Mersey Care NHS Trust v Ackroyd (No.2)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 07 February 2006 |
| Neutral Citation | [2006] EWHC 107 (QB) |
| Date | 07 February 2006 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ02X02160 |
[2006] EWHC 107 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Tugendhat
Case No: HQ02X02160
Mr Vincent Nelson QC & Mr Jonathan Bellamy (instructed by Capsticks) for the Claimant
Mr Gavin Millar QC & Mr Anthony Hudson (instructed by Thompsons) for the Defendant
Hearing dates: January 17 th– 20 th, 23 rd &25 th 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this trial the Claimant applies for an order against the Defendant journalist that he disclose his source for information he obtained about Ian Brady in November 1999. In particular what is sought is an order that he explain how he came into possession of medical records kept by the Claimant, and that he identify any persons involved in his acquiring them, including any employee of the Claimant. Some information from these records was published on 2 nd December 1999 in the Mirror newspaper in an article attributed to Gary Jones. The Defendant provided the information and a draft article to him. The claim originally included applications for other relief, including delivery up of the records, an injunction to restrain further publication, and an inquiry as to damages for breach of confidence or an account of profits. None of these other claims were pursued at the trial. The Claimant obtained a disclosure order against Mirror Group Newspapers Ltd ("MGN") following a trial in April 2000. That order was affirmed on appeal to the Court of Appeal and to the House of Lords. As a result the Defendant was identified as an intermediate source and this action was commenced against him.
The Claimant, Mersey Care NHS Trust, succeeded to Ashworth Hospital Authority on 1 st January 200In 1999 Ashworth Hospital was, as it is now, a secure hospital provided by the Secretary of State for Health under the National Health Services Act 1977 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. I shall refer to it as the hospital.
The Defendant is, and was in 1999, a freelance investigative journalist. He has been writing articles for national and regional newspapers for more than sixteen years. For most of this time he has specialised in the areas of crime policing and punishment, including the treatment of serious offenders in prisons and high security hospitals.
Ian Brady was in 1999, and still is, an inmate of the hospital. He is notorious as one of the "Moors Murderers" convicted in 1966. He and Myra Hindley were sentenced to life imprisonment for the murders of John Kilbride (12), Lesley Ann Downey (10) and Edward Evans (17). They were later also convicted of the murders of Pauline Reade (16) and Keith Bennett (12). At first he was in prison. In 1985, when his mental illness was diagnosed, he was transferred to the hospital under the Mental Health Act. While at the hospital he was at Newman Ward for the first ten years. In 1995 he was moved to the then newly opened Jade Ward in the hospital's secure east site.
th SEPTEMBER TO 28TH OCTOBER 1999
On 30 th September 1999 Ian Brady was moved to Lawrence Ward, in the hospital's north secure site. The move was made by force, and from his arrival in Lawrence Ward he has refused to eat, or take any nutritional drink. This is a protest. He immediately complained to his solicitors that he had been assaulted. He spoke to them by phone at 1615 hrs that day. The hospital called in the police to investigate the complaint, and arranged for an internal investigation, and for there to be a hearing of the complaint, which was subsequently conducted by Professor Sines. He is Executive Dean of South Bank University, Faculty of Health and Social Care. He is also a Fellow of the Royal College of Nursing. In November 1999 he was Professor of Community Health Care and Nursing and Dean of the Faculty of Health at South Bank University.
At 7.15pm on 30 th September 1999 there started a period of intense media activity. At that time the press first contacted Ms Anderson. She was the Director of Communications at Ashworth, and had been since November 1998. She became Associate Director of Communications on 1 st April 2001 and ceased to work at the hospital on 31 March 2004. She called it a torrent. It appeared to her that the media had a very well informed source, who had detailed information about Ian Brady's ward move, and linked it to a recent security alert. In her evidence at the trial of the action against MGN she had said that she felt the source was very close to the patient. The recent security alert had concerned the finding on his ward of an object, capable of being used as a knife. This had been the subject of an article in the Mirror by Gary Jones on 23 September 1999. Ms Anderson was in constant contact with journalists, and she issued some twelve press releases drafted in consultation with Dr Collins, the Chief Executive, Mr Clarke, the Medical Director Dr Diane Jones, and on at least one occasion with lawyers as well. Dr Collins took over as the Responsible Medical Officer (RMO) for Ian Brady on Ian Brady's arrival at Lawrence Ward. Dr Rajan had been the RMO on Jade Ward. The first press release was dated 30th September 1999, the last in the series being 11 th January 2000.
On 2 nd October 1999 the hospital issued a press statement. It stated that Ian Brady "has exercised his right to refuse permission for the hospital to disclose any clinical details about him… the hospital has no grounds for concern about this patient". However, in the following weeks a considerable amount of information did appear in the media from unidentified sources, and Ian Brady did himself make details of his clinical condition public by letters to the news media which were published by them.
The story broke on Sunday 3 rd October 1999. The News of the World published an article headed "Evil Brady Starving Himself to Death". The article reported that "The evil child killer has refused all food or water and medical treatment for a broken wrist since being removed from his cushy ward at Merseyside's Top Security Ashworth Hospital on Thursday". Included in the article are three quotations, the first two from an unnamed source, and the third from Ms Anderson, the Director of Communications of the hospital. The third quotation is the hospital's press release. The other quotations are as follows:
"Last night a hospital insider said: "If he continues he will be dead in a week. This is the end for Brady. He is prepared to die"…. The hospital source said "staff swooped on Brady with no warning and separated him from the patients he knew. It has caused huge problems the hospital is now in chaos"".
On 5 th October the hospital issued another press release. It stated that on Monday 4 th October Ian Brady had been interviewed by the police in the presence of his solicitors. It added that the police were investigating a complaint by Ian Brady that excessive force was used in moving him between wards on 30 th September 1999, and that his official complaint to the hospital would be investigated in the normal way once the outcome of the police investigation was known.
On 10 th October 1999 the Sunday Mirror published an article headed "Moors Killer Brady to Sue for Damages". The article includes the following:
"Moors murderer Ian Brady is planning to sue a mental hospital for a "five figure sum" after a scuffle with nurses. The child killer claims he suffered a fractured wrist as a result of six staff grappling with him while he was being transferred from his room. His planned court action, which will be funded by legal aid, has outraged the families of his victims… Four days later he made a statement to police demanding that one of the male nurses who handled him be charged with causing actual bodily harm. The hospital describes Brady's injury as "a chipped bone". They argue that he was accidentally injured because he resisted attempts to take him out of his room. Last night an insider said the killer was determined to sue regardless of the outcome of the police probe. "Brady is devious and after financial gain. Because he has made an official complaint, the police have to send a file to the Crown Prosecution Service or he would cry foul. You can see he is playing clever with the aim of dragging the hospital through the civil courts. He has the upper hand. But even if he is awarded a payout, there are only so many Mars bars and packets of cigarettes he can buy at Ashworth. "
On 11 th October 1999 Ian Brady wrote a letter, parts of which were quoted in an article in the Mirror on 19 th October. It includes the following clinical information:
"I have had eight x-rays on my wrist but the bruising was too severe and swollen to ascertain the damage".
An extract from a letter dated 15 th October 1999 to the BBC (as subsequently published on their website on 30 th October) reads:
"Here are the facts. On the morning of 30 September I was sitting on my bed, writing legal notes, door wide open when a crowd of warders rushed in dressed in riot gear, visored crash helmets and plastic shields.
Without explanation my arms were wrenched violently up my back, fracturing a bone in my wrist, and my head held down to the floor.
I was then dragged into an empty cell and always pinioned in the same position, stripped and searched. Again always violently pinioned I was eventually dragged into a van and transported to a ward. The unprovoked attack by the riot-gear...
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