Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings)
Summary
The appellant, Dr Philip Esper, brought an appeal against by a decision of District Judge Beckley to name him in committal proceedings in the Court of Protection relating to his relative, AB.
The contempt and committal proceedings. DJ Beckley had found that Dr Esper had committed a contempt of court by breaching an order restricting his contact with AB (which followed an admission by Dr Esper to doing so). The Respondent ICB made an application to commit Dr Esper to prison; at a hearing in June 2023, District Judge Beckley decided that no sanction should be imposed for the contempt of court where it appeared that Dr Esper’s compliance with court orders had improved since the time of the admitted breaches. No appeal was taken against the finding of contempt, the decision not to impose a sanction, or to the decision to hear the contempt proceedings in public. Dr Esper had made an application that District Judge Beckley should recuse himself, which was refused; again, no appeal was taken against this decision.
Poole J noted that the underlying proceedings were subject to a Transparency Order “which prevents information being published or communicated that identifies or is likely to identify AB, and his relatives who are the other respondents in those proceedings, including Dr Esper” (paragraph 6). However, this order expressly excludes any committal proceedings from its ambit. DJ Beckley had made “a further order which applies to the committal proceedings, and which prevents the reporting of the names and some other specific details of AB and two of his relatives identified in his order, but which he did not extend to prevent the identification of Dr Esper. That decision not to prevent the disclosure of Dr Esper's identity is the decision central to this appeal” (paragraph 6).
The appeal: The appeal related to the following decisions:
i) To publish a judgment naming Dr Esper as a contemnor; and
ii) To permit the publication of Dr Esper's name, while restricting the identification of AB, and two other relatives of AB who are respondents in the Court of Protection proceedings.
Senior Judge Hilder directed that this matter be considered by a Tier 3 judge in a rolled-up hearing considering both permission to appeal and the substantive appeal. Orders were also made that Dr Esper’s anonymity should be preserved pending the outcome of the appeal.
The grounds of appeal were set out at paragraph 4 of the judgment as follows:
i) The judge was wrong to decide that he was obliged to permit the publication of the Appellant's details and publish them in accordance with the Lord Chief Justice's Practice Direction: Committal for Contempt of Court - Open Court, March 2015 (as amended in 2020).
ii) The judge was wrong to decide that Court of Protection Rule 21.8(5) permitted him to direct the anonymity of the other parties to the application in proceedings for contempt of court but prevented him directing the anonymity of the appellant.
iii) The judge was wrong, to the extent that he had a discretion, as to whether he directed the anonymity of the appellant, when he:
(a) decided that it was in the interests of justice that a contemnor who had been found to be in breach should be identified, even though no committal order was being made;
(b) had indicated by his observations and conduct during the hearing, apparent bias against the appellant.
In addition to submissions from the parties, the court had submissions from the Press Association and the Open Justice Project.
The legal framework: Poole J noted that the rules governing committal proceedings in Court of Protection, Civil Courts and Family Court had all been amended recently, though there were inconsistencies between the sets of rules. At paragraph 9, Poole J specifically noted that
iii) Whereas the COPR provide wide powers to protect the anonymity of P in Court of Protection proceedings, there are only narrow circumstances in which P or any other party's identity will be protected in contempt proceedings arising out of Court of Protection proceedings, namely those set out at COPR r21.8(5).
iv) Whereas COPR r21.8(5) requires the court to order the non-disclosure of the identity of any party or witness only if certain conditions are met, the equivalent rule in the CPR, applies to "any person".
v) The requirements as to the listing of a committal application in the Court of Protection, and the requirement to publish a transcript of a judgment in committal proceedings are less than clear.’
Poole J considered both COPR Part 21 and the Lord Chief Justice's Practice Direction: Committal for Contempt of Court - Open Court, March 2015 (PD 2015).
The new COPR 21.8 states that contempt proceedings are to be heard in private if necessary for the administration of justice and one of a range of other factors was met, though the starting position was that all contempt hearings were to be in public. PD 2015 stated that ‘all committal hearings’ were to be held in public, save for cases with exceptional circumstances. Poole J also reminded himself of his earlier decision in Sunderland City Council v Macpherson [2023] EWCOP 3. He set out his views on the apparent conflict between COPR Part 21.8 and PD 2015:
14. […] There is an apparent conflict between the mandatory requirement in PD 2015 paragraph 13 that a defendant who has committed a contempt of court must be named and their name published, and COPR r21.8(5) which requires the court not to disclose the identity of a party (which would include a defendant) if the two tests of necessity within that rule are met […]
15 […] insofar as it relates to defendants in committal proceedings, which it clearly does, I do not read COPR r21.8(5) as applying only to those who have not, or not yet, been found guilty of contempt of court. Further, in relation to defendants who have been found in contempt of court, I do not agree that PD 2015 takes precedence over the COPR Part 21 such that publication of the name of the defendant is mandatory even if the necessity conditions of COPR r21.8(5) are met. In my view, where they are incompatible, COPR r21.8(5) prevails over PD 2015. COPR r21.8(5) applies to all parties and witnesses in committal proceedings in the Court of Protection, and at all stages – before and after any findings of contempt and/or the making of any committal order…
Poole J summarised the overall effect of PD 2015 and COPR Part 21 thus:
23. In my view, PD 2015, paragraphs 14 and 15, and COPR 21 (11) and (13) as explained or qualified by COP PD 21A(4), are consistent in requiring a reasoned judgment to be given in public at the conclusion of all committal proceedings in the Court of Protection but only to require judgments to be published on the judiciary website in those cases where a committal order has been made. The making of a committal order is, in my view, a "committal decision" for the purposes of PD 2015, paragraph 14. COP PD 21A(4) qualifies COPR r21.8(13), it is not inconsistent with it.
Poole J considered requirement to give a reasoned judgment is not necessarily a requirement to name the defendant or P or publish that judgment. However, “COPR r21.8(5) applies to all stages of a committal application and so requires a direction not to disclose the identity of the defendant if and only if the two necessity conditions within that rule are met” (paragraph 25). Poole J elaborated on when the requirement to name a defendant found to have committed a contempt of court arose:
26. Where a defendant is found to have committed a contempt of court there are inconsistencies within PD 2015 paragraph 13 and as between that provision and COPR R r21.8(5). As to the apparent internal inconsistency within PD 2015 (see paragraph 17 above), I am satisfied that, without straining the meaning of the words, it is possible to read paragraph 13 as imposing the requirements to name the defendant in public and to publish their name when they have been found to be in contempt of court, whether or not they have been made subject to a committal order. The explanation in paragraph 13(2) underlines that the court should never withhold the name of a defendant it has made subject to a committal order, but it does not follow that the first and fourth requirements of paragraph 13(1) do not apply when no committal order is made. I reject Mr O'Brien's submission to the contrary. However, the resolution of the internal inconsistency does not resolve the external inconsistency between PD 2015 paragraph 13 and COPR r21.8(5).
Poole J considered that where there was a conflict between the COP Rules and a Practice Direction, the rules must take precedence. The court took a firmer view than it had in the Macpherson case, concluding that:
32 […] notwithstanding the provisions of PD 2015, judges in the Court of Protection should apply COPR r21.8(5) when considering an order for the non-disclosure of the identity of any party or witness in committal proceedings, including the defendant. Insofar as PD 2015 indicates that there is no power to order non-disclosure of the defendant's name, it should yield to COPR r21.8(5) which requires non-disclosure of the defendant's name if and only if the two tests of necessity set out in that rule are met. COPR r21.8(5) applies at all stages of a committal application in the Court of Protection, it applies to a defendant, any other party or a witness, and it applies to the disclosure of the identity of a party or witness by way of their being named in court, in a judgment and/or in a report of the proceedings.
Non-disclosure orders: Poole J considered that “[i]f the court makes a non-disclosure order under COPR r21.8(5), then s.11 Contempt of Court Act 1981 allows the court to make ancillary orders preventing disclosures out of court. In a Court of Protection case those orders might prevent the disclosure of information that would be likely to reveal the identity of the person whose identity is not to be disclosed, such as information about their address or their precise relationship with another person in the case” (paragraph 33).
Poole J summarised the scenarios in which a party in contempt proceedings would be the subject of a non-disclosure order:
36. Accordingly, in my judgment COPR r21.8(5) requires the court to order non-disclosure of the identity of any party or witness if the two necessity conditions within the rule are met. Section 11 of the Contempt of Court Act 1981 allows for ancillary orders to ensure that the purpose of such a non-disclosure order is not defeated. However, it will be a rare case in which the two limb test allowing the court to order non-disclosure of a defendant's identity will be satisfied, and an extremely rare case where they are met in respect of a defendant found to have committed a contempt of court and/or who has been made the subject of a committal order.
37. The first test under COPR r21.8(5) is that non-disclosure is necessary to secure the proper administration of justice […]
38. […] non-disclosure of a party's identity would be a derogation from the principle of open justice which it must be established is necessary to secure the administration of justice. The requirement of necessity means that there must be no lesser measure that will secure that end – only a non-disclosure order will do. Having regard to the authorities, it seems to me that in the case of an order that the identity of a party or witness in contempt proceedings in the Court of Protection should not be disclosed, it would have to be established that,
i) Without a non-disclosure order, the application to commit could not effectively be tried or the purpose of the hearing would be effectively defeated; or
ii) The purpose of the proceedings within which the committal application was made would be effectively defeated; or
iii) The parties seeking justice – which would be the applicant for the committal and any persons on behalf of whom the application was made – would be deterred from bringing their application, or
iv) The order is necessary to protect the human rights of the party or witness, having regard to the importance of the protection of the freedom of expression protected by Art 10 of the ECHR and the extent to which the person's identity has, or is about, to become public, and the public interest in publishing their identity pursuant to section 12 of the Human Rights Act 1998; or
v) In some other way the proper administration of justice would be undermined.
40. The second limb of the test under COPR 21.8(5) enjoins the court to consider whether non-disclosure of the identity of a party or witness is necessary to protect that person's interests. Application of this test will include consideration of the protection of their Convention rights.
41. So far as a party who is P in the Court of Protection proceedings is concerned, it might readily be established that ordering the non-disclosure of their identity will be necessary to secure the administration of justice and to protect their interests. Depending on the particular circumstances of each case, an order for non-disclosure might be necessary:
i) To protect the integrity of orders made in the Court of Protection proceedings including the Transparency Order.
ii) To avoid disclosure of the identity of P defeating the purpose of the Court of Protection proceedings to protect P.
iii) To avoid disclosure of the identity of P defeating the purpose of the committal application to enforce the orders of the Court of Protection which will be designed to protect P.
iv) To avoid deterring the applicant from bringing a committal application (the naming of P in the committal proceedings would be a deterrent to the application to bring those proceedings).
v) To avoid deterring P from giving evidence whether in person or to their Litigation Friend, the police or someone else (if P's evidence were relied upon).
vi) To protect the Art 8 rights of P who had not chosen to bring the committal proceedings, without any corresponding significant interference with the Art 10 right of freedom or expression and without any adverse impact on the overall openness of the proceedings and the public interest.
vii) To protect P's other Convention rights.
42. So far as relatives of P who may be witnesses or parties are concerned, it may often be established that ordering the non-disclosure of their identity will be necessary to secure the administration of justice and to protect their interests. Depending on the particular circumstances of each case an order for non-disclosure might be necessary:
i) To protect the integrity of orders made in the Court of Protection proceedings including the Transparency Order.
ii) To avoid the likelihood of the disclosure of the identity of P by means of jigsaw identification, thereby defeating the purpose of the Court of Protection proceedings to protect or of the committal application to enforce the orders of the Court of Protection designed to protect P.
iii) To avoid deterring the applicant from bringing a committal application (the jigsaw identification of P in the committal proceedings would be a deterrent to the application to bring those proceedings).
iv) To avoid deterring family members from giving evidence (if their evidence were relied upon).
v) To protect the Art 8 rights of family members who had not chosen to bring the committal proceedings and whose alleged conduct had not prompted committal proceedings, without any corresponding significant interference with the Art 10 right of freedom or expression, and without any adverse impact on the overall openness of the proceedings and the public interest.
vi) To protect the other Convention rights of the family members.
43. So far as the defendant to committal proceedings is concerned, it will rarely be established that the tests under r21.8(5) are met. Some, but not all, of the same considerations as set out above might well apply but, in most cases:
i) There will be a very much greater public interest in knowing the identity of the defendant who may have or has been found to have committed a contempt of court, and who may be, has been, or may have been at risk of being made subject to a committal order.
ii) The non-disclosure of the defendant's identity and at least some information about them would be far more likely to render a judgment or reports about the committal proceedings, empty of meaning, thereby undermining the Art 10 right to freedom of expression and the public interest in knowing about committal proceedings in the Court of Protection.
iii) A defendant whose conduct has been found to have been in contempt of court, will have brought the contempt proceedings on themselves, a fact which alters the balance between protecting their Art 8 rights and protecting the Art 10 right to freedom of expression. There will be an even greater importance in ensuring freedom of expression about proceedings concerning conduct in contempt of court. There would be less importance given to protecting the private life of a person whose conduct has been in contempt of court. Those made subject to court orders with penal orders attached have been warned that they may be sent to prison if they breach those orders. They must be taken to know that the courts pass sentences of imprisonment in public (or do so save in the most exceptional circumstances) and so if a court sentences a contemnor to prison (whether an immediate or suspended sentence) their names will be made public. It would be going too far to say that they have waived any right to a private or family life by being in contempt of court, but their claim to protection of their anonymity is very much weakened.
Transparency Orders and Reporting Restrictions: Considering COPR Part 4, Poole J noted a standard Transparency Order does not ordinarily cover contempt proceedings, and committal proceedings are nearly always heard in public. As a result, any reporting restrictions made in committal proceedings would be "different or additional restrictions" for the purposes of paragraph 3 of COP PD 4A (paragraph 47). Unlike other Court of Protection proceedings (which are subject to an order making them be heard in public), no order is required for committal proceedings to be heard in public, “and the provisions of COP PD 4A in relation to public hearings do not appear to apply” (paragraph 48). Poole J considered that decisions regarding reporting restrictions in committal proceedings “must rely solely on COPR r21.8(5) in relation to non-disclosure of the identity of any party or witness in the committal proceedings. Hence, if, and only if, the tests within r 21.8(5) are met, the court will order the non-disclosure of the identity of a party or witness” (paragraph 49). Poole J noted that:
50. It is important to distinguish between different stages of committal proceedings. COPR r21.8(5) applies throughout the proceedings but factors making it necessary for the court to order non-disclosure of a party's or witness's identity may well change during the proceedings. What may be necessary before a finding of contempt, might not be necessary after such a finding has been made. At each committal hearing the court will have to consider whether any r21.8(5) orders must be continued – do the two necessity tests continue to apply? If there has been a finding of contempt or a committal order, does that now mean that no order should be made?
Listing committal hearings: Poole J also noted that the names of defendants in committal proceedings must be published on listings prior to a judge hearing the relevant case. The court considered ‘that COPR r21.8(5) must allow the Court of Protection to make a non-disclosure order regarding the identity of the defendant or any party or witness in committal proceedings in the Court of Protection, even before the first hearing, and regardless of the mandatory terms of paragraph 13 of PD 2015.’ [52] The court suggested that as a matter of practicality, ‘every committal application in the Court of Protection should be put before the appropriate judge prior to the first hearing so that the question of whether COPR r21.8(5) must prevent the identification of the defendant's name in the public court list can be considered. In the absence of any order to the contrary, the defendant's full name must appear in the list. Court listing offices need to be fully aware of that requirement. However, if the court is satisfied that the necessity tests in r21.8(5) are met, then it must direct that the defendant's name shall be anonymised in the court list. The press should be notified and may make representations at the first hearing.’ [53]
Suggestions on committal proceedings: The court stated that given ‘the anomalies and inconsistencies identified’, further consideration should be given by the Court of Protection Rule Committee on the contempt provisions. At paragraph 54, Poole J offered the following suggestions until such consideration had taken place:
i) Open justice is a fundamental principle and the general rule is that hearings should be carried out and judgments and orders made in public. Derogations from the general principle can only be justified in exceptional circumstances when strictly necessary as measures to secure the proper administration of justice.
ii) Committal hearings may be heard in private but if the court is considering doing so it must follow the procedures set out at paragraphs 8 to 12 of PD 2015.
iii) Immediately upon issue committal applications in the Court of Protection should be referred to a judge to consider prior to the first hearing:
a) Whether COPR r21.8(5) requires that the defendant's name should not appear in the court list. In the absence of any such order, committal proceedings should be listed with the full name of the defendant appearing, in accordance with paragraphs 5 or 11 of PD 2015 depending on whether they are to be heard in public or in private. Anonymisation of the defendant on the court list would be a derogation from open justice. Notice of any such decision should be given to the press and the continuation of any r21.8(5) order considered at the first hearing.
b) Whether the existing Transparency Order may need to be extended to cover the non-disclosure of the identity of any party or witness in the committal proceedings. A Transparency Order made in Court of Protection proceedings will not extend to committal proceedings unless there is an express order of the court to that effect. COP PD 4C does not apply to committal proceedings. COP PD 4A only applies if a hearing in public is the result of a court order under COP R r4.3 and so does not apply to committal hearings which are heard in public unless otherwise ordered. The court in committal proceedings in the Court of Protection cannot therefore rely on an existing Transparency Order or use COP PD 4A to restrict reporting. COPR r21.8(5) appears to be the only basis for ordering non-disclosure of the identity of the defendant, other party, or witness in a committal application. It applies at all stages of a committal application in the Court of Protection. If the court is considering making a r21.8(5) order, other than in relation to the anonymisation of the defendant in the public list for the first hearing, it should adopt the procedure at paragraphs 3, 4, 8, 9, 10 and 12 of PD 2015.
iv) Unless ordered otherwise, the parties in the Court of Protection proceedings are the parties to the committal application within those proceedings. Accordingly, COPR r21.8(5) applies to those parties as well as to any witness in the committal proceedings. Unlike CPR r39.2(4), COPR r21.8(5) does not apply to someone who is neither a party nor a witness.
v) COPR r 21.8(5) requires the court to order the non-disclosure of the identity of a party or witness if the two necessity conditions within the rule are met. The Contempt of Court Act 1981 s11 applies to allow ancillary directions to be given if a r21.8(5) order is made. Such ancillary directions may include restrictions on publishing or communicating specific identifying information to prevent the disclosure of the identity of the particular party or witness to whom the r21.8(5) order applies.
vi) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness - COPR r21.8(5). Therefore the non-disclosure of the name of the defendant, or any other party or witness, must be ordered if it meets both those requirements but cannot be ordered if it does not meet them. If a lesser order will suffice, then the order for non-disclosure may not be made. The wording of COPR r21.8(5) reflects paragraphs 3 and 4 of PD 2015, namely that open justice is a fundamental principle, derogations from which can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. It adds a second requirement to be met before the court may order non-disclosure of the name of a party or witness, namely that non-disclosure is necessary to protect the interests of that party or witness. The procedural requirements at paragraphs 3, 4, 8, 9, 10 and 12 of the PD 2015 apply.
vii) The court must consider the application of the tests in COPR r21.8(5) separately in respect of P, the defendant, and other parties or witnesses in the committal proceedings. Where P is a party, the court may readily find that the necessity tests in r21.8(5) are met so that it must direct the non-disclosure of the identity of P. In such a case the court may make ancillary orders under s 11 of the Contempt of Court Act 1981 to protect P's identity.
viii) If the conditions in COPR r21.8(5) are met in respect of the defendant, then the court must anonymise the defendant in any published judgment and must direct that disclosure of the defendant's identity shall be prohibited. The court may make ancillary orders under Contempt of Court Act s11. A convenient mechanism for making these orders would be by extending the relevant parts of the Transparency Order to the committal proceedings.
ix) COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting. In the event of a committal order it will be exceptionally rare for the court to find that the r 21.8(5) conditions are met in respect of the defendant. In the event of a finding of no contempt of court, it will be relatively more likely that the court will find that the r 21.8(5) conditions are met in respect of the defendant, but it will still be an exception for the identity of a defendant to committal proceedings not to be disclosed.
x) Subject to an order for non-disclosure of the identity of the defendant being made under COPR r21.8(5), in which case the defendant must be anonymised in any published judgment and reporting of their identity prohibited, the following practice should be adopted in relation to giving judgment and naming the defendant in committal proceedings:
a) If the court finds the defendant not guilty of contempt of court, then COPR r21.8(11) requires the court to give a reasoned judgment in public but there is no requirement for that judgment to be published on the judiciary website, nor would the requirements of PD 2015 paragraph 13 apply so as to require the defendant to be named and his name to be published on the judiciary website. Nevertheless, the court may decide to name the defendant and to publish their name by inclusion in a published judgment or otherwise.
b) If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.
c) If the court finds the defendant in contempt of court and imposes a committal order then a reasoned judgment must be given in public, the defendant must be named in court and their name and the judgment must be published on the judiciary website. The requirement to publish the defendant's name will be met by naming them in the published judgment.
Conclusions on the appeal in Dr Esper’s case: Poole J considered the grounds of appeal in turn.
The court did not consider itself bound to name Dr Esper: Poole J concluded that under COPR 21.8, the court was required to give a judgment, but was not obliged to post that on the judiciary website where no committal order was made. Dr Esper’s identity was only to be subject to non-disclosure orders if the tests under COPR 21.8(5) were met. The court reviewed the transcript and found that DJ Beckley had recognised that he was not obligated to name Dr Esper publicly, and thus did not fall into error in this way.
The decision not to order non-disclosure of Dr Esper’s identity: DJ Beckley considered whether it was in the interests of the administration of justice to order non-disclosure of Dr Esper’s identity, and found that it was not. “The Judge examined the circumstances of the case and determined that COPR r21.8(5) did not apply to require the non-disclosure of Dr Esper's name. He took into account that Dr Esper had been found guilty of contempt of court but had not been made subject to a committal order” (paragraph 62). The court found that “[t]here is no doubt that DJ Beckley was entitled in the circumstances to find that the first test in COPR r21.8(5) was not met and therefore that the order should not be made. Indeed, it would have been extremely surprising had he found that one or both tests were met. In the circumstances, he could not order the non-disclosure of Dr Esper's identity” (paragraph 63). Poole J found that where DJ Beckley “rightly gave a reasoned judgment in public,” he was not obligated to post this on the Judiciary website, but was free to do so at his discretion.
Permitting the public of Dr Esper’s name while anonymising AB and other relatives: Poole J rejected this challenge, and noted that no appeal was taken to the decision to anonymise AB and others. “[T]he considerations for the court when deciding whether the two necessity tests in COPR r21.8(5) are met in respect of parties other than the defendant, or witnesses, will be different from those that apply to the defendant. There is no logical inconsistency in the decisions made by DJ Beckley. Again, it would have been surprising if he had not found that the tests were not met in respect to AB, and he was clearly entitled to find that they were met in relation to AB's relatives other than the Defendant.”
Poole J also rejected challenges that DJ Beckley had behaved unfairly, and noted that there was no appeal against his decision not to recuse himself. The court also found no error in allowing reporting of Dr Esper’s age and profession, noting that “[h]aving decided that Dr Esper should be named, it seems to me that the judge was entitled to decide that it was not necessary to protect AB to restrict the reporting of Dr Esper's profession. Disclosure of Dr Esper's age would not be likely to lead to the identification of AB” (paragraph 67).
Comment
Poole J’s judgment is comprehensive in its analysis of the problems that have been caused by the disjointed way in which reforms to the law relating to contempt have been carried out. It undoubtedly lends weight to the timeliness of the Law Commission’s contempt project, and, more immediately, to the need for the relevant Rules Committee to consider what can be done in the interim.
