The Court of Protection
Pic:Keith Waldegrave

One of the fundamental aspects of our Western democracy is that the courts and judicial system should be open. This is seen most clearly in one of my favourite judicial quotes from the case of R v Sussex Justices, ex p McCarthy [1924] 1 KB 256: “Not only must Justice be done; it must also be seen to be done.”

This principle is not, however, suitable for all cases. Think about those that involve sensitive evidence that, if revealed, would present an issue surrounding national security. There are also cases where the people involved are particularly vulnerable and would endure hardship if their identity were revealed; think about children or those who have a lower mental capacity.

Therefore a balance has to be struck and this is the theme of a recent blogpost by Gillian Loomes for the Transparency Project. The focus is on the Court of Protection and in particular their efforts to open up an area of the legal system that, for good reason, is often cloaked in a shroud of secrecy.

The response in the post is not a positive one and describes a range of problems such as the complexity of the transparency order itself as well as some of the practicalities in the court environment and the ability to access documents. The pilot program was always going to be a test and unlikely to be perfect but these are serious concerns that will need to be addressed by the court before moving forward.

The post itself makes some recommendations but overall this is about greater public engagement on both an individual and more widespread scale. When people attend the Court of Protection what is it that they want to see and how can this be done in such a way so that it satisfies those needs while continuing to ensure privacy? Much more can be done by the administrative staff when someone visits a court so that they can help to make provision and explain things one-on-one where there is uncertainty.

The Court of Protection is, by necessity, the court that is the most concerned with privacy but it is also a court where huge decisions are made that affect the way that people live their lives. The more openness that we can have so as to understand this procedure the better.