A disappointing failure of open justice: DJ OmoRegie says no

By George Palmer, 29th January 2024

I was very excited to learn that I could shadow Celia Kitzinger as an observer at a remote hearing (via cloud video platform) at 10 am on Friday 19th January 2024.   

I’m a third-year law student at the University of York intending to go into a career within Clinical Negligence law as a barrister. The competitive nature of the legal profession excites me, and I look to continuously push myself to achieve my best within, and outside of, my studies. I have always found healthcare law, which takes something so subjective and personal, such as a patient’s mental or physical health, and attempts to turn it into an objective matter and problem for barristers to debate over, and judges to determine, incredibly fascinating. And I feel that being a barrister, rather than a solicitor, gives me the best chance to make an impact on the decision-making process concerning these patients and individuals. 

I’ve previously observed and blogged about my first COP hearing last year (“Assessing and Treating Leg Ulcers of A Resistant Patient”), and I was keen to observe another hearing.

Here’s how it appeared in the listings.

That morning, we both sent emails asking for the link for the hearing (Celia at 08:23 and me at 09.17).  

We then both (separately) received emails with the Transparency Order attached, and were copied into an email to Kent County Court asking for the link to be sent to us.

On reading the Transparency Order, Celia raised an issue with it, because it stated that no information was to be released which “identifies or is likely to identify that: … (c) M[edway] C[ouncil] are parties to these proceedings…”

Celia explained to me that Transparency Orders which prevent observers (and everyone else) from identifying public bodies involved in Court of Protection hearings are – as a general rule – unacceptable in terms of open justice.  She told me:  “It’s important for public bodies (paid for with our taxes) to be identified and held accountable for their behaviour to the public. That’s an important principle of open justice.”

Celia sent an email asking for the TO to be varied (see Appendix below), and was told that the request would be considered at today’s hearing. (And the judge subsequently said he would vary the order.)

However, neither Celia nor I had received the link by the listed start time of the hearing. Celia told me she had emailed with a reminder that she’d not received the link at 09.51 and then again at 10.17, saying that both she and I had requested the link and asking whether the hearing was starting late. 

Eventually, I was sent a link at 10:23, setting out instructions on how to join the hearing and the password for logging in. However, once again I was met with disappointment when I tried to join the hearing and was left in an empty waiting room for 15 minutes.

When Celia joined the hearing, she emailed to tell me two things: first, the hearing had been going for almost half an hour, so we’d missed half of it.  The second thing was (said Celia) that the judge reported not having seen my email requesting access and said that he was therefore not able to admit me to the hearing. What he must have seen was Celia’s email naming me (and giving my email address, but not forwarding my email, since she didn’t have it)  and saying that I too wished to observe the hearing.

I don’t really understand why the judge couldn’t admit me, but Celia advised me to send another email immediately (which I did) hoping that it would reach the judge.

However, after another email, I was then told at 10:47 that I would not be allowed access to the hearing as ‘the judge did not receive a request from you to join the hearing and has not approved you joining the hearing’. 

Disappointed, I was left unable to join the hearing, without a sufficient explanation by the court as to why my emails were not passed across to the judge.  Celia has written to the court staff involved requesting a full explanation of what went wrong, both for me, and in terms of her being admitted so late.

I was gutted at the missed opportunity to observe what I was later told was a highly interesting hearing, which I’m sure would have furthered my knowledge of the legal system as a law student. 

This is disappointing from a personal perspective – and it’s even more disappointing  but to know that the profession I hope to join has failed in open justice – both by initially issuing an injunction concealing the identity of a public body (a decision reversed in response to Celia’s request) and then by denying me access to a hearing despite having made a request in the correct format in a timely fashion, and despite Celia advocating on my behalf.

Public hearings should be accessible to all members of the public who want to attend.   If we’re not admitted, despite appropriate and timely requests,  they should not be referred to as ‘public’ at all.  

George Palmer is a third-year University of York Law student and aspiring Clinical Negligence barrister. He hopes to commence Pupillage in 2025 and one day become a leading barrister in his chosen field.

Appendix: Letter requesting variation of reporting restrictions  (by Celia Kitzinger)

19 January 09:10am 

Dear DJ OmoRegie

Request to vary Transparency Order COP 13887885

I have received the Transparency Order for this hearing, dated 23rd June 2023 and made (I think) by HHJ Coffey.  It says on the front of the Order that I have the right to ask for it to be varied or discharged and I am exercising that right here.

I note that the subject matter of the Injunction (§6) is any material or information that identifies or is likely to identify the protected party at the centre of this case (JX) and their family.  Unusually, however, this TO also prohibits identification of the public body in this case: at least, I assume that “MC” (§6c) is Medway Council, as named on the face of the Order.

As far as I can tell from the TO itself (which is my only source of information about this case), this protected party appears to be making a s.21A deprivation of liberty challenge against Medway Council.  It is not obvious to me why Medway Council’s identity should be protected in this case.  In general, it’s important for public bodies (paid for with our taxes) to be identified and held accountable for their behaviour to the public.  That’s an important principle of open justice.  In practice – and I’ve now observed more than 500 Court of Protection hearings – it’s very unusual for us to be prohibited from identifying public bodies.

I am asking for the TO to be varied to permit me to identify the public body in accordance with my Article 10 rights to freedom of information.  

I understand that JX has possibly competing Article 8 rights to privacy and that the court may already have conducted an Article 8/Article 10  balancing exercise to determine whether there is a risk of broader identification of  JX if the public body is publicly identified.  But I am also aware that there is often poor practice in drafting TOs and that it may  in fact be the case that no such balancing exercise has been done, and that the protection of the identity of the public body has slipped into the wording of the Order by default, without being properly considered by the judge.  Unfortunately, I have seen this many times. 

When I have raised this kind of concern previously, the judge has usually asked counsel at the beginning of the hearing to make submissions as to whether there are good reasons for the identity of the public body to be protected.  If it is said that there are such reasons, I have often been invited to respond before the judge makes a decision on the matter. If – as is usual – there are no such reasons, the judge simply varies the TO there and then and asks for a new version to be drafted.  For open justice reasons, it is important that the matter be dealt with in a timely fashion so as not to delay publication of the name of a public body if in fact publication *should* be permitted.

Thank you for your attention to this matter.

Yours sincerely

Celia Kitzinger