Leading article: A wall of secrecy around our courts is crumbling

Click to follow
The Independent Online

It is a fundamental principle of British law that justice must be both done and seen to be done. But the establishment of the Court of Protection under the 2005 Mental Capacity Act undermined that crucial principle. Journalists were barred from attending hearings and reporting on the courts' rulings, which affect thousands of people judged to lack the mental capacity to make decisions about their own welfare.

Those whose cases come before the court range from soldiers suffering from brain damage, to people with Alzheimer's disease, to those born with learning difficulties. When the family courts opened their doors to journalists last year, the Court of Protection became the last British court in which all proceedings were automatically conducted in private.

Not only was the court secret, its decisions have been highly controversial. There have been more than 3,000 complaints from families about the manner in which the court has operated. Many have voiced resentment at the perceived assumption on the part of court officials that their intention is to defraud a vulnerable relative.

The court has considerable powers too. It has taken control of more than £3.2bn of assets, with some families complaining that it has paid out a derisory rate of interest while in control of these funds. It was this perception of injustice and unaccountable power that inspired The Independent to begin its campaign to challenge the secrecy of this court 18 months ago. It has been a long struggle, but the war is being won.

Earlier this year, the Court of Appeal upheld a test case brought by a group of media organisations, led by The Independent, which was applying to attend proceedings in the Court of Protection. The press were ultimately permitted to report the case of an autistic piano virtuoso, Derek Paravicini, whose parents were awarded sole responsibility for overseeing his finances and welfare. The Lord Chief Justice, the Master of the Rolls and the President of the Court of Protection reached their decision on the grounds that justice should be open and that the European Convention on Human Rights guarantees the right to receive information and ideas, rather than just to speak freely.

That was the first stage of the opening up. Yesterday, Mr Justice Hedley, sitting in the Court of Protection, ruled that the media should be permitted to attend a hearing about the case of a 24-year-old epileptic man with learning difficulties, who the court has ordered, on the advice of medical professionals, to be removed from the care of the woman who has looked after him since 1991.

It is a difficult case that sits at an awkward intersection of several conflicting principles, such as individual freedom of choice, family rights and the need to protect vulnerable individuals.

Whatever view one takes on the court's decision, it is absolutely right that the verdict should be open to public scrutiny. Furthermore, the ruling implies that the judiciary is now developing a much greater propensity towards openness.

The rule of law is a pillar of our democracy. The courts provide one of the vital checks on the activities of the executive. But the justice system is not infallible. And it too requires democratic scrutiny, especially when it is makes controversial interventions into family life, as the Court of Protection regularly does. Blanket restrictions on reporting of the functioning of our courts are fundamentally inimical to that scrutiny.

Piece by piece, the wall of secrecy that has been erected around the Court of Protection is being torn down. And this newspaper is proud to be part of the demolition crew.