In the sequel to the decision in C’s case, V v Associated Newspapers & Ors  EWCOP 20, Charles J has considered afresh the Court of Protection’s approach to reporting restrictions orders, not least in light of the transparency pilot currently underway.
For present purposes, the facts can be very shortly summarised. C’s case came before the Court of Protection for determination as to her capacity to consent to renal dialysis. A reporting restrictions order was made at the outset of the proceedings (in standard terms for a serious medical treatment case) restricting reporting of information leading to the identification of C and her adult daughters. The order was expressed to have effect during C’s lifetime. After a hearing at which it was determined that C had the capacity, such that the Court of Protection had no jurisdiction, C died. The case was the subject of considerable media interest, and both the tactics adopted by some reporters and the style of some reporting caused considerable distress to C’s family. The adult daughters applied for a continuation of the reporting restriction order; by the time that the matter came finally to be determined by Charles J, the relevant media organisations did not contest that the order should be continued to the 18th birthday of C’s teenage daughter, although raised an issue as to whether the order could be made by Charles J as a Court of Protection judge (as opposed to a High Court judge) Subsequent to the hearing, a further application was made that the order be extended to cover C’s inquest, which the media organisations did not resist, and which Charles J found to be justified on the particular facts of the case, especially given the prurient nature of the reporting that had taken place.
Much of Charles J’s judgment, therefore, consisted of determination of general principles for future guidance, rather than the resolution of a contest as to how they should apply upon the facts of the instant case. In characteristic fashion, the judgment delves into matters in considerable detail, but for practitioners, the following conclusions he reached are key.
First: the Court of Protection has jurisdiction to make a post mortem reporting restrictions order (although in the instant case, and on a “belt and braces approach,” Charles J also made the order as a High Court judge to avoid any future jurisdictional arguments). Further, reporting restrictions orders in serious medical treatment cases can extend beyond the death of the subject of those proceedings and there is no presumption or default position that such orders should end on P’s death.
Second: the Court of Protection should generally address the following questions:
- Are there good reasons for the hearing to be in public?
- If there are, should that public hearing be ordered with or without reporting restrictions? As part of that determination, how effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
- In light of the conclusions as to these questions, and applying the ultimate balancing test required by Re S (A Child) (Identification: Restrictions on Publication)  1 AC 593, should the hearing be in private or in public? If in private, what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done)? If in public, what reporting restrictions order / anonymity order should be made?
Third, the answer to the first question is almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing the second and third questions.
Fourth, a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. However, Charles J emphasised that this distinction only reflects the strength of the reasoning underlying those Rules and Practice Direction that in many, perhaps most, cases the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved. The distinction therefore provides weight to the general arguments for anonymity to promote the administration of justice by the court generally and in the given case. The distinction therefore does not undermine the general proposition that naming people has a valuable function of rendering news stories personal and therefore effective as journalism (see In re Guardian News and Media Ltd  UKSC 1). As Charles J reminded us, the CoP needs to remember it is not an editor.
Fifth, the weight to be given to the “naming proposition” and the conclusion as to what generally best promotes the administration of justice will vary from case to case, and may require specific consideration (and reasons) in specific cases. Charles J gave some useful examples of how these considerations might apply in different cases:
- If the case involves a celebrity but otherwise is not out of the ordinary, the Court will be exercising a well-known decision making process, and the difficulty or impossibility of providing effective anonymisation may found a decision not to order a public hearing. The question for the trial judge will therefore be what (if any) document or judgment should be made public;
- If the case involves a celebrity but raises new or unusual points and so is out of the ordinary this may found a decision for a public hearing with no (or unusual) reporting restrictions;
- Where findings of serious mistreatment or malpractice are sought or when a member of a family wants (or has initiated) publicity that identifies P and family members issues will arise whether: (1) there should be a public hearing with no reporting restrictions (so the rival arguments and assertions are made public and linked to identified individuals); or (2) whether there should be a private hearing (with disclosure to relevant bodies or persons).
Charles J also used the opportunity to set out in a schedule to the judgment a comparison between the Transparency Pilot and the approach to reporting restrictions orders in serious medical treatment cases. His analysis includes a useful – technical – explanation of the reasons why the two are different, a useful discussion of the purpose of notice, and also an invitation to the media and other interested persons to provide comments and contributions as to the practice relating to and the terms of Transparency Pilot Orders and PD13 Reporting Restriction Orders, not least so as to enable the ad hoc Rules Committee he chairs to consider whether separate practice directions and different standard orders should continue in respect of serious medical treatment cases and/or whether the existing practice/template order in such cases should be changed.
In light of the sorry picture painted of the conduct of the relevant media organisations, it is hardly surprising that Charles J took the (very unusual) step of extending the RRO to cover C’s inquest. Of wider significance and longer-term importance, however, are Charles J’s observations as to the general approach to be taken and questions to be asked as the CoP continues to look – via the Transparency Pilot – for the best approach to enable it secure the correct balance between Articles 8 and 10 ECHR and thereby correctly promote the powerful (and often competing) public interests they engage and reflect.
[A version of this note appeared in the May 2016 39 Essex Chambers Mental Capacity Law Newsletter]