In the High Court, Mr Justice Hedley has been faced with making an excruciatingly difficult judgment: whether to allow doctors – against the wishes of her parents – not to resuscitate Charlotte Wyatt, an eleven-month-old baby born extremely prematurely and with an appalling prognosis.
Even before the hearing began, the judge was faced with another difficult choice, between the often-competing demands of openness and protecting the individuals involved in a court case of great sensitivity.
Whilst the Civil Procedure Rules governing the conduct of non-criminal proceedings gives effect to the principle, enshrined in the Human Rights Act, of public hearings in open court, there are certain circumstances in which common law or statute provides that the court may in its own discretion sit in camera (i.e.
in private), if the interests of justice demand it or, arguably, if the proceedings would otherwise be severely disrupted by disorderly behaviour. However, even in those cases, the media – “the eyes and ears of the general public”, as Sir John Donaldson, the then Master of the Rolls, put it in 1988 – may be allowed to report and are still entitled to comment on the case.
In holding that the hearing that will decide Charlotte’s future must be open – a stance supported by both the parents and the NHS trust – the judge recognised the genuine public interest in the proceedings, which may well set a precedent for future ‘righttolife’ cases, which outweighed arguments that the hearing should be held in private to protect the medical staff giving evidence: “In this kind of case, the interests of justice are much more likely to be served by a responsible debate, based on as full information as possible… the court ought to give those from whom it expects responsible debate the fullest means of conducting that debate.” These comments are reflective of the fundamental belief that open hearings are in all but exceptional cases (such as matters of national security and extreme sensitivity) in the public interest, not least because, “publicity is,” as Lord Halsbury said nearly a century ago, “the very soul of justice…
and the surest of all guards against improbity.”
However, amid fears that doctors may be targeted by pro-life campaigners, Mr Justice Hedley, exercising the court’s discretion, ruled that the identities of both the hospital staff involved and expert witnesses must not be disclosed. The court also has a statutory power to make an order (on its own initiative or on application) preventing or postponing the publication of information, including the names of participants not already identified, relating to proceedings held in open court where the administration of justice would be harmed by such disclosure. Breach of such an order would amount to a contempt of court, punishable by a fine or imprisonment.
Charles Brasted is a trainee solicitor at Lovells
Charles Brasted
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