Attorney General v English
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Elwyn-Jones,Lord Keith of Kinkel,Lord Scarman,Lord Brandon of Oakbrook |
| Judgment Date | 15 July 1982 |
| Judgment citation (vLex) | [1982] UKHL J0715-1 |
| Date | 15 July 1982 |
| Court | House of Lords |
[1982] UKHL J0715-1
Lord Diplock
Lord Elwyn-Jones
Lord Keith of Kinkel
Lord Scarman
Lord Brandon of Oakbrook
House of Lords
My Lords,
This is an appeal brought by the Editor and publishers of the Daily Mail newspaper against a decision of the Divisional Court on 16th December 1981, holding them to be guilty of contempt of court by publishing an article entitled "The Vision of Life that Wins my Vote" on 15th October, 1980, which was the morning of the third day of the trial in the Crown Court at Leicester of a well-known paediatrician, Dr. Arthur, on a charge of murdering a three-day-old mongoloid baby boy by giving instructions that it should be treated with a drug which had caused it to die from starvation. The question of the punishment to be imposed for these contempts was adjourned until 19th February 1982, when the court decided that no penalty should be imposed upon the Editor, but fined the publishers the sum of £500 and ordered them to pay the Attorney General's costs.
The case provided the first opportunity for judicial consideration of the changes in the law of contempt of court that have been effected by the Contempt of Court Act 1981; and since it raises, in particular, questions as to the extent to which discussion in the media of a matter of general public interest is to be curbed because of the effect that it may have upon contemporaneous legal proceedings, it is necessary to start by stating in summary form the circumstances in which the article was published and the events that had preceded its publication. They can be found in greater detail in the judgment of the Divisional Court. The matter of public interest with which the article dealt was whether it can ever be morally justifiable to allow newly-born babies, however direy handicapped physically and mentally they may be, to die as a result of withholding from them medical treatment by which they could have been kept alive longer.
Your Lordships can, I think, take judicial notice of the fact that with the recent advances made in medical science which now enable doctors to keep alive severely handicapped children and the incurable and painfully sick and the senile old who would otherwise have died a natural death, there has in the past few years been a lively controversy as to whether it is morally justified deliberately to refrain from using every resource available to medical science to keep alive persons in these categories whose disabilities will preclude them from living what would be regarded by an ordinary human being as a worthwhile sentient life at all. Indeed, the controversy is hardly as recent as all that. Arthur Hugh Clough's couplet written in the mid-nineteenth century:
"Thou shalt not kill; but needst not strive Officiously to keep alive"
shows that the issue is of long standing.
In December 1977 the Society for the Protection of Unborn Children, which was formed in 1967 as a pressure group opposed to the liberalisation of the abortion laws and now has over 30,000 members, decided to take up the cause of severely handicapped babies whose lives they believed it had become a developing practice among doctors to terminate within a few days of birth by the use of drugs or the deliberate deprivation of nourishment.
A special effort to publicise this new aspect of the Society's objects was made in 1981 which had been designated the International Year of the Disabled.
In February 1981 Dr Arthur had been charged at Derby City Magistrates' Court with murdering a mongoloid baby, who had been born three days before. It was alleged against him that he had administered to the new-born child a drug which prevented it from taking nourishment, as a result of which it had died of starvation three days after birth. These allegations, however, were not made public at the time of the committal proceedings, as reporting restrictions were not removed. Those proceedings ended in March 1981 with his committal for trial at Leicester Crown Court.
On 6th June 1981 the Member of Parliament for North-West Croydon died and it became necessary to hold a by-election, for which the polling day, by a coincidence, was eventually fixed for 22nd October 1981, a date which turned out to be in the middle of Dr. Arthur's trial. On 28th June an announcement was made to the press by the Society for the Protection of Unborn Children that Mrs. Marilyn Carr, a woman who had been born without arms, intended to run as an independent "Pro-Life" candidate in the by-election, taking as a main plank in her election campaign the stopping of the practice that she asserted was developing in some British hospitals of killing new-born handicapped babies.
During the following month, Mrs. Carr continued to seek by various means to obtain publicity for this aspect of her election campaign, with what degree of success does not appear in the material before your Lordships. But public interest in the controversy about the morality of allowing babies born with severe incurable mental and physical handicaps to die as a result of depriving them of medical treatment whereby their lives could have been prolonged was fired, during August 1981, by the wide publicity given to a decision of the Court of Appeal allowing an appeal in a case in which the parents of a mongoloid child had refused their consent to an operation which would prolong its life and the surgeon, respecting the parents' wishes, had refused to undertake the operation and had expressed his belief that the great majority of surgeons would have reached the same decision if faced with a similar situation. The Court of Appeal, reversing the decision of the judge, made an order that the operation should be performed.
The controversy, though it may have temporarily died down, was not allowed to lapse and on 3rd October there appeared in a Sunday newspaper with a wide circulation, an article by a well-known disc jockey, Tony Blackburn, defending the opposite point of view to that of Mrs. Carr, viz. that the termination of life of unborn babies who are hopelessly handicapped is morally justified.
On 1st October notice was given that the poll in the by-election would be held on 22nd October and on 6th October Mrs. Marilyn Carr became a candidate, and published her election address. The well-known journalist and broadcaster, Mr. Malcolm Muggeridge, had agreed to speak for her at a public meeting to be held on Tuesday, 20th October, two days before the poll.
On 13th October the trial of Dr. Arthur started at Leicester Crown Court. It attracted great public interest and was prominently reported in the Daily Mail and in the national press generally on the following day. On that day, the editorial staff of the Daily Mail learnt through a press release issued by Mr. Malcolm Muggeridge that he was going to speak at an election meeting in support of Mrs. Carr's Pro-Life candidature in the Croydon by-election. It was decided to invite him to put what he intended to say into the form of an article for publication in the Daily Mail. This he did. It was published on the following day, 15th October. This is the publication that the Divisional Court held was a contempt of court. It was drawn to the attention of the trial judge who instructed that a copy of the article should be sent to the Attorney General whose consent is now required for proceedings for a contempt of court. The Judge commented "I think that it is highly unfortunate that any [paper] … should publish an article of this kind in the middle of a trial which is very sensitive and very emotionally charged in the terms that appear in this article. I think it is quite deplorable."
Dr. Arthur's trial continued until 3rd November. At the close of the prosecution's case, the judge had directed a verdict of "Not Guilty" on the charge of murder, but left to the jury a charge of attempted murder, of which Dr. Arthur was acquitted on 3rd November 1981.
The article complained of was directed exclusively to Mr. Muggeridge's support of Mrs. Carr's candidature in the by-election because of her support of the Pro-Life cause and in particular her opposition to deliberate failure to keep alive newly-born babies suffering from what are presently regarded as incurable physical or mental disabilities so severe as to deprive them of all possibility of their enjoying what a normal person would regard as a life that was worth living. For any human being to arrogate to himself the right to decide whether a human being was fit to be born or to go on living was regarded by Mr. Muggeridge as contrary to Christian morality which regarded all human life as sacred. There was no mention in the article of Dr. Arthur's trial.
The first part of the article described Mrs. Carr herself and how she had succeeded in overcoming the terrible physical handicap with which she had been born and in carving out a useful career for herself. "To-day", he wrote, in a passage principally relied upon by the Attorney General as amounting to contempt of court, "the chances of such a baby surviving would be very small indeed. Someone would surely recommend letting her die of starvation or otherwise disposing of her." The article then continued with a skilful piece of polemical journalism which concluded with the following passages derisive of those whose views he was condemning:—
"Are human beings to be culled like livestock? No more sick or misshapen bodies, no more disturbed or twisted minds, no more hereditary idiots or mongoloid children. Babies not up to scratch to be destroyed, before or after birth, as would also the old beyond repair. With the developing skills of modern medicine, the human race could be pruned and carefully tended until only the perfect...
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