Pickering v Liverpool Daily Post and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Goff of Chieveley,Lord Lowry |
| Judgment Date | 31 January 1991 |
| Judgment citation (vLex) | [1991] UKHL J0131-1 |
| Date | 31 January 1991 |
| Court | House of Lords |
[1991] UKHL J0131-1
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Goff of Chieveley
Lord Lowry
House of Lords
My Lords,
Sexual crimes of violence against young girls arouse sentiments of the utmost revulsion in the public mind. When men who have committed the worst of such crimes have been either imprisoned for life or ordered to be detained indefinitely in a secure mental hospital the question whether and when they can safely be released is a matter of great public concern. That concern has been aggravated by some instances in the past of such offenders who have been released in the belief that they were no longer a danger to the public but who have then committed further offences of the same horrifying kind. Public concern is at its most acute when the offender's criminal record is associated with a history of mental disorder. The question what criteria ought to be applied in determining whether or not such an offender should be released is controversial and is an entirely proper subject for public debate. Again it is understandable and perhaps inevitable, when it is known that the release of an individual offender is under consideration, that this should become the focus of media attention. But the responsibility of deciding whether and when an offender liable to indefinite detention in a secure mental hospital should be released now lies with a mental health review tribunal and the tribunal must apply to each individual case the criteria which are prescribed by statute in reaching their decision. Against this background, while it is of great importance that the media, in reporting or commenting on the circumstances of an individual case, should be subject to no restraint which is not justified by law, it is equally important that any restraints which the law does impose to ensure that the tribunal is not impeded in the proper discharge of its functions by media reports or comments should be clearly defined and should be effective. This appeal raises a number of questions as to the existence and scope of those restraints.
The appeal arises in proceedings instituted by the plaintiff whose history is as follows. Before 1972 he had been convicted of a number of offences involving violent sexual attacks on women and girls. For this and other offences he had spent a total of some 15 years in prison. When at liberty in 1972 he sexually assaulted and brutally killed a girl aged 14. At his trial for murder his plea of guilty to the offence of manslaughter by reason of diminished responsibility was accepted. On 7 December 1972 he was ordered to be detained in a secure mental hospital and an order was made restricting his discharge without limit of time pursuant to sections 60 and 65 of the Mental Health Act 1959. Under the Act of 1959 a patient subject to a restriction order under section 65 had no right to apply for his discharge to a mental health review tribunal. He could only require that his case be referred by the Secretary of State to the tribunal for their advice and the decision whether or not he should be discharged rested with the Secretary of State. In X v. United Kingdom (1981) 4 E.H.R.R. 188 this state of the law was held by the European Court of Human Rights not to be in conformity with Article 5(4) of the European Convention on Human Rights and the law was consequently changed by the Mental Health (Amendment) Act 1982. The relevant law is now consolidated in the Mental Health Act 1983. Orders under sections 60 and 65 of the Act of 1969 continue to take effect under the corresponding sections 37 and 41 of the Act of 1983, but the power to order the discharge of a "restricted patient" (as a patient subject to a restriction order under section 41 is now called), as of any other patient liable to be detained under the Act, is now vested in a mental health review tribunal. The criteria to be applied by the tribunal in determining whether or not to order a patient's discharge are set out, in the case of a patient other than a restricted patient in section 72, and in the case of a restricted patient in section 73.
In November 1985 the plaintiff applied to the Mersey Mental Health Review Tribunal for his discharge. When this became known to the press it attracted a great deal of public comment. The effect of the publicity was such that the tribunal felt constrained to adjourn the hearing for some months. When the tribunal gave their decision in March 1986, refusing the plaintiff's application for discharge, they recorded their views about the publicity which the case had attracted in the following terms:
"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 upon all the parties before the tribunal and creates the wholly false impression that the result of a tribunal may be influenced by pressure of this kind."
In January 1987 the Attorney-General moved to commit for contempt of court the editors and publishers of the Liverpool Echo and the Daily Mail in respect of articles which had appeared in those newspapers on 2 November 1985 relating to the plaintiff's application for discharge alleging that in each case the publication had created a substantial risk that the course of justice in the proceedings before the tribunal would be seriously prejudiced and had thus constituted a breach of the strict liability rule under section 2 of the Contempt of Court Act 1981. The motions were heard in July 1988 and the Divisional Court (Mann L.J. and Henry J.) delivered their reserved judgment in October 1988: Attorney-General v. Associated Newspaper Group Plc. [1989] 1 W.L.R. 322. They held, first, that a mental health review tribunal was not a "court" within the definition in the Act of 1981 and, secondly, that the particular publications had not created any substantial risk of serious prejudice to the course of justice in the proceedings. There was no appeal from this decision.
Meanwhile the plaintiff, being entitled under the Act of 1983 to make applications for his discharge at intervals of 12 months, had in May 1988 made a fresh application which was originally to be heard in November 1988. A number of newspapers, believing that they were not now in danger of being held in contempt in respect of anything they said about the proceedings before the tribunal, published in October and November 1988 a series of more or less sensational articles amounting to nothing less than a chorus of protest against the possible release from detention in hospital of a man with the plaintiff's appalling record of violent sexual crimes. The hearing of the plaintiff's application was again postponed and in May 1989 the plaintiff instituted the present proceedings seeking a declaration and injunctions designed to prevent the defendant newspaper publishers from publishing any information whatever relating to the plaintiff's pending application to the Mersey Mental Health Review Tribunal.
The sole ground on which the plaintiff originally claimed to be entitled to the relief he sought was the prohibition imposed by rule 21(5) of the Mental Health Review Tribunal Rules 1983 ( S.I. 1983 No. 942) which provides:
"Except in so far as the tribunal may direct, information about proceedings before the tribunal and the names of any persons concerned in the proceedings shall not be made public."
An ex parte injunction was granted by Simon Brown J. on 5 May 1989. At the hearing inter partes before Roch J. on 12 May 1989 the position taken by the defendants was that they had no intention of publishing and no wish to publish any information relating to the evidence before the tribunal or the identity of witnesses, representatives of the parties or members of the tribunal. They claimed, however, to be entitled to publish the fact that the plaintiff was applying to the tribunal for his discharge, the date of the hearing and the effect of the decision of the tribunal. Roch J. held that the plaintiff was not entitled to injunctive relief on the grounds, first, that he had no cause of action against the defendants and, secondly, that the matters which the defendants intended to publish were not within the ambit of the prohibition imposed by rule 21(5). He nevertheless continued the interlocutory injunction to the extent necessary to enable the plaintiff to apply to the Court of Appeal, which the plaintiff did on the same day. By this time the hearing before the tribunal was imminent but the Court of Appeal ordered that the hearing should not proceed until seven days after the court had itself given judgment and continued the interlocutory injunction until that judgment.
Before the Court of Appeal (Lord Donaldson of Lymington M.R., Glidewell and Farquharson L.JJ.), whose decision is reported at [1990] 2 W.L.R. 494, the scope of the argument was significantly widened. They held unanimously that a mental health review tribunal was a "court" as defined by section 19 of the Contempt of Court Act 1981, overruling Attorney-General v. Associated Newspaper Group Plc. [1989] 1 W.L.R. 322, and considered section 12 of the Administration of Justice Act 1960 as a possible alternative source of the...
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