P (Court of Protection: Transparency), Re

These Court of Protection proceedings relate to a 25-year old young man P. He has a diagnosis of mild learning disability combined with significant deficits in adaptive functioning. He has autistic spectrum disorder and attention deficit hyperactivity disorder. P’s cognitive impairment and concomitant ASD and ADHD place him at risk of offending.

P has been convicted of several sexual offences. He is subject to a Sexual Harm Prevention Order and to an extant suspended sentence of 4 months imprisonment suspended for 12-months. He currently resides at a supported living placement facility in the North of England. A requirement of the suspended sentence with that P should reside at this facility or at a place as directed by the National Probation Service.

P is likely to be charged by the police with a significant number of further offences in early course; all are of a sexual nature.

Earlier in these proceedings the judge to whom these proceedings were then allocated, a tier 1 judge, determined that the proceedings should be heard in private. Once the proceedings were re-allocated to me, I raised the issue of why the case relating to P should not be heard in public but subject to a suitably worded transparency order. I invited the local authority, in whose favour I had made a deprivation of liberty order, the Official Solicitor, as P’s litigation friend, and the National Probation Service to file and serve written submissions on the issue of whether the proceedings should continue to be heard in private or heard in public with a transparency order.

I am immensely grateful to counsel for each of the three parties for their succinct but helpful submissions. The local authority and the National Probation Service contend the proceedings should be heard in private. The National Probation Service submitted in the alternative that the proceedings should be heard in public, but with the court making an appropriate transparency order, with which the Official Solicitor agreed.

The relevant legal framework is set out in the CoP Rules 2017. CoP rule 4 is supplemented by CoP PD4C.

The usual approach is that hearings are heard in public and a transparency order will be made (see paragraph 2.1). The background to the “usual approach” was a desire to ensure that the Court of Protection, which has the power to make a wide range of orders involving those who lack capacity including medical treatment and deprivation of liberty orders, avoided the label of “the secret court”. This label had been adopted by numerous press organisations. The concept of a “secret court” had the potential to undermine the confidence of the important work of the Court of Protection.

Private hearings reinforce the concept of the secret court. The concerns about unwarranted and intrusive reporting could be addressed by an order which prevented the identification of information that could lead to the identification of the subject of the application and other parties.

Practice Direction PD4C sets out the factors to be considered when the court is deciding to hold a public hearing. These are:

I was referred to the case of Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL [2005] 1 AC 593, in which Lord Steyn said:

“By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression, the court must have particular regard to the importance of the right.

The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the difference between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test….”

In Re Guardian News and Media Ltd and Ors [2010] UKSC 1 [2010] 2 AC 697 Lord Hope said:

“Lord Hoffmann's formulation was adopted by Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145, para 17. Since “neither article has as such precedence over the other” (In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 603, para 17, per Lord Steyn), the weight to be attached to the rival interests under articles 8 and 10 —and so the interest which is to prevail in any competition—will depend on the facts of the particular case. In this connection it should be borne in mind that—picking up the terminology used in the Von Hannover case 40 EHRR 1—the European court has suggested that, where the publication concerns a question “of general interest”, article 10(2) scarcely leaves any room for restrictions on freedom of expression: Petrina v Romania (Application No 78060/01) given 14 October 2008, para 40.”

Finally, in Re (C) v. Secretary of State for Justice (Media Lawyers Association intervening) [2016] UKSC 2, Baroness Hale observed:

“jurisdictions dealing with 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.”

The risks to P if these proceedings are not heard in private are asserted by the local authority and/or the National Probation Service to be as follows:

The Official Solicitor submitted that each of these matters can be addressed by the court making a transparency order. She submitted as follows:

“The Practice Direction PD4C sets out the factors to consider when the court is deciding to hold a public hearing. These are:

(a)

In this regard, the evidence before the court confirms that P is a vulnerable adult. Previous placements have broken down and the difficulties, in the event that this placement broke down, would be significant in terms of identifying an alternative placement. P himself appears to have no ability to control the information which may lead to reprisals against him. He reveals information to others about his offences. To the extent that P’s welfare (in its widest possible sense) would be compromised by a public hearing, there is evidence to support the concern that P’s welfare could be compromised. There is accordingly a need to protect P as a party to the proceedings.

(b)

The Official Solicitor agrees that there is a risk that the evidence in the case could be reported in a sensationalist way given P’s sexual interest in children and his fetishism surrounding urination. However, that risk can be reduced with appropriate orders in relation to what can be reported. Furthermore, the court should have confidence that accredited media organisations will report the proceedings in a responsible way.

(c)

In these proceedings, District Judge Davies gave a judgment

which resulted in the proceedings being heard in private. Furthermore, previous hearings have been in private.

(d)

This application will be heard either at the Royal Courts of Justice (or any other main court centre). The majority of Court of Protection hearings before Tier 3 judges have appropriate facilities to allow the general public to access the hearing.

(e)

A Local Authority asserts that there is a risk of disruption if the public have access to the hearing. The subject matter of the application may cause an adverse reaction from persons attending. The Official Solicitor submits that there is a risk of disruption to the proceedings but the nature of this risk cannot be predicted at this stage. Members of the public who have a genuine interest in the work of the Court of Protection are unlikely to be disruptive during the course of the hearing. However, members of the public who for example could be part of a vigilante group or family members of P’s victims are more likely to be disruptive during the course of the hearing. In the absence of any evidence as to whether there would be disruption, this is speculative at this stage. Furthermore, if such disruption occurred the court would have the power to remove persons from the court.”

When considering the factors set out in PD 4C, the need to protect P is a very powerful factor in favour of holding the proceedings in private. The sanction for a breach of a transparency order is contempt proceedings. If the order is breached, however, the information which the order sought to protect may already be in the public domain and the harm to P and/or his placement may have already occurred.

The importance of public justice, however, is a central tenet of the Court of Protection. It should only be overridden when the circumstances of the case compellingly, and on the basis of cogent evidence, require the proceedings to be heard in private.

I accept the submissions of the Official Solicitor that in her experience and that of her office is that those members of the accredited media who attend Court of Protection proceedings respect the orders of the court and report proceedings in a responsible manner. This mirrors this court’s experience.

Accordingly, I am satisfied that if:

With the exclusion of the public and the making of appropriately drafted transparency order the risks to P of identification, and the consequences of the same, are reduced very considerably. These reduced risks do not justify overriding the central tenet of open justice in the Court of Protection. Accordingly, I do not consider it necessary and proportionate for these proceedings to continue to be heard in private.