Pickering v Liverpool Daily Post and Others
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,LORD JUSTICE FARQUHARSON |
| Judgment Date | 27 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0727-10 |
| Docket Number | 89/1270 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 1989 |
[1989] EWCA Civ J0727-10
The Master of the Rolls
(Lord Donaldson)
Lord Justice Glidewell
Lord Justice Farquharson
89/1270
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE ROCH)
Royal Courts of Justice
MR. ALAN NEWMAN Q.C. and MR. ROBIN ALLEN (instructed by Messrs. Irwin Mitchell, Hartshead, Sheffield) appeared for the Appellant (Plaintiff).
MR. CHARLES GRAY Q.C. and MR. GRAHAM READ (instructed by Messrs. Lace Mawer, Liverpool) appeared for the First Respondents.
MR. CHARLES GRAY Q.C. and MR. MANUEL BARCA (instructed by
Messrs. Swepstone Walsh) appeared for the Second Respondents.
MR. CHARLES GRAY Q.C. and MR. MANUEL BARCA (instructed by Messrs. Dibb Lupton Broomhead) appeared for the Third Respondents.
MR. NIGEL PLEMING (instructed by The Treasury Solicitor) appeared as amicus curiae.
The plaintiff is a patient detained in a secure mental hospital and is subject to a restriction order originally made under section 65 of the Mental Health Act 1959 and now continued in force under section 41 of the Mental Health Act 1983. The defendants are publishers of newspapers.
The defendants wish to publish information concerning the plaintiff's criminal convictions and other information about the plaintiff which is in the public domain and is not confidential. They also wish to be free to criticise the statutory provisions which govern the release of patients who are subject to restriction orders. That they are free to do so is conceded by the plaintiff. In addition, the defendants wish to publish three pieces of information which the plaintiff contends that they are not free to publish. These are:
(a) the fact that he has made an application to a Mental Health Review Tribunal for an order directing his discharge;
(b) the date for the hearing of that application; and
(c) the decision of the Tribunal.
The plaintiff seeks an injunction in somewhat wider terms, namely one prohibiting publication of any information about his application to the Tribunal including, in particular, information that he has so applied and all consequential information about those proceedings, including the evidence given and the names of persons involved in those proceedings and any decisions by the Tribunal, save in so far as the Tribunal or the court may otherwise direct. In this he is not to be criticised because, whilst I fully accept that the defendants will not seek to go further than they have indicated, other organs of the media may well not be minded to exercise any similar restraint.
Let it be said at once that this case is different from those concerning the right of the media to publish information relating to children who are wards of court and to their families. There the court, in deciding whether to grant any and, if so, what injunction against publication, is called upon to balance any public interest in the dissemination of the information against its duty to safeguard the welfare of the children. No such balancing exercise arises in this case. The public interest in the dissemination of information about the plaintiff is undoubted and might be thought to be overwhelming. The sole issue is whether there is an absolute duty not to publish arising either out of regulations made under the Mental Health Act 1983 or out of the law concerning contempt of court or a combination of the two.
On 5th May 1989 the plaintiff applied ex parte to Simon Brown J. for, and was granted, an injunction restraining the publication and dissemination of any information about the date of the plaintiff's application to the Mersey Health Review Tribunal, including the names of any persons concerned with the proceedings, until the hearing of an inter partes summons to continue it. On Friday, 12th May 1989, Roch J. refused to continue the injunction, save to the extent necessary to enable an interlocutory application to be made to this court. That application was made on the same day, because the hearing of the plaintiff's application by the Tribunal was due to take place on the following Monday or Tuesday. There was no possibility of the appeal itself being properly heard and determined before then, even if all other work were set aside. In an attempt, so far as was possible, to preserve the rights of all parties pending this hearing, this court continued the injunction granted by Simon Brown J. until the hearing of this appeal and ordered the Tribunal not to hear the plaintiff's application until the expiration of seven days after this court had given judgment. When the hearing began we made a further injunctive order to preserve the rights of the parties pending our decision, but the details are not material.
The background facts were stated by Roch J. in the following passage from his judgment:
"In 1972 the Plaintiff in this Action, Peter Joseph Wilson Pickering killed a 14 year old girl. The killing was a particularly brutal one and was preceded by a sexual attack upon the girl. Mr. Pickering's plea of Guilty to the offence of Manslaughter by reason of Diminished Responsibility was accepted by the Crown and the Court and Mr. Pickering was ordered to be detained in a secure Mental Hospital under the provisions of Sections 60 and 65 of the Mental Health Act 1959 which was the Act in force in 1972.
Prior to that offence Mr. Pickering had been detained in prison for a total of some 15 years for various offences, some of which were violent sexual attacks upon women and girls. Mr. Pickering was ordered to be detained in a Secure Hospital and made the subject of a Restriction Order without limit of time on the 7th December 1972. He is now 51 years of age.
The orders made on that day, when the Mental Health Act 1983 came into force continued to have effect as if they had been made under Sections 37 and 41 of that Act.
At the time the orders were made Mr. Pickering could not be released from a Secure Mental Hospital except by the order of the Secretary of State for the Home Office. Although Mental Health Review Tribunals were in existence at that time, they had no power to discharge a patient who was subject to a Section 60 Order and a Restriction Order under Section 65 of the Act. They could however consider the case of such patients and make recommendations to the Home Secretary.
That position was changed by the Mental Health Act 1983, which gave patients subject to a Restriction Order made under Section 41 of that Act (which replaced Section 65 of the 1959 Mental Health Act) the right to apply to a Mental Health Review Tribunal every 12 months for his or her discharge from a secure Mental Hospital. The Mental Health Review Tribunal under Sections 70 and 73 of the 1983 Act has the power to direct either absolute or conditional discharges of such patients making application to the Tribunal provided that certain criteria are satisfied. As the law now stands if the Tribunal directs the discharge of the patient, the patient is set at liberty. This is to be contrasted with the situation where a defendant has been sentenced to life imprisonment and then transferred to a secure mental hospital, where if the Tribunal directs the discharge of the patient he is then returned to prison.
The evidence before me indicates that the present state of the law is a matter of concern to many people. Mr. Sedley who has represented the Plaintiff Applicant accepts that the present state of the law is a legitimate matter of concern and a legitimate subject of public debate.
Following the change in the law effected by the Mental Health Act 1983 the Applicant applied for his discharge from hospital. He has made such applications on four occasions.
One of those occasions occurred in November 1985. The hearing before the Mental Health Review Tribunal was adjourned from November 1985 to March 1986 because of articles which appeared in the press in November 1985.
On the 26th March 1986 the Mental Health Review Tribunal made a statement in which it set out its conclusions in relation to Mr. Pickering and then went on to say:
'The Tribunal has been severely hampered by ill-informed and irresponsible media coverage before, and during its hearings. This coverage persisted after the Tribunal had drawn attention to the fact that the proceedings are private in their nature and that such privacy is the result of rules approved by Parliament and which only allow for media coverage to the extent permitted by the Tribunal. Such privacy is essential for the proper conduct of necessarily difficult matters pertaining to the Mental Health of an individual as well as to the protection of the public. The nature and extent of coverage in this case put unreasonable pressure on all the parties before the Tribunal and creates a wholly false impression that the result of a Tribunal may be influenced by pressure of this kind.'
Mr. Pickering's case was referred to in the Report of the Council on Tribunals for the year 1987 under the heading 'Health'. In its Report the Council said:
'It is most important that Tribunals make decisions on the basis of evidence before them and that they are not influenced or thought to have been influenced by comments made elsewhere, for example in Parliament or in the Press.'
The publication of those newspaper articles in November 1985 led to the Attorney General taking proceedings against the Associated Newspaper Group plc, the 2nd Defendants in the present action and against the 1st Defendants in the present action for committal of the proprietors and...
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