On 31 March 2010, the Court of Appeal decided that the media should be granted access to a hearing in the Court of Protection which involved a 30 year old known then only as “A”, who has severe learning difficulties associated with Autism Spectrum Disorder and who is blind but is also a musical prodigy. That case, A v Independent News & Media Limited & Ors ( EWCA 343) was important for another reason, providing the first recognition in English law of a right under Article 10(1) of the European Convention of Human Rights to access to information – in that case, information concerning a court hearing. Dan Tench discussed the case in a posting on 6 April 2010.
The case was heard yesterday by Mr Justice Hedley in the Court of Protection and “A” has now been named as Derek Paravicini, who has been the subject of extensive media coverage around the world. Mr Justice Hedley appointed Mr Paravicini’s parents and sister as “deputies” to look after his affairs. This is a trailer for a TV documentary about Mr Parvicini:
Apart from the extraordinary story of Mr Paravicini’s talents, the case raises two issues of general importance. The first is that of the openness of court proceedings – which has been much highlighted in the media coverage – Independent News & Media Ltd, Associated Newspapers Limited, Guardian News and Media Limited, Times Newspapers, Telegraph Media Group Limited and the Press Association were the successful applicants for an order that the media be admitted to the hearing. There have been a lot of headlines about access to secret courts: the Independent has “Secret court open to public gaze after Independent campaign” and the Times has “Autistic pianist makes legal history after UK’s last secret court opens“.
The issues of media access to courts and the avoidanc of “blanket exclusions” which have previously applied in some courts – particularly the Family Courts and what is now called the Court of Protection – are important ones. The Courts are now, properly, considering the issues on a balanced case by case basis. Access to the Court of Protection is particularly important in view of the complaints that have been raised about the operation of that court – transparency is needed to be sure that those complaints are properly dealt with.
The second issue is a more subtle one about celebrity and public interest. In the Court of Appeal, the Official Solicitor, representing Mr Paravicini’s interests, submitted that
“Although he has a public profile, his entitlement to protection and respect for his public life is undiminished. There is no pressing social need for the media to gather the information, which is concerned exclusively with the details of his private life, and how it will be addressed in the future. Neither the Court’s powers to preserve A’s privacy, nor the public interest in understanding the jurisdiction and powers of the Court and how they should be exercised constitute good reason for publication within the legislative framework. So far as public understanding is concerned, this could be done by the publication of an open judgment explaining these matters”
The Court rejected that argument effectively on the basis that the interests of the media are “legitimately engaged” because Mr Paravicini is well known – because he is a celebrity then there is a proper interest in reporting on what would otherwise by his private affairs. This does appear to involve the equation of “public interest” with “what interests the public”. The court said, in relation to the media interest:
“There is nothing prurient about that interest: on the contrary, it tells us all something, perhaps indefinable, but for all that something inspiring about the triumph of the human spirit over adversity“
But “prurience” is not the test: the question is whether or not there is a public interest in the media being given access to private information. The Court’s approach comes close to saying that there is a legitimate interest in reporting something because it is a good story. This seems difficult to justify. Why should Mr Paravicini’s private affairs be given publicity simply because of his extraordinary talents when a person in an identical personal and medical position but with no musical skill would have a private hearing? The media’s answer, is in effect, that this is what readers are interested in reading about. Although this obviously has wider benefits for the media and the public, difficult questions arise as to whether those benefits are sufficient to override the privacy interests of the “celebrity” who is being written about.