Ackroyd v Mersey Care NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice May:,Lord Justice Carnwath,Lord Justice Ward |
| Judgment Date | 16 May 2003 |
| Neutral Citation | [2003] EWCA Civ 663 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A/2/2002/2256 |
| Date | 16 May 2003 |
[2003] EWCA Civ 663
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Hon Mr Justice Gray
lord Justice Ward
Lord Justice May And
Lord Justice Carnwath
Case No: A/2/2002/2256
G Millar QC and A Hudson (instructed by Thompsons) for the Appellant
V Nelson QC and C Thomann (instructed by Capsticks) for the Respondent
Introduction
Robin Ackroyd is an investigative journalist. He appeals, with hesitant leave of Simon Brown LJ, against the judgment and order of Gray J of 18 th October 2002. The judge gave summary judgment in favour of the claimant and ordered Mr Ackroyd to identify any employee of the claimant who was involved in Mr Ackroyd acquiring possession of PACIS records kept by the claimant in respect of Ian Brady. This case is a sequel to the case of Ashworth Hospital Authority v. MGN Limited. That case was decided after a trial by Rougier J. It proceeded to the Court of Appeal ( [2001] 1 WLR 515) and then the House of Lords ( [2002] 1 WLR 2033).
The Mirror Article
Ashworth Hospital, as it was until recently known, is a secure hospital provided by the Secretary of State for Health under sections 1 and 4 of the National Health Service Act 1977 (as amended) for persons subject to detention under the Mental Health Act 1983 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. It is now the responsibility of the claimant. I shall refer to it as "the hospital".
Ian Brady is one of the "Moors Murderers" convicted at Chester Assizes on 6 th May 1966. He has been detained ever since. In 1999, he was detained in the hospital. From June 1995 he had been accommodated on Jade Ward. Shortly before 30 th September 1999, the hospital decided that he should be moved to Lawrence Ward. He was not told about this intention in advance. Brady gave his account of this and subsequent events in letters to the BBC during October and November 1999 which the BBC published. He wrote that he was sitting on his bed writing notes, when a crowd of warders rushed in dressed in riot gear with visored crash helmets and plastic shields. Without explanation, his arms were wrenched violently up his back, fracturing a bone in his wrist, and his head was held down to the floor. He was then dragged into an empty cell and, always pinioned in the same position, stripped and searched. Again always violently pinioned, he 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. His solicitors brought in the police and charges against the warders and legal action against the hospital were contemplated.
In reaction to these events, Brady stopped eating solid food and went on hunger strike. This continued during October 1999. By the end of the month, he had lost more than a stone in weight and his medical condition was giving cause for concern. The hospital decided that he should be forcibly fed. The legal authority for doing this was section 63 of the Mental Health Act 1983. The forcible feeding started on 29 th October 1999. It was done by inserting a nasogastric tube through which food was delivered. Brady's own account of this in his letters to the BBC stated that those performing this procedure threatened violence if he resisted. His doctor wanted blood samples, again threatening violence if he resisted. It took three attempts and three x-rays simply to insert the tube up his nose and down his throat. The first attempt went into his duodenum. He had at the time of the letter had the tube in his nose and throat for five days, helping him to lose what little sleep he got. They syringed freezing fluids straight from the fridge into his stomach and he had been wearing an overcoat to keep warm ever since.
The hospital instituted an inquiry into Brady's complaints. This was carried out by Professor Sines. His report was dated 30 th November 1999 and delivered to the Department of Health on 1 st December 1999. It has not been made public, although a copy of it was provided to Mr Brady's solicitors on terms as to confidentiality. This court has not seen it. It was however seen by Maurice Kay J who heard and decided a judicial review application by Brady on 10 th March 2000. Brady sought in those proceedings judicial review of the decision to continue to feed him forcibly against his wishes. Maurice Kay J dismissed the application. He was entirely satisfied that the decision to commence and continue force-feeding was justified by reference to section 63 of the Mental Health Act 1983 and was in all respects lawful, rational and fair. His judgment records that Professor Sines' report was trenchantly critical of the moving of Brady from Jade Ward to Lawrence Ward on 30 th September 1999. The report concluded that flaws in the organisation and management of the move resulted in its implementation falling short of the standard the hospital should set itself. On the other hand, Professor Sines considered that the commencement of force-feeding had been correct and that the procedure in relation to it had been professionally administered in accordance with prescribed practice standards.
On 2 nd December 1999, the day after Professor Sines' report had been delivered to the Department of Health, a long article appeared in the Mirror under the heading "Death Wish Diary – Hunger strike Brady is determined to die". The article gave an account of his then seven week hunger strike. It referred to his desperation to die as being revealed in a confidential diary of his deteriorating condition kept by the authorities at the hospital. It stated that Brady started his hunger strike after staff in riot-gear searched his room before moving him to a tougher ward. During the swoop, he claimed his wrist was fractured while he was held in an arm lock for up to an hour. He had started legal action for assault and was seeking the right not to be force-fed. The diary started the following day, 1 st October 1999. There is then a number of fairly short quoted extracts for fourteen of the days between 1 st October and 29 th October 1999. These concern in the main descriptive details of the progress of his hunger strike leading to the decision to feed him forcibly. The article stated that controversy now surrounded the way that Brady was forcibly fed on 29 th October 1999 with high-energy liquid through a nasogastric tube. 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. "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 claimed that he was mistreated and was 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 something along these lines would take place and took it all in a resigned fashion. He was courteous throughout."
The article then stated that Professor Sines' report was delivered to the Health Department on the previous day. After giving details of the murders and of Brady's condition before these events, the article stated that "his hunger strike has plunged top security Ashworth – twice recommended for closure by official reports – into crisis yet again".
The "diary" referred to and quoted in this article was a series of Clinical Notes relating to Brady held by the hospital on a PACIS computer system. These had obviously been leaked to the Press and the hospital concluded that the source must have been an employee within the hospital. Their employees' contracts of employment contain a clause forbidding them from disclosing to any unauthorised person information concerning the hospital's business or the patients in its care. They were forbidden from copying, abstracting or making a summary of documents relating to the Authority. The direct quotations from Brady's Clinical Notes showed that someone was in breach of this clause. The hospital also regarded it as a breach of confidentiality. They accordingly took proceedings against MGN Limited, the publishers of the Mirror, seeking disclosure of the newspaper's source of the Clinical Notes. They did not seek disclosure of the source of other information which appeared in the article of 2 nd December 1999 which could not be derived from the information which Brady himself had disclosed in his letters to the BBC and which was not derived from the Clinical Notes. That class of information appears to have included the fact that the independent inquiry, apparently the Professor Sines' Inquiry, was told that as the tube was being pushed down Brady's throat a manager mocked him by making gagging and gurgling noises. Subsequent quoted passages, which could be read as coming from the unpublished Sines' Report, now look as if they were in fact quotations from the Clinical Notes.
The MGN Litigation
The action against MGN Limited was tried by Rougier J. He heard evidence, including evidence from witnesses from the hospital and from Gary Jones, the journalist who wrote the article in the Mirror. Mr Jones had been provided with the Clinical Notes, not directly from an employee at Ashworth, but through an intermediary. He had destroyed what he had received after he had written...
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