England and Wales Court of Appeal (Civil Division) Decisions
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A v Independent News & Media Ltd & Ors  EWCA Civ 343 (31 March 2010)
 2 FLR 1290,
(2010) 113 BMLR 162,
 3 All ER 32,
 WLR 2262,
 2 FCR 187,
 1 WLR 2262,
 EWCA Civ 343,
(2010) 13 CCL Rep 262,
 Fam Law 705,
 MHLR 154,
 EMLR 22,
 UKHRR 713
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[Buy ICLR report:  1 WLR 2262]
||Neutral Citation Number:  EWCA Civ 343
||Case No: B4/2009/2480
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
Mr Justice Hedley
 EWHC 2858 (Fam)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE MASTER OF THE ROLLS
SIR MARK POTTER, PRESIDENT OF THE FAMILY DIVISION
|| A BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR
||- v -
||INDEPENDENT NEWS & MEDIA LIMITED, ASSOCIATED NEWSPAPERS LIMITED, GUARDIAN NEWS & MEDIA LIMITED, TIMES NEWSPAPERS LIMITED, TELEGRAPH MEDIA GROUP LIMITED and THE PRESS ASSOCIATION
Mr Gavin Millar QC and Miss Barbara Hewson (instructed by Irwin Mitchell) for the Appellant
Mr Antony White QC and Mr Guy Vassall-Adams (instructed by Independent News & Media Limited) for the Respondent
Hearing dates : 24 & 25 February 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Lord Chief Justice of England and Wales:
- In this appeal the Official Solicitor is acting on behalf of a severely disabled adult, known in these proceedings as "A", who is incapable of managing or making any decisions about his own affairs and welfare. In accordance with the Mental Capacity Act 2005 his parents and sister have applied for a declaration that they should jointly be appointed as his deputies, to take decisions on his behalf in relation to his personal welfare, and his property and other affairs.
- The appeal is brought, with his leave, against the order of Hedley J dated 16 November 2009 that the Independent News and Media and others (the media) should be granted access to the forthcoming hearings of the application. The effect of the order would enable designated representatives of the media to attend the hearing in the Court of Protection, and thereafter to apply to the judge for his authorisation to enable them to publish information disclosed in the proceedings.
- The essential features of this extraordinary case are carefully examined in Hedley J's judgment. A is now 30 years old. He was born prematurely. Immediately after his birth he was incubated, but he experienced fluctuating oxygen levels in his blood. As a result he developed retinopathy of prematurity, a condition in which the vessels in the eyes grow abnormally with consequent retinal damage. As a result he is and always has been totally blind. He also suffers from learning difficulties which are associated with Autism Spectrum Disorder. His disabilities are acute. He is incapable of leading an independent life. He is dependent on others for his care. Currently he is cared for in accommodation provided and managed by a national charity, the Royal National Institute for the Blind. Yet simultaneously, despite all his severe disabilities, he is a man of remarkable accomplishment, a musical prodigy. He taught himself to play the piano and the quality of his playing has brought public, indeed international recognition. In that sense he has triumphed over his disability. That gives his life story compelling human interest. And, unsurprisingly, it has attracted public attention in the media.
- Throughout his life A has had the advantage of a close and devoted family. The present application is motivated by an intense desire to protect and advance his interests. Their views on the question whether the media should be permitted access to the hearings were sought. Speaking on their behalf, A's father indicated a preference "for the hearings about A's private arrangements to be conducted in private", adding that "any arguments about the merits should be addressed by the Official Solicitor who can independently assess the justification of the press position…". The media's application was opposed by the Official Solicitor.
- That is a brief summary to the background of the proceedings by A's parents and sister in the Court of Protection, seeking an order that they should be jointly appointed to act as A's property and affairs and health and welfare deputies. The submission was that the order would benefit A himself enabling his residence/care, his financial affairs and his musical career to be better managed. As his close family members with regular contact they were best placed to make these decisions. The court was invited by the Royal National Institute for the Blind to appoint an independent deputy, working closely with the family, who would make the appropriate decisions relating to A's career as a professional musician. An independent expert was asked to address a number of specific questions relating to A's future career as a performing artist. The summary of issues included the following matters:
"What is in A's best interests in respect of performing in public and his participation in commercial music, his participation in publicity/marketing, and whether a welfare and/or financial deputy needs to be appointed to manage those activities (a fried/family or independent person) and the remit of any appointed welfare and/or financial deputy."
- These are not the only issues which will be addressed in the substantive proceedings. It is inevitable that medical and psychiatric evidence about A's condition will be adduced, and the Court of Protection will consider the impact of A's various disabilities on his daily routine, both when he is living his ordinary life, and when he is performing publicly. It will be necessary, too, to examine his financial records, his earnings, and the prospects of the development of his musical career. Many of these matters are intensely personal and none of them would be in the public domain if A were capable of making his own decisions about his life, exercising the personal autonomy for which he is sadly incapacitated.
The Legislative Structure
- The Court of Protection was created by Part 2 of the Mental Capacity Act 2005. Section 51 of the Act provides that rules of court may be made, and subsection (2)(h) further provides that the rules may make provision "for enabling or requiring the proceedings or any part of them to be conducted in private and 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".
- The relevant rules are found in part 13 of the Court of Protection Rules. They provide:
"General rule – hearing to be in private
90. – (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-paragraph (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 a part of it; or
(b) excluding any person, or class of persons, from attending the hearing or a part of it.
Court's general power to authorise publication of information about proceedings
91. – (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 further 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.
Power to order a public hearing
Court's power to order that a hearing be held in public
92. – (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.
Supplementary provisions relating to public or private hearings
93. – (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."
- Section 12 of the Administration of Justice Act 1960 identifies the circumstances in which publication of information about proceedings held in private constitutes a contempt of court. It has been amended to take account of the Mental Capacity Act 2005, which brings proceedings in the Court of Protection within the ambit, but subject to the limitations of section 12, and in particular subsection (2). In our judgment, however, the issues which arise in this appeal are and should be addressed remote from the question whether any unauthorised publication of any part of proceedings before the Court of Protection may or may not constitute a contempt of court. That would be an area for satellite litigation relating to potentially punitive sanctions when the object of these Rules is to clarify the arrangements. We shall therefore focus on the Rules.
- 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.
- 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.
Hedley J's judgment
- This judgment is criticised by the Official Solicitor on the basis that Hedley J was wrong to conclude that there was good reason for making the order sought by the media, and by a Respondent's Notice, by the media, for his analysis of the way in which article 10 of the European Convention of Human Rights impacts on the legislative structure.
- Hedley J identified what he described as the "tension" between the essentially private nature of the subject matter of the proceedings and the legitimate public interest in the practice and exercise of the powers of the new Court. It arose in what he described as "the context of a person of whom much is already known by the public and whose story has an almost irresistible attraction to it".
- The essential features of his analysis of the statutory provisions was that case hearings before the Court of Protection should ordinarily take place in private and that it was for the media to justify any disapplication in an individual case of whether exceptions to the rule were sought. Unless the court was satisfied that there was "good reason" for allowing the exception, it should not be made. The words "good reason" in rule 93 are not further explained or defined. The essential submission in this appeal is that Hedley J was wrong to conclude that sufficient "good reason" was established.
- Hedley J was plainly impressed, as we are, with A's remarkable story. He noted that the media was seeking authorisation for the attendance of a limited number of media representatives at what would otherwise be a private hearing, who would then, having listened to the case, be able to make informed submissions about what, if any, matters they should seek to publish. In reaching his conclusion, he reflected on the weighty considerations to which his attention was drawn on behalf of the Official Solicitor, in particular, the danger of confusing the public interest with matters which the public finds interesting, and the concern that this particular case would receive a degree of publicity and attention when A's story arose from circumstances quite beyond his control. In general terms, he thought that the media should be allowed to report any material which was already in the public domain and any material which answered questions which might legitimately be posed by a reasonable individual who knew of the matters which were already in the public domain. It was in the public interest that the issues raised by the application made by A's parents and sister should be heard by the media, and it was also in the public interest that the jurisdiction and powers of the Court of Protection, and how they were exercised, should be understood. He acknowledged that some of these considerations could be said to apply in almost any case, and stressed that it was the combination of these considerations in this particular, unusual, case that led him to his decision.
- Addressing Convention rights, Hedley J observed that A's right to privacy under article 8 of the European Convention on Human Rights was engaged. That was not in contention. The issue of substance in relation to the European Convention was whether and if so to what extent the article 10 rights of the media were engaged. It was submitted that once an application was made to the Court of Protection the Court was obliged to undertake the obligation to balance the conflicting rights of A to privacy under article 8, and of the media to receive and impart information without interference under article 10. Hedley J decided that the rights of the media were addressed and governed by their entitlement to demonstrate "good reason" for an order reducing or extinguishing A's entitlement to privacy. He concluded that:
"…the proceedings…are within the exceptions to the open justice principle and are therefore not immediately subject to it. Accordingly I conclude that the institution of such proceedings does not engage the article 10 rights of the media. That is, of course, not to say that they have no rights as they clearly have a right to apply under rule 91 and PD 13 A. Once they apply they undertake to demonstrate "good reason" for the order. In my judgment that is not synonymous with the immediate engagement of article 10 rights and the court undertaking the conventional balancing exercise between the respective article 8 and article 10 rights. However once "good reason" is established then that balance does indeed have to be undertaken."
And that is precisely what Hedley J did. After reflecting carefully on the provisions of article 8 and article 10 of the Convention he concluded that the legitimate concerns for A's privacy and the legitimate aspirations of the media could both be met. Accordingly he made the order now under consideration. He was not asked to order and did not order a public or open court hearing. There was, however, good reason for a partial lifting of the embargo on the presence of a limited number of representatives of the media at the hearing.
- The Court of Protection was created by the Mental Capacity Act 2005. The Court has been vested with significant powers to assist those who, for whatever reason, lack the capacity to make decisions themselves. The background to the new legislative structure arose from the need to address the interests of those individuals who did not fall within the ambit of successive Mental Health Acts. The Family Division of the High Court gradually developed structures appropriate to provide the protection necessary to meet those needs. The 2005 Act replaces this jurisprudence by introducing a self contained legislative structure, largely based on the practices of the Family Division where judges dealt with welfare matters. The matters historically dealt with by the Office of the Supreme Court (under the name of the Court of Protection) involved property and financial affairs. The two jurisdictions dealing with both welfare and property and financial affairs are now vested in one court: the Court of Protection.
- The jurisdiction is regulated exclusively in accordance with the new Act. The result is that the affairs of those who are incapacitated for the purposes of the Act are examined before a judge in court. The affairs of those who are not incapacitated are, of course, decided and handled privately, usually at home, sometimes with, but usually without confidential professional advice. None of these decisions is the business of anyone other than the individual or individuals who are making them. And that, as we emphasise, represents an entirely simple, and we suggest self-evident aspect of personal autonomy. The responsibility of the Court of Protection arises just because the reduced capacity of the individual requires interference with his or her personal autonomy.
- 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 longstanding common law exception to the principle that justice must be done in open court.
- In effect the submissions before us repeat the submissions made by the Official Solicitor to Hedley J. It is accepted that A has achieved a public profile which arises from a combination of his medical condition and his musical talent. He has not only performed in public to great acclaim, but he has been the subject of a published biography (whose author was afforded access to A and his family) and has been publicly photographed with celebrities. On the other hand, save for the performance itself and posing for photographs, he suffers from significant limitations with regard to giving interviews or performing any other public role or function. Although he has a public profile, his entitlement to protection and respect for his public life is undiminished. There is no pressing social need for the media to gather the information, which is concerned exclusively with the details of his private life, and how it will be addressed in the future. Neither the Court's powers to preserve A's privacy, nor the public interest in understanding the jurisdiction and powers of the Court and how they should be exercised constitute good reason for publication within the legislative framework. So far as public understanding is concerned, this could be done by the publication of an open judgment explaining these matters.
- Mr Gavin Millar QC emphasised that much of the material relating to A's situation is publicly known, and that any further matters of interest arising from the proceedings may be adequately covered by providing the media with access to the judgment of the court, or with those parts of the judgment of the court which may be of public interest. On this basis therefore there was nothing, or nothing of any special significance, which the attendance of the media at the hearing would reveal and for which authorisation to publish would be granted.
- The problem with this submission is that it is just 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. There is nothing prurient about that interest: on the contrary, it tells us all something, perhaps indefinable, but for all that something inspiring about the triumph of the human spirit over adversity. The presence of selected representatives of the media, in limited numbers so that the hearing is not turned into a publicity circus, will ensure that matters of legitimate public interest may be drawn to the attention of the judge as possible matters for publication. However the litigation is about A's interests, and the involvement of his devoted family, and the judge must concentrate on them and he will produce a judgment which reflects his decision about the matters in issue before him. He is not qualified to determine what is or may be of interest to the public: that is the function of the media, not the judiciary. In any event, it would be an inappropriate exercise of a judge's responsibility if he were to tailor the contents of his judgment to what he believed to be the needs or concerns of the media. 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.
- 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.
- Mr Millar is inviting this court to interfere with the judgment of the Court of Protection to grant limited authorisation to a selected number of representatives of the media to attend the hearing, who may not, without further authorisation from the judge, publish any information derived from the hearing. The correct approach to Hedley J's decision is identified in Lord Browne of Madingley v Associated Newspapers  QB 103 at paragraph 45. This court should not interfere "unless the judge has erred in principle or reached a conclusion that was plainly wrong or, put another way, was outside the ambit of conclusion which a judge could reasonably reach". Some of the authorities exemplifying this principle are noted at the end of this observation. We do not propose to repeat them in this judgment, or to add to them. The principle is clear and well understood. It applies to Hedley J's carefully considered judgment in this case, with which we agree, and which we shall adopt without re-writing in different words.
Articles 8 and 10 of the European Convention of Human Rights
- That conclusion is sufficient to dispose of the appeal by the Official Solicitor. However Mr Antony White QC on behalf of the media invited us to consider the correctness of Hedley J's observations about the impact of article 10 of the European Convention of Human Rights on the processes of the Court of Protection. Given that the judge gave a concluded view on this issue and that the chances that the issue will arise for further consideration in this court in the immediate future are slight, we propose to address his submissions.
- Article 8 of the European Convention on Human Rights provides:
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except…"
- 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.
- In this connection, it is also relevant to refer to Article 6.1 of the Convention, which provides that:
"In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … . Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
- There can be no doubt, indeed it has not been suggested otherwise, that the Rules 90 to 93 of the Court of Protection Rules comply with article 6 see in this connection B v United Kingdom (2002) 34 EHRR 19, paragraph 39, where the Strasbourg court held that legislation could provide for "an entire class of case" to be held in private, where it was, inter alia, "required by the interests of juveniles or the protection of the private lives of the parties", although the court also emphasised "the need for such a measure should always be subject to the Court's control." As we have said, in broad general terms, the ways in which autonomous adults who are not disadvantaged by disability organise their lives are entirely private, and this is reflected by the presumption, or starting point in Rule 90(1). However, the public interest may, in exceptional cases, outweigh the privacy which those with a disability can normally expect in relation to hearings in the Court of Protection. In this context therefore, it seems to us that the provisions of article 8, while coinciding with the arrangements for privacy which are spelled out in the legislative structure, do not enhance their significance, but rather, repeat them.
- When deciding whether to exercise any power under Rule 90(3), 91(2) or 92, even in the absence of the Human Rights Act 1998, the court would, of course, give very great weight to the actual or potential invasive or other effect which an order might have on the private or family life of any person whose privacy is intended to be protected by rule 90(1). In many cases, indeed we suspect in the great majority of such cases, article 8 of the Convention would add little, if anything, to the reasoning or conclusion of the court. Having said that, whenever the court is considering whether to exercise any of its powers under rules 90 to 93, it should as Hedley J did in this case, specifically consider the article 8 rights of any party whose private life may be in some way intruded upon if an order is made. Such an approach is consistent with that adopted by Lord Steyn in re S  UKHL 47,  1 AC 593, paragraphs 24ff, and by Lord Rodger of Earlsferry in Application by Guardian News and Media Ltd  UKSC 1,  2 WLR 325, paragraphs 37ff. While in the great majority of cases article 8 considerations will add nothing to the factors, or even the weight to be accorded to the factors, which the common law would require to be taken onto account, in rare cases it may intensify the focus on such rights, and in other cases it could conceivably affect the outcome.
- Within the context of this over-arching principle of privacy, we turn to Article 10 of the European Convention which provides:
"Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
- In this context our attention was also drawn to section 12(4) of the Human Rights Act 1998 which makes particular provision relating to freedom of expression, by emphasising that when issues relating to freedom of expression may arise, the court must have particular regard to its importance.
- Hedley J held that the article 10 rights of the media were not engaged until "good reason" had been established under Rule 93(1); in other words, that such rights were not engaged until the second stage, as described in paragraph 11 above. In support of the media's cross-appeal, Mr White submitted that the article 10 rights of the media were engaged at the very earliest stage of the process, indeed in effect, before it began, but if not then, at the moment when any application for an authorisation was made.
- The statutory structures which govern the processes of the Court of Protection underline the primacy of privacy considerations in unequivocal language. For reasons we have given, this is justified at common law, and indeed falls within the exceptions acknowledged in article 10.2, which underlines that article 10.1 rights are not themselves absolute. The jurisdiction of the Court of Protection for "good reason" to set aside the privacy requirement in an individual case represents an acknowledgement within the statutory structure that on occasions there may be a public interest in the individual case which may outweigh the privacy considerations.
- The "good reason" relied on by the media will invariably be based on the public interest in the imparting and receiving of information about the particular case, or some of its features, or the functioning of the Court of Protection. As we see it, the statutory structure properly and sufficiently ensures that the article 10 rights of the media are given their proper weight in the process. The question when article 10 is engaged will, therefore, at least normally, not matter in any particular case where the court is being asked by the media to make an order under rules 90 to 93. As with article 8, the factors which the common law would require to be taken into account, and the weight to be given to them, would usually be the same as if the issue was being addressed by reference to article 10. Nonetheless, again as with article 8, if article 10 is engaged, it may involve a more intense focus than under the common law, and it could conceivably sometimes yield a different result.
- Particularly as Hedley J decided that the article was only engaged once the media had shown "good reason", and the media's case is that it is engaged as soon as the court's jurisdiction is invoked in a particular case, it is right to address the issue.
- On the face of it, there is considerable force in the view that article 10 is not engaged until the court has decided that there is "good reason" under Rule 93(1)(a). As Lord Rodger said in Guardian paragraph 34, "[o]n the existing Strasbourg law, a right to obtain" any "information which would not otherwise be available" to a person "is not within the scope of article 10(1)". According to a number of decisions of the Strasbourg court to which we were referred, that article can, at least normally, only be relied on for the purpose of receiving (whether or not with a view to disseminating) information which is already available to the applicant. In the decision relied on by Lord Rodger, Leander v Sweden (1987) 9 EHRR 433, the applicant complained that refusing him access to information about himself, in what were said to be sensitive records maintained by the executive arm of the Swedish government, was a breach, inter alia, of his article 10 rights. The Strasbourg court rejected the complaint, saying, in paragraph 74, that article 10 did not "in circumstances such as those of the present case, confer on an individual a right of access to a register containing information on his personal position".
- However, we have reached the conclusion that article 10 was engaged at the time that the instant application was made by the media. As already mentioned, Hedley J proceeded on the basis that the media should, at least in principle, be allowed to report any material which was already in the public domain and any material which answered questions which might legitimately be posed by a reasonable individual who knew of the matters which were already in the public domain. Thus, even applying the approach adopted in Leander paragraph 74, much of the material the media wished to report on, and therefore to hear by attending the hearing either is in the public domain, or would legitimately be of public interest from what is in the public domain.
- Quite apart from this, and more broadly, where the information concerned is sought by the media and arises in court proceedings, the general rule laid down in Leander paragraph 74, may well not apply. As is clear from that paragraph, the principle that article 10 cannot give rise to a right to obtain information is not absolute, in the light of the words "in circumstances such as these" - and see the similarly expressed view in Gaskin v United Kingdom (1990) 12 EHRR 36, paragraph 52. Where article 6 is also engaged, and the information sought consists of evidence given in a court of law, article 10 may be engaged at least when the media are seeking the information for the purpose of disseminating it more widely because it is in the public interest.
- The only case in which the question whether article 10 is engaged when the media are seeking information in relation to court proceedings was in an admissibility decision of the European Commission of Human Rights, Atkinson and Crook and The Independent v UK, application 13366/87, BAILII:  ECHR 33. The question in that case was whether the sentencing of a convicted criminal defendant in private infringed article 10. The Commission considered that the principle established in cases such as Leander paragraph 74, "may not apply with the same force in the context of court proceedings", in the light of the need to have regard to article 6 and "the important role played by the press in the administration of justice". The Commission relied in part on the decision in Sunday Times v United Kingdom 2 EHRR 245, paragraph 65, where the Strasbourg court said that it was "incumbent on" the media "to impart information and ideas concerning matters that come before the courts". However, the Commission did not decide the point, as they concluded that, even if article 10 was engaged, there was a "pressing social need" for the sentencing in that particular case being conducted in private.
- There have also been two more recent decisions of the Strasbourg court which appear to provide support for the notion that article 10 is engaged in a case such as this, essentially for two reasons. First, the Strasbourg jurisprudence appears to have developed since Leander so that article 10 seems to have a somewhat wider scope; secondly, where the media are involved and genuine public interest is raised, it may well be that, at least in some circumstances, one is anyway outside the general principle laid down in Leander paragraph 74.
- The second of those two decisions is in the judgment of the court in Tarsasag a Szabadsagjogokert v Hungary, no 37374/05, BAILII:  ECHR 618, which was published on 14 April 2009. It was seen as a new development, and described as "a landmark decision on the relation between freedom to information and the … Convention", by the European Commission for Democracy through Law (the Venice Commission) in its Opinion on the Draft Law about Obtaining Information of the Courts of Azerbaijan, Opinion No 548/2009.
- In Tarsasag the court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, according to domestic law, without the consent of the author. In paragraph 35, the court, after referring to Leander, said that "the court has more recently advanced towards a broader interpretation of the notion of the 'freedom to receive information' (see Sdruzeni Jihoceske Matky v [Czech Republic], no 19101/03, 10 July 2006, BAILII (French Text):  ECHR 1205 [being the first of the decisions we have in mind]) and thereby towards the recognition of a right of access to information." In the following paragraph, the court distinguished Leander paragraph 74, on the ground that "the present case essentially concerns an interference – by virtue of a censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents". The court also said that "preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny".
- Tarsasag and Leander were decisions involving access to records kept by the executive arm of the government, whereas the present case concerns access to what goes on in court, which renders the case for saying article 10 is engaged stronger, as the Commission acknowledged in Atkinson, even before Matky and Tarsasag. Further, the complaint in this case is that of the media who want the information for public purposes, as in Atkinson and Tarsasag, rather than being a complaint of an individual as in Leander and Gaskin. In addition, the basis of the media interest is what is lawfully and appropriately already in the public domain. For those reasons, we consider that article 10 was engaged on the making of the instant application by the media.
- The fact that we take a different view from the judge (to whom Atkinson, Matky and Tarsasag were not cited) cannot possibly mean that his decision was flawed. If he had concluded that article 10 was engaged at an earlier stage than he concluded, it would, at best, have reinforced his view that the media had shown "good reason" at the first stage of his two stage process (although, as explained above, we very much doubt that it would have affected his thought processes in any way.)
- Accordingly, the appeal is dismissed.
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