The Administration of Justice Act 1960Publicity:Administration of Justice Act 1960Publicity:Court of Protection RulesPublicity:Court of Protection RulesPublicity:PD Pilot 4A/PD 13APublicity:Court of Protection RulesPublicity:PD Pilot 4A/PD 13APublicity:Court of Protection RulesPublicity:PD Pilot 4A/PD 13APublicity:Court of Protection RulesPublicity:PD Pilot 4A/PD 13APublicity:Court of Protection RulesPublicity:Transparency PilotPublicity:Transparency Pilot:applicationPublicity:Transparency PilotPublicity:Transparency Pilot:applicationPublicity:Transparency PilotPublicity:Transparency Pilot:applicationPublicity:Transparency PilotPublicity:Transparency Pilot:applicationPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Transparency Pilot:public hearingPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Transparency PilotPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot Order:easy read versionPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot Order:standard orderPublicity:Pilot OrderPublicity:Pilot Order:standard orderPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot Order:injunctive provisionPublicity:Pilot OrderPublicity:Pilot Order:injunctive provisionPublicity:Pilot OrderPublicity:Pilot Order:injunctive provisionPublicity:Pilot OrderPublicity:Pilot Order:injunctive provisionPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot Order:anonymisation of documentsPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot OrderPublicity:Pilot Order:assessmentPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesCopy DirectPublicity:serious medical treatment casesCopy DirectPublicity:serious medical treatment casesPublicity:serious medical treatment casesPublicity:serious medical treatment casesContempt of court:publicity, andPractice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 5Practice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 4Practice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPractice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 9Practice Guidance:Practice Guidance June 15:para 2Practice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 10Practice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 8Practice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtPD 13Contempt of court:publicity, and
13.6It is important to be aware of section 12 of the Administration of Justice Act (AJA) 1960, as amended by MCA 2005 Sch 6 para 10. The relevant part of section 12 reads:
Publication of information relating to proceedings in private
12 (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say–
(a)where the proceedings–
(i)relate to the exercise of the inherent jurisdiction of wthe High Court with respect to minors;(ii)are brought under the Children Act 1989; or(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b)where the proceedings are brought under the Mental Capacity Act 2005 or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court …
Therefore it is a contempt of court to publish information relating to Court of Protection proceedings when the court is sitting in private. This applies whether or not the court has made any order restricting publication of information about a specific case.
The Court of Protection Rules
13.7COPR Pilot Part 4/COPR Part 13 deals with hearings. It is supported by two Practice Directions: Practice Direction Pilot 4A (PD Pilot 4A/PD 13A) and the Practice Direction: Transparency Pilot (‘the Transparency PD’).
13.8As it will be seen, the rules provide the ‘general rule’ that hearings are heard in private. The rules contain a degree of flexibility with judges having discretion to allow the publication of information or the attendance of members of the public or the media. Departure from the general rule requires ‘good reason’.
1COPR Pr4.4(1).13.9These rules are still in force, but as we will see have been modified in their application by the Transparency Pilot. Before considering this however we note that in July 2015 PD Pilot 4A/PD 13A was amended by adding a new Part 3. These sensible amendments allow for the communication of information without the need for formal authorisation by the court, for example by a party to their GP, to enable them to receive confidential support, or their MP to pursue a complaint. Paragraph 31 of PD 13A/Pilot PD4A makes clear that communication for these purposes will not constitute contempt of court. The court can make a specific direction limiting communication of information if it considers that such is required in a particular case.
2PD1 3A/Pilot PD 4A para 31.13.10Paragraph 33 of PD Pilot 4A/PD 13A sets out the circumstances in which information about proceedings can be released, for example to a party, a party’s legal representative or accredited legal representative (or ALR, see chapter 10), an expert or author of a report directed under MCA 2005 s49 (see para 12.45) as well as the Director of Legal Aid casework.
13.11Paragraph 34 of PD Pilot 4A/PD 13A reads:
(1)A party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party–
(a)by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings;
(b)to engage in mediation or other forms of non-court dispute resolution;
(c) to make and pursue a complaint against a person or body concerned in the proceedings; or
(d)to make and pursue a complaint regarding the law, policy or procedure relating to proceedings in the Court of Protection.
13.12There are restrictions on onward disclosure. It should be noted that if information is communicated under paragraph 34(1)(a) of PD Pilot 4A/PD 13A – perhaps to a party’s GP or counsellor – the person who receives the information must not pass it on to anyone else. Further communication is permitted where the initial disclosure is made under paragraph 34(1) (b), (c) or (d), either to take part in some form of ADR or to make a relevant complaint. In these cases successive communication is permitted but only with the agreement of the party who communicated the information in the first place and for the original purpose. The provisions for onward disclosure appear at paragraph 35 of PD Pilot 4A/PD 13A.
The Transparency Pilot
13.13The Transparency Pilot (‘the Pilot’) was announced in November 2015. It was not preceded by consultation. The key documents can be found at www.courtofprotectionhandbook.com. These are:
a)The Practice Direction (as subsequently amended in July 2016 to extend the Pilot to August 2017 and to provide that the order to be made is no longer that contained in the annex to the PD but rather that approved by the President of the Court of Protection and published on the judicial website at www.judiciary.gov.uk/publication-court/court-of-protection;
b)The Pilot Order, which, as noted immediately above, may be varied from time to time (the most recent version will always be found on the Court of Protection Handbook website); and
c)The Vice-President’s note explaining the Pilot.
13.14The Transparency PD provides that, where the Transparency Pilot applies, the court will ordinarily make an order that the hearing shall be in public and at the same time impose reporting restrictions.
3Transparency PD para 2.1. Thus, it reverses the presumption that hearings will be in private. Now the default position is that they will be in public with standard orders to ‘ensure the anonymity of P and, where appropriate, other persons’.
4Transparency PD para 1.1.13.15The practice direction applies to hearings in all proceedings except those cases where there are already established arrangements for them to be heard in public (serious medical treatment cases, which continue to be governed by PD 9E and committal hearings – see below at paras 13.42 onwards).
13.16The Pilot applies to hearings which were listed on or after 29 January 2016. Thus, cases which commenced before the pilot started were not exempt, although the fact that there had been earlier private hearings in a case is a relevant factor in the court’s decision- making if it is considering departing from the (new) general rule that the case will be heard in public.
13.17Paragraph 2.1 of the Transparency PD explains that where the pilot scheme applies the court will ordinarily direct that any attended hearing shall be in public and will make a standard order in relation to the publication of proceedings. So, once the Pilot order has been made it is in place for the remainder of the case and all attended hearings will be in public. There is therefore no need for the court to make more than one Pilot order. A ‘dispute resolution hearing’ for a case on the property and affairs pathway is not considered to be an attended hearing for the purpose of the Transparency PD.
5Transparency PD para 2.2, see further para 8.36.13.18Paragraph 2.4 of the Transparency PD allows the court not to make an order under para 2.1, but only if it considers there is ‘good reason’ for not making the order.
13.19Paragraph 2.5 of the Transparency PD sets out some of the factors that the court will consider when deciding if there is ‘good reason’ not to make an order that the hearing should be in public. These are:
… the need to protect P or another person involved in the proceedings;
(b)the nature of the evidence in the proceedings;
(c)whether earlier hearings in the proceedings have taken place in private;
(d)whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room;
(e)whether there is any risk of disruption to the hearing if there is general public access to it;
(f)whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations.
(2) In sub-paragraph (1)(f), ‘duly accredited’ refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this pilot by the Lord Chancellor.
13.20It should be noted however that the court is not expected to take a binary approach and either make a standard Pilot Order or no such order at all. Instead, para 2.4 provides that the court should always consider as an alternative making an order under that only part of the hearing will be in public or that some persons or classes of persons should be excluded.
13.21In
V v Associated Newspapers Ltd and others6V v Associated Newspapers Ltd and others [2016] EWCOP 21. Charles J gave the example of a hypothetical case which involved a celebrity but was otherwise not out of the ordinary. In such a hearing the court would be exercising a well-known decision-making process and the impossibility of providing effective anonymisation might lead to a decision to order a private hearing.
13.22In his accompanying Note on the Pilot,
7Available at www.judiciary.gov.uk/wp-content/uploads/2016/01/CoP-Transparency-Pilot-Note-from-the-VP-11Dec15final.pdf. Charles J commented that it is important that reasons are given for any decisions not to make a pilot order. He encouraged judges who make such decisions to give a judgment, which will be a public document explaining his or her reasons for their decision and setting out who took part in the application or consideration. Judges were encouraged to provide details and/or a copy to the Vice-President. It will be seen that the expectation is that a Pilot Order will be the norm.
13.23Paragraph 2.6 of the Transparency PD provides that:
Where the court makes an order pursuant to paragraph 2.1 or 2.4 that an attended hearing or part of it is to be in public, the court will grant, to any person who would have been entitled under the Legal Services Act 2007 to exercise rights of audience at that hearing if such an order had not been made and the hearing was held in private (and who is not otherwise entitled to exercise such rights), the equivalent rights of audience at that attended hearing and any further attended hearing, unless the court is satisfied that there is good reason not to do so.
13.24This was a late addition to the scheme, after it was pointed out by several solicitors who had seen the documentation in its draft form that the effect of holding public hearings would be to deprive them of their rights of audience in the Court of Protection. The new provision does however give rise to the question of when there might be good reason not to allow a solicitor to appear in a public hearing in the Court of Protection. We are not aware of any reported cases in which this has been considered.
The Pilot Order
13.25As noted above, the extension of the Transparency Pilot in July 2016 saw some modifications to the Pilot. In particular, the model Pilot Order has been simplified to reduce the requirements in relation to anonymisation of documentation, reflecting the fact that very few members of the public or media representatives have attended hearings since the Pilot was launched and the concern that motivated such anonymisation (ie that such documentation would be disseminated more widely) has to some extent been alleviated. Further, there is now the ability for the Pilot Order to be amended on an essentially rolling basis, subject to the approval of the President, and it may well be that further amendments are made before 31 August 2017 and the end of the Pilot. The most recent version of the order will always be available on the Court of Protection Handbook website. The discussion below refers to the order as it stands at October 2016.
13.26The wording of the Pilot Order is complex, reflecting primarily the fact that, absent amendments to the COPR (and potentially primary legislation) careful navigation is required by the court to ensure that it does not, by listing a hearing as a public hearing, thereby lose the ability to ensure that private information relating to P is kept private. The Vice-President, Charles J, explained the basis for the order – and also its differences to those made in serious medical treatment cases (see further para 13.42 below) in a schedule to the judgment he gave in
V v Associated Newspapers Ltd and others.
8[2016] EWCOP 21.13.27The Court of Protection Handbook website includes an unofficial ‘easy read’ version of the Pilot Order with annotations by Tor Butler-Cole to explain its implications for litigants in person.
9https://courtofprotectionhandbook.files.wordpress.com/2016/02/transparency-order-in-plain-english.pdf. Whilst this version refers to the earlier iteration of the Order, it remains useful for explaining to non-lawyers (and indeed to lawyers) the effect of the sometimes complex of the wording. At the time of writing, it is understood that an official, updated, version of this may be forthcoming to explain the current iteration of the Pilot Order.
13.28The Pilot Order is a public document and therefore P’s full name should no longer appear in full in it. Likewise the names of the parties should be ‘appropriately anonymised’; although as with judgments
10See Transparency and the Court of Protection: publication of judgments, para 20. public bodies should be named in full.
13.29The standard order will provide for the next hearing and any further hearing to be in public. Paragraph 2 makes it clear however that admission to hearings under the Pilot will be dependent on the attendees signing a document before they go into court which will give their details and will confirm that they have been given a copy of the order and are aware of its terms.
13.30The standard order contains some basic details of the issues that the case concerns, from a list of standard descriptions. These are also included in a daily cause list. These are:
a)where P should live;
b)contact with specified persons;
c)prohibiting contact with P;
d)healthcare;
e)capacity to marry or to consent to sexual relations;
f)appointment of deputy for personal welfare;
g)varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards;
h)authorising a deprivation of liberty (in relation to … eg care and residence arrangements);
i)appointment of deputy for property and affairs;
j)discharge or conduct of deputy;
k)will, codicil, gift or settlement of property;
l)registration of enduring or lasting power of attorney;
m)discharge or conduct of deputy or attorney (application by Public Guardian/delete as necessary);
n)recognition and enforcement of a protective measure under the law of [name country]; and
o)publication of information about proceedings.
13.31This should have the effect of making research into the types of cases which come before the courts much easier.
13.32Paragraph 5 is the injunctive provision and reads as follows:
(A) The following persons (the Persons Bound by this Injunctive Order) are bound by this injunctive order:
(i)the parties and their representatives,
(ii)the witnesses,
(iii)all persons who attend all or any part of an attended hearing,
(iv)all persons who by any means obtain or are given an account or record of all or any part of an attended hearing or of any order or judgment made or given as a result of an attended hearing,
(v)all persons who are provided with or by any means obtain documents and information arising from this application, and
(vi)any body, authority or organisation (and their officers, employees, servants and agents) for whom any such person works or is giving evidence.
(B) The material and information (the Information) covered by this injunctive order is:
(i)any material or information that identifies or is likely to identify that
(a)[ INITIALS TO IDENTIFY P NOT NAME ] and members of [ SAME INITIALS TO IDENTIFY P ]’s family are respectively the subject (and so a P as defined in the Court of Protection Rules 2007) or members of the family of a subject of these proceedings, or that
(b)[ ANONYMISED PERSON ] [ … ANONYMISED REFERENCE TO ANY OTHER PARTY … ] is a party to these proceedings, or that
(c)[ ANONYMISED PERSON ] [ … ANONYMISED PERSON WHOSE IDENTITY SHOULD NOT BE PUBLISHED … ] (who the Court has so identified to the parties in private) [ … has taken a part in / or been referred to in … ] these proceedings; and
(ii)any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.
(C) Subject to further order of the Court and save as provided by sub-paragraph (D) the Persons Bound by this Injunctive Order shall not by any means directly or indirectly:
(i)publish the Information or any part or parts of it, or
(ii)cause, enable, assist in or encourage the publication of the Information or any part or parts of it.
(D) Subject to further order of the Court this injunctive order does not prevent the Persons Bound by this Injunctive Order from communicating information relating to these proceedings on the basis that Part 3 of Practice Direction 13A to the Court of Protection Rules 2007 (which relates to proceedings held in private) applies to these proceedings.
13.33It will be noted that members of the media are not specifically listed. The media must be given notice of an order restricting the media from reporting what happens in a given case.
11PD 13A/Pilot PD 4A para 10. Charles J explained in the note accompanying the launch of the Pilot that to give the media formal notice on each occasion that a Pilot Order was made would be impracticable and would cause delays. His view is that this was not necessary anyway as if a member of the media attends a hearing they will be bound by the terms of the order. The possibility that someone who attends the hearing subsequently breaches the Pilot Order and provides information to a third party is catered for by sub-para 5A(iv) which binds the third party.
13.34Paragraph 5(B) sets out the information which is covered by the injunction. This broadly protects the identity of
•P and members of P’s family;
•Other parties;
•Other persons involved or referred to.
13.35The injunction does not prevent disclosure of information under Part 3 of Practice Direction Pilot 4A (see para 13.9 above) (see para 5D).
13.36Paragraph 6 requires any transcripts of judgments as well as orders to be anonymised, but is subject to the position in relation to third party orders addressed below.
13.37The position in relation to anonymisation of documents has now been simplified by comparison to the position that prevailed when the Transparency Pilot started. There is no longer any requirement to anonymise such documents as position statements. Rather, Paragraph 7 provides that the court may at any time give such directions as it thinks fit (including directions relating to anonymisation, payment, use, copying, return and the means by which a copy of a document or information may be provided) concerning the provision of information or copies of documents put before the Court and the terms on which they are to be provided to any person who attends an attended hearing (and is not a person to whom the document can be provided under Part 3 of Pilot PD4A/Practice Direction 13A).
13.38Paragraph 8 provides for a record of that information which the court has determined should not be released to be kept and referred to as ‘the Record’. This information may be made available ‘on such terms as the court thinks fit’ to anyone who attends the hearing (para 8) or makes an application supported by evidence (para 9). It is the Record which will contain the full names of the parties.
13.39Paragraph 10 gives the parties and anyone affected by the order liberty to apply to vary or discharge it. The Vice-President’s Note
12https://www.judiciary.gov.uk/wp-content/uploads/2016/01/CoP-Transparency-Pilot-Note-from-the-VP-11Dec15final.pdf. makes it clear that such applications must be supported by evidence, although this is not in the Practice Direction or the draft order.
13.40Paragraph 11 deals with the question of rights of audience, discussed at paras 6.15–6.19.
13.41Care should be taken in preparing third party orders under the Pilot (ie orders directed to a person or body who is not a party to proceedings and was not present at the hearing at which they were made – an example being an order for disclosure of records held by a public body). Orders are public and should be endorsed with the following notice:
This order is covered by the terms of the transparency pilot order served herewith which imposes restrictions upon the identification of the parties. If any person disobeys that order in paragraph (5) they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized. They have the right to ask the court to vary or discharge the order.
13.42Because the third party order will be anonymised, Paragraph 6 makes clear that a confidential schedule will also need to be prepared, providing the necessary identification. The schedule should also contain the notice in the paragraph above.
13Model Order.Assessment
13.43At the time of writing, there has been no formal report as to the success (or otherwise) of the pilot, but readers may find the comments of the Transparency Project, whose authors have been following the Pilot, to be of interest.
14www.transparencyproject.org.uk/category/cop/. Anecdotal evidence suggests that there has been very limited take-up of the opportunity to attend hearings both by members of the public and by media representatives. In part, this has been because of considerable inconsistency as to the information provided in and the timing of the listing of cases. A further issue that has been identified is the fact that there is inconsistency in practice as regards explanation of the Pilot and its effects to those who do attend the hearing. It is understood that guidance is to be prepared for judges to ensure that they give a standard explanation concerning attendance and the reporting restrictions at the beginning of the hearing. It is also likely that prior to the end of the Pilot in August 2017 and – if it is to be made permanent – any consequential changes required to the COPR, further work will be done to align the position in relation to cases currently falling under the Transparency Pilot and serious medical treatment cases, discussed further below.
Cases outside the Transparency Pilot
Serious medical treatment cases
13.44The position is different if the case concerns serious medical treatment, as defined in PD 9E.
15PD 9E paras 5–7. Paragraph 16 of PD 9E provides that in serious medical treatment cases the court will ordinarily make an order under COPR r92
16Serious medical treatment cases do not fall within the Case Management Pilot, so the governing rules are to be found in COPR Part 13. that the hearing will be held in public with restrictions on reporting. For the wider issues arising in medical treatment cases, see chapter 22.
17Where the Court of Protection directs a public hearing control over publicity is governed by the Contempt of Court Act 1981 ss1–4, 11, 19.13.45COPR r91 empowers the judge to authorise publication of information relating to private proceedings, or of all or part of a judgment given in private proceedings. Such an order will again be made when there is good reason to make it.
18COPR r93(1)(a). COPR r91(3) provides that such an order can be made in such terms as the court sees fit and gives examples of the types of restrictions the court may consider imposing (for an example, given in proceedings where it is necessary for information contained in an order relating to P to be shared with others for purposes of delivering care to them, see precedents on www.courtofprotectionhandbook.com). Release of information which complies with a direction under COPR r91will not be contempt of court.
19COPR r91(1).13.46As we have seen, COPR r92 allows the court to direct that all or part of a hearing be held in public. However this remains subject to the court’s powers to exclude persons or classes of persons from the hearing or part of it and imposing restrictions on publication. Again the test is that there is good reason for making such an order.
13.47The relevant practice direction accompanying these rules (PD 13A) is in three parts. The first applies in all cases where an application is being made for orders under COPR rr4.1, 4.2 or 4.3 and provides that such applications must be made by filing an application using form COP9.
20Pilot PD 4A/PD 13A Part 1 para 4. The court should then consider whether to deal with the application as a discrete issue.
21Pilot PD 4A/PD 13A Part 1 para 6.13.48If the court decides to authorise publication and at the same time sets out restrictions as to what can or cannot be published (for example, when a judge directs that a judgment should be published, but at the same time directs that the parties’ names should be anonymised), there is no need to give notice to the news media.
22Pilot PD 4A/PD 13A Part 2 para 8.13.49Different considerations apply where the court has already made an order authorising publication, or has agreed to sit in public, and subsequently either an application is then made to restrict what can be published, or the court is considering exercising its powers to restrict the information.
23Pilot PD 4A/PD 13A Part 2 para 12. In such cases, P’s rights under the European Convention on Human Rights (ECHR) are engaged; but so are the Article 10 ECHR rights to freedom of expression of the person seeking to publish the information.
24Pilot PD 4A/PD 13A Part 2 paras 10, 11. Therefore, the practice direction draws attention to the requirement for notice to be given to the person whose Article 10 rights would be affected (probably one of the media organisations) unless there are compelling reasons why that person should not be notified.
25Pilot PD 4A/PD 13A Part 2 para 10. In
V v Associated Newspapers Ltd and others,
26[2016] EWCOP 21. Charles J noted that this prior notification procedure adds little, if anything, to the service of the order particularly if that order and the listing information contains a description of the subject matter of the proceedings. Urgency, particularly if substantive relief is sought on the first or an early directions hearing may require notice of that hearing but equally may provide the ‘compelling reason’ why notice was not given. Further, as he noted, ‘[e]ven in urgent cases, and many serious medical treatment cases are urgent, it is the substantive issues and the content of the evidence that informs the balance that that has to be carried out between Articles 8 and 10. This means that it is unlikely that this balancing exercise can be properly argued and considered at a directions hearing and so disputes on the grant / extent of reporting restrictions are likely to be best dealt with at later stages of the proceedings.’
27Para 211. He expressed the view that ‘proper notification to the media of the existence of the proceedings and of the date of the public hearing of a case relating to serious medical treatment and the terms of any reporting restrictions order made when a public hearing is directed is what really matters.’
28Para 212.13.50It is likely that, in due course, further consideration will be given to aligning the approach under serious medical treatment cases and that under the Transparency Pilot (where prior notification is not required). In the interim however, the procedure that must be followed is set out in paras 13–19 of PD 13A, and it is important that this is followed. National newspapers and broadcasters subscribe to the Press Association’s CopyDirect service. A list of the subscribing organisations is available online.
29See: www.medialawyer.press.net/courtapplications. CopyDirect is responsible for notifying individual media organisations of an intended application, and notice of an application for an order that would affect the world at large can be given to CopyDirect.
30PD 13A Part 2 para 14. However, the CopyDirect service does not extend to regional or local media or magazines who would need to be served directly with notice of the application.
31PD 13A Part 2 para 18.13.51The CopyDirect website makes it clear that CopyDirect will only notify organisations of applications and does not deal with service of orders once they are made
13.52Paragraphs 15–18 require the applicant to contact CopyDirect and sets out the information that is required. The court will also give advance notice if considering an order of its own initiative and will then provide much of the information listed in para 15 as it sees fit.
32PD 13A Part 2 para 20. The court may also dispense with any of the requirements in paras 15–19.
33PD 13A Part 2 para 19. An organisation which wishes to take part in any hearing must file an acknowledgement of service in form COP5 within 21 days of receipt of the notice from CopyDirect.
34PD 13A Part 2 paras 21, 22. It is essential that the nature of the orders sought are clearly indicated and that anyone seeking restrictions on identifying or contacting individuals or classes of individuals should make this clear.
35See also W v M (reporting restriction order) [2011] EWHC 1197 (COP), [2011] COPLR Con Vol 1226 It is necessary to provide the information identifying P (and any other party/person in respect of whom reporting restrictions are sought) when notifying CopyDirect.
36A Healthcare Trust v P [2015] EWCOP 15, [2015] COPLR 147, in which Hayden J made clear that the media could not lawfully then reveal the parties’ names on receipt of an application for reporting restrictions.13.53The practice direction gives guidance as to the approach to be taken when balancing P’s ECHR rights under Article 8 against the right under Article 10 to freedom of expression. There is no precedence between the two and both are qualified.
37Pilot PD 4A/PD 13A Part 2 para 24. The practice direction
38Pilot PD 4A/PD 13A Part 2 para 25. draws attention to the need to have particular regard to:
•the importance of freedom expression;
•the extent to which material has or is about to become public (orders will not usually be made prohibiting publication of material which is already in the public domain, apart from in exceptional cases);
39Pilot PD 4A/PD 13A Part 2 para 28. •the extent of the public interest in such material being published;
•the terms of any relevant privacy code.
13.54The practice direction also notes that the aim of any restrictions should be to protect P rather than confer anonymity on others; but restrictions on identifying others could be justified if the absence of such restrictions might lead to the identification of P or restrict the ability of others to care for P. The identity of experts however is not usually subject to restrictions.
40Pilot PD 4A/PD 13A Part 2 para 27. Paragraph 13.62 below considers the issue of jigsaw identification.
13.55Orders should last no longer than they are needed to achieve their purpose but may need to last until P’s death, or indeed beyond.
41Pilot PD 4A/PD 13A para 28. See also W v M and S (reporting restriction order) [2011] EWHC 1197 (COP), [2011] COPLR Con Vol 1205 (injunctions were made in support of reporting restrictions that prevented contact being made with the laypeople at the heart of a high-profile medical treatment case were expressed so as to last for the lifetime of P). Post-mortem orders are considered further in paras 13.71 onwards below.
Contempt of court
13.56Special considerations arise in cases involving contempt of court. A Practice Direction
42Practice Direction of 26 March 2015 Committal for Contempt of Court – Open Court. issued on 26 March 2015 applies in all proceedings. It draws attention to the fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court. Any derogation must be strictly justified.
43Practice Direction para 4. The practice direction specifies how the case should be listed.
44Practice Direction para 5.13.57Importantly the Practice Direction makes it clear that ‘the fact that the hearing may involve disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order’.
45Practice Direction para 9. Thus, P’s details could be anonymised in any order or judgment, and the hearing could proceed in public.
13.58If the court is considering holding a committal hearing in private the media should be notified.
46Practice Direction para 8, also see Practice Guidance June 2015 para 2. A reasoned public judgment must explain any decision to hear a committal hearing in private.
47Practice Direction para 10. If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public
a)the name of that person;
b)in general terms the nature of the contempt of court in respect of which the committal order [committal order for this purpose includes a suspended committal order] is being made; and
c)the punishment being imposed.
13.59In addition, it is mandatory for the above information to be notified to the national media. There are no exceptions. The Practice Direction states that:
There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.
48Practice Direction para 13.13.60Applications for committal for contempt are discussed in full at paras 17.12 onwards.