A High Court judge has recently said that when the Court of Protection sits in open court, so that members of the public can attend if they wish, the barristers should all be wearing wigs and gowns as they do in most other courts, to send a clear message about transparency and open justice.

The suggestion has sparked renewed discussion about the role of wigs and gowns in the administration of justice, and in particular whether they are appropriate in the Court of Protection, which deals with the medical, welfare and financial affairs of adults who lack the mental capacity to do so.

Mr Justice Hayden, vice-president of the Court of Protection, made the comments in an interview with the Law Society Gazette, following a case heard in Manchester in which there had been criticism of the care plan for a young autistic women that had resulted in her being sexually exploited by a number of men. His oral judgment in the case was later transcribed and published “so there could be ‘informed public debate’ on the issues the case raised”.  

“In an interview with the Gazette, the judge said he took the unusual step of requiring advocates to be robed, and robing himself, for the hearing in Manchester. At present, he said, ‘some counsel turn up in robes and some in suits and it’s a hotchpotch. So I decided I would signal unambiguously to everyone that we were sitting in open court. I was surprised at the impact it had – but it is a very visible symbol of transparency.’”

We infer that the practice of some counsel turning up robed and others not may result from the fact that it was only last year that the rules were changed for most Court of Protection cases to be heard in open court.

The practice under the old (2007) rules had been for cases involving welfare and financial affairs to be heard in private, with only accredited journalists able to attend, while cases involving approval of medical treatment for those lacking capacity to consent were usually held in public. In 2016 there was a transparency pilot scheme under which, for a trial period, all cases were to be held in open court, subject to stringent reporting conditions. The pilot was extended and eventually incorporated into practice directions issued as part of the new Court of Protection Rules 2017. This means that all cases now need to be prepared on the basis that the hearing will take place in public, so parties should be anonymised in the court papers and other identifying details redacted.

The rules say nothing about “robing up” — as barristers describe the business of donning wigs and gowns — and it would appear that the matter is largely left to discretion. What Hayden J is proposing sounds like a hard and fast rule, in support of the transparency agenda.

But does it really promote transparency? When the Gazette article was posted on Twitter it drew a mixed response from lawyers. Sarah Greenan wondered

“why on earth is it still thought necessary for people to robe in order to give the message that something is in open court. I can think of few courts for which robes are less appropriate than the Court of Protection.

I just feel robing tends to intimidate many of the lay parties, and that’s the last thing you need in COP.”

The barrister who tweets as @WelshGirlAbroad responded:

“Interesting issue. I think my client this morning (P) would have quite liked us robed – was keen to know the case was being dealt with properly, and was reassured to know that I do sometimes wear wig. For others it would be terrifying as they associate Ct with [being] in trouble.”

Another Court of Protection barrister, Tor Butler-Cole, said

“I think the person the case is about ought to be able to choose whether the lawyers wear robes or not, assuming they are attending the hearing too”.

In relation to the change in the rules favouring open court hearings, she added:

“I don’t think the change to open court has made any difference to how the lawyers behave in court, in terms of trying to help P feel at ease. It has made everyone more anxious about referring to personal information in hearings even where there is a reporting restrictions order.”

Commenting more generally about the practice of the court, she said:

In the Cop, if someone was unhappy about the seating plan, we’d change it! It is a massively less adversarial place than all other courts, where people go out of their way to make it accessible. Judges come off the bench to speak to people, visit them in care homes etc.

Another barrister, Gerard McDermott QC, recalled a

“truly tragic case where one family had been affected by multiple fatalities and serious injuries. The serious injury case went to trial. At the RCJ with Judge in wig and full robes. It was around the time when a decision on judges’ robes was imminent. After court finished for the first day we reviewed how things were going. I also asked what they thought about the formality – robes etc. Family said that to them the day of accident had been most tragic and they welcomed formality inc robes … reflecting the seriousness of the occasion.”

Given that there have been differing views on the benefits of hearing Court of Protection cases in open court in the first place (for many of the same reasons as might apply to hearings in the Family Courts), it is perhaps not surprising that there should be differing views on the benefits of adopting formal court dress. Moreover, the wearing of wigs and gowns is only one aspect of the formality of court procedure. As these comments make clear, there are other aspects, such as language, and even the seating plan, which can affect the mood of the proceedings and either intimidate or reassure the parties for whose benefit the hearing is being conducted.

Perhaps what the judge wanted to convey by his remarks was that the benefits of openness and transparency, emphasised by the wearing of formal court dress, transcend the interests of the parties. By sending a message that the courts are open to public scrutiny, it can only increase public confidence in them.

In our view, what would send a much stronger message would be for the Court of Protection to provide more information about its work and its procedures to those participating in or attending their hearings there. The information published on the official Court of Protection page on the Gov.uk website is fairly basic, and the notice given to anyone attending a hearing is not only quite intimidating (in warning about the risk of contempt of court in breaching any of the reporting restrictions) but is also generally quite uninformative about the actual case. A series of plain language leaflets for anyone visiting the court would be a simple way of massively increasing transparency and public understanding of its work, and probably more effective than a mandatory rule about court dress.

Featured image: R v Hughes (in the Supreme Court) by Isobel Williams, used on her blog Drawing from an Uncomfortable Position, reproduced here with thanks.