By Claire Martin, Celia Kitzinger, Peter C Bell and Kim Dodd, 22nd May 2024
A few months ago, we published an audit of “private” hearings – that is, hearings that appear as “private” in the lists on Courtel/CourtServe.
What we found is that at least 50% of those “private” hearings had been wrongly listed as such. The judge actually intended them to be public.
Since then, Celia has been systematically sending emails to each of the judges whose hearings are listed as “private”, asking if that’s really intended. Replies often come too late to be useful, and we’ve missed many hearings intended to be “public” because the mistake in the listings was only corrected after the hearing had taken place.
By contrast, DJ Glassbrook got back in a timely manner on 9th May 2024 when asked about his hearing in Northampton the following day (COP 13982390): “This is a s.21A and would appear to be suitable to be [a public hearing] with the benefit of a Transparency Order, albeit I can’t actually see such an order”. He explained he would ask for submissions on the matter and would need to ask observers to leave if he was persuaded it should be held in private. In the event, that’s actually what happened – which makes this an interesting case for open justice.
The hearing
Celia (who was not herself able to join the hearing due to previous commitments) alerted the core team to the possibility that this “private” hearing would in fact be in public, and also posted on X about it. Claire Martin attended from the core team, and so did two other observers: Peter C Bell and Kim Dodd. What follows is based on Claire’s contemporaneous notes of what happened, checked by Peter and Kim (who were admitted to the online platform a couple of minutes sooner than Claire). This transcript is as accurate as we could make it, given that we are not allowed to audio-record hearings, but is unlikely to be 100% verbatim. Counsel were Lucinda France-Hayhurst of St John’s Buildings for the protected party and Zoe Whittington of Cornerstone Barristers for the Local Authority.
Judge: Yesterday I received an email from Celia Kitzinger. Frankly, once a case gets going it’s not something I’d considered. There’s no Transparency Order (TO). I agreed with Professor Kitzinger if she wanted to observe I’d need to get a TO. I would need to hear submissions from parties. There is no TO. No party may publish anything. If it becomes a public hearing, there is a draft TO and I should check the observers are aware of the standard terms.
Claire was joined to the video-link at 10.13am.
Judge: Dr Martin I know you’ve just joined – unfortunately the requests arrived late – well this morning they were sent over. [Mentioned reporting being restricted in ‘usual way’] You can’t name any party or accommodation of P.
DJ Glassbrook then asked counsel for P for her view on observers being present at the hearing.
Counsel for P: I don’t have instructions so I’m minded to ask you, judge, to apply caution.
Judge: Why?
Counsel for P: Why?
Judge: Yes, why more caution, and let’s face it […] what I do in the vast majority of cases is to make, first, directions that this is subject to a Transparency Order (TO) and from memory I don’t think I have ever heard it argued that it should THEN become private. So, it’s routine for a TO these days, isn’t it?
Counsel for P: It certainly is …
Judge: So, if you say that shouldn’t hold in this case, I need to know why … I think it was simply an error on my part at the beginning …. [the judge was suggesting that the hearing being listed as ‘Private’ from the beginning was an error on his part].
Counsel for P: Nevertheless, I have no doubt that it would be the expectation of the ALR (Accredited Legal Representative) that proceedings should be in private – and whether in error or not it was listed as private […] What I say may give rise to […] we have a potential criminal investigation, the Local Authority will provide information before the next hearing . We don’t have information at present and until we have it, we don’t know whether there will be a concurrent prosecution. The facts of this case are very sensitive, jigsaw identification [may be possible] …. We are at a point in P’s life during a move … it’s an extremely febrile time for P. If jigsaw identification were to come about […] I am asking you to consider the position for a short period to allow the ALR to weigh in and for information from the police. A careful review before the next hearing, and if in the ALR’s [view] it should be in public, there will be a TO.
Judge: I am bringing up the draft … [reading a draft TO – possibly the template from the Transparency Pilot, here or a version of it prepared for this particular hearing but not yet approved]. What I am looking at is the subject matter of the injunction in the draft TO. It’s in the standard form. The subject matter: (reading) “any information that identifies or is likely to identify that SR is the subject of proceedings, or that any person who is a member of the family or that any material that identifies or is likely to identify where any person lives.” […] We could add a line that it includes where P will move to.
Counsel for P: It’s not the geography, it’s the nature of her conditions, and given that we are at a particularly sensitive moment … There are of course times where court uses discretion….
Judge: OK. Miss Whittington?
Counsel for LA: The Local Authority remains neutral, [it is] content for it to be made public with a TO. [?Happy to] hear other submissions – we wouldn’t object to it, but judge we are in your hands.
Judge: If I pick up what Miss France-Hayhurst says and if we consider particular characteristics of an individual and there is to be some criminal case, which reveals those characteristics of the individual, that’s the end of it isn’t it? It’s out there then?
Counsel for LA: Yes, that’s right
Judge: And do you say we can phrase the TO protect against that?
Counsel for LA: I would say so, yes. Obviously the TO is phrased to deal with concerns. I don’t think the Local Authority would be concerned with a sufficiently robust TO.
Judge: Is that something we are able to do now? If it’s the particular characteristics of P that are the issue, I suppose it would be possible to include within that, paragraph 6 ‘don’t disclose matters that are particular characteristics of the individual’. But that makes it nigh on impossible to report ANYTHING. So, a characteristic – what is that? A certain age? Yes. Is […. ….] all sorts of characteristics … that would help identify the individual. What I am trying to do here is not tell you I have made my mind up, it is to force engagement with arguments from Miss France-Hayhurst.
Counsel for LA: Yes, and essentially the Local Authority position is that it is content with the TO in standard terms. It prevents reporting in any event….
Judge: It doesn’t prevent reporting. It expressly ALLOWS reporting.
Counsel for LA: Yes, what I mean is it prevents identification of P, that’s Miss France-Hayhurst’s concern. I think that’s covered by the TO in any event. I have an update from my client. The information the Local Authority has from the police is that there isn’t going to be a police investigation. That might assist.
Judge: OK! Miss France-Hayhurst, I appreciate that getting that information right now isn’t especially comfortable for you, or for me. So, it seems the main risk of identification is that if there are similar characteristics published as part of criminal proceedings and someone puts two and two together. Were it not for that we’d have a TO wouldn’t we?
Counsel for P: Well … judge it’s impossible to say if we would or wouldn’t. I am in the position of not having instructions ….
Judge: Well, I feel quite entitled to lean on both of you here as advocates with a duty to the court to assist, regardless of instructions. You’re both experienced in Court of Protection matters. This isn’t a matter for instructions, they will express an opinion. […] Part of the fun of being an advocate is being put on the spot now and again …
Counsel for P: It certainly reduces the possibility of jigsaw identification. […] The court also has to consider the potential impact though. I appreciate it would be sensitively reported by these observers. … But P is likely to be moved to a different area and it’s likely to be a challenging time [it needs a] period of time and adaptation for P, so the last thing they would need is jigsaw identification. I would urge the court to exercise caution TODAY. [Counsel’s emphasis]
Judge: [thinking] …. Any observers have anything to say?
(Kim suggested a temporary ban on reporting and allowing us to observe, and pending a TO we could later report. Claire agreed and said that she was going to suggest a temporary ban on reporting.)
Counsel for P: Surely there’s no point of observing if you can’t report?
Judge: What would be nice would be if we had all had …. and I don’t make this observation as a way of criticising anybody at all – if we’d all had lots of time to look at it and consider it, it would be undoubtedly more comfortable.
(By this point it’s already 10.37am)
Judge: Let’s face it, I’m not good on reporting restrictions practice. I imagine if I got the civil procedures rules out there may well be more in that but [I don’t have] time for me to go through that, [it] would be such that, in practice, we would simply be adjourning this hearing, and it would be for nothing. I admit reporting restrictions are not my normal thing.
Peter: […] Open justice – I would ask the court to adopt the least restrictive approach. [There is] an additional point about observing but not reporting. Obviously if we can observe and not report we are then able to make submissions about the reporting restriction to ask for it to be lifted. I have come across temporary ban on reporting – I think Open Justice Court of Protection has examples – so there are precedents.
Judge: OK let me tackle this now. This is a hearing about an individual who has particularly unusual characteristics. It’s a welfare hearing. In the large majority of these hearings as indicated by the relevant practice direction, the hearings will be under a TO which imposes some restrictions. Yesterday I had an email asking whether this hearing should be in private, and I readily admit that this isn’t something that I had given any great thought to. I may have done early on in the proceedings, I don’t remember. The norm is undoubtedly for there to be public hearings with a TO. I have heard submissions from advocates and brief submissions from three observers as well. I have to balance. I accept it might be possible to impose a reporting ban pending any further decision. I need to be careful here because the general principle is not transparency above all else, but transparency and rights of the protected party. I am told that at one stage there may have been criminal proceedings, and I am told today that might be otherwise, I haven’t seen a document [saying this is so]. The police giving indication doesn’t prevent that being reviewed. In those cases where another party has an interest, they can ask for a review. Criminal procedure is not my specialist area either. I would need some more information. The particular issue is that criminal proceedings are normally public and the press can publish whatever they like and potentially track back. If they do so and this is put together with the characteristics in the Court of Protection matter, it would not be challenging to put the [two together] and I can appreciate, knowing what I do about the protected party, that would be damaging. How am I going to deal with this? No party is going to be in a position to put submissions … We’ve used three-quarters of this hearing on just this issue. I would like more time – I want to study [more]. I believe that this hearing is to remain private. If required, then we can have another hearing to discuss just this issue … if we then have a decision that subsequent hearings should be public with a TO then the subject matter becomes public. The effect of that is not to deny transparency but to delay it, and I believe that is a proper way of doing it. Miss France-Hayhurst, Ms Whittington, is there any reason that what has happened TODAY should not be reported. [Judge’s emphasis]
Counsel for P: No
Counsel for LA: No
Judge: So, the observers are free to report, should they wish to, the outcome of this hearing so far today. I am going to ask you to leave unfortunately. If there is a further hearing then the three of you can be sent the link or it can be published on CourtServe.
Counsel for P: I would advise in the interim that if publication of what we have discussed today is permitted, this should be subject to a TO.
Judge: That makes sense. Miss Whittington and Miss France-Hayhurst, can I ask you to look at that and send it to the three parties. I am sure between us we can find out the email addresses. Whilst observers are free to report what’s happened, that may not be done until the TO has been received, and it will be subject to that TO.
Peter: We are now needing to make submissions without knowing the facts – how do we get round that?
Judge: You know there are specific characteristics and there may be criminal proceedings and I don’t think it’s [necessary?] for the particular characteristics to be known, for you to be aware that they are such that it would be easy to equate the two cases. I have ten minutes to deal with this hearing, so I have to deal with the hearing itself. I can’t let transparency completely scupper the hearing; it’s come close to it already. When you have the TO the three of you will be subject to it. Unfortunately, I am now going to have to ask you to leave.
The observers left at 10.50am
Reflections
We don’t doubt that this judge shares the broader judicial commitment to transparency in the Court of Protection, but in practice there are clearly problems.
The system is supposed to work by the judge making a decision at the outset of the case about how the hearings are to be listed, and – if they are to be in public – by simultaneously making a Transparency Order.
If there’s no Transparency Order, court staff routinely list cases as “private” – even when the judge has not considered the issue and has certainly not made any decision that a hearing should be held in private. If a judge has decided (or simply assumed) that a hearing will be in public, but hasn’t made a transparency order, the hearing will be listed as “private”.
Then (as seems to have happened here) when observers ask to attend, the judge thinks (despite the listing) that the hearing is probably public, but a situation can arise where at least one party is under the impression that a deliberate decision may have been made to list it as private. It sounds as though it’s appeared in the lists as a “private” hearing before (though we don’t have evidence of that).
The advocates were then bounced into having to make arguments on the fly, not having expected this to become an issue, and with the judge having (apparently) assumed it was likely to be a listing error rather than reflecting anyone’s view that the hearing should actually be held in private.
Since there is now (it seems, pending instruction from the ALR) an application to hold the case in private, Celia will be making an application to act as Intervenor to help the judge with considering how a Transparency Order can be made that balances P’s Article 8 privacy rights with the public’s Article 10 rights to freedom of information.
The messiness of this hearing could have been avoided, of course, if the basic principles of whether the hearing was to be private or public (and what reporting restrictions could enable a public rather than private hearing) had been considered at the outset of the case.
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 team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
Peter C. Bell is a law student at the Open University. He tweets @dolphinpcb
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