CC, R (on the application of) v Secretary of State for Defence
[2023] EWHC 1804 (Admin)
'Closed Hearings' and 'Closed Material': Guidance
6 February 2023
[2023] EWCOP 6
Court of Protection
Imagine a court case where sharing some information could harm someone involved. This guide explains when the judge can keep some information secret or hold parts of the hearing privately, but only if absolutely necessary and after trying everything else first. The judge must also explain their decision publicly as much as possible.
Key Facts
- •This guidance addresses procedures for closed hearings and closed material in the UK Court of Protection.
- •Closed hearings exclude a party and/or their representative; private hearings exclude the public but include parties.
- •Closed material is unseen by a party and/or their representative.
- •The starting point is open justice; all parties should participate and see all materials.
- •Derogation from open justice is justified to protect P's ECHR rights or for other compelling reasons.
- •Closed hearings are a last resort; less restrictive methods must be explored.
- •Applications for closed hearings must detail justifications, explored alternatives, and steps to minimize rights interference.
- •Closed hearings should ideally be before a Tier 3 judge and listed discreetly.
- •A reasoned judgment explaining the rationale and decision (where possible) must be published.
- •Similar considerations apply to situations where a party is not informed of a without-notice application.
- •A staged approach governs closing material, prioritizing P's best interests and the necessity of non-disclosure.
- •Restricting access to legal representatives alone is generally impractical and ethically problematic.
- •Decisions regarding closed hearings and closed material are recorded in judgments for future disclosure and appeals.
Legal Principles
Court of Protection has powers to exclude parties and withhold information, exercised in accordance with the overriding objective, fairness, and ECHR.
Re P (Discharge of Party) [2021] EWCA Civ 512
Decisions on closed hearings or material closure are case management decisions, not best interests decisions under s.1(5) Mental Capacity Act 2005.
Re P (Discharge of Party) [2021] EWCA Civ 512
Open justice is fundamental; judges cannot use evidence or arguments not before all parties.
Bank Mellat v HM Treasury (No.2) [2013] UKSC 38
Common law fairness and Article 6 ECHR require parties to answer adverse material with evidence and arguments.
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Derogations from open justice must be limited and reviewed; imperfect solutions are acceptable if necessary.
Secretary of State for the Home Department v MB [2007] UKHL 46
Closed hearings are a last resort; less restrictive methods must be explored.
Re A (Forced Marriage: Special Advocates) [2010] EWHC Fam 2438
Court must consider common law fairness and ECHR rights of excluded parties, while prioritizing P's best interests.
KK v Leeds City Council [2020] EWCOP 64 and Re A (Sexual Abuse: Disclosure) [2012] UKSC 60
For closing material, a staged approach considers the risk of harm to P, the benefit of non-disclosure, and the party's interest in seeing the material.
RC v CC & Anor [2014] EWCOP 131
Non-disclosure must be strictly necessary to meet the identified risk.
RC v CC & Anor [2014] EWCOP 131
Outcomes
Practice guidance issued for closed hearings and closed material in the Court of Protection.
To establish a clear procedure in limited cases requiring such measures.
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