This week, we are focussing on a pair of joined cases where Reporting Restriction Orders (“RROs”) have been overturned by the Court of Appeal in end-of-life cases concerning young children.

For those involved, both cases are clearly very sad, but they are important legally because the judgment is another example of the courts coming down in favour of freedom of expression.

The cases are Abassi v Newcastle Upon Tyne NHS Foundation Trust and Haastrup v King’s College Hospital NHS Foundation Trust. In both of them, RROs were made by consent during the end-of-life proceedings.

In the case of Abassi, the initial order was narrow, protecting only the identity of the Trust and four named clinicians; but in the case of Haastrup, the original order protected a wider range of clinical and non-clinical NHS staff who were not identified by name in the RRO, meaning that the potential pool of those covered was significant.

In 2020, both the Abassi and Haastrup families applied to discharge the orders so as to be able to tell their respective stories to the public.

The cases were combined due to their common features. The President of the Family Division of the High Court heard the original applications and ultimately decided that the RROs should remain in place.

The President’s reasoning was firstly that they were necessary due to the potential for harassment against the clinicians if they were named – not by the parents or the mainstream press, but by unscrupulous actors who involve themselves in cases of this nature.

Secondly, he gave weight to the systemic issues that naming the clinicians might cause – namely a fall in morale within the NHS, as well as impacting retention and recruitment of staff, which could result in an impairment of the hospitals’ ability to deliver effective care.

Subsequently, both families appealed the President’s decision to the Court of Appeal.

The grounds of appeal were that, firstly, that the High Court did not have jurisdiction to make or continue RROs preventing the identification of people who are not parties to or witnesses in proceedings.

The Court of Appeal disagreed in this regard, and upheld the decision that the High Court had well established jurisdiction to make such orders.

The second ground of appeal was that the President had erred in law by failing to carry out the balancing exercise between Article 8 (Right to Privacy) and Article 10 (Freedom of Expression) correctly, and specifically, he failed to give proper weight to the open justice principles at play in both cases.

The NHS Trusts sought to uphold the decision of the President of the High Court and for the RROs to remain in place.

The Court of Appeal agreed with the Abassi and Haastrup families, with the result that the RROs will be lifted, subject to a slight delay in order for parties to appeal the decision if they wish to do so.

So, on what basis did the Court of Appeal come down on the side of Freedom of Expression and open justice?

Whilst the Court of Appeal noted that Article 8 and 10 rights must be given equal weight as a starting point, the judges reiterated that “compelling” evidence was required to curtail free speech. In this case, the NHS Trusts’ arguments had two aspects: firstly, that the privacy of the clinicians should be protected, and secondly, that the RROs should remain in place to protect the NHS from systemic harm.

In relation to the Article 10 rights of the parents to be able to tell their story, the Court of Appeal noted that those rights, some years after the deaths of the children and the conclusion of the end-of-life proceedings, were at the heart of the case.

Whilst the RROs were clearly justifiable at the time of the end-of-life proceedings to prevent crime and protect the interests of all of those involved, the weight of arguments around the clinicians’ right to privacy decreased as time went on because they were now based on a speculative risk of harassment and reputational harm.

In looking at this issue, the Court of Appeal referred to a 2018 case in which it was said that “there must be an intense focus on the type of risk that is involved, how likely it is to happen, and what the likely consequences might then be. Only by carrying out this exercise is it possible to know what weight to give the risks before setting them alongside other relevant factors”.

The President therefore erred in his decision and the cases of Abassi and Haastrup required an intense focus on the types of risks involved, the likelihood of them coming to fruition, and the likely consequences if they do.

In this regard, the evidence presented to the Court of Appeal by the NHS Trusts was generic and did not relate to the specific clinicians in question. The Court of Appeal decided that whilst the RROs were clearly correct at the time of the end of life proceedings, the clinicians were easily identifiable once the Trusts were named, with no adverse consequences.

The risk to the clinicians was therefore low and the relevant factors no longer carried the same weight they did at the time of the end-of-life proceedings.

On the flip side, the Article 10 rights of the parents to discuss the cases and stimulate genuine public debate on an issue of significant public interest would be seriously impaired if the RROs were to remain in place.

Even in the Abassi case, where the RRO only relates to four named clinicians, it still prevents detailed discussion of the case due to the risk of indirectly identifying those four.

Further, Mr Abassi had made clear in his submissions that his aim in speaking publicly was not personal vilification (which the NHS Trust accepted), but to bring about improvement in systems, procedures and to prevent the same issues recurring.

The NHS Trusts argued that this could be done without naming the clinicians, but the Court of Appeal came back to the question: “What’s in a name?”, with the answer being: “A lot”. The Court recognised that the media need to be able to write and publish stories which capture the readers’ attention, and being able to name those involved is key to that.

The Court of Appeal also concluded that the President had erred in considering and giving weight to the systemic issues which might impact the NHS as a result of the clinicians being named, as part of the balancing exercise.

In conclusion, the Court of Appeal found that the Article 8 rights of the clinicians now had limited weight, whilst the Article 10 rights of the parents in both cases were strong, and therefore “the parents’ rights to free speech decisively prevails”.

The judgment went on to say that:

“Experience has shown that end-of-life proceedings can generate a fire storm on social media, sometimes fanned and taken advantage of by organisations and individuals with strongly held beliefs about the morality of withdrawing treatment.

“The fire storm often overwhelms calm debate. RROs become essential to protect the integrity of the proceedings and those caught up, directly and indirectly, in them. Indefinite orders are a different matter. They require careful scrutiny, clear evidence and an intense evaluation of competing interests.”

In coming to its conclusion, the Court of Appeal made important comments in relation to the general systemic issues relating to the operation of the NHS which were cited as a reason to retain the RROs.

If those arguments were allowed to hold weight in the balancing exercise between Article 8 and Article 10 it would mean that RROs would be imposed indefinitely in all end-of-life cases, without case -specific justification.

The Court of Appeal reaffirmed that this should not be the case and such a controversial policy decision would be only for Parliament to make. Under current law it remains that open justice should only be infringed through RROs in the “most compelling circumstances”.

The cases of Abassi and Haastrup have a long procedural history and have come from incredibly complex end-of-life cases, but they give publishers a binding judgment from a senior court which says that RROs should not be in place indefinitely as a matter of course, and explains the weight that should be given to the freedom of expression of the parents once the end-of-life proceedings themselves have concluded.