Heart of the matter

Over the past year there has been considerable discussion about privacy and court secrecy. However, I don’t think that the nub of the issue has been properly addressed.

Inner circle

Secrecy which is based around the law of confidence assumes that if something is secret or confidential then there is a defined and relatively small group of people who are allowed to know the information concerned. Court orders and the Access to Justice Act 1960 then make it an imprisonable offence to reveal that information.

In December 2011 a mother was given a suspended prison sentence for revealing details of the case she was in and in August Elizabeth Watson was given a nine-month sentence (reduced on appeal) for publishing information about a case where she had been assisting (somewhat counterproductively in my view). Hence it is clear that the courts do take firm action when people breach confidentiality.

The underlying problem with secret court hearings is that the mechanism used for holding judicial processes to account is public scrutiny. Without that public scrutiny then the process does not operate reliably. That does not guarantee a miscarriage of justice, but the protection against it is lesser.

The biggest problem with secret hearings relates to evidence. The judge can have no certainty that he or she has heard all the relevant evidence. Hence a conclusion is reached that is not reliable. The Court of Protection relies substantially on expert evidence.

One expert (Ruth Coppard) was recently found guilty of misconduct on the basis of a report written for the secret family court. It was, in fact, only relatively recently that it became possible to report experts to regulators over reports written in the Family Court, but I am not sure that it is possible to report experts to regulators over reports written for the Court of Protection. However, it is quite clear that the expert opinion that is the foundation of the judicial decisions is frequently unreliable.

I have seen a number of examples of really bad expert opinion in both the Family Court and the Court of Protection. I have also seen cases where it is clear that professional advisers have enriched themselves unreasonably using the assets of parties whose mental capacity has (rightly or wrongly) been removed from them. The official solicitor is not currently subject to the Freedom of Information Act and there is no effective scrutiny of the actions of the official solicitor or any other litigation friend (as opposed to a Mackenzie Friend) outside the court setting. As the court setting is secret it therefore prevents any such scrutiny.

Halfway house

I have spoken in the House about cases where it appears that property has been taken wrongfully from people who are subject to the Court of Protection, but that the regulatory system has failed to deal with this. All of this arises from the secrecy and lack of scrutiny. Secrecy does not have to be absolute. It is entirely possible to have a more relaxed form of secrecy like the USA example of a tort of privacy whereby it is a tort to advertise private matters, but not a tort to otherwise communicate such issues.

There have been a number of cases where there are questions as to what is an appropriate deprivation of liberty. The Welsh case where a local authority wished to prevent a lady with Alzheimer’s being taken on a cruise was an important case to get into the public domain. The attitudes of practitioners and the basis of decision making does need to be subject to public scrutiny to test it as to the reasonableness of their conclusions.

Gradual progress is being made in opening up the judicial proceedings. It is, however, important to remember that secrecy undermines the rule of law. It therefore needs to be kept to an absolute minimum. The form of secrecy that is commonplace at the moment does so much damage to the judicial process that miscarriages of justice are legion. The courts only operate with the authority of parliament, but if parliament does not know what is happening then the courts are out on a limb.

The excessive secrecy needs to stop.

John Hemming is the Liberal Democrat MP for Birmingham Yardley