By Celia Kitzinger, 10 September 2023

Drawing on my experience with the Open Justice Court of Protection Project – and with some helpful input from other core team members – I submitted my views about open justice to the Ministry of Justice consultation, just before the deadline at 11.59 on 7th September 2023. I’ve reproduced what I sent below (with typos corrected- why do I only see those after pressing ‘send’?).

As I think is clear from the document itself, I’m slightly embarrassed about the very basic nature of my suggestions for “the way forward”. The twenty Key Performance Indicators (KPIs) I’ve developed to assess whether or not the Court of Protection is meeting the requirements of open justice seem to me to be entirely self-evident – as I expect they are for anyone who reads the document. It’s awkward to have to spell them out because obviously the Ministry of Justice must already know that open justice requires that the public is informed about hearings – including when and where they’re taking place, and what the hearing is about; that it must include making clear that we can observe a hearing and how (remotely or in person); that it’s necessary to tell us how to contact the court for information or to obtain a video-link for remote hearings. But those requirements (KPIs 1-5) often aren’t met – so until they are, it does actually seem necessary to keep mentioning them in any plan for “the way forward”. Equally, it’s really obvious that court staff should be able to tell us what courtroom a hearing is in (but in practice they often can’t) and that there shouldn’t be a big sign on the courtroom door saying “PRIVATE” when the hearing isn’t intended to be private (but in practice these signs are common) (KPIs 9 and 10). It’s also glaringly obvious that open justice is defeated if nobody replies, in a timely manner, to our emails requesting remote access (KPI 13): but that too is a daily experience. Since these are the daily barriers we confront in seeking to observe court hearings, that’s what I’ve written about.

The ‘categories’ of response (as organised by the main content headings) are as prescribed by the “Call for Evidence”. Questions were grouped together under these category headings. Under each category heading, I’ve often addressed the broader issue instead of, or in addition to, the specific questions posed – but where what I wanted to say was a direct response to one of the questions, I’ve reproduced the questions from the “Call for Evidence’, in red, as a subheading. (Note, I’ve used the question numbers as assigned in the “Call for Evidence”, so they are not numbered consecutively in this document.)

I look forward to seeing what evidence has been contributed by other people and to the outcome of the consultation.

**********

Open Justice – The Way Forward 

Response to Call for Evidence

 Celia Kitzinger, 7 September 2023

Index to contents

1. About the Open Justice Court of Protection Project
2. Questions on open justice
3. Listings
4. Accessing courts and tribunals
5. Remote observation and live-streaming
6. Public access to judgments
7. Access to court documents
8. Public legal education
9. Closing Summary

A. About the Open Justice Court of Protection Project

The Open Justice Court of Protection Project (OJCOP) is an unfunded voluntary project, independent of any public body, initially launched by Celia Kitzinger and Gillian Loomes-Quinn on 15th June 2020 with the aim of encouraging members of the public to observe Court of Protection (COP) hearings and to blog about them.  

As a direct consequence of our Project, thousands of people have observed COP hearings over the last 3 years and several hundred people have contributed blog posts reflecting on the experience. 

The Project does not seek to promote a particular perspective on the Court of Protection, but through its work aims to give people the information they need to access court hearings, to read about court hearings observed by others, and to form their own views (see our Project policy, available as a downloadable pdf from our “About the Project” webpage). 

The current Project team has five core members – none of us lawyers or journalists:

• Celia Kitzinger, retired academic
• Gill Loomes-Quinn, disability rights scholar-activist
• Claire Martin, NHS consultant clinical psychologist
• Daniel Clark, paid carer and politics PhD student
• Amanda Hill, PhD student

We are supported by an Advisory Group composed of two COP barristers (Victoria Butler-Cole KC and Ian Brownhill) and a COP solicitor (Kirsty Stuart). For more information see our “Meet the Team” webpage.  

The Project was launched as a direct response to the exigencies of the COVID-19 pandemic. With the first announcement of restrictions on contact, the (then) Vice President of the Court of Protection, Mr Justice Hayden, closed down access to the physical courtroom and directed that all COP hearings should be heard remotely unless there was a “genuine urgency” and it was “not possible to conduct a remote hearing”.   He also said that Practice Direction 4C (permitting the attendance of members of the public and journalists) was “unworkable at present” and disapplied it (“Remote Access to the Court of Protection Guidance”, 31st March 2020).  We saw the move to remote hearings as posing a direct threat to transparency and open justice in the Court of Protection.

Access to members of the public (and journalists) had previously been permitted by virtue of the Court of Protection’s own “Transparency Pilot”, initiated four years earlier, in 2016.  Having previously held almost all hearings in private (“serious medical treatment” hearings were a significant exception), the “Transparency Pilot” created a situation where hearings were, by default and unless otherwise directed, open to members of the public (and journalists).  We could observe hearings, and write about them, subject to reporting restrictions (known as “Transparency Orders”) – usually limited to anything identifying the vulnerable person at the centre of the case (commonly known as “P” for “protected party”) or their family, and where they live.  The Pilot was subsequently integrated into ordinary Court of Protection practice – with all hearings listed as “Public” by default. By the beginning of the COVID-19 pandemic, both Gillian Loomes-Quinn and I had observed dozens of Court of Protection hearings, and published material about them (including live-tweeting a Court of Protection hearing back in 2017).^[1]

The public nature of Court of Protection proceedings was effectively reversed at the beginning of the pandemic.  Although the (then) Vice President had stated that “In each case active consideration must be given as to whether any part of any remote hearing can facilitate the attendance of the public, if so Practice Direction 4C may be applied and the transparency order reissued” (§59 (“Remote Access to the Court of Protection Guidance”, 31st March 2020), there was very little evidence of any such consideration in practice.  All remote hearings were now listed as “Private”, albeit with a footnote stating that we could nonetheless apply to observe them via video-link or telephone conference call.  We quickly discovered that most such applications were unsuccessful. Either we were told that we couldn’t be sent the link because the hearing was “private”, or we simply got no response to our enquiries.  The threat to transparency was real and obvious.  

It did not occur to us to “ask permission” of anyone to create our Project and we chose not to apply for funding since we wanted to remain independent of any particular backers.  We simply came up with a Project name, created a social media presence for it and started to provide information about upcoming hearings via our website, our Twitter handle (@OpenJustice COP) and other social media. We also offered support, based on our own experience, to would-be observers seeking to navigate access. Those activities remain central to the Project.

From the outset, the uptake exceeded our expectations. Within the first two weeks after our website went live in June 2020, more than 70 people had contacted us for help with observing hearings and we’d published six blog posts by members of the public.  By the end of the first year, we’d published 139 blog posts with 97 different authors, and today it’s nearly 400 blog posts, written by around 200 different authors.  They’re written by social workers, best interests assessors, case managers, psychologists, nurses, doctors, midwives, medical ethicists, policy officers, academics, journalists, third-sector workers, law students, paralegals, lawyers, birth rights activists, a care worker, a speech and language therapist, a court interpreter, an intermediary, a police officer, school students wanting work experience in relation to medicine and law, and family members of potential or actual “P”s – and observers have watched remote hearings from Europe, Japan, and the USA (including this medical-ethicist blogger, Resolving End-of-Life Treatment Conflicts: Comparing the COP in England to Analogous Mechanisms in Ontario, California, and Texas). The Project has opened up public awareness of the Court of Protection as never before.

Today, despite the arguably ‘niche’ nature of our Project, we have nearly 6k followers on Twitter, and 233k unique visitors to our website from more than 150 countries. We’ve supported thousands of people to observe hearings – and I’ve personally observed more than 470 COP hearings in the Court of Protection since 1 May 2020 (most remote, around 15-20 in person).

The Court of Protection has been broadly positive about and supportive of our Project.  The former Vice President, Hayden J,  has said publicly that he is “very grateful” for the work that we do, and Poole J has said: “… the Open Justice Court of Protection Project is an important project that makes a significant contribution to transparency and public understanding of the workings of the Court of Protection” (§68, Re A [2022] EWCOP 44).

In responding to this Call for Evidence, I’ve answered those of your questions to which I feel I can best contribute – and my answers come directly from experience with the Open Justice Court of Protection Project, and are specific to it. Your questions are very broad and very ambitious.  By contrast, the evidence I’m sending you is rooted in my ordinary everyday experience of observation in the Court of Protection at a hands-on level over more than three years and we have rather modest proposals for improving open justice (see our 20 Key Performance Indicators). I suspect they may sound rather mundane and prosaic – even as though I am labouring the self-evident.  But what I have learnt over the last few years is that the high ideals and lofty principles of open justice depend upon – and can only be realised through – the ordinary, daily, taken-for-granted practices of the court.  “Fine words butter no parsnips”.  If I sound acerbic or frustrated at times, that is because I struggle, daily, to bridge the gap between the court’s stated commitment to transparency and its repetitive, predictable, seemingly intractable failures to achieve it.  I am impressed with the level of commitment and hard work shown by judges and lawyers at all levels of the Court of Protection – but it is glaringly apparent that they are working within a system that doesn’t support them adequately.  I agree with the view that “You have got to recognise the system is broken and needs to have proper financing’. Townend, J. and Prasad, A. (2023) Courts and Tribunals Access and Observation Workshop Report. Oxford: Sheila Kitzinger Programme, Green Templeton College, University of Oxford.  Better resourcing is fundamental to promoting open justice and transparency in the justice system.

B. Questions on open justice

1/. Please explain what you think the principle of open justice means.

The principle of open justice means that the public (not just journalists or designated categories of accredited observers) should be able to observe hearings; that we should be able to communicate about what we’ve seen and heard in court, our views about it, and our experience of the justice system; and the principle best translates into practice as a collaborative – not a confrontational – enterprise.  I expand on this below.

1.1 The public (not just journalists or designated categories of accredited observers) should be able to observe hearings

Open justice means that the public (not just journalists or designated categories of accredited observers) should be able to observe hearings. This is because there aren’t enough journalists covering court hearings, and because members of the public have both personal and professional investments in the Mental Capacity Act 2005 and in the Court of Protection, which journalists can’t be expected to address.  Despite the claim that journalists are “the eyes and ears of the public”,  there are, as evidenced below, significant differences between what journalists ‘see’, ‘hear’ and report about court hearings, and what members of the public ‘see’, ‘hear’ and report. Open justice requires that we have direct access to the court and are able to observe for ourselves the process whereby judges and lawyers are “doing justice” with our own eyes and our own ears.

Open justice is too important to delegate to journalists alone, for the following reasons.

(i) There aren’t enough journalists to cover all the hearings

There’s very rarely a journalist in court. The PA journalist Brian Farmer is the only member of the press who regularly attends COP hearings, and he virtually never attends hearings outside of the Royal Courts of Justice – which means that about 95% of COP hearings (held at First Avenue House or in regional courts across England and Wales) simply never have a journalist in attendance.  If the public couldn’t attend either, there’d be nobody watching and  ‘open justice’ would be simply an abstract ideal.

Unlike court journalists, the majority of the hearings I observe are hearings before district judges and circuit judges in regional courts.  These hearings are often perceived as ‘routine’ or ‘mundane’ in their content: they rarely raise issues of life and death or novel points of law.  But they do engage human rights principles (especially deprivation of liberty, and the right to private and family life) which are of fundamental importance to the people involved in them, and for all of us who might in future be “P” or members of P’s family in a Court of Protection hearing.  

And even in the Royal Courts of Justice we’ve covered really important hearings that have never been reported by the press: for example Mr Justice Hayden’s criticism of the  Royal Hospital for Neuro-disability in Putney, London for adopting an institutional “ethos” of care that appeared (in the hospital’s view) to trump the law, resulting in decision-making processes that were  “both poor practice and ethically misconceived.” (“’Burdensome and futile’ treatment and dignity compromised: Poor practice at a leading UK hospital”).

There’s often a belief that as long as the courts are open to journalists, that’s sufficient for open justice: they can act as the ‘eyes and ears of the public’.  But in practice, our experience is that the direction of information flow is often from us to journalists, rather than the other way around – with some journalists asking me to alert them to any “good cases” coming up in court. We’ve supported journalists by advising them of hearings, helping them to navigating the tricky business of access to the remote court, and explaining the way the reporting restrictions work.  It turns out, in many cases, that it is us members of the public (and not journalists) who have the relevant knowledge and expertise!

One of our stories (Secure Accommodation for Young People: “A well-known scandal”) was picked up by the Guardian national newspaper (Council paid £60k a week for ‘wholly unsuitable’ place for vulnerable girl, 27^th April 2022).  A story in The Times drew on my experience in the COP (Fair Trials at risk with online courts); and our publications about ‘secret’ (closed) hearings concerning covert medication resulted in an interview in Joshua Rozenberg’s Law in Action (“Secrecy in the Court of Protection?”, 27 October 2022, BBC Radio 4).

Dependence on journalists alone to report on Court of Protection matters would radically reduce coverage. 

(ii) Many members of the public have intense personal/ family interests in Court of Protection matters and it is of benefit to them – and to their appreciation of and ability to participate in the justice system – to be able to observe hearings.

We’ve been contacted by many people wanting to observe COP hearings in preparation for a forthcoming hearing of their own – as well as by people wanting us to observe their own upcoming hearings, in the belief that having observers present will mean that the judge is more likely behave “fairly”.  

We’ve published blog posts by family members about their loved one’s hearing (e.g. ‘Deprived of her liberty’: My experience of the court procedure for my mum; “An onlooker at someone else’s social event”: A mother’s experience of the court”) and a blog post to which P (the autistic man at the centre of the case) was supported by a family member to provide his own account of what the hearing was like (‘Vindicated!’ The experience of P in the Court of Protection).  

Watching (other people’s) hearings in preparation for an upcoming COP hearing can educate and reassure family members. 

 “… it was very useful for me as a litigant in person in my mother’s case, to see how a hearing proceeds and the efforts of the judge to be fair and even-handed with someone presenting their own case for a family member.” (Anna, daughter of a P in a s.21A case)

“The law enabled a person with a learning disability to access the same rights and healthcare as any other citizen. This gives me a huge sense of relief that my family member will be safe and listened to with these structures in place, and free to live the life he chooses.” (NB, Full time carer)

Watching (other people’s) hearings after a challenging personal encounter with the Court can also help people to figure out what might have gone wrong.

“Having acted as Court of Protection Deputy for my mother’s Property and Financial Affairs, and having been threatened by the Public Guardian with my removal (otherwise known as ‘discharge’), I decided to ask to observe this case…. Speaking from my own experience, I now realize that, when I started what seemed to be merely a bureaucratic exercise of the sort with which we are all familiar (tax matters, planning applications etc), I was in fact already in the foothills of fully fledged court proceedings that could seamlessly lead to actual court hearings. One thing I, and I believe the applicant here, did not understand is that you cannot simply inform the court that you want to desist with your application; you have to make a formal application to withdraw it. In my case, my application to withdraw was refused and I was at a complete loss as to why. I now realize that at least part of the reason might have concerned costs, as it did here.” (Georgina Baidoun, lay COP deputy for Finance for her mother)

There is no way that a journalist’s account of what happened in court could achieve the targeted personal effects described here. For people with personal/family involvements in the COP, there is no substitute for this direct, first-hand experience of observing the Court of Protection in action.  

(iii) Many members of the public work professionally with the Mental Capacity Act 2005. Direct observation of hearings improves their understanding of how the statute applies in action

“I have found the whole observation experience very beneficial.  The googling, looking up of legislation, reading up of quoted case law – both during and after the court attendance – has given me a crash course in legislation, that I now realise, I only thought I understood. Listening to a talk about how the Mental Capacity Act is implemented in the courts is one thing – actually observing it as it happens is very different!” (Louise Burrell, social worker)

“I think the most important learning for me from being able to observe this hearing, is the way it has again, allowed me to watch the Mental Capacity Act  2005 ‘in action’ and understand how a senior High Court Judge … works through the process of reaching a best interests decision. I’m also able to take away with me some ideas that I can incorporate into my own practice when completing best interests assessments myself in future.” (Astral Heaven, DOLS Manager)

“My overall experience at the hearing was incredible. It made me rethink how I viewed ethics and its involvement in medicine. Now I will embark on my medical career with a better understanding of what ‘best interests’ means in practice. Doctors, much like the judge and barristers I observed, have the responsibility to protect vulnerable people in society, and I learnt that prioritising their wishes, beliefs and values before your own opinion is the only way to ensure this protection.” (Eloise Crang, aspiring medical student)

“For my part, I left [the hearing] with a resolution to examine my own practice, and to consider deeply the motivations for the clinical decision-making forums (e.g. Multidisciplinary Team Meetings) I am part of that do not physically place the person or their family at their centre.” (Caroline Barry, Consultant in Palliative Care)

“As a consultant for Lasting Power of Attorney and an Advocate for Advance Care Planning, learning more about the Court of Protection work and processes is important to me. I have attended previous hearings and found the experiences invaluable… I left the hearing with greater confidence in how to navigate the system, but more importantly, with great respect for seeing compassion in action.” Clare Fuller (Speak for Me consultancy)

“As an experienced Best Interests Assessor… I find that both reading the reflective blogs and participating as an observer in the Court of Protection, is highly beneficial in terms of my continued professional development. … Observing this hearing has been of significance for me, aiding a deeper reflection on some of the pitfalls within proceedings that can impact on the outcomes for P, most notably around professional miscommunication and when choosing the right professional to assess capacity.” (Eleanor Tallon, Independent Best Interests Assessor)

“This experience has been incredibly useful in giving me insight into the court – not only as to how barristers and judges interact and advocate in the Court of Protection, but also in  displaying the practical implications associated with a lack of capacity under the Mental Capacity Act 2005.  To see how deeply decisions about mental capacity can impact a patient’s life and the decisions that are made on their behalf was just eye-opening. … It is a great opportunity to see how the provisions and materials we learn about in our studies really affect people in a court of law.” (George Palmer, law student)

For these members of the public, the hearings provided a direct and unmediated opportunity to see how the statute (the Mental Capacity Act 2005) is applied to individual cases, and the processes by which best interests decision-making is achieved.  It’s no overstatement to say that these observations have been in some cases transformative for health and social care professionals in developing legal literacy in ways that profoundly impact their daily practice. 

(iv) Journalists are not the “eyes and ears of the public”

On the rare occasions journalists do cover Court of Protection hearings, there’s often a marked divergence between the way members of the public report what happened and the press report of the same hearing. 

In part that’s because of the range of expertise that public observers bring to watching hearings. For example, one case that attracted a lot of media attention concerned whether it was in the best interests of William Verden, a teenager with a learning disability, autism and ADHD, to have a kidney transplant. Media reports (e.g. here) were short, pithy, factual, and aimed at a general readership.  But members of the public who observed the hearing and blogged about it did so from specific professional and personal viewpoints and presented sustained and in-depth examination of the issues involved: from the perspective of a medical ethicist and mother of an autistic child (Imogen Gould); as an academic researcher on kidney donation (Bonnie Venter); and as a trainee barrister focusing on advocacy in the court (Jordan Briggs).  

What journalists ‘see’ and report is organised with reference to whether it’s (in their terms) ‘a story’ or not.  Members of the public observe court hearings through a multiplicity of very different lenses.  Compare for example media reports of the case of the woman with agoraphobia ordered by the court to give birth in hospital with the blogs from our contributors, who include a woman with agoraphobia, a medical ethicist, and some midwives.  Each of them brings her or his own unique personal and professional experience to bear, and each of them speaks authoritatively to a specialist constituency in relation to whom they are able to engage with acknowledged expertise.  

A fundamental difference between press accounts and the blogs authored by members of the public is that while journalists, by and large, focus on communicating “the facts” and the story behind them, members of the public regularly provide commentary on the case they’ve observed, reflections on their experience of observing it, and make connections with their own personal and professional experience. 

Journalist Polly Rippon and I both watched and then wrote about the same hearing and we reflected together on some of the differences.  This was Polly Rippon’s story, as published in The Times.

At my invitation, Polly Rippon also blogged for us about her journalistic choices in constructing her story for The Times – and she and I discussed why it is so different from the approach I took as a retired academic psychologist. We compared her first sentence (“A judge will decide whether a woman with a learning disability and a £1 million fortune should be allowed to marry a convicted thief and fraudster who her daughter believes is after her money”) with the rather less gripping first sentence of my blog post: “This case before Mrs Justice Roberts (COP 13503831 heard on 6^th – 8^th July 2021) concerns coercive control and a planned predatory marriage (or civil partnership)”.  This led me to reflect on my own approach to reporting hearings from my perspective as a member of the public:

“I actively try to avoid foregrounding what might be considered ‘shocking’ or ‘exciting’ material in favour of a more educational, measured approach. My key aim in this blog post was to communicate what I’d learnt from the hearing about the law on controlling or coercive behaviour. My own background is in academic Psychology, so it’s not surprising that after this first sentence, I moved  quickly into giving a psychological account of controlling or coercive behaviour, including a link to an article in a counselling journal.  Mindful of the blog’s audience of lawyers and those concerned with the law, I then described the behaviour as an offence under s. 76 of the Serious Crime Act 2015 and quoted an extract from the Statutory Guidance Framework.  I provided all this background information up front, at the beginning of the blog, before addressing the specific issues in this particular case.  Comparing my account with the Times piece, I can see how far removed it is from a ‘human interest’ story!”

As I also reflected in relation to the ‘predatory marriage’ case, another absolutely key difference between journalists and bloggers is that the former focus overwhelmingly (with recent significant exceptions, such as the excellent “The Trial of Lucy Letby” podcasts) on the outcome rather than the process of the hearing. 

“In writing for the Project, I want to communicate the process by which justice is done – not just the outcome.  So, the details of the questions asked and the answers given – and the way those answers are phrased – can really matter.  This is what we get  from observing a hearing, as opposed to simply reading the judgment afterwards.  In the blog post about this case there were lots of places where I quoted as close to verbatim as I could (given that we’re not allowed to audio-record) because I felt the exchanges in court revealed aspects of the case, and the participants’ perspectives on what was going on, in particularly vivid ways.  Compare, for example, the Times summary statement that the man “said that he was the victim of a conspiracy by his previous victims” (which is an accurate and succinct summary of the facts) with the more detailed account in the blog, which includes my own personal reflections on this.

“He denied allegations of wrong-doing in relation to other women – including those contacted by BU’s daughter, saying that this was “a collective accusation and a false accusation”.

Patel:  Are you saying that all these complaints were coordinated and there was a sort of conspiracy to get you?

NC:      Oh God, yes.

Patel:  Oh, you are?

NC:      Yes.

He projected (from my perspective) an impression of someone who felt aggrieved and misunderstood – a victim of conspiracy.  It was hard to know whether or not he actually believes this.”

from “Predatory marriage and coercive control: A hearing before Roberts J” by Celia Kitzinger

Because of the focus on the court process (as opposed to simply outcome), blog posts by members of the public also tend to be massively more detailed, describing the moment-by-moment unfolding of the hearing, and including (so far as possible given that we’re not allowed to audio-record hearings) verbatim dialogue. Compare, for example, this journalistic take on a hearing from March 2023 (“Judge overseeing treatment dispute raises concern about lack of legal aid”) with a PhD student’s detailed description of the same hearing (“Treatment escalation for a teenager in ICU”).

In sum, as members of the public, we have our own eyes and our own ears.  Journalists and members of the public sometimes ‘see’ and ‘hear’ very different things when they attend the same hearing – and write very different kinds of reports of it.

1.2. Open justice means that we should be able to communicate about what we’ve seen and heard in court, our views about it, and our experience of the justice system.

Our blog posts attract a specialised readership – mostly health and social care professionals working within the remit of the Mental Capacity Act 2005, but also lawyers (including ‘aspiring’ lawyers, students, pupils, and paralegals) and a smaller but significant proportion of family members of ‘vulnerable’ people, many of whom have personal experience of the Court of Protection.  

Many more people read our blog posts than will ever be able to make the time (or develop the courage) to observe a Court of Protection hearing. For many, we – rather than  journalists – act as their “eyes and ears” because we observe and write, in detail, from identifiable perspectives, in ways that resonate with their own experience.  For example: 

“Excellent commentary on a nightmare of a case…. One of the most challenging things about my job (speech therapist) is when there is a chasm between families and clinicians and their interpretation of ambiguous/non-purposeful responses. It is often very difficult to know how much to walk families along the path of realisation and the clinical context matters enormously…. With the impossible time pressure on clinicians, this is sometimes just impossible. I’ll be the first to admit I don’t always get it right. …. Thank you so much for these reports from the Court of Protection. They are of enormous benefit to a wide range of readers. They certainly make me reflect on the privilege and pain of accompanying those who experience these heart-breaking traumas.” (Tom Richards, Speech and Language Therapist)

“Would you please pass on my grateful thanks to “Anna” for taking the time to tell her story of her journey through the awful DOLS procedure. My friend discovered your website and passed on the link to me as I am going through the very same situation at the moment with my mother. I could not believe the similarities – it was almost the mirror of my situation! All of the professionals I had meetings with just dropped in random sentences such as ” it may go to the high court”,  ” it will take months to resolve” . No one sat down with me and explained the whole thing ….   I learned more from ten minutes reading Anna’s story than I did from any meeting with any of the professionals … I hope other people will find your website and read this story in future. It should be part of the Adult social care training programme , and I will be suggesting this when I contact my mother’s social work team.” (e-mail from Family member of P, quoted with permission)

This kind of engagement embodies the principle of open justice that underpins our Project. 

There are restrictions on what we are allowed to write – most relevantly, for our purposes, the reporting restrictions imposed by the court in the (somewhat Orwellian-named) “Transparency Order”.  

1.3 Open justice is a collaborative enterprise.

Having started out with the assumption that we would be doing “fly on the wall” observation, and with some concern about how the judiciary (in particular) would view our presence in court, I have learnt that open justice works best as a collaborative process. It changes the way that justice is done: first just through our presence, as lawyers and judges accommodate to having observers in court; second through our active engagement with the processes whereby justice is done.  

(i) Simply observing changes how justice is done 

Public observers in the Court of Protection have become much more common in the three years since our Project began. “Before Covid, I’d never had a public observer in court,” one barrister told me, “but now I’ve learnt to expect it.  There were 12 observers in one of my hearings in December”.

What we’ve learnt from barristers is that being observed changes how justice is done in the following ways. (Quoted material in this section comes from a small survey reported in our blog post, “How being watched changes how justice is done: ‘Insider’ Perspectives”)

First, counsel now regularly opening cases with introductory summaries for observers – often at the prompting of the judge who asks them to do so “for the observers”.  This is generally seen as a positive: “It’s good practice to have to think ‘how can I summarise this case in 2 minutes’ at the outset. I think it helps to do that in most cases anyway, but a public observer’s presence means we are more likely to have thought about it first. It aids the judge’s understanding and just as importantly the understanding of non-lawyer participants/litigants.” (Barrister)

Second, when observers are present lawyers are more likely to clarify and highlight key legal concepts and to avoid acronyms, jargon and initialisation. “There’s a few bad habits that have been corrected: […] we’re thinking about how we communicate and tend to explain the ratio of authorities, or what obscure pieces of legislation mean….”  (Ian Brownhill, barrister); “That drive to ‘clarity’ goes for lawyers and (as I perceive it) judges too, who are more likely to explain what they are doing in straightforward terms” (Barrister). One barrister is especially positive about the effect of observers in ensuring that fundamental legal principles come to the fore and as a result are “more rigorously and consistently applied”:  “There has been real enthusiasm for public observers in the Court of Protection. It has been seen as a real opportunity to counter the perception of it as a secret court. As a result, we have been taking the time to expressly set out the first principles and legal principles which should govern everything the Court does. This exercise, which was prompted by a desire to make the proceedings accessible and easier to follow has actually meant that as the principles are pushed to the forefront of everybody’s mind, they are more rigorously and consistently applied.” (Josh Hitchens, barrister)

Third, we’re told that blogs by observers create an opportunity for self-reflective learning “We reflect on our advocacy by reading the blogs!” (Ian Brownhill, barrister). “I have actually found the blogs produced by observers to be really interesting and useful.” (Barrister). “Reading the blogs is entertaining – a little bit like the review following opening night. It keeps everybody on their toes” (John McKendrick KC).

Fourth, there seems to be some agreement that having observers in court means that lawyers, and the judge, are “on best behaviour”:  “It absolutely changes things – practitioners and judges are less sloppy I think, and take the time to properly set out the facts, the law and judgments when they might otherwise refer to things in a more shorthand way.  This, I think, is a good thing since it means that anyone participating or watching (often family or even P themselves) can actually follow what is going on far better.  It means we are all on ‘best behaviour’ essentially!” (Barrister); “I think observers make the barristers try harder in a hearing – like in a driving test. You never drive like that normally. They are more aware of what they are supposed to do in court” (Solicitor). Eight barristers (independently of one another) told me that having observers present improves judicial behaviour – in particular via what was characterised by one of them as “improved civility in court”.  They referred to “rudeness” from judges who were “hostile” to or “impatient” with their oral submissions in court, or “dismissive” of P and P’s family members.   One barrister emphasised that that Court of Protection judges are “very good – from DJs up to HCJs. They are serious about the role they are performing and appear to enjoy the work” but added that being observed “acts as a brake on some of their more obstreperous characteristics”. One commented that judges behave better in front of observers, knowing that the public would be “horrified” at their customary level of disrespect (e.g. expressing the view that some hearings are “a waste of time”).  Some family members also believe that having observers in court leads to better behaviour by the judge, and that the judge was “fairer” to them because observers were there: “ [Observer’s] presence was valuable – the judge was quite snappy and aggressive with me before he arrived; and was clearly in fast-forward mode. That changed.” (Litigant in Person)

(ii) We actively engage with the justice system

The role of our Project is to support the oft-stated judicial aspiration for greater transparency in the Court of Protection, and to the extent that we may be seen as challenging the court, we try to frame our engagement as that of  ‘critical friends’.

Our engagement activities include:

• attending  Court of Protection User Group meetings (there are around three each year for each of the eight regional groups), so that we can raise issues of transparency directly with judges and lawyers
• liaising with a nominated Deputy Service Manager in HMCTS, who has taken on responsibility for trying to improve listings – we alert her to errors and she contacts the teams that are getting it incorrect to target and support them
• giving invited talks about transparency matters to lawyers and judges (e.g. Park Square Barristers in Leeds, 19 January 2023; CPBA Annual Conference, 39 Essex Chambers, 13 July 2022; Court of Protection Practitioners’ Association Annual National Conference, Principality Stadium, Cardiff, 24November 2022; Inner Temple Advocacy Weekend, 29-30 January 2022).
• Inviting lawyers to write ‘explainer’ blog posts supporting public understanding of legal matters (e.g. blogs by Aswini Weereratne KC; Ian Brownhill; Kirsty Stuart)
• mentoring law students and aspiring barristers by supporting them to observe and blog about hearings and thereby (hopefully) creating a new generation of legal professionals for whom transparency is an established norm. 
• We’ve twice made lengthy and detailed submissions to the Court of Protection Rules Committee – on Transparency Orders (outcome pending) and on closed hearings.
• We quite frequently intervene in hearings to ask for variations to the Transparency Order. For a recent example, see Varying reporting restrictions to name Kent County Council in “shocking” delay case^[2]. This is really important, since there are rarely journalists present in these hearings to address Art 10 matters.

None of this was what we’d envisaged in setting up the Project just over three years ago.  It has emerged organically, and in partnership with the court as part of its commitment to transparency.

3/. What is your view on how open and transparent the justice system currently is?

Our Project sounds like a success story for open justice – and in many ways it is. But I want to make visible the hard work it takes to make this happen, the multiple barriers to transparency we have to overcome day after day, and the slow pace of change. It shouldn’t be this difficult.

Transparency in the Court of Protection works (when it works – and it often doesn’t) because of the hard work and dedication of individual judges, lawyers, court staff and members of the public – all of us battling against a system which seems set up to obstruct us.  

Here’s how it’s supposed to work.

The fantasy version of access to remote hearings in the Court of Protection

A member of the public looks in the “Court of Protection” section on Courtel/CourtServe for a hearing to observe. 

The listing provides essential basic information including: 

• whether hearings are public or private
• what hearings are about
• what the attendance options are (in person/remote)
• the type of hearing (e.g. directions, case management, final)
• contact information (to confirm the hearing is going ahead and/or request remote access)

She picks a hearing to observe – say, a challenge to a deprivation of liberty (because that’s what her mum’s case is about), in the Midlands (because that’s her Mum’s area), at 11am the next day (when she’s free), and she chooses one that says it’s being held via cloud video platform (as she lives a long way away).  She sends off an email to the contact address given and receives a reply with the link and a Transparency Order attached well in advance of the start of the hearing, and logs into the hearing without problems.

But that’s not how it actually works in practice.

The reality

Very few members of the public find Courtel/Courtserve an accessible or user-friendly resource.  Almost all observers rely on our Project’s version of the listings: without our version, their observation simply wouldn’t get off the ground.

But our version of the listing depends on us being able to decode – or make informed guesses – about the hearings.  Quite a lot of hearings are listed as “private” when we don’t think they are. Many don’t say what the hearings are about, and unless we’ve observed earlier hearings in the same case, we have no way of knowing.  Some don’t say whether the hearings are in person, remote or hybrid (and the initialisation “CVP” doesn’t mean anything to most members of the public, so we have to spell that out).  

We provide a “template email” on our home page for people to use when requesting access to remote hearings because we discovered that without it, members of the public were not providing sufficient information (e.g. the case number and the name of the judge) for court staff to respond to their requests.   Emails saying “can I observe the hearing at 11am tomorrow please” do not meet with success and are frustrating for everyone.  

Nonetheless, a large number of people who’ve made well-formed requests to observe hearings get no reply. I know this because we suggest that emails are copied to us so that we can provide support with access, if necessary.  And it often is necessary – and still sometimes there is no response (or the response comes too late to observe the hearing).   My own experience is that I get no reply – no reply at all!– to about one in every six requests to observe hearings, even after sending repeated emails, and phoning the court. (Usually nobody answers the phone.) I’m knowledgeable and persistent: for most would-be observers the failure-to-respond rate is much higher.

The problem seems to be that the listings instruct the would-be observer to email the regional hub – so Birmingham for a hearing in Worcester, or Bristol for a hearing in Truro, or Cardiff for a hearing in Caernarfon.  Court staff at the hub then have to forward the email to the regional court.  Court staff at the regional court then pass it on to the judge in the regional court whose hearing it is (often, they say, for “permission” for the observer to attend – although in fact no “permission” is required for public hearings).  They then wait for the judge to get back to them, and the whole process happens again in reverse: regional court staff send email to hub and hub replies to would-be observer.  This is a cumbersome and time-consuming process. It places burdensome and unnecessary pressure on court staff – and I am told that they are already overworked and under-resourced (and also that there is rapid staff turnover, resulting in frequent unmet training needs). It is setting everyone up to fail.  Surely HMCTS can devise a better system?

If an observer is lucky enough to receive the link in time for the hearing, there’s still a good chance that the hearing will be vacated – about 1 in 3 of all COP hearings are (and most observers don’t know what “vacated” means so we’ve had to explain that too). It’s more likely than not that she won’t have received a Transparency Order (in fact, it’s more likely than not that she will never receive a Transparency Order) – and there’s also a real risk that the cloud video system won’t work well enough for her to either see or hear what’s going on.  We do provide would-be observers with a link to the gov.uk information about how to use CVP but sometimes that’s not enough. I once watched – and then blogged about – a two-and-a-half hour hearing with no sound (“The silent courtroom: A remote hearing without sound – and why transparency matters”).

Workarounds

To the extent that transparency “works” in the Court of Protection, it relies on a range of  pragmatic “workarounds” that enable us to bypass systemic pressure points, limitations and fractures in the system. Although we continue to lobby HMCTS to get the system working better, we’re increasingly figuring out ways around the system.  And by “we”, I mean all of us – observers, court staff, lawyers and judges.  Here are some of our workarounds.

• Since lists are obscure and incomprehensible to most members of the public, the Open Justice Court of Protection Project runs our own listing service on social media, where we translate “s.21A”, “CVP”, etc into intelligible prose and also select out some “Featured Hearings” which we think are likely to be accessible/of interest to observers.
• Knowing that hearings are often not in the COP list on Courtel/CourtServe (the only public listing service for county courts), we also spot-check the Daily Cause Lists across England and Wales for ‘missing’ hearings. A systematic check of Daily Cause Lists for incorrectly listed COP hearings takes about 2 hours and often adds a third as many hearings again – but we only do this occasionally due to time constraints. (Things have improved – a systematic check in 2020 doubled the number of CoP hearings!)
• Some Tier 3 judges know (because we’ve complained in the past) that if they leave the RCJ and hear cases in regional courts, there’s very likely to be a listing problem (often their hearings don’t appear at all, anywhere) – so when they have hearings in the regional courts, they ask their clerks to alert me.
• When hearings are listed as “private”,  we know that this is most likely to be because someone filled in List Assist instead of the COP template, and that the hearing is actually public, not private. I sometimes make a special effort to attend “private” hearings to check this out – and I’m almost always correct. On the Open Justice Court of Protection Project listings we either omit the word “private” or say that although it’s listed as private, we doubt that it is. 
• Because so many emails to the regional hub contact address provided in the lists get no reply, I often contact the judge’s clerk for the link, or one of the barristers if I know who’s involved in the hearing.
• Knowing how frequently there’s no reply to my requests for links for remote hearings, some court staff and a couple of lawyers simply send me the links to hearings without waiting for me to ask for them. This reduces stress on everyone!
• Because there’s no information at all on the RCJ website as to what hearings are about, lawyers involved in cases they think the public will be interested in regularly alert me themselves.  (That’s true of some cases in the regional courts as well, although at least there is some, minimalist, information available there.)
• There’s no way of knowing when cases I have been following are back in court – no search facility that enables me to search on the case number, and no way of setting an automated ‘alert’ using the case number to inform me that a case is being heard again (including the possibility that it’s being heard in the Court of Appeal, or before a different judge, or has been removed from the Tier 3 list and returned to a regional court).  So, when I’m following cases with multiple hearings over time (several of the cases I’ve observed have continued for years with 5-10 hearings), I often have to rely on lawyers to let me know, via a personal email, that the case is back in court.
• A judge regularly gives me permission to circulate the link to his hearings directly to other observers – because otherwise I have to negotiate emails from members of the public complaining of lack of access, which I have been in the habit of forwarding to his clerk so she can send the link to them.
• Several judges send me links (unrequested) to out-of-hours or urgent hearings that have not made it onto the published lists.
• Several judges have, on more than one occasion, delayed the start of a hearing so that observers can be there from the beginning– knowing full well that it’s likely to be a tardiness not of our own making.
• We know some judges who have set up personal MS Teams systems in their own courtrooms so as to avoid having to use cloud video platform, and to provide the best experience for remote access (which is often how P and their family access the court as well as observers).  At least one RCJ judge has delayed the start of a hearing and moved courtrooms to enable an observer (and only an observer) to attend a hearing remotely. 
• Journalists who have access to information not made available to the public (e.g. via the alerts service) sometimes let me know via a personal email.

My conclusion is that “the justice system” is not at all open and transparent: it’s a system that seems designed to frustrate the judicial aspiration for transparency. It’s not fit for purpose.

The transparency we have achieved via the Open Justice Court of Protection Project is the outcome of the collective commitment of judges, lawyers, court staff and members of the public (plus journalist Brian Farmer) who’ve dedicated their time, knowledge and skill to making it happen – because some of us really believe that transparency is fundamental to justice in a democratic society.  It would be good if “the justice system” could support that.

4/. How can we best continue to engage with the public and experts on the development and operation of open justice policy following the conclusion of this call for evidence?

Please engage with the Courts and Tribunals Observers’ Network (of which I am a part). It brings together a range of stakeholders with expertise across different courts and tribunals and we are actively seeking to inform the Government and Judiciary and other relevant bodies about access problems in the justice system and to help develop better policies and law. 

C. Listings

Listings are currently desperately inadequate – although I have been forced to recognise (in conversation with observers in other courts) that the Court of Protection may be better than most. It’s extraordinary to me that the Court of Protection – a court with “transparency” as a central philosophical principle – produces court listings entirely unsuited to delivering on its stated objectives.  

I’ve been writing publicly about problems with the court listings since August 2020 – and tweeting about particular instances, expressing my concern in talks before lawyers and judges, and sending written complaints to relevant persons and organisations.  There have been some improvements, but the pace of change is glacial.

Here’s one from the Courtel/CourtServe list today that gets it right and I’m displaying it first of all because it shows that it’s possible to list hearings in a way that the public find accessible and covers all the relevant information.  This hearing is about “Appointment of an Interim Deputy” – something members of the public who are family members of vulnerable people are often concerned about, especially if they want to be Deputy themselves or have been removed from acting as a Deputy. It’s important for people to see that they can watch a hearing about this issue.  It’s clear that the hearing can be watched remotely, that it lasts an hour, and the contact information is correct.  It doesn’t look that complicated to me – so I don’t really understand why so many listings get it wrong. 

Here are some of the most egregious problems.

1. Failure to list hearings in Courtel/CourtServe (or any other public online list)

If we don’t know that a hearing is happening then it is effectively taking place in secret.  Obviously, I can’t know how many hearings are happening in secret without ever being publicly listed – but I do know of some.  I’m not referring here to urgent or emergency out-of-hours hearings – I know it’s inevitable that those can’t make the listings – but to hearings that everyone involved in them knows are happening weeks or months in advance. Here’s one recent example. 

It was a hearing I particularly wanted to observe concerning a young woman with autism, mental health issues and some physical health problems who was ready for discharge from hospital but was refusing to return to the bungalow where she’d been placed previously and been desperately unhappy, leading to several episodes of self-harm.  There were questions about her capacity to make her own decision about where to live and about her best interests. The case was heard on appeal by Mr Justice Peel (Wilshire County Council v RB & Ors [2023] EWCOP 26) who says in that judgment that the case would be re-heard, the appeal having been allowed, by HHJ Robertshaw on 27 June 2023 for three days. 

 My subsequent letter to Mr Justice Peel (see below) describes what happened next.  

The depressing reality is that I wasn’t even particularly surprised.  There’s a recurrent problem with hearings simply not appearing on any listing accessible to the public – not on Courtel/CourtServe’s COP list, not on the Daily Cause list for the relevant court, and not on the RCJ or First Avenue House lists.  

The correspondence below provides another example: a hearing in Northampton before a Tier 3 judge (Lieven J) never appeared on a public list – as I explained to my HMCTS contact.  (My suggested solution has not been implemented).  Hearings before Tier 3 judges on circuit are regularly omitted from the listings: I’ve described other cases in my blog posts including “A ‘secret’ hearing on life-sustaining treatment” before Hayden J in Newcastle.

Dear Jess

I was told by someone involved in the case that there was a hearing before Lieven J today at 10.30am, and I wanted to observe it.

The hearing was not listed on the Royal Courts of Justice Daily Cause list.

I checked with the person where the hearing was happening and was told Northampton.

I looked in Courtel/CourtServe.  There was nothing in the COP list for Northampton.

I went to the Northampton Daily Cause list in Courtel/CourtServe and found two hearings before Lieven J but they were listed for 12noon and 2pm and the case numbers lead me to believe that they were not COP hearings.

Finally, I wrote to Northampton County Court asking whether they were able to help me, and I copied in Lieven J’s clerk, Sarah McMohan.  Most members of the public would not, of course, know who Lieven J’s clerk is, or have the chutzpah to bother her.

I have not received a response from Northampton County Court, but Sarah McMohan replied promptly with a link to the hearing, and I was able to watch it. So this had a happy ending.

But yet again a hearing before a Tier 3 judge has taken place without ever appearing on a public court list.  This is a recurrent and apparently intractable problem which I have documented many times before.  Is there anything that HMCTS can do about it?  

In my view ,the best solution would be to continue the doomed attempt to get these hearings listed in the regional courts but, recognising that this often doesn’t happen, to also list them on the RCJ Family list where these judges’ hearings normally appear, and where those of us who regularly observe hearings know to look for them.  A note could be added to say that they are not actually happening in (or from) the RCJ or the actual location could be given in place of the RCJ Court number.  

In this case, since it was an MS-Teams hearing anyway, the fact that the judge was conducting it from Northampton rather than London was irrelevant except for the fact that it led to a listing failure.

When I report these listing failures, I am usually told that there is a “training need” and that someone will send a memo round.  Then it happens again.  If you have ideas about how to fix this, that would be wonderful.

Best wishes

Celia

When I learn about a hearing from a source other than the listings (from a published judgment as with the hearing before HHJ Robertshaw, from a barrister as in the hearings before Lieven J and Hayden J; or from family members), I always look for it in Courtel/CourtServe.  About 50% of the time, I can’t find it – not in the COP list, and not in the Daily Cause list.  It’s a “secret” hearing, and I’m only able to watch it because I have “inside” information.  This does not support the judicial commitment for transparency.

Hearings are also frequently listed in CourtServe in the wrong place – not in the COP list which is where they’re supposed to be, but in the Daily Cause list for the individual court (and often under a sub-list for a particular judge) – making them challenging to locate.   Every so often I go systematically through all the Daily Cause hearings listed for a particular date looking for COP hearings that should be in the COP list instead or as well as the Daily Cause List: the percentage of COP hearings that don’t appear in the COP list has fluctuated between about a quarter and about a half ever since I’ve been doing this. 

Here’s an example from last year that I incorporated into a talk for lawyers and subsequently tweeted.  A hearing (which actually I did manage to observe and blog about) before DJ Birk in Leicester did not appear in the COP list.  I found it (as the slide says) in the Leicester Daily Cause list, under a sub-list labelled “Daily DJs”.  Additionally: it says it’s PRIVATE – which turned out to be wrong – and it doesn’t say what it’s about : “MATTERS IN PRIVATE” is about as opaque as it’s possible to be.  In fact, it turned out to be really interesting for me to observe: see  “When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing”).

2.  Hearings are regularly and erroneously labelled “PRIVATE”  or ‘NOT OPEN TO THE PUBLIC” 

Almost all COP hearings are supposed to be listed as “Public”.  That’s the default, except for two categories of hearings: “Dispute Resolution Hearings” (DRH) and “closed” hearings, both of which are always held in private. It’s open to judges to hold other COP hearings in private – or to exclude the public from part of a hearing that is otherwise in public – and this happens occasionally, but rarely.

On that basis, it should – surely! – be straightforward for HMCTS court staff to list COP hearings as “Public” because 95% or more of them actually are “Public”. But (as already illustrated in the slide above) they don’t.  I struggle to understand why there is a repeated and seemingly intractable problem with this.

Here’s a recent example.

4 September 2023

to COP.Manchester

Dear DJ Gray

I’m writing in my capacity as co-director of the Open Justice Court of Protection Project.  We support the judicial aspiration for transparency in the COP by encouraging members of the public to observe hearings.

Looking at the hearings listed in Courtel/CourtServe for tomorrow (see photograph below), I notice that all three of the hearings before you are marked as “NOT OPEN TO THE PUBLIC”.  It’s very unusual for COP hearings not to be held in public. Is this actually correct?  We have not alerted the public to your hearings in case you are planning to hold them in private, but we are surprised to see this, as there is no indication that they are Dispute Resolution Hearings.

I notice also that none of them includes case descriptors (i.e. indication of the issues before the court).  This is also unhelpful for transparency purposes.

I wonder if you can offer me any help in understanding how your hearings have come to be listed like this. 

Thank you for your support of open justice.

Celia

CourtServe listing

In response, the Team Leader from the Court of Protection in Manchester thanked me for bringing the matter to his attention and said: “The points you raise have identified a training need for one of my colleagues …  who is new to the role of usher and has recently taken on the responsibility for producing the daily lists…” (email 5^th September 2023) 

As I said earlier, most of my observations about listing problems are responded to with reference to a “training need” – but the same problems recur over and over again.

3.  There’s no information as to what hearings are about 

There was a clear official statement, when the Court of Protection Transparency Pilot was launched more than seven years ago now (on 29^th January 2016) that descriptors of the issues before the court would be made publicly available in listings.  According to the “Pilot Background Note”: “Policy officials will also work with Her Majesty’s Courts and Tribunals Service to amend the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media to make an informed decision on whether to attend the hearing” (Available at https://www.judiciary.uk/wp-content/uploads/2015/11/cop_transparency_pilot_background_note_19.11.15.pdf, downloaded 6 September 2023).

Nearly eighteen months later, this still hadn’t been achieved, and the judiciary seemed unsure about how to go about implementing it. The (then) Vice President of the Court of Protection, Mr Justice Charles, said: “It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed.  As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard…” (Charles J, The Transparency Pilot, 20^th June 2017)

It’s still the case that many (sometimes most) listed hearings don’t have any indication of what the hearing is about. None of those posted on the Royal Courts of Justice website ever does – and it’s enormously frustrating for members of the public who have special interests in observing hearings on particular issues. Some indication of their content (‘treatment withdrawal”, “caesarean”, “coercive and controlling behaviour”) would be much more likely to induce observers to attend.  (So, too, would be some indication of their likely duration.)

There is a set of “descriptors” provided for use in listing cases in the regional courts and in First Avenue House.  First Avenue House routinely provides this information (e.g. in FAH list of 6 September 2023, “Whether the applicants should be appointed as deputies for property and affairs’;  “(a) Where ESZ should live (b) Authorising a DoL in connection with care and residence (c) Contact with specified persons”; “(a) Assessments of capacity and need for care and support (b) Access to KB in order to carry out such assessments”).  This information is should be, but is not, systematically supplied in the regional courts listings – albeit that this is something that’s been improving (slowly) over the last three years.  Information remains minimal – and is often likely to be inaccessible to ordinary members of the public  (e.g. s.21A, s.16, DOL, LPA). A few summarising sentences would, of course, be excellent but is almost certainly beyond the resources of the court.  

The Project has created some (very modest) “Key Performance Indicators” against which to assess the performance of the Court of Protection in relation to transparency in listing. The most recent assessment is as follows:

KPI 1.  List the hearing in the COP list on Courtel/CourtServe   POOR  (more than a third of COP hearings did not appear in the COP list on CourtServe on the date of assessment)

KPI 2. Make it clear the public can attend – POOR  (fewer than a half of hearings said they were PUBLIC)

KPI 3. Tell us how we can observe (i.e. remotely/in person) – VERY GOOD  (a pleasing improvement on this KPI – almost all of listings provide this information)

KPI 4. Supply correct contact information  – FAIR (nearly 1/5 hearings provided contact details for the court where the hearing was taking place, rather than the regional hub)

KPI 5. Tell us what the hearing is about – FAIR  (around half of the listed hearings provide some indication of the issues before the court – another pleasing improvement) 

Many people who contact the Open Justice Court of Protection Project believe that the court is deliberately obstructive of open justice.  I understand why it can feel like that.  It takes an effort of imagination to realise that problems of transparency are caused not by deliberate intent, but because of systemic failings in the necessary infrastructure needed to support open justice. Open justice fails despite the judicial commitment to it. I don’t  really believe that the lists are deliberately designed to discourage us from observing hearings.  It’s just that – very often – they have that effect.  It’s glaringly apparent that the listing system wasn’t set up in an outward-facing user-friendly way for members of the public.  It needs a thorough overhaul.

Finally, two listing issues, in particular, that have arisen this year in connection with our work relate to (1) ‘closed hearings’ and (2) committal hearings.  

In relation to ‘closed hearings’, we were dismayed to discover that we’d misreported the facts of a case due to the judge having decided to run secret ‘closed’ hearings (without P’s mother and without us) in parallel with the hearings in open court which we’d attended and reported on.  We didn’t know about the decisions made in the secret hearings (the intention was to conceal this information from P’s mother) and the observers felt we had been misled by the court, making (as we said) a mockery of open justice. We wrote a blog about this here: Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post and publicised the threat this poses to transparency on the Radio 4 programme Law in Action (“Secrecy in the Court of Protection”).  We subsequently made a submission to the subgroup of the Rules Committee set up to advise the (then) Vice President about how closed hearings should be dealt with in future.  This led to  New Guidance on Closed Hearings from the Vice President of the Court of Protection. Since then, we have seen “closed” hearings listed on the RCJ site – so although we still don’t know which case they concern, or what they’re about, and although we still can’t observe them, at least the court is providing public notification of the fact that closed hearings are happening. We don’t think any of this would have come to light without our Project, and we’re proud to be able to highlight a concrete achievement in ensuring better transparency in the future.

In relation to committal hearings, it’s only this year that we’ve had the opportunity for the first time to observe and report on hearings at which judges consider whether someone (usually a family member) should be sent to prison for breaching court orders – for example, for publishing material on social media identifying P when there’s an order that they must not do so, with a penal notice attached. This year we reported on one such hearing in A committal hearing to send P’s mother to prison – and the challenges of an in-person hearing.  This is an ongoing case: P’s mother recently lost an appeal against her suspended custodial sentence. One reason why we’ve not observed these committal hearings previously is because they have not been correctly listed. There is a Practice Direction (Committal for Contempt of Court – Open Court) which says that says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3), and that these hearings should normally be publicly listed with the information that an application is being made to commit someone to prison, and the full names of that person and the person/organisation seeking committal (§5.2). In fact, it seems that some committal hearings – in both the Court of Protection and in the Family Court – have been listed as private, and/or the fact that they’re committal hearing is not included in the list, and/or the names of the applicant and alleged contemnor are not published (see Committal hearings and open justice in the Court of Protection)).  Here’s one recent example which is in breach of the Practice Direction because it doesn’t name the applicant or the person alleged to be in contempt.  

On request, I was subsequently provided with a name, but no information about the alleged offence or the outcome of the hearing. I was told that the judgment would be published on the judiciary.uk website. I have not been able to find it there, despite checking regularly having since the end of June 2023). Some weeks ago, I asked the court to help me locate it, and was told “we are awaiting the directions”. I don’t know what that means.  I suspect that someone whose name has not been made public has been given a prison sentence in secret and that there is no public record of this.  This is not open justice. I find this very troubling. It reinforces, and provides concrete evidence of, exactly the notion that Mostyn has said he hopes to dispel – “the idea, which continues to be peddled by certain sections of the press, that the Court of Protection is a secret, sinister court which dispenses justice behind closed doors.” (Mr Justice Mostyn “Judge defends Court of Protection as not a “sinister secret court“, Today’s Wills and probate)

KPI 6. If the court is going to hold hearings with the deliberate intention of excluding one party (usually a family member), there needs to be some public accountability for this so that we at least know that it is happening, how often, and why.  Listing the hearings as ‘closed hearings’ is a good start.  I don’t think the court is planning to produce an annual report covering the number and nature of ‘closed’ hearings, but I think it should.

KPI 7. Hearings at which the court is deciding whether or not an alleged contemnor should be sent to prison should normally be listed in accordance with the Practice Direction, held in public and a judgment published.  This is not always happening and it’s corrosive of open justice. 

6/. Do you find it helpful for court and tribunal lists to be published online and what do you use this information for?

It’s essential to have these lists published online. It would also make a huge difference if they could be searched (e.g. via case number) and if it were possible to set up an ‘alert’ so that we could know (without bothering barristers) when a case is coming back to court.

We use the information to inform members of the public about hearings they can observe.   We check the online lists every day and reproduce them in a more accessible form on social media (fixing problems with initializations, explaining obscure terminology, removing the word “private”, and correcting or adding contact information (RCJ managers have supplied us with an additional email address and a phone number – neither available from their website – to support us in seeking to gain access).  See above for the problems and difficulties we face.

I’m concerned about the proposal to allow professional users to access lists “not available to the public”. As a member of the public, I’m already excluded from information available to journalists, including the “alerts service” whereby the COP brings to the attention of journalists those cases in which it proposes to impose particularly draconian reporting restrictions – thereby giving journalists the opportunity to contest or query those reporting restrictions. As a member of the public, I also have an investment in knowing about these hearings in advance and having the opportunity to consider the appropriateness of unusually stringent reporting restrictions and making the case for greater transparency.  

If the core members of our Project were to be excluded from some more comprehensive lists available to journalists, this would negatively impact on our ability to contribute to open justice.  We recommend some mechanism for members of the public (neither accredited journalists nor duly authorised lawyers) to apply for access as well – in a swift, efficient manner.  I appreciate that lists with additional sensitive information might not be suitable for general public access, but would want to be sure that the core group members of organisations such as ours with a legitimate interest in accessing these lists, and a track record in open justice, would be able to access them too.  I have laboured the point (earlier in this submission, see my answer to Q1) that open justice cannot and should not be delegated to journalists alone – because there are not enough journalists covering the courts and journalists do not always function as the ‘eyes and ears of the public’ given the multiplicity of legitimate personal and professional interests members of the public bring to hearings, and the in-depth and detailed analyses they often write about them. So, if there are to be lists with restricted access, projects like ours should be able to gain access too.

7/. Do you think that there should be any restrictions on what information should be included in these published lists (for example, identifying all parties)?

Court of Protection lists do not identify all parties – they routinely suppress the name of “P” (the vulnerable person at the centre of the case) and their family. More problematically, they often do not include the names of public bodies as parties.

8/. Please explain whether you feel the way reporting restrictions are currently listed could be improved.

Court of Protection hearings are generally open to the public and should be  listed as “Public with reporting restrictions”.  They often say “PRIVATE” instead.  I’ve detailed this problem above.  We don’t know what exactly the reporting restrictions are until we receive the Transparency Order – but there is a ‘standard’ template which restricts publication of any information likely to identify P and their family, and where they live.  There is currently a sub-committee of the Court of Protection Rules Committee investigating how Transparency Orders can be improved.

D. Accessing courts and tribunals

You say: “We are seeking your views on whether there is more the government could offer to support public access to court and tribunal hearings”. 

Supporting the public with accessing courts and tribunals needs to start by improving the listings (see section C above) – since we’re unlikely to go along to a courtroom if we don’t even know that a hearing is happening.

In-person hearings pose a range of access challenges beyond simply locating the court. For example:

• We need to be able to check, in advance of travelling to the court, that an in-person hearing is actually happening.  Since about 1 in every 3 hearings (in my experience) is vacated, we risk a wasted journey.  I have repeatedly tried phoning courts in advance of leaving home to check whether hearings are going ahead, and never had a satisfactory response.  (I now ask barristers or judge’s clerks instead, when I know who they are.)  Again, this is about having more – appropriately trained – outward-facing court staff that members of the public can access with questions like this.  This means more funding!
• A member of the public turned up at the RCJ for a hearing, listed as public, before Arbuthnot J on 7^thDecember 2022.   There was a sign on the court door saying “IN PRIVATE – NO ADMITTANCE”.  He left the building.  I learnt from Brian Farmer – who was similarly deterred from entering – that the sign had been left up in error.  I have previously experienced “PRIVATE” signs on courtroom doors myself and wrote to HIVE and to Arbuthnot J about this on 11 December 2022.
• While waiting to enter a courtroom in the RCJ for a hearing before Hayden J,  I saw a sign on the door saying IN PRIVATE – NO ADMITTANCE”.  As I knew the hearing was supposed to be PUBLIC (I double-checked this with the lawyers also waiting outside the courtroom), I alerted the usher and asked that it be removed.  Unusually (ushers are generally helpful!), she was dismissive of my request and said she’d remove it “later”. As we entered the court the sign was still up, and I repeated my request.  She seemed irritated by this and said she’d do it “when the hearing starts” – which rather defeats the purpose of open justice, since seeing the sign on the door would likely mean that potential observers would have left by then. 
• At Newcastle County Court, there was no listing up on the notice board for the hearing we wanted to observe before Poole J, and nobody readily available to ask. I’ve experienced this several times before – but this was a new experience for one member of the OJCOP core group, Claire Martin.  She describes what happened: “Once through security, we spotted several rows of A4 notices on a board on the wall.  They had the different courtroom numbers and cases being heard, with judges’ names and hearing numbers. Mr Justice Poole was not listed. What to do? A security guard suggested going to the first floor where courts and a reception desk were located. ‘Ask there’ he said. The reception desk on the first floor was empty. The listing boards on the first floor also didn’t include the hearing we were looking for. … There was a conspicuous absence of people whose job it was to ensure everyone knew where they were going. Perhaps these jobs don’t exist – or perhaps it was lunchbreak? We managed to intercept one person, a lawyer I think, who said she was really not sure but pointed us to a waiting area. The waiting area also had boards with listings, but ours wasn’t on these either. Celia attempted to identify whether the lawyers from the hearing we hoped to observe were in any of the six small consulting rooms (with small windows in them) leading off the waiting area, but was unsuccessful.  … At that point, we saw Joseph O’Brien, counsel for FP, arrive. Then we knew we were definitely in the right place.” (A committal hearing to send P’s relative to prison – and the challenges of an in-person hearing)
• Some observers have disabilities that affect their ability to access the court – remotely and/or in person. In our experience, it can be difficult for observers to feel confident that their need for reasonable adjustments will be understood and supported – even, ironically, in the Court of Protection which works intensively with disabled people. An observer with hearing loss struggled to hear the proceedings when seated, as directed, in the back row of the court. The co-founder of OJCOP, Gill Loomes-Quinn describes how “I found standing when the judge entered the room problematic (I have compromised mobility and use walking sticks) but the formality of the proceedings meant that I felt unable to draw attention to myself in order to request an adjustment to the expectation that I would stand” (“Under the radar”) Since then we’ve heard reports of an usher calling out “Stand if you are able”, which sounds much more progressive.  
• I bring my laptop to Court of Protection hearings and use it to make detailed notes and to access statute and case law during the course of the hearing to help me to understand, as best I can, the legal arguments.  I am sometimes directed towards seating without any desk surface on which to rest a laptop – even when there is vacant seating with desk space on the press benches or further forward in the court.  I once moved to a vacant seat and was ordered to return to the back of the court.  As far as I can see this simply works to prioritise an outdated protocol (probably invented before laptops even existed) over the practical exigencies of open justice. I do realise that when I’ve complained about this to other court observers, they’ve simply expressed amazement that I’m allowed to take a laptop into court at all. Electrical sockets for recharging laptops are also few and far between in some courts – I realise this can be a problem for lawyers too, and have several times lent them my extension lead.

So, there are some quite modest Key Performance Indicators for transparency here:

KPI 8 The courts should be properly resourced so that there are trained staff available first thing on the morning of a listed hearing to answer questions about whether it is actually going ahead or whether it has been vacated.

KPI 9 Remove any signs on courtroom doors stating that hearings are PRIVATE when they’re not.  (We recommend having a sign that says “THIS HEARING IS IN PUBLIC. EVERYONE IS WELCOME TO COME IN”.  I’ve never seen a sign like that on a courtroom door – but what a difference it would make!)

KPI 10 Court staff should be able to direct members of the public to the correct courtroom

KPI 11  Paper-based listings should be displayed in courts – on entry and on the courtroom door, indicating the number/name of the hearing and the correct room number.   (I think this is actually already required in theory, but it clearly isn’t happening in practice). 

KPI 12 When observers attend physical courtrooms, staff should be proactive in considering access needs.

E. Remote observation and livestreaming

20/. How could the process for gaining access to remotely observe a hearing be made easier for the public and media?

Supporting public access to remote court hearings needs to start by improving the listings (see section C above) – since we can’t email asking for the link if we don’t even know that a hearing is happening.

Then someone needs to answer our emails promptly and send us the link. Very often, nobody replies to emails (or phone calls) requesting access, or responses come too late, after the hearing is started, or after the hearing is finished. 

Here’s an example. I tweeted about this case because I was pleased to see that a hearing before a Tier 3 judge (on circuit in Teesside) was properly listed in the Court of Protection list: that’s a rarity (see Section C above).  But then dismayed to find that despite two emails and a phone call (unanswered), I was unable to gain access.  

I don’t take not getting a reply personally – I’ve seen how common it is and appreciate that the root cause is understaffing, but I have spoken to members of the public who’ve requested access to hearings (often on multiple occasions) and had no response – and some of them do take it personally, and it creates a very negative impression of open justice in the COP.  This negative experience has particularly affected members of the public who wanted to observe COP hearings because they are family members of vulnerable people involved in Court of Protection cases – and were left feeling that they were excluded because of their own family COP hearings.  I’m fairly certain that this was not the case (apart from anything else, it would require an unusual level of organisation and cross-checking) – but this (recurrent) experience creates a very poor public relations effect.

In the case described above (before Mr Justice Poole) court staff sent an email later, after the hearing was finished, apologising for having been “unable to process your request in time” and saying “sorry for the inconvenience”.  I responded to what I experienced as this rather ‘casual’ approach by explaining that failure to admit a member of the public to a “PUBLIC” hearing is not so much a personal inconvenience as a derogation from a fundamental principle of justice in a democratic society.  To be fair, I expect the office was understaffed and he had a million other things to do that morning. I know that when tasks have to be prioritised, open justice never seems to be near the top of the list.  The solution might be to fund the justice system better and to employ more staff (and address their training needs).

Judges also sometimes delay giving us access to public hearings (or refuse it altogether) based on misguided efforts to ‘screen’ observers.  Some examples:

• Recently I’ve been asked by a couple of different judges to confirm that I’m an accredited journalist or legal blogger as the ‘price ‘of admission.  This is an unintended consequence of the Transparency Pilot in the Family Courts, which has backfired on transparency in the Court of Protection. (For one such example, see Just another failure of open justice: DJ Bland in Lancaster County Court.)
• Several judges have asked would-be observers to provide their reasons for wanting to observe, or asked for home addresses (for remote hearings!), or demanded the name of the would-be observer’s employer. 
• One judge, whose hearing had been listed as “public”, circulated my request for the link (which he treated as a request for ‘permission to observe’) to the parties in advance of the hearing asking for their views. He didn’t hear back from them before the hearing, so didn’t arrange for me to receive the link.  
• One judge sent a message saying that I could be admitted to the hearing if I downloaded, printed and signed an “attendance form”, which I was instructed to scan and return in advance of the hearing in ten minutes time. No “attendance form” was attached – and by the time this was sorted out he declined to admit me because I was late for the hearing. 
• Complaints – from judges and court staff – that we ask “too late” to join hearings are quite common – where “too late” means after working hours the day before the hearing. They say they don’t have time to deal with our request.  But we usually can’t apply any sooner than that, because lists don’t appear until 4.30pm the day before.  We’re tried to explain this here: Why members of the public don’t ask earlier to observe hearings (and what to do about it). 

Also, I spend a lot of time (up to an hour for some hearings) “waiting for the conference host to join” in the waiting room, anxious about whether or not I’ve been sent the right link (once I was on one link, the judge on another, and counsel on a third!), or whether anyone knows I’m there.  Hearings often start late and presumably (at least sometimes) the lawyers know this because the judge has told them, or the judge knows this because s/he gave the lawyers permission to start late in order to continue a pre-hearing meeting – but nobody tells observers. Some communication to let us know what’s going on would be helpful. Lots of observers give up and assume they’ve done something wrong and are not going to be admitted to the hearing.

This all has a chilling effect on open justice.

KPI 13.  When we email asking for access to a remote hearing, please could someone reply to our emails in advance of the time that the hearing is listed to start – even if just to say the hearing has been vacated or will be starting late.

KPI 14. Judges need to be clear about the Court of Protection rules for admission to public hearings.  We are not required to be accredited journalists or ‘legal bloggers’; we are not required to provide home addresses or names of employers, or give reasons for wanting to observe, or sign attendance sheets. 

KPI 15. My recommendation: If a hearing is listed as ‘public’, court staff should send us the link immediately (letting the judge know they’ve done so) without waiting for the judge to “consider our request” or “give permission” – since really, in the vast majority of cases, there is nothing to consider and no “permission” is required. I have also suggested to HMCTS that links could be published in the listings, thereby obviating the need for us to ask for them in the first place.  I didn’t understand the explanation of why this can’t be done.  If some consideration is, in fact, needed (e.g. if one party objects to observers, despite the fact that the hearing has been listed as public) then that consideration can happen at the beginning of the hearing and observers can be part of it – and then leave the platform, if necessary. 

F.  Public access to judgments

27/. In your experience, have the court judgments or tribunal decisions you need been publicly available online? Please give examples in your response.

No. This is a particular problem when there is no oral ex tempore judgment in court. We’ve often been waiting for judgments to be handed down and then some days after a hearing finishes, the RCJ website listing tells us that the judge will hand down the judgment “in public” at 10.30am but there’s “no attendance”.  I think this just signals that this is the date and time at which a judgment is – or should be – “final” and therefore publicly available.  But it’s usually impossible to get hold of it.  I’ve been told many times that it will be published on BAIILI and/or The National Archives and I can read it then – and sometimes this happens within an hour or two of the judgment being “handed down in public” but sometimes it doesn’t happen for days or even weeks. It doesn’t make any sense to me for a list to say that a judgment is being handed down in public, but for it to be inaccessible to me for hours, days or weeks until someone puts it up on a public website.  I think I should be able to contact someone and get it at 10.30am.  Occasionally, the judge has specifically asked for it to be sent to me, knowing that I’ve been following the hearing (which is excellent), but I frequently pursue it without success.

On two occasions I’ve observed hearings before a Tier 3 judge (in both cases, Poole J) which dealt with ongoing matters previously decided before a less senior judge whose judgments had not been published.  I asked, in the interests of transparency, for these judgments to be made publicly available and Poole J acceded to my request and they are now accessible to everyone.  Publication of these two judgments  was very helpful in supporting public understanding of these two cases and was a very positive move in the direction of open justice.

KPI 16. When judgments are “handed down in public” (according to court listings) they should be available to members of the public immediately. 

KPI 17. When a member of the public asks a judge to consider publication of a judgment, that request should be taken very seriously.

G. Access to Court Documents

41/. As a non-party to proceedings, for what purpose would you seek access to court or tribunal documents?

I regularly seek access to court documents in order to help me follow a hearing and to support accuracy of reporting.  

I request the skeleton arguments, or position statements, prepared in advance by the parties – since these usually underpin oral argument in court, even when they are not explicitly referenced.  These are rarely offered – but when I request them, I tend to get them more often than not.   As was said two decades ago, “ … the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received.” (Howell & Ors, v R. [2003] EWCA Crim 486 (28 February 2003)).  

I’ve also requested final orders from public hearings – to which I believe I am entitled as a matter of law.  It’s actually quite difficult to get these (compared with Position Statements) because the final Order isn’t approved by the judge on the day of the hearing, but several days later, by which time the judge (and the lawyers) have turned their attention to other matters and forget that I’ve asked.  

Other documents I’ve been sent on request include: written closing statements, an EasyRead version of “what this court case is about” prepared for a P with learning disabilities; stand-alone “Summaries of the Case Law” documents (agreed by all parties); a restraint plan; and witness statements from family members who wanted to share them.  

Court documents always help my understanding of the case and provide richness and texture to my reports.

KPI 18. If we ask for court documents, they should be sent in a timely fashion. If anonymisation is required, do it before the hearing so as not to create delay.

It’s worth noting that (for remote hearings in particular) we often don’t receive Transparency Orders – the injunction the court is supposed to serve on us regarding reporting restrictions. I only ever receive them for about 50% of hearings. Another member of the core Open Justice Court of Protection Project team has gone systematically through the 38 hearings (across 32 cases) that she’s observed: she has 14  (= 38%).  One important reason for the failure to send Transparency Orders to members of the public is because it does not seem to be anyone’s (agreed) job.  According to Senior Judge HHJ Hilder, “It is not Counsel’s role to provide orders. This is an HMCTS role.”, HHJ Hilder, Item 8 Minutes of COP User Group meeting, 20 April 2022), but when I’ve asked court staff, I rarely get them: either there’s no response at all, or court staff say they don’t have them and I should ask the judge. In practice, when I do get them, they’re overwhelmingly sent by counsel.  Other practical impediments to sending us Transparency Orders include: nobody knows how to separate out the Transparency Order from the rest of the electronic bundle; and (absolutely routinely) counsel and their instructing solicitors have the Transparency Order, but not the observers’ email addresses, while court staff have the observers’ email addresses, but not the Transparency Order. Counsel sometimes ask me to forward Transparency Orders to other observers (on the false assumption that I’ll always know who the other observers are).  I don’t know why this hasn’t been sorted!

KPI 19. Transparency Orders should be sent to all observers – we need to be clear about what the reporting restrictions are. In order for this to happen it needs to be part of someone’s job description and there needs to be a practical mechanism for doing it. 

H.  Public legal education

My experience is that the public has very little understanding of the justice system, and that this applies even to people working with the Mental Capacity Act 2005.  We have learnt a huge amount ourselves in running this Project.  

People struggle with understanding the language and concepts of the court – and also taken-for-granted aspects of court protocol, such as the order of speaking, the role of cross-examination, the function of expert witnesses, even what constitutes a judgment.  There’s a huge amount of public education to do here.  

58/. Do you think the public has sufficient understanding of our justice system, including key issues such as contempt of court? Please explain the reasons for your answer.

One of the core team members of OJCOP, NHS Consultant Clinical Psychologist Claire Martin says: “Absolutely not! I don’t think professionals know very much either – especially in the health service, which is my area of knowledge.  We get very little training on the Mental Capacity Act 2005 and unless you are working with capacity all of the time – and involved in CoP, which most people aren’t, even if they use the MCA regularly – you won’t know much!  My experience of observing the COP has taught me how little I knew beforehand.  Unless you really make it your business to educate yourself, the baseline way of operating is with a global view of ‘capacity’ – I can’t count how many times I’ve read in patient notes, from medics as well as nurses, that someone has/does not have ‘capacity’ –  and with ‘best interests’ operationalised as ‘what I/we think is best for this person’”. 

On contempt of court in particular, this is something I am still learning about three years on.  As part of my commitment to working effectively on this Project, I’ve done an online course on media law (aimed at journalists) which left me with the impression that (since our Project doesn’t cover jury trials) there were minimal risks of anything we write unfairly influencing a court case.  My media law course, like  the government’s own website focused on criminal hearings.  Then I got an e-mail from Mostyn J suggesting I may be in contempt of court for publishing a blog post (by another member of the public) expressing opinions about a hearing before him while proceedings were still active. The judge suggested that there was “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 have been subconsciously influenced on reading the post”.  Partly as a consequence of that experience, I decided, at a subsequent fact-finding hearing (before Hayden J), against publishing a blog post  in which members of the public expressed opinions about the ‘evidence-so-far’ from witnesses, until all the witnesses had completed giving evidence (Adjournment and interim judgment – Hayden J’s fact-finding hearing).  I’m still not sure how ‘contempt of court’ might operate (or not) in either case – but it’s all been very educational, and something I am blogging about, thereby also supporting public education on ‘contempt of court’.

60/. What do you think are the main knowledge gaps in the public’s understanding of the justice system?

From the perspective of our Project: the existence of the Court of Protection and its role, why and how to make applications, what happens if you find yourself as a party especially as a LIP)or as “P” (there’s very little accessible information about this); the ‘inquisitorial’ rather than ‘adversarial’ nature of the court; its dependence on the MCA 2005.  And all the individual details that make up a court hearing, most of which diverge markedly from the (largely American, largely criminal) trials that pervade the media. 

Judges are increasingly taking the time to explain terminology and concepts, to read out (or display on screen) crucial evidence, and generally taking care to facilitate and support public understanding. This takes time and commitment. It has to be subordinated to, and run in parallel with, the substantive business of the hearing. It’s evolved over time, as a collaborative effort between those of us who want to learn, and members of the judiciary and lawyers who are sufficiently committed to open justice to help us with that.  It’s a long way from the ‘fly on the wall’ notion I started out with at the beginning of the Project.  

KPI 20. Every court hearing is also an opportunity for public legal education. Use it!

I.  Closing Summary

Nothing in this document should lead readers to underestimate the huge amount of time and effort that lawyers and the judiciary (plus staff) of the Court of Protection have expended on open justice – both before and (especially) after the founding of our Project.  Nonetheless, I have become concerned that the success of the Open Justice Court of Protection Project might lead to a sense of complacency – that the requirements of open justice are apparently met, as evidenced (for example) by our blog posts.  I hope that by exposing what it takes to run the Project and the ‘workarounds’ we rely on to make any of this happen, the systemic failures of open justice can become clear – not in spite of the Project’s achievements, but because of them.  

If the 20 KPIs listed in this document were met (and some of them are already!)  the experience of members of the public observing hearings in the Court of Protection would be immeasurably improved.  Meeting these 20 KPIs (or just most of them) would go a long way towards practical implementation of the judicial aspiration for transparency and open justice in the Court of Protection.  

KPI 1.  List the hearing in the COP list on Courtel/CourtServe (or whatever replaces it – where ever is displayed what is supposed to be a comprehensive list of COP hearings).

KPI 2. Make it clear the public can attend.

KPI 3. Tell us how we can observe (i.e. remotely /in person – is it hybrid? if remote is it phone or video-link (MS Teams or CVP)?.

KPI 4. Supply correct contact information.  

KPI 5. Tell us what the hearing is about.

KPI 6. If the court is going to hold hearings with the deliberate intention of excluding one party (usually a family member) (‘closed hearings’), there needs to be more public accountability for this so that we at least know that it is happening, how often, and why (e.g. an annual report covering the number and nature of ‘closed’ hearings, and the reasoning behind them).

KPI 7. Hearings at which the court is deciding whether or not an alleged contemnor should be sent to prison should normally be listed in accordance with the Practice Direction, held in public and a judgment published.  

KPI 8. The courts should be properly resourced so that there are trained staff available first thing on the morning of a listed hearing to answer questions about whether it is actually going ahead or whether it has been vacated.

KPI 9. Court staff should remove any signs on courtroom doors stating that hearings are PRIVATE when they’re not.  We recommend replacing it with a sign that says “THIS HEARING IS IN PUBLIC. EVERYONE IS WELCOME TO COME IN”.  

KPI 10. Court staff should be able to direct members of the public to the correct courtroom

KPI 11.  Paper-based listings should be displayed in courts – on entry and on the courtroom door, indicating the number/name of the hearing and the correct room number. 

KPI 12. When observers attend physical courtrooms, staff should be proactive in considering access needs in relation to disabilities and more broadly.

KPI 13.  When we email asking for access to a remote hearing, we should get replies in advance of the time that the hearing is listed to start – even if just to say the hearing has been vacated, or will be starting late.

KPI 14. Judges need to be clear about the Court of Protection rules for admission to public hearings.  We are not required to be accredited journalist or ‘legal bloggers’; we are not required to provide home addresses or names of employers, or give reasons for wanting to observe, or sign attendance sheets. 

KPI 15. If a hearing is listed as ‘public’, court staff should send us the link immediately (letting the judge know they’ve done so) without waiting for the judge to “consider our request” or “give permission”.

KPI 16. When judgments are “handed down in public” (according to court listings) they should be available to members of the public immediately. 

KPI 17. When a member of the public asks a judge to consider publication of a judgment, that request should be taken very seriously and acted on unless there are good reasons to the contrary.

KPI 18. If we ask for court documents, they should be sent in a timely fashion. If anonymisation is required, do it before the hearing so as not to create delay.

KPI 19. Transparency Orders should be sent to all observers – we need to be clear about what the reporting restrictions are. In order for this to happen it needs to be part of someone’s job description and there needs to be a practical mechanism for doing it. 

KPI 20. Every court hearing is also an opportunity for public legal education. Use it!

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Celia Kitzinger is co-founder of the Open Justice Court of Protection Project and has personally watched more than 470 Court of Protection hearings since 1 May 2020. She is a prolific blogger. She is on LinkedIn (here), and tweets @KitzingerCelia

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^[1] _{For example: Loomes-Quinn, G Flying under the radar: Experiencing the Court of Protection transparency pilot as an academic researcher, The Transparency Project. 22 October 2017; Kitzinger J & Kitzinger C. (2017) Why futile and unwanted treatment continues for some PVS patients (and what to do about it) International Journal of Mental Health and Capacity Law. pp129-143; Kitzinger, J, Kitzinger, C & Cowley, J (2017) When ‘Sanctity of Life’ and ‘Self-Determination’ Clash: Briggs v The Walton Centre NHS Trust & Ors [2016] EWCOP 53,  Journal of Medical Ethics, 43:446-449; Kitzinger, J & Kitzinger, C (2016) Causes and Consequences of Delays in Treatment-Withdrawal from PVS Patients: A Case Study of Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32, Journal of Medical Ethics, 43:459-468.}

^[2] _{See also the following blog posts covering occasions on which I, as a  member of the public, made submissions in court to request variations to reporting restrictions:  He’s Polish: Challenging reporting restrictions (before Cohen J – varied to enable reporting of P’s nationality); Prader-Willi Syndrome and Transparency (before Theis J – varied to enable reporting of P’s diagnosis); Predatory marriage and coercive control (before Roberts J – challenged a retrospective reporting order, see §108-§110 of her judgment which deals with this); Naming a putative ‘expert’ in a Covid vaccination case: A letter to the judge (before Deputy Circuit Judge Rogers – granted permission to name the ‘expert’); Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44  (before Poole J – addressed concerns relating to an interim RRO prohibiting reporting of covert medication). Another member of the core OJCOP group, Daniel Clark, has also addressed reporting restrictions in court and will blog about this shortly.}