Ashworth Hospital Authority v MGN Ltd

JurisdictionEngland & Wales
Judgment Date18 December 2000
Judgment citation (vLex)[2000] EWCA Civ J1218-20
Docket NumberCase No:2000/2250/A2
CourtCourt of Appeal (Civil Division)
Date18 December 2000
Ashworth Security Hospital
Mgn Limited

[2000] EWCA Civ J1218-20


The Master Of The Rolls

Lord Justice May and

Lord Justice Laws

Case No:2000/2250/A2





Royal Courts of Justice


London, WC2A 2LL

MR NIGEL PLEMING QC and MR VINCENT NELSON (instructed by Reid Minty, London, W1X 9HZ) appeared on behalf of the Respondant.

MR DESMOND BROWNE, QC and MR RICHARD PARKES (instructed by Swepstone Walsh, London, W1M 5FQ) appeared on behalf of the appellant.

LORD PHILIPS (Master of the Rolls):



On 2 nd December 1999 the Appellant 'MGN' published in the Daily Mirror an article written by Mr Gary Jones, the 'Investigations Editor', about Ian Brady, who, with Myra Hindley, was convicted in 1966 of what are popularly known as 'the Moors Murders'. That article included a series of verbatim extracts from information held on a database called PACIS maintained by the staff of the Respondent, Ashworth Hospital Authority ('Ashworth'), in whose custody Ian Brady is detained. Mr Jones had received these extracts, together with additional information about Ian Brady held on PACIS, from one of his regular sources ('the intermediary'). Mr Jones subsequently paid the intermediary £1,500 for this information. The intermediary had received the information from a member of the staff of Ashworth ('the source'). The likelihood is that the intermediary paid the source for the information. Mr Jones knows the identity of the intermediary but not of the source. He believes, however, that if he discloses the name of the intermediary this will lead to the identification of the source. On 30 th June 2000 Rougier J. ordered MGN to disclose the identity of the intermediary, as a means of identifying the source. MGN now appeal against that Order. They contend that it is one that Rougier J. had no jurisdiction to make and that it offends against Article 10 of the European Convention of Human Rights ('ECHR')


This Appeal raises the following major issues in respect of Rougier J's Order:

• Was there jurisdiction under the principle in Norwich Pharmacal Co & Others v Customs & Excise Commissioners [1974] AC 132 ('Norwich Pharmacal')?

• Was there jurisdiction under the principle in Broadmoor Hospital and another v R [2000] WLR 1590 ('Broadmoor')?

• Did the Order infringe S.10 of the Contempt of Court Act 1981 ('Section 10')?

• Did the Order infringe Article 10 of the ECHR ('Article 10')?


Before turning to these issues, it is necessary to address the relevant facts.



Ashworth is one of three special hospitals provided by the Secretary of State for Health pursuant to 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.


Prior to 30 th September 1999 Ian Brady was accommodated at Ashworth on Jade Ward. On that day he was transferred to Lawrence Ward. He took objection both to the fact of this transfer and to the manner in which it was achieved. He immediately complained to the police that he had been assaulted and renewed his complaint through the National Health Service Complaints Procedure. He also went on hunger strike, refusing to take food or nutritionally sweetened drinks. At the same time he began a media campaign, writing repeatedly to the BBC and others and issuing information through his Solicitor. He complained about the way that he had been treated and gave details of his hunger strike and the manner in which it was affecting him.


Substantial media interest was stimulated and Angela Anderson, Ashworth's Director of Communications, found it necessary to issue a total of twelve press releases between 1 st October 1999 and 11 th January 2000 in answer to inquiries for information. The second of these, on 2 nd October, began by stating:

"Ian Brady, a patient at Ashworth Hospital, has exercised his right to refuse permission for the hospital to disclose any clinical details about him"


The press releases did no more than outline the manner in which Ian Brady was being treated. On 29 th October it was announced that as he had refused food for a total of 30 days, a programme of 're-feeding' had been introduced. This involved force feeding by means of a naso-gastric tube.


On 2 nd February 2000 Ian Brady obtained leave to apply for judicial review, challenging the continuing decision to force feed him. Pursuant to his application, which was supported by Ashworth, the hearing took place in private. The Judge, Maurice Kay J., announced however that judgment would be given in open Court. It was delivered on 10 th March 2000. It ruled that the force feeding was lawful in that it was reasonably administered as part of the medical treatment given to Brady for the mental disorder from which he was suffering. By virtue of S.63 of the Mental Health Act 1983 consent was not needed for such treatment. The Judgment set out, in detail, particulars of Ian Brady's clinical history which related to this conclusion.

The Publication


The article in the Daily Mirror spanned two pages under the heading:





Much of the article consisted of extracts from what was described as 'a "confidential" diary of his deteriorating condition kept by the authorities at Merseyside's Ashworth Hospital where he is serving out his life sentence.' A short extract will give the flavour of these:

"October 7

Received a letter this pm, author unknown, containing plastic rosary beads and a small religious medal. Brady disposed of same.

During conversation re the subject of no alcohol for patients over the festive period, stated 'What do you expect, with the ex-governor of a terrorist prison in charge?'

October 18

Still refusing food. Ian is taking fluids in the form of regular cups of coffee. Now weighs 13st, a loss of two pounds since yesterday.

October 19

Avoiding speaking with staff, offering only abrupt and hostile replies. Ian appeared very vague and a little disorientated towards his surroundings.

October 20

Ian was observed pacing the day area before returning to his usual daytime location in the smoking lounge.

October 21

He appeared to have co-ordination difficulty, dropping items he was carrying several times and finding it difficult to retrieve them. Weight 12st 12lbs.

October 24

Re blood tests, he stated 'They can take the lot'"

The Relief Sought


After an exchange of Solicitors' letters Ashworth began proceedings on 25 th January 2000 which, ultimately, sought the following relief:

"(1)An Order that the Defendant do forthwith deliver up to the Claimant all medical records or copy medical records or extracts therefrom in its possession, power, custody or control relating to the Claimant's care or treatment of Ian Brady, being a patient at Ashworth Hospital.

(2) An Order that the Defendant do forthwith be restrained from publishing, distributing or otherwise disseminating any information contained in the said medical records relating to Mr Brady.

(3) An Order that the Defendant do by its proper officer within two working days make and serve upon the Claimant a witness statement:

a) Explaining how it came to be in the possession or control of any medical records kept by the Claimant in respect of Mr Brady, whether that possession or control be of originals, copies or extracts.

b) Identifying any employee of the Claimant and the name of the person or persons (and any address, telephone and fax numbers known for such person or persons) who were involved in the Defendant acquiring possession or control of the said records."


An interim Order was made in terms of the first head of relief sought, but Mr Jones explained that, in accordance with his normal working practice, he had destroyed the material that he had received after writing his article. At the trial this was accepted, as was his statement that there was no intention to publish anything further based on that information. This led Rougier J, who described Mr Jones as 'a straightforward witness' to decline to order the second head of relief. He did, however, make an Order in the terms of the third head of relief.

What did Mr Jones receive?


Before us there was a lively dispute between Counsel as to the information that was received by Mr Jones. No hint of this issue is to be found in the Judgment, but it proved to be one of some significance. It was Ashworth's case that Mr Jones received, by facsimile, a print out of that section of the database in which the extracts that he quoted had been recorded. Mr Desmond Browne, Q.C, for MGN, submitted, however, that the evidence demonstrated that the source had edited the print-out to remove sensitive material before providing it to the intermediary.

The PACIS Database


It is common ground that the extracts quoted in the Mirror article originated from Ashworth's PACIS database. Mr Brewster, Ashworth's Information Manager, produced at the trial 17 pages of print-out from the database. These had been redacted to exclude all matter except the extracts that were quoted in the Mirror article. That which remained constituted no more than about 5% of the original print-out.


Dr James Collins, the Consultant Forensic Psychiatrist who was Mr Brady's Responsible Medical Officer under the Mental Health Act, gave evidence that the 17 pages included 'a wealth of material, far more than was published'. He added 'I do not know who...

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