The Public Guardian v JM Associated Newspapers Ltd (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 25 June 2014 |
| Neutral Citation | [2014] EWCOP 7 |
| Court | Court of Protection |
| Docket Number | Case No: 12351387 |
| Date | 25 June 2014 |
[2014] EWCOP 7
COURT OF PROTECTION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby
President of the Court of Protection
Case No: 12351387
In the Matter of DP
and
Ms Victoria Jolliffe (instructed by Reynolds Porter Chamberlain LLP) for Associated Newspapers Limited
Ms Grainne Feeney (of Charles Russell Solicitors) held a watching brief on behalf of DP's Deputy
JM appeared in person
Hearing date: 18 June 2014
Sir James Munby, President of the Court of Protection:
On 16 January 2014 I issued Practice Guidance: Transparency in the Court of Protection: Publication of Judgments [2014] COPLR 78. In paragraph 17(iv) I indicated that in "any case where the issues include whether a person should be restrained from acting as an attorney … or that an appointment should be revoked" the starting point is that "permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published."
In paragraph 20 I said this:
"In all cases where a judge gives permission for a judgment to be published:
(i) public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;
(ii) the person who is the subject of proceedings in the Court of Protection and other members of their family should not normally be named in the judgment approved for publication unless the judge otherwise orders;
(iii) anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so."
I emphasise that there was nothing novel in this approach. Although P's identity (like the identity of a child in proceedings in the Family Court, protected by section 97 of the Children Act 1989) is usually protected by an order made in accordance with rule 91 of the Court of Protection Rules 2007, it has long been settled law that section 12 of the Administration of Justice Act 1960 does not protect the identities of those involved in the proceedings. If the anonymity of persons other than P is to be preserved, an order of the court is required. The burden is on those seeking such an order to establish the need for anonymity; not on those seeking publicity to establish why there should not be anonymity: see A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, paras 129–131.
This is reflected in paragraph 27 of PD13A, Practice Direction A – Hearings (including reporting restrictions):
"The aim should be to protect P rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified … other persons … in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order."
On 11 February 2014 Senior Judge Lush gave a judgment, Re DP, The Public Guardian v JM [2014] EWCOP B4, explaining why he was revoking, under section 22(4)(b) of the Mental Capacity Act 2005, a lasting power of attorney executed by DP dated 31 October 2011 and registered by the Office of the Public Guardian (OPG) on 20 February 2012. It appointed a man referred to in the judgment as JM to be DP's sole attorney. As the Senior Judge observed, the judgment therefore fell within paragraph 17(iv) of the Practice Guidance.
The judgment is freely available to all on the BAILII website. Extensive quotation is therefore unnecessary. The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests."
Amongst the matters to which the Senior Judge drew specific attention in his judgment were the facts (i) that JM had sold DP's house for £165,000 and placed the net proceeds of sale in an account in his name (subsequently arranging to put the account in DP's name when he became aware that the OPG was investigating), (ii) that JM had attempted (unsuccessfully) to persuade Aviva to transfer DP's investment bond into an account in his own name, (iii) that JM had made a gift to himself of £38,000 from DP's monies (this being a breach of section 12 of the Act), (iv) that JM was unable to account for drawings from DP's monies totalling £10,020, and (v) that JM had paid himself a 'salary' totalling £8,340 (a claim that the Senior Judge described as an "inherent artificiality" and in any event a breach of the terms of the lasting power of attorney).
As the Senior Judge records in his judgment, JM had asked why he was still being investigated by the OPG when the police, following an investigation, had concluded that he had no case to answer. As the Senior Judge commented drily (para 44):
"The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM's guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable."
The Senior Judge did not name JM in his judgment. He did not explain why (nor, indeed, is there anything in his judgment to show that this is a matter to which he expressly directed his mind). Possibly bearing on the point are certain matters to which he did refer: the fact that JM lives in the Dartford postcode area, that he had known DP since 2006 and been her gardener when she lived in Orpington, and that DP is now living in a residential care home in the London Borough of Bromley.
On 10 March 2014 the court appointed Suzanne Jane Marriott of Charles Russell Solicitors to be DP's property and affairs deputy.
On 17 March 2014 the Daily Mail published a prominently displayed story about the case. Headlined 'Handyman took £200,000 from woman, 89, after secret court gave him control of her bank account', the story expressed strong criticism of the fact that JM had not been named:
"Astonishingly, although the court has now ruled the man can no longer manage the woman's affairs, it has ruled that his name should be kept secret.
Details of the case were disclosed in a Court of Protection judgment under new legal rules demanding greater openness.
But critics said the ruling wrongly protects the gardener and leaves other elderly and vulnerable people and their families without warning of his record."
Mr John Hemming MP was quoted as saying:
"This is not exactly naming and shaming.
It is clear that the secrecy here is acting to protect someone who has been trying to extort money from someone, and will do nothing to protect other elderly people in a similar situation."
The following day, 18 March 2014, the Daily Mail published an equally prominent story under the heading 'So why wasn't he charged? Outrage over gardener who 'fleeced' widow, 89: MPs criticise secret court that let him get off scot-free'. The tone of the article can be gauged from the following extracts:
"Anger grew yesterday after it was revealed that a gardener who drained £200,000 from the accounts of a vulnerable elderly woman will escape punishment … Legal experts yesterday described the decision not to pursue a case for theft or fraud as 'astonishing' and challenged the common sense of the rules that allowed him to get away scot free."
A criminologist was quoted as saying:
"This is a particularly astonishing case because on the surface it is a very clear-cut case of fraud and exploitation of a vulnerable person. The most disturbing thing is that this case has not resulted in a charge in the criminal courts."
The clear innuendo is that JM is a thief who has escaped his just deserts because of a failure of the criminal justice system.
On 3 April 2014 Associated Newspapers Limited (ANL) the publishers of the Daily Mail applied to the court for an order permitting the identification of JM in reports of the case. At my direction the application was listed before me. On 30 May 2014 I gave directions. My order contained a recital that there was no need for DP to be joined as a party "so long as her interests are represented as provided for below." Paragraph 2 of the order invited the deputy "to make such representations on behalf of DP in relation to the application as may be appropriate in her best interests." The application came on for hearing on 18 June 2014. ANL was represented by Ms Victoria Jolliffe. DP's deputy did not appear, but Ms Grainne Feeney of her firm was in court with a watching brief. JM appeared in person. He made clear that, despite having only very recently received some of the papers, he did not want an adjournment and wished the hearing to proceed. Both the OPG and the deputy...
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