V v Associated Newspapers Ltd & Ors [2016]

In V v Associated Newspapers Ltd & Ors [2016] EWCOP 21 (25 April 2016) this matter in the Court of Protection was heard before Mr Justice Charles and concerned an application for further reporting restrictions to those already granted at the first hearing for directions, which, because of C’s death, had come to an end. At the earlier hearing before Judge MacDonald, on the issue of capacity, he had heard oral evidence given by one of the adult daughters of C concerning C’s  lifestyle and also evidence from three psychiatrists, following which he issued an anonymised judgment.

The Respondents in the matter, part of the media, wanted the application dismissed but Mr Justice Charles recorded they have since acknowledged that he can and should make that order. In this case there had been a public hearing with reporting restrictions which had ceased prior to the application and he noted that this matter included aspects that often arise in Court of Protection matters which bring into question, the balancing of the Convention rights.

He observed that the remaining dispute concerned the duration of the order that granted reporting restrictions and anonymity, after agreeing with the parties to the application that an injunction should be granted. He also discussed the approach that should be taken for the “assessment of the competing factors on the disputed issue of its duration”.

He referred to where reporting restrictions have been granted in serious medical treatment matters and how restrictions can continue after the death of the person concerned.  In this matter the family’s Article 8 rights under the ECHR had been engaged. The evidence before him showed that both daughters had been upset by their involvement in the Court of Protection matters and the resulting widespread media interest about C and the family, provided to the court, which they considered served only to attract salacious interest in C’s history of sexual relationships.

Following C’s death, the press attempted to interview the family on many occasions and Mr Justice Charles looking at the events considered that identifying and naming C and the family would only lead to further upset for them intensifying that which had already been written and photographs published, following the Court of Protection proceedings.

He referred to the competing Convention rights within the ECHR which he identified as C’s family’s Article 8 rights to privacy and the Article 10 rights of the Defendants in respect of freedom of the press to report. He observed that “two relevant cases have been reported since the hearing on 9 December 2015 and pre-date the further submissions. They are R (on the application of C) v Secretary of State for Justice [2016] to and PJS v News Group Newspapers Ltd [2016]”

He considered the Court of Protection should examine the following points:

  1. Are there good reasons for the hearing to be in public? 
  2. If there are should a public hearing be ordered with or without reporting restrictions?
  3. As part of (ii): How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
  4. By reference to the conclusions on the above questions, on Lord Steyn’s ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order/ anonymity order should be made?

He observed that in the interest of open justice, the answer to (i) will always be yes and that the approach set out in the case of re S(A Child) should be used by the Court of Protection in deciding whether to grant an order in respect of reporting restrictions relating to (ii) to (iv).

In this matter, C’s children’s Article 8 rights had been engaged as the Court of Protection, through all the evidence of a personal nature relating to C and the family presented to the Court in the course of the hearings, had invaded their private and family lives. Mr Justice Charles considered that “thebalance of the competing factors comes down firmly in favour of the grant of a reporting restrictions order until further order” and that the order should extend to reporting on C’s inquest.

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