This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.
A Healthcare NHS Trust and P 2015
A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case. When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)
What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.
That is so that the argument about article 8 v article 10 can be run with the Press being present and represented. It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)
It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.
So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?
- It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
- When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
- The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.
If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.
On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.
- The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
- Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.
Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.
To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-
- I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because
1. It would be a statutory contempt.
2. It would be a contempt of common law.
3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).
4. It would be a breach of confidence.
- In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.
The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.
- Section 1 of the Contempt of Court Act 1981 provides:
“In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”
Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:
a) publication addressed to the public at large, as any sections of the public;
b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;
c) publication occurs at a time when the proceedings are active.
So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.
- Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).
What about common law contempt?
- In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc  1 WLR 926 at 936B-D set out the actus reus to be established:
“We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”
- At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:
“To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’“
- The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.