By Claire Martin, 30 September 2021
I’ve observed 25 Court of Protection (COP) hearings since June 2020 and, almost without exception, I’ve been full of admiration for how judges have managed the cases.
The recent hearing before HHJ Catherine Howells (COP 13575520) about which I blogged here, here and here was no exception. I thought it was expertly handled, both by the judge and by counsel (Emma Sutton) representing P (who I called David in the blogs).
It was a protracted – and, unusually for the COP cases that I have observed – rather adversarial case. The reason for this was that the legal process to establish David’s best interests had not been followed by the Health Board’s treating team looking after him. David’s parent had been excluded from the considerations and this had caused significant disquiet and a challenge in the COP.
The second hearing, during which David’s treating consultant gave evidence, was especially revealing. It was quite clear that due process had not been followed before installing a video-monitoring system in David’s bedroom for overnight observation. No best interests process had been followed. Furthermore, previous directions from the judge had not been followed in preparation for the hearing, there were missing documents from the bundle, and a lack of clarity regarding parties’ positions. I called the blog ‘Chaos in court and incompetent decision-making: visual-monitoring part 2’.
After giving her oral judgment, and before the formal end of the hearing, I was stunned to hear HHJ Howells refer publicly to my earlier blog post. The judge informed Emma Sutton that she had received the blog and had read it. HHJ Howells said that she wanted to assure the court that she had ‘not taken it into consideration in my judgment. It would not be appropriate to do so’. She then went on to say: ‘Heading a blog ‘Chaos in court’ is inflammatory … as if the court process itself was not being properly managed. That is all I will say on the matter’.
HHJ Howells’ second comment surely contradicted her first? She firstly refers to judicial impartiality (a general principle that it is not for judges to engage with and comment on media in relation to their judgments), yet then proceeds to pass comment on my blog.
That was my initial feeling.
Then the hearing suddenly ended.
The judge knew I was observing. So did everyone else in the hearing.
What had I done wrong?
I wondered whether I had somehow breached the transparency order. When I calmed down, I knew that I had not breached any court order.
HHJ Howells clearly did not approve of the title of the blog – fair enough, the title (as is usual for OJCOP blog posts) aimed to provoke interest and encourage people to read it. The content was very clearly not describing a court process being improperly managed – the opposite in fact. Although she said she had read it, I did wonder whether HHJ Howells had read the title and not the content. If the judge had read the content, I am not sure she would have remained as upset at the title. Further, although HHJ Howells described the title as ‘inflammatory’, it did not inflame anyone or anything – and in fact anyone reading the blog would have been heartened by the account of the court process, if not what happened outside of it.
I was shocked to hear her refer to my blog post. I didn’t expect a judge to engage with it in any way whatsoever in court – my expectation is that judges are above the fray – totally independent from interference.1
Was it appropriate for HHJ Howells to express her opinion of my blog title during a court hearing for David?
It is not up to a judge (or anyone other than author and editor) to determine the title (or content) of a blog post. As long as it does not breach any reporting restrictions, this is not something that should concern the court. To use court time to criticise an observer’s piece of writing feels like an inappropriate use of power. It felt personal – because I was there and because the judge knew I was there. Everyone else in the hearing knew I was there too. It felt designed to shame me – and, at first, I did feel ashamed. I had upset a judge enough for her to comment on it from the bench! I felt about 8 years old again.
Then I started to feel upset and annoyed. This just didn’t seem right. I understand that HHJ Howells might not have liked the title, but should she have used her position to comment on it in public, during a hearing? I looked into it further to try to understand what happened.
I am not familiar with the broad sweep of judicial practice in the UK. I wondered whether commenting on reporting about a case, during a case, was something that judges might reasonably and regularly do. This suggested otherwise:
“All judges should exercise their freedom to talk to the media with caution. Judges should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press.”[Guide to Judicial Conduct 2020]
Then I looked at guidance around engaging with media. Of course, I am not technically “media” – i.e. I am not an accredited journalist but simply a member of the public and one of the core group running OJCOP, supporting judges in their commitment to open justice. There doesn’t seem to be any (publicly available) guidance for judges about how to deal with members of the public in their courts. Perhaps there should be?
I found Media Guidance for the Judiciary 2012. It covers misreporting and libel – perhaps she thought I had misreported the case? Or written something libellous? I did not do either of those things – the blog accurately describes, in detail, the excellent handling of the case, and does not libel anyone at all. The ‘chaos’ in the title refers to (some) parties being disorganised and unprepared for the hearing, and ‘incompetent decision making’ refers to the lack of best interests process followed by the clinical team (and I stand by that description). This is perfectly clear to anyone who reads the blog post.
In any case, if misreporting or libel was a concern, the advice for judges seems to be clear in terms of how to handle any such concerns:
“Misreporting: Judicial office-holders who are factually misreported are sometimes unsure how to redress the situation. Should you need advice the Judicial Press Office can assist you, 24 hours a day, seven days a week.”
“Libel: Media criticism of judicial office-holders – however harsh or misconceived – is a fact of life. Even in the 1930s Lord Atkin of Aberdovey, a Lord of Appeal in Ordinary, was able to surmise that justice “is not a cloistered virtue”; today, even more so, magistrates and judges operate in the public eye and must expect to be subject to comment and scrutiny in the media. And if this comment is sometimes not wholly fair or accurate, it should, nevertheless, be seen as an unavoidable reflection of the judicial role in contemporary society. In normal circumstances, if you believe you have been unfairly criticised in the media or elsewhere, your appropriate recourse – if any – will be to seek the publication or broadcast of a correction and/or an apology. The Judicial Press Office will always be happy to assist you in doing so.”[Media Guidance for the Judiciary 2012]
The guidance seems straightforward in relation to misreporting or libel concerns.
The media guidance goes on to address ‘making planned statements in open court’.
“Making planned statements in open court: Courts and most tribunals operate in public, and any comment made by a judicial office-holder in public session is regarded as open to reporting. This extends to comments made when there’s no reporter in the room, as long as someone has repeated it to them. Judges may occasionally read out statements in open court, for example commenting on misreporting of a case. These can be issued to the wider media by the Press Office. In all such circumstances judicial office-holders are strongly advised to consult with their Bench Chair, Chamber President, Resident Judge, the Chief Magistrate and/or Presiding Judge before making a statement. You may also find it helpful to talk to the Judicial Press Office – it will be able to look at a draft from a lay perspective, and point out how the media might receive or interpret it.”[Media Guidance for the Judiciary 2012]
So, did HHJ Howells consult with one or more of the people listed above and decide to make a planned statement in open court? This does not seem very likely to me. I would be surprised if the judge had been advised to comment on the title of a blog. Perhaps HHJ Howells was just cross and went ahead without planning to do so. I don’t know. I am sorry that the judge did not like the title that I attached to the blog. Whatever led up to her statement, I do not think that HHJ Howells’ displeasure warranted criticism of the blog in open court. It will be on the recording for the hearing for David, and is nothing to do with him or his care. I think judges should be above reacting in this way publicly.
This 2013 judgment from Sir James Munby (President of the Family Division at the time) discusses the reciprocal relationship between the judiciary and those reporting on court cases. This excerpt from paragraph 26 is especially relevant:
“So far as concerns the relationship between the media and the court I can only repeat what I said earlier this year in a judgment that was widely reported at the time: Re J (A Child)  EWHC 2694 (Fam). I forbear from extensive citation, merely repeating at this point, so as to emphasise, three key principles (Re J, paras 37-39). First, that “It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish”.P (A Child)  EWHC 4048 (Fam)
The judgment from which he is quoting himself (in the extract above) elaborates:
“A judge can assess what is lawful or unlawful …. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris  2 FLR 895, at ), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. …”
Re J (A Child)  EWHC 2694 (Fam)
A chilling effect
Exposing observers to public criticism from judges about their blog posts can only serve to suppress open justice. I had a physical reaction, my gut dropping like a stone, when HHJ Howells said what she did. Their status and power makes judges intimidating. Barristers are used to the judge addressing them – and they are part of proceedings and can reply. This is not the situation for observers. I was shocked by what happened and this episode has caused me not a small amount of anxiety. I’m a bit worried about writing this account of what happened and how I felt about it. It’s taken me a long time to feel able to do so.
The episode had a chilling effect for me – and I am (now) a seasoned observer of court hearings and a senior professional in my field. What effect would such an experience have on other blog authors who are students or first-time observers?
I know that many people are already fearful of observing hearings and writing blogs for our Project.
We rely on the willingness of members of the public to engage and comment on Court of Protection hearings: without us, transparency is an ideal, not a reality.
Facilitating and being fully on board with judicial transparency (and the possibility that this will bring unwelcome comment) will perhaps develop over time. I notice that many judges in the Court of Protection sit in other courts – I have spotted in the listings that many sit in the Family Courts, which, I believe, are far less open than the Court of Protection. Perhaps some judges are not as familiar with the transparency that Court of Protection hearings can bring, and are therefore less used to public comment on their work. There might not be any training for judges on handling this aspect of their work – meaning that they can only learn by their mistakes. I hope that HHJ Howells might have reflected further on this afterwards. Of course, it would not have been appropriate for me to attempt to reply to the judge in the hearing (and I would not have been brave enough anyway). I hope that this blog is a fair and helpful way of speaking about my own experience.
My admiration for judges in the Court of Protection is undiminished – I think they have (often) heart-breaking and very difficult decisions to make on our behalf and they do so with courage and humanity.
Perhaps what I should take away from this experience is that all judges are human and can make errors of judgment themselves. And that is OK.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
1 I thought about HHJ Howells mentioning that the blog had no bearing on her judgment. Is that acceptable? I don’t think so. My direct experience of the judiciary is limited to the hearings I have observed this past year and I have an expectation that judges are above commenting on reports of their judgments – that they must be totally independent from interference from government and press and lobbyists and so on. Recent incidents with our current government and Brexit have cemented that view in my mind, and I have felt dismayed at sections of our press demonising judges for occupying that very position and discharging their responsibilities diligently – with no right of reply. Of course a blog (or any other reporting) of a case would not have any influence on a judgment. That surely does not need to be said.