The Queen (on the application of Katherine Rowley) v Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 28 July 2021 |
| Neutral Citation | [2021] EWHC 2108 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4740/2020 |
[2021] EWHC 2108 (Admin)
Mr Justice Fordham
Case No: CO/4740/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Leeds Combined Court,
1 Oxford Row, Leeds,
LS1 3BG
Catherine Casserley (instructed by Fry Law) for the Claimant
Zoe Leventhal and Nathan Roberts (instructed by Government Legal Department) for the Defendant
Hearing date: 16.6.21
Approved Judgment
Introduction
The case
This judicial review case is about the provision of British sign language (“BSL”) interpreters for Government live briefings to the public about the Covid-19 pandemic (“Briefings”). The case focuses on two things in particular. The first is the absence of any BSL interpreter – by any means and in any medium – for two “Data Briefings” which took place on 21 September 2020 and 12 October 2020. The second is Government's continuing position that it will not use ‘on-platform’ BSL interpreters for Briefings (as are used for Scottish and Welsh Government live briefings); rather, it will use ‘in-screen’ BSL interpreters (a feature available in Government live online coverage). The legal analysis focuses on two statutory duties arising under the Equality Act 2010 (“EqA2010”). One is the duty to make reasonable adjustments for disabled persons (EqA2010 section 29(7)(a)). The other is the public sector equality duty (“PSED”) (EqA2010 section 149(1)). These are obligations imposed by Parliament on the Defendant as a service-provider (reasonable adjustments) and as a public authority (PSED). These duties can be enforced by judicial review proceedings. They give rise to objective legal standards whose enforcement Parliament has entrusted to the Court. That means this case engages not only responsibilities which Parliament placed on Government, but also responsibilities which Parliament has placed on the Court.
The hearing
What the legal system calls the ‘hearing’ of this claim was undertaken by MS Teams, a mode arranged by the Court with the parties and agreed by them. I was satisfied that this mode was justified – eliminating any risk to any person from having to travel to a court-room or be present in one – and involved no prejudice to any person's interests. The open justice principle was secured. The case and its start time were published in the Court's cause list, as was an email address usable by any member of the press or public who wished to observe, as many did. I had previously directed – being satisfied that it was necessary, proportionate and promoted open justice to do so – that: “the Court shall arrange for two NRCPD-accredited BSL Interpreters to attend the hearing by remote access, free of charge”; and “any person (‘the Observer’) who has submitted their email address to the Court and is accessing the hearing may screen-share to any other person or persons present at the same location as the Observer, provided that no recording or image is to be made by any person”. That prohibition on recording and making images was communicated prior to, and at, the hearing, and – once it had commenced – by email to anyone waiting in the MS Teams ‘lobby’ to be admitted. I informed participants that, provided they complied with that prohibition, they were free to use live social media. I also made them aware of the MS Teams ‘live text’ facility, together with the facts that this was not an official or Court-provided function, or part of the hearing, and that the Court could not vouch for its accuracy. My clerk provided the skeleton arguments, by email during the hearing, to any member of the press or public wanting copies.
Requests for recordings
On 14 June 2021 I refused a request by the BBC for permission to “make a Zoom recording” of the hearing for use in the BBC2 programme “See Hear”. I explained in my reasons: that there was a serious legal controversy as to whether the Court had power to grant the request (the Defendant's submission was that I had no power); that the BBC had not identified a power, nor made submissions, nor provided evidence in support of an application; that there had been no request, or direction, for “broadcasting” the hearing; that I had serious concerns about allowing recording, there being far-reaching implications and no identified criteria or guidance; that the position of the Interpreters needed to be considered; that the hearing was imminent, a satellite hearing on this issue was not justified, the request had been made late in the day, and there was no basis to adjourn; that the Court would make its own recording; and that if the BBC wished to make an application to access that recording, such an application could be made and considered, on an informed basis, with a secure legal analysis identified. On 23 June 2021 I refused an application made by Drummer TV, supported by evidence and submissions, for an order permitting the release of the Court-directed audio-visual recording of the hearing. That was for the stated purpose of appropriate clips being included in a documentary, conditional on the parties' consent and appropriate liaison to protect the dignity of the Court and others involved. The basis of the application was: that, by the use of appropriate short clips it would be possible to provide a ‘flavour’ – give an ‘illustration’ – of how the hearing had been ‘set up’; that this would ‘facilitate open justice’, showing the Court operating in a way empowering to Deaf people and BSL users; and that it was a key part of the story being told. My reasons were as follows. I was not satisfied that I had power to grant the request (the Defendant's position, with which the Claimant's team agreed, was that I did not). Section 85A of the Courts Act 2003 (as amended by the Coronavirus Act 2020) empowered me to direct that the proceedings could be “broadcast” in a specified manner “for the purpose of enabling members of the public to see and hear the proceedings”: that was plainly concerned with live observation of a remote hearing, promoting open justice by ensuring a reasonable opportunity to ‘follow the proceedings’ as they happen (cf. R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin) [2021] 4 WLR 33 §31). The making by the Court of the audio-visual recording (s.85A(1)(b)) was to produce “an audio-visual record of the proceedings”, constituting an authorised recording for the purposes of the criminal prohibition on recording or transmission (s.85B(1) and (6)(a)). CPR 39.9(3) entitles any person to obtain a transcript of the recording of any hearing on payment of the authorised charges; while CPR PD51Y §4 deals with recordings being “accessed in a court building, with the consent of the court”. All these provisions need to be put alongside the careful, clear and restrictive arrangements made to enable recording, broadcasting and transmission of court proceedings (see Re BBC [2021] EWHC 170 (QB) [2021] 4 WLR 37 §§9–10), and put alongside the evidenced will of Parliament and the practical effect of the application being made (cf. Spurrier §§26 and 28). I had in mind, in the context where remote hearings had become prevalent during the pandemic and recordings made, that any permission from the Court – presumably in its inherent jurisdiction and ostensibly to promote open justice – would give rise to this clear prospect: content which could not be broadcast live on television or online during the hearing could instead be broadcast on television or online just a short time after the hearing, through an order allowing access to the Court recording. The permission sought appeared to be unprecedented. Considerable caution was called for. I was satisfied that what Drummer TV wished vividly to be able to do – ‘illustratively’ giving a ‘flavour’ of the way the hearing had been ‘set up’ – could be addressed in a different way: Drummer TV could illustrate and discuss the ‘setup’ and platform used, without showing actual footage or reconstructing actual content of the hearing, a course which the Claimant supported, with which her solicitors offered to help, and to which the Defendant did not object. I was not persuaded that allowing the application was necessary for the open justice principle or for respect for Article 10 rights. My conclusion, on both the BBC and Drummer TV applications, was that I was not satisfied that I had jurisdiction but, even had I been so satisfied, I would not have exercised it in all the circumstances.
The Evidence
There was a bundle of 1700-plus pages. There were witness statements in support of the claim for judicial review from: the Claimant (7.12.20 and 13.4.21); her solicitor Christopher Fry (14.12.20, 15.2.21, 14.4.21 and 19.5.21); Dr Kate Rowley (no relation of the Claimant) a Lecturer in the Department of Deaf Studies and Interpreting at the University of Wolverhampton (17.12.20); Amanda Casson Webb the Joint Chief Executive at the Royal Association for Deaf people (“RAD”) (13.4.21); and Marcel Hirshman a Deaf and BSL Interpreter (14.4.21). There were witness statements on behalf of the Defendant from Peter Heneghan, the Deputy Director of Digital Communications in the Prime Minister's Office and the Cabinet Office (1.4.21 and 28.5.21). Permission to rely on Dr Rowley's statement, with no separate requirement for her to file a report in accordance with CPR35, was granted by Johnson J (26.2.21). Each party proved able to ‘take in their stride’ the evidence filed by the other, including its timing. No adjournment was sought. At a time when some evidence was contested, I made an order (8.6.21) directing that it would be considered ‘de bene esse’ at the hearing, with objections then ruled on. In the event, objections were withdrawn and we could focus on substance and relevance. The Defendant queried...
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