Brian Farmer, Tuesday 1 December 2020
Editorial Note: We recently published a blog post about a case concerning a learning-disabled woman who had been raped and become pregnant. The hearing was about whether a caesarean section was in her best interests. As is usual in Court of Protection hearings, the Transparency Order required her identity to be kept confidential: she is referred to only as “KB” and nothing can be communicated that might reveal her identity, or that of her family, or where they live. Unusually, though, the name of the NHS Trust and Local Authority responsible for KB’s care, as well as the name of the police force investigating her rape, were also covered by the Transparency Order. This was because of the risk of “jigsaw identification” – whereby people are able to piece together information from different sources, including the published judgment, media reports of the court hearing, and possibly future reports in the criminal courts if the rapist is apprehended – and so identify a protected person in that way, It is relatively unusual for the Court to forbid identification of public bodies such as NHS Trusts and Local Authorities – not least because there is an obvious public interest in knowing what public bodies (funded by tax payers) are up to. In this case, journalist Brian Farmer wrote to the judge to ask that the media should be allowed to identify the police force, the Local Authority and the NHS Trust involved. In an earlier case in the Family Courts this year, Brian Farmer and Louise Tickle were successful in persuading the judge to change his mind, but in this case the judge authorised only the naming of the police force and not identification of the Trust or Local Authority. The key arguments applied to the facts specific to each case concern the likelihood of identification of the protected parties, and the balance between their right to privacy (Article 8) and the right of the media (and public observers) to freedom of expression (Article 10). We have reproduced Brian Farmer’s letter here (with his permission) because any of us may in future want to challenge reporting restrictions in the Court of Protection and his arguments are ones we can all learn from.
Re KB/CoP Case No: 13673754
Thank you very much for letting me address you at last week’s hearing and for giving me the opportunity to apply to vary Transparency Order.
(I’m assuming that, in making this application, PA Media will not be at risk of a costs order. I make that assumption on the basis of paragraph 16 of the President’s 2019 guidance on reporting family courts — https://www.judiciary.uk/wp-content/uploads/2019/10/Presidents-Guidance-reporting-restrictions-Final-Oct-2019-1.pdf — If we are risk of a costs order I would withdraw our application).
I would respectfully argue that the order is too wide. I think that the media should be allowed to identify the police force, local authority and NHS trust involved.
1: One preliminary, probably moot point: I don’t believe a Transparency Order is needed in this case. I think KB is automatically protected by the provisions of Sexual Offences (Amendment) Act 1992, which prevents victims of sexual assault, and people who say they have been a victim of a sexual assault, from being identified in media reports — https://www.legislation.gov.uk/ukpga/1992/34/contents.
2: I would argue that naming the police force, local authority and NHS trust involved will not create an information jigsaw which will lead to KB being publicly identified. There are jigsaws and jigsaws: if we were to report KB’s address, or name her sister, a child could piece together the jigsaw; if we were to name the day centre she attends, many people could piece together the jigsaw; but how could the man or woman on the Clapham Omnibus realistically identify KB by knowing the names of the Metropolitan Police, a large London local authority and a London NHS trust. I’m not aware that there’s any information already in the public domain which would provide a key piece. I would suggest that here you’re dealing an information jigsaw comparable to a 1,000-piece jigsaw of the Sahara sky at noon. In the real world, who would even think of trying to piece together KB’s identity, let alone be able to?
3: Journalists regularly have to abide by the provisions of two pieces of legislation which protect the identity of vulnerable people, when reporting crime and courts: the, above mentioned, Sexual Offences (Amendment) Act 1992, who protects victims of sexual assault, and Section 45 of Youth Justice and Criminal Evidence Act 1999, — https://www.legislation.gov.uk/ukpga/1999/23/section/45 — which gives judges and magistrates the power to make order protecting child defendants, victims and witnesses. Neither piece of legislation suggests that naming a police force, local authority or NHS trust can be an identifying factor, let alone police forces, authorities and trusts in London. Section 45 of the Youth Justice and Criminal Evidence Act gives journalists a guide to pieces of information which might create an identity risk. The section specifies: name, address, school or educational establishment, place of work and image. You can be sure that the PA will not name KB, give her address, name the day centre she attends or print a photograph, nor will we name a street, or even an area of the borough.
4: It may be argued that neighbours might identify her, but the reality is that friends, relatives, carers and possibly neighbours, must know her identity. The man who raped her may well know her identity. I would argue that, when balancing KB’s Article 8 rights against the Article 10 rights of the public and media, it’s not reasonable to make an order which effectively bars journalists from telling a small group of people something they probably already know. In any event, KB’s unlikely to be at risk from any of those categories of people. She must now, surely, be subject to 24-hour supervision.
5. Likewise, it may be argued that other patients in the hospital where she gives birth may identity her. I would have thought the risk of that is very small, but if you think there is a risk, impose an embargo. Prevent reporting of the names of the police force, local authority and NHS trust until the baby has been born and KB is back at home.
6: Something has plainly gone wrong in this case. The public, particularly the taxpayers who fund the local authority with responsibility for KB’s welfare, have a right to know the name of the local authority. In the real world, people won’t try to work out KB’s identity, they’ll moan about the council: and they should be able to do that. If the local authority isn’t named, residents can’t tweet their concerns; people can’t tell newspapers that they’ve also had issues; the local MP can’t ask questions; even the councillors on the local authority may not know that the local authority involved is their local authority: they certainly can’t debate the issue at a public meeting. I would refer you to Mr Justice Hayden’s recent judgment https://www.judiciary.uk/wp-content/uploads/2020/05/2020-EWHC-1282-Fam.pdf That case raised a similar issue where we successfully argued that a local authority should be named. In that case it transpired that the leader of the local authority did not know that the local authority was his local authority, until he read the Daily Beast. How can you be sure that lessons will be learned if debate is stifled? And, isn’t that the most important thing, that lessons are learned. Of course, the local authority will have something to say in their defence, and, of course, we’ll include that defence in any report.
7: Likewise, the public have a right to ask questions of the police force they fund: they can’t do if the police force isn’t named. The public might wonder why the culprit hasn’t been arrested, and they have a right to ask. Will the police investigation be hampered if names are named? Have the police presented any evidence of that? Issues have been aired in open court, the police force has been named in open court. Was there an application for the case the be heard in private because of the sensitivity of the police investigation? The culprit either has the mental capacity to understand what he has done, or he doesn’t. If he does, he must surely know that the police will be investigating. The case has already been reported: how many men can there be in southern England who have raped a woman with significant learning difficulties in the last nine months? Hopefully very few. If the culprit lacks the mental capacity to understand what he’s done, is it likely that a report in the Daily Beast will put him on the alert?
8. People also have a right to ask questions about the NHS trust they fund because the Official Solicitor has raised a concern about the issue of sterilisation in open court. They may be lots of people in the trust’s area with concerns about the same issue.
9. I don’t know the names of the local authority or the NHS trust. It may be that similar concerns have been raised about them before. It may be that lessons which should have been learned still haven’t been learned. I don’t know. If I can be given the names, simply for the purposes of the argument, I’ll happily do some research and see if I can add anything to our case.
10. I think in this case, when you balance KB’s Article 8 rights against the Article 10 rights of the media and public, the balance tips on the Article 10 side. I would respectfully argue that with should be allowed to name the local authority, police force and NHS trust.
If I can be of any more help, just ask.
Brian Farmer is a journalist with PA Media. He often reports on Court of Protection cases heard in the Royal Courts of Justice.