By Claire Martin, 8th February 2022
Judges have suggested repeatedly over the last 18 months – to me, and to other observers – that we should ask to observe hearings in a timely fashion, giving judges (and advocates and court staff) more warning that we want to be there in court.
It happened again last week, during a remote hearing (COP 13607901) before HHJ Thomas in Birmingham on Thursday 27th January 2022.
As I joined the hearing at 10.30am, the judge was talking to counsel, one of whom then observed that I had joined the platform. The judge said to me: ‘because you only applied last night at 5.30 when all of the staff had gone home, I haven’t had time to consider your request’. She asked me to leave and said I would be contacted if I were to be allowed access.
I was permitted to re-join after some portion of the hearing (I think a costs hearing) had been completed, at 11.29am (so an hour later).
At that point the judge addressed me again, saying that I was “welcome, of course” but explaining that “the court office is only open from 9-5”, so communications received outside of those hours aren’t processed. When the office opens the next morning, she said, there is “a lot for staff to do”. Her suggestion for my future requests to observe hearings followed: “So, Dr Martin, if you would be kind enough, the earlier you can give notice the easier it will be.”
This blog post is a response to that suggestion – which I’m sure was intended to be helpful. It must be especially frustrating for judges who fully support open justice and want to ensure a positive experience for public observers, to be unable to provide smooth and timely access to hearings because they have received the request too late for them to engage with the issues.
The problem of late requests to observe hearings
It’s very inconvenient for judges to receive messages from members of the public asking to join remote hearings just minutes before (or sometimes minutes after) those hearings are due to start.
In fact, it’s more than inconvenient. It distracts their attention from the substantive business of the hearing.
Partly it’s the technology. District judges doing telephone hearings, already exhausted by the task of calling out to 8 or 12 different people on a conference call, are now facing the task of adding yet more numbers to call. Court staff setting up video-hearings who may well be preoccupied with helping P or P’s family with dodgy connections from borrowed iPads, or doctors in hospitals with unhelpful firewalls, now have members of the public needing to be sent links, and possibly also struggling with connections. These problems are exacerbated when requests are last-minute.
Partly it’s sorting out issues of transparency and reporting restrictions. When advocates learn there will be observers – this still seems to come as a surprise to some! – there’s often a sudden flurry of concern about whether the hearing is actually “private” or “public”. And why (they sometimes ask) if COP hearings are supposed to be public, is there a Remote Hearings Order saying that the hearing is “private” and that Practice Direction 4C has been disapplied – and what needs to be done about that? There’s a Transparency Order to locate, or create. Sometimes there’s anxiety about informing Litigants in Person, P and P’s family about our unexpected (and possibly unsettling) presence, hurriedly, at the last minute, as the hearing is about to begin. The start of the hearing “proper” can be delayed while transparency matters are sorted out.
Sometimes this all seems too difficult, too late in the day, and judges decline to admit us.
Why don’t we ask sooner?
Quite simply, I couldn’t have asked for this hearing sooner than I did, because I didn’t know it was happening.
We can’t apply to observe hearings unless we know about them – and that usually means we can’t apply until they appear in the daily cause listings. Those are overwhelmingly our source of information about hearings in the Court of Protection. Mostly, that means (as in this case) that we learn about the hearings late afternoon or early evening the day before a hearing.
This hearing before HHJ Thomas was posted on Courtserve the afternoon of the day before the hearing, sometime between 4-5pm Wednesday 26th January 2022. I emailed the Court of Protection hub (in Birmingham) at 5.30pm that day, as soon as I saw the listing after I had finished work.
Many observers (like me) will not finish work until at least 5pm, when – as the judge informed me – court staff have then clocked off. And that’s the soonest we can check the listings for the following day and request a hearing.
I wasn’t the only one who tried to observe this hearing. Eleanor Tallon (a Best Interests Assessor and Specialist Practitioner in MCA and DOLS) also tried to observe this hearing and blogged about the experience here. Like me, she was admitted to the hearing, but the Judge then said “that as I had only requested access at 10.50pm the evening before, she had not had time to go through formalities. She then referred to Claire Martin, another public observer (and core member of the Open Justice Court of Protection Project) who was also observing the proceedings and requested that we ‘kindly leave’. So that was that. Abrupt as it was, I duly obliged, and felt slightly down beaten at this point.”
In a personal communication (with permission to quote), Eleanor Tallon said: “It did feel like I was being told off and sent on my way. It was quite abrupt.” In fact, she understood the request to leave to mean she was excluded from this hearing altogether, and she did not return.
It seems that the experience of trying to ensure open justice for this hearing was an unhappy one for the court and for observers alike.
The systemic problem
My experience of courts, the legal system and attending hearings is limited to being a COP observer during the pandemic. I have had the privilege of observing over 30 hearings and my impression is that most judges are supportive of open justice (including the judge at this hearing). So, it is not that open justice isn’t supported, in theory, by people in the system, but that open justice, in practice, is hard to achieve, systemically.
Observers are frequently excluded from allegedly “public” hearings – often because nobody replies to our emails – or does so after the hearing is over, apologising for not responding sooner due to pressures of work, or computer problems, or the relevant person being on sick leave. But I don’t think it’s part of a nefarious plot to keep hearings secret and stop us observing them.
And when judges tell us they only received our request to observe a hearing 10 minutes before the hearing was due to begin, or 10 minutes afterwards, or after the hearing was finished, it’s not that we’re deliberately sending in late requests to annoy the judges or disrupt the court process. We probably asked the evening before, or first thing that morning, and either there was a delay in busy court staff forwarding our request, or the judge was in an earlier hearing, or otherwise engaged, and not able to check their emails.
Unfortunately it doesn’t help to advise us to put in our requests sooner.
At present, with the system as it is, it is rarely possible for observers to request to observe a hearing until the evening before. We depend on the listings, which don’t appear until around 4.30pm. Occasionally CourtServe does list hearings for a few days in advance, but this is relatively unusual, and our experience is that very often these ‘advance’ notifications don’t yield observations, because the hearings are subsequently vacated. Our best chance of getting a hearing that isn’t vacated is to apply to observe one that is on the list the day before the hearing is supposed to happen (and even then, a large number are vacated on the day).
Sometimes we’ve observed an earlier hearing in an ongoing case and know when the next hearing is likely to be (because the listing date was discussed in court at the end of the earlier hearing), so we can make a request well in advance. We’ve seen, though, that this runs the risk of our email requesting access being buried in court staff inboxes, necessitating a further email nearer the time.
Very occasionally, we’re informed of cases by P, by people connected with P, by Litigants in Person, or by counsel for one of the parties. This assists us with making timely requests – although the vagaries of court listings mean that even parties don’t necessarily know much in advance when a case is to be heard, before which judge, or (now) whether it will be remote, hybrid, or attended, all of which affect our ability to observe and hence whether or not we can make a request.. Moreover, open justice should not, of course, have to rely on ‘inside’ (privately communicated) information about upcoming cases.
What to do about it
The judiciary has stated its commitment to open justice over and over again and we have no reason to doubt that the Court of Protection aspires to transparency and seeks to support public observation of hearings.
The problem is the gap between aspiration and reality.
For most members of the public, their observation is the first time they’ve ever been in court. It can feel daunting, nerve-racking, anxiety-provoking, stressful. If people feel chastised by judges for late applications, if they’re “told off”, “down beaten” and “sent on [their] way”, it may be the last time they try. Even for me, as a seasoned court observer, it feels upsetting to be advised (albeit, I accept, with the best of intentions) to make my requests to observe “earlier”, by a judge who seemed simply not to realise the practical impossibility of doing so. I would if I could!
This is a matter we will be raising at Court of Protection User Group meetings. We’d love suggestions as to how best to manage the situation going forward.
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
 This judge correctly identified the date and time at which I had made my request. Sometimes judges have claimed that we asked (for example) “five minutes ago” – based on when the judge received the request, as (belatedly) forwarded to them by court staff, without reference to the date and time at which we sent the email to court staff (usually after office hours the night before).
 For an explainer blog on how to use Courtserve click here. The other court listings are similarly not available before around 4.30pm the afternoon before they are due to take place. First Avenue House listings usually go up between 4.30 and 5pm. The Royal Courts of Justice cause list is often available somewhat earlier (around 4pm) and asks: “Please can requests be emailed the day before the hearing or, if possible, no later than 9:30am on the day of the hearing.”