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Cite as: (1997) 24 EHRR CD38, [1997] ECHR 180, 24 EHRR CD38

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AS TO THE ADMISSIBILITY OF

Applications No. 27436/95 and No. 28406/95
by Ian STEWART-BRADY
against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the applications introduced on 14 March 1995 and 29 June 1995 respectively by Ian STEWART-BRADY against the United Kingdom and registered on 31 May 1995 and 1 September 1995 respectively under files No. 27436/95 and No. 28406/95; Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the Commission's decision of 18 January 1996 to join the applications;

- the observations submitted by the respondent Government on 22 April 1996 and the observations in reply submitted by the applicant on 14 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1938. He is detained in Ashworth Special Hospital. Before the Commission he is represented by Mr. Robin Makin, solicitor of E. Rex Makin & Co., Liverpool.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The particular circumstances of the case

In 1966 the applicant was convicted of murdering three children and was given a triple life sentence. He is detained in Ashworth Special Hospital in Liverpool, having been transferred there subject to a direction in 1985, under the Mental Health Act 1983. He suffers from chronic paranoid psychosis and from depression.

In 1993 a book written by H. was published under the title "The Devil's Daughter" ("the book"). It was based upon the pretence that H. was the applicant's daughter. The book included numerous letters falsely attributed to the applicant.

In January 1994 H. visited the applicant. The visit took place in the interview room with constant staff supervision. Subsequently H. tried to sell her story describing this visit to a newspaper. However, after she had admitted that the facts invoked in the story were false, the newspaper refrained from publishing it.

H. then sold the story to a national newspaper ("the newspaper"). The story was published on 12 June 1994, under the title "Brady abused me in jail says his `daughter'". The article included allegations that H. had undergone a "sex ordeal" with the applicant who had "tried to molest" her in his top security cell, that he had "clumsily tried to seduce her" and had "grabbed [her] face and stuck his tongue down [her] throat".

It is asserted by H. that before publication she had informed the newspaper that the allegations were in fact untrue. Subsequent to the publication of the article, the applicant's mental state deteriorated significantly. A psychiatric report indicated that this deterioration was caused by the publication of the article.

The applicant was granted legal aid to seek, inter alia, damages for malicious falsehood as regards the article published on 12 June 1994. The newspaper strongly criticized this fact in an article entitled "Moors Killer Cash Scandal" which was published on 28 August 1994.

The applicant brought an action against the newspaper. He alleged that the article published on 12 June 1994 was untrue and that it had been published maliciously, in that the publisher knew the allegation to be untrue or was reckless as to its truth.

The applicant asserted that he had suffered actual financial loss in that he had incurred personal expenses amounting to £71.50 in order to seek redress. He also alleged that the words in the article were likely to cause him pecuniary damage through the loss of privileges which he enjoyed at the Ashworth Hospital and which comprised the right to receive visitors, gifts and the discretionary weekly allowance of £8.15 paid as a reward for work. Finally, the applicant alleged that he had suffered anxiety, distress and injury to his feelings.

On 4 November 1994 the High Court rejected the applicant's request for an interim injunction to restrain the newspaper from publishing further material disparaging the applicant.

On 12 December 1994 the High Court, sitting in the hospital where the applicant is detained, struck out the applicant's claim. In the court's view, the applicant had no arguable claim that the publication had caused or was "calculated" (in the sense of "likely") to cause him financial loss. As regards the discretionary weekly allowance, the applicant could not show that the withdrawal of the allowance was a likely consequence of the publication. Further, neither a possible deprivation of the other privileges nor the expenditure actually incurred by the applicant in order to seek redress could come within the meaning of financial loss as understood in the law of malicious falsehood. The court, having found the applicant had suffered no financial loss as understood in the law of malicious falsehood, went on to hold that:

"Of course, this action in malicious falsehood cannot be brought
to maintain a reputation or to recover damages for insults to
reputation or to feelings."

Leave to appeal was refused, but the time for applying to the Court of Appeal for leave to appeal was extended to 14 February 1995, in order to enable the applicant to make an application to extend his legal aid certificate.

On 26 January 1995 the Liverpool Legal Aid Area Office refused, contrary to Counsel's advice, to extend the legal aid granted to the applicant to cover an application for leave to appeal against the judgment of 12 December 1994. In the view of the Legal Aid Area Office the costs of further pursuing the proceedings were likely to exceed the value of any benefit to be gained, and the prospects of success of the proceedings were not such as to justify the granting of legal aid. On 23 February 1995 the Area Committee upheld this decision.

The applicant also sought to obtain legal aid to bring proceedings against the publishers of the book "The Devil's Daughter". According to Counsel's advice of 28 March 1995 it was not open to the applicant to bring proceedings in malicious falsehood (due to the decision of the court in the case against the newspaper) or an action for libel (due to the pre-existing infamous reputation of the applicant), and any likely award of damages in an action in false attribution would be so small that legal aid would not be granted, applying the test of reasonableness. The applicant did not obtain legal aid.

B. The relevant domestic law and practice

There is no general right of privacy in the law of the United Kingdom.

A defamatory statement involves the publication of any imputation which tends to lower an individual in the estimation of right thinking members of society generally, which tends to bring a person into hatred, contempt, ridicule or would tend to cause the person to be shunned or avoided.

Where a defamatory statement is made in a permanent form, the person concerned can bring an action for libel.

The law of malicious falsehood requires a plaintiff to prove that the words were false, that they were published maliciously and that special (pecuniary) damage has followed as a direct and natural result of their publication.

Pursuant to Section 3 (1) of the Defamation Act 1952 it is not necessary to allege or prove special damage in an action for malicious falsehood if the words upon which the action is founded are "calculated" (i.e. likely) either to cause pecuniary damage to the claimant and are published in writing or other permanent form or to cause pecuniary damage to the claimant in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

Under Schedule 2 Part II of the Legal Aid Act 1988 legal aid is not available for proceedings wholly or partly in respect of defamation.

Pursuant to Order 80 Rule 1 of the Rules of the Supreme Court a person who, by reason of mental disorder within the Mental Health Act 1983, is incapable of managing and administering his property and affairs is a person under a disability for the purpose of civil proceedings in the United Kingdom.

Under Rule 2(1) and 2(3) of the aforesaid Order a person under a disability may not bring or make a claim in any proceedings except by his next friend who must act by a solicitor.

The High Court has inherent jurisdiction to make orders deemed to be in the welfare of children. Such orders have been made to protect the illegal or otherwise potentially damaging attention of the media afforded to children who have been convicted of murder. There is no inherent jurisdiction to act in similar circumstances in the welfare of persons under mental disability.

COMPLAINTS

The applicant alleges a violation of Article 3 of the Convention, in that the United Kingdom authorities failed to protect him adequately against degrading treatment to which he was exposed by the media.

The applicant further complains that, because of the bar on legal aid for defamation proceedings, he was unable to bring an action for libel. He alleges that he was thus deprived of access to a court as guaranteed by Article 6 para. 1 of the Convention.

In the applicant's view the United Kingdom also failed to comply with the positive obligation under Article 8 of the Convention, to ensure respect for his private life.

Under Article 13 of the Convention, the applicant complains that there was no remedy available to him under the domestic law.

Finally, he alleges a violation of Article 14 of the Convention in that as a mentally incapacitated person without means he was not granted the same protection of his Convention rights as the majority of the population enjoy. He also complains that the welfare of people under a mental disability is not protected in the same way as that of children in similar circumstances.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 27436/95 was introduced on 14 March 1996 and registered on 31 May 1996. Application No. 28406/95 was introduced on 29 June 1995 and registered on 1 September 1995.

On 18 January 1996 the Commission decided to join and communicate the applications to the respondent Government.

The Government's written observations were submitted on 22 April 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 14 June 1996.

On 21 May 1996 the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains that the United Kingdom authorities failed to protect him adequately against inhuman and degrading treatment to which he was exposed by the media, and that this constituted a violation of Article 3 (Art. 3) of the Convention.

The Commission notes that the Government had no involvement in the alleged defamatory publications. However, even assuming that State responsibility was engaged, the Commission considers the complaint under Article 3 (Art. 3) of the Convention to be manifestly ill-founded for the following reasons.

Article 3 (Art. 3) of the Convention provides:

"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."

The Government state that the nature and gravity of the allegations in the newspaper article and the book, were not sufficiently serious to amount to "torture or to inhuman or degrading treatment", within Article 3 (Art. 3) of the Convention.

The applicant states that he endured and was unable to prevent a widely publicised false attack upon his private life. He complains that in consequence of these false publications he suffered a deterioration of his mental state.

The Commission recalls that:

"ill-treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3 (Art. 3). The assessment
of this minimum is, in the nature of things, relative: it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and in some cases, the
sex, age and state of health of the victim, etc." (Eur. Court
H.R., Ireland v. United Kingdom judgment of 18 January 1978,
Series A no. 25 p. 65, para. 162).

The Commission accepts that the applicant may have been adversely affected by publications he considered defamatory. However the Commission considers in the circumstances of the present case that the adverse consequences of the publication of such alleged defamatory information cannot be said to attain the level of severity required in order to constitute a breach of Article 3 (Art. 3).

It follows that this part of the applications is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains that the fact that he was unable to seek any legal remedy in respect of the alleged false and defamatory publications constituted a breach of the Government's positive obligation to secure the right to respect for his private life as guaranteed by Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.

2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."

The Government deny that the applicant suffered any invasion of his privacy. They further submit that, although there is no general cause of action for breach of privacy in English law, the right to privacy is fully protected by a system of specific remedies. In the context of false or defamatory publications, proceedings for defamation, malicious falsehood and false attribution of authorship are all prima facie available.

The applicant submits that defamatory articles and books containing false information about himself constituted an interference with his private life, for which there was no legal remedy available. The applicant further submits that the Government have failed to act to protect him, as a vulnerable mental patient, from such publications.

The Commission notes that there is no question in the present case of any involvement by the respondent Government in the contentious publications. In limited circumstances the Convention will impose a positive obligation on a High Contracting Party to protect the right to respect for private life (see Eur. Court H.R., X and Y v. the Netherlands judgment of 26 March 1995, Series A no. 91 p. 11, para. 23). While it is true that in English law there exists no actionable right of privacy as such, the right is not without protection, in particular through the law of defamation and malicious falsehood. The applicant complains that he was unable to bring an action for libel since he required legal representation and since legal aid is unavailable for such proceedings. However, the Commission notes that the applicant had been advised by counsel that an action in libel would in any event be likely to fail, having regard to the applicant's pre-existing reputation as a notorious murderer. The Commission further notes that the applicant was granted legal aid to pursue an action for malicious falsehood but that the action failed since the applicant was unable to show that he had suffered financial loss as a result of the publications. The fact that the applicant could not in the particular circumstances of his case succeed in establishing either cause of action does not in the view of the Commission cast doubt on the effectiveness of the remedies in providing protection for private life. The Commission therefore concludes that the case does not disclose a failure to respect the applicant's rights under Article 8 (Art. 8) of the Convention.

It follows that this part of the applications is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains that, as a result of legal aid being unavailable, he was denied access to court in order to challenge the false nature of the publications.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant:

"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."

The Government state that the unavailability of legal aid for defamation proceedings, in the circumstances of the present case, does not amount to a denial of effective access to court as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. They note that legal aid was available and was granted to the applicant to take proceedings for malicious falsehood against the publishing newspaper in respect of the article, and was only discharged after the claim was struck out by the court and the Legal Aid Area Office considered the prospects of success at appeal did not justify further public expenditure. With regard to the book, the Government note that legal aid was granted to obtain counsel's opinion. It was on receipt of that opinion, which considered that any likely award of damages would be modest, that legal aid was refused.

The applicant states that he was denied effective access to court. He complains that his mental state suffered as a result of the publications and that compensation for such damage was not recoverable in proceedings for malicious falsehood or false attribution of authorship. Legal aid is not available to any person for proceedings in defamation, however the applicant argues that as a mental patient he had to be represented by a next friend acting by a solicitor and was thus even denied the possibility of appearing as a plaintiff in person.

The Commission notes that Article 6 para. 1 (Art. 6-1) does not guarantee a right to free legal aid in all civil cases. However in the Airey case (Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32 p. 12, para. 24), the Court decided that the right of access to court guaranteed by Article 6 para. 1 (Art. 6-1) is a right which is "practical and effective" and not merely "theoretical and illusory". The Court held that as regards civil litigation:

"... Article 6 para. 1 (Art. 6-1) may sometimes compel the State
to provide for the assistance of a lawyer when such assistance
proves indispensable for an effective access to court either
because legal representation is rendered compulsory, as is done
by the domestic law of certain contracting states for various
types of litigation or by reason of the complexity of the
procedure or of the case." (p. 15, para. 26)

The Commission notes that because the applicant was under a mental disability, legal representation was compulsory if he was to bring proceedings. The applicant wished to bring libel proceedings, however legal aid is not available for such proceedings. Thus prima facie the Commission acknowledges there could be a potential problem of access to court.

The Commission notes that the applicant was given legal aid to seek legal advice on other possible proceedings in relation to the same publications. In the case of the newspaper article he was given legal aid to bring proceedings in malicious falsehood and subsequently legal assistance to defend the newspaper's ultimately successful application to strike out the case (the applicant was unable to show significant financial detriment which was a necessary element in such proceedings). In addition legal aid was granted to the applicant to obtain counsel's opinion as to the possibility of bringing proceedings in relation to the publication of the book.

Further, the applicant was infamous as a murderer prior to publication of the defamatory material complained of. Counsel had advised, in relation to the possibility of bringing proceedings in relation to the book, that by virtue of the applicant's reputation he had no realistic cause of action in libel. The applicant would have faced the same difficulty in respect of a libel action against the newspaper. In these circumstances and given the limited financial resources of any civil legal aid scheme, the Commission considers that it has not been shown that the absence of legal aid for defamation proceedings by the applicant in relation to either the book or the article was arbitrary.

In relation to the specific refusal of the legal aid board to fund the appeal against the striking out of the applicant's claim in respect of the article and the refusal to fund proceedings for false attribution of authorship, both of these decisions were made on the bases of there being no reasonable prospects of success and the costs of funding litigation being disproportionate to any likely damages to be awarded. The Commission does not consider such refusal for legal aid to be arbitrary and as such the refusals cannot be criticised as constituting a denial of access to court as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention (see X v. the United Kingdom, No. 8158/78, Dec. 10.7.80, D.R. 21, p. 95 at p. 101, para. 16).

Thus in the circumstances, the Commission considers that the applicant was not denied right of access to court.

It follows that this part of the applications is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant complains under Article 14 (Art. 14) of the Convention that he as a convicted murderer and a person suffering from a mental disability was subject to discrimination in breach of Article 14 (Art. 14) of the Convention.

Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."

The Government deny that there has been any discriminatory treatment of the applicant. They further submit that the fact that the applicant, being under a mental disability, was obliged to act by a next friend with the assistance of legal advice, constituted a legitimate restriction on the access to court.

The applicant considers he has been subject to discriminatory treatment by virtue of his status as a person under a mental disability and a convicted murderer. He further claims that the powers of the High Court to restrict media attention, available in respect of children who have been convicted of murder, should be extended to offer the same protection to adults under a mental disability.

The Commission recalls that access to court may be subject to limitations (See Eur. Court HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). The Commission considers that the fact that persons suffering from a mental disability face a particular restriction, namely that they act by a next friend who must be represented by a solicitor, does not constitute a denial of access to court. As such the facts of the present case disclose no discriminatory treatment of the applicant and thus no appearance of a violation of Article 14 (Art. 14) of the Convention.

The allegation of discrimination, based on a comparison with children convicted of murder, is a comparison of two different factual situations and as such discloses no discrimination under Article 14 (Art. 14) of the Convention (See Eur. Court HR, Belgian Linguistic judgment of 23 July 1968, Series A no. 6, pp. 33-34, paras. 9-10).

It follows that this part of the applications is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicant complains that he had no effective access to a court to protect his interests and that this constituted a violation of Article 13 (Art. 13) of the Convention.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."

The Government repeat their submissions made in relation to Article 6 para. 1 and Article 8 (Art. 6-1, 8).

The applicant complains that his rights under the Convention had been violated and that he had no effective remedy in the domestic courts.

The Commission recalls that the guarantees of Article 13 (Art. 13) of the Convention apply only to a grievance which can be regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention. For similar reasons, they cannot be regarded as "arguable".

It follows that this part of the applications is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATIONS INADMISSIBLE.

M.F. BUQUICCHIO Secretary to the First Chamber
J. LIDDY President of the First Chamber