The NRA is often in the news, generally after some terrible incident in an American school and usually positing the opinion that if only everyone on the scene had had a firearm rather than just the sociopathic person shooting everyone nothing bad would have happened. This is a different NRA. So if you have come here looking for the National Rifle Association (hi Piers, bye Piers) then you’re in the wrong place.
This is Charles J’s decision in a group of linked cases designed to test whether in a case where a vulnerable person’s liberty is being deprived as a result of their care package, that person HAS to be represented. The President, said no, we could distinguish between cases where the deprivation is contentious (when they should be represented) and where it is not contentious (where a streamlined fast-track system could be in place where there might not even be a hearing)
This came before Charles J as a result of the District Judge who had first got the linked cases realising that this was a real can open, worms everywhere scenario , described by me here
This is chief is a pragmatic engineering solution to the huge mountain of such Deprivation of Liberty cases that are going to come before the Courts as a result of the Supreme Court in Cheshire West broadening out the criteria of what consituted a deprivation of the person’s liberty.
Thus, if you don’t do Court of Protection work, you need read no further, and that may be a relief to you, because the thing that most lawyers know about Charles J is this gem from the Court of Appeal in Jones v Jones 2011 :-
The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:
“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”
Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.”
Of course, I have no views on this whatsoever, and merely report the judicial decision of the Court of Appeal in that regard. I may, however, have prepared a small packed lunch, put on a warm coat and ironed my Welsh flag before I sat down to tackle the judgment in NRA and Others 2015.
My mission-statement (sorry I just shuddered) when I began this blog is “I read it, so you don’t have to”. I have been putting off this particular task for quite some time.
As I outlined, the President had arrived at a two track process – where P (the vulnerable person) would only be represented in a deprivation of liberty case where the deprivation or the plan was contentious. However, when the Official Solicitor in the case appealed that decision, the Court of Appeal had two things to say – firstly that it hadn’t even been a decision so there was nothing to appeal, but secondly that P should ALWAYS be represented.
These cases were then the first raft of non-contentious cases that were run as test cases to work out what the hell was going on. It had become really apparent that the Official Solicitors office, who normally represent P would be utterly overwhelmed by demand and that the practical implications of following the Court of Appeal’s guidance (since it is obiter and not ratio) would be to grind the whole system to a halt, and more importantly make it impossible for P to be represented in a contentious case.
So there were a few questions
Should P always be represented? Could P be represented by a litigation friend instead of the Official Solicitor? Would that litigation friend be able to speak in Court if they didn’t have rights of audience?
Re NRA and Others 2015
If I tell you that the judgment contains 269 paragraphs, and that a full 16 of them come under the sub-heading of “Flaws and gaps in the reasoning of the Court of Appeal” you get much of the flavour of the whole thing without having to read it all. A state of affairs for which I envy you.
It is a curious thing, and a dreadful position for the Judge to be placed in. To make this decision right in law, and respect the well-established principle of Winterwerp v Netherlands 1980 ..it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” … and the Court of Appeal’s steer which though NOT binding could honestly not have been clearer, the Judge would have to break the Court of Protection system. Barely any case would be heard and injustice done to thousands of cases. The alternative was to take the pragmatic engineering solution of “This can’t work if we insist on P always being represented, so we’re not going to do that”. However, it has to be legally dressed up so that it at least looks as though it can withstand an appeal.
Charles J makes the following conclusions, which he thankfully summarises at the end
(1) P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.
(2) In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.
(3) I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.
(4) In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.
(5) I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.
(6) In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.
(7) That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either
i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or
ii. joining P as a party.
(8) So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.
He also ruled definitively that a litigation friend can, if appointed by the Court, be given the power to conduct litigation
Gregory v Turner  1 WLR 1149, at paragraphs 50 to 58, it is common ground that if and when the court appoints such a litigation friend:
i) it can also give him or her a right of audience and the right to conduct litigation in relation to those proceedings (see Paragraphs 1(2)(b) and 2(1)(b) of Schedule 3 to the 2007 Act),ii) it can remove those rights, and further and alternatively
iii) it can end the appointment of the litigation friend (see COP Rules 144 and 140).
[He described the arguments to the contrary made by some of the parties as ‘arid’. I can’t think of anything to say about that which isn’t churlish, so let’s move on. ]
And that conducting litigation can include anything that P could do themselves as a litigant in person if only they had capacity – so definitively, if a Court appoints a litigation friend and grants them the right to conduct litigation, they can do everything – they can deal with correspondence, draft a statement and address the Court. They can be given rights of audience, even though they would not be someone who has them.
I have mixed feelings about this decision – it was an impossible position for the Judge to be in. To make a fair decision would have broken the Court of Protection and caused far more harm to all of the vulnerable people who require its services. On the other hand, I just agree with Winterwerp and feel that if someone is being locked up even if it is ‘for their own good’ they should have someone speaking on their behalf and making such points as ought to be made.
The only thing I would say is that by setting out a huge section entitled “Flaws and gaps in the Court of Appeal’s reasoning”, we now have a pretty solid indicator that if a decision is made relying on this judgment and someone intends to appeal it, the Court of Appeal are going to be rather interested in getting to grips with it. That really just places even more uncertainty into an area of the law which has been nothing but uncertainty ever since the President first encountered the words “Cheshire West”
The Law Commission reforms of deprivation of liberty can’t come soon enough.