England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE JOWITT)

		Royal Courts of Justice Strand London WC2
		18 November 1996

THE MASTER OF THE ROLLS: This is a renewed application for leave to apply for judicial review in relation to an adjudication of the Press Complaints Commission. The initial application was considered by the single judge and refused. It was then renewed before Jowitt J who, having given a judgment explaining his reasons, also dismissed the application.

I would like to express particular appreciation to Mr Beloff and those who instruct him on this matter. I note from correspondence put before the court that they are both acting on a pro bono basis, without charge, in relation to the application to this court. It is a matter of some importance, especially where issues of this nature arise, that where legal aid is not available members of the Bar and experienced firms of solicitors should enable the matter to be properly presented before the court. The court is very appreciative of the course that has been adopted in this case.

The application arises out of a publication in The Sun newspaper on 26 July 1995. The publication contained an article relating to the applicant, Ian Brady, who was convicted of murder and is now a patient at the Ashworth Hospital. The effect of the article was that he was being treated in a way which was wholly inappropriate having regard to the very serious crimes which he had committed. No complaint, however, is made about the article. Although Mr Beloff certainly does not approve of its contents, he accepts that he cannot say that there was any justification for complaining about the article. His complaint is that the article has alongside it a substantial photograph of the applicant, albeit a photograph which is indistinct and does not show Mr Brady clearly.

The treatment by the media of those who are detained at secure hospitals, such as Ashworth Hospital, is a matter of concern to those who have the difficult task of looking after the patients in those hospitals. They have found in the past that there has been conduct of the media which does not make sufficient allowance for the fact that many of those patients may be in a highly unstable mental condition and are vulnerable.

In this case the complaint relied on breaches of three different clauses of the Code of Practice which governs the decisions of the Press Complaints Commission: clause 4 which deals with privacy; clause 6 which deals with hospitals; and clause 8(ii) which deals with harassment. Mr Beloff submits that this application is primarily concerned with privacy. The correct way to look at the other complaints is that they are not "free-standing" complaints, but complaints which merely support the complaint of contravention of the code in so far as privacy is concerned.

The terms of the clauses referred to are as follows:

"4. Intrusions and enquiries into an individual's private life without his or her consent including the use of long-lens photography to take pictures of people on private property without their consent are not generally acceptable and publication can only be justified when in the public interest."

There is then a definition of "private property" which includes:

"....parts of a hospital or nursing home where patients are treated or accommodated."

I have no doubt that that definition is capable of applying to a special hospital such as Ashworth Hospital.

Clause 6 provides:

"(i) Journalists or photographers making enquiries at hospitals or similar institutions should identify themselves to a responsible official and obtain permission before entering non-public areas.

(ii) The restrictions on intruding into privacy are particularly relevant to enquiries in hospitals or similar instructions."

I agree with Mr Beloff that, so far as this particular application is concerned, clause 6 does not add anything to the complaint under clause 4. So far as harassment is concerned, clause 8(ii) provides:

"Unless their enquiries are in the public interest, journalists should not photograph individuals on private property without their consent; should not persist in telephoning or questioning individuals after having been asked to desist; should not remain on their property after having been asked to leave and should not follow them."

It seems to me that that clause is relevant in that it is quite specific that individuals are not to be photographed on private property without their consent.

The adjudication of the Press Complaints Commission is in these terms:

"The provisions of the Code of Practice upheld by the PCC which relate to the privacy of individuals in hospitals or similar institutions are designed to prevent distress and unwanted publicity for those who, because of their illness, may be in a vulnerable position. However, as well as being a patient at Ashworth, Ian Brady is also a notorious child murderer - a matter in itself which justifies scrutiny of him in the public interest - and the Commission noted that the indistinct photograph of him published by The Sun was only able to be taken as he was in a position from which he could be photographed.

In the particular circumstances of this case the Commission took the view that the publication of the photograph of Ian Brady was not a matter which warranted censure under the Code."

Mr Pannick, who appeared before us although this was merely a renewed application for leave, indicated that that adjudication has to be contrasted with other adjudications in other cases where the Press Complaints Commission make a clear finding as to whether there is a breach or not and, having done so, go on to indicate what is to be the result. In his single submission, in answer to a question by the court, Mr Pannick indicated that this particular adjudication is quite capable of being regarded as one where the Press Complaints Commission came to a conclusion as to whether censure was warranted without actually making a formal determination as to whether or not there had been a breach of the Code.

It seems to me that if the Press Complaints Commission regarded that as an appropriate course, it is one with which they are perfectly entitled to adopt and one with which this court would not interfere even if the Commission are subject to judicial review. It seems to me that there can be many situations where it is convenient that they should adopt that course. Their task is, above all, not a technical one; it is to deal with the substance of what has occurred. If the situation is such that there is room for argument as to whether there has been a technical breach, it will be preferable, if they are clearly of the view that no censure is required, to say so without going into detail as to whether or not there is a breach of the Code.

Having said that, I should make clear that in this case the Press Complaints Commission had taken the unusual course of not only instructing counsel to attend on the renewed application, but had also helpfully provided a skeleton argument. From that skeleton argument it is apparent that the Press Complaints Commission reserves its position as to whether or not they are a body which is subject to judicial review. However, I adopt the exactly the same approach as the single judge, and Jowitt J, of assuming that there is a jurisdiction. In my judgment it is at least arguable that the Press Complaints Commission is a body which is subject to judicial review. Whether or not it is subject to judicial review should be determined in a case after full argument and not on an application of this sort which is only for leave.

Mr Pannick, on behalf of the Commission, also indicated in his skeleton argument that he wished to raise a question as to whether or not there had been delay in this case which would disentitle the applicant to proceed by way of judicial review. Again, on consideration of an application for leave, I would not have dreamt of rejecting this application for leave on the grounds of delay if it otherwise had merit, albeit I do attach very great importance to applications such as this being pursued as expeditiously as possible. There are difficulties in pursuing these matters when the person is in the applicant's position, and the court's discretion is wide enough to take into account those circumstances in considering an application for leave.

I therefore turn to the merits of the application and ask myself whether there is an arguable case which would justify the granting of leave. Mr Beloff, as I understand his argument, is saying that prima facie the publication of this photograph is a contravention of the Code. It is a contravention in particular of clause 4 which says that such publication is not generally acceptable because it was taken with long-lens photography at a time when the applicant was in a hospital and also on private property.

Mr Beloff submits that that being so it can only be justified if the publication was in the public interest. He says that when you look at the decision itself two matters are relied upon. One is to the effect that, like The Sun newspaper, the Press Complaints Commission was saying that because of the crimes that he had committed, the applicant had forfeited any right to protection from the Code. That was a position which The Sun newspaper was undoubtedly taking. If that was what the Press Complaints Commission were doing (putting it the other way round) I would have regarded them as undoubtedly misdirecting themselves as to the Code. It seems to me that in putting that argument forward Mr Beloff is reading more into the adjudication than he should.

One has to remember the background to the matter. The article itself was one about which no complaint could be made. It was an article which was justified because there is a public interest in how people who have committed crimes of this sort are being treated. If they were being treated in an excessively luxurious way, that would be something the public were entitled to know. One asks oneself if the fact that this photograph is alongside the article changes that position.

The Commission notes that it is an indistinct photograph and that Mr Brady was in a position where he could be photographed. The fact that he was in a position that he could be photographed does not mean to say that there was not a breach of the Code. However, it was relevant because there can be different situations in which a photograph can be taken on private property. On the one hand you might have someone who intrudes onto private property, looks through a window and takes a photograph so that any privacy of the individual concerned is completely removed. There can be other situations where there still is an intrusion onto private property but the intrusion is of a different dimension. As I read the adjudication, what the Commission said is capable of indicating no more than the type of intrusion which happened in this particular case. It seems to me that was a matter which was relevant because of the allegation of harassment, quite part from the allegation of a breach of requirements as to privacy. With regard to those arguments, it seems to me a complete answer to the application for leave that when you look at the adjudication and bear in mind that there was no express finding of a breach of the Code, this is a case where the Commission could certainly have come to the conclusion that whatever be the circumstances, whether there was a breach or not, the breach would not be one which warranted censure under the Code. If there was a breach, in the circumstances of this case it was certainly not a serious breach; it was one which, so far as the applicant was concerned, would not affect him any more than if the newspaper concerned had taken a photograph from its library and used that to illustrate the article.

In my judgment, it is very important that where you have a body, such as the Press Complaints Commission, that if the court has any jurisdiction over them, it is reserved for cases where it would be clearly desirable for this court to intervene. The court will not get into a position where it adopts a technical interpretation of the Code of Practice and then relies on that technical interpretation as justification for intervening.

Looking at the matter as a whole, I do not think there is any prospect of this application succeeding and therefore I would dismiss it.

LORD JUSTICE MILLETT: I agree. In my view the starting point is that there was no objection to the article itself, the publication of which must be taken to have been justified in the public interest. The sole objection was to the use of the photograph of Mr Brady to illustrate the article. The photograph itself is an indistinct, half-length photograph of Mr Brady, shown in profile, not obviously in private or on private property. While objection might be taken to the way the photograph was obtained, no objection could reasonably be taken to what is actually depicted in the photograph.

The particular circumstances of the case to which the Press Commission referred seem to me to be three-fold: first, that the photograph was used to illustrate an article which was published in the public interest; secondly, the photograph itself was indistinct and was not in itself objectionable; and, thirdly, that it was taken without intrusion or harassment or any exploitation of the vulnerability of the subject. In those circumstances, the conclusion of the Press Complaints Commission that the publication of the photograph did not warrant censure is, in my view, one to which the Press Commission was entitled to come. I, too, would refuse leave.

LORD JUSTICE POTTER: I agree with both the preceding judgments.

Order: Application refused.