England and Wales High Court (Administrative Court) Decisions

Howard & Anor v Secretrary of State for Health [2002] EWHC 396 (Admin) (15th March, 2002)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th March 2002

Mr Justice Scott Baker:

Introduction

1. In each of these two cases, which were heard together, the Claimant seeks judicial review of a decision of the Secretary of State for Health not to hold a public inquiry into circumstances surrounding the serious misbehaviour of a doctor.
2. Doctor Clifford Ayling was a general practitioner and clinical assistant who practised in Kent. He indecently assaulted a large number of women, mainly his patients, over a considerable period of time. In December 2000 he was found guilty of 13 offences of indecent assault and sentenced to 4 years imprisonment. In July 2001 his name was removed from the medical register by the General Medical Council (G.M.C.).
3. From 1986, when he came to this country from Canada, until he was suspended by the G.M.C on 10 September 1999 Richard Neale practised as a Consultant Obstetrician and Gynaecologist at a number of N.H.S hospitals in England, mainly in Yorkshire but also, subsequently, in Leicestershire and the Isle of Wight. He also practised at several of private hospitals. On 25 July 2000, after a hearing spanning six weeks, he was convicted before the G.M.C of 34 of 35 allegations that had been made against him and his name too was removed from the medical register. The Professional Conduct Committee told him there were:

“…..many deficiencies in the standard of care you provided to patients as well as unprofessional and dishonest behaviour.”

Ayling - the essential facts

4. Ayling qualified as a doctor in the late 1960s and initially worked in hospitals in London specialising in obstetrics and gynaecology. In the early 1980s he started working in general practice, at first in partnership with Doctor Ribet at his practice at 19 Cheriton High Street, Folkestone. Doctor Ribet retired in late 1980s and Ayling continued in sole practice from the same address. He also worked as a locum obstetrician and gynaecologist in various local hospitals including the Kent and Canterbury Hospital, the William Harvey Hospital in Ashford and the Royal Victoria Hospital in Folkestone. He worked with, among others, Mr Rodney Ledward, the disgraced gynaecologist.
5. Ayling’s conduct appears to have been a cause for concern to patients from about the mid 1980s when complaints were made but none appears to have been taken seriously or to have been dealt with by any formal procedure. In 1987 his delivery of the baby of a Mrs A led to her consulting solicitors with a view to making a negligence claim, but the claim did not proceed because Mr Ledward wrote a report saying that in his view there had been no negligence.
6. In 1991 a patient of his general practice made a complaint of indecent assault. Ayling denied it saying he was merely “being thorough.” The matter was reported to the police but there was no prosecution as there was no corroboration of the allegation.
7. In 1992 a student midwife complained of indecent assault and in 1993 a women attending an antenatal clinic complained of inappropriate comments and a sexualised internal examination. The chief executive of the William Harvey Hospital responded by assuring the complainant that Ayling would never work again at the antenatal clinic except under very closely monitored conditions. None of the complainants was told of the others’ complaints and each believed her complaint was isolated. No action was taken because the clinical director of the Family Health Services Authority erroneously believed none of the women concerned wanted any taken and that it was sufficient if Ayling was counselled.
8. There was no follow up and Ayling went on to abuse and assault dozens of his women patients. He targeted in particular young, vulnerable, women who were isolated through family problems or divorce. Other local surgeries had more patients then they could cope with, with the result that many women with drug addiction problems found their way onto Ayling’s list.
9. Women who had been assaulted by him left his practice and reported their concerns to health visitors, midwifes and other G.Ps, but nothing appears to have been done although concerns about Ayling came to be widely known.
10. A patient complained to the East Kent Health Authority who referred the complaint to the G.M.C. In 1998 Folkestone police began an investigation. In November 1998 Ayling was arrested and questioned. He was then charged. More women came forward following publicity in the media.
11. He was bailed, originally on condition that he did not practice as a GP, but the terms of his bail were varied so that he could practice provided a chaperone was present during intimate examinations. He merged his practice with a number of other GPs but continued to assault and traumatise women in his surgery up until his trial. It is a scandal that he was able to behave has he did for so long. There are very serious questions to be answered as to why this was so.
12. The Claimant Patricia Howard consulted Ayling in 1994 at his surgery to obtain the “morning after” pill. She was sixteen at the time and Ayling insisted on carrying out a breast examination before prescribing the pill. She was traumatised but felt that, in the circumstances, there was little she could do. Her situation is typical of many others. Her solicitors now act for over forty other women who suffered at the hands of Ayling. There are believed to be many others who either never made a complaint or whose complaints went unheeded or uninvestigated.
13. By January 2001 Ms Howard’s solicitors were acting for a number of women who had been sexually assaulted by Ayling. They wrote to the Secretary of State for Health on 24 January 2001 saying they wanted to make representations to any government inquiry. They said their clients wished to make formal representations as to the nature of the inquiry and that any inquiry should be in public. They wrote again, this time to the chief medical officer, on 2 March 2001:

“It is the unanimous view of those who have consulted us that Doctor Ayling was able to abuse them because of long term failures within the health system to deal with unsafe practitioners. These need to be identified and corrected in the interests of all patients in the future………..They feel with some considerable force that, as they took a public stand, any investigation of the failure of the health system into protecting them against Doctor Ayling should also take place in a public forum. ”

14. On 5 March 2001 there was a two line acknowledgment from the Department of Health. There was no further response and on 12 April the solicitors wrote again giving further information about the chronology. By then they had been instructed by more clients. In particular, they pointed out that there had been ample information to stop Ayling from practising from 1993 and that there were several issues that demanded public scrutiny.
15. Despite chasing letters, there was no substantive response until 13 July 2001 when the solicitors were sent a copy of a press release indicating there would be three investigations, none of them to be held in public, regarding Ayling, Neale and another doctor, William Kerr. The press release was accompanied by a letter of the same date.
16. In my judgment the manner in which the Department handled the solicitor’s correspondence shows a lack of courtesy which reflects poorly on those in charge. At the very least the public is entitled to a reasonably prompt response to letters raising serious issues. It is hardly surprising if failure to do so inflames already strong feelings.
17. The substance of the press notice, in so far as it related to Ayling, was that the investigation would be chaired by Dame Yvonne Moores, chair of the Southampton University Council and that its overall purpose was:

“To assess the appropriateness and effectiveness of the procedures operated in the local health services (a) for enabling health service users to raise issues of legitimate concern relating to the conduct of health service employees; (b) for ensuring that such complaints are effectively considered, and (c) for ensuring that appropriate remedial action is taken in the particular case and generally.”

18. The Inquiry was asked specifically:

“To identify the procedures in place during the (period) 1985 – 2000 within the local health services to enable members of the public and other health service users to raise concerns or complaints concerning the actions and conduct of health service professionals in their professional capacity.

To document and establish the nature of and chronology of the concerns or complaints raised concerning the practice and conduct of Doctor Clifford Ayling, a former GP from Kent during this period.

To investigate the actions which were taken for the purpose of (a) considering the concerns and complaints which were raised; (b) providing remedial action in relation to them; and (c) ensuring that the opportunities for any similar future misconduct were removed.

To investigate cultural or other organisational factors within the local health services which impeded or prevented appropriate investigation and action.

To assess and draw conclusions as to the effectiveness of the policies and procedures in place.

To make recommendations informed by this case as to improvements which should be made to the policies and procedures which are now in place within the health service, (taking into account the changes in procedure since the events in question). ”

Finally it was asked to provide a full report to the Secretary of State for Health for publication by him and to make the appropriate recommendations.

19. The covering letter made various points, including that it was anticipated the conclusions and the recommendations would be applicable to the N.H.S both locally and nationally. The investigation would seek to establish the nature and chronology of the concerns and complaints made and the way in which the then current policies and procedures were applied to them but that it was not proposed to assess the culpability of Ayling on a case by case basis. As the court’s decision had clearly established the misconduct perpetrated by Ayling, the investigation would not be conducted through public hearings although the report would be published in full.
20. The letter went on to say that in reaching his decision the Secretary of State had sought to balance the preference of the victims against the overall purpose of the investigation and the fact that the culpability of Dr Ayling had already been determined by a court. He had taken into account cost, speed and the need to ensure that both victims and the public were confident there had been a robust assessment of the relevant policies and procedures. The primary focus of the investigation would be the policies and procedures of the local health services.
21. Proceedings were commenced 10 days later seeking judicial review of the “decision of the Secretary of State dated 13 July 2001 not to hold an inquiry in public into the activities of Doctor Clifford Ayling.”
22. By a letter of 18 September 2001 there was a change of position by the Department to the extent that interested parties or their representatives would be allowed to attend all of the inquiry hearing and to establish a process whereby issues of concern could be raised with the inquiry chairman. A Queen’s Counsel or other demonstrably independent person would be appointed to head the inquiry in place of Dame Yvonne Moores. Also, the ambit of the inquiry would be extended so as to cover the whole of Ayling’s career from 1971 to 2000.
23. The consequence of the Secretary of State’s change of position is that all witnesses and their legal representatives may attend throughout the course of the inquiry. The media and members of the public are, however, excluded albeit there is to be no restriction on witnesses talking to the media. The Secretary of State felt the inquiry might be compromised if witnesses were asked to give evidence in the glare of media attention. In his view not all of them, including some of the victims of Dr Ayling, would wish to do so and there was a risk that some victims might be deterred from doing so if the media were present.

Neale – the essential facts

24. In 1979 in British Columbia, Canada, following complaints about his professional behaviour, Neale was given the option either of removal from practice or intensive retraining. His next altercation with the authorities was in 1985 in Ontario when he was struck off for incompetence and professional misconduct. Undeterred he came to England and practised in this country both in the N.H.S and privately. One of the fundamental questions is how he was permitted to do so, bearing in mind his previous history in Canada.
25. The Claimant Sheila Wright-Hogeland brings these proceedings for judicial review on her own behalf and on the behalf of approximately 250 members of a support group that she chairs. Each member of the group has either suffered or represents someone who has suffered, at the hands of Neale. Goodness knows how many other victims there may be. There is attached to the papers a schedule that gives some idea of the extent and gravity of Neale’s misdeeds.
26. When he was struck off on 25 July 2000 the president of the G.M.C issued a press statement which said:

“The case, like others recently, raises a number of important, wider issues for the whole system of medical regulation. I cannot defend the G.M.C procedures that 15 years ago failed by allowing Neale to practice in this country despite his record in Canada. Furthermore, his case highlights serious deficiencies in N.H.S procedures. The first complaint from N.H.D management to the G.M.C was not made until February 1998. It is difficult to understand why local action on his poor practice was not taken much earlier……..the Neale case underlines the need for a change in the law to make it possible for us to take direct action on the basis of disciplinary action overseas. I have written today to the Secretary of State on how best to strengthen our powers to this end……….But the real lesson is more fundamental. The Neale case underlines, yet again, why there is such an urgent need to implement the systematic review of all doctors’ practice through effective clinical governance locally, underpinned nationally by the regular revalidation of doctors’ registration with the G.M.C. That is the only way to ensure that the public is fully protected.”

27. Mr Richard Lissack Q.C, who has appeared for this Claimant, submits that Neale’s case raises issues of concern that are both wide ranging and systemic. These give rise to a number of questions that must be satisfactorily answered if public confidence is to be restored. They are:

i) “ Why was he able to become employed and retain his post as a senior consultant in the U.K in September 1984, having been severely disciplined in British Colombia in 1979 and struck off in Ontario in 1985?

ii) Why, from 1986 when both the G.M.C and the responsible health authority knew about the desperate Canadian past, did they fail to take any action at all to protect the public?

iii) More specifically, why upon learning about the seriousness of the allegations and having decided to investigate in 1986 and again in 1993, did the health authority decide not to contact former colleagues of Neale in Canada or the regulatory and professional bodies?

iv) Why/how have the DoH lost the relevant files detailing the 1993 investigation?

v) Why when the G.M.C was contacted by the health authority in 1993 did it and/or the DoH fail to take action?

vi) What were the conclusions of the investigation and why was Neale allowed to continue in practice - does the report still exist?

vii) At what stage were concerns over Neale’s past and future passed on to the DoH - when did they know and to what extent are the very serious allegations against the chief medical officer in the Claimant’s witness statement well founded?

viii) Why did the G.M.C/his employers fail to take action when Neale was arrested following an incident with two other men in a public lavatory in 1991?

ix) Why was Neale appointed to the post of Head of Clinical Risk Management at Friarage Hospital enabling him to dismiss each complaint about his own activities and levels of care?

x) Why, in view of the level of concern over all aspects of Neale’s professional and personal qualities, was the decision taken to reach the deal whereby he left his post in Yorkshire with a £100,000 plus pay out, an unlawful ultra vires agreement that the trust would purchase his consulting rooms and a good reference to enable him to seek employment in the public or private sector straight away?

xi) Was the reference negligent? Who wrote/authorised it? Did the DoH know? If they did not should they have done? What particularly did the C.M.O Professor Donaldson know? Who authorised the reference, was it the C.M.O? Was Doctor Saunders instructed to sign it?

xii) How many patients died unnecessarily?

xiii) Should the earlier investigations have been held in secret?

xiv) Was Neale a warped and criminally responsible individual or just incompetent?”

28. A summary of Neale’s history is as follows. In the mid 1970s he qualified in the United Kingdom, in due course becoming a Senior Registrar at the Shaftesbury Hospital in London. In 1977 he went to Canada and worked in the Prince George Hospital in British Columbia. His medical colleagues refused to work with him or expose their patients to him and, after a series of serious errors, an official investigation gave him the option of extensive further training or withdrawal from practice.
29. It is not clear what, if any, further action was taken thereafter but it is said that he voluntarily removed himself from the British Columbia medical register and went to work in Ontario where he was struck off in his absence in November 1985 after he had come to work in England. This was as a result of consistently bad clinical judgment and bad surgical procedures at two hospitals in Ontario.
30. In September 1984 Neale was interviewed for a post with Northern and Yorkshire Regional Health Authorities and on 1 January 1985 he was appointed as Consultant in Obstetrics and Gynaecology in the Northallerton District working primarily at the Friarage and Darlington Memorial Hospitals. In May 1985 he was appointed chairman of the surgical division at Northallerton.
31. After he was struck off in Canada, a former colleague contacted the G.M.C in London but was told that problems abroad did not preclude a doctor from practising in the United Kingdom.
32. In August 1986 the Yorkshire Regional Health Authority, Neale’s employer, became aware of the Canadian background and launched an independent internal inquiry, but nothing was done. In November 1987 Neale applied to be reinstated in Ontario but was refused.
33. In September 1991 Yorkshire Regional Health Authority learned that Neale had been cautioned by the police following an incident with two other men in a public lavatory in Richmond. He was suspended but, following an internal investigation, reinstated and then appointed Head of Maternity.
34. In October 1993, following wide publicity about his past, an inquiry panel set up by his employer into the Canadian and Richmond issues interviewed Neale but he was allowed to continue working. In January 1994 the inquiry supported his clinical competence but removed him from the post of clinical director. He was censured by the Trust and placed under special management supervision.
35. In August 1995 he was suspended by the Trust following allegations about unavailability when on call, public misrepresentation of his role and fraudulent expense claims. It was said there was no suggestion of harm to his patients.
36. By 1995 there were serious concerns about Neale’s conduct and calls for him to be sacked from the Friarage Hospital at which he was employed. Neale was not prepared to leave without a reference and a payoff. Mindful of the problems that could be caused by the employment legislation, the N.H.S Trust acceded to the request and the decision was, apparently, sanctioned by the Northallerton Health Services N.H.S Trust Board. The terms of the settlement were:

( One year’s paid sabbatical leave.

( A further £50,000 pounds if he did not obtain a substantive post by the end of the year.

( An agreed reference to be provided by the medical director of the Trust.

( Income tax liability for the severance payment to be met up to the value of £30,000 by the Trust.

It later came to light that the Trust had, additionally, purchased his consulting rooms. The Trust’s auditors pointed out that this was beyond the Trust’s powers.

I have not seen either the original reference or a copy of it, but it is said that it was supplied by the Trust’s clinical director who expressed respect for Neale’s clinical and intellectual abilities. The chief executive of the Trust wrote to Professor Donaldson, then regional director, on 3 February 1998 saying:

“…….I think we were fortunate to be able to negotiate his resignation. I am aware there is some criticism of the way in which we resolved the matter, but know that you will appreciate how difficult it is to resolve this kind of issue, and hope that we have your support.”

37. The Claimant in her evidence produces a witness statement of Steve Sperry, director of operations, Friargate Hospital, apparently prepared for a BBC Television Panorama programme in which he said the reference did not tell the whole truth because the Trust could not risk keeping Neale and destabilising its own obstetrics department.
38. Although I am not fully conversant with the facts then known to the Trust, the reference seems to have been bordering on the dishonest or at the very least economical with the information given. One of the grounds on which it is contended that there should be a public inquiry is the possible involvement of the chief medical officer in approval of the decision he being then, so it is said, head of the relevant region. However, there is no evidence that Professor Donaldson was in any way involved in the decision or indeed even that he knew anything about it.
39. A few months later, and armed with his reference, Neale took up a post as a locum consultant in obstetrics at Leicester Royal Infirmary. He was soon dismissed and went on to St. Mary’s Hospital in the Isle of Wight, another N.H.S hospital, from which he was again dismissed. It is hardly surprising that the chief executive of the Leicester N.H.S Trust complained about the terms of the reference.
40. He then moved to the private sector including the Portland Hospital, the London Women’s Clinic, Harley Street, St Luke’s Fitzroy Square and eventually Westfield House private consulting rooms in Leeds.
41. It was not until 1997 that a letter was sent to all N.H.S Trusts warning them about Neale, but even then nothing was done to warn the private sector in which Neale worked for a further two years.
42. On 8 August 2000 the Claimant wrote to the Secretary of State asking:

“Would you support a public inquiry into the Richard Neale scandal and all the issues it raises which are crucial to the future of the whole question of healthcare and to the restoration of public confidence in the medical profession in the U.K?”

43. This marked the start of a campaign for a public inquiry. No one could be other than impressed by the work and energy the Claimant has put into these proceedings on behalf of the group she represents. For the most part she has been acting in person and only recently has she had the assistance of lawyers.
44. It is necessary to dwell a little on various events and documents between August 2000 and the decision letter on 13 July 2001. She says she had a legitimate expectation that there would be a public inquiry but bases this not so much on any specific representation by the Secretary of State, rather on past practice.
45. On 4 January 2001 the Secretary of State for Health wrote to The Rt Hon William Hague MP that:

“It is clear that there will need to be a full and independent review to examine these past events and ensure that all possible lessons are learned.”

The previous month the Minister of State had written to the Liberal Democrat health spokesman in identical terms.

46. On 14 February 2001 the Claimant and others met Professor Donaldson. The Claimant pressed the case that the inquiry needed to be and be seen to be full, independent and completely transparent, but Professor Donaldson favoured a private inquiry. On 5 March 2001 the Claimant wrote reinforcing her views asking for the announcement of a public inquiry and for it to be initiated with all possible speed. She had considerable support from other quarters. See, for example, the letter from Frank Cook MP to the Secretary of State dated 17 March 2000 insisting that: “Nothing short of a public inquiry will satisfy the victims’ group or their families. Public confidence in the N.H.S and the medical profession has been rocked to the very foundation by the Neale scandal.” The response was that the government was pledged to a full and independent investigation and the Secretary of State would shortly be announcing the form it would take. Mr Hutton concluded by saying:

“I hope this reassures you that ministers will ensure that the Neale case is given full and proper scrutiny and all possible lessons are learned for the future.”

47. Meanwhile the Secretary of State had written again to Mr Hague to the same effect reiterating, as he had said previously, that the chief medical officer was not yet in a position to set up a full and independent review because he was waiting for the position on police referral and civil litigation to become clearer, but that steps would be taken to initiate one as soon as possible.
48. The covering letter of 13 July of 2001 and the announcement of the inquiry were in very similar terms to those in the Ayling case. The announcement or press notice said Neale was a gynaecologist who worked in Yorkshire and was struck off by the G.M.C in July 2000 for poor standards of care in a number of cases. Mr Lissack complains that this was an understatement. As in the other case, it was pointed out that the hearings would not be held in public but that former patients would be invited to contribute to the investigation and the findings would be published in full. Dr Bernadette Fuge, Medical Director and Head of N.H.S Quality, National Assembly for Wales, would chair the inquiry. The overall purpose of the inquiry was described in identical terms to that of the Ayling inquiry. The inquiry was asked specifically:

“To identify the procedures in place during the period 1985 – 1995 within the local health services to enable members of the public and other health service users to raise concerns or complaints concerning the action and conduct of health service professionals in their professional capacity.

To document and establish the nature of and chronology of the concerns or complaints raised concerning appointment, practice and conduct of Richard Neale in respect of his employment as a consultant in the Northallerton Hospital.”

49. The response from the Claimant was swift. On 15 July 2001 she wrote to the chief medical officer saying her group felt the proposed investigation was completely inadequate and its terms of reference fundamentally flawed.
50. Thereafter, two events occurred that may be of some significance. The first was that on 18 July 2001 the Bristol Royal Infirmary (B.R.I) inquiry chaired by Professor Sir Ian Kennedy reported; the second that on 30 July 2001 Professor Donaldson sent a memorandum to Lord Hunt, the Minister of State. A copy of this memorandum, in circumstances that are unclear, came into the hands of the press. In the light of previous experience in the Dr Shipman case the Cabinet Office was pressing the Department of Health not to oppose the judicial review claim. The argument was that another judgment against holding inquiries in private might have adverse consequences for the government in relation to foot and mouth. However, from the health service point of view, not contesting the judicial review would be disastrous for many years to come. The memorandum ended by pointing out that a compromise might be reached with the victims and their lawyers.
51. Whether or not anything said by Professor Kennedy in the B.R.I report or the concerns of the Cabinet Office caused the Defendant to think again is really neither here nor there, but there was indeed a change of position by the Defendant in the same terms as in the Ayling case. On 25 September 2001 the Claimant rejected the revised proposal and two days later she commenced these proceedings.

The statutory background

52. In both these cases the Secretary of State has exercised powers under the National Health Service Act 1977.
53. Section 1(1) provides:

“It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement –

(a) in the physical and mental health of the people of those countries, and;

(b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”

Subsection (2) provides that the services are generally to be provided free of charge.

54. Section 2 provides:

“Without prejudice to the Secretary of State’s powers apart from this section, he has power –

(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and

(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

This section is subject to section 3(3) below.”

Section 3(3) has no relevance to the present cases.

55. Section 84(1) provides:

“The Secretary of State may cause an inquiry to be held in any case where he deems it is advisable to do so in connection with any matter arising under this Act.”

The following subsections give powers to the person appointed to hold the inquiry to compel the attendance of witnesses, obtain the production of documents, take evidence on oath and so forth.

Section 84(6) gives the Secretary of State power to make orders as to the costs of the parties, but there is no such power under Section 2.

56. Mr Edward Faulks Q.C, who has appeared on behalf of the Claimant Patricia Howard, is entirely content that the Ayling inquiry should take place under the provisions of the National Health Service Act 1977. His concern is not so much that it should be a public inquiry but that it should take place in public. That is something that can perfectly well occur under the 1977 Act, provided the Secretary of State so directs.
57. Mr Richard Lissack’s concerns in the Neale case go wider. He submits that the issues in that case are too extensive for the 1977 Act and go beyond the words in section 84(1) “in connection with any matter arising under this Act.”
58. A more general power to establish an inquiry is to be found in the Tribunals of Inquiry (Evidence) Act 1921. Section 1 provides:

“(1) Where it has been resolved…..by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all the powers, rights and privileges as are vested in the High Court or in Scotland the Court of Session…….in respect of the following matters……”

The Section then goes on to specify attendance of witnesses, examination on oath, production of documents, immunity etc.

59. Section 2 provides:

“A tribunal to which this Act is so applied as aforesaid:

(a) Shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given and

(b) ……(gives power to authorise or refuse to authorise representation).”

60. The Tribunals of Inquiry (Evidence) Act 1921 was introduced by Parliament following the Marconi scandal. Nowadays the government has statutory powers to set up inquiries under various Acts of Parliament, of which the National Health Service Act 1977 is an example and it is only occasionally necessary to use the 1921 Act. The presumption of public access to a 1921 Act inquiry given by Section 2 is to be noted. I shall return to this in due course. Many statutory inquiries have been set up other than under the 1921 Act and have sat and taken evidence in public.
61. The main thrust of the Claimants’ arguments is twofold. First the Secretary of State’s decisions, were irrational or unreasonable in the Wednesbury sense and secondly the decisions breached Article 10 of the European Convention on Human Rights and Fundamental Freedoms.

The Ayling decision

62. In summary, Mr Faulks argument for an inquiry in public runs as follows. Although Ayling’s misdeeds focus on Kent the implications go wider. There are serious questions about the procedural failures that allowed his behaviour to go on so long. Employees of a public service are accountable and must be seen to be accountable. Victims have been through the ordeal and trauma of speaking about distressing events in public. It is not too much to expect health service employees to give their account in public. There is an important issue about how the victims will perceive a public inquiry. Their complaints went persistently unheeded over many years. Those who did not heed their complaints are the very people who will not be heard. The perception is that the inquiry may not be rigorous. It could be the same story over again. If the inquiry is in public other victims may come forward from whom otherwise the inquiry might not hear.
63. In short, submits Mr Faulks, there is only one crucial difference between what his clients want and what the Secretary of State is proposing and that is the presence of the media. That is the situation after the concession by the Secretary of State that there will be a Q.C or other demonstrably independent person to chair the inquiry and that the victims or their representatives may attend. Professor Donaldson said in his statement that the concession involves all witnesses and their legal representatives being permitted to attend throughout the course of the inquiry. A process could be established whereby issues of concern could be raised with the inquiry chairman and, although the media and general public would be excluded, there would be nothing to prevent witnesses talking to the media.
64. Although the concession goes some way to meeting Mr Faulks’ concerns, he submits there are still real disadvantages in excluding the media and general public. First, it is not satisfactory for the media to learn second-hand from those who may well give a distorted account of what was said at the inquiry. Secondly, the absence of the media means there will be less publicity to activate other victims or relevant witnesses previously unaware of what was happening. Also, it maybe very inconvenient for a victim to attend all the time, for example a child or work commitments might have to take precedence.

The Neale decision

65. Mr Lissack advances a similar argument to Mr Faulks. But, he observes, his client brings her claim on behalf of herself and some 250 others and there are very wide implications and considerations as appear from the 15 questions that he has posed. Although there have has yet been no criminal proceedings in Neale’s case, the possibility of a manslaughter charge in Canada is under consideration and there may be extradition proceedings. Four of his questions involve consideration of the role of the Department of Health itself (questions 4,5,7and 11). Neale has subjected his patients to terrible damage and the fact that it was allowed to go on for so long is illustrative of a complete systemic failure. There is nationwide and indeed international interest in the case. The authorities knew, or ought to have known from 1986 that Neale was at the least dangerously incompetent and possibly worse. Whilst the Canadian authorities acted swiftly and efficiently to deal with him, the same did not happen in this country which demonstrates that the medical profession’s system of internal regulation failed. The system of statutory control was inadequate and there was a series of professional and administrative errors. Even when limited steps were taken in 1995 he continued to cause mayhem. Finally, when the 1997 letter was circulated, nothing was done to protect users of private medicine. This is such a bad case that only by an inquiry in public can public confidence be restored.

The Secretary State’s position

66. Mr Sales, for the Secretary of State, defends the decision to hold the inquiries in private. His submission is that the Secretary of State thinks that private inquiries will best serve the aim he wishes to promote which is to find out what alterations and improvements should be made to existing complaint procedures within the N.H.S. Although in each case the starting point is the shortcomings disclosed in the cases of the two doctors, the purpose of the inquiries is not to establish the blameworthiness of the doctors or anyone else; the inquiries are predominately forward looking. The blameworthiness of the conduct of the doctors is not disputed. Ayling has been convicted in criminal proceedings and Neale has been struck off the medical register following disciplinary proceedings before the G.M.C. What matters for the future is that procedures should be put in place so that any misconduct is effectively disclosed and promptly dealt with. The purpose of the inquiry is to identify improvements rather than to establish the blameworthiness of any individuals within the health service.

The ambit of the Neale inquiry

67. There is in the Neale case a specific issue about the ambit of an inquiry under the 1977 Act. There is no doubt in my judgment that both of these inquiries are within the scope of the power given to the Secretary of State under Section 2, whereby he can do anything whatsoever which is calculated to facilitate, or is conducive or incidental to the discharge of, any duty imposed on him under the Act. These words are wide but the limiting factor is the National Health Service. A similar question arose before the Divisional Court in R (Wagstaff) v Secretary of State for Health [2001] 1WLR 292 where the Court said at 308G:

“Put in colloquial terms, if it (the inquiry) confines itself to examining how other agencies impact on the National Health Service, and does not seek to tell other agencies how to do their job then it can be regarded as validly constituted under section 2 of the 1977 Act…..”

68. The terms of reference for the Neale inquiry fall clearly within the ambit of the Secretary of State’s powers under the 1977 Act. But, Mr Sales points out, what Mr Lissack is seeking is a different and wider inquiry. No one has a right to a public inquiry (see the observations of Clarke L.J at paragraph 5.1 of the Thames Safety Inquiry, Final Report) or indeed to dictate an inquiry’s terms of reference. In fact the inquiry’s terms of reference cover all of Mr Lissack’s questions save in relation to the private sector and the G.M.C, albeit it would be for the chairman to decide the extent to which it was appropriate to develop any particular one. So, it seems to me, it is entirely a matter for the Secretary of State to decide the extent of the territory the inquiry is to cover.
69. If the Secretary of State wishes to direct an inquiry that is outwith the ambit of the 1977 Act then the only vehicle is the 1921 Act, but this is not constitutionally within his gift for it requires a Resolution of both Houses of Parliament. Furthermore, by reason of Section 2(a) of the 1921 Act his option of refusing access to the media and general public would be removed. The fact that the precondition to a 1921 Act inquiry is a Resolution by both Houses of Parliament to set one up in my judgment emphasises the inappropriateness of the Court intervening to say that the decision not to implement such a procedure is irrational.
70. The ambit of an inquiry is primarily a political question. The Secretary of State, or in the case of the 1921 Act Parliament, has to decide where the public interest lies and how scarce resources should be allocated. One of the factors within the Secretary of State’s consideration was what had already been done. Some steps had been taken and some reforms already implemented. These are described in the evidence of Professor Donaldson. I can see no error of law in ordering an inquiry of too narrow an ambit.

Past practice

71. The Claimants rely strongly on the Divisional Court’s decision in Wagstaff. The applicants in that case were families and friends of victims murdered or suspected to have been murdered by the notorious Dr Shipman. The Secretary of State for Health set up an inquiry to inquire into issues raised by the deaths of the doctor’s patients but decided it should be held in private. The applicants failed to establish a legitimate expectation that the inquiry would be held in public but the Court nevertheless concluded that the Secretary of State’s decision not to hold the inquiry in public was irrational and in breach of Article 10 of the ECHR. The principal issue in the case was the propriety of the decision of the Secretary of State that evidence would be heard in private. This was a decision that he reconsidered but subsequently maintained. The Secretary of State said that he had three considerations in mind. The first was that a private inquiry would be quicker. The second was that privacy would facilitate candour and the third was (as the Court pointed out an assertion) that a private hearing would “ not be any less exacting or vigorous.”
72. The Court observed it was common ground that before deciding what sort of inquiry should be held, and whether it should be in public or private, the Secretary of State should have regard to the experience of what had been done in the past in the case of similar inquiries and what if any lessons had been learned as a result. The Court observed the evidence was that there had been no uniform practice over the previous decade and that no doubt much turned on the facts of each case. The legitimate expectation argument failed because there was no underlying promise or practice.
73. The Court said at 319G that there where five factors “which might be regarded as persuasively in favour of opening up the inquiry.” These were:

i) The fact that when a major disaster occurs involving a loss of many lives it has often been considered appropriate to hold a full public inquiry enhanced in that case by (a) an issue as to the number of deaths attributable to Dr Shipman (b) the deaths having occurred over a long period without detection and (c) likely widespread loss of confidence in a critical part of the N.H.S.

ii) Positive known advantages from taking evidence in public namely (a) witnesses are less likely to exaggerate or try to pass on responsibility (b) others come forward (c) openness helps to restore confidence and (d) the absence of significant risk of leaks leading to distorted reporting.

iii) The particular circumstance of the case:

a) An open inquiry was what the families wanted and the Secretary of State had been wrong to think otherwise;

b) The wide terms of reference lead those friends and relatives of the deceased who had not figured in the indictment to believe the inquiry would investigate how and why their relatives died;

c) What had been said in the House of Commons about the nature of the inquiry had lead to a misunderstanding;

d) There was no obvious body of opinion in favour of evidence being received behind closed doors. In this regard the court had evidence from Sir Louis Blom Cooper in favour of evidence being heard in public, and no evidence to contrary;

e) Given an inquisitorial procedure and firm chairmanship there was no reason why the inquiry should take longer if evidence were taken in public, nor was there reason to believe any significant evidence could be lost.

iv) A presumption the inquiry would proceed in public in the absence of persuasive reasons to the contrary.

v) The additional public confidence its report and recommendations would command, restoration of public confidence being a matter of high public importance.

74. The Court then examined the three considerations the Secretary of State had in mind in making his decision. As to speed, it said no reason was advanced why a non adversarial inquiry or one that severely restricted non adversarial methods should not fully eliminate the risks of delay. As to candour, it was a diminishing minority point of view that an inquiry in private would yield greater candour and it was outweighed by the weight of arguments in favour of an open inquiry in that case. As to a private inquiry being no less exacting or rigorous, it observed that the totality of the information would be reduced and the ability to test one piece of evidence against another inhibited. The Court rejected the submission that the decision whether the inquiry should sit in private or in public was policy laden and concluded it was irrational.
75. I have set out at some length and in considerable detail the Court’s reasoning that lead to this conclusion because, it seems to me, it lays down no general principle that in cases such as the present any inquiry should be in public.
76. The Claimants place great reliance on the fourth of the five reasons, the so- called presumption that the inquiry will proceed in public. The full text of the material passage in the judgment is at 320F and reads as follows:

“Where, as here, an inquiry purports to be a public inquiry, as opposed to an internal domestic inquiry, there is now in law what really amounts to a presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although Article 10 of the Convention is not yet incorporated in English law it does no more than give expression to existing law as to the right to receive and impart information.”

77. I shall return shortly to Article 10, which is either engaged or it is not. But what of the first sentence of this passage? I am not clear what is meant by the words “where as here an inquiry purports to be a public inquiry.” It may be that what the Court had in mind was the equivocal answer given in the House of Commons. But the legitimate expectation claim failed. I find it difficult to detect any special circumstances in Wagstaff that would form the basis for a presumption and, as the Court observed at 309A, over the previous decade there had been no uniform practice and each case turned on its own facts. It is true that what amounts to a presumption is to be found in Section 2 in the 1921 Act, but Wagstaff was not a 1921 Act case. In my judgment in cases under the 1977 Act there is no presumption one way or the other. It is up to the Secretary of State to take a decision in the light of all the relevant considerations in the particular case.
78. There are, it seems to me, five features about the decision in Wagstaff that are of particular importance. They are:

i) The terms of reference were very different from those in the present case. It is unnecessary for me to recite them in full. They are set out at 300B of the judgment. They were essentially backward looking focusing on the issues raised by the deaths of Dr Shipman’s patients.

ii) The evidence from Sir Louis Blom Cooper about the desirability of inquiries being in public was uncontradicted.

iii) The Secretary of State’s failure to appreciate the families’ views.

iv) The finding of fact that a public inquiry would take no longer.

v) The finding that the Secretary of State had given too much weight to the candour argument.

79. In truth, it seems to me Wagstaff was a very special and unusual case. It is, so far as I am aware, the only instance of a court concluding that a Minister’s decision to hold an inquiry in private was unlawful. In my judgment it is plainly distinguishable from the present case and lays down no general principle of law.
80. That this is so is apparent from the decision of the Court of Appeal in Crampton v Secretary of State for Health (unreported) 9 July 1993 CO/824/93 which the Divisional Court in Wagstaff distinguished on the grounds that in Crampton the terms of reference were much narrower. Crampton was an unsuccessful attempt by the families of children who had suffered at the hands of the notorious nurse Beverley Allitt to review a decision of the Secretary of State for Health to hold an inquiry in private. In fact that was a secondary ground of complaint, the main one being that the inquiry had not been given the compulsory powers available under Section 84 of the 1977 Act. Sir Thomas Bingham MR said that even if the inquiry had been established under section 84 it would have been very hard, if not impossible, for the parties to challenge a decision that the inquiry should not held in public. On the question of irrationality the Master of the Rolls said that the Secretary of State was alive to relevant considerations and that the weight she attached to each was for her and her alone. He had this important observation to make about cost:

“It is an undoubted truth that a statutory inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State.”

81. Apart from the two occasions on which the courts have considered challenges to decisions to hold inquiries in private I was referred to numerous extracts from reports of inquiries and statements of individuals with relevant experience in one form or another. I was also shown a memorandum emanating from the Lord Chancellor’s Department and dated 1991, the purport of which was to provide some advice and assistance to those who might suddenly be faced with a question of whether to set up an inquiry and if so of what nature. Suffice it to say that from none of this material does a clear picture emerge that the Secretary of State should have set up public inquiries in the present cases.
82. What all this material shows is that over the years inquiries have been undertaken into different types of situation and that no two inquiries are identical. Each inquiry needs to be tailor made to suit the particular circumstances. Public inquiries are often set up into transport disasters where many deaths or injuries have occurred in a single incident. The inquiry is charged with finding out why the accident happened (which may be several causes operating together) and making recommendations to prevent anything similar happening in the future. In the present cases it is known what the doctors did wrong, albeit the ambit of their misdeeds may be even greater than has so far been appreciated, and the real purpose of the inquiries is to ensure that there are systems in place to ensure that in future nothing similar occurs and that any hint of a problem is swiftly tackled.

The decisions in the present case

83. A number of factors came into the equation and it is I think necessary to look at each of them in turn. Mr Sales submits that there was a choice to be made between an inquiry taking evidence in open session and one taking place in closed session. There are arguments both ways. It was up to the Secretary of State to make a judgement. In Wagstaff the Divisional Court appears to have taken the view that the evidence was all one way (see the observations about Sir Louis Blom Cooper’s evidence). In the present case there is a wealth of evidence in both directions. Evidence produced by the Secretary of State included not only Professor Donaldson’s own evidence but the views and experience of many others who had been involved in one way or another in inquiries. In the course of argument points were made to diminish the value of various aspects of this evidence, but at the end of the day I am satisfied a respectable argument can be made both for and against an inquiry being held in public. It seems to me that a great deal depends on the particular circumstances, not least the inquiry’s terms of reference.

Candour

84. At paragraph 33 of his evidence in the Ayling case Professor Donaldson said:

“As mentioned previously, the Secretary of State was particularly concerned that the inquiry investigated thoroughly the issues about the effectiveness of the N.H.S system. This, in his view, was the only way that patients’ best interests would be protected. This would require a level of frankness from witnesses (some of whom may carry some responsibility for failures) that he believed would be unlikely to be forthcoming unless the hearings were private.”

He made a similar comment in paragraph 76 of his evidence in the Neale case.

85. If the Secretary of State’s perception is correct this is a sad reflection on the attitude and probity of some N.H.S managers and on one view suggests that such people ought to be subjected to searching cross examination in public. On the other hand, if the Secretary of State’s view is that material witnesses are more likely to be prepared to stand up and be counted away from the glare of media publicity, that is a judgment he is in as good a position as anyone to make. Again, there are two views, but the evidence in both cases shows that there is considerable support for the Secretary of State’s conclusion. He had to make an assessment about the willingness of witnesses to give evidence, the victims, medical staff and other complainants who had not yet come forward but might. He had to assess how the evidence could best be taken from these broad groups.

Speed and Cost

86. I take these together because they are interrelated. Broadly speaking, the longer an inquiry takes the more it will cost. The Claimants argue that there is no reason to suppose an inquiry held in public is likely to take any longer or cost any more than one held in private. It is up to a good and firm chairman to keep control. Experience has, however, shown that notwithstanding the skill and ability of the chairman public inquiries tend to last longer and cost more. Sir Thomas Bingham MR in Crampton regarded this as an undoubted truth and one only has to look at the B.S.E and Bloody Sunday inquiries to see two recent examples. Speed is important because the sooner any necessary changes are identified the sooner new systems can be put in place. Cost is important because the more that is spent on the inquiries the less there is to spend on the general needs of the N.H.S. This is a factor that the Secretary of State is properly entitled to have in mind. A related aspect is that the longer an inquiry runs on the longer human resources will be tied up with it when they should be running the health service. Another point taken is that it is difficult to implement changes of policy while an inquiry is still ongoing.
87. It is legitimate for the Secretary of State to take into account the impact of holding a public inquiry upon the N.H.S, not only diversion of resources but also the effect on recruitment, morale and so forth. No one of these points is decisive, but there is a large number of matters on which the Secretary of State has to make an evaluative judgment. He is in the best position to do that, to make an assessment and decide where the line should be drawn. There is in my judgment in making this kind of decision a wide margin within which the Secretary of State can act without intervention by the courts. Put in different words there is a strong element of policy in these decisions. If the Secretary of State thinks a private inquiry would best suit the aims he wishes to promote, and justifies one on that basis, anyone seeking to strike his decision down as irrational is likely to have an uphill struggle in the courts.
88. Interestingly, the evidence included a statement from the solicitor who represented a support group of parents in the Alder Hey inquiry. He says that after a lengthy debate about the relative merits of a public or private inquiry there was a vote and a majority of parents was in favour of a private inquiry, the determinative factor being speed of resolution. Whilst no two inquiries are the same Mr Cohen’s evidence does emphasise (i) the need to balance competing interests in deciding the form an inquiry should take and (ii) a perception that an inquiry held in private is likely to be quicker.

The purpose of the inquiries

89. In the end the most critical factor in the present cases is that the Secretary of State is looking to see what improvements can be made across the whole of the Health Service in the light of events that have occurred. The inquiries are looking forwards and not primarily backwards at precisely what these doctors and others did or did not do and to allocate blame. Here lies the distinction from Wagstaff. As Sir Thomas Bingham MR said in Crampton at 22 E: “It does not follow the procedures suitable for inter partes litigation or criminal prosecution are by any means necessarily appropriate for a fact finding exercise intended to result in management recommendations, a task quite unlike that which is entrusted to a court of law."
90. Great reliance was placed on how Professor Sir Ian Kennedy had handled the B.R.I inquiry. My attention was drawn to passages from the Final Report, section 1 chapter 2 where he noted that public inquiries did not have to be like courts of law and that case management techniques could be employed to stop them becoming too adversarial. But, as Mr Sales pointed out, Professor Kennedy’s observations have to be seen in the light of his particular inquiry. He was primarily looking at the past.
91. The plain fact is that inquiries held in public do tend to develop a life of their own, however efficiently or carefully they are managed. Public hearings tend to become more formal and adversarial. There is an expectation of greater lawyer involvement. Where a witnesses would feel sufficiently confident to go ahead in private without asking for legal representation that would not necessarily be so in public. The obligations of fairness tend to be more stringent when the inquiry is in public and this necessitates a greater protection for witnesses. The Secretary of State cannot forecast what will happen, but he can make a broad assessment of what is likely to happen. The evidence filed in these cases shows that the Secretary of State had access through his Department to ample advice to justify reaching the conclusion that he did, albeit on many of the issues there is more than one view.
92. Both Claimants argued that the mere presence of the media was no reason why an inquiry in public should be any different from one in private. However, it is in my judgment a gross over simplification to suggest that the inquiries proposed by the Defendant will, if they are held in public, will be in every sense identical save for the presence of the media. The next step in the argument is that there is no rational basis for excluding the media, which will in any event prejudice the victims. I have already endeavoured to indicate why, in my judgment, the presence or absence of the media is likely to make a profound difference to the nature of the inquiry.
93. I am not persuaded that the absence of the media is, in practical terms, likely to have any significant impact on the victims. An individual who is going to have difficulty attending the tribunal is going to have that difficulty whether or not the media are present. There is no reason why a victim should not ask the chairman’s permission for a representative to attend on his behalf. Also, it is reasonable to assume that victims groups will distribute information amongst their members. While the press or television might publish something that was eye catching it could hardly be said they would be a consistent source of all the information victims might want. It is also to be noted that Mr Fuge, one of the solicitors representing The Bristol Heart Children Action Group in the B.R.I inquiry, in speaking of accessibility to the inquiry, was concerned not about access on the part on the media but being able to track the evidence on the internet. Some of his clients, he said, read every transcript. The allegation in the present case is not that it is irrational not to have a web site available. The irrationality here is said to be keeping the media out. I am unpersuaded.

Article 10

94. Article 10 provides:

“1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary.”

95. Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way that is incompatible with a person’s Convention rights. The importance of freedom of expression is emphasised by Article 12 of the convention which says the court must have particular regard to it in considering granting any relief that might affect that right.
96. The first question is whether the decisions taken that the media and general public should be excluded from the hearings interfere with the Claimants’ rights under Article 10(1). If this question is answered in the affirmative it is then necessary to go on to consider whether any interference is justified under Article 10(2).
97. The Claimants’ case under Article 10(1) is that their right of freedom to impart and receive information has been breached by the Defendant’s decision not to hold the inquiries in public. There are therefore two arms to the claim, the right to impart information and the right to receive information.
98. The Divisional Court in Wagstaff was of the view that the decision in that case to hold the inquiry in private infringed the applicants’ rights of freedom of expression under Article 10. Both the decision of the Secretary of State and the Divisional Court hearing in Wagstaff predated the incorporation of the convention into English Law. The Court, however, proceeded on the basis that Article 10 was to the same effect as the English common law (see Balcombe L. J in Derbyshire County Council v Times Newspaper Ltd [1991] QB 770, 810).
99. The Claimants rely strongly on Wagstaff to support their contention that there has been an Article 10 infringement. Wagstaff is I think the high watermark of their case in this regard because in my judgment the Strasbourg decisions do not, on examination, support it. It should be noted that media were parties in Wagstaff; they are not in the present cases. Having made the point that Article 10 reflected in the English Common Law Kennedy L.J went on to say of Article 10(1):

“On the face of it the Secretary of State is thereby prohibited, in the context of the present case, from restricting a family witness waiting to give evidence from receiving information that others who are currently giving evidence wish or may be willing to impart to him, namely an accurate account of what they are saying not based simply on their own imperfect recollection after they have finished.”

100. He then briefly referred to Autronic AG v Switzerland (1990) 12 EHRR 485 to illustrate that Article 10 applies not just to the content of the information but also to the means of transmission and reception. It is important that Kennedy L.J qualified what he said by reference to the context of Wagstaff. There is an important difference in the facts of the present case. Following the revised arrangements the Claimants and all the other victims are entitled, if they wish, to be present throughout every minute of the inquiry, or to have a representative there.
101. But, the Claimants submit, Article 10(1) is of sufficiently wide ambit to be engaged on the facts of the present case. The media wishes to receive information that witnesses (like the Claimants) are willing to impart for the purpose of dissemination to the public in general. I am unable to accept this submission. There is no restriction on the Claimants receiving or imparting any information. Following the Secretary of State’s revised arrangements, they are perfectly free to sit through the whole of the inquiry if they so wish and to pass on any information they like to anyone.
102. It should be kept in mind that the rights asserted are those of the Claimants and not those of the media. As Mr Sales pointed out, insofar as the Claimants seek to rely on alleged rights of the press as a basis for their claims it is not permissible to do so because of the “victim” requirement in Section 7 of the Human Rights Act 1998.
103. In my judgment the right asserted by the Claimants is not really a right of freedom of expression but a right of access to information. What Article 10(1) is really about is the basic freedom of individuals to express themselves by giving and receiving opinions information and ideas without restriction on the part of the state. The European Court of Human Rights has consistently rejected attempts by applicants to assert a right of access to information under Article 10, holding that Article 10(1) does not confer a right on individuals to receive information that others are not willing to impart. See Leander v Sweden (1987) 9 EHRR 433. In Guerra v Italy (1998) 26 EHRR 357 the court rejected the argument that Article 10 imposed any positive obligation.

“…..to collect process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public.”

104. Accordingly, the Claimants do not have any right under Article 10(1) to require a public authority to gather information which they would have an interest in receiving, still less to require the public to gather that information in any particular form or manner (e.g. by public rather than private inquiry). Nor do they have a right to require the public authority to make some new means available to them to receive information.
105. Further, the holding by a public authority of an inquiry to obtain information for itself does not constitute any interference with anyone’s freedom to receive and impart information between themselves. All the inquiry does is provide people with an occasion for providing information to the public authority in circumstances arranged by the public authority. Far from restricting expression it is making arrangements for expression. The very fact of setting up the inquiry is creating an additional means for the exercise of freedom of expression. It supplements the right of freedom of expression rather than interferes with it. There is no free standing right to a public inquiry under Article 10. As Mr Sales observes, by setting up an inquiry in private the Secretary of State would not be interfering with any Article 10 right any more than, by for example, arranging for special e-mail links to be available only to a limited group of people.
106. If the Claimants’ argument is correct and Article 10(1) is engaged on the facts of these cases then on virtually every occasion, if not indeed on every occasion, an inquiry is set up to which the public are not to have access there will be a breach of Article 10(1) and therefore a necessity to go on to consider Article 10(2) I cannot believe this to be the law. The same, it seems to me, would apply to circumstances far beyond inquiries. (see paragraph 111 below).
107. The fact that the Convention makes express provision in Article 6 for public hearings in court proceedings and provides for when they should not be in public (in different terms from Article 10(2)) suggests that there is no right to a public hearing under Article 10 in relation to other forms of state inquiry. If the Claimants’ argument is right, there will be cases where both Article 10 and Article 6 must be satisfied because logically there would be no distinction, from the Article 10 point of view, between court proceedings and other inquiries. Why, in such circumstances, would the draughtsman not have provided the same rules for deciding when the hearing should be in private?
108. Further support for the Defendant’s argument is to be found in the fact that the European Court of Human Right has in certain circumstances identified implied obligations in Articles 2 and 3 of the Convention on state authorities to hold an investigation open to public scrutiny. This strongly suggests that, in the scheme of the Convention, Article 10(1) is not engaged when a public authority decides to undertake an investigation to obtain information for itself in private. If Article 10(1) were engaged in such a situation, so that the information obtained had to be made public, it is difficult to see why it was necessary to resort to an implied obligation under Articles 2 and 3. Secondly, the implied obligation as to publicity in Articles 2 and 3 is of limited ambit and does not apply to all situations where an investigation is required under those Articles. If Article 10(1) were engaged in such a situation it is difficult to see why the obligations as to publicity were not interpreted more widely and by reference to Article 10(2).
109. Turning specifically to imparting information, the Claimants submit that they are not able to impart information by the particular means of, or in the particular form of, evidence to a public inquiry.
110. Article 10(1) protects only those means for imparting information that are available to the relevant individuals. The decisions of the Secretary of State do not interfere with the Claimants’ ability to impart information by any means available to them. Nor does Article 10(1) create any right on the part of any individual to insist that a public authority provides positive opportunities in any particular form for the exercise of the right of freedom of expression. Where a public authority decides to hold a private inquiry there is no interference with the individual’s right of freedom of expression. As I have already mentioned the Claimants have no right to a public inquiry. The opportunity of participating in a private inquiry is the opportunity of exercising the right of freedom expression. Since a means of expression through an inquiry which receives evidence in public is not something that has ever been available to the Claimants, it cannot be said that the present decisions impose any restriction that engages Article 10.
111. Acceptance of the Claimants’ argument would lead in my judgment to an absurd conclusion. Any individual invited to express his opinion to a public body by any means, for example at a private meeting of a government department, would have a right to insist that the world at large be admitted to the meeting so that he could impart his opinion to it in the form of words spoken at the meeting (as opposed to being confined to repeating them later outside the meeting). Article 10(1) would be engaged to turn every private meeting into a public forum and on each occasion one would have to turn to Article 10(2) to consider whether a restriction was justified. I do not believe that to be the law.
112. I am not persuaded that the observations of the Divisional court in Wagstaff about the application of Article 10 compel me to decide it is engaged in the present cases. In my view it is not. The court thought in Wagstaff that the prohibition on reporting in that case was a breach of Article 10 but the decision in Wagstaff turned on rationality and was really independent of whether or not Article 10 applied. I respectfully differ from the view of the Divisional court about the application of Article 10 which, so it seems to me, is not supported by the jurisprudence of the European Court of Human Rights. I prefer the reasoning of Simon Brown L.J in Persey and others v The Secretary of State for the Environment Food and Rural Affairs (unreported) the judgments in which were handed down on 15 March 2002 immediately before this judgment. In these circumstances it becomes unnecessary for me to deal with the arguments on Article 10(2).

Articles 2 and 3

113. These issues arise only in the case of Wright-Hogeland. The contention is that, due to the misconduct of Neale, patients either lost their lives or were seriously injured and that accordingly Articles 2 and 3 were engaged. There was therefore an implied obligation under those Articles for the State to hold an effective investigation. The inquiry proposed by the Secretary of State does not, so it is said, satisfy this obligation because it is not independent and will receive evidence in private in a manner which is inconsistent with Article 10.
114. I shall deal with this matter shortly because in my judgment there are a number of conclusive arguments why this Claimant cannot succeed under these Articles. In the first place, for the purposes of a claim under Article 2, the Claimant is not a victim of any unlawful act as defined in section 7 of the Human Rights Act 1998. Therefore she has no right to complain under Section 7. Secondly, for the purposes of a claim under Article 2 there is insufficient evidence to establish that Neale caused any deaths as a result of malpractice by him. Also, clinical negligence is not a sufficient foundation for an Article 3 claim and here too the claim is unsupported by evidence.
115. Thirdly, the events giving rise to the Article 2 and Article 3 complaints occurred long before the Human Rights Act 1998 came into force. Neale has not worked at any N.H.S hospital since 1997. The Act does not have retrospective application and the claim has not been brought within the time limit prescribed by Section 7(5) of the 1998 Act. Furthermore, the Secretary of State’s decision did not purport to be taken to satisfy any requirements of Articles 2 or 3, so there is no distinct basis for treating him as subject to obligations under those Articles in respect of events occurring before the Human Rights Act 1998 was passed.
116. In these circumstances I do not propose to go on to consider the substantive merits of the Articles 2 and 3 arguments, some of which were delivered in writing by counsel (with my consent) after the conclusion of oral argument.
117. The claim on the Articles 2 and 3 issue as advanced in the amended claim form is a narrow one. It alleges that in order to comply with these Articles the inquiry must be independent, which it is not, and that it must (unless justified by reference to criteria in Article 10(2)) be held in public. The former allegation is not made out in fact or law and the latter, apart from being unsubstantiated, adds nothing to the Article 10 allegations.

Legitimate expectation

118. This aspect of the claim (advanced only in the Wright-Hogeland case) is that the Claimant has a legitimate expectation there will be an inquiry in public because of the way that government has ordered public inquiries into similar disasters in both medical and non medical spheres in the past. It is crucial for the public to feel confident that a searching investigation has been undertaken and nothing swept under the carpet.
119. There are innumerable instances of a public inquiry being held in a case where there has been a major catastrophe with a large number of victims. Where public confidence has been seriously damaged on a topic of great importance to society the government’s response has been to respond by openness and restore confidence via an open and transparent inquiry. Thus there is in this case and in similar situations a legitimate expectation on the part of the Claimant and those she represents that past experience would dictate that there should be a public inquiry. Fairness and good administration dictates that that expectation should not be dashed in the absence of very good reasons. Furthermore, there is no overriding consideration which justifies the frustration of this expectation.
120. Mr Lissack says that between mid May and mid July 2001 there was a substantial change in position on the part of the government. However, it seems to me that although the Department consistently said the inquiry would be full and independent so that all possible lessons could be learned for the future, it studiously avoided any representation that it would be held in public. However, the legitimate expectation claim is based not on any oral or written representation but on past practice. In reality, it seems to me, that what has happened in the past is more an adjunct to the rationality argument than a separate head of claim.
121. Mr Lissack relied on the statements of many distinguished and experienced people to illustrate the importance of having a public inquiry. For example Sheen J in the Herald of Free Enterprise Report cited by Clarke L.J in the Marchioness Inquiry:

“In every formal investigation it is of great importance that members of the public should feel confident that a searching investigation has been held, that nothing has been swept under the carpet and that no punches have been pulled.”

He also relied on the reference to a near presumption by Kennedy L.J in Wagstaff at 320F. In truth, however, Mr Lissack’s claim that there was legitimate expectation that the inquiry would be held in public fails on the facts. As the Divisional Court mentioned in Wagstaff, over the previous decade there had been no uniform practice and in each case the decision about the form of the inquiry turned on its own particular facts.

122. As I have already said, other than under the 1921 Act there is no presumption that an inquiry will be in public, the Secretary of State has to form a judgment as to what best suits the circumstances of each case. Strict conditions have to be fulfilled before a legitimate expectation arises in law. See R v Devon the North and East Devon Health Authority ex parte Coughlan [2001] QB 213. This head of claim fails both evidentially and as a matter of law.

Conclusion

123. In each case the challenge focuses on the decision that the evidence will not be taken in public session. Any former patient of the doctor concerned will, within the scope of the terms of the reference be able to provide evidence to each inquiry. The inquiries will each receive both oral and written evidence. Any former patient of the doctor concerned will be able to be present whenever she wishes throughout the inquiry. Matters of procedure are to be determined by the respective chairs.
124. The claim that the decision to hold the inquiries in private was in both cases irrational fails. The Secretary of State had to balance up the various considerations for public verses private. On many of the points there were and are differing opinions, each supported by respectable arguments. The critical factor was what the Secretary of State wanted the inquiry to achieve. That said, it becomes clear that Wagstaff was dealing with a very different situation. There is no presumption that inquiries should be in public (unless they are held under the Tribunals and Inquiry’s (Evidence) Act 1921) in which case the provision under Section 2 applies and the public is ordinarily permitted to be present. The real complaint in the present cases seems to me to be that the Secretary of State paid inadequate regard to the damage to public confidence created by the regrettable behaviour of both these doctors. It is clear from a consideration of the whole of the evidence that in both of these cases he had this important matter well in mind. There were, however, a number of other factors that militated against the inquiries being held in public. The Secretary of State was fully entitled to have regard to these and to conclude that they outweighed the arguments in favour of the inquiries being held in public.
125. Article 10 of the ECHR is not engaged and it is not therefore necessary to consider whether any infringement of Article 10(1) is justified under Article 10(2).
126. The inquiry is not, as alleged in Wright-Hogeland, ultra vires. Its terms of reference are a matter for the Secretary of State and fall within the ambit of the National Health Service Act 1977. It is nothing to the point that Ms Wright-Hogeland would have preferred wider or different terms of reference.
127. There is no legitimate expectation that because the government has ordered public inquiries into other disasters in the past there would be a public inquiry in the Neale case.
128. Neither Article 2 nor Article 3 of the ECHR is engaged.
129. The decisions of the Secretary of State, as amended, to set up each of these inquiries were lawful and therefore both claims for judicial review fail.
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MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down these applications fail.

MISS STERN: My Lord, I have no application for costs in this matter, but for the avoidance of doubt, I understand that the claimants will be seeking leave to appeal. In the event that there was any appeal to the Court of Appeal, just to avoid any doubt, the respondent does reserve the right to apply for costs in relation to such an appeal.

MR JUSTICE SCOTT BAKER: Yes.

MR FAULKS: My Lord, we would simply ask for our costs, detailed assessment of the publicly funded costs, that being the new way of describing a legal aid taxation of our costs.

MR JUSTICE SCOTT BAKER: Yes.

MR FAULKS: But otherwise no order as to costs.

MR JUSTICE SCOTT BAKER: I am glad to hear that the Secretary of State is not seeking an order for costs in this case and I shall make no order as to costs subject to publicly funding assessment of your costs.

MR FAULKS: My clients are grateful.

MR BOWEN: I have nothing to say on costs, but I do have something brief, however, to say on permission.

MR FAULKS: My Lord, I will be brief too. I was in court when the previous judgment was pronounced and heard the determination of the application for permission to appeal. Your Lordship is well aware of the arguments that were raised and could be raised as to why this matter should be taken further. What we say is that our case is much closer to Wagstaff than the foot and mouth application, and therefore less easy to distinguish, so that we were in a position of having two decisions of a divisional court and a decision of your Lordship which are not precisely in harmony. We submit that there are important issues here as to whether or not there is the presumption identified by Kennedy LJ for a hearing to be held in public, and, secondly, on the application of Article 10. These, in our submission, amount to compelling reasons why your Lordship should give permission to appeal, notwithstanding the determination of the court in which you were a member in the foot and mouth matter. That is my application, my Lord.

MR BOWEN: My Lord, all I can usefully add to that is two points. One relates to the submissions that were made in both cases relating to intensity of review and the engagement, even without Convention rights, of what we broadly called constitutional rights, and the very important argument that we say will have to be made at some stage by the higher courts on whether it is simply good old Wednesbury or a more intensive search by the court into the underlying facts. That is the first point. The second point, which your Lordship clearly thought was peculiar, was related only to the Wright-Hogeland case, the implied obligation.

MR JUSTICE SCOTT BAKER: Articles 2 and 3.

MR BOWEN: I am very aware of course that your Lordship did not go into the meat of those submissions, dealing simply with the question, are we a victim for the purposes of section 7, and the very tricky question of retrospectivity. On that point, my Lord, as I understand it, first of all, the decisions have not come out in the Court of Appeal yet in the Armein(?) cases. Also, from my possibly superficial researches, the retrospectivity point was not taken in any of those cases. It was taken in this case and was possibly the most important reason why your Lordship did not engage with the major argument on whether the right was implied or not. If it is a good point here, in my respectful submission, it is a good point there. It is a terribly important argument, even with your Lordship's findings and remarks in relation to the lack of evidence in relation to Article 2. In my respectful submission, there is very clearly good evidence here relating to Article 3. Accordingly, on that point alone, this case does merit further investigation at the next level.

MR JUSTICE SCOTT BAKER: I am not minded to grant leave to appeal for essentially the same reasons as were given by Simon Brown LJ in the foot and mouth case, and I am not persuaded that any of the additional reasons advanced in this case make a difference. Of course, it does not stop you from going to the Court of Appeal to ask for permission for appeal if you are minded to do so.

MR BOWEN: I am very grateful, my Lord.

MR JUSTICE SCOTT BAKER: I am very grateful to everybody for their helpful arguments.