Although it was announced quite openly, and written about here on this blog, we suspect that the Court of Protection’s transparency pilot scheme has not actually resulted in any attendance of cases by members of the public unconnected with a case. One reason for this may be the difficulty of finding out when and where a hearing is taking place.
It was a pilot, but it wasn’t very transparent. That’s because NO ONE KNOWS.
Well, that may be a little simplistic. The Court of Protection’s transparency pilot scheme was announced with a fanfare, albeit a fairly muted one, in November 2015. It ran from January 2016 until the end of July.
We discussed it on this blog, where several of us have written posts about it. (They can be found by clicking on “Court of Protection” in the list of categories on the lower right hand side of this page.) But it was barely mentioned by anyone else. An article appeared in Communications Law journal, but that’s because two of us wrote it.
The impression we get is that hardly anyone at all has actually attended any of the open hearings mandated under the pilot scheme. We have asked practitioners who regularly appear in the court, via Twitter, if they have seen members of the public turning up to listen to pilot scheme hearings, and, apart from one who had seen what he took to be a student, no one reported having seen anyone.
As far as we can tell, only one journalist – from the Press Association in London – has taken an interest in the media’s new-found freedom to attend and report on the activities of what the media have always characterised as a “secretive” court. And one representative of the Transparency Project has done so (ie me), for the purposes of research. There is one report that a human rights worker from China attended a hearing in the London court in February and found it interesting. We have not been able to find any indication that a random member of the public has been to a hearing (if that is what the pilot was intended to allow).
Why the lack of interest?
We think there are two reasons for this. The first is the somewhat intimidating procedure, described on this blog, which anyone attending such a hearing has to go through, in (a) signing for a copy of a sternly worded court order, detailing the need not to reveal the identity of the person concerned in the proceedings or anyone connected to them, and then (b) introducing themselves to the court at the commencement of the hearing itself. This level of formality would probably put off, say, tourists who were wandering through the Royal Courts of Justice building in the Strand.
The second, but perhaps prior, reason is the difficulty, before even going to a hearing, in finding out about it. Even if you do turn up to a hearing, the court order that you sign for gives precious little information about the issues in the case, so unless you know about it in advance, you would simply have to go along on spec, in the hope of finding out about the case during the hearing itself. You can ask for the parties’ suitably anonymised “position statements”, which set out the facts of the case and the rival contentions of the parties. But none of this is available in advance, and unless you are an accredited media representative you will need the court’s permission to have it at all, so you need to attend court before you can find out about the case you are attending.
So there are hurdles for both Jo Public and for any individual who had a specific interest in justice issues.
How do you find out when there is a hearing? You can, of course, pop into the court building on spec, and look at the lists to see if there is a Court of Protection hearing going on or coming up. Court of Protection hearings are held in a number of different provincial court centres, as well as the main one in First Avenue House, High Holborn, in Central London. But hearings do not take place every day, even in the main London building. Someone we know (outside London), who was taking a student on an educational visit to local courts was told that, to know when a Court of Protection hearing was listed, he would first have to write in to the judge.
What if you want to check online?
This is where it gets complicated, or at any rate less than transparent.
If you look up Court of Protection on Gov.uk, you will be directed to this page, which describes the main central London court (First Avenue House). This then links to the Judiciary.gov.uk site for things like practice directions relating to the Court of Protection, to BAILII for previous judgments of the Court of Protection, and to the Justice.gov.uk site for “upcoming hearings”.
You can try looking up “Court of Protection” on the Judiciary.gov.uk website, which is supposed to cover all aspects of the judiciary and courts, but you will get a bran tub of random and mostly irrelevant results (many of them about “contempt of court”).
The Justice.gov.uk site is not to be confused (though it sounds similar) with the Judiciary.gov.uk site. It is an older site which the government digital service hasn’t been able to kill, which is just as well because it actually works. It lists all the main court hearings in the Royal Courts of Justice in London, but not those around the country, unfortunately. This page is the one that lists Court of Protection hearings.
As you will see, this list is updated daily. But it does not cover Court of Protection hearings outside London. What you need for those is another site, called CourtServe, a privately run service used by lawyers and other court users, which lists all the hearings in courts up and down the country and also links with the government court-finder website that provides information about the location and areas of business of each of those courts. Though it’s not a government site, it has by default become the “official” site for nationwide court listings.
You have to register to use the site, but for basic court listings you do not have to pay. You need the page under “Web services” in the left hand navigation column for “County Courts”. That links you to a list of county courts up and down the land. But if you search or scroll down to “Court of Protection”, you will find a list of those county court centres where Court of Protection hearings are being held in the near future, and you can open the relevant list. It also lists the central London hearings at First Avenue House.
So it’s actually quite easy – if you know how. But how would the ordinary mortal find this out?
I’ve been covering and writing about the Court of Protection transparency pilot for the last six months but I only found out about CourtServe this week. That’s because I’m not a practitioner, and I am based in London not far from First Avenue House, so I can pop in and check the lists every morning before I pick up my coffee. So I didn’t need it.
What if I lived in Somerset or Cardiff or the North West Riding of Yorkshire? Even if I’d read the official pronouncements about this transparency pilot scheme, nothing in them would have told me how to find out about cases in my area. Nor, so far as I am aware, has any of the media coverage (limited as it was) mentioned this useful information.
This Q&A from the official announcement is very clear in the first question that the pilot scheme will apply to “All courts that hear Court of Protection cases in England and Wales.”
But the only statement about listing is that cases should be listed as being in open court subject to reporting restrictions, and that “A copy of the daily cause list must be placed on the court room door”.
None of other documents deals with listing of cases.
The initial announcement of the scheme, back in November 2015, said this:
Her Majesty’s Courts and Tribunals Service (HMCTS) will also amend the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing.
To be honest, the short descriptors used are wholly inadequate to enable anyone to make an informed decision about whether to attend the case. They are about as useful as putting the words “negligence – breach of duty of care” or “breach of contract” in a case listing. In other words, a very high level indexing category, but nothing about the critical issues.
In the lamp of transparency, this pilot light is barely flickering.
The stated aims of the transparency pilot, according to the November 2015 announcement on the Judiciary website, were that:
The scheme will provide evidence to assess whether the Court should in future hold its hearings in private or in public and whether access should be given to the media but not the public.
It is hard to see how this aim could be realised if no members of the public either knew about or attended the pilot scheme hearings. Now, it is possible that some did, and it is possible that some found about the case in advance, or at the hearing. It is also possible that some media representatives (other than the one from the Press Association in London) did show up and we know that he, at least, did report some of the cases he heard.
What isn’t clear at this stage is how the pilot is going to be judged. Will it be judged a failure because no one turned up, or will it be judged a success because there were no reporting or anonymisation disasters? In other words, was the test a positive one, or a negative one? Or perhaps a bit of both.
I rather fear that, in the absence of a public stampede to attend the court’s open hearings, the conclusion drawn from this brief flirtation with open justice will be that the public really isn’t interested and there is no need for greater transparency, despite the media’s jibes about “secretiveness”. Instead, I suspect the court’s rules will be modified merely to permit accredited media representatives to attend hearings in private in the same way as they currently do in the family courts, if the hearing is not in open court. But others may disagree.
If the purpose of the pilot was to be able to say ‘this is an open court’ then this may be true in theory but if the purpose was achieving real transparency, so that the public can find out how the court works, we don’t seem any further forward.
Does this matter? Isn’t publication of the judgments enough?
Some of the practitioners we engaged with on Twitter said that, if the point of transparency was to provide the scrutiny necessary to ensure proper protection of the interests of incapacitated parties whose affairs were being managed by a public authority, that could be achieved by publication of the judgments. And it is true that since February 2014, when Sir James Munby as President of the Court of Protection issued Practice Guidance requiring judgments of the court to be published online on the BAILII website, the level of scrutiny of the court’s activities has been enhanced. But the categories of judgments to be published are quite narrow and practice is inconsistent. In any case, the judgment only tells you what the judge saw. It gives you the result, but does not show the process. If publication of judgments were sufficient to satisfy the demands of open justice, there would be no need to open the doors of any court, even in a criminal case, to the public.
The conclusion must be that the pilot scheme, for all its good intentions, will be found to have failed for reasons which have more to do with its poor implementation, than with the evidence it may (or more probably may not) have provided about public interest in this allegedly “secretive” court. (In the interests of transparency, they should at least publish the “evidence” which the scheme was designed to produce, so we can judge for ourselves.)
In other words, it will be as though the pilot itself has been run in secret, and has thus defeated the very objects of its existence.
We have just learned, via the Court of Protection Handbook blog, that the transparency pilot scheme is now to be extended until August 2017, ie for the further year. You can read the relevant PD and draft order here.
We will keep an eye on developments and see, in particular, whether steps are taken to make the pilot scheme more transparent.