Court of Appeal lifts Reporting Restrictions…

On 31 March 2023, the Court of Appeal handed down judgment in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331, which concerned the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order (“RRO”) made long before in end-of-life proceedings in the High Court. RROs are often granted to protect the identities of those involved in the care of patient in respect of whom an application is made to withdraw treatment. Their purpose is to protect the privacy of the patient, his immediate family and of those involved in his treatment as well as to safeguard the integrity of the proceedings.

This case concerned two separate children – Zainab and Isaiah – who had each been the subject of end-of-life proceedings in the High Court, in which the issue was whether life-support should be withdrawn. Both children had subsequently died. In both cases RROs were made during the proceedings.

The need for a measure of protection during the proceedings was plainly merited by cases such as Charlie Gard and Alfie Evans where debate about the merits of the case spilt over into harassment of those involved in providing care to children or in the proceedings, picketing of hospitals and interference with the working of the hospitals. The issue in this case was not whether RROs should be granted but how long RROs should continue after the child had died following a court approved withdrawal of treatment.

In the High Court the President, Macfarlane LJ, approved the granting of indefinite anonymity orders to protect the article 8 rights of a wide range of medical (and nonmedical) staff in cases of this kind: see [2021] EWHC 1699 (Fam).

In appealing that decision, the parents, who were critical of the care their children received, sought to be released from the RROs so that they could speak publicly about their experiences and, in doing so, be free to identify the NHS staff involved. The relevant NHS Trusts maintained that the RROs should remain in force indefinitely.

On what it described as the “Jurisdiction Issues,” the Court of Appeal put beyond doubt that the High Court had jurisdiction to make RROs in end-of-life cases under its inherent jurisdiction. Those powers could be exercised to protect the integrity of the proceedings themselves and those involved in, affected by or connected with the proceedings. In so far as the exercise of that jurisdiction engages competing Convention rights, it must be exercised by reference to those rights (as considered by the House of Lords in Re S [2004] UKHL 47; [2005] 1 AC 593). The CPR do not expand, still less confine, those powers.

The court then considered the case law which confirmed that there is no hierarchical primacy between articles 8 and 10 of the Convention and an intense fact-sensitive evaluation and balancing exercise must take place when the court is being asked to curtail freedom of speech to safeguard article 8 rights. The practical realities of the balance in such cases will be that evidence of a compelling nature is needed to curtail the legitimate exercise of free speech.

Having considered the evidence before the President touching on Convention rights, the Court of Appeal found an absence of continuing serious problems in these cases despite the identification of the hospitals in question to be a “striking feature,” the risk to the article 8 rights of the affected NHS staff by their being identified by the parents and then the press to be “low” and the possibility of serious and improper secondary activity following the public discussion by the parents of these cases to be “speculative.” This was balanced against the parents’ right to freedom of expression, which would be seriously compromised were the RROs to be continued.

Further, the Court of Appeal was not as influenced by the submissions of representative bodies that the wider systemic concerns affecting the operation of the NHS in these types of cases justified the creation of a general practice of granting indefinite anonymity to those involved in end-of-life proceedings in a manner divorced from the individual circumstances of the cases or the individuals involved. It determined such a step was controversial and more suitable for Parliament.

In light of this, the court allowed the appeals and discharged the two RROs, with the order stayed pending any application for permission to appeal. That application for permission to appeal to the Supreme Court has since been granted.

Joel Semakula is a barrister at Landmark Chambers.