following what was a superficial relationship with a man 10 years her senior she became pregnant. In 1960s Britain that situation still carried a social stigma, particularly in the close knit Jewish community where she grew up. Mrs. N's parents were a tower of strength to her. They gave her unfaltering support and offered Z, their grandson, the same unconditional love that they had always shown their daughter. With the benefit of this emotionally secure foundation for herself and her baby, Mrs. N took a course which, particularly by the standards of the day, required enormous courage and resolve. Z's father refused to acknowledge his paternity and so Mrs. N pursued the paternity claim through the courts. This action, which I have been told was resisted at every stage, was regarded by Mrs. N as nothing less than Z's own basic right to have his paternity known and recognised. She was entirely unprepared to compromise on anything less than what she perceived to be Z's full legal recognition and entitlement to proper financial provision. ”

52.

It is important to remember that this claim was pursued at a time when DNA testing was not available. The court, in those days, required evidence which was intimate, often rather graphic and inevitably embarrassing for a young woman from a protected background. Mrs. N succeeded in her claim. Paternity was established, maintenance ordered but Z and his father have never met. What is striking is how each of the family members I heard from wanted to tell me about this aspect of their history. They plainly respect Mrs. N for her courage and determination and each recognises the personal cost and effort involved. They all knew her as a woman for whom outward or public appearance was enormously important. I think each of them struggled to imagine how she had managed to force herself through litigation of that kind. They recognised in it an indomitable spirit which they saw flashes of in different contexts over the years.”

At the hearing the family volunteered this evidence, which might not at first glance seem entirely relevant to the issue with which I was concerned. It was however, as I recorded, striking how each family member independently emphasised what had obviously become a significant part of their history and which they saw as defining Mrs N’s indomitable spirit. Whilst Mrs N would not have expressed it in the terms I do, I have no doubt that she would have been alert to the three significant rights in focus in her own application: her son’s right to know the identity of his father; her own right to privacy; the right to freedom of expression given effect to by access of the press to that process. I note, to take up the point addressed above (at para 18) that following that Court’s declaration, paternity would have become a matter of public record.

When M first brought this application I do not believe that it was generally regarded as having great prospect of success. In the end, three of the country’s most distinguished experts were broadly in agreement and the Official Solicitor, after much careful reflection, changed his mind and supported M’s application. As the judgment records, so significant did I regard this issue to be, in the evolution of the case law that notwithstanding the broad professional consensus, I required Mr Lock QC, acting on behalf of the Official Solicitor, to test the evidence objectively in an investigative non partisan manner. This he did with characteristic professional discipline.

I emphasise these matters because the decision I was being asked to take is one of the most difficult required of any Judge in any Court. It requires there to be a process which is not only rigorous but transparently so. As medicine itself progresses what constitutes life or consciousness becomes increasingly challenging to define. In a society where more of us grow old and potentially vulnerable it is self evident that the public is entitled to be fully informed on these issues. Cases of this kind in the Court of Protection add to that sum of knowledge. The integrity of the investigation requires to be beyond doubt. There is a risk, as explained in the case law above, that both the integrity of the process and the proper dissemination of the information maybe compromised by cloaking the parties with anonymity. This will of course be necessary in some cases but those cases will, as has been submitted, require cogent and compelling evidence to justify the making of a RRO.

The experience of grief is one unique to the individual, it takes on many forms. I am sure that this family began to grieve for Mrs N some considerable time ago. I am equally confident that their present grief is none the weaker for being in some way already familiar. I have no doubt that having brought this application M, in particular, requires both peace and privacy. I feel bound to say that she falls securely within those individuals contemplated within the Editor’s Code of Practice (see para 19 above). Though there is of course no guarantee against press intrusion, there is no evidence at all of any having occurred in the last few months, as there might have been, notwithstanding the existence of the interim order. Nor does a dispassionate analysis of the facts point to any significant intrusion in the future.

Judges of this Court are not inured to the day to day realities in these cases. I have no doubt that those closest to M and her family, those who matter to the family the most, will have identified Mrs N from the facts of the case. For those beyond that circle, the name of the individual serves only to make her story more real and the issues it raises more acute. Therein lies the public interest. By contrast the introduction of both Mrs N’s and M’s name into the public domain has relatively limited impact on M’s privacy or Article 8 rights more generally. Certainly there is no real evidence to that effect.

In Re Guardian News and Media Limited [2010] UKSC 1; [2010] 2 AC 697 Lord Rodger’s addresses this issue in paragraphs which, for obvious reasons, have become well-known:

“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.

I am acutely conscious of M’s deep seated wish to preserve her mother’s anonymity in this case, as well of course, as her own. For the reasons I have analysed above I have come to the firm conclusion that the balance here weighs more heavily in favour of freedom of expression. It may well be that Charles J contemplated a situation not dissimilar to that which has arisen here in V when he said (at para 150):

“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.”

Of course, as has now been analysed in a number of cases in the Court of Protection, evaluating P’s best interests will invariably involve the Judge considering the wider canvas of P’s life, often via the conduit of evidence from family members. Inevitably, that involves an inquiry into the private sphere which will usually engage facets of the rights protected by Article 8. It is unlikely, in my view, that many cases will be confined solely to assessing the advantages or disadvantages of a particular course of treatment without considering some of the circumstances of the individual patient. In this case whilst I have undoubtedly considered features of Mrs N’s life, character and personality, the issue of withdrawal of hydration and nutrition from a patient in MCS is plainly the predominant one. Indeed, I think it can properly be characterised as one of the major issues in contemporary life.

The challenge, in the parallel analysis of the competing rights and interests in play, is that the rights in contemplation are of wholly different complexion. The exercise involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.

Mrs N, Susan Rosenbaum as she may now be known and her daughter M, Miranda Rosenbaum, have, whilst unnamed, already gained the respect and sympathy of the vast majority who read about them. The case, brought by Ms Miranda Rosenbaum, has also added significantly to the public knowledge and understanding of issues that any one of us might have to confront. As I have already commented, there are echoes of her mother’s own courage and determination, from that legal action 40 years ago, reverberating through this application. Ms Miranda Rosenbaum has shown enormous strength in bringing this application. I hope that this family will be allowed peace and privacy to heal from their long ordeal.

The Press Association did not raise the question of jurisdiction in this application. Charles J identified the issue as to whether the COP has powers 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. Section 47 of the Mental Capacity Act 2005 provides that ‘the Court has in connection with its jurisdiction, the same powers, rights, privileges and authority as the High Court’. As the COP does not have an inherent jurisdictional power the issue is whether in entertaining this application for an injunction the Court is being asked to utilise a power that can properly be said to be ‘in connection with its jurisdiction’.

Charles J considered the answer to be that the Court is exercising a power ‘in connection with its jurisdiction’, concluding that the nature and extent of the relevant Article 8 rights relied on, derived from the very existence of the earlier proceedings. To construe section 47 in such a way as to limit it to a period circumscribed by the lifetime of the subject of the proceedings would be to take an unnecessarily restrictive construction of the language of section 47. Furthermore, it would ignore the important interpretive principle that legislation should be construed, so far as possible, in a way which is compatible with convention rights. I respectfully agree but, like Charles J, to avoid uncertainty, I would wish to make clear that in considering this application, I do so as a Judge of the High Court as well as a Judge of the Court of Protection.