Student Number : 023-36554

NAME OF CASE AND CITATION:

A (by his litigation friend the official Solicitor) v independent news and Media Ltd and others [2010];
EWCA Civil 343

COURT:
Court of Appeal (Civil Division)

JUDGES:
(1) The Lord Chief Justice of England and Wales

(2) The Master of the Rolls

(3) Sir Mark Potter, President of the Court of Protection

Parties:
Appellant: A (by his litigation friend and official solicitor) advocated by Ms Gavin Miller, QC and MS
Barbara Hewson (instructed by Irwin Mitchell)

Responded: Independent News and Media Ltd, Guardian News and media Ltd, time newspapers
Ltd, Associated Newspapers Ltd, Telegraph media group Ltd, and the Press association advocated
by A White QC and Mr. Guy Vessel Adams (Instructed Romana Canetti)

Representation:

CASE NOTE
Q : What are the material facts of the case?
Ans : Material Facts of the case :
The individual appealing, denoted as "A" during these legal proceedings, is presently 30 years old and
confronts profound incapacitation that inhibits their capacity to formulate judgments pertaining to their
personal welfare and affairs. This extensive impairment manifested shortly following birth, compelling
them to rely upon external support for their day-to-day caregiving necessities and precluding the pursuit
of an independent existence . Furthermore, they contend with cognitive obstacles linked to Autism
Spectrum Disorder, significantly obstructing their adeptness at meaningful interpersonal
communication. At this time, "A" is the beneficiary of care and currently inhabits lodgings that are
catered to and overseen by the distinguished establishment known as the Royal National Institute for
the Blind, a nationally recognized charitable organization.

Despite his profound disabilities, "A" has accomplished remarkable achievements as a musical prodigy,
showcasing exceptional talents. He has independently honed his piano skills to a significant level of
expertise, garnering recognition at both the national and international levels for his exceptional abilities.
Throughout his life, "A" has been steadfastly supported by his close-knit and devoted family, which
includes his parents and sister. This familial unit has proactively approached the Court of Protection with
a joint request for appointment as deputies responsible for overseeing "A"'s property, financial matters,
health, welfare, and burgeoning musical career. Their argument is firmly rooted in their intimate familial
bonds and consistent interactions with "A," positioning them most effectively to make well-informed
decisions regarding his personal well-being, financial affairs, and the trajectory of his musical journey .

The Court of Protection in England and Wales operates as an established institution under the Mental
Capacity Act 2005, primarily focused on making decisions for individuals lacking decision-making
capacity due to mental limitations. The central emphasis of the court is on protecting the well-being and
rights of these individuals, selecting deputies to represent their best interests, and maintaining
principles of controlled limitations and individual self-management.While ensuring confidentiality, the
court handles cases related to capacity disputes, deputy determinations, and issues involving enduring
powers of attorney. The overarching aim is to protect vulnerable individuals while honoring their
autonomy to the maximum extent.

Questions/ Issues of Law:

➢ A’s Appeal: Should the partial embargo be lifted from the hearing of Court of

Protection?

➢ Whether the court has a good reason under Rule 93 in respect of the order

under Rules 90 to 92? ( Permission of Limited Media Personnel and permission

to publish part of the judgments ).

➢ Whether the requisite balancing exercise amongst art 8 and art 10, justifies the

making of the order? When should Art 10 be engaged?

Decision:
The Court upheld the decision of Hedley J and dismissed the appeal.

The central question arises over whether Hedley J's decision to grant media access to the hearing was a
mistaken determination of "good reason" for invoking an exception to the statutory structure that
typically mandates private proceedings in the Court of Protection [as per para 8 of the Court of
Protection Rules and para 14]. The contention in this appeal asserts that Hedley J's conclusion of
establishing sufficient "good reason" was incorrect. However, it is argued that a valid rationale indeed
existed for the Rule 93 order, which addressed questions about A's public life and raised awareness
about the Court of Protection's role. The statutory framework, encompassing both Article 8 via Rule 90
and Article 10 through the "good reason" provision in Rule 93, harmoniously aligns to balance privacy
and freedom of expression. While separate engagement of these articles might not fundamentally alter
the court's overall stance, it could influence proceedings in specific instances .

*finding them as problematic :

The Lord Chief Justice deems allowing media access to the hearing appropriate and supports Hedley J's
decision. He references the case of Lord Browne of Madingley Newspaper [2008] QB 103 to underscore
the principle that the court should not intervene unless the judge made a fundamental error or arrived
at a conclusion that was clearly incorrect or beyond a reasonable scope of judgment. The LCJ concludes
that they concur with Hedley J's verdict and embrace it without altering its wording (paragraph 24).

Detailed Reasons for the Decision:

The Court of Protection, established by the Mental Capacity Act 2005, oversees cases involving
individuals without decision-making capacity. This approach addresses those not covered by prior
Mental Health Acts, consolidating welfare and property/financial authority previously split between the
Family Division and the Supreme Court. Pertaining to personal autonomy, the Court intervenes due to
diminished capacity. Regarding open justice, the new framework starts with private hearings as a norm,
except for valid reasons, aligning with a historical common law exception to open court principles.

The central issue revolves around determining if there's a valid reason to deviate from the presumption
of private hearings. The subsequent section (paragraphs 20-22) addresses key aspects: the Court
acknowledges the distinction between "A's" private life and public image, emphasizing the need to
protect his vulnerable state while maintaining his rights. Gavin Millar's position is that, due to
widespread knowledge of "A's" situation, media access to specific judgment segments suffices. The
Court raises the question of whether tailoring judgments for media is appropriate, and it also considers
the potential for misinformation if only certain parts of the judgment are shared.

Emphasizing the significance of public familiarity with this court, it's essential to bring attention to its
operations. The Court of Appeal's stance aligns with Lord Brown's perspective in the Madingley v
Associated Newspapers case. Furthermore, Hedley's determinations were upheld during A's appeal,
underscoring their validity.

While sufficiently addressing the Official Solicitor's case, Mr. Antony White QC on behalf of the media
prompts a review of Hedley J's interpretations of Article 10 of the European Convention on Human
Rights within Court of Protection procedures. Given the judge's definitive stance and the unlikely
recurrence of this issue in this court, we opt to delve into these arguments. Article 8 of the European
Convention establishes the "Right to respect for private and family life," protecting these aspects for
individuals with an exception permitting interference only in specific situations by public authorities.
This viewpoint aligns with the framework of the 2005 Act and its regulations, wherein Court of
Protection proceedings predominantly ensure confidentiality, excluding media and external parties. This
structure echoes established principles safeguarding individuals with reduced capacity, mirroring
safeguards extended to vulnerable children. Additionally, Article 6.1 of the Convention highlights the
entitlement to a fair and public hearing while allowing for exceptions to exclude the press and public,
particularly for reasons of morality, public order, national security, or when safeguarding privacy or
juveniles, if crucial for justice. In this context, the Court of Appeal (COA) found the existing legislative
scheme, specifically Rule 90, effectively addresses Article 8 considerations. Expanding on this COA
standpoint can reinforce the alignment of the present legal framework with Article 8's principles.

Furthermore, even Article 6 of the Convention accommodates the concept of a 'private hearing,' as
indicated in paragraph 28. Notably, the Strasbourg court, exemplified by the B v United Kingdom case,
acknowledged the compatibility of private hearings with Article 6. This acknowledgment aligns with the
understanding that, under specific circumstances, public interests might surpass individual privacy
concerns. In most instances, the considerations outlined in Article 8 would likely not significantly
augment the factors that courts already take into account when issuing orders within the legislative
framework, as witnessed in cases like re S [2004] UKHL 47 and Application by Guardian News and Media
Ltd [2010] UKSC 1. However, in exceptional scenarios, Article 8 could intensify the emphasis on these
rights, and in some cases, potentially influence the outcome.

Article 10 of the European Convention is explored within the broader context of safeguarding privacy, as
it upholds the freedom of expression encompassing the sharing of ideas while allowing for lawful
restrictions. The Human Rights Act 1998's Section 12(4) also underscores the significance of this
freedom. Disagreements arise regarding the timing of Article 10 engagement. Hedley J maintains that its
activation occurs after establishing "good reason" under Rule 93(1), while Mr. White contends it starts
earlier, either at the initiation of the process or during the application for authorization. The Court of
Appeal aligns Article 10's engagement generally with common law considerations, even though it might
magnify the focus on human rights and occasionally lead to different conclusions. Given the divergence
in perspectives, addressing this matter is apt, especially as Hedley J's stance contrasts with that of the
media's position.

Article 10's scope was clarified by Lord Rodger's significant stance in Guardian, emphasizing that the
right to access information isn't unconditional, referencing Leander v Sweden. This principle guided our
analysis. Applying Leander's notion, the Court of Appeal (COA) determined Article 10's engagement
during the media's application. The COA considered a broader context beyond Leander, as illuminated
by Gaskin v UK, where media's pursuit of information connected to court proceedings and the public
interest may involve Article 10. This dynamic view contradicts Leander's strictness. Furthermore, when
Article 6 is concurrent, as evident in Atkinson and Crook, Leander's applicability in court proceedings
isn't steadfast. The COA's perspective thus delves into the complexities of Article 10's application.

Recent decisions in the Strasbourg court lend support to the idea that Article 10 becomes pertinent in
cases like this for two key reasons. First, the Strasbourg jurisprudence has evolved beyond the
constraints of Leander, possibly broadening the scope of Article 10; second, when the media and
genuine public interest are involved, there are instances where the general principle of Leander may not
strictly apply. An illustrative case is Tarsasag a Szabadsagjogokert v Hungary, where the Hungarian Civil
Liberties Union protested being denied access to drug policy-related details. This case reflects a shift
towards a more comprehensive interpretation of the "freedom to receive information," recognizing a
right to access information. In contrast to Leander, this scenario involves interference with the media's
watchdog role. Unlike Leander, Gaskin, or even Tarsasag, this current case pertains to accessing court
proceedings, which strengthens the argument that Article 10 is relevant. The media's interest is rooted
in what is already lawfully part of the public domain. Hence, we maintain that Article 10 was in play
when the media submitted the application. Discrepancies from the judge's perspective, due to being
unaware of Atkinson, Matky, and Tarsasag, don't undermine the credibility of his decision. Had he found
Article 10 engaged earlier, it might have reinforced his view on the media's "good reason," although it's
unlikely to have fundamentally altered his decision-making process.

Conclusion:
As a result, the appeal is dismissed.
RATIO :

The jurisdiction of the Court of Protection to waive the privacy requirement for "good reason"
demonstrates an acknowledgment within the statutory framework that in certain situations, the public
interest surrounding an individual case might outweigh concerns related to personal privacy.

The activation of Article 10 occurred when the media submitted their application. While the typical
timing of engagement might not substantially impact court decisions, it could amplify the attention on
obligations pertaining to human rights, particularly in specific instances.

In the context of court proceedings, Article 10 takes on a more prominent role, especially when the
media aims to disseminate information to advance public interest. This dynamic contribution by the
media significantly enhances the administration of justice, strengthening the application of Article 10.