Mental Capacity Case

Re DP; The Public Guardian v JM

Sir James Munby P

Summary: In this appeal from one aspect of the decision of Senior Judge Lush in Re DP [2014] EWCOP B4 (the first decision reported under the new Practice Guidance on Transparency), Sir James Munby P has provided important clarification as to the approach he intends should prevail as regards the identification of P.

In his decision to revoke the power of attorney granted by DP to JM, Senior Judge Lush had drawn specific attention to the facts (i) that JM had sold DP's house for £165,000 and placed the net proceeds of sale in an account in his name (subsequently arranging to put the account in DP's name when he became aware that the OPG was investigating), (ii) that JM had attempted (unsuccessfully) to persuade Aviva to transfer DP's investment bond into an account in his own name, (iii) that JM had made a gift to himself of £38,000 from DP's monies (this being a breach of section 12 of the Act), (iv) that JM was unable to account for drawings from DP's monies totalling £10,020, and (v) that JM had paid himself a 'salary' totalling £8,340 (a claim that the Senior Judge described as an "inherent artificiality" and in any event a breach of the terms of the lasting power of attorney). As the Senior Judge recorded in his judgment, JM had asked why he was still being investigated by the OPG when the police, following an investigation, had concluded that he had no case to answer. As the Senior Judge commented drily (para 44): "The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM's guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable."

The Senior Judge did not name JM in his judgment. He did not explain why (nor, indeed, was there anything in his judgment to show that this was a matter to which he expressly directed his mind). As the President noted "[p]ossibly bearing on the point are certain matters to which he did refer: the fact that JM lives in the Dartford postcode area, that he had known DP since 2006 and been her gardener when she lived in Orpington, and that DP is now living in a residential care home in the London Borough of Bromley."

The Daily Mail then ran two stories reporting upon the case and criticising in strong terms both the facts that JM had not been named or charged. ANL (the publishers of the Daily Mail) applied to the court for an order permitting the identification of JM in reports of the case.

The application was listed before the President on 18 June 2014 (at which, inter alia, JM was present in person); he granted the application and reserved his reasons.

In his judgment, Sir James Munby was at pains to emphasise that he was – and could not – be concerned with the tenor of JM's complaint that ANL was using him as a scapegoat by using the case to make a political point to get the law changed. However, Sir James Munby P held, it was clear that

"17. If JM is being defamed or treated unfairly by a newspaper he has remedies elsewhere. But they are not matters for this court. I venture to repeat what I said in Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] FLR forthcoming, para 26:

'So far as concerns the relationship between the media and the court I … merely repeat … , so as to emphasise, three key principles (Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, paras 37-39). First, that 'It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish'. Second, that 'Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is … not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar'. Third, that 'It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory … If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction.'

Exactly the same goes, in my judgment, for the Court of Protection."

Rather, all the President could be concerned with was whether JM should be identified, a matter to be determined in accordance with well-established principles equally applicable in the Court of Protection as in the Family Court (in cases including In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, sub nom Re Webster (A Child) [2007] EMLR 7, and Independent News and Media Ltd and others v A [2010] EWCA Civ 343, [2010] 1 WLR 2262).

Sir James Munby P placed particular attention to paragraphs 63-64 of the judgment Lord Rodger of Earlsferry JSC, giving the judgment of the Supreme Court, in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] 2 AC 697. Whilst he noted that the passage is well-known, at least in some quarters, he noted that it merited quotation in full for the benefit of those practising or sitting in the Court of Protection:

"63 What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed … This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64 Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that

'from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.'

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer."

In the balancing exercise in the instant case, the rights in play were identified as being:
  1. The rights under Article 10 enjoyed by both ANL and its readers;
  2. JM's Article 8 rights;
  3. DP's Article 8 rights.
Sir James Munby P considered that the impact on DP if JM were to be identified was likely to be minimal. "Quite apart from DP's current state of health," he held at paragraph 22, "the reality is that few if any additional people will be able to link JM to DP if he is now identified. Almost all, in my assessment, are already 'in the know', either because they were already aware of what was happening or because, having read the Daily Mail articles, they have been able to make the link."

As to JM's Article 8 rights, the issue was ultimately very simple:

"27. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be if his self-same conduct was being considered in the Chancery Division or the Crown Court?

28. The only possible argument to the contrary is dependent upon the impact, if any, on DP. But the reality, as I have already concluded, is that any impact on DP is likely to be minimal."

The President therefore held that "the balance comes down heavily and decisively in favour of the public being told who JM is; in favour of the Daily Mail and others being free to identify him as the person referred to by the Senior Judge in his judgment." ANL were therefore granted the order they sought.

Comment: What the President took away from ANL with one hand in the Re G case he gave to ANL in this case. Indeed, the reasons for his very different conclusions indicate precisely the balancing exercises that need to be struck in this jurisdiction. In Re G, ANL were robustly refused permission to become a party for purposes of joining in the instruction of a psychiatrist to report upon G's capacity to communicate with the press; in Re DP, the President had little hesitation in finding that JM could be named and not thereby be protected from the consequences of his misconduct by the mere fact that the proceedings had taken place in the Court of Protection. There are very delicate exercises to be conducted in the (entirely laudable) pursuit of opening up the workings of the Court as far as possible to reporting, and these judgments (combined with the judgment in the Press Association v Newcastle upon Tyne Hospitals Foundation Trust) indicate some of the ways in which they will be struck in future.