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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P v Independent Print Ltd. & Ors [2011] EWCA Civ 756 (04 July 2011) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2011/756.html Cite as: [2011] Fam Law 1081, [2011] EWCA Civ 756, [2012] 1 FLR 212 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE HEDLEY
COP11531312
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CARNWATH
and
LORD JUSTICE TOMLINSON
____________________
P (Through his Litigation Friend the Official Solicitor) |
Appellant |
|
- and - |
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(1) Independent Print Ltd (2) The Council (3) The PCT (4) AH |
Respondents |
____________________
Mr Guy Vassall-Adams (instructed by Legal Department, Independent Print) for the 1st respondent
Miss Fenella Morris (instructed by The PCT and The County Council) for 2nd and 3rd respondents
Hearing date: 1st February 2011
____________________
Crown Copyright ©
This is the Judgment of the Court:
The background
"24. [She] is undoubtedly a complex character, but of a type one has met before as a carer of those with special needs. She is and has been for over 18 years, single-mindedly devoted and committed to the care of P, and although it is an exhausting prospect, is determined to maintain that stance into the indefinite future. She has given to him an emotional warmth and stability which he so severely lacked when he came to her, and he is a far less emotionally damaged and vulnerable person now than anyone in 1992 had the right then to expect. The credit for that, and it is a huge achievement, belongs unarguably to AH.
25. However, it has come at a considerable cost to them both. It is utterly clear that they have been deeply and, as I find, unhealthily enmeshed with one another, so much so that when speaking to either about themselves or about the other, it is quite impossible to discern whose voice is actually being heard.
26. On the one hand, AH became deeply concerned that P was effectively an invalid with ME whilst on the other, she has fought to protect him from the intrusion of, as she sees it, incompetent, indeed mendacious professionals."
The Independent Newspaper's involvement
"2. … this application was not effectively served on any of the parties until the day of the hearing. That is clearly unsatisfactory. The reason that that has happened is because the applicants relied on email transmission to the Court of Protection office at Archway and that never yielded what they expected it to yield, namely, the sending out of an application form which could then be served on the parties.
3. Two matters flow from that. One is it is the obligation of any applicant to ensure that parties are served in good time and secondly, that reliance on email communications as a way of initiating an application is one that is not effective and the matters will have to be addressed in the conventional way. In the event, it has been accepted on all sides that this matter needs to be dealt with now, as otherwise it would result in an entirely unnecessary adjournment of the review proceedings which would be doubly unfortunate, given that this is a case from [out of London].
4. The second matter is that it merely illustrates that there are still some difficulties in terms of how the press and media generally play a role in Family and Court of Protection proceedings. It is usually the press that are in the position of complaining about want of notice in injunction proceedings. It merely illustrates that clear working procedures have still not yet been fully worked out in this rather difficult area. That said, I intend to entertain and deal with this application.
5. The second observation is this. This application (succinctly argued though it has been) raises some really quite difficult issues but almost a policy decision has been taken that the court must deal with these applications summarily and therefore I propose to give an ex tempore judgment even though some further deliberation might otherwise have been justified. Unless the Court accepts the discipline of summary determination and ex tempore judgment, cases are likely to be unnecessarily and significantly delayed each time an application of this sort is made."
The hearing before Hedley J.
"9. … It seems to me that the workings of the Court of Protection are, and mostly certainly should be, a matter of public concern and information. This case is unusual in that it illustrates in a peculiarly vivid way the powers of the court in intervening in what appears to be a common view of mother and son that they should be allowed to live together but that the son's interests are in fact not served by that approach and the court has so found and has made contrary orders."
"10. … it affords a valuable insight into the range of powers of the Court of Protection and, potentially, valuable insight into the way in which the High Court is disposed to exercise those powers when satisfied about the best interests of an incapacitated person. I conclude, for those reasons, that the press have established good reason which leads me on to the balance between article 10 and article 8."
"15. … The first is that the court will have the ability to maintain the anonymity of the parties and, indeed, the area in which the parties live, save in so far as it is discernible from the original judgment, and thus to restrict the direct impact of any reporting on [P] himself. It would, I think, tilt the balance seriously the other way if there was to be a disclosure of this young man's name and whereabouts but that seems to me something over which the court retains control.
16. The second matter is this. In so far as AH has been encouraging the publicity of this case and in so far as she seeks to make use of that so as to increase her influence over [P] those seem to be matters that ought to be addressed within the contact proceedings because they merely emphasise (if emphasis be needed) the difficulties that the contact regime presently occasions for [P] himself. They do not seem to me, of themselves, to produce a position where article 8 rights outweigh article 10 rights.
17. I have one other point that I add to this consideration which is more within my own experience than otherwise but, in my experience over my nine years on the High Court bench, whenever journalists have been permitted to attend court, the ultimate reporting has always been fair, accurate and impartial and I personally am impressed by an argument which says that it is much more likely to be that if the journalist has listened to the proceedings than if the journalist is dependent on other sources of information particularly if the other sources of information have an interest in the proceedings and a limited perception of the true breadth of the issues being considered by the court.
18 For all those reasons, I have come to the conclusion that the court should make an order permitting that the particular member of the press on whose behalf this application is made should be allowed to remain and listen to the review but I have made it clear that I do not intend in any circumstances to be persuaded away from the continued anonymisation of these proceedings."
"1. The IPL is permitted to attend the hearings in this matter, without prejudice to the exercise by the judge of his power to exclude the IPL at future hearings;
2. The IPL is permitted to report the judgment handed down by Hedley J on 8th December 2010 relating to its application for permission to attend the hearing; …
4. The IPL is permitted to report the judgment in the substantive application," (which I take to be the judgment that followed later that day).
"My order has the effect of allowing press to attend any future hearings unless and until otherwise ordered by the judge taking that hearing on application to him by any party. It does not permit any reporting which is a matter for the judge conducting that hearing."
"The second respondent [AH], whether by herself or the instruction or encouragement of any other person, shall not, by any means, bring to the attention of [P] the fact of, nor the content of, any media reporting of this case. Any person with knowledge or notice of this order or the judgment made on this date, shall be held in contempt of court if they bring or attempt to bring to [P's] attention the fact of or the content of any such media reports."
The statutory framework
"(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
Section 4 assists in determining what those best interests are and how they are to be determined. The person making the determination must consider all the relevant circumstances and must consider, so far as is reasonably ascertainable, the person's own wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity and the other factors that he would be likely to consider if he were able to do so.
"(1) The powers under section 16 as respects P's personal welfare extend in particular to—
(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P …"
"for enabling or requiring the proceedings or any part of them to be conducted in private or for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public."
"(3) These Rules have the overriding objective of enabling the court to deal with a case justly, having regard to the principles contained in the Act."
"90.— The general rule - hearing to be in private.
(1) The general rule is that a hearing is to be held in private.
(2) A private hearing is a hearing which only the following persons are entitled to attend—
(a) the parties;
(b) P (whether or not a party);
(c) any person acting in the proceedings as a litigation friend;
(d) any legal representative of a person specified in any of sub-paragraphs (a) to (c); and
(e) any court officer.
(3) In relation to a private hearing, the court may make an order—
(a) authorising any person, or class of persons, to attend the hearing or any part of it; or
(b) excluding any person, or class of persons, from attending the hearing or any part of it.
91.— Courts general power to authorise publication of information about proceedings
(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private may be published where the court makes an order under paragraph (2).
(2) The court may make an order authorising—
(a) the publication of such information relating to the proceedings as it may specify; or
(b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.
(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—
(a) impose restrictions on the publication of the identity of—
(i) any party;
(ii) P (whether or not a party);
(iii) any witness; or
(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
92.— Court's power to order that a hearing be held in public
(1) The court may make an order—
(a) for a hearing to be held in public;
(b) for a part of a hearing to be held in public; or
(c) excluding any person, or class of persons, from attending a public hearing or a part of it.
(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—
(a) impose restrictions on the publication of the identity of—
(i) any party;
(ii) P (whether or not a party);
(iii) any witness; or
(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify."
93.— Supplementary provisions relating to public or private hearings
(1) An order under rule 90, 91 or 92 may be made—
(a) only where it appears to the court that there is good reason for making the order;
(b) at any time; and
(c) either on the court's own initiative or on an application made by any person in accordance with Part 10.
(2) A practice direction may make further provision in connection with—
(a) private hearings;
(b) public hearings; or
(c) the publication of information about any proceedings."
Procedural unfairness
"If [P] were by chance to come across the article in the Independent he would be unlikely to either identify himself in the article or apply the circumstances to his own.
…
Future newspaper articles, both national and local, and broadcast media reporting either on radio or television are likely to increase the probability of the case coming to the attention of those who know or associate with [P] and to [P] himself.
…
If [P] believes that information about him is being shared with the media it will contribute to a sense of distrust. This will seriously undermine his care plan and developing therapeutic relationships.
…"
Was there good reason for making the order?
"10. Rule 90 is clear. Hearings will normally be held in private. The court is vested with a permissive power to enable anyone, or any class of people, to be present at the hearing. The permissive power is not confined to but it includes representatives of the media. Similarly, with the court's jurisdiction to authorise the publication of information which relates to the proceedings, including, of course, the hearing itself: anyone or any class of people may apply.
11. None of these orders may be made unless there is "good reason" for making it. We do not propose to re-write the words "good reason". They mean what, taken together, they say. Arguments about whether the general rule that the hearing should be in private amounts either to a presumption or to a starting point are in practice unlikely to be anything other than semantic. If in the judgment of the court there is good reason to grant the authorisation, the order may be made: otherwise not. No doubt more compelling reasons would be likely to be required in support of a full public hearing rather than a suitably anonymised publication of the court's judgment. In agreement with Hedley J, we would emphasise that, even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it. Accordingly the reality is that provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact-specific judgment whether the specific authorisation should be granted. In other words, before the court makes an order under Rules 90 to 92, a two-stage process is required; the first involves deciding whether there is "good reason" to make an order under Rule 90(2), 91(1) or 92; if there is, then the second stage is to decide whether the requisite balancing exercise justifies the making of the order."
"19. The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one long-standing common law exception to the principle that justice must be done in open court."
"22. … because A's remarkable situation, including (in particular through the medium of the published biography) details of his private life, is already in the public domain that the interests of the public and the media are legitimately engaged. … Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public and to make better informed submissions to the judge about the matters for which publication should be authorised.
23. We should add that it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes. It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private. That is a particularly significant point at this time, in the light of the interest and concerns which have been expressed in some quarters about the new Court of Protection. That feature of the case, and Hedley J's reasoning, merits attention in the context of the high public interest element of this case."
Do P's Article 8 rights outweigh the media's Article 10 right to freedom of expression?
"27. In our judgment the considerations which arise under article 8 are effectively encompassed within the legislative structure of the 2005 Act and the rules made under it. The privacy rights of those involved in proceedings in the Court of Protection are addressed by the over-arching principle that the hearing should normally be a private hearing from which the media, or indeed any other outsiders, are excluded. As we have explained, in essence this structure follows well-established common law principles governing the way in which the affairs of patients, who do not come to court as well informed volunteers, but who are vulnerable and under disability, are provided with many of the same safeguards as those provided to children, who for different reasons are subject to disability."
"Although the exercise upon which the judge was engaged was not the exercise of a discretion it was similar in that it involved carrying out a balancing exercise upon which different judges could properly reach different conclusions. In these circumstances it is now well settled that an appellate court should not interfere unless the judge has erred in principle or reached a conclusion which was plainly wrong or, put another way, was outside the ambit of conclusions which a judge could reasonably reach."
Meeting P's best interests
"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
"To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."
"It would be a mistake … to give the judges a power to stop publication of true matter whenever the judges – or any particular judge – thought it was in the interests of a child to do so."
That has been consistently followed: see, for example, R v Central Independent Television Plc [1994] Fam 192.
Conclusion