V (Out of Hours: Reporting Restriction Order) (Rev 1) [2015] EWCOP 83

​This judgment relates to the reasons of Theis J for granting a time limited extension for a reporting restriction order (‘RRO’). 

The application was made out of hours on 2nd December 2015, concluding just before 10pm.

The Facts
The case relates to Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80]. It related to the issue of whether or not the patient (‘P’) had capacity to refuse treatment of renal dialysis which would extend her life. MacDonald J heard the matter on 13th November 2015 and found that she did have capacity.

At an earlier hearing on 9th November 2015 Moor J had granted an RRO to last during P’s life-time. P sadly died on 28th November 2015 and P’s daughter (‘V’) wished for the RRO to be extended after P’s death.

V’s position
V’s position was set out by her solicitor who stated that she had been contacted by the BBC to see of V wished to comment on the case. A number of the family members had been contacted by the press. Details of P’s life had been kept from P’s younger children and they were vulnerable to the effect of being identified. V’s solicitor set out the large number of email requests from the press during the day.

V’s solicitor relied on a further statement which set out her instructions from V which had developed during the day as the press interest intensified.

It was argued that there should be an extension of 7 days to have an effective inter parties hearing.  It was argued that:-

• The family would not have given such candid evidence if there was a risk of them being identified;
• The explicit and sensitive evidence considered by MacDonald J reflect discredit on P;
• P’s youngest daughter is 15 years and was shielded from details regarding P’s life;
• There is no legitimate interest in identifying P or her relatives - the process and procedure is fully set out in MacDonald J’s judgment;
• If the RRO was not continued it would deter others in similar situations for fear of identification and would be contrary to public policy;
• Balancing Articles 8 and 10 falls in favour of continuing the RRO;
• There is an arguable case that at a substantive hearing the RRO should be continued beyond death.

Other parties’ positions
The Hospital supported the application and the OS remained neutral.

The press opposed the application. They:-

• Objected to the way the application was made with insufficient notice and not during office hours;
• Stated that the order sought is a significant interference with the Article 10 rights;
• Stated that the RRO was made 4 days before the hearing, the family were clear it would lapse on P’s death and did not deter them giving their evidence. No mention of extending beyond death was raised at the hearing;
• P did not appear a retiring figure as in PA v Newcastle (below) - all the evidence points to the opposite;
• There are only generalised assertions about the impact on the family;
• The threshold for extending the RRO is not met.

The Law
There was no issue between the parties that the court had jurisdiction to extend the RRO applying The Press Association v Newcastle Upon Tyne Foundation Trust [2014] EWCOP 6:

'that where a court has restricted the publication of information during proceedings that were in existence during a person's lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person's death, and to balance the factors that arise in the particular case'.

The court also considered Re M [2012] 1 WLR 287,  balancing between Articles 10 and 8 (see paragraph 13).

Decision
The court extended the RRO for 7 days. Although there was delay in the application the court was satisfied that there was not undue delay.

Whilst there is an interference with Article 10 it has to be looked at in the  context that full details of the process by which the court reached the decision, the evidence relied on and the underlying rationale are already in the public domain.

The hearing dealt with very difficult issues and the RRO was only mentioned in passing.

The press interest at the time of the case was not anticipated and intensified during 2nd December 2015. The court considered the impact on the children. The court weighed in the balance the explicit nature of the evidence and that much of it reflects discredit on P.

There was no public interest in P or family being identified.

There is an arguable case that at a substantive hearing the RRO will be continued.

Discussion
The court wanted to ensure that the press had notice of the application and hearing; no formal notice through CopyDirect was given as they only operate during office hours.

The court was critical that the press was not notified by CopyDirect service once the decision had been made. The court emphasised that only where there are compelling reasons these applications must be made on notice.

Read the full text of the judgment on Bailii