Opinion: “A v Independent News – Freedom of Information as an Article 10 right” Dan Tench

6 04 2010

The right to freedom of expression in Article 10(1) of the European Convention of Human Rights includes freedom to receive information and ideas.  Until recently, the supposed right to “receive” information under this provision carried very little weight in domestic law.  However, last week this all changed with the decision of the Court of Appeal in A v Independent News & Media Limited & Ors ([2010] EWCA 343).

The case related to the access by the media to the hearings of the Court of Protection and concerned the story of a remarkable man, known as “A”, now aged 30, who while being blind and suffering acute learning difficulties was also in possession of astonishing musical gifts.  This had allowed him to chart a career as a successful professional musician. An application was made to the Court of Protection by his parents and sister that they should be appointed as his deputies, to take decisions regarding his personal and financial affairs.  In light of his high profile, various representatives of the media had applied to attend at the (usually private) hearings before the Court.  Under Rules 92 and 93 of the Court of Protection Rules, the Court can allow for a hearing to be in public or allow for specified persons to be allowed to attend or to be excluded from the hearing if it determines that there is “good reason” for doing so.

At the Court of Protection, Mr Justice Hedley ([2009] EWHC 2858 (Fam)) held Article 10 was not engaged because the proceedings were an exception to the open justice principle ([26]).  He held that under Rules 92 and 93 there was a two-stage test. First the Court had to determine whether there was “good reason” under Rule 93 for the order.  That was, as he put it, “a gatekeeping test and necessarily of a somewhat summary nature” ([27]).  He stated that the right to make an application that there was “good reason” was: “not synonymous with the immediate engagement of article 10 rights and the court undertaking the conventional balancing exercise between the respective article 8 and article 10 rights.  Secondly, Hedley J held that if there was “good reason”, then the court should carry out the “balancing” exercise between Articles 8 and 10.

The Judge held that, on the facts, there was a “good reason” and, moreover, it was justified to make an order to allow certain representatives of the media to attend in light of the issues raised and also more generally because it was in the public interest that the jurisdiction and powers of the Court of Protection should be understood by the public.  However, the order related to attendance at the hearing only.  If the media wanted to report any matter arising at the hearing, this would have to be the subject of a further application.

The Official Solicitor, as litigation friend to A, appealed the decision to allow the media in to the Court of Appeal.  The media cross appealed on the question of the application of Article 10.  A powerful Court of Appeal, comprising the Lord Chief Justice, the Master of the Rolls and the President of the Court of Protection, refused to interfere with Hedley J’s substantive order but did reconsider the application of Article 10.  It noted that historically, neither the Strasbourg nor the domestic courts had given much weight to the right to receive information under Article 10.  As recently as late last year, the Supreme Court in Application by Guardian News and Media Ltd ([2010] UKSC 1) held that on “the existing Strasbourg law, a right to obtain [any information which would not otherwise be available] to a person was not within the scope of Article 10″ [34].

But the Court of Appeal noted that Strasbourg jurisprudence had moved on, in particular with the decision in April 2009 of the European Court in the Hungarian Civil Liberties Union case (Tarsasag a Szabadsagjogokert v Hungary). The applicant claimed that the Hungarian government breached Article 10 by refusing to give it access to details of a complaint made in connection with drugs policy since – under the domestic law – this required the consent of the author which was not forthcoming.  The Court noted that it had “recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information.”  The judgment went on:

“[T]he Court notes that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” (Leander, op. cit., § 74). It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court’s previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny (see Chauvy and Others v. France, no. 64915/01, § 66, ECHR 2004-VI). Moreover, the State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available (see, a contrario, Guerra and Others v. Italy, 19 February 1998, § 53 in fine, Reports of Judgments and Decisions 1998-I) and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant”.

In A, the Court of Appeal considered that while Tarsasog related to the obtaining of information from the executive, the principle would apply even more strongly in respect of obtaining access to what goes on in court.  Accordingly, Article 10 was engaged at the first and second stage of the application under Rules 92 and 93.

This is the first time the domestic courts have recognised the right to obtain information as part of Article 10 and this constitutes a major development.  In both the inquiries into the crime of Dr Harold Shipman conducted by Dame Janet Smith and the death of Dr David Kelly conducted by Lord Hutton applications were made by the media to allow televising of the proceedings.  Each time it was submitted that Article 10 was engaged but this was rejected (both somewhat ex cathedra pronouncements albeit by leading judicial figures).  Dame Janet Smith, in wording subsequently wholly endorsed by Lord Hutton, stated:

“… in my view Article 10(1) does not bear upon the right of access to information that another holds but has not made accessible and does not wish to impart… The first sentence states the principle: ‘Everyone has the right of freedom of expression’. That is what this Article is all about. It seems to me that the second sentence must be read subject to the first. The second sentence says that the right (that is the right to freedom of expression) is to include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority. Read as a whole, that sentence, referring back to the first sentence, as I have suggested, says nothing about a right of access to material not yet available to the person concerned.”

Now after A, plainly the refusal to provide information to the media by the state does engage Article 10.  The ramifications of this would appear to fall into three categories.

First and most obviously, there is the question – as in A - of the access by the media to court proceedings, public inquiries and other events.  Most court proceedings are in of course public and those which are not, such as family proceedings and those of the Court of the Protection, are in private for good reason, but this decision may alter a little the balance in respect of access by the media to such proceedings.  Perhaps the greater effect will be in respect of public inquiries such at Hutton and Shipman whereby – the engagement of Article 10 will mean that a substantive justification will have to be advanced if media access – including the televising of proceedings – is to be restricted.  There may also be all manner of other events, such as hearings of other tribunals and meetings of public authorities where restriction of access of the media will now have to be justified.

Secondly, as in the Hungarian Civil Liberties Union case, there is the question of obtaining access to governmental information.  This is now largely governed by the Freedom of Information Act 2000 (“FoIA”) and this development is unlikely to make a significant difference in respect of the bulk of material covered by FoIA.  However, at least at the margins, there may be some difference, for example in determining whether the balance of public interest lies in respect of qualified exemptions, where the application of absolute exemptions may be unjustified or in relation to entities which may be recognised at public authorities under the Hunan Rights Act 1998 but who are not listed as public authorities under FoIA, such as registered social landlords (see Weaver).

Finally, there is the question of whether the obligation to provide access and information under Article 10 could ever apply against private entities.  As this blog has noted, it has long been established that in certain circumstances the courts must uphold convention rights against private entitles (the so-called horizontal effect).  By this logic, it is conceivable that ultimately for example large corporations could – where the public interest commands it – be required to disclose information to the media pursuant to their rights under Article 10.

That is some way off as yet.  For the present, it seems certain that this newly found right to obtain information under Article 10 is going to be of considerable public importance and of considerable assistance to the media.

Dan Tench is Partner in the Litigation & Arbitration Group at Olswang LLP and is Head of Judicial Review & Public Law.  He is a co-founder of the UKSC Blog

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4 responses

2 05 2010
World Press Freedom Day: 3 May 2010 « Inforrm's Blog

[...] Courts (this year in A v Independent News & Media Limited & Ors [2010] EWCA 343, discussed on this blog by Dan Tench).  Freedom of information as a facet of freedom of expression is likely to become more [...]

9 05 2010
Freedom of Expression and Freedom of Information: Part 3 English Law – Hugh Tomlinson QC « Inforrm's Blog

[...] News & Media Limited ([2010] EWCA 343) – this has been previously discussed by Dan Tench on this blog.  Briefly, the Court of Appeal noted that historically, neither the Strasbourg nor the domestic [...]

14 05 2010
Celebrity, access to court and a musical prodigy « Inforrm's Blog

[...] – in that case, information concerning a court hearing.   Dan Tench discussed the case in a posting on 6 April [...]

29 08 2010
Table of Cases « Inforrm's Blog

[...] Opinion [...]

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