In V v Associated Newspapers  EWCOP 21, published on 25 April, Mr Justice Charles, Deputy President and Judge in Charge of the Court of Protection, uses the word ‘prurient’ several times about the press coverage of earlier judgments in the case of ‘C’, the woman who ‘lost her sparkle’. (She had been described in this way, from her own words, in a judgment by Mr Justice Macdonald.)
Charles J was dealing with an application by a number of news organisations to lift reporting restrictions on identifying and naming C, following her death on 28 November 2015. Although a child was indirectly involved, this was not a family court case; it was originally an application by a NHS Trust to the Court of Protection (CoP) about a 50 year-old woman and was heard before the introduction of the CoP pilot scheme of more hearings being held in public. Paul Magrath has written about the pilot for the Transparency Project, here.
However, a number of things that Charles J says are very important in the family court context too. He paid careful attention to the probability of serious and long-term harm and distress that C’s teenage daughter would suffer if the family was identified, and the balance between the family’s Article 8 right to privacy and the Article 10 interests of the press and public. He also went on to consider procedures under the CoP pilot – under which most hearings are now held in public – as explained here. Those with good memories will recall that, back in August 2014, the President did moot the possibility of some family hearings being held in public.
The CoP (as established under the Mental Capacity Act 2005) sits under a separate set of rules to the family courts. These originally stipulated that hearings would normally be held in private (and therefore be subject to s 12 Administration of Justice Act 1960, as are family hearings) but hearings about serious medical treatment would be held in open court. The rationale for this distinction has since been questioned by lawyers and journalists and, under the pilot, it disappears for a trial period of six months. In early November 2015, C was refusing life-saving treatment, and thus her case was being conducted in public, in any event. A public CoP hearing like this normally involves reporting restrictions to anonymise the person it is about. At the first hearing, Macdonald J held that C did have capacity, within the meaning of the Mental Capacity Act, to refuse the treatment. This hearing attracted considerable press attention but, as Charles J emphasises, this was not because of public interest in serious issues about mental capacity and medical treatment.
As Lucy Series noted, judges in these difficult cases try to ‘distance themselves from the values they attribute to the person, and to state that their decision is based on the person’s own values, not those of the judge or wider society – but the decisions are based on the ways in which the decision maker, through their narrative power, chooses to characterise that person’s values.’ Macdonald J reached his conclusions based on the evidence from C’s two adult daughters that she could not face living with illness, and that she had tried to take her own life, because she believed that losing youth and beauty meant her life was over. Zoe Williams in The Guardian commented on the judge’s description of the logic of C’s thinking as almost a rebuke about her lifestyle choices and emotional neglect of her family. Barbara Rich (a barrister, but unconnected with the case) complained about this and also objected to the pervasively inaccurate description in the media of the CoP as dealing with ‘sick and vulnerable people’ and, here, a mythical ‘right to die’. She took up these issues with the Guardian Readers’ Editor. She also wrote in the Solicitors Journal about the poor quality media coverage the CoP gets generally, that may undermine the intention of the pilot to inform the public.
The Guardian produced a thoughtful response to Ms Rich’s observations. However, we now know from Charles J’s judgment that C’s daughters were being literally harassed by other newspapers. One appalling instance was a reporter from the Daily Mail visiting the home of the youngest daughter and her father, and asking about them in the village pub. This daughter is still aged under 18, and had been traumatised by her mother’s decision, having tried to persuade her to accept treatment. A number of papers published photographs of C in happier times, with her face obscured, but probably recognisable to people who knew her.
In his judgment (delivered in December, but only published in April), Charles J considered whether the anonymity provisions that were put in place while C was still alive should continue after her death, including during an inquest. Her daughters want the reporting restrictions to remain, and the judge concluded that they should do so, indefinitely. He described both the tone of the media representation of C, and the type of interest this might be to readers, as ‘prurient’. The dictionary meaning of ‘prurient’ is ‘being excessively interested in the sexual activities of other people’. I’m not sure that is quite the right word – to me, the newspaper coverage seemed old-fashioned, like a 1960s morality tale novel, condemning someone as a ‘man-eating socialite’. Unlike the current celebrity threesome anonymity case, there is no suggestion in the press that C was a public figure of any kind, nor had cultivated a false image of herself as a ‘good’ wife and mother. She was not a famous, publicity-seeking person, but merely a woman whose decisions were unconventional ones.
In Charles J’s words, the court’s conclusion that C, despite her condition at the time, still had capacity to make such a drastic choice ‘had a profound effect on her family’. The exercise of the CoP jurisdiction (which followed an application by the hospital, not by C or her family) therefore meant that the family’s rights to private and family life were engaged. He concluded that there was little weight in the media’s Article 10 (freedom of information) interest in naming C, and that the balance was firmly in favour of Article 8 protecting the privacy of her family.
C’s older daughters would have been made aware that the first court hearing was open, and that the judgment would be published on BAILII. However, in an interim judgment, Theis J noted that they might not have given the evidence they did if they had anticipated the media interest. Charles J is clear that the older daughters were far too preoccupied with the tragedy of losing their mother to think about public attention. Under the pilot, many other families will need to be informed that their cases are to be held in open court. The case also raises serious questions about why such enormous detail about C’s life was necessary in Macdonald J’s judgment; why the daughters’ evidence could not have been briefly summarised. Even a perceptive journalist like Zoe Williams was confused, not able to see the wood for the trees in such a long judgment. Nor, I would argue, could anyone predict that the Daily Mail – whose own worldview seems to be that women are visible only while young and attractive – would put so much energy into exposing this family over a prolonged period.
This post was originally published on the Transparency Project blog and is reproduced with permission and thanks.