England and Wales High Court (Administrative Court) Decisions

T & Ors v Mental Health Review Tribunal & Anor [2002] EWHC 247 (Admin) (22nd February, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd February 2002

Mr Justice Scott Baker:

1. The Claimant, to whom I shall refer as T, is the former partner of G who was detained in a psychiatric hospital pursuit to Sections 37 and 41 of the Mental Health Act 1983. In December 1988 T gave birth to a child of whom G was the father. In January 1994 T and G separated and T obtained an injunction restraining him from molesting her and going to her house. G was allowed contact with the child and one evening took him to the house where he was living with his parents. Overnight G strangled two members of his family. He was arrested and charged with murder but the charge was reduced to manslaughter when the Crown accepted a plea of guilty on the ground of diminished responsibility. The judge made a hospital order as I have indicated.
2. This claim for judicial review is against the decision of the Mental Health Review Tribunal who declined to give T a copy of the tribunal’s decision. The tribunal met on 2 and 3 April 2001 and ordered a deferred conditional discharge. By letter of 25 May 2001 T asked to know the conditions imposed on G and the reason for deferral. The relevant part of the decision letter written by the clerk to the tribunal on 4 June 2001 said:

“…. I am afraid I am unable to provide the information you have requested. As you are aware the Mental Health Review Tribunal that considered the interim application on 6 February 2001 declined to make (T) a party to any subsequent hearing and therefore she was not entitled to receive a copy of the decision of the tribunal following the full hearing which took place on 2 April 2001 and 3 April 2001.

I must also be mindful of the legal guidelines which protect the privacy of the tribunal proceedings and which determine what information may be made public. In Pickering v Liverpool Daily Post and Echo Newspapers PLC (1991) reference is made to Section 12 of the Administration of Justice Act 1960 and Rule 21(5) of the Mental Health Review Tribunal Rules 1983, the combined effect of which is that the information you require, namely the conditions imposed on (G) and the reason for deferral, may only be given to a party to the tribunal hearing”

3. T makes it clear in her evidence that she has a continuing fear of G believing he poses a threat to her life. She says she has no doubt that had she been in the vicinity of G’s mother’s home when the offences were committed she too would have been killed. She says she is seeking as much information as possible “both as a victim and a potential victim.” She hopes that in seeking the information she will be able to live her life in less fear of G committing reprisal attacks against her and that she can take steps to ensure she does not as she puts it “ (have) to be in the same area as (G)”
4. I have a good deal of sympathy for T whose feelings can readily be understood. The question, however, is one of what rights in law a victim has in circumstances such as this.
5. It is necessary to refer briefly to the background. There have been a number of articles in the press and media the purport of which is that G is not safe to be released.
6. It is suggested that T has been encouraging this, a fact denied by T. Last year T made an unsuccessful attempt to participate in the proceedings before the Mental Health Review Tribunal. The tribunal refused her application to be joined as a party. She applied for permission to apply for judicial review of that decision. Her application was refused by Sullivan J on the papers on 21 February 2001 and subsequently by me following an oral hearing on 27 February 2001. When the tribunal, on 6 February 2001, refused her application to be joined as a party it did so on the basis that there was provision in the Mental Health Review Tribunal Rules 1983 (Rule 14(2)) for T to submit evidence in writing either through her solicitor or by interview by a social worker. Judge Hall, the president of the tribunal, said the tribunal was of the firm view that she could put her views before it very effectively by way of a written statement.
7. On 26 February T’s solicitors wrote to the tribunal enclosing a copy of her statement and asking for it to “be placed on the file in accordance with the directions of Judge Hall.” Most unfortunately the tribunal did not have it when the hearing took place on 2 and 3 April. Consequently the tribunal did not consider its contents. Presumably it was either lost in transit or in the tribunal office. The tribunal’s response is that it was well aware of her views and concerns both from the hearing on 6 February and from the media interviews which she had given and of which transcripts were before the tribunal at the hearing in April.
8. It is unfortunate that the circumstances relating to the statement were not properly appreciated until shortly before the present hearing. One might have thought, bearing in mind the previous history, that the tribunal would have inquired about the absence of the statement at the April hearing. On the other hand, the tribunal expressly made the point in its acknowledgment of service that she did not file any statement, albeit it was able to ascertain her views from other documents. Despite this, the absence of the statement was not picked up by those advising the Claimant for many months.
9. Miss Richards, for the tribunal, submits that the absence of the statement makes no difference to the outcome of the present application because the question is one of law and even if the tribunal had had and considered the statement it would not, indeed could not, have made any different order.

The Legal Framework

10. Mental Health Review Tribunals are established under Section 65 of the Mental Health Act 1983 which provides that there shall be tribunals for the purposes of dealing with applications and references by and in respect of patients under the provisions of the Act.
11. The functions of the tribunals are set out in Part V of the 1983 Act. Their primary function is to decide whether to discharge a patient who is liable to be detained in hospital. Restricted patients are governed by Section 73, which refers back to Section 72. The tribunal is required to discharge the patient absolutely if it is satisfied of the matters in Section 72(1)(b)(i) or (ii) and that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment. If the tribunal is satisfied of the former, but not the latter, it is required to direct the conditional discharge of the patient. Where a patient is conditionally discharged he is liable to recall to hospital and is bound to comply with any conditions imposed (which may be imposed either at the time by the tribunal or subsequently by the Secretary of State). By subsection (7) of Section 73 a tribunal may defer a direction for a conditional discharge until the necessary arrangements are in place.
12. Section 77(1) provides that no application shall be made to a Mental Health Review Tribunal by or in respect of a patient except at such time and in such places as are expressly provided by the Act.
13. The Mental Health Review Tribunal Rules 1983 (S.I 1983 No. 942) set out the procedure for making applications to Mental Health Review Tribunals and for hearings before them. The relevant rule in the present case is Rule 21(5) which provides that:

“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.”

14. Rule 21 is headed “ Privacy of Proceedings” and the first four subsections are directed to the sitting of the tribunal which is, save in circumstances set out in paragraph (1), in private. Mr Simblet, for the Claimant, argues that the wording of Rule 21(5) is such that on its plain meaning the tribunal has a discretion whether to make public the information that his client seeks. The tribunal never exercised that discretion in this case and its refusal to give the information was therefore unlawful. Miss Richards argument is that the tribunal is a creature of statute and as such has no inherent jurisdiction. Its powers are limited to the powers given to it by the statue that created it namely the Mental Health Act 1983. The tribunal’s functions, she submits, do not extend beyond the determination of the patient’s application. The exercise being carried out by the tribunal is patient driven and not victim driven. Dissemination of information about the patient G to the victim T is not something that is even arguably required to enable the tribunal to carry out its function properly. No power or function can be found in the 1983 Act that would entitle the tribunal to disclose information about a patient to a third party. The only peg on which T can found her claim is Rule 21(5) and, submits Miss Richards, the rules must be read subject to the limitations of the statute.
15. Miss Richards also pointed out that when the tribunal refused to disclose the information sought the order I made on 27 February 2001 was in force. It provided that there was to be: “no publication of any information that would identify the Claimant Ms T or the patient Mr G. In particular there should be no publication of:

a) the details of Mr G’s offence that led to his detention save that he was convicted of manslaughter;

b) the location of Mr G’s offence;

c) Mr G’s present location save that he is in hospital;

d) Ms T’s residence;

e) the identity of those providing care and treatment to G.

16. Although that order was directed towards publicity arising from the judicial review proceedings, Miss Richards submitted that the tribunal was bound to have regard to it in deciding whether to accede to T’s request, assuming of course it had the jurisdiction to do so.
17. I observe in passing that what my order does not prohibit, is the publication of any condition that G is not permitted to enter a particular locality or communicate or attempt to communicate with T. Accordingly there is no reason why my order should have deterred the tribunal from disclosing a condition of such a nature were they minded to do so.
18. The tribunal in refusing to furnish the information relied on Pickering v Liverpool Daily Post and another [1991] 2 AC 370. In my judgment Pickering is not authority for the proposition that the tribunal had no power to supply the information sought by T. Pickering involved an application by a patient for an injunction restraining publication of the fact that he was making an application to a Mental Health Review Tribunal, the hearing date and the tribunal’s decision. The House of Lords held it was not a contempt of court to publish the fact that a named patient had made an application to the tribunal for his discharge, the date time or place of the hearing or that he had been released from detention. While publication of the evidential and other material on which the decision was based was prohibited by Rule 21(5) as were the conditions, if any, imposed by the tribunal on the patient’s discharge, it was not a contempt to publish the fact that a direction for the patient’s discharge had been given. The focus of the inquiry in Pickering was the extent to which there was a free hand for the press to disclose details of proceedings before a tribunal.
19. As Lord Bridge pointed out at 416B the enactment that was of central importance in that case was Section 12 of the Administration of Justice Act 1960. He said of Rule 24(4) of the Mental Health Review Tribunal Rules 1960 (the predecessor of Rule 21(5) of the 1983 Rules) that the only functions of the prohibition which it imposed were first to ensure that even when the tribunal conducts a formal hearing, the cloak of privacy by which the proceedings are protected backed by the sanction of the law of contempt is not lifted unless the tribunal so directs, and secondly that the names of any persons concerned in the proceedings are within the protection of that cloak of privacy.
20. At 421D he described the central issue in the appeal and cross-appeal as the scope of the prohibition which the combined operation of Section 12 of the 1983 Act and the 1960 Rules imposed on the publication of information relating to proceedings before a Mental Health Review Tribunal.
21. It is true that Lord Bridge said at 424H that any conditions imposed by a tribunal seemed to him to belong within the area of matters relevant to the patient’s mental condition, which ought from their nature to remain subject to protection from publication. But he was in my view, there referring to the general umbrella of protection; he was not saying the tribunal could never direct its publication. Nor was anything said in Pickering about the category of persons to whom the information might or might not be given. In other words Lord Bridge did not say anything about the ambit of the discretion given by the words “except in so far as the tribunal may direct.”
22. Miss Richards does not found her argument on Pickering. Rather she founds it on the purpose of the Mental Health Review Tribunals, which she submits are concerned primarily with the machinery for releasing patients (see Section 65(1)). They are not concerned with those who might broadly be described as victims. It is not, she submits, the function of a tribunal to disseminate confidential information about patients to third parties or, having decided to discharge a patient, to take steps to promote the peace of mind or physical well-being of individual members of the public.
23. Because the tribunal is a creature of statute and has no inherent jurisdiction one has to look to its purpose to help to interpret any rules made under it. Put shortly, its functions do not extend beyond the determination of the application before it, which will ordinarily have been made by the patient. She illustrated this argument with the passage from the judgment of Lord Woolf M.R in R v Chief Constable of North Wales Police ex parte AB [1999] QB 396 at 429D:

“Nonetheless, the information having come into the police’s possession to enable them to perform their functions as a public body they were entitled to use that information when this was reasonably required to enable them to carry out their functions”

24. She argues that supplying the kind of information that T seeks cannot possibly be said to be something that is reasonably required to enable the tribunal to perform its functions.
25. It is, I think, necessary to pause and consider precisely what it is that T is seeking. In paragraph 12 of the grounds of her application this is expressed as:

i) The current level of risk that G is thought to pose;

ii) The conditions of discharge in particular:

a) any limitation on G’s residing in a particular locality;

b) any conditions of treatment;

c) the date that he was/will be released from hospital.

26. T did not initially ask for information about the level of risk. What she asked for was (i) the conditions imposed on G and (ii) the reason for deferral. The decision under challenge is that of 4 June 2001 refusing to supply the information sought on 25 May. In her claim T expands on the particular conditions that are of interest to her and why. Ordinarily the conditions attached to a discharge will be matters that should be protected under Rule 21(5), being matters relevant to the patient’s mental condition that ought to be protected from publication, but this will not necessarily be so. It seems to me necessary to ask what need the seeker, in this case T, has for the information being sought. T’s underlying concern is her own safety and by the same token her peace of mind. The usual conditions relate to residence, supervision and medical treatment. I cannot see that the details of any supervision or medical treatment are matters in which T can have any legitimate interest. The fact that X or Y is G’s supervising Psychiatrist or that he is to have this or that medical treatment is a matter for G and not for T. Likewise, I cannot see that it will ordinarily be a matter for public knowledge where a patient is to live on his discharge from hospital. The primary concern is that the patient should be rehabilitated into the community. The issue of the protection and safety of others is a matter for the consideration of the tribunal as required by Parliament. T does not have the power to decide whether or not G should be discharged or if he is what, if any, conditions should be imposed. She was, however, in this case permitted to put her views to the tribunal. She made her written representations and (subject to the issue of their being before the tribunal) they will or should have been taken into account and, so it seems to me, someone in the shoes of T has to accept that.
27. There is, however, one matter, which may be the subject of a condition of which a victim such as T ought to know. Sometimes a condition is imposed, for obvious reasons, that a patient is not to live within a particular locality or perhaps to communicate or attempt to communicate with a particular individual. I can see no reason why information of that nature should not be made public. No harm is done to the patient and the condition gives the victim some peace of mind.
28. I return to the question of whether the tribunal has power to make public such information. The opening words of Rule 21(5) are: “except in so far as the tribunal may direct.” In literal terms this is a widely expressed discretion. Furthermore, submits Mr Simblet, it is implicit in any statutory scheme that the body undertaking it has power to disclose the terms of its own orders. But, submits Miss Richards, the wording of Rule 21(5) should not necessarily be taken at face value. She drew my attention to the Secretary of State for the Home Department v M.H.R.T and MW and F.O (unreported) 15 December 2000. In that case the question was whether the tribunal had power to adjourn under Rule 16(1) of the Mental Health Review Tribunal Rules 1983 which provides that:

“The tribunal may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate.”

29. Collins J observed that the rules have to be read subject to any limitations contained in the statute and that the rules cannot give the tribunal powers that are not given by the statute. The only purpose for which a tribunal could adjourn would be to enable it to carry out its statutory duties or powers. He pointed out that the relevant rule-making power is to be found in Section 78(2)(j) of the Act which reads:

“For conferring on the tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of exercising their functions under this Act.”

30. Collins J pointed out in paragraph 30 that the tribunal’s powers in relation to restricted patients are limited and concluded that the purpose for which the adjournment was sought was outwith the ambit of Rule 16.
31. Miss Richards argues that precisely the same situation arises in the present case, but with regard to Rule 21(5). It is no part of the tribunal’s powers or duties to make public the information sought.
32. It seems to me that the statutory source for Rule 21 is most probably section 78(2)(e) of the Act which gives power to create a rule to make provision:

“For enabling a tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the name of any of the persons concerned in such proceedings.”

33. But I do not think Section 78(2)(e) should be read in isolation from Section 78 (2)(j), which together provide the backcloth against which Rule 21(5) is to be construed.
34. Although the powers of the tribunal are patient orientated, in my judgment the ambit of Rule 21(5) is sufficiently wide to enable the making public of some of the information sought by T in this case. I am not persuaded that there is power to publicise the current level of risk and in any event such information was not sought by the Claimant last May. On the other hand, as to the conditions and reason for deferral I cannot conclude that there are no circumstances in which such information should be made public under Rule 21(5). These matters fall within the description “information about the proceedings before the tribunal” and in my judgment the ambit of the rule is sufficiently wide to entitle supply of the information if the tribunal in the exercise of its discretion thinks it appropriate to do so. How the discretion should be exercised will depend very much on the nature of the condition.
35. In my view any condition prohibiting G’s residence in a particular locality is one about which the tribunal should give careful consideration as to disclosure. It would be of inestimable benefit to T’s peace of mind to have this information and, as far as I can see, of no detriment to G. Indeed one can envisage that it may be of benefit to G that T’s concerns should, as far as possible be allayed. Likewise, I can see no reason why T should not know, if it be the case, that there is a condition prohibiting G from contacting or attempting to contact her. I am, of course, I emphasise unaware of the conditions imposed by the tribunal.
36. I should add that Miss Richards has been unable to persuade me that there is any route whereby T can find out such information other than from the tribunal.
37. My conclusion is therefore that the tribunal was wrong to conclude it had no power to accede to T’s request. It did have a discretion under Rule 21(5) and albeit it was highly unlikely it would be exercised in favour of most of the information sought, the discretion should have been exercised to decide what, if any, of the information sought could appropriately be supplied. In my judgment therefore the blanket approach adopted by the tribunal, as expressed in the letter of 4 June 2001, was unlawful. See British Oxygen v Board of Trade [1971] AC 610.
38. I return for a moment to the letter of 26 February 2001 and T’s statement, which the tribunal unfortunately never saw. It is said that there was nothing in the letter that was not already before the tribunal from other sources. Be that as it may, in my judgment the very fact that the tribunal did not have the letter before it could in itself lead T to feel that her position was not properly considered. In my judgment the appropriate course is for the tribunal to consider again T’s request for information and to do so having been supplied with a copy of T’s statement.
39. Miss Richards argued that to conclude that the tribunal has power to make public any of the information sought would open the floodgates to applications and create insuperable practical difficulties in reconvening tribunals etc. In my judgment there is likely to be very little information that can properly be divulged (being limited to that of the nature I have indicated) and in most instances it should be possible to deal with the matter at the conclusion of the tribunal hearing.
40. Mr Simblet’s next submission is that Rule 21(5) needs to be read so as to permit disclosure of the information sought by her in order to comply with Articles 2 and 8 of the European Convention on Human Rights.
41. As to Article 2, there is no evidence to suggest that T’s life is at risk from G. The court and the public are entitled to assume that the tribunal has given careful attention to the question of risk in reaching its decision. In any event, it seems to me that the present case falls a long way short of the threshold in Osman v United Kingdom [1999] 1 FLR 193 that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party; and that they failed to take measures within the scope of their powers which, judged reasonable, might have been expected to avoid that risk.
42. Even assuming for present purposes that there is a risk, dissemination of the information sought would not, in my judgment alleviate the risk and I cannot see that Article 2 compels the provision of the information to T.
43. Turning to Article 8, it is important to keep in mind the wording of paragraph 1:

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

44. Here her case is put on the basis that she has a fear of repercussions and reprisals from G. It is intrinsic to her private life that she be able to live her life free from fear if such fear can be allayed or otherwise dispelled.
45. Mr Simblet relied on Botta v Italy (1999) 2CCLR 53 pointing out that it illustrates that Article 8 does not merely compel the state to abstain from arbitrary interference by the public authorities; there may be positive obligations inherent in effective respect for private or family life and these obligations may involve the adoption of measures designed to secure respect for family life. Also, it was the court’s view that private life includes a person’s physical and psychological integrity.
46. T’s fears for her safety relate to lack of information. So, the argument runs there is a positive obligation to provide the information.
47. In my judgment, the minimum level of severity to amount to interference with the Article 8 right is not met. There is simply insufficient evidence. It really goes no further than T being very apprehensive about G being released and living anywhere near her. Furthermore, it is the state that owes the positive obligation and not the tribunal, which is exercising a statutory function and whose powers are to be found within the Mental Health Act 1983. There are other, more practical, ways of discharging any positive obligations should the need arise, for example through the police or the social services.
48. It also goes without saying that if Article 8(1) is engaged there are counterbalancing considerations in Article 8(2) and there are real interests of G to balance in the scales.
49. I am quite satisfied that neither Article 2 nor Article 8 adds anything in this case to the powers and duties of the tribunal under the Mental Health Act 1983 as expressed through Rule 21(5).

Conclusion

The tribunal had a discretion under Rule 21(5), which it failed to exercise. Its decision, as expressed in the letter of 4 June 2001, should be quashed and it should reconsider the request in the letter of 25 May in the light of this judgment.

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MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been hand down, this application succeeds.PRIVATE 

MR SIMBLET: My Lord, consequential upon your Lordship's judgment I apply for my costs against the defendant.

MR JUSTICE SCOTT BAKER: Yes. Are you legally aided?

MR SIMBLET: I am, my Lord, and so also public funding assessment.

MS GREY: My Lord, I am here in place of Miss Richards, who cannot attend. I cannot resist the application.

MR JUSTICE SCOTT BAKER: The usual order?

MS GREY: The usual order, yes.

MR SIMBLET: Yes.

MR JUSTICE SCOTT BAKER: Yes, very well.

MS GREY: I do, however, have a further application to make.

MR JUSTICE SCOTT BAKER: Yes.

MS GREY: Which is an application for permission to appeal. My Lord, I would say simply, briefly, that this case raises novel and interesting points about the rights of victims within the structure of the tribunals and, as such, it does deserve the merit of the attention of the Court of Appeal. Your Lordship's judgment has given a degree of locus or standing to victims.

MR JUSTICE SCOTT BAKER: Only a pretty small one.

MS GREY: Not in the general sense, not clearly as parties, we know that, but nevertheless locus to argue for the dissemination of information which they would say is relevant.

MR JUSTICE SCOTT BAKER: But there is only going to be a very small amount of information that is likely to be relevant, was my view.

MS GREY: Well, my Lord, clearly that is your Lordship's view and I see that in your judgment. But it does, nevertheless, open the way for victims to argue for that dissemination and also for consequential arguments to arise that perhaps relate to the practicalities of hearing their arguments, because while your Lordship is confident that in most cases these sorts of points could be dealt with at the end of the Tribunal hearing--

MR JUSTICE SCOTT BAKER: Yes.

MS GREY: --it is certainly possible to envisage cases in which victims either did not make the application promptly and so wanted to come back in front of the Tribunal or wanted to raise arguments about rights to be heard in person and so on and so forth. We do say, my Lord, I do not wish to reargue the case, clearly, but nevertheless we have argued that the machinery of a tribunal and its jurisdiction is generally concerned with the machinery for the use of patients rather than the rights of victims. For those reasons we would submit that it would be appropriate to grant permission to appeal.

MR JUSTICE SCOTT BAKER: Yes. What do you say?

MS MORRIS: My Lord, we do cautiously support the application for permission to appeal to the extent that the way in which my Lord expresses his judgment is that while, on the facts of this case, it was unlikely that certain types of information should be disclosed, my Lord also, plainly of necessity, leaves open the possibility that such information may be disclosed and it does include quite fundamental information and further that other types of conditions not initially contemplated in this case, but available in others, could well be disclosed as well. And, in those circumstances, it does open up a chink really in the confidentiality of detained mental patients and, in those circumstances, my Lord, we say, because of the character of the judgment it would be appropriate for consideration by the Court of Appeal.

MR JUSTICE SCOTT BAKER: Mr Simblet?

MR SIMBLET: My Lord, I oppose the application. Your Lordship heard the arguments and, essentially, has decided the case on the relatively narrow basis, which is that the defendant had a discretion which it has failed to exercise. All that is required, as a consequence of your Lordship's judgment, is that the defendant consider the request for information, because, of course, it had concluded that it had no power to do so. So, in my submission, some of the potential concerns that are raised by both Ms Grey and Ms Morris are issues that can be addressed when that proper consideration takes place.

A further vice in granting permission to appeal is that T wants to know the information as soon as possible. Your Lordship will remember that there was some possibility, which in fact did not need to be pursued, of actually needing a decision more speedily than the usual time waiting for judgment. If your Lordship grants permission to appeal then obviously that information, which is information potentially affecting life and limb, will not be given to T, pending the consideration of the matter by the Court of Appeal and, unfortunately, nobody can really say that this is an issue that the Court of Appeal would regard as being so urgent as to require a considerably expedited hearing. So it would have a particular vice of delay and all that is consequential for the defendant upon this, upon your Lordship's decision, is that in this case, on these facts, it ought to consider the request made for disclosure.

I return also to the other point in your Lordship's judgment which concerned the fact that in this particular case there was already a partial chink in the procedural accessibility--

MR JUSTICE SCOTT BAKER: Because the statement did not get there.

MR SIMBLET: --because of the statement which they had not read.

MR JUSTICE SCOTT BAKER: Yes.

MR SIMBLET: So on these facts it was procedurally appropriate for that consideration to take place.

MR JUSTICE SCOTT BAKER: Yes.

MR SIMBLET: That may not be the case in other cases where, in fact consequential upon my unsuccessful application before your Lordship for permission in the previous case, your Lordship has ruled that there is no general right of the scope for which Ms Grey contends.

The final point, of course, is it seems to me implicit in both counsel's submissions that they are seeking permission not on the basis that is there will a real prospect of success, but it is an issue which the Court of Appeal ought to consider and that obviously has a bearing on the approach that your Lordship should take to permission, particularly where it adversely affects the rights of the successful claimant.

MR JUSTICE SCOTT BAKER: I decided this case on a fairly narrow basis. I appreciate that it could be said that there are or may be wider implications, but I do not think that this is an appropriate case in which to grant permission to appeal. Of course, it is entirely a matter for the defendant and the interested party whether they wish to pursue it in the Court of Appeal and it may well be that the Court of Appeal would take a different view. But I think on the narrowness of the case, I am going to refuse permission.

MS MORRIS: My Lord, can I just address the court on two matters? I did file amendments with my Lord's clerk.

MR JUSTICE SCOTT BAKER: Yes, I looked at those.

MS MORRIS: I think most of them are uncontroversial.

MR JUSTICE SCOTT BAKER: I think all the typographical errors have been resolved.

MS MORRIS: And also the identification of the firm of solicitors. I have to say I find that quite extraordinary.

MR JUSTICE SCOTT BAKER: I do not know how that got in because it may be that I picked up their name. Sometimes it is very difficult to find from the documents, when you are drafting a reserved judgment, who the solicitors are, because counsel do not put them on their skeleton arguments and you have to chase through the correspondence to find it. It may be that they were the former solicitors acting for somebody else, is that right?

MS MORRIS: No, my Lord. They had, back in the mists of time, acted for the patient himself, but in fact had initially, in the dealings with the Tribunal, acting for T claiming that there was no conflict. Then when it was pointed out that there probably was, they had to withdraw.

MR JUSTICE SCOTT BAKER: Anyway, the error has been corrected now.

MS MORRIS: Thank you.

MR JUSTICE SCOTT BAKER: You did raise one point about the substance of the judgment in relation to T and the media.

MS MORRIS: My Lord, yes.

MR JUSTICE SCOTT BAKER: It seem to me that the position was broadly covered and if the matter did proceed further you could make any further points.

MS MORRIS: My Lord, I am only concerned to the extent that this matter could conceivably go on appeal and the extent to which those findings of the fact accurately reflect the material to the extent that every single report that there has been has involved an interview with T.

MR JUSTICE SCOTT BAKER: Yes.

MS MORRIS: And in those circumstances I wondered whether or not what my Lord had said entirely captured that aspect of the facts.

MR JUSTICE SCOTT BAKER: There is no doubt that this case has figured a lot in the media. T's answer is that she has not engendered that publicity.

MS MORRIS: Save the fact that she has given an interview on every specific occasion.

MR JUSTICE SCOTT BAKER: Well then you go into questions of who has asked for the interview and so forth. So you can certainly point to all of the material. Well, it is there anyway, so I was not minded to change that unless Mr Simblet thinks I should.

MR SIMBLET: My Lord, I did not know. I have not seen what amendments were being sought.

MR JUSTICE SCOTT BAKER: Oh.

MS MORRIS: All I was asking was that is it specifically recorded that T gave interviews, but anyway. The last point, my Lord, relates to the way in which the claimant and the defendant are identified.

MR JUSTICE SCOTT BAKER: Yes, unfortunately the case has been listed as [states name of claimant] today, has it not?

MS MORRIS: Certainly, my Lord did make a non-identification order at the permission hearing.

MR JUSTICE SCOTT BAKER: Yes.

MS MORRIS: Certainly, in that case, it should not have been identified in that way today because my Lord's order was to last until today. My Lord, the reason why I ask that the claimant, for instance, be identified as A and the interested party as B is because the way that they are currently identified does already provide a certain amount of the information, given the unusual initial and the history of media coverage.

My Lord, I am particularly minded of the recent case of a child at school who was inadvertently identified, despite a non-identification order because the school was named and that where there is contingent or peripheral information contained in the judgment a non-identification order can be subverted, essentially, by the presence of that additional information. In those circumstances, I would ask that they be identified by slightly more anodyne letters and not specifically by initials.

MR JUSTICE SCOTT BAKER: If we, instead of calling them [Claimant's initials] and [Interested Party's initials] call them T and G, would that be all right?

MS MORRIS: My Lord, that would be quite satisfactory.

MR JUSTICE SCOTT BAKER: It is very irritating when you have to go through reading a judgment and you find that the initials do not match up with the names.

MS MORRIS: My Lord, if it is necessary for that sort of hard labour to be performed, I am quite happy to have them and do it myself rather than inconvenience the court, but I am concerned to protect their identity.

MR JUSTICE SCOTT BAKER: If we simply call the claimant T and the interested party G and delete the first initial in each case and the shorthand writer can do that.

MS MORRIS: I am very grateful, my Lord. In relation to the final non-identification order I do ask that it should be made in the same terms that my Lord made at the beginning of the substantive hearing and equally that would accord with the order that was made in the first set of proceedings, brought by T. And, my Lord, in those circumstances, I say it is a proper order. It protects both the parties. And, in those circumstances, particularly given the stage that we are at in G's rehabilitation, there are now particular risks to him which are perhaps greater than they were when orders were made historically and, in those circumstances, I say that it is proper that the non-identification order be made. If my Lord wishes to look at the provision again, it arises under 39.2.4. of the CPR.

MR JUSTICE SCOTT BAKER: We have an order in force at the moment, have we not?

MS MORRIS: Yes, my Lord, obviously the question arises whether the last order or the first order in these proceedings still holds.

MR JUSTICE SCOTT BAKER: Just remind me what the difference was.

MS MORRIS: They were in identical words, it is just, as I understood it, Mr Simblet raised a query at the outset of the substantive hearing in these proceedings, but agreed that the non-identification order should last until the end of this hearing.

MR JUSTICE SCOTT BAKER: Yes.

MS MORRIS: Now that the hearing has ended I ask that the order be continued. Particularly given what, in fact, my Lord has ordered in extending the information accorded to Mr Simblet's client.

MR JUSTICE SCOTT BAKER: Well, Mr Simblet?

MR SIMBLET: Logically, I have no opposition to that course.

MR JUSTICE SCOTT BAKER: No. Well, then I shall simply direct that the present order continues until further order.

MS GREY: Can I just raise one point? It may be that there is a little bit of confusion and certainly it may be my fault for having arrived at these proceedings at this stage, but your Lordship's judgment contains details of the offence in paragraph 1 and yet the order that your Lordship is continuing prohibits publication of the details of G's offence, save that he was convicted of manslaughter.

MR JUSTICE SCOTT BAKER: Yes.

MS GREY: There is, therefore, some potential confusion between that if the judgment as it stands, for instance, is to be reported.

MS MORRIS: My Lord, as I understand it, at the substantive hearing it was agreed that, well it was suggested that the offence be identified solely as a double murder or double manslaughter because of the particular facts and I think Mr Simblet is agreeing with me.

MR SIMBLET: It is fine as long as it refers to the fact that it is double manslaughter, yes.

MR JUSTICE SCOTT BAKER: Yes, I do think that paragraph 1 is probably necessary in the judgment from the point of view that if this goes to the Court of Appeal they should have the whole picture.

MS MORRIS: My Lord, is it possible for the Court of Appeal to have the information without that particular -- really it is the second part of paragraph 1 being made public?

MS GREY: My Lord, can I also add this: whilst consideration is being given, I am being informed that there was discussion of reporting a double murder involving members of the family.

MR SIMBLET: Yes.

MR JUSTICE SCOTT BAKER: Yes.

MS MORRIS: So, in fact, all we would need to deal with is the sentence which appears at the fourth line from the end of the paragraph which says: "Overnight G did X, Y and Z". If instead that reads: "Overnight G committed a double homicide of members of his family".

MR JUSTICE SCOTT BAKER: Or "strangled two members of his family"?

MS MORRIS: Yes.

MR JUSTICE SCOTT BAKER: Yes. So that would be the only change that would be needed.

MS MORRIS: My Lord, yes.

MR JUSTICE SCOTT BAKER: Well that obviously covers it. Right. I see that, in fact, I have referred to T and G throughout, so it is only in the front page that it needs to be changed.

MR SIMBLET: Very fortunate.

MS MORRIS: My Lord, finally, I would just ask for detailed assessment of my client's costs.

MR JUSTICE SCOTT BAKER: You can have that. What about the form of the order?

MR SIMBLET: Yes, unfortunately, my Lord, counsel, and I am guilty of this myself, often apply for costs before we applied for the order. In my submission, the order ought to be that a mandatory order is addressed to the defendant requiring them to -- well, your Lordship ends by saying it should be quashed, an order quashing the decision of the defendant not to consider--

MR JUSTICE SCOTT BAKER: Yes.

MR SIMBLET: --the claimant's request and a mandatory order requiring them to consider the request consistent with this judgment.

MR JUSTICE SCOTT BAKER: And a mandatory order to reconsider the request in the letter of 25th May in the light of this judgment. So it is really there.

MR SIMBLET: Your Lordship really drafts his own order at the end of the judgment.

MR JUSTICE SCOTT BAKER: Yes.

MS GREY: I cannot oppose the quashing of the decision, but it is really not necessary to make any further mandatory order. The Tribunal will necessarily, in the light of your Lordship's judgment, have to undertake that reconsideration exercise.

MR JUSTICE SCOTT BAKER: Yes, I think that is right, is it not? They have the judgment; they know what they have to do.

MS GREY: If your Lordship quashes the decision--

MR JUSTICE SCOTT BAKER: That is sufficient.

MS GREY: --then everything else will follow.

MS MORRIS: I agree with Ms Grey.

MR JUSTICE SCOTT BAKER: Yes, thank you very much. Of course, I still do not know what the conditions of discharge were.

MR SIMBLET: No.

MR JUSTICE SCOTT BAKER: Thank you all very much for your arguments.

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