By Celia Kitzinger, 8th February 2023
My first experience of a case involving closed hearings was as an observer of Re A (Covert medication: Closed Proceedings)  EWCOP 44. It shook my faith in the justice system.
The protected party (A) was in residential care, against her own wishes and those of her mother. While A’s mother was making applications to court to get her daughter home, closed hearings were being held, in secret, over the course of two years. The mother’s arguments to get her daughter home were doomed from the outset because hugely salient information from the closed hearings was withheld from her. And observers of the public hearings that ran alongside the closed hearings published false information as a result of the court’s secrecy.
We wrote about our experience of the hearings across several blogs (e.g. Statement from the Open Justice Court of Protection Project; Reflections on open justice and transparency) and I made a formal submission to the Court of Protection Rules Committee about the use of closed hearings.
Now the Vice President, Mr Justice Hayden, has published some Guidance, which goes some way towards ensuring that what happened in Re A will never happen again.
It makes absolutely clear that closed hearings (and closed material hearings) are a matter of last resort, and that the expectation is that any closed hearing should be conducted before the most senior (Tier 3) judges – which HHJ Moir, the judge for the closed hearings in Re A, was not.
The Guidance states that it is “difficult, if not impossible” to contemplate circumstances where running closed and open hearings in parallel will be compatible with human rights principles. I hope this rules out in future anything similar to the charade of the open hearings in Re A.
The Guidance emphasises the importance of keeping under review whether it’s possible to disclose the fact and outcome of the closed hearing during the course of ongoing proceedings – to the excluded party and to observers. And it requires publication of a reasoned judgment at the earliest possible opportunity to explain the rationale for a closed hearing and the substantive decision reached at that hearing. (That has yet to happen in Re A)1.
Although I welcome the Vice President’s Guidance, I still have some concerns. My reading of the Guidance is that “active deception” from the court when answering questions from the excluded party and court observers is permitted as “a last resort”. I find that quite shocking. There is no mention of monitoring of closed proceedings, so we will never know how many there are – though I will now try a Freedom of Information request. Nor are observers permitted in closed hearings, despite the fact that the observers’ role in ‘guarding against improbity’ is arguably more important in closed hearings than in ordinary hearings attended by all parties.
Overall, though, the Guidance does address some of the key concerns I have about what happened in Re A, and I welcome, in particular, the sections called “The Starting Point” and “The Governing Principle” which lay out the key principle of open justice as fundamental to a modern democratic society, and seek to limit and constrain any derogation from it.
The Guidance can be read in full here.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has personally observed more than 390 Court of Protection hearings since 1 May 2000. She tweets @KitzingerCelia
1 I first requested publication of the relevant judgment from HHJ Moir (the closed hearing at which she authorised covert medication for A, and the concealment of this from A’s mother) on 21st September 2022 and again on 12th November 2022: on 14th November 2022, Poole J directed it should be published. I chased it on 31 January 2023. It is still not published, although I am told it is on its way.