Closed hearings and closed materials
Closed hearings
On 6th February 2023, after considering the decision in Re A (Covert Medication, Closed Proceedings), [2022] EWCOP 44 Mr Justice Hayden, Vice President of the Court of Protection (COP), published guidance on the procedure in which closed materials and closed hearings are to be considered.
In a limited number of cases, it may be necessary to derogate from the norm. This may arise in circumstances necessary to secure P’s rights under the European Convention on Human Rights (ECHR) or, alternatively, where non-disclosure is in the best interests of a party or the public.
The circumstances in which a closed hearing may be ordered are extremely limited. Enabling public access would defeat the purpose of the hearing. Despite this, the requirements of open justice remain a heavy weight and the reasoned judgement must be published at the earliest opportunity.
The power of the court
The COP has powers to exclude parties from hearings and withhold information from parties, but this must be done so in accordance with the overriding objective, common law obligations of fairness and the ECHR.
The starting point must always follow that all parties to proceedings before the COP should be able to participate and have sight of all materials.
Where non-disclosure is deemed appropriate, this must only be maintained for as long as strictly necessary.
There is an expectation that any closed hearing should be conducted by a Tier 3 judge.
All matters relating to either closed hearings or closed materials should be addressed in an open judgment. This may need to be accompanied by a closed judgment, but this must be an exceptional course of action as there would be no public record as to how the Court reached its conclusion.
What is a closed hearing?
- A closed hearing is one in which a party and, where the party is represented, their representative is excluded from the hearing by order of the Court.
- This differs to a private hearing in which the public and press are excluded.
Considerations for a closed hearing
- A matter of last resort.
- All other less restrictive methods to be exhausted, as per Re A (Forced Marriage: Special Advocated) [2010] EWHC Fam 2438.
- For the party (or parties) seeking a closed hearing to set out, well in advance with appropriate evidence, why it is justified.
- The proceedings must not become an instrument of harm to P, nor be any interference with the common law or ECHR rights of the party to be excluded.
- The decision ultimately lies with the Court.
Applications for a closed hearing
In addition to setting out the basis upon which a closed hearing is sought, the application should set out all steps that the applicant has considered short of a closed hearing.
What is closed material?
Closed material is material which the Court has determined should not be seen by a party and/or their representative.
Closing material
- Would disclosure of the material involve a real possibility of significant harm to P?
- If so, would the overall interests of P benefit from non-disclosure?
- What is the strength of the material in the case?
The test for non-disclosure is whether it is strictly necessary to meet the risk identified by the Court.
Consequential steps
There is a requirement to record why the decision has been made in a judgement in order to enable disclosure at an appropriate point in the future and allow a speedy and proportionate determination of any appeal in the event that the relevant party brings an appeal.
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