A v Independent News & Media Ltd & OR’s [2010]
EWCA Civ 343
Case No: B4/2009/2480
Court of Appeal (Civil Division)
120101 EWCA Civ 343, 2010 WL 910161
Before: The Lord Chief Justice of England and Wales, The Master of the Rolls and Sir
Mark Potter, President of the Court of Protection
Parties:
Appellant: A BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR
(Mr. Gavin Millar QC and Miss Barbara Hewson (instructed by Irwin Mitchell) for the
Appellant)
Respondent: INDEPENDENT NEWS & MEDIA LIMITED, ASSOCIATED NEWSPAPERS LIMITED,
GUARDIAN NEWS & MEDIA LIMITED, TIMES NEWSPAPERS LIMITED, TELEGRAPH MEDIA
GROUP LIMITED and THE PRESS ASSOCIATION
(Mr. Antony White QC and Mr. Guy Vassall-Adams (instructed by Independent News & Media
Limited) for the Respondent)
Material Facts:
A who is a 30 years old man was born prematurely. As a result, he developed retinopathy of
prematurity, a condition in which the vessels in the eyes grow abnormally with consequent
retinal damage. In accordance with the Mental Capacity Act 2005 his parents and sister have
applied for a declaration that they should jointly be appointed as his deputies, to take decisions
on his behalf in relation to his personal welfare, and his property and other affairs. As a result,
he is and always has been totally blind. He taught himself to play the piano and the quality of
his playing has brought public, indeed international recognition. A's father indicated a
preference "for the hearings about A's private arrangements to be conducted in private. A's
parents and sister in the Court of Protection, seeking an order that they should be jointly
appointed to act as A's property and affairs and health and welfare deputies. The issues
brought in the court of protection was regarding A’s best interests in respect of performing in
public and his participation in commercial music, his participation in publicity/marketing, and
whether a welfare and/or financial deputy needs to be appointed to manage those activities (a
fried/family or independent person) and the remit of any appointed welfare and/or financial
deputy and moreover the issues that were heard in court of protection was also about medical
and psychiatric evidence about A condition as well as his financial records, earning and career
development which the official solicitor held was things that were too personal whereas the
media held that they had a right to know as it would only benefit A as the general public will
know whether A is being taken care of or not. The appeal is brought, with his leave, against the
order of Hedley J dated 16 November 2009 that the Independent News and Media and others
(the media) should be granted access to the forthcoming hearings of the application. Hedley J
was plainly impressed with A’s remarkable story. He noted that the media was seeking
authorization for the attendance of a limited number of media representatives at what would
otherwise be a private hearing, The presiding judge who was Headley J allowed the media to sit
in the court as according to him the media had shown good reason. The official solicitor
criticizes these judgments. Furthermore, The Court of Protection was created by Part 2 of the
Mental Capacity Act 2005. So, Headley J stated it will gain public interest if the hearing is public
although the matter of the proceeding is private and this particular proceeding are in the
context of the person who the general public already knows and are interested in. Also, If the
public has questions of the trial and the hearing are in private then the public will be unable to
get knowledge of how the Court of Protection is operated.
Questions of law:
The issues before the court were
1.
Regarding the judgment of Headley J which allowed the media to sit in the court of protection
and publish the information taken from the hearing and whether there should be a public trial or not.
2.
Whether the media had shown good reason when applying to sit in court of protection and to
publish the information regarding the case to the general public.
3.
If there is adequate balance between the Article 8 and Article 10 of the ECHR in this case.
4.
The analysis of Headley J regarding of the article 10 of the European Convention of Human
Rights about how it impacts the legislative structure of the current court procedures and to the extent
the article 10 rights of the media were engaged.
Decision:
The appeal was dismissed by the judges of Court of appeal who believed that although they did have a
different perspective from Headley j but that did not mean that the decision of Headley j was per
incurriam and the moment of engagement of Article 10 does not affect the judgment.
Detailed Reasons for the Decision:
Headley J’s reason for allowing the media was according to the rule 90(3) which states that although
there must a private hearing in the court of protection however the presiding judge may make such an
order which authorizes any person, or class of persons, to attend the hearing or a part of it. Moreover
under 91(2)(a) the court may authorize the publishing of any information about the whole or part of
trial. Also, the Court has the power to order that a hearing to be held in public under 92(1)(a) which
states for a hearing to be held in public. However according to 93(1)(a) which states that an order under
rule 90, 91 or 92 may be made only where it appears to the court that there is good reason for making
the order and a two-stage process is required in which the first involves deciding whether there is "good
reason" to make an order under Rule 90(2), 91(1) or 92; if there is, then the second stage is to decide
whether the good reason survives the balancing act which is that the any criticisms against the good
reason has to be acknowledged and if the good reason is still justified then the good reason presented
by the media is applicable and the court will then assess all the relevant considerations and make a
balanced, fact specific judgment whether the specific authorization should be granted or not. In general
terms, he thought that the media should be allowed to report any material which was already in the
public domain and any material which answered questions which might legitimately be posed by a
reasonable individual who knew of the matters which were already in the public domain. Therefore,
while the presence of a small number of media representatives would somewhat reduce the privacy of
the proceedings, it would enable those representatives to be fully aware of the issues which may be of
legitimate interest to the public and to make better informed submissions to the judge about the
matters for which publication should be authorized. The court proceedings are exceptions to open
justice principle and do not immediately engage media's Article 10 rights. They have to establish "good
reason" to balance Article 8 and Article 10 rights, which Hedley J did, allowing a limited number of
media representatives at the hearing. In addition to this the Rules 90 to 93 of the Court of Protection
Rules comply with article 6 as seen in B v United Kingdom (2002) where the Strasbourg court held that
legislation could provide for "an entire class of case" to be held in private . However, the public interest
may, in exceptional cases, outweigh the privacy which those with a disability can normally expect in
relation to hearings in the Court of Protection. The jurisdiction of the Court of Protection for "good
reason" is to set aside the privacy requirement in an individual case represents an acknowledgement
within the statutory structure that on occasions there may be a public interest in the individual case
which may outweigh the privacy considerations. The correct approach to Hedley J’s decision is identified
in Lord Browne of Madingley v Associated Newspapers [2008] which stated that “This 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”. The
exceptions acknowledged in article 10.2 underlines that article 10.1 rights are not themselves absolute.
The question when article 10 is engaged will, therefore, at least normally, not matter in any particular
case where the court is being asked by the media to make an order under rules 90 to 93.The general
rule laid out in the case of Leander may not apply due the principle that article 10 cannot give rise to a
right to obtain information is not absolute, in the light of the words “in circumstances such as these” and see the similarly expressed view in Gaskin v United Kingdom (1990). Where article 6 is also engaged,
and the information sought consists of evidence given in a court of law, article 10 may be engaged at
least when the media are seeking the information for the purpose of disseminating it more widely
because it is in the public interest. Furthermore the engagement of article 10 is not an issue which
would have affected the decision of the previous judge however according to Headley J who was relying
on Lord Rodger statement in Leander v Sweden, which is that article 10 is engaged when the media
shows good reason however the analysis of Headley J regarding engagement of article 10 is wrong as
Article 10 is started at the moment media applies to show good reason. Lastly if media can get the
information document from executive limb, then it should be easier for them to get it the court and as
the media evolved overtime it was supported through precedent as seen in (Szabadsagjogokert v
Hungary)
Ratio Decidendi:
The case established that a court can authorize media attendance and information publishing if there is
"good reason" under rules 90-93 of Court of Protection and as seen in (Sunday Times v UK) in which it
was held that the media has a duty to impart information and idea concerning matters that come before
court. Balancing Article 8 and 10 rights, a fact-specific judgment should be made. Article 10 engagement
occurs at media's good reason application and the cases in which it was seen was of (Atkinson and
crook) and (The Independent v UK). Decisions should only be interfered with if they're plainly wrong.