Media win right to attend court of protection case
Wednesday 31 March 2010
A number of journalists should be allowed to attend hearings in the Court of Protection when it deals with the case of a blind and seriously disabled individual who has achieved an international public profile with his musical ability, the Court of Appeal held today.
The court rejected an appeal by the Treasury Solicitor, acting on behalf of the man, who is known only as A, against the decision of Mr Justice Hedley that a number of journalists should be allowed to attend hearings at which the Court of Protection deals with various issues concerned with A's residence, care, and financial and artistic affairs.
The Court of Protection was created under the Mental Capacity Act 2005 to deal with the affairs of those who lack capacity to make their own decisions.
A group of media organisations - Independent News and Media, Guardian News and Media, Times Newspapers, Associated Newspapers, Telegraph Media Group, ITN and the Press Association - had applied to be allowed to attend and report on the hearings.
Mr Justice Hedley, a judge in the Family Division of the High Court who is also authorised to sit in the Court of Protection, said in a decision last November that the court's rules specified that hearings were generally to be held in private, but also contained provisions for the court to allow proceedings to be reported, and to allow individuals or classes of people, such as journalists, to attend - but that there had to be "good reason" for departing from the privacy which was to be the norm.
He had agreed that a number of journalists should be allowed to attend the hearings, and then make submissions on what they would be allowed to report.
The Court of Appeal - Lord Judge, the Lord Chief Justice, Lord Neuberger, the Master of the Rolls, and Sir Mark Potter, President of the Court of Protection - today upheld that decision.
The court said their decision was a two-stage process. First the judge would have to decide whether there was "good reason" to change the normal rule of privacy, and then he or she would have to make a balanced decision on whether authorisation should be given for media attendance, or subsequent reporting, and, if so, how far it should go.
The 2005 Act and the Court of Protection Rules were based on the assumption that the conduct of the affairs of incapacitated adults was private business, just as the conduct of their lives by adults with the necessary mental capacity.
The Treasury Solicitor had argued that although A had a public profile, his entitlement to protection and privacy was undiminished.
There was no need for the media to attend the hearing or seek permission to publish, he argued, because while much about A's situation was publicly known, any further matters of interest could be adequately covered by providing the media with access to the judgment of the court, or with those parts of the judgment of the court which may be of public interest.
But the Court of Appeal said the interests of the public and media were legitimately engaged exactly because A's remarkable situation, including details of his private life, was already in the public domain.
"There is nothing prurient about that interest: on the contrary, it tells us all something, perhaps indefinable, but for all that something inspiring about the triumph of the human spirit over adversity," the Court said.
"The presence of selected representatives of the media, in limited numbers so that the hearing is not turned into a publicity circus, will ensure that matters of legitimate public interest may be drawn to the attention of the judge as possible matters for publication."
The case was about A's interests, and the involvement of his devoted family, and the judge would produce a judgment reflecting his decision about the matters before him.
"He is not qualified to determine what is or may be of interest to the public: that is the function of the media, not the judiciary," the court said.
"In any event, it would be an inappropriate exercise of a judge's responsibility if he were to tailor the contents of his judgment to what he believed to be the needs or concerns of the media.
"Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public and to make better informed submissions to the judge about the matters for which publication should be authorised."
The court added: "We should add that it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes.
"It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private.
"That is a particularly significant point at this time, in the light of the interest and concerns which have been expressed in some quarters about the new Court of Protection. That feature of the case, and Hedley J's reasoning, merits attention in the context of the high public interest element of this case."
The Court also held that the media and public right to freedom of expression and to receive and impart information, guaranteed under Article 10 of the European Convention on Human Rights, were engaged at the beginning of the case, when the media group first made its application.
But this, it said, was unlikely to have led to a different conclusion on media attendance.
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