Court of Protection pilots openness

cour of protectionThe Court of Protection has announced a pilot project to run from January under which the presumption in rule 90 of the CoP Rules 2007 that hearings are heard in private will be reversed. The Courts and Tribunals Service has published a background note, alongside a draft practice direction and draft order.

This specialist court was established under the Mental Capacity Act 2005 to deal with issues relating to a person’s property, financial affairs, and personal welfare where it is established that the person in question lacks capacity to make such decisions.

A number of newspapers and in particular the Independent have campaigned for the maximum possible openness of Court of Protection proceedings. Latterly, it has become possible for journalists to apply to have access to hearings. The requirement for a “good reason” to permit media access to and reporting of proceedings is said to “lie at the heart” of the determination of such media applications (although requiring
“good reason” did not ‘import a concept of being exceptional’ – per Hedley J, in Independent News and Media Ltd v A [2009] EWHC 2858 (Fam), [15]).

The involvement of the media in Court of Protection cases is a source of concern for some parties. Evidence is routinely provided to the court regarding the potentially deleterious effect of publicity on the vulnerable people involved. The court has preferred to address this concern through the imposition of reporting restrictions, rather than exclusion of the media from the court.

The pilot project seems to run in line with recent senior judicial sentiment. Speaking in October 2013, Sir James Munby expressed the view that ‘there should be the same kind of presumptive right of media access to court of protection proceedings, as there are in family proceedings’.

For further comment, see Lucy Series on the Transparency Project blog, and David Connett in the Independent .

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Scottish police obtain comms data in breach of Code to identify source

The Interception of Communications Commissioner, Sir Stanley Burnton, has found that Police Scotland breached a newly installed code of practice that is intended to protect journalists’ sources when police apply to obtaining communications datacomms data.

In a statement published today, the IoCC Office said that there had been contraventions of the Code in respect of 5 applications for communications data submitted by Police Scotland relating to one investigation. Police Scotland had sought communications data in order to determine either a journalist’s source or the communications of those suspected to have been acting as intermediaries between a journalist and a suspected source.

Police Scotland were found to have contravened paragraph 3.78 of the Code, under which judicial approval is required to acquire such communications data. Moreover, they failed to satisfy adequately the requirements of necessity and proportionality or to give due consideration to Article 8 or Article 10 of the European Convention on Human Rights (ECHR). Some of the applications were also made by a person who was not independent of the investigation concerned: also a breach of the Code.

The revised Code – the Acquisition and Disclosure of Communications Data Code of Practice 2015 – came into force in March this year after it emerged in the “Plebgate” context that police were circumventing legal source protections.

See PA Media Lawyer (£) for more.

New blog on newsgathering law and regulation

oup newsgatheringThis is a launching post for a new blog on the law and regulation of newsgathering. The blog is associated with the forthcoming text, Newsgathering: Law, Regulation and the Public Interest that is to be published by Oxford University Press in spring 2016. The aim is to note and to comment upon developments in the law and regulation governing newsgathering by journalists and others.

This website will serve as an archive of developments in these areas. The website is structured in six parts. The front-page will carry the most recent blogposts. Aside from that, all postings relevant to each of five areas of newsgathering will be collated on five pages dedicated to each theme. The themes are: (i) the public interest, (ii) the protection of sources and materials, (iii) access to public information, (iv) intrusive newsgathering, and (v) newsgathering and publication torts. These pages can be accessed through the menu at the top left of each page.