T v The British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY |
| Judgment Date | 11 July 2007 |
| Neutral Citation | [2007] EWHC 1683 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHJ/07/0551 |
| Date | 11 July 2007 |
[2007] EWHC 1683 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
The Honourable Mr Justice Eady
Case No: IHJ/07/0551
Gavin Millar QC and Fenella Morris (instructed by Pearson Hinchcliffe) for the Claimant
Mark Warby QC and Adam Wolanski (instructed by the BBC litigation department) for the Defendant
Hearing date: 9 July 2007
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.
The Hon. Mr Justice Eady:
Mr Millar QC, instructed by the Official Solicitor, applies for an injunction to prevent the identification in a television programme, due to be broadcast next week, of a young woman who has been referred to throughout as T. There is plainly a degree of urgency about the matter. The programme is planned as part of a series of five on the subject of adoption. The half-hour devoted to T is intended to inform the public about the relatively little known concept of “concurrent planning”. The idea is to minimise the disruption to a child's life. If it proves necessary to remove a child from parental care for a time, but it has not necessarily yet been determined that he or she will have to be adopted, the child can be placed with foster parents on a temporary basis, but they are also being prepared with a view to adoption if it becomes unrealistic to return to the natural parent. That is what happened in this case.
T's two year old daughter D was placed with foster/adoptive parents while the relationship between the daughter and her mother could be assessed with a view, possibly, to going back to live with her. When it was finally decided that this was not going to work, they adopted her. The programme portrays this process and includes footage of a number of intimate matters, including the last contact session between mother and daughter, which was tearful and distressing for T. It also includes a scene when the impression is given to viewers that T is sometimes rough with her daughter and has problems with anger management.
There is no dispute that T is a vulnerable adult (having passed her eighteenth birthday on 13 April of this year). Indeed, the programme makers originally met her at a centre for young vulnerable adults. She does not have, and did not have, capacity to give informed consent either to her participation in the programme or to the broadcast itself. She apparently has an IQ of 63, and it has been confirmed by Dr McGrath that she suffers from a mental disorder within the meaning of the Mental Health Act 1983 (and also a “mental impairment” within the meaning of the Mental Capacity Act 2005, which is not yet in force).
T is thus represented by the Official Solicitor, who seeks to protect her interest by preventing the intrusion upon her privacy which would be inherent in the broadcast.
The test to be applied in these circumstances is to be found in s. 12 of the Human Rights Act 1998 and, to a large extent, in the decisions of the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457 and Re S (A Minor) [2005] 1 AC 593. It is also now necessary to take into account the decisions of the European Court of Human Rights, including Z v Finland (1997) 25 EHRR 371 and Von Hannover v Germany (2006) 43 EHRR 7.
The first question to ask is whether T's Article 8 rights under the European Convention are engaged and as to that there is not, and could not be, any dispute. It then becomes a question of carrying out a parallel analysis, which involves applying an “intense focus” to the particular facts of the case. The court has to perform what has been described as the “ultimate balancing exercise” as to whether in these circumstances her Article 8 rights, should, or should not, take priority over the Article 10 rights of the BBC and other persons involved in the making and broadcast of the programme.
It is submitted by Mr Warby QC, on behalf of the BBC, that there is a preliminary stage to go through; that is to say, that I should first decide whether it is in the best interests of T for the programme to be broadcast or not. Only if I decide that it is not, should I then go on to perform the balancing exercise described above. I accept, of course, that T's best interests will fall to be considered in the carrying out of the parallel analysis, but I reject the need to go through a first stage devoted to determining that question in isolation. My attention was drawn to a particular passage in the judgment of Dame Elizabeth Butler-Sloss P (as she then was) in Re A Local Authority Inquiry: Restraint on Publication [2004] Fam 96 at [97], which would appear to bear out that approach. It was also recognised by Lord Steyn in Re S at [23] that the older authorities explaining the inherent jurisdiction of the court or parens patriae jurisdiction (normally, of course, exercised in the Family Division) will not normally nowadays need to be consulted, since the correct approach in the light of the Human Rights Act 1998 is to address the particular problem by balancing competing Convention rights in the way that their Lordships described.
I also reject the idea that I must try and predict outcomes in order to quantify the risks to T's welfare. There is expert evidence before me in the form of two reports from Dr McGrath, who attended the hearing and was cross-examined by Mr Warby for the BBC. The following extracts under “psychological impact” are important:
“… I believe that it is inevitable that both involvement in the filming process and showing the documentary will cause [T] considerable distress.
What I meant to suggest by my comment was that [T] is an extremely vulnerable woman with very poor coping strategies who is often overwhelmed by problems and difficulties in her life and who may well respond to such problems with extreme distress and self-harming behaviour.
To this extent her involvement in the documentary should be considered as simply one more such problem and would not in itself be a major cause of long-term psychological damage or mental distress over and above that which she has already...
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Table of Cases
...Pty Ltd v McDonald, [1979] 2 N.S.W.L.R. 796 ............................... 218 T v. he British Broadcasting Corporation (BBC), [2007] EWHC 1683 (QB) .............. 400, 401 Takefman c. Bier, 2010 QCCA 486 .................................................................................203,......
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Invasion of Privacy/Misuse of Private Information
...BBC, [2009] EWHC 3151 (Ch) Murray v. Big Pictures (UK) Ltd, [2008] EWCA Civ 446 Mosley v. News Group, [2008] EWHC 1777 (QB) T v. BBC, [2007] EWHC 1683 (QB) at para. 15 Aziz v. Aziz & Ors, [2007] EWCA Civ 712, [2008] 2 All E.R. 501 Browne v. Associated Newspapers Ltd. Rev 1, [2007] EWCA Civ ......