The Court of Protection pilot – taking off before a flying test?

Questions about the Court of Protection transparency pilot

Since January 2016, what are (under the original court rules) ‘private’ court hearings in the Court of Protection have been held in public under a so-called pilot scheme. ‘Pilot’, according to the OED, means ‘Done as an experiment or test before being introduced more widely‘. We would therefore expect this test to be assessed at some point and, indeed, such an assessment was referred to by the judge in charge of the CoP, Mr Justice Charles, in the case of V v Associated Newspapers Ltd & Ors [2016] EWCOP 21, back in spring 2016.

We at the TP began to wonder when this assessment would be done, especially when suggestions emerged that Family Court cases too, would start to be heard in public. We therefore made some requests (under the Freedom of Information Act 2000) to the MoJ about how the scheme was going and what was happening about reviewing its impact. We wanted to know how successful this exercise in transparency was, and the scheme was due to expire on 31 August. It has, however, now been extended until the end of December, pending a rule change to make it permanent.

You can read the questions here in our CoP Freedom of information request to the Ministry of Justice.     

Given that the system is now going to change, so that public hearings are the norm, we would have expected the assessment to have been positive. However, we were aware anecdotally that (1) lawyers were having to spend a lot of professional time (paid for by the person involved in the court decisions that are being made) anonymising all their paperwork so that anyone attending could not identify the parties and (2) hardly anyone ever did attend anyway. We have written about this second point here.

The problem is that, in case a member of the public might walk in to court, every case now involves anonymisation and the preparation of a ‘pilot order’ that ensures reporting restrictions are in place, These restrictions, because they are not automatic, as in Family Court cases, have to be notified to the press. We explained the process here.

Answers from the MoJ

Against this background, the replies by the MoJ to our questions were surprising:

1. There had been a series of meetings of judges, lawyers, court staff and the media in April 2016 about how things were going, four months into the pilot. The feedback was that this was too early to really judge its effects. However, some of those attending thought that the potential benefits of the pilot were outweighed by the disadvantages of additional workload and expense, One judge said his staff were ‘sinking under their workload’ and another that the pilot had taken ‘an enormous emotional toll on staff’.
2. Although 18 months have elapsed since those meetings, the MoJ have not gathered any more views from courts, lawyers or the media before announcing that the rules will change to make open court the presumed starting point for all hearings. The MoJ is currently considering whether to hold a furher workshop. However, there is no indication that if they do, this workshop would be advertised or any more inclusive than those in April 2016, nor that anything will be published about its discussions.
3. It was noted at the 2016 workshops that anonymisation processes were inconsistent across the country and sometimes hearings were delayed by them.
4. According to these replies, no effort at all has been made by the MoJ to find out the views and experiences of people the cases are about, (known in the CoP as “P”) or their families.
5. Some lawyers were concerned about the time and expense it would take to prepare a challenge to a public hearing and the distress that this might cause their clients. They were also concerned that proving a real risk of psychological harm to P, directly caused by a public hearing, could be difficult.
6. A total of 544 individuals had attended a CoP hearing in London during the pilot (January 2016-August 2017), consisting of just 11 media representatives and 533 others.
7. No-one from the media or general public (or hardly anyone – this is one of the replies that is contradictory) has attended a hearing outside London.

Some answers we received were unclear so we have asked for these to followed up, and will write further when we hear back.

Conclusions

In the meantime though, we don’t think that there is enough evidence one way or the other that allowing the public in to court is helping public legal education or improving accountability. As recent Cardiff University research shows, most CoP cases are about personal relationships; where a person will live; and who will care for them. The lack of interest in attendance reflects the essentially private nature of these decisions,

We also think that there should be some consideration about the implications of the pilot on people, whose capacity is in question, having their assets spent on labour-intensive anonynimistion processes, when it was not their choice to apply to a court, and neither they, nor their families, are getting general or specific advice from the Court Service about the publicity rules.

Photo: Thanks to Inge Wallumrod at pexels – Creative Commons Licence