A judicial embargo and our decision to postpone

By Celia Kitzinger, 27 July 2023

More than sixty people have asked for the link to observe Mr Justice Hayden’s ‘fact finding’ hearing (COP 12975950) over the last two weeks, and I’ve published a purely factual report about the issues before the court here: Fact-finding hearing: “Little short of outright war“.

As I said in that post, 10 observers have made short contributions to a collective “group blog” that has been up in the WordPress system and ready to go since 24th July 2023 (three days ago now).

Unlike the blog post I’ve already published, this unpublished multi-authored post isn’t purely “factual’. It includes opinion, analysis, and the authors make links with their personal and professional experience. I haven’t yet pressed the “PUBLISH” button.

Initially I didn’t press “PUBLISH” because I was concerned about two things. First, I’d seen how stressed and anxious many of the care home staff are when giving evidence, and I thought our blog post – which expresses some opinions about the reliability of the witness evidence and the effect of cross-examination on it – might contribute to that. It seemed unkind to (potentially) expose the witnesses who hadn’t yet given evidence to bloggers’ criticisms of those who had already done so. Second, I was concerned about a claim made by another judge, Mr Justice Mostyn, in relation to a different blog post earlier this year – a blog post that was then removed and has not subsequently been reposted. Mr Justice Mostyn said that publishing a blog post containing opinion – as opposed to just fact – before the judgment is published may put us in breach of ss 1 and 2 of the Contempt of Court Act 1981. There is, he said, a not insubstantial (but real) risk that the course of justice in the proceedings would be impeded or prejudiced, in that the mind of the court may be subconsciously influenced on reading the post.

I raised both matters in a letter I sent to Mr Justice Hayden in time for it to be considered at the beginning of the hearing the next day. Here’s the letter (sent 15.16 on 25 July 2023)

Dear Judge

I’m sorry to bother you with this matter when I can see how busy you are with this case, but I am concerned about a transparency issue – and on asking our Advisory Group about the best course of action, it was suggested that I should ask the judge whether he has any objection. So that’s what I’m doing.

Please can you let me know if you object to my publishing a group-authored blog post featuring 10 short contributions by members of the public who have watched this hearing to date, in which they express opinions/analysis of the issues.

The group blog post is currently unpublished, but ready to go on the Open Justice Court of Protection Project website. All I need to do is hit the “PUBLISH” button.  To the best of my belief, these contributions do not breach the Reporting Restrictions Order.

I have not yet published the group blog post because, following an unfortunate episode involving a blog post about a then-ongoing hearing before Mostyn J, I am anxious not to be in a position where anyone can suggest that I (or the contributors) have breached the Contempt of Court Act 1981.  Mr Justice Mostyn expressed the view, as I understand it, that the Contempt of Court Act 1981 means that we should not publish opinions about ongoing hearings – only factual reports.  Consequently I have published a factual report of this case (here: “Fact finding hearing: “Little short of outright war”) which includes an explanation of why I have not (yet) published the group blog post with the 10 “opinion” pieces.

The opinions expressed in the (unpublished) group blog post relate to (amongst other things): your conduct as a judge, the process and efficacy of of cross-examination, the reliability of the witness evidence, the involvement of the litigant-in-person, and various ways in which events described in, or occuring during, the hearing have played themselves out in the lives of the contributors  – who include law students/paralegals, a safeguarding professional, a clinical psychologist, an LIP from a different case, a disability rights activist and someone who trains people to act as court witnesses.

There is no expression of opinion as to what the outcome of the case should be. I mention this because that was of some concern, as I understand it, to Mr Justice Mostyn, in relation to his case.

In my view, the contributions are thoughtful and respectful – but they do include some strong views.  On thinking through the issues involved, I do think it might be uncomfortable for some people who continue to be (or will in future be) involved in the hearing to read what people have written. I think it may be that views expressed about the reliability of the evidence so far could be a source of anxiety for those who have yet to give evidence. 

So, I am not sure how to weigh up the value of transparency about the process at this point in the proceedings, against what could be the negative effect of reading the blog post on people who have yet to give evidence, and on parties in the case. And I am also understandably anxious about the application of the Contempt of Court Act 1981 (although I have also sought  the advice of media lawyers on this).

My question at this point then is whether as the presiding judge in this case you have an in-principle objection to my publishing a opinion-focused blog post of this kind while the hearing is still ongoing.

Thank you for everything you do for open justice in the Court of Protection.

Yours sincerely

Celia Kitzinger

The judge addressed my email in court as I was watching on the remote link. He indicated initially that he did not have any objection to publication but asked for the views of counsel. Counsel for the protected party’s father said he had no views. Counsel for the protected party via the Official Solicitor said she had no instruction and asked for the opportunity to consult and return to the matter after the lunch break.

The morning’s hearing went ahead and I was immediately relieved that we had not published the blog post – since I would have hated to be held accountable in any way for the visible distress and anxiety exhibited by the next witness, who was tearful and hyperventilating as she gave her evidence.

After the lunch break, the Official Solicitor asked for a publication embargo. She quoted from my email, where I said I thought that “views expressed about the reliability of the evidence so far could be a source of anxiety for those who have yet to give evidence” and she expressed concern about the extent of anxiety displayed by the care home witnesses in general, and by the witness that morning in particular.

The judge then made his decision.

The sound quality was not good at the time and I heard the decision (that there should be no publication until after the care home witnesses had finished giving evidence) but only part of the reasons for it. I heard the judge say it was not because of the anxiety of the witnesses since “it is difficult to see how they could be made more anxious than they have revealed themselves to be“.   Rather it was because  “the integrity of the evidence at the moment would be better preserved if it were not commented on in the public domain“.

Since I’d not fully heard the judge’s reasons, I emailed to ask whether he could clarify them and (although as it turned out I was not in court at the time and am indebted to others for sending me this note), here’s what he said:

Yesterday I received an email from Celia Kitzinger. The email had been circulated to the advocates. It concerned a number of blogs which have been written about this case but not published. In the words of the email, all that was needed was to hit the publish button. My initial reaction was that, provided the blogs complied with RRO—which I had been assured they did—then there was no basis in which I could inhibit their release. But the email had only come to the attention of the lawyers yesterday morning. Miss Roper KC properly wanted to take instructions, which she did over the luncheon adjournment. At 2pm she explained that the OS was concerned by the anxiety that had been exhibited by so many carers and nurses. The OS was concerned that if information commenting on the evidence and nurses had entered public domain before others gave evidence, that may have an adverse impact on the quality of their evidence. That led me to have further concerns that it risked corroding the integrity of the evidence, by which I mean the information on the blogs, in setting out the content of earlier statements, might lead the evidence of one witness to invertedly or avertedly belie into another.  I agreed with the OS that the proportionate response was not to inhibit publication of documents, but simply ensure the witness evidence from the care home manager and the nursing staff is completed before they enter the public domain. I announced my decision and reasoning after hearing submissions. But unfortunately there was a diminishment in the quality of sound recording and it was apparently not heard by those on the media conferencing platform. I intended to address this late yesterday afternoon, but I was distracted. This is therefore the first opportunity to set out my pronouncements regarding this temporary embargo.

My own view is that this entirely reasonable under the circumstances.

When I discussed the matter with the Core Team responsible for the Open Justice Court of Protection Project, there was a unanimous view that the fairest way to proceed would actually be to wait until the family members have also given their evidence – the father on Friday 28 July and the mother on Monday 31 July. Whatever protection from our influence or criticism has been accorded to the care home staff should also, we think, be accorded to the family. It’s only another two (working) days – so to us that seems proportionate.¹

In fact, by the time the judge made his decision to embargo our blog post, I’d already decided it wouldn’t be ethical to publish it immediately anyway – not after the distress I’d seen from the witness that morning. And now we’ve voluntarily extended the publication delay to avoid any unnecessary upset to the family while the case is still being heard.

So, the multi-authored blog post is on hold until the witnesses have finished giving evidence – and meanwhile I’m collecting contributions for a subsequent blog post covering the second week of the hearing. If you have observed any parts of the hearing, please think about contributing. We’re interested in something that explains who you are, and the personal or professional perspective you bring to bear on the issues in the hearing, what you expected the hearing to be like, and how you actually experienced it, the issues it raised for you and what you took away from it.

This whole experience leaves me reflecting on how current ‘media law’ and policy around court observation has not really been developed to cover the kinds of things public observers like us (not journalists, not lawyers) want to write about.

When we watch hearings we don’t usually just want to report the facts – indeed, we’re often not the people best placed to establish the facts, since we have less access to documentation than journalists do, and less skill in legal analysis than the lawyers.

What we often want to do is ‘connect’ in some way – personal or professional – with the stories we are hearing. We say to each other things like: “Gosh, I couldn’t imagine, when I was a litigant in person actually standing up in court and having the confidence to do that!“; or “I didn’t expect the courtroom in such a serious legal matter to include human relationships with humour or compassion“; or “As someone working in the NHS myself, here’s how I have felt about and reacted to ‘difficult’ families” or – in my case – “I’ve been a ‘difficult’ family member with ‘unreasonable’ demands – how painful to see it played out here in court‘”. And that’s what our blogs are about – and that’s not the sort of thing that journalists or lawyers usually write about – although of course they have their own experiences of the health and social care system too.

As far as I know there’s nothing quite like this happening in any other courts – and the Court of Protection rules and procedures weren’t developed with us in mind. Although the Court of Protection Transparency Pilot, right from the beginning, envisaged members of the public (not just journalists) observing court hearings, our Project wasn’t invented back then and our nearly-400 blog posts about court hearings could not then have been imagined – much less provided for in court guidance.

I think we’re creating an important space for public engagement with the justice system, but we’re having to make up some of the rules as we go along – and by “we” I mean everyone who observes and blogs about court hearings, and everyone who advocates for the parties in court, and everyone who hears cases and hands down judgments. I’m grateful to the lawyers and to Mr Justice Hayden in this case – and of course to the many other lawyers and judges whose hearings we’ve blogged about in the past – for engaging with this Project and for their commitment to open justice and transparency in the Court of Protection.

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

_{Note 1: As it turned out, the hearing was adjourned on Monday 31st July due to illness of Lead Counsel for the applicant ICB, and re-listed for the next available dates, 6th and 9th October 2023. The father will finish giving his evidence (he was part way through) and the mother and grandmother will give their evidence, in October. And we’ll publish our blog posts after they have done so.}