Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
Published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Independent News and Media Ltd and others - and - ‘A’ (by his litigation friend the Official Solicitor) before Mr Justice Hedley 12th November 20091) Public interest concerns a young adult known as ‘A’ who is severely disabled with severe learning difficulties that render him incapable of making decisions as to any significant issue in his life. He is and is likely to remain dependant on others for his care and currently cared for by a national charity. His remarkable abilities have attracted international attention and generate ‘very substantial personal and financial consequences’. These ‘require careful and disinterested decision-making to be made on his behalf in the future; hence involvement of the Court of Protection. 2) ‘It is equally unsurprising, given the public interest that has been generated by his story and his public exploits, that the media have become aware of these proceedings and have shown a close interest in them.’ Media group want to access to the proceedings, to be able to report them and identify ‘A’, but this is opposed by the Official Solicitor, acting as ‘A’’s Litigation Friend. 3) The Court of Protection is legally constituted by the Mental Capacity Act 2005 and has long provided an essentially administrative function in the management of the property of those who lack capacity. Traditionally legal proceedings dealing with these cases have always been in private including those presided over in the past by what was known as the ‘Master in Lunacy.’ The problems of privacy, public interest in its proceedings and the actual exercise of its very wide powers are similar to those connected with Family law. 4) This case provides the court with its first opportunity to reflect on those problems and 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 does so in the context of a person of whom much is already known by the public and whose story has an almost irresistible attraction to it.’ 5) Hearings in the Court of Protection brought under the Mental Capacity Act 2005 are covered by Section 12 of the Administration of Justice Act 1960 and this means that when they have been in private any publication of information shall be a contempt of court. But Parliament has legislated for publication and media access rules: 90- The general rule is that a hearing is to be held in private. 91- The court has a general power to authorise publication of information about its proceedings; 92- The court has a power to order that a hearing or part of a hearing be held in public and can also impose reporting restrictions; 93- The court may make orders (under 90, 91 & 92) ‘only where it appears to the court that there is good reason for making the order’ [93(1)(a)] 6) (a) Media argued open justice rule set out by Lord Diplock: ‘As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted ... As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.’ A-G -v- Leveller Magazine [1979] AC 440 at 451 A-B
(b) Viscount Haldane (Lord Chancellor) in Scott: ‘As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience but on necessity.’ Scott -v- Scott [1913] AC 417 P.437-8
(c) Article 10 (freedom of expression) rights are now engaged through the Human Rights Act 1998 and with the application of the balancing exercise defined by Lord Steyn in Re: S (A Child): ‘The interplay between article 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.’ Para 17 Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593.
(d) Media conceded that Scott v Scott accepted that Open Justice principle did not apply to old ‘Court of Lunacy’ and that Article 8 (Privacy) rights are also engaged. If the balance is resolved in their favour, media argued that must constitute ‘good reason’ and attendance should be allowed.
(e) Large amounts of the information to be before the court is already in the public arena and that which is not and which is truly private can be controlled under Rule 91.
(f) The public should be informed of the working and the powers of the court and this would provide a valuable opportunity for that.Official Solicitor for ‘A’ argued that (a) Court of Protection and its predecessors was recognised as being one of the three Scott v Scott exceptions to Open Justice constitutional position. Therefore Article 10 (freedom of expression) rights cannot be engaged.
(b) The purpose of the general statutory rule of privacy under Rule 90 is to protect the privacy rights of the person lacking mental capacity and encourage frankness of discussion of private matters before the court.
(c) Strasbourg jurisprudence supports protection of Article 8 rights of ‘A’ and underpins the ‘good reason’ gatekeeping of Rule 93(1).
(d) Privacy provisions not undermined by public domain information relating to ‘A’.
(e) Matters would never be discussed by capacitous person; therefore they should not be reportable in respect of a person who lacks the capacity to choose.
(d) The fame of ‘A’ is not relevant to issue of whether there is a right to respect for privacy (see ECHR jurisprudence) and should not be made the reason for discussion of the workings and powers of the court.
(e) The media wish to be in the court because of the fame of ‘A’ and not for the purpose of educating the public about the nature and operations of the Court of Protection.
(f) None of the arguments advanced by the media provide a good reason to displace the general rule under 90.Mr Justice Hedley concluded ‘the proceedings under the 2005 Act 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.’ He said under the rules established under the act the court should first consider whether ‘good reason’ for not following the general privacy rule can be established. If ‘good reason’ is found that ‘obligate the court in circumstances such as these to undertake the Re S (supra) exercise and make an order in accordance with its outcome, always bearing in mind the statutory purpose.’ The judge concluded that ‘good reason’ within Rule 93 is demonstrated in this case. ‘First, all these issues in principle are already within the public domain and the questions which they raise are readily apparent. Secondly, the court is equipped with powers to preserve privacy whilst addressing the issues in the case. Thirdly, the decision of the court will have major implications for the future welfare of ‘A’ and it is in the public interest that there should be understanding of the jurisdiction and powers of the court and how they are exercised.’ The judge said:
(a) The media should be allowed to report two types of material: first, that which is within the public domain already; and secondly, that which answers the legitimate questions of a reasonable person who knows what is presently within the public domain.
(b) That means that ‘A’’s name, the nature of his talent, the nature of his disability, his reliance on others for his care and the management of his affairs can all be reported. Moreover, it should be known after the proceedings whether all these decisions have been entrusted to his close family or, if shared, with whom and whether, (and if so what), obligations to account for their stewardship have been incurred and, if so, to whom they are bound to account.
(c) But the nature of his earnings, the details of his care, the nature of family discussions about these matters, the question of medical treatment and the criteria the family wish to employ (if such be entrusted to them) in relation to decisions about public appearances should all enjoy privacy and not be reportable.The case is subject to appeal by the Official Solicitor and Mr Justice Hedley qualified his ruling by saying ‘I do not propose to identify ‘A’ in this judgment nor anything relating further to his condition, history or talent; nor do I propose to allow anything that may do so to be reported until after the disposal of any appeal from this judgment or the expiration of the time in which an appeal may be made.’ Full ruling available.
