RSS Feed

Tag Archives: john hemming

Habeas corpus

If you see the words “habeas corpus”, you know that one of three things is happening :-

(a) you are reading a very old law report or doing a constitutional law exam

(b) you are reading a Perry Mason novel

(c) this is a misconcieved application drawn up by someone who has read some law but doesn’t actually practice it.

Justice for Families Limited and Secretary of State for Justice 2014 is not a Perry Mason novel, nor is it a very old piece of caselaw.

 

Although it is therefore the latter of the three options, I can see the mischief that it was aimed at tackling.  [In effect, a writ of habeas corpus, if granted, is a legal order meaning that whoever is holding person X must release or produce them]

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1477.html

It involves John Hemming MP, though this time in the form of a Director of a Company, Justice for Families, and the Court of Appeal.

 

Mr Hemming and no doubt the company also, have been concerned for a long time about the people who are imprisoned for breach of family law orders or contempt of court. In this case, they had learned of a woman who had been sent to prison for 28 days, and found that the judgment had not been published on Bailii, which was of course a breach of the guidance that all committal applications should be published.

 

Mr Hemming, in his capacity as an MP had learned that this was not a rare blemish, but a regular occurance, and had issued this writ as a method of focussing attention upon it.

“It is known from statistics provided by the Ministry of Justice in response to a written parliamentary question asked by myself that there are of the order of 5 people a month imprisoned for contempt for whom there is no published judgment in accordance with the practice direction jointly issued by the President of the Family Division and the Lord Chief Justice on 3rd May 2013 [this is a reference to Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316]. Hence these people should be properly described as secret prisoners. This is not supposed to happen. It should not have happened on 11th October 2013. The applicant is hoping to obtain an authority from the court of appeal which would assist in preventing this from continuing to happen in the future by making it clear that such imprisonments are unlawful and that an application for a writ of Habeas Corpus must be granted whosoever applies for such a writ and that release from imprisonment would then be expected to follow.”

 

I think, like the Court of Appeal, that the writ was misconcieved, but it is surely wrong that people should be locked up and the judgment explaining why not published. Obviously, one expects some sort of time lag (the tape has to be sent to transcribers, the transcript done, the judge then approves the transcript and it gets put up) but as we have a practice direction saying that all such judgments must be published, it is wrong that so often they are not.  I have some sympathy with Mr Hemming, and whether the application was misconcieved or not (it was), it was an approach that (a) got the case before the President (b) got the President to reinforce that such judgments must be published and (c) will probably get some publicity.

 

He also highlighted that the Official Solicitors role in reviewing committal cases and searching for injustice seems to have fallen by the wayside, and I think he is right to say that too.  [the duty got discharged in November 2012, but what safeguards remain? It seems to be an important function that has ended and not been replaced]

  1. The latest figures from the Ministry of Justice of receptions into prison for contempt of court, show that in the twelve months from April 2013 to March 2014, a total of 116 contemnors arrived in prison (monthly totals 15, 11, 8, 13, 14, 7, 12, 7, 6, 8, 7, 8). These figures are broken down into County Court (aggregate total 36), Crown Court (5), Magistrates (4), High Court (5) and “Not recorded” (66). Mr Hemming’s point, which appears to be borne out by an analysis he has conducted for us of the committal cases which appear on BAILII, is that for a very large number of these committals there is no judgment to be found on BAILII. This, if true, and every indication is that unhappily it is true, is a very concerning state of affairs.
  2. Analysis of the problem, and location of responsibility, is not of course assisted by the surprising fact that the available statistics record the type of committing court in less than 50% of the cases: in 66 out of 116 cases the committing court is not recorded.
  3. Mr Hemming, as we have seen, draws attention to the fact that the Official Solicitor no longer has any responsibilities in relation to contemnors. He suggests that some additional protection is needed for what he calls the secret prisoner, who is at present, he says, insufficiently protected.
  4. The duties of the Official Solicitor in relation to contemnors had their informal origins even before 1842, when they were put on a formal, albeit non-statutory, basis following the appointment of J J Johnson as Solicitor to the Suitors Fund (as the Official Solicitor was then called). They were put on a statutory basis by the Court of Chancery Act 1860. From 1963 they were to be found spelt out in a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

    “review all cases of persons committed to prisons for contempt of Court, … take such action as he may deem necessary thereon and … report thereon quarterly on the 31st day of January, the 30th day of April, the 31st day of July and the 31st day of October in every year.”

    That Direction remained in force until revoked by the Lord Chancellor on 5 November 2012. Accordingly, as I understand it, the Official Solicitor no longer has a role to play in relation to committal orders which result from contempt of court.

 

I have said, therefore that I can see that this was a very real problem that John Hemming was attempting to highlight and get the Court to deal with, and that I think it achieved its aim, but it is a drizzy Monday morning, and I think some of my readers might also like to read the interesting exchange when the application was being made.

 

In particular, enjoy Collins J saying something breathtakingly cool and rude and true all at the same time (underlined for your pleasure)

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of the proceedings, which begins with the following exchange:

“MR JUSTICE COLLINS: Can I see if I’ve understand this correctly? You’ve had no contact with the wife, the woman concerned?

MR HEMMING: That’s correct.

THE JUDGE: You don’t even know her name?

MR HEMMING: That’s correct.

MR JUSTICE COLLINS: You don’t even know if she is still in custody?

MR HEMMING: I’m going by press reports that she was given 28 days, but she might not still —

MR JUSTICE COLLINS: Yes she was, Of course, in any contempt proceedings, the contempt can be purged.

MR HEMMING: Of course.

THE JUDGE: And in this case it could be purged by … indicating where the children were.

MR HEMMING: Of course.”

A little later there is this exchange:

“MR JUSTICE COLLINS: … She refused to disclose their whereabouts or told untruths about where they were, and that is what led to the judge deciding as she did. Now there is no question but there is jurisdiction to impose a penalty, including imprisonment, for contempt of that nature because it is a contempt which is an interference with the administration of justice. And, of course, the whole background to this was the protection of children who otherwise would be at risk. Habeas corpus in these circumstances is an entirely misconceived remedy. There is a right of appeal. She was represented, she had legal aid, and she automatically will, even despite the government of which your party is a member and the removal of legal aid in many circumstances, still legal aid exists for an appeal against a committal order because liberty is at stake. So it is difficult to see what really you are doing here.”

Mr Hemming then explained the basis of his application. Collins J responded:

“MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.

MR HEMMING: Yes.

MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is —

MR HEMMING: Without the ability to contact her. That’s right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don’t know, do we.

MR JUSTICE COLLINS: No, we don’t

MR HEMMING: And that’s the difficulty of the situation of people in prison in secret —

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that’s what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless –“

 

 

The Court of Appeal do not disagree with Collins J on the merits of the writ of habeas corpus

 

  1. There are, in my judgment, two very simple reasons why this appeal is quite hopeless. Each provides a complete answer to the appeal, just as each provided a complete answer to the application before Collins J.
  2. In the first place, and as Collins J correctly explained, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal: see ex p Hinds [1961] 1 WLR 325, Linnett v Coles [1987] QB 555 and West v HM Prison Bure [2013] EWCA Civ 604. As Lord Goddard CJ said in Re William Oswald Featherstone (1953) 37 Cr App R 146, 147:

    The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired.”

  3. Secondly, and as I have already pointed out, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end: Barnardo v Ford [1892] AC 326, and (an authority supplied by Mr Hemming) In re J M Carroll (An Infant) [1931] 1 KB 317, 327. As Lord Watson put it in Barnardo (page 333):

    “The remedy of habeas corpus is … intended to facilitate the release of persons actually detained in unlawful custody … it is the fact of detention, and nothing else, which gives the Court its jurisdiction.”

  4. Mr Hemming’s response to the first point is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction. In support of this surprising contention he makes two submissions: first, that the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge; secondly, that the court was not “competent” because the hearing was not listed.
  5. As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint that the court lacked jurisdiction. Quite plainly, in my judgment, Theis J had jurisdiction on 11 October 2013 in the sense in which Lord Goddard CJ was using the word.
  6. Mr Hemming supports his alternative complaint that the court was not “competent” by reference to Article 6 of the Convention. The argument, in my judgment, is quite hopeless, whether or not bolstered by reliance upon Article 6. The fact is that Theis J was, as the expression was used by Lord Goddard CJ, sitting on 11 October 2013 as a court of competent jurisdiction. She was sitting in public. The mother was present and represented. The submission that an otherwise competent court was not competent because the hearing was not listed is, with all respect to Mr Hemming, devoid of all merit. I should add that I would have come to precisely the same conclusion even if, contrary to the facts, the hearing on 11 October 2013 had been held in private when it should have been in public: see McPherson v McPherson [1936] AC 177, where the fact that a divorce case which should have been heard in open court was heard in private rendered the resulting decrees nisi and absolute voidable only and not void.

I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.

 

The Court of Appeal judgment tackles a number of important points.

 

The first is the ability of a third party (ie someone who is not being held captive or prisoner themselves) to seek a writ of habeas corpus

Evidently, there is some provision for a third party to do this, otherwise miscreants could prevent the captive from getting legal remedy by simply holding them so closely that they could not apply. But how close does the relationship between imprisoned party and third party have to be, and what is required?

 

  1. In the nature of things, the court must be willing, where circumstances require, to hear an application for habeas corpus brought not by the prisoner but by some third party. For if the court refused to hear such a third party application, a prisoner unable to instruct someone to act for him would be denied a remedy and left to languish in what might be unlawful confinement. As is said in The Law of Habeas Corpus, 237, “If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts.”
  2. Thus it is clear that it is possible for a third party to make an application for habeas corpus even though acting neither as the agent of the prisoner, nor on his instructions, nor, indeed, even with his knowledge: see, for example, The Case of the Hottentot Venus (1810) 13 East 195, In re Price (1860) 2 F&F 263,[1] and Re Antoni Klimowicz (1954) unreported,[2] to each of which Mr Hemming helpfully referred us. But as the old case of Ex p Child (1854) 15 CB 238 shows, the right of a stranger to apply for habeas corpus is necessarily kept within bounds. As Jervis CJ said:

    “A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is.”

    And it is to be noted that the unsuccessful applicant was there ordered to pay the costs of the respondent who had been brought “fruitlessly and unnecessarily” to court.

  3. The principle in Ex p Child is now to be found stated in RSC Order 54, rule 1, as set out in Schedule 1 to the CPR:

    “(2) An application for [a writ of habeas corpus ad subjiciendum] …, subject to paragraph (3) must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

    (3) Where the person restrained is unable for any reason to make the witness statement or affidavit required by paragraph (2) the witness statement or affidavit may be made by some other person on his behalf and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.”

    Mr Hemming’s witness statement failed to comply with the latter requirement.

  4. In what circumstances, then, is a third party application appropriate? Given the vital importance of the remedy and the infinite variety of possible situations – as the facts of each of the four cases I have just referred to so strikingly illustrate – it would be unwise to be too prescriptive. The court must be flexible. That said, I would expect most cases where a third party application is appropriate to be either (as in Price and Klimowicz) cases where the prisoner is incommunicado or (as in The Hottentot Venus) cases where, to quote the language of The Law of Habeas Corpus, 238, “the impediment preventing the prisoner from acting [is] ignorance or disability rather than close physical custody.”
  5. In the present case neither principle applies. The mother was not held incommunicado. There was no impediment to her acting: she had counsel. Collins J was fully justified in expressing himself as he did. Mr Hemming’s complaint that the mother was being held, “incommunicado”, as a “secret prisoner” whose name was not known, was true only in the sense that neither the appellant nor Mr Hemming had made any effective attempt to discover her name

 

To be fair to Mr Hemming, he encountered a problem that many others will have encountered – an inflexibility with bureacrats to provide information without the Code or Reference number, and an inability to know the Code or Reference number because the judgment giving it had not been published.

  1. As Collins J correctly observed, Mr Hemming could have obtained a copy of the committal order on application to the Clerk of the Rules. FPR 29.12(2) provides that:

    “A copy of an order made in open court will be issued to any person who requests it.”

    Mr Hemming’s account of his attempts to obtain a copy of the committal order is vague and lacking in detail. He says that those acting for the appellant “spent some time wandering around the Royal Courts of Justice visiting the Family Division registry and talking to inter alia Jimmy in the Urgent applications court and the clerk to Justice Theis.” He insinuates, without asserting in so many words, that he was unable to obtain the committal order because he knew neither the case number nor the names of the parties to the case.

  2. As to that I propose to say only this. Plainly the court cannot be expected to embark upon an extensive and time-consuming trawl of its files to identify an order where the applicant is unable to identify what it is he is seeking. But here, Mr Hemming knew both the date of the committal order and the name of the judge who had made it. An applicant seeking a copy of the order, to which, I emphasise, he is entitled under FPR 29.12(2), should not be sent away empty-handed merely because he does not know the number of the case or the names of the parties. The court can, and should, supply a copy of a committal order, even if the applicant cannot provide those details, where the applicant is able to provide sufficient details of the case to enable the order to be located by the court without undue difficulty, for example, as here, the date of the order and the name of the judge.
  3. I add, for the avoidance of doubt, that when I refer to the court in this context I mean the court office. Applications under FPR 29.12(2) should be directed to the appropriate court office and not to the judge or judge’s clerk.

 

The other tangled issue the Court tackle is that of right of audience. Mr Hemming is not a lawyer and does not have rights of audience to present the case to Court. There was quite a clever device to get around this – Mr Hemming was effectively being a litigant in person through the vehicle of being a director of a company that has been set up in part for the purpose of tackling injustice in family cases (as can be seen through its name)

  1. CPR 39.6 provides that:

    “A company or other corporation may be represented at trial by an employee if –

    (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and

    (b) the court gives permission.”

    Paragraph 5.2 of CPR PD 39A provides that:

    “Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information:

    (1) The full name of the company or corporation as stated in its certificate of registration.

    (2) The registered number of the company or corporation.

    (3) The position or office in the company or corporation held by the representative.

    (4) The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. _19_: written authority from managing director; or _19_: Board resolution dated _19_.”

  2. The letters dated 4 November 2013 and 18 February 2014, signed, it is to be noted, by Mr Hemming, are inadequate. Neither complies with paragraph 5.2(4). Each is, in reality, no more than an assertion by the signatory that he is acting with the agreement of the board, an entirely self-serving statement unsupported by any independent evidence that he does indeed have that authority. CPR PD 30A, para 5.2 is there to be complied with. There is no excuse in the present case, where the court had specifically directed attention to it. As a matter of indulgence we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.
  3. We have not overlooked the principle, explained in The Law of Habeas Corpus, Farbey and Sharpe, ed 3, 2011, 238-239, that applications for habeas corpus are usually required to be made by counsel (now, a qualified advocate with higher court rights). Our agreement to hear Mr Hemming in this case is not to be taken as in any way weakening that long-established practice.

 

We shall wait and see whether the President’s words here make any difference to the publication of committal judgments – I would be surprised if Mr Hemming does not doggedly pursue (and rightly so) whether this problem has been resolved or whether despite the Practice Direction and the President’s words, committals continue to take place without transparent judgments being published.

 

 

Can a person choose whether to be represented by the Official Solicitor?

A consideration of the ECHR decision in R.P and Others v The United Kingdom 2012 

You may remember this case from 2008 in the Court of Appeal  – it was an appeal brought on behalf of a woman who had been judged to lack litigation capacity, and who had been represented through the Official Solicitor in care proceedings. The Official Solicitor had eventually not contested the care order at final hearing, and the woman then contacted John Hemming MP, and an appeal was brought on the basis that :-

(a)   The assessment of her litigation capacity was wrong

(b)   The assessment of her litigation capacity was fundamentally flawed as it had been obtained by an expert report funded by all parties, and thus the expert had a financial interest in reaching a particular conclusion (i.e because the LA were paying some of the experts fees, the expert had a financial conflict of interest and delivered a verdict they wanted)

(c)   That the entire principle of a person being unable to fight a Care Order when they wished to do so, purely because they lacked capacity was unfair and discriminatory against the most vulnerable persons in society.

The Court of Appeal dismissed the appeal, and it is a judgment worth reading. I know that Mr Hemming disagrees with the conclusions, as he is entitled to, and I put that caveat in so that people know that there is a different perspective to that in the judgment.  [That judgment is at  http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html]

The case finally reached the ECHR and their judgment can be found at :-

http://www.bailii.org/eu/cases/ECHR/2012/1796.html

The Claimant was unsuccessful on all counts, but I still think that the case raises some important issues. It does feel uncomfortable that every parent, no matter the quality of their case has the right to be legally represented and challenge the recommendations of the State and to test that evidence UNLESS they lack litigation capacity and the Official Solicitor takes a view that the case should not be contested. 

It does seem to me that a person can lack litigation capacity to know what a care order is, or what a threshold criteria document is, or even to be taken through individual allegations and be able to respond to them, but I think fundamentally it is not difficult to judge whether the view of a parent in a care case is  “I want my child back” or “I don’t want my child to be adopted” and I think that case ought to be put.

What RP didn’t really get massively into was the ability of the Official Solicitor to effectively throw the towel in on behalf of a parent who lacks capacity to instruct a solicitor but still has firm views on that central question of ‘I want my child back’.  If the O/S always approached cases on the basis of ‘if the parent is saying they want the child back, that case must be put, but it will be for the O/S to instruct the solicitor on HOW to put the case’   I would be quite happy. Like John Hemming MP, I do feel uncomfortable when the O/S throws the towel in – even where the evidence is overwhelming. 

[After all, there were probably stages of Alas Al Wray where the evidence looked overwhelming…]

 

 

The ECHR accepted the view of the UK that where a person lacks litigation capacity, the Official Solicitor can be appointed and conduct the litigation and that the O/S has to do what they consider is in the child’s best interests.

 [Now, in my humble and trivial opinion,  sometimes what the parents consider to be the child’s best interest and what the child’s best interest is completely overlaps, sometimes they are diametrically opposed and more often than either, sometimes it takes a Court hearing and a determination of the evidence to see whether those two views overlap or are incompatible – that’s why we have Court hearings]

 

And of course, the need to conduct the ligitation with the child’s best interests at the forefront, rather than the parents wishes, is not a stipulation that applies to those receiving instructions directly from parents.   [With some caveats – a solicitor isn’t allowed to lie to a Court on your instructions,  or conceal child abuse,  but if a parent says ‘I want you to fight the case’ a solicitor isn’t obliged to decide whether fighting the case is good for the child, they let the Judge make that ultimate decision]

 

I think the submissions of the Equality and Human Rights Commission are interesting and worth reading.

  1. 58.                        3.  The submissions of the Third Party intervener

 

  1.   The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents.

 

  1.   The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.

The ECHR were satisfied that the UK system has sufficient safeguards for establishing whether a person has litigation capacity and whether they are entitled to challenge such assessment, for the Official Solicitor role to operate properly and for this to be explained to the person, that the system did not discriminate against those with a disability, and that the system of jointly funding experts did not lead to a conflict of interest.

 

[Frankly, as a Local Authority lawyer who knows the financial budgetary problems, I’d have been delighted if the ECHR had decided that the LA could no longer share in the costs of instructing an expert]

Here is the reasoning on this element

  In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68).

  It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.

 

  In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 – 89, 16 December 1999).

 

  It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity (Shtukaturov v. Russia, cited above, § 68).

  With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings.

  The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.

  The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests.

  As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.

 

  In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment.  Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.

74.                         Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).

 

  1. 75.                          With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.

 

  1. 76.                          Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself.

 

  1. 77.                          Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.

[If you have read the Court of Appeal decision, you will be aware that whether this letter was sent was a matter of great factual dispute, with it being alleged that it had been falsely inserted into the file by the solicitor as a ‘back covering exercise’ after the event  but never actually sent. The Court of Appeal rejected that allegation fairly forcefully, but one can see the critical importance of proper documentation prepared in a way that the client can comprehend being provided in a timely fashion]

 

All of this seems to go away, of course, now that the Practice Direction suggesting that the Official Solicitor may cheerfully refuse to act on behalf of someone lacking litigation capacity and that the solicitor should take instructions from the client’s friends, family, neighbour,  friendly milkman,  local newsagent et al instead.

 

I am adding in the comment made by @thesmallplaces on the UK Human Rights blog post about this, because I think it raises some really important points and in an excellent way – so none of these are my words that follow, but I do agree with an awful lot of it, particularly the fine final paragraph.

I think it’s a real shame that this case has become overshadowed by the antics of John Hemming MP. Although it raised very serious Article 6 issues, every time these issues are raised they get swept aside by a discussion of Hemming’s behaviour. Valid as many of those criticisms are, this misses the point entirely. I’m really pleased to see that serious lawyers like Rosalind English and Richard Stein are talking about these issues.

My feeling is that the ECtHR gave a very superficial analysis of the situation. Prior to RP bringing the case in the Court of Appeal, it wasn’t even clear that a person who had been found to lack capacity to litigate had standing to (see paragraph 36 where Sir Nicholas Wall ‘says no more about it’ as neither the OS nor the LA raised a challenge on these grounds). I suppose the ECtHR ruling has at least made clear that people in RP’s position must have standing to apply to the court to displace their litigation friend. But there are several problems here. How is a person who may have borderline capacity, who is unlikely in the extreme to be familiar with CPR 21 or Court of Protection Rule 147, supposed to do so without being able to instruct a solicitor? These are precisely the circumstances which drive people into the arms of McKenzie friends like Hemming in the first place. Secondly, if they do wish to challenge the appointment of a litigation friend in court – is there public funding for them to do so? How are they supposed to secure and fund any expert reports they might need?

The ECtHR placed great store by the OS’s complaints mechanism. There is very little evidence that the complaints mechanism has ever been used in this way. Certainly none of the OS’s annual reports for the last four years suggests that he has withdrawn from a case on the basis of a complaint. The ECtHR also said that RP should have raised her challenge to his appointment earlier. There is very little discussion as to precisely what RP was told about the OS’s appointment at the outset. The role of a litigation friend seems baffling to most people outside the legal world. To be told that somebody has been appointed who will act in your best interests is very different to being told that somebody has been appointed who might argue a case which conflicts entirely with what you want. Surely that latter point is what must be pressed home to a person in order for them to fully understand the significance of being found to lack litigation capacity. Yet neither the CoA nor the ECtHR report that this is what RP was told.

One of the core principles of the MCA is that people should be offered support to promote their capacity in the relevant respect. If you look at the correspondence between RP and her solicitor quote in the CoA ruling, it’s very hard to see how this is geared towards supporting a young mother with learning disabilities who is extremely distressed. For somebody in RP’s position, the first stage should be to provide support for her to understand and make the requisite decisions herself. For people with learning disabilities, it may require skills which mainstream solicitors don’t have – yet there is very little provision of advocacy services or similar which could help people with litigation matters.

There is a wider question about whether it is even appropriate for a person’s ‘objective’ – as opposed to ‘subjective’ – best interests to be represented in court. There are cases where there is a danger that a person might run up excessive costs or settle for trifling amounts without the intervention of litigation friends – they often have a very valuable role in such cases. Likewise in cases where a person’s wishes and preferences cannot be discerned. But in cases like this, or cases in the Court of Protection, where the courts are already bound to give effect to the best interests of the child or the person themselves, what is the danger in pressing as hard as possible for what the person actually wants? To do otherwise distorts the case that is presented before the court so that a person’s rights to self-determination are never fully adversarially tested. What is tested instead, is other people’s views of what they should want.”