Is publicity always the soul of justice?

Yesterday in parliament an MP used his parliamentary privilege to identify a woman who was threatened with prison for naming the council at the heart of a child protection row she was involved in.  She named her council during a meeting of the All Party Parliamentary Group on Family Law and the Court of Protection discussing Transparency.    The MP was silenced by the Speaker before he had a chance to go any further; Bercow wanted to discuss further – in private – whether the case was in fact sub judice.  No doubt like many others who followed the parliamentary exchange, I sought out information on the identified individual online.  As others have commented, I found no sources of information that gave a particularly well reasoned or calm appraisal of events – which is not to say that what’s written isn’t true.  However what is clear is that allegations made by the mother are extremely serious, both with respect to named individuals and the public authorities involved in the case.  The allegations relate to extremely sensitive and personal information regarding her child, who is also named online.  Even if we assume that the allegations have some foundation in fact, however, I remain unconvinced that this exercise in ‘transparency’ will assist the children at the heart of this case.

Over the last few weeks there has been considerable media coverage of ‘gagging orders’: super-injunctions, hyper-injunctions and quaero-injunctions.  The general consensus in the press, perhaps unsurprisingly, is that they are a matter of grave concern.  Bundled up amongst the celebrity scandals and suppression of matters which – on the surface at least – seem to be in the public interest to know about (Trafigura dumping toxic waste on the Côte d'Ivoire, or paint in ship’s water containers breaking down into toxic chemicals), are several cases relating to the Family Courts and the Court of Protection.  In what I have read, the arguments against ‘gagging orders’ fall roughly into two camps:

1. Gagging orders violate the right to freedom of expression (Article 10 ECHR) of a) the media themselves (e.g. this article), and b) the individuals at the heart of the cases (e.g. this article). 
2. Gagging orders go against the principles of Open Justice, and without the media’s presence miscarriages of justice may go unchallenged – and may even be more likely (e.g. this article, and this one) 

I don’t want to wade into the debate about the Article 10 rights of the media, or of women to ‘kiss and tell’, but I do want to consider in a bit more detail the second argument, succinctly put in these famous passages from Jeremy Bentham:

‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’

‘In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.’

The best argument I have read for greater openness in the Court of Protection and family courts is by the Guardian’s director of editorial legal services Gill Phillips (transcript and audio are available here; I particularly recommend the audio recording).  Coincidentally, Phillips’ speech was delivered in the same meeting of the All Party Parliamentary Group where the council in the child protection row mentioned above was identified.  Following Phillips’ speech, Cafcass head Anthony Douglas gave a talk which began ‘Transparency has disappointingly become more about the rights of adults than the rights of children’.  The text of Douglas’ speech is also worth reading for a counterbalancing point of view, but he was unable to deliver it in full, being heckled off stage by angry families.  One woman can be heard to say ‘you're so deluded, you have no clue how much the people are suffering in this country’, and another ‘people need to speak and express themselves’.  Douglas hastily wound up his speech saying 'Transparency is about transparency of understanding the situation that the child is going through... not about opening up a court process.'  I would differ from him on that latter point; I believe there are things that could be done to open up the court process without infringing the rights of the child.  In any case, tensions evidently ran high in that meeting.

Phillips began by reiterating that it is a ‘fundamental principle of common law that justice is conducted and judgments are given in public’.  Article 6 permits that the press and public can be excluded from the court:

...in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

It is, as I have discussed previously, an unqualified feature of Article 6 (the right to a fair trial) that judgment must be ‘pronounced publicly’ – but in the case Pretto v Italy (1983) the ECtHR found that this criterion was satisfied by depositing a copy of the judgment in a registry open to the public – it didn’t have to be read in open court.  I have argued in several posts on Open Justice that the Court of Protection, and indeed the courts service as a whole, need to ensure that all judgments that are not read aloud in open court are freely accessible to the public in the form of written judgments.  If necessary, as often will be the case in the Court of Protection and family courts, those judgments should be redacted to protect the identities of children or other protected parties to the case.  My interest in this evidently comes from my role as a legal researcher, but I am aware that legal practitioners, practitioners in health and social care (like CB at Fighting Monsters), and users of the courts, are also keen for greater access to case law to improve their understanding and knowledge.  The courts may protest that they issue any judgments that make legal precedent; from the perspective of informing and improving professional practice, this is insufficient.

Publication of written judgments could go some way towards putting greater external scrutiny on the courts, in the spirit of Bentham’s work.  Not only through greater scrutiny of the reasoning of judges, but on the public authorities involved in the cases themselves. I see no reason why public authorities should not be routinely identified in Court of Protection and family court cases (although I am open to argument if anyone would like to suggest any).  In two cases that I am aware of the Court of Protection has allowed the local authority to be identified (G v E, Manchester (2010); Hillingdon v Neary (2011)).  But the court appears to wait upon a request from the press to identify the public authorities in the case, and there are cases where public authorities have been criticised for – at best – poor practice where they have not been identified (in this case, for instance).  Unless public authorities are identified, it is very difficult to see whether there are repeat offenders for certain kinds of poor practice – or even public authorities who show consistently good practice, for instance by bringing matters to the attention of the courts when they should (see this post for a striking example of this).  As Phillips argues, identifying public authorities along with details of cases can also help expose regional disparities in interpretations of the law itself (the example she uses is major variations between local authority interpretations of ‘emotional abuse’).

Phillips also gives a very compelling argument for identification of expert witnesses in the family courts, which is worth quoting in full:

...decisions more often than not will involve courts relying on expert evidence. If that evidence is only heard behind closed doors who can scrutinize it? who can check the science is sound, challenge it if need be? I read last week about the Law Commissions proposals for a new "reliability" test to determine the admissibility of expert evidence in criminal cases to avoid the possibility of miscarriages of justice... The law commission said that the current judicial approach to the admissibility of expert evidence in England and Wales is "laissez-faire"...The Law Commission gave examples of fraudulent experts: Godwin Onubu, a bogus doctor, Barian Baluchi, a bogus psychiatrist, Gene Morrison a bogus psychologist. At least criminal trials take place in open and are reportable. Heaven only knows what level of scrutiny and acceptance is in the family courts!

The debate about identification of expert witnesses in the family courts is an old one.  There are those who argue that the motivation to identify experts is based on a fallacy that expert witnesses are failing the justice system, others might respond that such absolute faith in unscrutinised expert opinion is naïve at best.  Phillips also makes a convincing case that since expert witnesses in the family courts are in the pay of the public purse, we should at least know who they are and when they are being used.

Since identification of public authorities and expert witnesses could also be done through publication of redacted written judgments, would any additional purpose be served by the media being in court?  I wrote previously that it was my view that the press should be allowed to attend the court only with the full and free agreement of the families involved.  This is because for some families, especially those who are litigants in person, the presence of the media could have an inhibiting effect on the stories they are able to tell, and may increase the stress they are already under such that they are less able to present their case.  For other families though, like the Neary family and no doubt like the lady at the heart of this most recent row, the presence of the press may be explicitly desired by them.  For families who feel themselves to have been badly served by public authorities, the media at least appear to serve as an additional safeguard to ensure justice is done and wrongdoing exposed.

The difficulty is that in what coverage I have seen of the complex cases the Court of Protection deal with, the media haven’t particularly covered themselves in glory (I know less about the family courts, so will refrain from commenting here).  From the perspective of accuracy, the vast majority of articles on Court of Protection cases are riddled with errors of fact and law, which go on to (badly) inform what analysis they do bring (including the Guardian’s own reporting).  This recent article from the Daily Mail serves as a case in point; entitled How can it be right? the author makes the familiar argument that the Court of Protection judges deal with some of the most sensitive issues for the most vulnerable in society, and should not be free of external scrutiny in doing so.  To illustrate the kinds of work the Court of Protection does she describes some recent cases where the press have been allowed in, but in doing so betrays a lack of understanding of the context and the issues at stake.  To give a few examples:

• ‘Under the laws [sic] of the Mental Capacity Act of 2005, [the Court of Protection] makes decisions for people deemed to lack the intelligence to do so for themselves.’
• I can see why they have used the word 'intelligence' rather than 'mental capacity', but it carries significantly different connotations. The court, for instance, would hear cases about people in ‘minimally conscious’ states, or with mental health problems, whose intelligence is not in question. Meanwhile, a person with very low intelligence is likely to have mental capacity in respect of some decisions.
• ‘judges can compel these vulnerable souls to undergo surgery, take part in medical experiments, use contraception or have abortions. They can decide if a life-support system is switched off, where a person lives or with whom.’
• What the author neglects to mention here is what a significant improvement this situation is on what came before. Prior to the Mental Capacity Act 2005 there was an enormous legal lacuna around how such decisions were made, and many were made by medical or other professionals, free of external scrutiny, and without recourse to the court at all. In addition to the safeguard of the court, people in these situations should also be referred to an Independent Mental Capacity Advocate, who offers an additional source of external scrutiny.
• 'the CoP judges can authorise what are called Deprivation of Liberty Safeguards.’
• This is just an error in fact. The judges can authorise deprivation of liberty, but the whole point of the safeguards is that supervisory bodies can authorise deprivation of liberty as well without recourse to a judge. In my view we should be less concerned about deprivation of liberty authorised by the courts than the – quite possibly thousands – of cases of deprivation of liberty that are actually occurring in hospitals and care settings but which are unauthorised by the courts or any other public body. 
• ‘[Hillingdon council, in the Neary case] applied successfully to the Court of Protection for a Deprivation of Liberty Safeguard or DOLS order.’ And ‘Mark Neary hired a lawyer and decided to take on Hillingdon Council as well as the Court of Protection which issued the restraining order on Steven.’
• This takes factual inaccuracy to the level of fiction. Hillingdon council authorised Steven Neary’s deprivation of liberty themselves using the safeguards, without resort to a court at all. The court in fact terminated the deprivation of liberty and sent Steven home! 
• ‘Earlier this year, a 41-year-old man living at a council home, and in a relationship with another man, which he said made him happy, was barred by the Court of Protection from ever having sex with any human being again... He will be followed everywhere for the rest of his life by an orderly at the home, unless he is alone in his bedroom.’
• Again, this is fiction. The order in this case was an interim order, not ‘for the rest of his life’, and the judge in fact directed that AB should receive sex education so that he might acquire the mental capacity to engage in sexual relations. 

Even in the context of almost universally inaccurate reporting on Court of Protection cases (the Telegraph, generally, is a welcome exception to that rule)[Edit: I feel in the light of this case I should probably retract that and say instead that Martin Beckford's reporting is usually fairly accurate], this is a particularly bad article.  But it does serve my point.  What benefit is this kind of scrutiny supposed to bring to our justice system?  The judgments in the cases mentioned above are in fact in the public domain, and even then they are reported incorrectly.  What the media often does do is champion the rights of families, by which I mean to say the rights of those family members who are able to express their views – not necessarily always the rights of the protected parties at the heart of the cases.  By all means the media should be free to disagree with the decisions of judges, the evidence of experts, to castigate any unlawful actions by public authorities, but ultimately the courts and the lawmakers will only be responsive to the concerns of the media if they have something well-informed and insightful to say on the matter.  I’m not saying this isn’t possible, just that I’ve seen little evidence that the media are yet ready to take up that mantle in the Court of Protection at least.

And what about identifying the individuals involved, as happened in parliament yesterday?  The Court of Protection does not operate a blanket ban on this, notably identifying Derek Paravicini in this case, and of course the Neary case.  The family court may exercise its discretion in permitting the media to watch the case, but they are still subject to statutory restrictions on identifying children from s97 Children Act 1989 and s12 Administration of Justice Act 1960.  Further restrictions may come into force with the Children, Schools and Families Act 2010.  Phillips regards this as a real obstacle to media coverage of important family law cases:

As long as these two provisions remain in place, the media are going to be reluctant to engage with the family court. The fact is, like it or not, names are needed to make stories work. They bring a case to life and give it real meaning... [T]he reality is that the combination of S12 AJA and S 97 Children‘s Act means there is little possibility of the media being able to report anything that they feel may be of interest to their readers. The reality is that despite the increased access, little has changed and there is still little being reported about family cases.

I suppose my feeling on this really is ‘well tough’, if the issues are that important it shouldn’t be an insurmountable obstacle, although this is no doubt coloured by my not being a journalist.  I really can’t understand why the press cannot report on these cases without naming names.  For weeks after the death of Baby Peter, he was known as ‘Baby P’, but that didn’t prevent extensive media coverage of the case.  I don't doubt, though, that experienced media professionals like Phillips know better - but I would like to think that if important matters of principle are at stake (as there are in the cases reported recently, which remained anonymous), the press would pick up on them anyway.

My concern is that in identifying the children at the heart of these cases – particularly child protection cases and cases where there is a dispute over family contact - there is a real risk of harm being done by the media coverage itself.  Often, but not always, similar principles may apply to adults in the Court of Protection, particularly in matters relating to adult safeguarding.  We respect the right of rape victims to anonymity, why not children who have suffered abuse or acrimonious family disputes over contact?  Why should all the professionals in their lives, all the parents in the playground, and their future friends and colleagues be appraised of some of the most personal and painful details of children’s lives through publication of their name?  Does it help children if parents are able to play out their breakup and make allegations in the press?  Expose poor judicial decision making, poor expert evidence, poor practice by local authorities by all means – but why should we expose children and vulnerable parties as well if this will cause them harm?

This will, inevitably, have an impact of the Article 10 rights of families.  It is impossible to identify the family members without the child or adult relation becoming identifiable by extension.  I really do understand that when families feel failed by the justice system they want to speak out.  Put purely legally, Article 10 rights are qualified rights, and the right of the child to privacy of their current – and future – identities must be balanced against them.  Beyond legal rights though, I support the moral case underpinning this.  Families may respond that they are not speaking out for themselves, but in order to expose injustice and get their children home.  Unfortunately, I’m not convinced as a strategy this will be particularly effective; if anything going to the press is likely to antagonise the courts.  If families have signed an undertaking of non-disclosure to MPs or the press, going back on that order is likely to make them appear less trustworthy on matters relating to their child's welfare.*  And yes, it is a huge pity if families are prohibited (or, more likely, advised against) speaking to their MP - but if it is suspected that that MP is likely to trample over their children's rights to privacy through use of parliamentary privilege I'm less convinced it is the certain travesty of justice it at first sight appears.  In any case, ultimately it’s not the Daily Mail who decides whether their children come home, any more than they decide whether ‘Elisa’s’ daughter gets sterilised, whether ‘Alan’ has sex again, or who even got Steven Neary home.  It’s the courts, whatever view you hold of them.

There is a tension then.  Overall the interests of justice may be served by greater press attention to matters in the family courts and the Court of Protection.  The courts could help themselves by being more forthcoming with the reasons for protecting identities or reporting restrictions, or issuing seeming-draconian orders like banning the media from approaching witnesses.  They could also take positive steps to engage with transparency themselves, by publishing more (anonymised) judgments.  Transparency may also be served by naming the public authorities and expert witnesses involved in cases, whilst protecting – as far as possible – the identities of children and other protected parties.  In some cases a press presence in the courtroom may directly further the individual or overall cause of justice, for instance by exposing faulty expert evidence, or by building up pressure to reform a particular area of law a judge has relied upon.  But the media say they want names, and in naming individuals involved in many cases we may do them no justice at all.  How principled is their stance towards Open Justice then, really, if it is contingent on identifying vulnerable individuals?  It seems to me that the media may have as far to go on this as the courts.

*It's unclear, in any case, how far these are legal undertakings and not elective agreements.  See this post by Carl Gardner, and the comments underneath, for more discussion.  It does seem that this case must have some degree of legal force behind it, if the mother was threatened with prison for identifying the council in a public meeting.

More reading
@CarlGardner raises some important questions about whether  this use of parliamentary privilege was appropriate, here
CB at Fighting Monsters discusses the difficulty knowing the truth behind stories in the press, here.

[Edit: My attention was drawn today to an excellent paper by Lord Justice Munby on transparency in the Family Courts.  He puts the issues much better than I have, and clearly his view carries considerably more weight!  The paper I am referring to is:

Lord Justice Munby, 'Lost opportunities: law reform and transparency in the family courts' [2010] Child and Family Law Quarterly 273

But it's behind a paywall.  However Jonathan drew my attention to a lecture that covers roughly the same ground, available here.

It's wonderful that a senior judge has expressed concerns around Open Justice in the family courts.  I'm not sure that all share Munby LJ's passion for transparency though... 04/05/2011]