Just another failure of open justice: DJ Bland in Lancaster County Court

By Celia Kitzinger, 11 July 2023

I’m so weary of this sort of thing.  

I can’t summon up the energy, three years on, for outrage about the routine, mundane, banal failure of the Court of Protection, despite its best intentions, to implement transparency for its hearings.

In theory, yes, the doors of the courtroom are open.  

In practice, the barriers placed in the way of even experienced public observers like me can be insurmountable.

Here’s what happened – in 5 dismal steps.

1. Yesterday, I found a hearing I wanted to observe in Lancaster in person: it should have been, but was not, in the COP list

Yesterday evening, I was browsing the Court of Protection list in Courtel/CourtServe and there was nothing that particularly caught my eye as something I wanted to observe.

I know that – despite efforts to fix this over several years – Court of Protection hearings are often not included in the Court of Protection list, so I opened the “Daily Cause” lists for some courts near me.  It’s always interesting to see what’s going on in my own geographical area – especially if it enables me to attend an in-person hearing.

Lo and behold – a Court of Protection hearing in Lancaster at 2pm the next day.  In person!

That’s not too far.  A half hour drive to Penrith train station.  A half-hour-plus train journey.  A 15-minute walk to the court house.  Allowing time for delayed trains and the challenges of getting through airport-style security, I’d be fine if I left home mid-morning and caught the 11.48 (arrives 12.26) or 12.23 (arrives 12.57).  Hurrah!

I emailed the court to check that the wording (“Restricted”) didn’t mean I wasn’t allowed to attend – and also asked what the hearing was about (there should have been ‘descriptors’ in the listing) and for a confirmation that it was going ahead.  So many hearings are vacated (i.e. they don’t happen) – and I didn’t want to travel to Lancaster only to find that this hearing wasn’t going to take place.  

I pointed out, too, that I’d found the listing in the Daily Cause List, when it should actually have been in the Court of Protection list (which didn’t include Lancaster at all).

2. On enquiry, I was sent “the correct list”, which stated the hearing was “IN PRIVATE – NOT OPEN TO THE PUBLIC“

I received a prompt and courteous response (at 09.37) from a member of the Lancaster court staff, apologising that the “COP list was missed when the others were sent to Courtel” and attaching “the correct list”.  Here’s what “the correct list” said.

Okay, so “IN PRIVATE – NOT OPEN THE PUBLIC”.

A normal member of the public would have given up at this point.  But then, a normal member of the public wouldn’t have been poking about looking for COP hearings ‘off-piste’ in the Daily Cause list, and wouldn’t have ever seen this Lancaster hearing in the first place.

Also, I know that ‘IN PRIVATE – NOT OPEN TO THE PUBLIC’ doesn’t mean the public can’t be admitted.  I know that’s counter-intuitive.  I know that takes a leap of faith – but trust me on this. I’ve seen it many times before.

So, I wrote back to the nice member of staff who’d sent me the list, to check:  “It says “IN PRIVATE – NOT OPEN TO THE PUBLIC”. It is unusual for COP hearings to be in private and for the public not to be able to attend.  Is this correct?”

He replied, reasonably enough: “This is the information we had from District Judge Bland. Unfortunately we are only a hearing venue and have no information about COP cases or hearings, we can only go off the information provided by the Judge“.

So, I asked the same question again (plus, what’s the hearing about) and sent it back to Lancaster County Court and to Manchester COP (the regional hub), marked “Attnt: DJ Bland COP 14094090”.  It was now 10.21am.  I would need a reply within the hour to ensure I had time to get the train to Lancaster.

3. On asking the judge whether the hearing is really “private”, I’m told I can attend as ‘an accredited blogger’ (which I then explain I’m not)

At 12.04 I received a response from the Lancaster Court staff:  “I have forwarded your email to District Judge Bland who has replied that the court has no objection to an accredited blogger observing the hearing”.

But I’m not an “accredited blogger”.

I don’t think there is such a thing as an “accredited blogger” in the Court of Protection rules.

When hearings are otherwise “private”, in the sense of not being open to the “public”, the Family Court rules permit people to attend if they are “duly accredited representatives of news gathering and reporting organisations” (i.e. journalists) or “a duly authorised lawyer attending for journalistic, research or public legal educational purposes” (sometimes referred to as “legal bloggers” for shorthand). 

The role of “legal bloggers” in the Family Courts has become more prominent since the introduction of the Pilot Scheme (in Leeds, Carlisle and Cardiff) which allows lawyers and journalists to observe Family Court cases and write about them, without having to make an application to do so – as long as it is anonymised (see “Legal blogging and the transparency pilot”).  This is a positive step for the Family Court – to which members of the public do not have any right of access.  But since the Pilot Scheme started in the Family Court, it has sometimes backfired on members of the public wanting to attend Court of Protection hearings, as judges (seemingly unaware of the differences between COP and Family Court transparency rules) have required assurance that we are “legal bloggers” before granting admission to “public” Court of Protection hearings. 

But the confusion in relation to DJ Bland’s hearing was that it seemed to be listed (on “the correct list”) as a private hearing. There was no objection, the judge said said, to my attending as an “accredited blogger” – but I don’t know who would “accredit” me, or what that term means in the Court of Protection. I’m not a lawyer, so I don’t meet the requirements to be a “legal blogger” (i.e. “a duly authorised lawyer attending for journalistic, research or public legal educational purposes” ) for the Family Court.  

I wrote back (at 12.07):

“Thank you – but could you let DJ Bland know that I do not qualify as an accredited blogger under the Family Court rules (I’m not a lawyer).  I was really asking whether this hearing was open to members of the public, not accredited bloggers!”

4. Court staff sent (without my asking) the Transparency Order – which said the hearing was “PUBLIC”

At 12.17, the administration officer from the Manchester COP Regional Hub sent an email attaching the Transparency Order for DJ Bland’s hearing “just in case you decide to attend”.  This was enormously helpful.

The Transparency Order had been made (and sealed) by DJ Bland on 7 June 2023.

The usual warnings appear on the front page (about being sent to prison and the like) and then the usual statement that it appears to the court that “Practice Direction 4C to the Court of Protection Rules 2017 should tact apply” (I don’t know what “tact” is doing there – I think it’s a typo). Practice Direction 4C is headed “Transparency” and it says that the court will ordinarily make an order that attended hearings “shall be in public” (§2.1.(a)).  

The second page of DJ Bland’s Transparency Order begins like this:

IT IS HEREBY ORDERED that: 

The direction that hearings are to be in public 

(1)  This application be set down for an attended hearing at the Family Court at Lancaster on 11th July 2023 at 2pm with a time estimate of 2 hours at which the Court will consider the following issues:  (a) P’s capacity to make decisions as to contact and care,  (b)  P’s best interests in relation to contact and care 

(2)  Subject to further order of the Court that attended hearing and all further attended hearings of this application are to be in public PROVIDED ALWAYS THAT the Court may exclude from an attended hearing any person (other than a party) on the grounds that it is in the interests of justice to do so (for example if that person refuses a request to sign a document recording their attendance and that they are aware of the terms of this order). 

Wow!  It looked as though this hearing is supposed to be in public – so it should have said so, and I should have been entitled to attend as a member of the public¹. 

And yet it was listed as “IN PRIVATE – NOT OPEN TO THE PUBLIC” and a direct approach to the judge yielded only the information that I could attend if I was an “accredited blogger”.  

I supposed it was possible that DJ Bland had subsequently revoked that Transparency Order, made just over a month ago, and made a new one – and I’d been sent the old one by mistake.  

Or perhaps it was supposed to be in public and the listing was wrong, and the judge had been mistaken in implying that I could attend only in the role of an  “accredited blogger”.

5. Less than an hour before the start of the hearing, I’m told the judge says I can attend – but it’s now too late to get to Lancaster in time

At 13.02, a different member of the court staff from Lancaster sent an email: “Further to previous email correspondence, District Judge Bland says you may attend the hearing at 2pm today”.  

That still doesn’t answer my question as to whether the hearing is “public” (as stated in the Transparency Order I was sent) or whether it is indeed “private” but I was being given some kind of special permission to attend a private hearing (as has happened previously).  

In any case, it was now too late for me to get to Lancaster in time for this hearing.  

I’d already said so in an email I’d sent to everyone involved in this correspondence, and to my contact at His Majesty’s Courts and Tribunal Service (HMCTS) with whom I’ve been raising problems with listings for ages, and which she’s been trying (with mixed success) to address.

My letter to Lancaster County Court staff, Manchester COP Regional Hub staff, and DJ Bland (plus HMCTS)

Thank you for sending me the Transparency Order.

I’m now completely baffled!  The TO seems to have been made by DJ Bland earlier this month [note added for blog: my error – it was last month!] and it has a direction saying that the hearing is to be “in public“. (It also says what the issues before the court are which was another question I was asking and not getting an answer to, and which information should have been included in the listing).

The TO I’ve just received says:

…. the hearings are to be in public
(1) This application be set down for an attended hearing at the Family Court
at Lancaster on 11th July 2023 at 2pm with a time estimate of 2 hours at which the Court will consider the following issues:
(a) P’s capacity to make decisions as to contact and care,
(b) P’s best interests in relation to contact and care

Given this Order, I have the following questions:

(a) Why was a hearing that the judge ordered to be heard in public listed to be heard in private?

(b) Why did DJ Bland say I could attend as an “accredited blogger” (which isn’t a term in use for COP hearings as I understand it, and which in any case is a term that doesn’t apply to me). Surely his order means that I should be able to attend as a member of the public, even though I’m NOT an accredited blogger in Family Court terms.

(c) Why didn’t the listing include the issues before the court?

(d) How can this sort of listing problem (and subsequent confusion) be prevented from happening in future?

Sadly it is now too late for me to get to Penrith for a train that would get me to Lancaster in time to attend this hearing, so this listing error will likely mean that the case is heard effectively “in private” (unless any other members of the public turn up).  This does not support the judicial commitment to transparency.

I’m also personally sad about this since there are relatively few COP hearings I can easily observe in person from rural Cumbria, and this is one I would have liked to have attended.

I hope the concerns I have raised can be addressed.

Reflections

There is some good practice in amongst this chaotic experience.  

The court staff – both at Lancaster and at Manchester – responded promptly and courteously, with as much information as they had access to.  I’m particularly grateful to Manchester court staff for supplying me with the Transparency Order (which I hadn’t thought to ask for, and was very helpful).  

I believe that my contact at HMCTS will take what happened seriously and investigate, and do what she can to prevent it from happening again. She always does.

But the problem, ultimately, is that this will be treated as just another “one-off” experience of the failings of transparency, attributable to particular local contingencies.  

I don’t write a letter to HMCTS, much less a blog post, about each of the transparency failings I experience in trying to get access to COP hearings. It’s tedious to document them, and boring to read.  It takes time I’d far rather spend doing something else.  But, believe me, they are multitudes.

And similar problems are also faced by many other public observers – some of whom come to believe it’s somehow their fault that they can’t get admittance to court, or even that it’s “personal” and someone is trying to prevent their access (especially likely when would-be observers are caught up in their own COP hearings), or that there’s a widespread conspiracy to prevent open justice. This sort of thing is very bad public relations for a court with aspirations for transparency.

Each time I do write a letter expressing concerns about one of the multitude of “one-off” failings like this, I get a courteous and concerned response, expressing regret about the failure and an aspiration for improvements in future. I’m often given some reasons why something went wrong on each occasion: someone who was on leave so their job was done by someone else who needs training; sickness and understaffing in the office; an technology upgrade causing temporary disruption; or once in a while just someone who made a mistake (we’re all human!). And then it happens again. And again. And again.

The cumulative effect of these routine, mundane “one-off” experiences is to erect a virtually impenetrable barrier to transparency in the Court of Protection.  

If the judiciary is serious about transparency, the whole system needs a thorough overhaul. (Yes, I know – where is the money for that going to come from?)

I’m pretty confident it wasn’t a conspiracy to exclude me from the hearing in Lancaster today.  

But the effect is just the same as if it was.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 450 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

1 _{I take the reference to the “Family Court” in the TO at §1 to be a short-hand way of referring to the physical building in Lancaster where the hearing is to take place: it’s formally called ‘Lancaster Civil and Family Court’. This is clearly a COP case, not a Family case}.