V (Second Respondent in the main proceedings) v Associated Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Charles J |
| Judgment Date | 25 April 2016 |
| Neutral Citation | [2016] EWCOP 21 |
| Docket Number | Case number: COP1278226 |
| Court | Court of Protection |
| Date | 25 April 2016 |
[2016] EWCOP 21
IN THE COURT OF PROTECTION
(Sitting in public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Charles
Case number: COP1278226
In the Matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015)
Richard Spearman QC, Vikram SachdevaQC andVictoria Butler-Cole (instructed by Bindmans LLP) for the Applicant
Adam Wolanski (instructed by Reynolds Porter Chamberlain LLP) for the Respondents (on 9 December 2015)
Hearing date: 9 December 2015
Opening remarks
In December 2015 this case attracted a considerable amount of media attention much of which can be characterised as reporting that engaged the prurient interest of the public in the personal details of the lives of others rather than the public interest in important issues relating to:
i) the capacity of an individual to make decisions about serious medical treatment, and
ii) the consequences of the conclusion of the Court of Protection (the COP) on whether a person (P) has the capacity to make the relevant decision to refuse life-saving treatment.
The COP concluded that the subject of the proceedings (C) had capacity to make the relevant decisions, she decided to refuse the treatment and died.
At the hearing on the issue of capacity MacDonald J, sitting as a judge of the COP, heard oral evidence from one of C's adult daughters about C's lifestyle and from three psychiatrists. He gave a public but anonymised judgment which contains a description of aspects of C's life and lifestyle. It is reported as Re Kings College Hospital NHS Foundation Trust v C & V [2015] EWCOP 80.
The application before me is for a reporting restrictions order that extends beyond the period of the reporting restrictions order granted at the first hearing for directions in the case and was not altered by Macdonald J. By its terms it ended on C's death.
At the hearing before me, as they had at an earlier out of hours hearing before Theis J, the media Respondents argued that I should dismiss the application. I am pleased to record that since then they have all recognised that I can and should make a reporting restrictions order.
A dispute remains on the duration of that order which engages the general approach that the COP should take to granting reporting restrictions orders / anonymity orders. Whilst:
i) I agree with the media Respondents that the facts of this case include factors that are unusual, and
ii) I acknowledge that I am only concerned with a situation in which at earlier stages there has been a public hearing with reporting restrictions that ended before this application was made
this does not mean that it is not necessary or appropriate for me to address that general approach, and how it affects and is to be applied in this case, to the dispute over duration. In any event, this case also has factors that arise regularly in COP proceedings and, as appears later, an intense scrutiny of the balance to be struck between the relevant Convention rights governs both the initial orders made by the COP relating to a public hearing with or without reporting restrictions and the outstanding dispute in this case on duration.
Other issues have been raised since the hearing before me and I will return to them.
My discussion of the general approach to be taken by the COP explains why I agree with the parties to this application that an injunction should be granted. It also shows the approach that I think should be taken to the assessment of the competing factors on the disputed issue of its duration. More generally, I hope that it, and the points I raise in the Schedule to this judgment concerning the transparency pilot introduced from 29 January 2016 by a Practice Direction (the Transparency Pilot) and serious medical treatment cases, will be of assistance in:
i) the application and assessment of the Transparency Pilot, and
ii) the identification of the right balance between the competing Convention rights in cases covered by it and in serious medical treatment cases. They are not within it, but (in accordance with the earlier practice of the High Court in such cases) the COP has applied and developed a practice of generally ordering a public hearing with reporting restrictions in such cases (see in particular Practice Directions 9E and 13A).
A summary of my conclusions
I have concluded:
(1) The COP has jurisdiction after the finding that C had capacity and her death to make the reporting restrictions order sought by the Applicant but insofar as it may be necessary or appropriate I will also make it as a High Court judge.
(2) I make that order until further order of the court and on the basis that it will cover the reporting of C's inquest.
(3) Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 sets out the approach to be applied by the COP in determining whether to grant a reporting restrictions order and so, in each case, the COP has to strike the balance between the competing Article 8 and Article 10 rights. This is a case sensitive exercise and care needs to be taken in transporting comment on the weight of the rival factors from one type of case to another.
(4) Generally a staged approach that applies the relevant rules and so, in the COP, starts with the consideration of whether there is a good reason for a public hearing should be taken. But, this first stage is not an isolated or preliminary stage that, if such a good reason exists, founds an approach that the second stage is addressed on the premise that COP proceedings are treated in the same way as other proceedings where the default rule is that they are heard in public.
(5) The default rule, and any practice direction that modifies it, represent a general conclusion on how best to administer justice. In reaching that conclusion a balance will have been struck between the relevant competing Convention rights and the factors, propositions and public interests that underlie them. But Re S makes it clear that this is not the end of the process and that as between Articles 8 and 10 (and so the factors, propositions and public interests that underlie and promote them) neither takes precedence as such and so, in my view, it would be wrong to approach a default rule as creating a presumption. Rather, it is part of the structure for a reasoning process that applies the Re S approach to a given case.
(6) In many, and perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved. The interest protected by publishing names expressed by Lord Rodger in In re Guardian News and Media Ltd (the naming propositions) is rather different and on a staged approach will often fall to be weighed against the general conclusion as to anonymised reporting contained in the relevant Rule or Practice Direction.
(7) I suggest that generally the COP should address the following questions:
i) Are there good reasons for the hearing to be in public?
ii) If there are should a public hearing be ordered with or without reporting restrictions?
iii) As part of (ii): How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
iv) By reference to the conclusions on the above questions, on Lord Steyn's ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order / anonymity order should be made?
(8) The answer to question (i) is almost always going to be "yes" because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing points (7) (ii) to (iv).
(9) On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. But, I hasten to accept that this distinction:
• simply reflects the strength of the reasoning that underlies the relevant COP Rules and Practice Directions, the established Scott v Scott exceptions and the positon referred to by Lady Hale that in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved, and so
•provides weight to the general arguments for anonymity to promote the administration of justice by the COP generally and in the given case, and does not
• undermine the force of the naming propositions as general propositions, with the consequence that the COP needs to remember that it is not an editor.
(10) The weight to be given to (a) a conclusion in certain types of case (including proceedings in the COP) on what generally best promotes the administration of justice and (b) the naming propositions will vary from case to case and on a staged approach to a particular case of that type the weight of the naming propositions, and so this aspect of the factors that underlie...
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