Independent News and Media Ltd and Others v A
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWCA Civ 343 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/2480 |
| Date | 31 March 2010 |
[2010] EWCA Civ 343
Mr Justice Hedley
Before: The Lord Chief Justice of England and Wales
The Master of The Rolls
and
Sir Mark Potter, President of The Court of Protection
Case No: B4/2009/2480
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
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
The Lord Chief Justice of England and Wales:
This is the judgment of the Court to which we have all contributed.
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.
Background
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
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.”
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