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Friday, 17 January 2014

A secret court no more!

So unless you missed the Daily Mail’s blaring headline 'At last, a victory over secrecy in the courts' - the big news is that the Court of Protection is a ‘secret court’ no more! The Independent even ran a story with the headline “Formerly secret court…”

Yes, Sir James Munby has published his Practice Guidance on ‘transparency’ – specifically on the publication of judgments of the Court of Protection and the Family Courts, but also touching upon other issues. There are separate guidance documents for the Court of Protection and for the Family Courts, but they are quite similar and try to harmonise the approach across both courts, despite differing rules. They’re really quite short, but I’ll summarise what it says here anyway:

The new(ish) approach

Munby says that ‘too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name.’ This guidance should lead to more judgments being published.  He points out that increasing ‘transparency’ was a concern of his predecessor, Sir Nicholas Wall, suggesting a continuity of approach.

The legal framework

Munby sets out the legal framework – that s12 Administration of Justice Act 1960 makes it a contempt of court to publish a judgment unless it is handed down in public or else authorized for publication by a judge.

When judgments should be published

The guidance only applies to cases heard by Circuit and High Court judges, and the Senior Judge of the Court of Protection – not to district judges.  There are two categories of case – those where a judge must ‘ordinarily’ publish a written judgment, and those where they ‘may’ do so.  The first category, where judgments must ordinarily be published, includes cases where ‘a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed’ and it relates to one of the following matters:
  1. any application for an order involving the giving or withholding of serious medical treatment and any other hearing held in public; 
  2. any application for a declaration or order involving a deprivation or possible deprivation of liberty; 
  3. any case where there is a dispute as towho should act as an attorney or a deputy; 
  4. any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers should be reduced; 
  5. any application for an order that an incapacitated adult (P) be moved into or out of a residential establishment or other institution; 
  6. any case where the sale of P’s home is in issue 
  7. any case where a property and affairs application relates to assets (including P’s home) of £1 million or more or to damages awarded by a court sitting in public;
  8. any application for a declaration as tocapacity to marry or to consent to sexual relations; 
  9. any application for an order involving a restraint on publication of information relating to the proceedings.
In the guidance on the Family Courts, there is also a list of cases heard under the inherent jurisdiction concerning incapacitated or 'vulnerable' adults which fall into the same 'ordinarily must be published' category:
  1. any application for a declaration or order involving a deprivation or possible deprivation of liberty; 
  2. any application for an order involving the giving or withholding of serious medical treatment; 
  3. any application for an order thatan incapacitated or vulnerable adult be moved into or out of a residential establishment or other institution; 
  4. any application for a declaration as to capacity to marry or to consent to sexual relations; 
  5. any application for an order involving a restraint on publication of information relating to the proceedings.
In any other case, the starting point is that if a party or accredited member of the media applies for an order for the judgment to be published, permission should be given.  The Guidance says that 'Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media’.  It also reiterates that judges must (obviously) consider any Article 6 (right to a fair trial), Article 8 (right to respect for home, family and private life) and Article 10 (right to freedom of expression) rights arising, as well as the potential impact of publication on current or potential criminal proceedings.   The new guidance still permits judges to refuse to publish judgments or to make orders restricting their use if a particular case requires it.

Anonymity (or not)

The judgments should be anonymised, unless the judge provides expressly to the contrary. Munby provides a standard rubric to include at the top which provides that the judgment may be published on condition of anonymity. Parties wishing to discuss their cases and identify themselves must apply for a court order for permission to do so, and the rubric may be varied.

One fairly big change which might ruffle some feathres concerns the anonymity of public authorities and professionals...The guidance says that ‘public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named’ and ‘anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.’  Speaking personally, I would be quite interested to see how much 'clustering' of cases there is in the Court of Protection from particular local authorities, with others being less inclined to enlist the authority of the Court.

£££s

Who will pay for these transcripts? The guidance says that where the case falls into one the ‘special’ categories where judgments should ordinarily be published, ‘the cost of transcribing the judgment shall be at public expense.’ Otherwise, the cost will fall upon the party making the application.

Making them available online

When a judgment falling into the ‘ordinarily should be published’ category is published, it should be placed on BAILII ‘as soon as reasonably practicable’ by the court. If it’s a publication-upon-request judgment, then the judge can consider whether it should be placed on BAILII.

So, what do we think? The press are doing cartwheels, although I’m actually not sure how interested they are in judgments – as opposed to being able to attend and report on court proceedings, without having to make an application to do so. Still, it’s nice to see the guidance getting a positive response. The Mail have been taking credit for it – on the basis of their ‘Say No to Secret Courts’ campaign. I don’t want to knock their, erm, enthusiasm, but they were pushing at an open door really – Sir James Munby has been arguing for this for years. I suspect recent provocative articles, which at the very best presented a very skewed account of proceedings, may have accelerated the process, but I think he was bound to do this at some point anyway.

How many more judgments will we see now? It’s an interesting question. More and more DoLS cases, and perhaps welfare cases, falling in the ‘special category’ are being heard by district judges, so we still won’t get a complete picture of the Court’s work (but then, we don’t for other courts at a similar level, so that’s not really so surprising). As Donald Rumsfeld would put it – the quantity of unpublished judgments is a ‘known unknown’. Only time will tell. Who knows whether we’ll now have time to read them all! And who knows how secure the guarantees of anonymity will be under the new regime, or whether instead of seeing families protesting that they want to tell their stories, we’ll also start to see families who’d rather their story wasn’t being broadcast. Having said that, of those judgments published to date, we haven't learned of any terrible consequences from the publication itself (although there's no particular reason to think we should know about it if there were).  One thing’s for sure: the media may come to miss the day when they could make up fanciful details of a case without anybody being able to check up on it…

(I know! Two blogposts in one day!! The benefits of a long commute…)

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