![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mersey Care NHS Trust v Ackroyd [2006] EWHC 107 (QB) (07 February 2006) URL: https://www.bailii.org/ew/cases/EWHC/QB/2006/107.html Cite as: [2006] EWHC 107 (QB) |
[New search] [Printable version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
MERSEY CARE NHS TRUST |
Claimant |
|
- and - |
|
|
ROBIN ACKROYD |
Defendant |
____________________
Mr Vincent Nelson QC & Mr Jonathan Bellamy (instructed by Capsticks) for the Claimant
Mr Gavin Millar QC & Mr Anthony Hudson (instructed by Thompsons) for the Defendant
Hearing dates: January 17th – 20th, 23rd &25th 2006
____________________
Crown Copyright ©
Mr Justice Tugendhat:
INTRODUCTION
30th SEPTEMBER TO 28TH OCTOBER 1999
"Last night a hospital insider said: "If he continues he will be dead in a week. This is the end for Brady. He is prepared to die"…. The hospital source said "staff swooped on Brady with no warning and separated him from the patients he knew. It has caused huge problems the hospital is now in chaos"".
"Moors murderer Ian Brady is planning to sue a mental hospital for a "five figure sum" after a scuffle with nurses. The child killer claims he suffered a fractured wrist as a result of six staff grappling with him while he was being transferred from his room. His planned court action, which will be funded by legal aid, has outraged the families of his victims… Four days later he made a statement to police demanding that one of the male nurses who handled him be charged with causing actual bodily harm. The hospital describes Brady's injury as "a chipped bone". They argue that he was accidentally injured because he resisted attempts to take him out of his room. Last night an insider said the killer was determined to sue regardless of the outcome of the police probe. "Brady is devious and after financial gain. Because he has made an official complaint, the police have to send a file to the Crown Prosecution Service or he would cry foul. You can see he is playing clever with the aim of dragging the hospital through the civil courts. He has the upper hand. But even if he is awarded a payout, there are only so many Mars bars and packets of cigarettes he can buy at Ashworth. "
"I have had eight x-rays on my wrist but the bruising was too severe and swollen to ascertain the damage".
"Here are the facts. On the morning of 30 September I was sitting on my bed, writing legal notes, door wide open when a crowd of warders rushed in dressed in riot gear, visored crash helmets and plastic shields.
Without explanation my arms were wrenched violently up my back, fracturing a bone in my wrist, and my head held down to the floor.
I was then dragged into an empty cell and always pinioned in the same position, stripped and searched. Again always violently pinioned I was eventually dragged into a van and transported to a ward. The unprovoked attack by the riot-gear prison warders continued for over an hour. My solicitors brought in the police to lay charges against the warders and are suing the hospital regime and taking action through other multiple channels.
In reaction to the unprovoked attack I stopped eating on 30 September, drinking only milkless, sugarless tea-coffee, and am still doing at present. In my thirty five years of captivity I have never touched a prison official or warder.
As the riot gear warders dragged me round I repeatedly said I could walk, but was completely ignored.
Obviously the whole unprovoked attack was meant to suggest violence on my part, and, second to impress or intimidate – which it has failed to do. I had to wait ten days before I could write legibly.
I've had a splint on my wrist for the past fifteen days but it still aches. Multiple x-rays fail to ascertain bone damage as the wrist was too severely bruised and swollen for x-rays to penetrate.
Recent further x-rays revealed a cracked bone. A consultant from outside said I should have a plaster cast, but nothing was done. I've still been given no explanation whatsoever.
"Moors murderer Ian Brady is refusing food at Ashworth top security psychiatric hospital, it has been confirmed.
Brady, 61, has refused all solid food for eighteen days at the Merseyside hospital, taking only tea and coffee with artificial sweeteners.
Staff say he is being monitored regularly and there is no immediate fear for his health…
In an open letter to his solicitors, Brady alleges rough treatment by staff during the move.
He said he was strip searched and pinned down for over an hour in an assault which he suffered a badly swollen wrist.
He also alleges he could not write for ten days because of injuries he suffered when his arms were violently twisted up his back.
Officials at Ashworth hospital are conducting an investigation into the matter.
A statement said: "As Ian Brady himself has chosen to make details of his clinical condition public, Ashworth hospital can confirm that he has not eaten since 30 September 1999 but that he has been taking plenty of sweetened hot drinks. Obviously he is monitored regularly but there are no grounds for concern about his condition. External medical consultants have examined his wrist and their opinion has been reassuring".
A spokesman for Merseyside police said:
"Investigations are continuing but they are still in the early stages". …"
21 October
I am still drinking sugarless, milkless tea and coffee eating nothing since 30 September. They are systematically isolating me from the outside world and have been doing so for the past 18 months – no visits at all except solicitor and QC.
23 October
I still haven't access to my main stationery – A4 blue carbon paper, or blank envelopes, stamps and pens. The riot squad prison warders trashed my room for four hours after I was dragged over to the ward.
If they sought to intimidate the oppressed population of this hospital by making an example of me, they have failed in that as well – several patients, including a woman, are now on hunger strike in this "hospital".
I am still only drinking sugarless, milkless tea since 30 September. Many consultants have seen me. They now want blood samples everyday, my arms being now black and blue. As you can see, I am still functioning perfectly mentally, despite the multi trauma of malicious events and noise.
25 October
Saw a professor last week – a consultant from outside, which explains why, with good intent, he gave me advice he'd given outsiders. I listened politely, then answered, "I have been in captivity for thirty five years. I shall remain in captivity until I am dead".
Therefore, I am not in the least interested in being kept breathing merely to keep an ever increasing, overmanned army of prison warders in lucrative unemployment.
What my life now boils down to is, I am a cottage industry, a gold mine for prison warders and that is all they are interested in. The authorities here, by starting this circus, by deliberately planning an unprovoked attack on me by riot gear thugs for over an hour, are now intent for punishing me for having my wrist broken, calling the police to lay charges, and having legal action taken against this corrupt regime. The questions I have put to my (solicitor) today: Can an injunction be taken out to stop the "medical" interference now being imposed on me in an oblique attempt to make me resume eating? Or can a question be put in the House to similar effect?
This morning I posted seven lengthy letters – sufficient evidence that I am still functioning perfectly, despite circumstances".
29TH OCTOBER TO 2ND DECEMBER
"Staff at Ashworth secure hospital on Merseyside have begun force feeding moors murderer Ian Brady a month into his hunger strike. Brady, who has served more than 30 years in jail and psychiatric hospital for his crimes, says his human rights are being infringed.
He began his hunger strike as a protest against conditions in the hospital after he was moved to a high security wing, following a review on 30th September.
His solicitor Robin Makin told BBC News 24 that Brady wanted to take legal action against a potential breach of human rights.
He said: "The critical issue is this: do the authorities have the right to force feed somebody who does not want to be forcibly fed – even if that means they die? Certainly if he was still in prison there would be no question of force feeding him."
He added he is very against what is being done to him and wishes to take whatever steps can be taken:
'Risks increasing'
Managers at Ashworth hospital said in a statement: 'Ian Brady has also been assessed by external clinicians and it is now the opinion of both Ashworth clinicians and external clinicians that the risks involved will become greater the longer he refuses his food'.
The hospital said Brady was told he could either agree to start taking nourishing drinks or he could refuse to take nourishment, in which case a programme of re-feeding would begin.
Brady decided not to take nourishment conventionally, and therefore a programme of feeding had begun on Friday, the hospital said.
Doctors are feeding him through a fine tube passed up his nose and down into his stomach.
The hospital added: 'The patient's well-being is given top priority throughout the process and both the patients physical and mental health is constantly monitored'.
Brady said he was strip searched and pinned down for over an hour during a recent move to the high security wing. He says he suffered a badly swollen wrist.
Officials at Ashworth hospital are conducting an investigation into the matter.
Although he had refused food since 30 September he was taking regular sweetened hot drinks…"
"On 29th Oct they started force-feeding me, threatening violence if I resisted. Next my 'doctor' wanted blood samples, again threatening violence if I resisted. They took three attempts and three x-rays simply to insert the tube up my nose and down my throat. The first attempt went into my duodenal. I've now had the tube in my nose and throat five days – helping me lose what little sleep I get. They syringed freezing fluids straight from the fridge into my stomach and I've been wearing an overcoat to keep warm ever since".
"There are other issues which, also, need to be investigated including the delay in releasing Mr Stewart Brady's records notwithstanding the serious concerns about inaccuracies in those records and Ashworth's media comments (including Mr Clarke appearing on television). Ashworth's own guidelines make it clear that they will not release any confidential information about a patient without their consent and Mr Stewart-Brady has not consented to the release of confidential information. Ashworth have been obstructive in us progressing matters and releasing the required information…"
"Brady's desperation to die is revealed in a confidential 'diary' of his deteriorating condition kept by the authorities at Merseyside's Ashworth Hospital …
It discloses how he told staff charged with keeping him alive 'One way or another I will get away from this place [This is a quotation from the notes for 29th October]… f***** screws [This is a quotation from the notes for 28th October], f*** all of you [This is not a quotation from the notes, but may be misquotation from the notes for 26th October]'.
Asked for a blood sample, replied: 'They can take the lot'. [This is a quotation from the notes for 24th October] Once he told of his wish that he had killed himself when arrested more than 30 years ago [This is a paraphrase of the notes for 5th October].
… The search took place on September 30. By tea time, he was observed by two members of staff around the clock and nurses were warned he could be a suicide risk.
The diary starts the following day:
October 1
'His only communication with nursing staff has been to philosophise on his current position and his perception that he is being mistreated. Stated: 'I have nothing so say that cannot be resolved by the courts. […] All dietary intake has been refused. […] Weighed at 13st 7lb…"
"Dr Collins informed patient within next 24 hours he would be given four documents containing following information with [regard re-feeding] […] Dr Collins requests nursing staff to monitor and record accurately […] changes in physical, behavioural and psychological condition. […] Brady appeared to be more agitated and tense than earlier. […] Attempts to discuss any problems with staff met with ignorance [and] appeared angry/agitated. […] Began briskly pacing up and down day area for […] 15 minutes. Also […] heard muttering 'f***ing screws'. […] He reiterated he saw the hospital as having deteriorated and now being little, if at all, different to a prison. […] He point out the hospital had moved him to the most notorious ward'".
"Nurses struggled twice to insert the plastic tube in his nose, before a doctor was called and told them to use anaesthetic gel to make the process less painful".
"The liquid came straight from a fridge, rather than being warmed to room temperature. And as the tube was being pushed down Brady's throat a manager mocked him by making gagging and gurgling noises, an independent inquiry into the treatment was told".
"Brady claims he was mistreated and is determined to seek 'justice'. All that was said in the report was: 'The tube was inserted […] An X-ray confirmed that it was appropriately placed […] Mr Brady was clearly expecting at some level that something along those lines would take place and took it all in a resigned fashion. He was courteous throughout …"
"The report into Brady's allegations, by Professor David Sines of South Bank University was delivered to the Health Department yesterday".
THE CONTENTS OF THE PACIS NOTES AND SINES REPORT
"Mr Brady said that if the hospital were to be contacted and the issue of any injury raised then he would prefer that a 'no comment' was given to the press – he had no wish for the hospital to reveal details of this aspect of his case'".
"Ian has made it known that he believes his apparent wrist injury was a direct result of the intervention of the C&R team…"
RESPONSES TO THE LEAK
"was released directly, or indirectly, by you or your client or with the approval of your client. Could you also tell us whether you are satisfied that it could not have been released without the consent of you or your client, by someone to whom you have sent your client's medical notes? In this respect, our client would be grateful if you would be willing to provide specific details of those with whom you have shared some or all of the medical records provided to you by our client within the Access to Health Records Act".
"The article did not appear with their clients' consent. The patient records published in that article were not released or published with the consent of our client or ourselves and nor were they released by anyone instructed by us. … You will appreciate that Ashworth are most closely connected with the material published and, as a public body, which 'takes very seriously its responsibilities as regards patient confidentiality' it ought to bring proceedings against MGN Ltd without further delay. You will, also, be aware of the need to protect our client's rights under the European Convention on Human Rights (in particular Art 8)… If you consider that our client must be joined in the proceedings please let us know. However, we do not consider that this should hold back your clients in bringing proceedings including, in particular, for an injunction restraining publication of extracts from our client's continuous medical records, without further delay"
"This brings us to the recent investigations into an apparent leak to the Daily Mirror of parts of Mr Brady's medical record … and an apparent leak to the Echo of the planned attendance of a Mr Brady at Fazakerley. It is my understanding that the first of these rapidly identified that the numbers of people who could have had access to the relevant medical records made it unrealistic that we could expect to identify a culprit. The investigation has therefore been one which has focussed much more on analysing our current controls environment. I expect the report to identify a far reaching preventive strategy of controls process and information management. In this sense the investigation has become more akin to a post incident review. It is clear that the very serious apparent breach of confidentiality (for which there are credible explanations other than that it was the responsibility of one or more members of staff) has focussed attention on shortcomings which had not previously been fully recognised. The shortcomings have no bearing on the appearance of the material in the media, but warrant attention regardless of that".
"7.3 The motive behind such divulgence, whilst interesting to consider, presents little challenge. Financial gain often creates the incentive to take risks and if one pauses to consider the fact that a current photograph of Ian Stewart Brady has a media value of £40,000 - £50,000, then it is easy to balance the figures against the risks.
7.4 An additional factor for consideration is that of the individual who may seek to bring discredit on Ashworth Hospital by such publicity. The patient himself makes no secret of his feelings towards the hospital, staff and management. He has a reputation for guile, cunning and manipulation, and can never be discounted from being the architect behind matters of this nature.
7.5 Furthermore, I have taken account of the PACIS record for 6th January 2000 recording Mr Brady's alleged comment, 'make sure that they think it has not come from me', to his solicitor. The implication behind this is of a future disclosure being made relating to a matter that Mr Brady would not wish to be linked with.
7.6 This conversation, however, took place at 1214 hours and it was not until 1645 hours that Mr Brady was seen by David McKenna and Dr Collins regarding the treatment consent form. Even then he should not have been aware of the actual time and date of his visit to Fazakerley but one wonders…".
"(1) A review of access to PACIS records (currently being undertaken by 'Caldicott Enquiry')
(2) A strategy for a culture change regarding patient confidentiality to be devised and taking account of (a) introduction of a staff Code of Conduct covering confidentiality as priority issue, (b) confidentiality training for staff to be addressed as a matter of urgency including induction training and bank staff training, (c) the question of confidentiality within staff contracts to be urgently considered.
(3) Internal publicity throughout the hospital to be considered aimed towards promoting and protecting patient confidentiality"
"3. In the event, it proved impossible to establish the source of the disclosure or even to determine whether or not an unlawful breach of confidence had in fact occurred… The Ashworth management team were faced with an impossible task as the existing procedures allowed relatively unregulated access to the records in question by a surprising number of staff. My colleagues and I have little confidence that at the time of the disclosure, it would have been possible to establish anything like a comprehensive list of those having access.
4. A number of weeks elapsed, including the Christmas period, between the publication of the Mirror article and the start of my work at Ashworth. Whilst this delay inevitably closed down a number of technical avenues that might have been checked in the hours following the incident, it was unavoidable given the decision to seek outside help. It would be wrong to overstate the importance of this missed opportunity – in my view it is unlikely that the limited audit that might have been possible would have proved productive…
7. … whilst the present … (PACIS) in use at Ashworth is unsatisfactory, it has many redeeming features in terms of clinical and administrative functionality. Rather than focus on the failings of PACIS, it is perhaps more relevant to consider the equally unsatisfactory standards that apply to the handling of paper records and reflect on Ashworth's overall approach to confidentiality and IM&T security…
8. …in contrast to physical security, information security has received little attention and responsibility is diffuse and ill defined. The two types of security overlap to some extent, but there was little evidence that the existing physical procedures would readily detect computer media e.g. floppy disks, as potential security risks…
10. … access controls and audit procedures were neglected.
11. In the months prior to the apparent unauthorised disclosure of information that resulted in the Daily Mirror article on 2 December 1999, the IT staff charged with the implementation of the PACIS system, had concentrated on the key aspects of bedding the system in and delivering the functionality demanded by the various staff/user groups. … the suppliers of the PACIS system, were clear that enhanced information security had always been an option, albeit at a cost in terms of system performance, but the PACIS team were understandably focused on delivering a cost-effective product that was demonstrably useful. Indeed, it became apparent that in the initial months of implementation the rudimentary access controls that had been built into PACIS had not been applied with the degree of rigour and consistency that had been anticipated.
12. By December 1999, a large number of Ashworth staff had 'read only' access to clinical records held on PACIS, with the ability to print copies being restricted to a sub-set of that number. Read only access would permit hand written notes to be made, screens to be photographed and in this case those with fairly basic computing skills could cut and paste sections of records within the Windows operating system environment, e.g to a floppy disk. The precise number and identities of those with each type of access could not be established with confidence, registration and de-registration procedures had been inconsistently applied. The limited audit facilities supported by PACIS were not routinely used…
14. Paper record management at Ashworth has largely been devolved to ward level where administrative staff print out each month's PACIS record for filing purposes. However, paper records are kept on the ward where the RMO for each patient is based, not necessarily on the patient's own ward, inevitably complicating consideration of who should have access to which PACIS records. Access to the paper record is controlled largely by restrictions on access to the ward office areas – anyone who can gain access to these parts of a ward can gain access to unlocked and unmonitored records storage and nearby photocopying facilities. Actual physical remove of paper records is permitted for short periods, nominally subject to an unmonitored logging out procedure though it was evidence that no all staff followed the rules.
15. Although there appeared to be an expectation that there should only be a single paper record for each patient, this appeared to be unregulated and the existence of copies could not be discounted with confidence. There did not appear to be any clear policy on the destruction of printed material extracted from PACIS. Hospital social workers maintain their own paper records, largely of non-clinical information associated with a patient and his/her family, and occasionally need to take records off the premises to support their work all around the country…
17. The extent to which patients themselves disclose information, e.g. through correspondence with journalists, which would otherwise be held subject to a duty of confidence, is not currently known though there is clear evidence that it does occur. …
19. … The audit undertaken for 1999/2000 appeared to be an honest appraisal and provides an organisational profile for Ashworth that, I believe, reflects the situation prior to December 1999. Notably, Ashworth:
- …
- Had no staff code of conduct in respect of confidentiality.
- Provided minimal training and awareness support as part of staff induction.
- …
- Had not included confidentiality requirements in the contracts of significant number of staff….
- Had not introduced effective controls for managing access to confidential information".
THE LEGAL PROCEEDINGS
"There is intense and legitimate public interest in the case and, whereas it was appropriate for that to be overridden in the interests of the Applicant patient during the hearing which he attended, different considerations prevail in relation to the giving of the judgment when his presence is not essential".
IAN BRADY'S STANCE TOWARDS THE CURRENT PROCEEDINGS
"(1) I am willing to give evidence / testify against Ashworth on behalf of journalist Robin Ackroyd (Mirror 19th Oct 2002)…
(6) I have no ambition other than exposure of Ashworth and exit from it, the latter objective already evidenced by my two Judicial Reviews, to halt the present force feeding… A copy of this letter may be forwarded to said Mr Ackroyd…"
"… I grant Thomsons carte blanche access to all documents held by you and former solicitors E Rex Makin & Co which they require re Ashworth v Robin Ackroyd. And also grant Thomsons similar access to all documents, in the possession of your office and that of E Rex Makin, written by me since 30th Sept 99 in relation to Ashworth and my legal actions against Ashworth, including all my written submission to the public MHRT and in connection with the multiple court actions taken by Ashworth these past four years to have the public MHRT quashed. Please send Thomsons all copies of my submissions to the said MHRT and courts in relation to it. I also grant Thomsons permission to use all the said documents, including the 3rd January 06 statements by me they refer to, in any way they wish and in the public domain…."
THE JURISDICTION TO ORDER DISCLOSURE OF INFORMATION
"Under this jurisdiction, there is no requirement that the person against whom the proceedings have been brought should be an actual wrongdoer who has committed a tort or breached a contract or committed some other civil or criminal wrongful act. In Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133 itself, the Customs and Excise Commissioners were an entirely innocent party. The commissioners had, however, because of their statutory responsibilities become involved or mixed up in the illicit importation of the chemicals manufactured abroad which Norwich Pharmacal alleged infringed their patent. The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. While therefore the exercise of the jurisdiction does require that there should be wrongdoing, the wrongdoing which is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not that of the person against whom the proceedings are brought."
"It should not be forgotten that in this country, then as now, the principal source of unattributable leaks to the media – in the form of off-the-record briefings - and therefore the principal beneficiary of a rule protecting the secrecy of sources, was government itself (see Peter Hennessy, Whitehall (1989) p.363-4)."
LIMITS ON THE EXERCISE OF THE JURISDICTION
"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime".
2.(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
…
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
3. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way in which is compatible with the Convention rights.
(2) This section –
(a) applies to primary legislation and subordinate legislation whenever enacted; …
12. (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) …
(3) ….
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –
(a) the extent to which –
(i) the material has, or is about to become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section - … 'relief' includes any remedy or order (other than in criminal proceedings)".
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"journalists have a moral obligation to protect confidential sources of information."
"Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent…. There may be exceptions …where they can be demonstrated to be in the public interest. 1. The public interest includes: (i) Detecting or exposing crime or a serious misdemeanor. (ii) Protecting health and public safety. (iii) Preventing the public from being misled by some statement or action of an individual or organization. There is a public interest in freedom of expression itself. The Commission will therefore have regard to the extent to which material has, or is about to, become available to the public".
"39. The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest".
"The important protection which both section 10 and article 10 provide for freedom of expression is that they require the court stringently to scrutinise any request for relief which will result in the court interfering with freedom of expression including ordering the disclosure of journalists' sources. Both section 10 and article 10 are one in making it clear that the court has to be sure that a sufficiently strong positive case has been made out in favour of disclosure before disclosure will be ordered".
"45. I have no difficulty in concluding that the central exercise is not in any true sense one of discretion. Deciding whether disclosure is necessary for one of the listed purposes is a matter of hard-edged judgment, albeit one of both fact and law, and none the less so for having to respect the principles of proportionality…
47. For my part, I can see every reason for not holding that the rigorous approach to necessity which the Convention requires in this context is equivalent to, say, a decision as to where the balance of convenience lies on an application for an interlocutory injunction. Discretion is exercised where the court has to make a choice between two or more legitimate courses. On both Strasbourg and domestic authority, by contrast, the question which arises under s.10 is what the legitimate course is: is there a lawful aim? is disclosure necessary to achieve it? will disclosure destroy the essence of the protected right? and if not, does its importance outweigh the public interest in protecting journalists' sources? To each of these questions, once the facts are found, there can in law be only one answer. As Lord Griffiths said in In re an Inquiry (above) at 704, "whether a particular measure is necessary, although described as a question of fact for the purpose of s.10, involves the exercise of a judgment upon the established facts". His next remark, that "[i]n the exercise of that judgment different people may come to different conclusions on the same facts", does not reduce the exercise to one of discretion. As Lord Bridge was later to explain in X v Morgan-Grampian (above, at 44):
"Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than an issue calling for the exercise of the judge's discretion, but, like many other questions of fact, such as the question whether somebody has acted reasonably in given circumstances, it will call for the exercise of a discriminating and sometimes difficult value judgment. In estimating the weight to be attached to the importance of disclosure in the interests of justice on the one hand and that of protection from disclosure in pursuance of the policy which underlies section 10 on the other hand, many factors will be relevant on both sides of the scale."
I have given earlier in this judgment my reasons for thinking that the effect of ss. 2 and 3 of the Human Rights Act 1998 has been to move the evaluation of necessity further towards the status of a question of law, albeit one which is still heavily fact-dependant and value-laden.
48…. But it must not be forgotten that to establish the factors required by s.10 to override confidentiality is to do no more than restore the jurisdiction initially invoked in order to obtain an order for disclosure. If within this jurisdiction there are distinct grounds, such as unclean hands or delay, for refusing an order, the judge in his discretion can refuse it. The s.10 bar will have been lifted, but other, discretionary, bars may still operate…"
"'Necessary' has been strongly interpreted: it is not synonymous with 'indispensable', neither has it the flexibility of such expressions as 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable': Handyside v United Kingdom (1976) 1 EHRR 737, 754, para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2): The Sunday Times v United Kingdom (1979) 2 EHRR 245, 277-278, para 62".
"Any disclosure of a journalist's sources does have a chilling effect on the freedom of the press. The court when considering making an order for disclosure in exercise of the Norwich Pharmacal jurisdiction must have this well in mind. The position is analogous to the long recognised position of informers under the criminal law. In D v NSPCC [1978] AC 171 their Lordships applied the approach of the courts to police informants to those who provided information to the NSPCC. Having referred, at p 218, to Marks v Beyfus (1890) 25 QBD 494 Lord Diplock explained the rationale of the rule as being plain, if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. Ordering journalists to disclose their sources can have similar consequences. The fact is that information which should be placed in the public domain is frequently made available to the press by individuals who would lack the courage to provide the information if they thought there was a risk of their identity being disclosed. The fact that journalists' sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public. It is for this reason that it is well established now that the courts will normally protect journalists' sources from identification. However, the protection is not unqualified. Both section 10 and article 10 recognise this. This leads to the difficult issue at the heart of this appeal, namely whether the disclosure ordered was necessary and not disproportionate. The requirements of necessity and proportionality are here separate concepts which substantially cover the same area. In his submissions Mr Browne relied correctly on the decision of the European Court in Goodwin v United Kingdom 22 EHRR 123. I find no difficulty in accepting the approach that the European Court emphasised, in paragraph 40 of its judgment, that: (i) 'As a matter of general principle, the 'necessity' for any restriction of freedom of expression must be convincingly established' and (ii) 'limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court'.
62. Furthermore, I would also adopt Mr Browne's contention that any restriction on the otherwise unqualified right to freedom of expression must meet two further requirements. First, the exercise of the jurisdiction because of article 10(2) should meet a 'pressing social need' and secondly the restriction should be proportionate to a legitimate aim which is being pursued".
"101. It is in my judgment of the first importance to recognise that the potential vice – the "chilling effect" – of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer's confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a "chilling effect" in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. That debate will arise under section 10 in the municipal legislation; it will arise more broadly by reference to article 10 of the Convention, and in the light of the Strasbourg jurisprudence on article 10".
THE INTERESTS OF JUSTICE AND THE RIGHTS OF OTHERS
"52. … The extracts published consisted of observations of Brady by different members of the staff at Ashworth that were recorded as part of his medical records. Though they were personal to Brady, I consider that Ashworth had a clear independent interest in retaining their confidentiality. The Department of Health published, on 7th March 1996, Guidance on the Protection and Use of Patient Information. This includes the following guidance under the heading, `Who has a duty of confidence?':
"Everyone working for or with the NHS who records, handles, stores, or otherwise comes across information has a personal common law duty of confidence to patients and to his or her employer." (emphasis mine)
53. This guidance accurately states the position. Both Ashworth and its patients shared an interest in the confidentiality of patient records".
"The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves…"
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"94. In determining whether the impugned measures were 'necessary in a democratic society', the court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.
"95. In this connection, the court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the contracting parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in article 8 of the Convention."
"16. The importance of confidentiality of medical records is emphasised when a new member of staff is engaged at Ashworth. The contract of employment contains a clause:
"Disclosure of information. You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the authority."
17. It is part of the agreed facts that leaks to the press have a detrimental effect on security; treatment of patients and staff morale, because they may inhibit proper recording of information about patients; may deter patients from providing information about themselves; may damage the patient-doctor relationship, which rests on trust; may lead to assaults by patients on a patient about whom information is disclosed; may create an atmosphere of distrust amongst staff, which is detrimental to efficient and co-operative work; and give rise to fear of future (and potentially more damaging) leaks.
18. In the case of patients at Ashworth, it is particularly important that accurate records are kept because otherwise warning signs indicating that a patient is in a condition in which he could be a danger to himself, his fellow patients or the staff could be overlooked so inhibiting preventative action being taken….
63. In applying these tests to the facts of this case to which I have already referred (in paragraphs 16 to 18) it is also important to have in mind the evidence of Dr. James Collins who is the responsible medical officer for Ian Brady. He explains why it is essential for the care and safety of individual patients and the safety of other patients and staff that relevant information is entered in the patients notes and why those entries having been made, their integrity and confidentiality should be preserved. He refers to the fact that psychiatry, more than any other branch of medicine, depends on a trusting relationship between therapists and patients. In addition he draws attention to the fact that the basis of virtually all assessment, diagnosis, treatment and analysis of risk is dependent on information provided by others. He explains that if the staff feel that if there is a possibility of what they report entering the public domain their reporting will be inhibited as they will think that this will place staff or patients at risk. In addition, Mr Brewster (information manager), in his statement, sets out the reasons why it is important that the authority should be able to identify the employee or employees who are responsible for the wrongful disclosure. These include preventing further disclosure and removing the cloud of suspicion that at present hangs generally over the authority's employees who have access to the records which were published."
THE APPROACH TO CONFLICTING RIGHTS
"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."
THE VALUE OF FREEDOM OF EXPRESSION
"The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value."
"It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: …. It is this last interest which is engaged in the present case."
"The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring".
"… it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press".
"The fundamental right of free expression has been recognised at common law for very many years: see, among many other statements to similar effect, Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1269b, 1320g; Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 178e, 218d, 220c, 226a, 283e; R v Secretary of State for the Home Department, Ex p Simms[2000] 2 AC 115, 126e; McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 290-291. The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one. But the press cannot expose that of which it is denied knowledge".
"It is unreasonable to expect that in matters of judgment any more than accuracy of reporting, newspapers will always get it absolutely right. To require them to do so would tend to inhibit the publication of facts which should in the public interest be made known. That was the basis of the decision of this House in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and I think that it is equally applicable to the publication of private personal information in the cases in which the essential part of that information can legitimately be published."
"In Fressoz and Roire v. France… [(2001) 31 EHRR 28], paragraph 54, the court adverted to the need for accuracy on matters of fact. Article 10 protects the right of journalists to divulge information on issues of general interest provided they are acting in good faith and on 'an accurate factual basis' and supply reliable and precise information in accordance with the ethics of journalism. But a journalist is not required to guarantee the accuracy of his facts. Bladet Tromso and Stensaas v. Norway…[(2000) 29 EHRR 125] involved newspaper allegations of fact: cruelty by seal hunters. The Court of Human Rights considered whether the newspaper had a reasonable basis for its factual allegations [paras 66, 72]. Similarly, in Thorgeirson v. Iceland (1992) 14 EHRR 843 two newspaper articles reported widespread rumours of brutality by the Reykjavik police. These rumours had some substantiation in fact: a policeman had been convicted recently. The purpose of the articles was to promote an investigation by an independent body. The court held that although the articles were framed in particularly strong terms, they bore on a matter of serious public concern. It was unreasonable to require the writer to prove that unspecified members of the Reykjavik police force had committed acts of serious assault resulting in disablement.
None of these three latter cases involved political discussion, but for this purpose no distinction is to be drawn between political discussion and discussion of other matters of public concern: see the Thorgeirson case, at pp. 863-4, 865 para. 61, 64".
"Assertions of fact… could by definition be either true or false. There would be good reason to allow free expression of the truth, as this would lead to advances in knowledge and material improvements in society, but this does not justify permitting free expression of falsehoods. However, it is not always possible to say whether an assertion is true or false, and many benefits may flow from allowing statements of fact to be asserted so that they may be tested, even if they are ultimately found to be false… This cannot in itself justify the publication of factual claims which are known to be false, but on a rule utilitarian analysis the benefits of a general principle permitting freedom of expression are held to outweigh the disbenefits resulting from particular applications of the rule. It is therefore preferable to permit freedom to express opinions and facts, even if untrue, rather than to adopt a general rule which permits censorship and coercion in relation to expression".
"We value the freedom of the press but the press is a commercial enterprise and can flourish only by selling newspapers."
"1.19.1 All three Special Hospitals have been the subject of damning outside inquiries over the last 20 years. In 1980 Sir John Boynton chaired an Inquiry into Rampton, prompted by a critical television programme…"
PUBLIC INTEREST
"55. Whether or not undertakings of confidentiality had been signed, both domestic law and Art. 10(2) would recognise the propriety of suppressing wanton or self-interested disclosure of confidential information; but both correspondingly recognise the legitimacy of disclosure, undertakings notwithstanding, if the public interest in the free flow of information and ideas will be served by it.
56. The difficulty in the latter case, as Miss Appleby's argument has understandably stressed, is to know by what instrument this balance is to be struck. Is it to be, in Coke's phrase (4 Inst. 41), the golden and straight metwand of the law or the incertain and crooked cord of discretion? The contribution which Art. 10 and the jurisprudence of the European Court of Human Rights can make towards an answer is, in my view, real.
57. It lies in the methodical concept of proportionality. Proportionality is not a word found in the text of the Convention: it is the tool – the metwand - which the Court has adopted (from 19th-century German jurisprudence) for deciding a variety of Convention issues including, for the purposes of the qualifications to Arts. 8 to 11, what is and is not necessary in a democratic society. It replaces an elastic concept with which political scientists are more at home than lawyers with a structured inquiry: Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical? These tests of what is acceptable by way of restriction of basic rights in a democratic society reappear, with variations of phrasing and emphasis, in the jurisprudence of (among others) the Privy Council, the Constitutional Court of South Africa, the Supreme Court of Zimbabwe and the Supreme Court of Canada in its Charter jurisdiction (see de Freitas v Ministry of Agriculture [1999] 1 AC 69, 80, PC), the courts of the Republic of Ireland (see Quinn's Supermarket v A-G [1972] IR 1) and the Court of Justice of the European Communities (see Art. 3b, Treaty on European Union; Bosman [1995] ECR I-4921, §110).
58. It seems to me, with great respect, that this now well established approach furnishes a more certain guide for people and their lawyers than the test of the reasonable recipient's conscience. While the latter has the imprimatur of high authority, I can understand how difficult it is to give useful advice on the basis of it. One recipient may lose sleep a lot more readily than another over whether to make a disclosure, without either of them having to be considered unreasonable. If the test is whether the recipient ought to be losing sleep, the imaginary individual will be for practical purposes a judicial stalking-horse and the judgment more nearly an exercise of discretion and correspondingly less predictable. So for my part I find it more helpful today to postulate a recipient who, being reasonable, runs through the proportionality checklist in order to anticipate what a court is likely to decide, and who adjusts his or her conscience and conduct accordingly."
"No authority has been cited to the court establishing that an apparent breach of a contractual duty of confidence is more serious, and is to be approached differently (as regards injunctive relief) than other apparent breaches. Indeed in many cases (of which Lion Laboratories is an example) the defendants include ex-employees who had been in contractual relations with the claimant, and representatives of the press who were not bound by contract, but the court adopts the same approach to both. That is in line with the principles stated in the judgment of Bingham LJ in Spycatcher (para 39 above); and see Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203."
"114. The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (1) with respect to the orders requiring the applicant's medical advisers to give evidence or (2) with regard to the seizure of her medical records and their inclusion in the investigation file. On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002 would, if implemented, give rise to a violation of that Article and (4) that there has been a violation thereof with regard to the publication of the applicant's identity and medical condition in the Court of Appeal's judgment."
WHAT THE SOURCE DISCLOSED
THE DUTIES OWED BY THE SOURCE
"In November 1999 [he] was approached by sources at Ashworth and provided with information …, including a number of pages of Brady's PACIS records containing the extracts [published in the Mirror] covering Brady's first month on hunger strike".
JUSTIFICATION FOR THE DISCLOSURE
"Brady claims he was mistreated and is determined to seek 'justice'. All that was said in the report was: 'The tube was inserted […] An X-ray confirmed that it was appropriately placed" [emphasis added]
THE EMPLOYEES OF THE HOSPITAL
"No one knows the source of the disclosure and how this information was received by Mr Ackroyd. There are many within the hospital who have potential access to the records and properly so. However, whilst the source remains unidentified, a cloud of suspicion lingers, and is felt particularly, it seems to me by ward staff. This is not only unfair, but is also bad for staff morale".
"However, when the Court of Appeal judgment was handed down this changed – immediately and dramatically. We were notified of the decision by our solicitor towards the end of the morning of 16th May 2003. Within a matter of hours I was approached by two national newspaper reporters (The Sun and The Daily Mail) who had been given scurrilous and untrue information regarding a named Ashworth Hospital patient (not Mr Brady) which I was able to refute entirely. No stories appeared."
THE HISTORY OF ASHWORTH AND THE DEFENDANT
"Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing".
"55.In the instant case, the Court notes that neither Mr Fressoz nor Mr Roire's account of the events nor their good faith has been called into question. Mr Roire, who verified the authenticity of the tax assessments, acted in accordance with the standards governing his profession as a journalist. The extracts from each document were intended to corroborate the terms of the article in question. The publication of the tax assessments was thus relevant not only to the subject matter but also to the credibility of the information supplied.
56. In sum, there was not, in the Court's view, a reasonable relationship of proportionality between the legitimate aim pursued by the journalists' conviction and the means deployed to achieve that aim, given the interest a democratic society has in ensuring and preserving freedom of the press. There has therefore been a violation of Article 10 of the Convention".
"1.23.3 Even at the time this was recognised to be a bold, perhaps foolhardy step…the men in the PDU at Ashworth are at the severest end of the spectrum of personality disorder. Most, if not all, have extremely disordered personalities and many have a history of very serious violent and sexual offending. They tend to test boundaries between staff and patients to destruction and undermine, sometimes even corrupt their carers and therapists…"
MISCELLANEOUS OTHER POINTS
CONCLUSIONS
i) The rights and obligations to keep the patients' records from unauthorised disclosure, and so the wrongdoing of which it is the victim, are matters of the highest importance: paras 87 and following.
ii) The leak has had the effects on patient care described by Dr Collins and summarised in para 100 above
iii) The leak has had an effect on staff morale: para 173
iv) There remains a risk of another unauthorised disclosure.
i) The expression for which the Defendant invokes freedom in this case is expression of a kind which attracts the highest protection: see paras 105 and following, above.
ii) The wrongdoing of the source, serious though it is, is not as serious as it would be but for the following findings: the disclosure consisted of only part of the notes excluding medical information of high sensitivity, I cannot say that it was made without the consent of Ian Brady, it was similar to information which he had already made available to the public, and the disclosure was motivated by an erroneous belief that it was in the public interest: see paras 134, 135, 144 and 147.
iii) The effect in terms of there being a cloud of suspicion is not at the high end of the scale, and it is now impossible to find out whether there is anyone against whom the hospital could obtain the redress they seek, or even who among those who were employed in 1999 is still employed at the hospital: paras 173 and 190
iv) The Defendant himself limited the amount of information which he made available to the public, and he has a record of investigative journalism which has been authoritatively recognised, so that it would not be in the public interest that his sources should be discouraged from speaking to him where it is appropriate that they do so: para 174 and following.
v) There has been no similar disclosure before or since November 1999, and the risk of future unauthorised disclosure, while it exists, is not now high: para 188.
vi) The necessity for a disclosure order has been diminished by the apparent success of the measures taken since the Fallon Report to impress upon those working at the hospital the need for patient records to be kept confidential and to avoid the serious faults which have occurred in the past: para 189.
CLOSING REMARKS