A v INDEPENDENT NEWS & MEDIA LIMITED [2010] EWCA Civ 343

Case Title and Citation:

A v INDEPENDENT NEWS & MEDIA LIMITED [2010] EWCA Civ 343

Court Name and Bench:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE MASTER OF THE ROLL

SIR MARK POTTER, PRESIDENT OF THE COURT OF PROTECTION

COURT OF APPEAL (CIVIL DIVISION)

Date of Judgement:

31 March 2010

Parties:

Appellant: A BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR

Respondent: INDEPENDENT NEWS & MEDIA LIMITED, ASSOCIATED NEWSPAPER LIMITED, GUARIDAN NEWS & MEDIA LIMITED, TIMES NEWSPAPERS LIMITED, TELEGRAPH MEDIA GROUP LIMITED and THE PRESS ASSOCIATION

Material Facts:

A, aged 30, was born prematurely and was incubated. He also developed retinopathy of prematurity which resulted in him becoming totally blind. A also suffers from learning disabilities linked to his Autism Spectrum Disorder which makes it incapable for A to lead an independent life rather a dependent life by being cared for by the Royal National Institute for the Blind. Even though A suffered from his severe disabilities, he accomplished becoming a musical prodigy by teaching himself to playing piano, the quality of which undoubtedly gained public attention in the media which led to the media attempting to gain access to the hearing concerning certain aspects of A’s life in current case. A fortunately had a close and devoted family and the intense desire of A’s family to protect and advance his interests was the reason for the present application in accordance to the Mental Capacity Act 2005. A’s father on behalf of A’s family preferred “for the hearings about A’s private arrangements to be conducted in private”^[1] and that the Official Solicitor would evaluate how well the media’s stance was supported. A’s family was seeking an order to be jointly appointed to act as A’s deputies relating to his property, affairs, health and welfare as they were in a better position to make those decisions.

 Issues Raised:

-Whether there was a valid reason for the embargo on the presence of a limited number of media representatives at the hearing of Court of Protection to be partially lifted in A’s appeal?

-Whether or not the court has the requisite good reason under Rule 93 in relation to the orders stated under Rule 90; for the hearing to be private, Rule 91; courts power to authorize publication of information about proceedings in Court or Protection and Rule 92; courts power to order the hearing to be held in public?

-Whether there was a requisite balancing exercise amongst Article 8; ‘Right to privacy’ and Article 10; ‘Freedom of expression’ and if that would justify the making of the order?

-Should Article 10 be engaged and what kind of impact it would have on the processes of the Court of Protection and when should it be engaged?

Procedural History: On Appeal from the High Court of Justice (Family Division). Judgment delivered by Justice Hedley [2009]

Arguments of the Parties: –

The Court of Protection, established by the Mental Capacity Act 2005, assists those who are incapacitated to make decisions on their own. The relevant rules set out vary from Rule 90 relating to a private hearing to Rule 92 regarding court’s power to ordering a public hearing to Rule 93 requiring a ‘good reason’ for the previous orders made. The Court of Protection’s responsibility arises due to the incapacity of the individual, requiring interference with their personal autonomy. Referring to new statutory arrangements, they rephrase the common law exception of the principle of open justice.

-Despite A having a public profile, his entitlement to the protection and respect for his private life remains intact and there is no pressurizing social need for the media to gain information exclusively on his private life.

-According to Mr. Gavin Miller QC, since much of the material on A’s situation is known in the public domain, there was nothing of any special importance which would be revealed by the media attending the hearing for which authorization would be granted to publish it. Since the litigation is about A’s interests and it is required for the judge to produce a judgement reflecting his decision on the concerned matters before him, not to determine the interest of the public thus it would be inappropriate for the court to tailor the contents of the judgement to best suit what is believed to be the needs of the media. Although having a few media representatives would lessen the privacy of the proceedings, it would allow for better submissions to the judge on matters awaiting authorization on publication and would give the representatives a better awareness and understanding of the issues likely to be of public interest.

-It is of much significance for the public to be fully aware of what takes place in the Court of Protection in which the majority of hearings are to be conducted in private. Mr. Millar modified his stance to permitting authorization to a limited number of representatives to only publishing the information of the hearing for which they have authorization from the judge. In Lord Browne of Madingley v Associated Newspapers [2008], it was stated that the court should not interfere “unless the judge has erred in principle or reached a conclusion that was plainly wrong or, put another way, was outside the ambit of conclusion which a judge could reasonably reach”.^[2] Hedley J’s carefully considered judgement was upheld on A’s appeal.

-Article 8 provides the Right to respect for private and family life of a person and that there should be no public authority interfering with the exercise of this right unless there is a justifiable ‘good reason’ for it. The Court of Appeal found the legislative scheme for Article 8 being satisfied by Rule 90 which refers to a private hearing and permission for attending the private hearing.

-Article 6.1 also accommodates the consideration of a ‘private hearing’ by stating, “…judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals…or the protection of the private lives of the parties so require…”^[3].

In B v United Kingdom (2002), the Strasbourg court also accepted in relation to Article 6 that the hearings may be held privately where required to protect the private lives of the parties. However, in exceptional cases the public interest may outweigh the privacy of an individual which can be expected in relation to a hearing in the Court of Protection^[4]. Although, in most cases, Article 8 of the Convention would add nothing more to the factors considered by the Courts as in re S [2004]^[5] and Application by Guardian News and Media [2010]^[6]. The focus of such rights may be intensified in rare cases or other cases which could affect the outcome.

-Article 10 provides Freedom of expression including freedom to receive and impart information without any public authority interfering. However, as Hedley J held that the Article 10 rights of media were not to be engaged unless there was “good reason” as per Rule 93. Anthony White held that Article 10 rights were engaged at an earlier stage, during the Application of authorization being made. Although the timing of engaging Article 10 does not matter, yet its engagement may involve a more intense focus on Human rights.

-In Guardian, Lord Rodger set out that the right to obtain information which would otherwise not be available is not covered within the scope of Article 10. Applying the approach set out in Leander v Sweden (1987), the material the media aimed to report on through the hearing is either available to the public or would potentially be of public interest from what is already in the public^[7]. Leander’s general rule might not apply to the current facts as relied upon in Gaskin v United Kingdom (1989) where the evidence in court is considered when seeking information along with engaging Article 10 for when the media attempts to seek information in the public interest aiming to widely publicize it^[8]. Although, Leander might not be applied rigidly regarding the court proceedings when Article 6 is applied strictly, as set out in Atkinson and Crook v UK^[9].

-The reasons why Article 10 was engaged in a case like this was due to the development of Strasbourg jurisprudence because of Leander thus making Article 10 have a wider scope. Also, due to the involvement of the media and gain in interest in the general public. The case of Tarsasag is considered as a new development and “a landmark decision on the relation between freedom to information and the…Convention”^[10]. In Tarsasag as compared to Leander, it was highlighted that an advancement has been made towards a broader interpretation of the concept of ‘freedom to receive information’. A wider right of recognition to receive the relevant information is seen by the court stating that “preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny”^[11]. Previous cases like Leander and Tarsasag concerned access to records as compared to the current case which concerns access to the hearing and procedure of the court which engages Article 10 as considered in Atkinson. In the current case the media wishing to gain information for public purposes is the complaint rather than of an individual as in the previous case of Leander.

Decision: –Both, A’s appeal and the Media’s cross appeal were dismissed.

-Rule 93 was satisfied since there was a good reason for making the order and that included asking relevant questions regarding A’s life that was already in the public domain along with awareness being created in relation to the newly established Court of Protection and its role.

-Article 8 and Article 10 were satisfied by the statutory regime. Article 8 being satisfied by Rule 90 in relation to a hearing being held in private. Article 10 being satisfied by Rule 93 regarding ‘good reason’. The separate engagement of these Rules may, at times, influence the proceedings although might not change the overall position of the Court.

Ratio: -The Court of Protection’s jurisdiction to dismiss the requirement of privacy in a particular case for “good reason” shows a recognition within the legislative framework that occasionally, the element of public interest in a case may overcome the privacy considerations.

-Once the media made their instant application, Article 10 was engaged. The engagement’s timing typically does not have much influence on the court’s findings, although in some situations, it may intensify the attention on obligations regarding Human rights.

-Article 10 has a greater application in the context of court proceedings as it is of much importance if the requested information is circulated with the public through the media, as thus would significantly assist the administration of justice.

Bibliography:

1. Leander v Sweden (ECHR)
2. Gaskin v United Kingdom (ECHR)
3. Atkinson and Crook v UK (EcomHR)
4. B v United Kingdom (ECHR)
5. Re S (UKHL)
6. Lord Browne of Madingley v Associated Newspapers (EWCA)
7. Guardian News and Media (UKSC)
8. A v Independent News and Media Ltd (EWCA Civ 343, [43])
9. A v Independent News and Media Ltd (EWCA Civ 343, [42])
10. A v Independent News and Media Ltd (EWCA Civ 343, [28])
11. A v Independent News and Media Ltd (EWCA Civ 343, [4])

[1] A v Independent News and Media Ltd [2010] EWCA Civ 343, [4]

[2] Lord Browne of Madingley v Associated Newspapers [2008] EWCA Civ 130 [45]

[3] A v Independent News and Media Ltd [2010] EWCA Civ 343, [28]

[4] B v United Kingdom (Applications Nos 36337/97 & 35974/97) [2001] ECHR [38]

[5] Re S [2004] UKHL 47, [27]

[6] Guardian News and Media [2010] UKSC 1, [27]

[7] Leander v Sweden [1987] 9 EHRR 433, [74]

[8] Gaskin v United Kingdom [1989] 12 EHRR 36, [52]

[9] Atkinson and Crook v UK (EComHR, 3 December 1990) Application No 13366/87

[10] A v Independent News and Media Ltd [2010] EWCA Civ 343, [42]

[11] A v Independent News and Media Ltd [2010] EWCA Civ 343, [43]