The Court of Protection will, on rare occasions, not only hear a case in private but do so without telling one of the parties or their representatives, even after it’s happened. This is known as a ‘closed’ hearing. The court has power to do so under the Court of Protection Rules 2017: see In re P (An Adult) (Discharge of Party) [2021] EWCA Civ 512; [2021] 1 WLR 3098; at paras 28-30. But this is problematic and recent guidance suggests such a procedure should only be used ‘as a matter of last resort’ and for the most compelling reasons.
NB. A closed hearing is more extreme than one where, for reasons of urgency or to protect the subject matter of a dispute, one party applies to the court ‘without notice’ to the other(s) (what used to be termed ‘ex parte’). In such a case, the fact that the court has heard an application and made an order will be notified to the absent party or parties soon afterwards, and they will have an opportunity to challenge the decision in a subsequent ‘with notice’ (or ‘inter partes’) hearing. But a closed hearing is one in which, by order of the court, the excluded party and their representatives may not even be told about the hearing afterwards.
Risk of misreporting
Quite apart from the problems it may present to a party or their advisers who are unaware that they have been excluded from a critical part of the process, there is a serious risk that anyone attending and reporting a subsequent open court hearing in the same case may not be aware of facts or decisions from the closed hearing and may, in consequence, publish what it is effect a misleading account of the case. That is what happened in the case of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 (Poole J).
The case involved a mother and daughter, whose ‘enmeshed’ relationship was impeding the daughter getting proper treatment for a serious medical condition (primary ovarian failure). Treatment was ordered by HHJ Moir in an earlier, open hearing: The Local Authority v A [2019] EWCOP 68. In a further, secret hearing, of which neither the mother nor her legal representative were notified or aware, the judge ordered the treatment – which was opposed by both mother and daughter – to be administered to the daughter covertly, and it was. In open court proceedings before Poole J, nearly two years later, the fact that the treatment had by then been successfully administered was finally made known to the mother and her legal representative when the judge told them at that hearing.
The case was observed by Celia Kitzinger of the Open Justice Court of Protection Project, who was dismayed to find that she and another blogger had effectively been misreporting the case in their earlier post (‘Medical treatment, undue influence and delayed puberty: A baffling case’) because the ‘magnetic’ fact of covert treatment had been meticulously concealed at the open hearings. Once Poole J at the later open hearing had disclosed the true position, the Project felt bound to issue a statement (‘Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post’) and then a revised post about the case itself (‘Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44’). The project’s statement said: ‘We believe (as Celia Kitzinger said to Poole J in court) that the conduct of proceedings in this case has undermined the work of open justice and transparency in the Court of Protection.’
The case was the subject of a discussion on BBC Radio 4 Law in Action, following which the then Vice President, Hayden J, told presenter Joshua Rozenberg that the Court of Protection would be considering whether judges needed new guidance to avoid ‘inaccurate reporting’ of hearings and the creation of a ‘false narrative’. (See ‘Open justice at the Court of Protection’, A Lawyer Writes, 25 October 2022).
The Guidance
Guidance was subsequently published by Hayden J: ‘Closed Hearings’ and ‘Closed Material’: Guidance[2023] EWCOP 6.
The guidance (at para 1) draws a distinction between a ‘closed hearing’, from which a party (and their legal representative) may be excluded, and a ‘private hearing’, from which the press and public may be excluded, although it also accepts (at para 19) that where a hearing is closed, it will ‘fall outside the usual transparency provisions provided for in PD 4C and should therefore be heard in private’.
The court may also determine that certain material should not be seen by the excluded party or their representative, defined as ‘closed material’.
The guidance makes clear that while the Court of Protection has the power to hold closed hearings or order material to be closed, as part of its case management powers, those powers have to be exercised in accordance with the overriding objective in r 1.1 of the Court of Protection Rules, with the common law obligation of fairness, and with the European Convention on Human Rights (para 5).
Any decision to order a closed hearing or to close material involves a derogation from open justice and from the ‘starting point’ that ‘all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions’ (para 6).
Where such a derogation is justified, as a matter of last resort, either to secure P’s rights or for some other compelling reason (such as national security), it must be (1) as limited as possible; and (2) kept under review. It is for the party seeking a closed hearing or to close material to justify that step, although the ultimate decision is one for the court (paras 9 to 11).
Given that a closed hearing will almost certainly also be a private one, para 20 provides for the ‘publication of a reasoned judgment at the earliest possible opportunity to explain both the rationale for the holding of the closed hearing and (insofar as possible) the substantive decision reached at the hearing’.
But the guidance also contemplates one or more judgments being given in private and remaining, like closed material, either temporarily or permanently concealed from the excluded parties. At the conclusion of proceedings, para 29 provides:
‘The starting point is that all matters relating either to closed hearings or the fact of closure of materials should be addressed in an open judgment at the close of proceedings. That open judgment may need to be accompanied by a closed judgment (for instance if the closed materials formed a material part of the court’s determination as to P’s capacity or – more likely – best interests). However, such should be an exceptional course of action, as it would mean that there would be no public record of why the court reached its ultimate conclusions.’
The guidance is clearly an attempt to provide a measure of accountability for a procedure which is profoundly at odds with the norms and expectations of a fair trial. In this it shares much of the juridical anxiety demonstrated in relation to other closed or closed material procedures, usually for the protection of intelligence relating to national security: see Al Rawi v Security Service [2012] 1 AC 531 (SC); Bank Mellat v HM Treasury [2013] UKSC 38; [2014] AC 700, (SC); and R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593, (SC).
But it goes further than those other procedures in potentially withholding from an excluded party or their advocate even the knowledge that they have been excluded. For an advocate to be instructed to represent a person with the disadvantage of being unaware of facts and evidence concealed from them both is profoundly troubling.
Special advocates
A crucial element in the process adopted in civil or public law cases is the involvement of an independent advocate, sometimes referred to as a ‘special advocate’, whose role is to test the evidence on behalf of the excluded party and ensure their article 6 rights are protected. Such a measure of protection is all the more necessary in a case where the excluded party has been denied even a summary or ‘gist’ of the closed material: see R (Haralambous) v Crown Court at St Albans [2018] UKSC 1; [2018] AC 236, SC(E) at paras 61-62. (That case concerned judicial review proceedings relating to the validity of a warrant issued by a magistrates’ court and an order of the Crown Court permitting police retention of seized property, in which closed material had been relied on.)
There appears to be no automatic provision in the present guidance for such an advocate in the Court of Protection – though it would be open to the court in a given case to invite the Attorney General to appoint one, subject to funding being provided: see In re R (Closed Material Procedure: Special Advocate’s Funding) [2017] EWHC 1793 (Fam); [2018] 1 WLR 163 (Cobb J) and In re P (An Adult) (Discharge of Party) (cited above).
Independent monitoring
Use of the closed material procedure under section 6 of the Justice and Security Act 2013, which is governed in civil cases by Part 82 of the Civil Procedure Rules, is also subject to independent monitoring, and statistics on its use are published in an annual report. The 2013 Act procedure is, of course, primarily concerned with ‘sensitive material’ needing to be closed for reasons of national security.
A measure of scrutiny or at least public awareness can be achieved by publishing statistics. The same is true of the annual statistics on the use of anonymised privacy injunctions (including so-called “super-injunctions”) by the Ministry of Justice.
In the case of the Mental Health Tribunals, whose proceedings may affect or involve parties whose capacity to understand and participate in them is limited, a measure of external scrutiny is provided by the Care Quality Commission.
It would surely be possible, therefore, to provide some form of independent monitoring or record keeping in relation to the use of closed hearings or closed material procedures by the Court of Protection, whether or not special advocates are engaged in any particular case.
But to have neither of these protections in a process in which the court and one or more of the parties and their representatives can effectively collude in deceiving one or more other parties and their representatives, as well as any reporters or observers attending subsequent open hearings, and from which there may never be a public judgment, stretches the very limits of compliance with article 6.
Recommendation
We would therefore recommend that the guidance be updated to include a presumption that in any case where a closed material or closed hearing procedure is being considered, the court should request from the Attorney General the services of a special advocate to assist the court on behalf of the excluded party; and that in any event, the use of both closed hearings and closed material procedures should be the subject of some form of statistical monitoring by a suitably independent body or appointee.
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