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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Peck, R (on the application of) v Brentwood Borough Council [1998] EWCA Civ 296 (19 February 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/296.html
Cite as: [1998] EWCA Civ 296

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IN THE SUPREME COURT OF JUDICATURE LTA 97/7700 CSMS4
IN THE COURT OF APPEAL (CIVIL DIVISION )
APPLICATION FOR LEAVE TO APPEAL
Royal Courts of Justice
Strand
London W2A 2LL

Thursday, 19th February 1998

B e f o r e

LORD JUSTICE SWINTON THOMAS
LORD JUSTICE ROBERT WALKER




REGINA

v.

BRENTWOOD BOROUGH COUNCIL Respondent

EX PARTE GEOFFREY DENNIS PECK Applicant




(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel: 0171 404 1424
Official Shorthand Writers to the Court)



MR RICHARD GORDON QC (instructed by Legal Department, Liberty, London SE1 4LA) appeared on behalf of the Applicant.

THE RESPONDENT did not appear and was not represented.



J U D G M E N T
(As approved by the Court )
©Crown Copyright

LORD JUSTICE SWINTON THOMAS: This is an application for leave to appeal from a judgment given by Harrison J on 25th November 1997, when he dismissed an application by the applicant, Mr Geoffrey Dennis Peck, for judicial review of a decision by the Brentwood Borough Council and a declaration that the council acted unlawfully in disclosing a film of the applicant on the council's closed circuit television. The facts giving rise to the application were very unfortunate indeed and undoubtedly and very naturally caused distress to the applicant.

Very briefly the facts were these. As the applicant says in his affidavit in support of the application which was sworn in May 1996, on 20th August 1995 he attempted to commit suicide. He went to the centre of Brentwood, where he cut his wrist with a kitchen knife. Subsequently, while he was holding the knife, he was filmed by a closed circuit television system which had been installed by the council in the area for the purpose of preventing crime. It is not suggested in any way that this applicant had committed a crime. The filming of the incident went through to the police station and was then subsequently disclosed in a press release. The incident was later shown on Anglia Television and also on the BBC. Although in the Anglia programme the applicant's face was masked, he could still readily be identified in both of those programmes, and, as I said, that caused him distress. He made complaints to the relevant complaints body in respect of each television organisation, and, as I understand it, his complaints were upheld. Those complaints were against the television companies and not in relation to the council.

It was submitted to the judge by Mr Gordon QC on behalf of the applicant and is submitted by him to us, first, that the council had no statutory power to distribute this material to the media for transmission and so acted unlawfully in doing so; and, secondly, that the council acted unlawfully because it or its officers never addressed the source of its power. It was submitted to Harrison J as a third submission that the council acted irrationally in distributing the film, but that submission is not pursued on this application or in the proposed appeal.

Each of those submissions was considered by Harrison J in his judgment, and it is not necessary for me to repeat the judge's findings in detail. He set out Mr Gordon's submissions, which again have been set out carefully and very clearly in his skeleton argument and in the oral submissions that he has made succinctly to us today. The judge held that the council had power to distribute the footage under the provisions of section 163 of the Criminal Justice and Public Order Act 1994. It was submitted to him that the primary function of that section was the provision of a closed circuit television system and not the prevention of crime. The central finding of the judge, as I see it, is to be found on page 13 of his judgment, where the judge said this:

"The making available for the media of footage from the CCTV film to show the effectiveness of the system can properly be said, in my judgment, to be incidental to and to facilitate the discharge of the Council's function under section 163 because it thereby increased, or tended to increase, the preventative effect of the equipment which they were providing for the purposes of prevention of crime. In other words, I agree with the reason given by Buxton J (as he then was) when refusing leave on the papers and, for reasons that I have already given, I do not accept Mr Gordon's submission that that is confusing the primary function of section 163."



Mr Gordon submitted that the judge was wrong to come to that conclusion and it cannot have a secondary meaning, namely the benefit of the prevention of crime. Harrison J went on to hold that there was a sufficient nexus between the statutory power granted and the act of the council in distributing the footage.

The second submission made was and is that if the council did have power to distribute the film footage to the media it nonetheless acted unlawfully because it failed to consider the statutory source of that power. That submission, in part at any rate, was based on the decision of this court in R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037. Mr Gordon concedes that Fewings was a very different case from this case, but nonetheless he submits that the principle applied by the majority in Fewings applies to this case. The judge came to the conclusion that there was nothing which could be said to be a relevant constraint on the exercise of the council's statutory powers if the council did not take them into account. Again Mr Gordon submits that the judge was wrong as a matter of law to come to that conclusion.

This application is a renewed application following refusal on the papers by the single Lord Justice. As I indicated when reading a passage from Harrison J's judgment, initially leave to move was also refused by Buxton J. This matter was, in my judgment, very carefully considered by Harrison J, and, having considered the papers and Mr Gordon's submissions, it is my view that the judge came to the right conclusion for the very reasons that he gave in his judgment. Accordingly, I do not consider that there is a reasonable prospect of successfully appealing against that decision, and, for my part, I would refuse leave.

LORD JUSTICE ROBERT WALKER: I agree that this application should be dismissed for the reasons stated by my Lord.

ORDER: Application dismissed; legal aid taxation.



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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/296.html