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Woman who sparked versus Magical Sparkle Powers

You might remember this Court of Protection case

A life that sparkles

where a woman was found by the Court of Protection to have capacity to refuse medical treatment, even though doing so would be likely to bring about her death. The woman had some unusual (though capacitous) ideas about how she wanted to live, and she preferred to leave life whilst she still felt glamourous and sparkling, rather than to limp on in life and eventually fade away. It was an interesting case, with a lot to debate. As a result of this decision, she did die, leaving three children, one of whom was still a minor. Very sad case.

Sadly, some of the mainstream Press, having spent years sobbing outside the doors of the Court of Protection wanting to be let in to report responsibly, rather let themselves down, with the reporting they carried out

 

 

  • The application came before me on 9 December 2015. In summary, the statements filed in support of it show that:

 

i) V and G have been distressed by having to be involved in the COP proceedings, and by the extensive media interest in the information about C and their family that was provided to the COP, which appears to them to have been precipitated not only by a wish to report and comment on the bases on which the COP reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with her children V, G and A).ii) At the time of the hearing before MacDonald J, neither V nor G anticipated the possibility that C and her family would be named in the press and that photographs of them would be published. Their attention was entirely taken up with the decision the COP was required to make and its implications.

iii) C’s youngest daughter, A, is a teenager who was already suffering from fragile mental health which has manifested itself in her physical conduct. The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment, with which A had a direct and stressful involvement, have understandably had an appalling impact on A’s emotional and psychological wellbeing.

iv) A has already been negatively affected by the media coverage of the family, despite attempts by her father to shield her from it. Inevitably, A has now been told about certain very limited aspects of the COP’s reasoning, including negative descriptions of her mother’s character, which have upset her further. A’s father and one of her teachers are sure that if her mother is named, this will have an even more serious effect on A’s mental wellbeing and her ability to cope at school. V also asks the court to have regard to the serious risks of harassment of A not only directly from people around her, e.g. at school, but also on the internet including and in particular through social media.

v) There have been numerous attempts by journalists to contact the family and people with a previous relationship with C and her children.

vi) Family photographs have been obtained and published in a pixelated form.

 

  • Before the reporting restrictions order was extended:

 

i) At around 5.30 pm on Wednesday 2 December 2015 a reporter from the Daily Mail went to the home of A’s father (an ex-husband of C) where A lives. A answered the door and without saying who she was the reporter asked to speak to her father using his name, V asked who she was and was told that she was a journalist from the Daily Mail, A’s father came downstairs and the journalist asked if he would talk to her about his ex-wife. He refused and the journalist left.ii) On the evening of 2 December 2015 a reporter from the Mail on Sunday was asking questions about C in one of the pubs in the village where A and her father live. This was reported to V by friends in the village.

 

  • More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.
  • Some of the coverage contains pixelated photographs of C, V and G. It is plain that some of these photographs have been chosen as photographs that emphasise the aspects of the published accounts that are of prurient interest and there is at least a risk, particularly in respect to C, that she would be recognised by some people.
  • Examples of reporting in the Times (4 December), the Daily Mail (6 December) and the Sun Online (6 December), are highlighted by V:

 

i) the Times ran a pixelated photograph of C on its front page with a caption “Voluntary death. The socialite allowed to die at 50 rather than grow old had a narcissistic disorder, doctors said. A court ruling blocked her identification. Page 7”. The article at page 7 was under the headline: “I won’t become an old banger” there was a further pixelated photograph of C standing by a car and a pixelated photograph of one of C’s adult daughters,ii) the Daily Mail at pages 26 and 27 published the same pixelated photograph as that on the front page of the Times and the article had the headline: “Revealed: Truth about the socialite who chose death over growing old and ugly —- and the troubling questions over a judge’s decision to let her do it”. Near the end of the article it is stated: “For the husband and daughters she leaves behind, the manner of her death is heartbreaking”, and

iii) the Sun Online has two headlines: “Mum who fought to die was “man eater obsessed with sex, cars and cash” and “A Socialite who chose to die at 50 rather than grow old was a “man eater obsessed with sex, money and cars”, a pal claimed yesterday” and published two pixelated photographs of C at a younger age each showing her with a drink in hand. In one in which she is wearing a low-cut party dress and in the other she is raising her skirt, standing by a vintage motor car and wearing what appears to be the same outfit as she is wearing in the photograph on the front page of the Times and in the Daily Mail.

 

There’s an old Aesop fable about a frog and a scorpion. The scorpion wants to cross a river and asks the frog if he can ride across on the frog’s back. No, the frog responds, you’ll sting me and I’ll die. Wait, says the scorpion, if I was foolish enough to sting you whilst we were crossing, we’d both die – you from the sting, but I would drown, so it won’t be in my interests to sting you. The frog agrees. Midway across the river, the scorpion begins stinging the frog. The frog shouts, if you keep doing that, we’ll both die. The scorpion says, I know, but it’s in my nature.

 

frog-scorpion

It really isn’t in the longer term interests of the Press to sting the frog of transparency by using that additional access to behave so irresponsibly and despicably, but it’s in their nature.

Anyhow, this is Charles J’s decision on the Reporting Restriction Order.

V v Associated Newspapers Ltd 2016

http://www.bailii.org/ew/cases/EWCOP/2016/21.html

 

The first law Geeky point, hence the title, is what jurisdiction the Court of Protection have to make a Reporting Restriction Order. The argument goes like this :- (a) The Court of Protection exists to determine whether a person has capacity, and if not, what is in their best interests and you have already ruled that this woman HAD capacity, so your involvement stops and (b) as she is now dead, whatever jurisdiction you had over her affairs is now gone. Decent points.

Charles J concluded that the CoP did still have jurisdiction, and in any event, if they don’t, then the High Court will just use Magical Sparkle Powers (TM)

 

  • I have concluded:

 

(1) The COP has jurisdiction after the finding that C had capacity and her death to make the reporting restrictions order sought by the Applicant but insofar as it may be necessary or appropriate I will also make it as a High Court judge.

There is a longer answer here:-

Jurisdiction of the COP to make a reporting restrictions / anonymity order after it has determined that C had capacity and/ or after C’s death

  • As I have already mentioned this jurisdictional point is raised by the media Respondents but they do not resist me making an injunction as a High Court judge. They base the argument on the finding of capacity made by MacDonald J. The Applicant addresses the relevant jurisdictional effect of this finding and of C’s death.
  • The media Respondents rely by analogy on In re Trinity Mirror Plc and others [2008] QB 770 concerning s.45(4) of the Supreme Court Act 1981 which provided that in “all other matters incidental to its jurisdiction” the Crown Court was to have the like powers, rights, privileges and authority as the High Court. The Court of Appeal held that the Crown Court has no inherent jurisdiction to grant injunctions and that unless “the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking”.
  • Section 47 of the MCA is worded slightly differently and provides that: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. It is generally accepted that the COP does not have an inherent jurisdiction so the issue is whether it can grant an injunction because it is exercising that power “in connection with its jurisdiction“.
  • At the time that the reporting restrictions order was made in this case by Moor J, sitting as a judge of the COP, I consider that it is clear that he was making that order in connection with the jurisdiction of the COP to determine initially whether or not C had capacity. In my view, it follows that he could in reliance on s. 47 have made that order for a period extending beyond any finding made that C had capacity, or the death of C (as to which see further below), if he had thought that that was appropriate. He did not do so.
  • The effect of the argument of the media Respondents is that if the hearing on 13 November 2015 had been before a judge, other than a High Court judge (which is not the practice in serious medical treatment cases but could occur in other cases) that judge having determined and announced his decision that C had capacity as a judge of the COP had no jurisdiction to continue, vary or discharge the injunction granted by Moor J. To my mind, that would be an unfortunate and odd result particularly, for example, if C had asked for it to be discharged. However, in my view, it does not arise because I consider that the termination, continuation or variation of an injunction made by the COP in the exercise of its jurisdiction conferred by s. 47 would also be within the jurisdiction so conferred as being “in connection with its jurisdiction”.
  • However, by its terms the injunction that was granted by Moor J expired on the death of C and so the present application is for a new injunction that was made at a time when for two reasons the COP no longer had jurisdiction over C and was therefore functus officio.
  • The Applicant points to a number of sections in the MCA which give the COP jurisdiction to make orders in respect of persons whether they have or lack capacity (see ss 15 (1)(c), 21A, 23 and 26(3)) but, in my view, this does not provide an answer because in this case the COP was not exercising jurisdiction under any of those sections.
  • To my mind the question on this application is whether the COP has power to grant a new injunction because it relates to proceedings that were before it although by reason of its decision and/or the death of P it no longer has any jurisdiction to make the welfare order sought. The answer is determined by considering whether in those circumstances it is exercising a power “in connection with its jurisdiction“. In my view the answer is that it is. This is because, in my view, the nature and extent of the relevant Article 8 rights relied on flows from the existence of the earlier proceedings before the COP, in which it exercised its jurisdiction and I see no reason to construe s. 47 to limit the power it confers to the period during which that jurisdiction continues to exist over the subject of the proceedings.
  • Indeed, I agree with the Applicant that the principle that legislation should be interpreted so far as possible to be compatible with Convention rights supports this conclusion because:

i) it promotes the grain of the legislation (the MCA), andii) it enables the court best placed to carry out the balancing exercise between competing Convention rights to perform that exercise.

  • That grain links back to the points I have already made that the jurisdiction of the COP invades not only the life of its subject P but also on many occasions the lives of others and in particular P’s family members.
  • Conclusion. I can make the injunction sought as a judge of the COP and I do so. However to avoid any jurisdictional argument in the future, and if and so far as this is necessary, I also make it as a High Court judge exercising the jurisdiction of that court.

 

The central issue here was whether the Press could report the story, and deal with both the human interest angle and the issue for public debate (the case being categorised – incorrectly, as a ‘right to die’ case, which is always interesting to the public – in fact, it is not a development of law at all, because people with capacity have always been able to refuse medical treatment, which is all that happened here) WITHOUT identifying the woman at the heart of the story. Clearly, the Press knew who she was, because they were able to doorstep people who knew her, look at her Facebook page and print pixelated images of her.

 

 

  • The naming propositions are reflected in the following points made by Mr Steafel:

 

The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.

Where proceedings are anonymised, it is more difficult to engage our readers as the real people involved in the cases are necessarily invisible and the stories therefore lack a vital human dimension. It is human nature to find it more difficult to take an interest in a story about problems arising from, say, dementia or the right to die if the story does not feature identifiable individuals. If we cannot publish stories about important issues that people are drawn to read, this will inevitably limit and reduce the quality of public debate around these issues. It is in my view important in a democratic society that we should encourage informed debate I believe that the media, including the popular press, fulfils a vital function in this regard. By reading about the experiences of others, readers are likely to be able to identify with those people and understand what they are going through. But they are much less engaged – and correspondingly less focused on the surrounding public debate – where they cannot identify with real people, places and events. Pictures are a hugely potent way of engaging readers and one of the problems with covering anonymised cases is that it is impossible to include pictures in our stories which identify those involved.

 

  • I agree that fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.
  • On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. But, I hasten to accept that this distinction:

 

i) simply reflects the strength of the reasoning that underlies the relevant COP Rules and Practice Directions, the established Scott v Scott exceptions and the positon referred to by Lady Hale that in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved, and soii) provides weight to the general arguments for anonymity to promote the administration of justice by the COP generally and in the given case, and does not

iii) undermine the force of the naming propositions as general propositions, with the consequence that the COP needs to remember that it is not an editor.

 

  • As I have already said (see paragraphs 94 and 95 above) the weight to be given to (a) the naming propositions, and (b) the conclusion on what generally best promotes the administration of justice will vary from case to case and on a staged approach to a particular case the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.
  • As I have already mentioned, although he refers to and relies on the naming propositions Mr Steafel does not say why in this case the relevant public interests, rather than the gratification of a prurient curiosity or interest of the public:

 

i) would be or would have been advanced by the identification of C and members of her family in the publicity that took place,ii) was advanced by the reporting that contained pixelated photographs and focused on C’s lifestyle, or

iii) why he says the balance will change on A’s 18th birthday between reporting that does not name C and her family and reporting that does.

Accordingly he does not say, as an editor, why in this case the view expressed by Theis J that “there is no public interest in C or her family being identified” either is wrong or will become wrong when A is 18.

 

The Press had the chance to set out arguments and provide evidence as to why naming the woman was necessary for the proper and accurate reporting, rather than to gratify prurient curiousity, and they did not do so. Nor did they take up the Court’s offer of the ability to file evidence setting out why they felt the previous reporting and methodology were appropriate…

 

  • S0, to my mind, in this exercise the COP needs to consider why and how the naming propositions, and so the proposed naming or photographs of C and her family members that links them to the COP proceedings, would or would be likely to engage or enhance the engagement of the interest of the public in matters of public interest rather than in those of prurient or sensational interest.
  • This has not been done in this case. But in contrast evidence has been put in on the likely harm to the relevant individuals that such reporting would cause.
  • The ultimate balance in this case on the dispute relating to duration. On one side are:

 

i) the Article 8 rights of all of C’s children,ii) the weight of the arguments for a reporting restrictions order in this case, and so of the general practice in the COP of making such orders in analogous COP cases where the family do not want any publicity and have given evidence of matters that affect their private and family life and that of P of a clearly personal and private nature,

iii) the acceptance by the media Respondents that until A is 18 the balance between the Article 8 rights and Article 10 rights in this case justifies the grant of a reporting restrictions order,

iv) the compelling evidence of the extent and nature of the harm and distress that reporting that identifies C and any member of her family as respectively the subject of (or members of the family of the subject of) the COP proceedings and so of MacDonald J ‘s judgment would cause, and

v) the ability of the court to make a further order if and when circumstances change.

 

  • On the other side are the general propositions relating to the benefits of naming the individuals involved.
  • I accept that Thiess J’s statement that “there is no public interest in C and her family being identified” and my indications of agreement with it at the hearing go too far because of the well-known and important naming propositions and the public interests that underlie them. But, in my view, the absence of an explanation of why:

 

i) the accepted balance changes on A’s 18th birthday and so of why identifying C and her family and linking them to the COP proceedings and the publicity at the end of last year would then promote the public interests that underlie Article 10, or why those public interests could not in this case then still be properly and proportionately served by reporting that observes the reporting restrictions order, orii) more generally why any such identification would at any other time promote (or have promoted) or its absence would harm (or would have harmed) the public interests that underlie and promote Article 10

means that the naming propositions have no real weight in this case and balance of the competing factors comes down firmly in favour of the grant of a reporting restrictions order until further order.

 

As there was to be an Inquest, and Inquests are open to the press and public, the Court did need to consider whether the Reporting Restriction Order should cover the naming of this woman or her family emerging from the Inquest.

The extension of the order to cover C’s inquest.

 

  • The earlier orders provide that the injunction does not restrict publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public. It seems to me therefore that the result the Applicant seeks would be achieved by changing the word “including” to “excluding”.
  • This is much closer to the position in Re S and Potter P addressed such an application in Re LM [2007] EWHC 1902 (Fam) where he said:

 

The Overall Approach

53. In approaching this difficult case, I consider that I should apply the principles laid down in Re S, ————-

54. There are obvious differences between proceedings at an inquest and the criminal process, most notably that the task of the Coroner and jury is to determine the manner of the death of the deceased and does not extend to determining questions of criminal guilt. In various cases that has been held to be a matter of weight in respect of witnesses seeking to protect their own personal safety. However, in this case, the inquest to be held is into the killing of a child, L, in the situation where a High Court Judge has already found as a matter of fact that the mother was responsible for L’s death and the application is made because harm is indirectly apprehended to a child who is a stranger to the investigative process. It is presently uncertain whether criminal proceedings will in fact be taken against the mother. If so, and the Coroner is so informed, then no doubt he will further adjourn the matter pursuant to s.16. of the Coroners Act 1988. If that is done, then the question of publicity and reporting restrictions in those proceedings will fall four square within the principles propounded in Re S. If not, and if, as seems likely, the mother continues to pose a danger to any child in her care, then, if continued, the reporting restrictions in the care proceedings would prevent that fact from reaching the public domain, despite its clear public interest and importance.

 

  • He carried out a detailed balance between the competing rights emphasising the strength and importance of a public hearing of the inquest and so the general conclusion on what promotes the administration of justice in such proceedings. Having done so he refused the injunction sought that the parents should not be identified.
  • Here the important issue of child protection is absent.
  • In the note of counsel for some of the media Respondents dated 28 January 2016 points are made about the importance of a proviso permitting the reporting of other proceedings conducted in open court, including a coroner’s court. But after the Applicant sought this extension junior counsel responded (as mentioned in paragraph 49 above) that his clients are neutral on this point.
  • As the approach of Potter P confirms an application for restrictions on the reporting of other proceedings conducted in open court engages important and powerful interests against the making of such an order. However, in my view:

 

i) the expressed neutrality of some of the media Respondents reflects a responsible and understandable stance that in isolation the inquest is unlikely to give rise to issues of public interest or to any such issues in respect of which the general propositions in favour of naming C or her family will have any significant weight, andii) in any event, I consider that that is the position.

 

  • The essential question is therefore whether, unless the court makes a further order, C’s family should be at risk of publicity relating to the inquest that makes the connection between them and the COP proceedings and so effectively of suffering the harm and distress that any other reporting that identifies them and makes that link would bring.
  • The history of the prurient nature of some of the earlier reporting is a clear indicator that such reporting might be repeated. But, even if that risk is discounted I have concluded that the balance comes down firmly in favour of extending the order to cover the inquest.
  • The main factors to be taken into account overlap with those to be taken into account in respect of the duration of the order.
  • On the one side are:

 

i) the points set out in paragraph 167 (i) to (v) as the inquest is likely to take place before a is 18 andii) the points set out in paragraph 175.

 

  • On the other side are:

 

i) the powerful and weighty reasoning that underlies the conclusion and practice that the administration of justice is best served by inquests being heard in open court without reporting restrictions, andii) the general and accepted force of the naming propositions absent any evidence or reasoning that they found a need for reporting of the inquest that makes the link with the COP proceedings.

 

And the order therefore stops the Press naming the woman as a result of reporting on the Inquest – they can still report on the Inquest itself. It obviously doesn’t mean that the Inquest itself is barred from naming her.

 

The judgment also annexes some helpful procedural guidance on applications for Reporting Restriction Orders within the Court of Protection.

Appeal about the transparency in the Poppi Worthington case

 

At first glance, this looked a bit  “Let me just fix this stable door, it is SO much easier without the horse being in here getting in the way and standing on my foot“, but the appeal was actually heard in November  BEFORE the re-hearing of the fact finding, and it is just that we’ve only today had the judgment itself.

I know that some people were curious about how much material was allowed to be reported (for example Poppi’s name, and the name of the father) and some were curious about the ‘live’-tweeting aspects and the Press being present during the hearing itself.

Re W Children 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/113.html

Mr Justice Peter Jackson had given a decision about his plans as to what could or could not be published, in advance of that re-hearing and what role the Press could play.  The Guardian appealed that decision, supported in part by the father. The mother and Local Authority were neutral.

The Court of Appeal were asked specifically to consider what role the welfare of the children had to play in a decision about reporting and press attendance. They bravely duck that question  (to be fair, I think it ends up being a conflict between some  authorities one of which is a House of Lords case, so it has to be resolved ultimately by the Supreme Court). Given that the Guardian’s case was largely based on the degree of openness and transparency here being inimical to the welfare of the other children, that decision was pretty fatal to the appeal.

  1. During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23rd November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable, must fall for determination by this court on another occasion.
  2. The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146.
  3. Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

 

Counsel for the Press association (the always excellent Caoilfhionn Gallagher) set out the case for openness and transparency in this case very well  – and it really explains why so much was allowed to be reported in this case.

a) In the unusual circumstances of this case, the judge’s decision on publicity and reporting is entirely justified for the reasons that he gave after giving careful thought to the submissions of each party;

b) In general, there is a strong principle in favour of open justice which has long been regarded as integral to protecting the rights of those involved in court proceedings, and as essential to maintaining public confidence in the administration of justice;

c) The President of the Family Division has drawn attention to the importance of transparency in the context of family justice in Practice Guidance Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733 and in a 2014 consultation document Transparency – Next Steps;

d) The Practice Guidance identifies two classes of judgment, (i) those that the judge must ordinarily allow to be published and (ii) those that may be published; the present case falls into category (i) and there is therefore a strong presumption that the final judgment should be published in due course;

e) There is already an extremely strong public interest in transparency being applied to this case at this time;

f) The Appellant’s acceptance that paragraph [1] to [100] of the July 2014 judgment should be published, which contains a summary of the medical evidence, renders illogical her opposition to the publication of the remaining paragraphs (albeit in a redacted form);

g) There is already substantial publicly available information regarding the injuries that Poppi sustained prior to her death and the fact that her father had been arrested with respect to an allegation of sexually abusing Poppi. Reference is made to the clip of media reports provided to the court;

h) Daily news reporting is justified against the backdrop summarised in (g) above and is justified in this ‘highly unusual’ case. In any event the judge will retain some measure of control over reporting through the ability to impose a retrospective embargo if some particularly sensitive material is disclosed in court;

i) The challenge relating to the judge giving judgment in public is misconceived as the judge did not make any such direction. His proposal to sit in private, with the media in attendance, prior to publishing the judgment was entirely proportionate in the circumstances.

 

The Court of Appeal concluced that this was unusual, but that Poppi was  ahighly unusual case, given that so much was already within the public domain. They largely upheld Mr Justice Peter Jackson’s decision, albeit limiting the amount of medical information that was to be published from the original finding of fact judgment (you may recall at the time that the judgment published initially had such huge chunks redacted from it that one couldn’t see what father was alleged to have done and it was left to astute reading to see that taking a sample swab from father’s penis suggested something very dark. )  They also said that tweeting from Court would have to wait until the end of the day, when the Judge could consider anything unusual arising from the evidence and give directions about it.

 

  1. Ms Gallagher accepts that daily reporting of a child protection case was unusual, but she submits that this has now become a highly unusual case in terms of there being a second fact finding hearing in circumstances where a good deal about the case is now in the public domain.
  2. During the hearing the court asked for more detail of the arrangements that the judge had put in place to maintain some control on the material that could be reported by press representatives who were attending court. The judge’s proposal was that if, for example, a witness were to give unexpected evidence, the disclosure of which might unnecessarily breach the Article 8 rights of the children, or more generally cause them unnecessary harm, the court could embargo that part of the evidence from that which could otherwise be reported. The wording of the judge’s order on this point was that ‘such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing’.
  3. In considering the appeal on this point, the starting point must be that the introduction of a facility for daily reporting of an ongoing fact finding hearing in a child protection case is indeed highly unusual. It is not profitable to debate whether this is or is not the ‘first’ such case. For my part, in a slightly different context, I recall that there was widespread national media reporting day by day of the sad case of Re RB [2009] EWHC 3269 (Fam); [2010] 1 FLR 946; other judges will no doubt be aware of other cases. Be that as it may, no party submits that Jackson J was acting outside his powers by permitting daily media reporting. For the reasons that I have given at paragraph 37, such a course was plainly within his discretion.
  4. In circumstances where, as the Appellants have accepted, the final judgment will be published in due course, the issue of daily reporting relates to the quantity and timing of reporting rather than to reporting the facts of this case as such in principle. It is a matter that calls for a proportionate approach, over which a trial judge is entitled to exercise a wide margin of discretion; as I have stressed, in the present case that is particularly so with respect to this trial judge at this stage in this trial process.
  5. Although I must confess to having a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise, I am clear that it is simply not possible to hold that Jackson J is wrong in his analysis of the issue and his decision to grant media access to this degree. I am, however, sufficiently concerned about the laxity of the terms of the order dealing with daily reporting as it is currently drawn to stipulate that a further sub-paragraph be added to that part of the order in the following terms:

    ‘such reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, in order to ensure that the court has had an opportunity to consider whether any such additional directions are required.’

    The purpose of this new provision is, hopefully, self-explanatory in that it allows for stock to be taken at the close of the court day so as to identify any aspect(s) of the evidence which should be subject of embargo before any reporting, of any nature, can take place.

  6. The grounds of appeal relating to whether or not the judge should sit in public to deliver his judgment were not pursued and therefore fall away.
  7. For the reasons that I have given, I would therefore allow the appeal to the very limited extent of (a) requiring the removal of reference to any of the medical evidence from the edited 2014 judgment, and (b) inserting a tighter requirement in the court order relating to the control of daily reporting.

 

 

 

Inaudible and jigsaw identification [Contains Agatha Christie Christmas spoiler gag]

You may be aware of the President’s guidance on Transparency, which sets out those judgments which ought to be published on Bailii, which is a site that is available for members of the public to use as it does not charge a fee or require a subscription.  The guidance sets out that all committal judgments should be published, and that’s a laudatory aim. It must be right that if a Family Court or Court of Protection are sending someone to prison (or even if they were asked to do so and said no) that the facts are put in the public domain so that they can be reported and debated.

You may be less aware that I’ve seen five examples since the Transparency guidance was published, of judgments going up on Bailii for all to see where the anonymisation process was insufficient.  For example, I have seen the real first names and ages of the children accidentally go in, the real address and name of a mother’s boyfriend said to pose a risk, the real surname of someone accidentally go into the Reporting Restriction Order judgment saying that the surname was not to be revealed, and in the worst example, a case that ended with the children going off for adoption accidentally leaving in one paragraph the real name of the mother.  In each of these cases, I and others have contacted Bailii who acted very swiftly in taking them down and making the corrections.  It isn’t Bailii’s job to proof read the judgments – they publish the transcript that a Judge has sent them saying that “This is okay to publish please” or similar.

Accidents can happen.

The process is that the judgment is transcribed, the Judge checks it carefully and makes any corrections, and then the corrected version goes onto Bailii, where it is available for anyone to look at. Sometimes that careful process can be a bit slow – when there’s a story in the news and you know that there’s been a Court case sometimes that careful process means that it takes weeks to get the proper judgment available to read and discuss and the newsworthy event is long forgotten then, and whatever slant the Press put on it becomes the definitive version.

But of course, Judges are people, and people under pressure. They have to read huge amounts of material, have to make complex and emotionally difficult decisions, and they have to listen to lawyers drone on and on for about six hours a day, which must be pretty close to intolerable.

 

Being a Judge could drive you to U.N.Owen methods of resolving stress

Being a Judge could drive you to U.N.Owen methods of resolving stress

 

[Apologies to those who haven’t watched it yet.  Apologies to those readers who were hoping for the Aiden Turner towel photo instead of this one]

 

So you can see perhaps that a Judge pressed for time could miss a stray reference – redacting a document is tricky and it takes time and concentration – and usually a second pair of eyes.  I’ve no doubt at all that the mistakes I’ve mentioned above were just honest mistakes that slipped through. Nonetheless, even an honest mistake can still be costly to the persons involved whose privacy ends up being breached.

 

This one, however, doesn’t entirely feel like it was checked at all before it went to Bailii.

 

Newcastle City Council v Daniel Murtha 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B193.html

 

A shame, because the bits that aren’t  (inaudible) are largely very good, and it raises an important and interesting legal issue about the extent to which in a committal hearing which is to the criminal standard of proof, hearsay evidence (which is admissable in Court of Protection and family cases) can be relied upon, and also where the primary source of the evidence is from a person who lacks capacity.  It could have been a very helpful precedent. I don’t think any lawyer could safely hand this up to a Judge and invite them to draw any conclusions, because there are just too many gaps.

 

I’m not meaning to single this particular Judge out for a hard time – I think it is more broadly indicative that in amongst the many pressures on Judge time, perhaps checking transcripts of judgments comes lower down on the list of priorities that the President’s guidance really made allowances for.

The lady who wanted to sparkle – follow up

 

You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.

 

The Press made an application to be able to name her.  That’s a very tricky one.  On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation).  I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.

 

The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.

 

http://www.bailii.org/ew/cases/EWCOP/2015/83.html

 

I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism.  I felt that the article was ill-concieved and had missed all of the real substance of the case.  I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.

http://www.theguardian.com/commentisfree/2015/dec/02/slur-woman-who-lost-sparkle-c-right-to-die-judgment-femininity-marriage

 

I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’  and ‘should they be written in the same way as they used to be’?

 

https://thesmallplaces.wordpress.com/2015/12/04/the-stories-we-tell/

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road”  – typing furiously, getting all of my thoughts on the page  – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes  (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”).  Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind.   Hopefully, there’s a place for both Kerouac and Capote in legal blogging.

 

Couple “too old” to look after their granddaughter

I saw this case break in the Telegraph  http://www.telegraph.co.uk/news/uknews/law-and-order/11754837/Couple-told-they-are-too-old-to-look-after-their-granddaughter.html   where the line was that grandparents who were able, willing and capable of looking after their grand-daughter were turned down on the basis of their age and the child would be adopted.

 

That immediately didn’t sound right. It had the immediate ring of “I think that you’ll find its a little bit more complicated than that”.   [If you do find yourself being outraged and appalled by a case and you haven’t actually read the judgment, that’s usually a safe answer.  Of course, there are cases where reading the judgment actually does appall you at the scandal that’s gone on, but at least you are now being appalled on an informed basis]

 

That would fall extremely short of the legal tests involved, and you can see from the Telegraph article that they do include the comment from the Social Services department involved, who said flatly that age was not the deciding factor in the case.

 

The judgment is now available and people can see it for themselves

 

Re C 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B99.html

 

You can see that the grandparents made an application to Court, to challenge the assessment done of them that did not recommend that they could care for the child. The Court heard from them, including hearing evidence from the grandfather (who sounds like a thoroughly nice man, to be honest).  The Court then applied the statutory tests and the case law guidance to whether they should have that application granted and whether the child could live with them, or whether adoption was the right way forward.

 

Additionally, you can see that whilst the Judge does mention the age of the grandparents, it is mentioned in passing rather than being the reason for the decision.

 

The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.

 

The main concern however it seems to me is the fact that this family would be in my judgment completely unable to cope with the triangular relationship of C, M and the grandparents. Mr G expressed in evidence that he hoped that his daughter was going to recover her mental health, that she had had some recent treatment that over the next four years might lead to her mental health recovering. I very much hope that that is the case and it may well be right, but he was very clear that he was going to continue his relationship with his daughter and indeed he is to be commended for that. He said he saw her yesterday. I just cannot envisage how the triangular relationship can possibly work. Dr Martinez in her report expresses the concern that mother is unable to bring up C because she is likely to expose C to extreme behaviours – ‘scary situations’ is the word she uses – and she is referring to the incident in January when M in front of C self-harmed, cutting herself, and C was clearly in a scary situation witnessing her mother bleeding. That is exactly the type of situation which Dr Martinez envisages recurring and which puts C at the risk of significant harm if she were to be placed with her mother. If I were to envisage C being placed with her grandparents it seems to me that it is only a matter of time before C is put in that situation again. This is because of the conflict which the grandparents will experience in their meetings with their daughter, who they will not be able to turn away and in the conflict that is likely ultimately to create and which C is inevitably going to experience. Their personal circumstances are not ideal but ultimately it is that relationship which it seems to me makes it impossible for their application to succeed. Given the disruption to the local authority Care Plan against the likelihood of success of their application, I am afraid that I have no hesitation in saying that that application should therefore be dismissed.

 

Now, you may agree or disagree that this is a valid reason for saying no to these grandparents; but it certainly isn’t a decision that was made because of their age.

I don’t fault the grandparents at all for this – Courts can be confusing and scary places, and Judges use language and concepts that aren’t commonplace for ordinary people. Add to that, that of course this was an emotionally charged hearing and it is little surprise that the grandparents left not completely understanding all the reasons why the Judge said no to them, and that they got the wrong end of the stick.

Nor do I blame the journalist  – if the judgment had borne out what the grandparents said, that a Court had ordered that the child be adopted purely because the grandparents were too old, that would be a miscarriage of justice and a scandal worth reporting.  Of course, the journalist did have the clear rebuttal from Social Services that the case wasn’t about age, but also they had the comments from the solicitor engaged to represent these grandparents in an appeal  (which I doubt has any legs at all).  So it is not the flaw we often see in the Telegraph of the story having a single source – the journalist here did try to get multiple sources and to stand the story up.

You could make a criticism that the journalist didn’t try to get the judgment from the Court or wait for it on Bailii, but I think that’s to confuse the worlds of law and journalism.  Firstly, news stories are time sensitive. If the Telegraph waited for it to be published, they could have missed the scoop element that they had. And secondly, given that most lawyers can’t get an answer out of the Court service, what makes you think a journalist enquiring about “there’s been this case, I don’t have the case number, but can I have an anonymised copy of the judgment” is going to get any better response.

So I think it was okay for the Telegraph to run the story.  The problem, however, is that the Telegraph’s version of the story – that social workers and Courts rule people out just based on age, is the one that fluorishes and replicates and spreads, and the actual truth that the reasons for the decision were based on a Judge’s assessment of their ability to keep the child safe from mother, won’t get out there.

It is really important in care proceedings that family members who are able to help out, support the parents and ultimately offer a home if the parents can’t do it, come forward and aren’t put off. So, the story here spreads a myth that simply isn’t true.

I do appreciate that newspapers don’t exist solely as a vehicle to communicate the truth. They have to sell copies, they have to get clicks on their articles, they have to exist as a commercial venture. If they print articles that are factually accurate but that nobody wants to read, then the advertisers who want to sell their conservatories, plates with Princess Diana on them,  safes disguised as baked-bean tins, and mustard coloured polyester slacks*, won’t be placing those adverts.

I can’t actually work out a sexy way for the Telegraph and other news outlets to tell this story and correct the myth.  The best I can do is “Family Courts do still screw up from time to time, but they didn’t on this occasion. Sorry”   – and even I probably wouldn’t read that article.

[* Other products are, I’m sure, advertised in the Telegraph , and that’s just the sort of flippant generalisation and stereotyping that I would criticise them for when writing about social workers wearing corduroy trousers and knitting their own muesli.  It was just a cheap gag…   – now,  if you want to find “cheap gags” in the advertising section of a publication you are looking for something in the newsagents on an entirely different shelf to the Telegraph]

Minnock judgments (part 2) and a different judicial approach

Well, firstly, I’m pleased that the child has been found. And I’m not going to speculate about the future outcome of the case.

 

But I thought that people who have been interested might like to see the next four judgments.

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

 

They are the bottom four (beginning 12th June)

The 12th June judgment is unusual, in that it doesn’t read as a case where the Judge was being asked to decide an issue or make an order. Rather, he is helpfully setting out for those involved that if there is a commital application (where a person might get sent to prison) they are entitled to free legal advice and representation and what the magic words are. He then goes on, largely for the benefit of the Press and public to set out how the Courts make decisions about where a child lives, what factors come into account, the representation that the parents have had, and what factors the Court would take account of in the future, stressing that what the Court wants is to make sure that the child has a proper relationship with both parents. It is almost a judicial press release.  I’ve not seen that happen before, but I think in a case with so much media attention and public interest, it is actually a really sensible thing to have done and I hope that future Judges consider it.  If you wanted to understand what the legal background was to the case, it is all there.

The next judgment is describing that the child is safely returned, and explaining that the mother’s plan in the case was to use the Press to gain sympathy for her cause and to thwart the decision of the Court.  People may have their own view as to whether she was justified or not, but if you have a strong view, I’d recommend that you read that judgment to see if it remains the same. The really remarkable thing about this judgment is that at the end, the Judge allowed members of the Press to ask him questions directly and answered them.

I’ve never seen that happen in a family case before, but it seems to me a remarkably sensible approach. It must surely result in more responsible, balanced and nuanced reporting that the Press had the chance to ask questions directly of the Judge.  I applaud it.

The third (private hearing 15th June) sets out that the future decisions in the case need to be made without public spotlight, although a judgment will be published after the case is over, and allowing father to provide a short statement to the press.

 

And the fourth (and so far final) is a purge of contempt (by the partner of the maternal grandmother) for his part in the press campaign and more importantly in lying about the child’s whereabouts. For non-lawyers a purge of contempt is where a person who has been sent to prison for breaking court orders goes before the same Judge to express remorse and regret and ask for his sentence to be reduced or ended. In this case, the man was released from custody.

 

The Judge did ask, in his judgments, for the Press to refrain from speculation about where the child might live and whether mum would get to see him again and how that would work, and I’d therefore ask people to do the same in comments.

But what do people think about the Judge’s approach to openness in the case ? Very fast publication of the judgments, allowing the Press to come in, delivering a judgment that explained all of the balancing factors and principles, and allowing the Press to ask him questions? I think it is all very new, and the law is generally terrified of innovation, but we may come back to look on this case as a watershed in the family Courts not merely paying lip-service to the idea of transparency but really engaging in the process of explaining to the Press and public what is happening.  And balancing that with keeping really private things private.

 

Was an autobiography harmful to a child?

 

The Supreme Court have given their decision in James Rhodes v OPO 2015

https://www.supremecourt.uk/cases/docs/uksc-2014-0251-judgment.pdf

 

This was a case in which James Rhodes, a concert pianist, author, and film-maker, wrote an autobiographical account of his life,  and where the mother of their child sought an injunction to prevent its publication. The Court of Appeal granted that injunction, based on an 1897 case called Wilkinson v  Downton. That case established a cause of action which was “intentionally causing physical or psychological harm”

Mr Rhodes took that case to the Supreme Court, and triumphed.

 

The Supreme Court posed the central question in this way:-

 

What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?

 

When you read snippets from the book contained in the judgment, those snippets pull no punches. It describes the dreadful sexual abuse that the author sustained as a child, the harrowing impact that it had on him, the consequences throughout his life and how for the author, music provided an escape from that. The descriptions are brutal and shocking – but of course, so is what happened to this man as a child. The words hurt, but nothing like how the experience must have hurt.

One can also see that the mother of a young boy (who has Aspergers’ Syndrome, amongst other difficulties) would be worried about the boy coming across these accounts.  They are graphic accounts – they are so by intent – the author is wanting to convey just how monstrous what happened to him was, to reach out to other victims or potential victims, and possibly to reduce the chances of what happened to him happening to others. They are not easy to read – even for me – and I work within a field where I see accounts of abuse against children almost every week and would be expected to be somewhat more de-sensitised to it than the average adult. What James Rhodes has written is powerful and hard to read.  I commend him for it.

 

[This isn’t a terribly neutral summary, I am glad that he won this case – but nor do I think that the mother was a bad person for bringing the claim – I see entirely why she would not want her son to read this material whilst he is a child, and that in the modern era it is not as simple as just not having a copy in his home to read – the internet will have passages from it, indeed the judgment does, and other children who the son knows may come across it and make use of it]

 

As a matter of law then, what does the Supreme Court have to say about this tort?

Let’s look at the history first – as ever with old caselaw, the facts are quirky, and I’m sure that nobody involved ever imagined they’d be making legal history and newspaper headlines 120 years later.

 

Mr Wilkinson had been out at the races (I think that I can say without fear of defamation 120 years later that some degree of liquid refreshment may have played a part in the day’s events) and his friend Mr Downton decided that it would be an amusing practical joke to tell Mrs Wilkinson that Mr W had had an accident at the races, broken his leg and needed help.  Mrs W took it very badly and had weeks of nervous shock.

 

Wilkinson v Downton

31. Mr Downton secured a place for himself in legal history by a misconceived practical joke. He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlord’s wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home. It cost her 1 shilling and 10 ½ pence to send her son and another helper on this fools’ errand, but a matter of far greater concern was the effect on her health. She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock. She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.

32. Recovery of the transport costs incurred in response to Mr Wilkinson’s supposed request for help presented no legal difficulty. Such costs were recoverable as damages for deceit. The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husband’s claim for the resulting loss of her services) at £100, but the legal basis for making such an award was problematic.

33. Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinson’s suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told. It was simply a consequence of the shock brought about by the news reported to her.

34. Wright J held, at pp 58-59, that a cause of action could be stated in law where a defendant has

“wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

He continued

“That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”

35. This compact statement of law contained a number of key features. First, he identified the plaintiff’s protected interest as her “legal right to personal safety”. Secondly, he identified the defendant’s act as wilful. Thirdly, he described the act as “calculated” to cause physical harm to the plaintiff. Fourthly, he noted the absence of any alleged justification. Fifthly, he characterised the “wilful injuria” as “in law malicious” despite the absence of any purpose (ie desire) to cause the harm which was caused. Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinson’s claim. He held that it did. He said:

“One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed …”

 

The discussion of the Supreme Court into this tort and partic ularly on the key ingredient ‘maliciously’ is wide-ranging –  covering level-crossings, horses ram-raiding into pubs, pretending to unmask someone as a German spy, and imputations of inchastity.  I was saddened that the promising case name of Mayor of Bradford v Pickles 1895 did not hinge on a gherkhin-related dispute, but rather on water supply…

Of course, you will note that in Wilkinson v Downton, the story that caused the harm was false, made up, whereas the story being told by Mr Rhodes is true. We shall see if that makes a noticeable difference.

72. The order made by the Court of Appeal was novel in two respects. The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.

73. In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.

 

When writing a book, the author is not obliged to consider that any reader of the book might be caused damage by reading it – that would make it almost impossible to write anything. The Court of Appeal had held that it was applicable in this case to consider that in writing the book, the child was a relevant person to take account of – i.e that he was a specific person who could be said to be affected by it.

 

74. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations. We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group. A person who shouts “fire” in a cinema, when there is no fire, is addressing himself to the audience. In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In this respect we consider that they erred.

 

 

 

75. The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him. We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life. Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.

76. When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest. But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.

 

As the Supreme Court point out here – Mr Rhodes case triumphs on the wider public interest of telling his story, but that does not mean that the story HAS to have that wider public interest to defeat a Wilkinson v Downton claim.

Where a story is true, they say, the law gives the freedom of someone to tell the truth a great deal of protection.

 

77. Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example,Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.

 

It MIGHT be that a set of circumstances exist in which words in a publication are true, and not threatening, but are abusive and would cause harm to the recipient, but it is quite difficult to think of what those circumstances might be. It may be some time before we see another Wilkinson v Downton claim.

 

Finally, the Supreme Court looked at the mental element of the tort (the intent)

 

83. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.

 

They concluded that option b was correct, and declined to develop the law to include ‘recklessness’ within the mental element of the offence.

89. In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

 

Also hooray for Lord Neuberger’s remarks on free speech.

96. It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”.

97. Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).

 

 

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