Supreme Court

Regina (C) v Secretary of State for Justice (Media Lawyers Association intervening)

[2016] UKSC 2; [2016] WLR (D) 34

2015 Oct 26

Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Carnwath, Lord Hughes JJSC

Mental disorder — Admission for treatment — Compulsory detention — Claimant committing double murder on release from compulsory detention in psychiatric hospital — Claimant convicted and sentenced to life imprisonment — While serving sentence claimant transferred to high security psychiatric hospital and later to medium security hospital — After completion of tariff period of sentence claimant’s responsible clinician applying for claimant to have unescorted leave in the community so as to assess his suitability for discharge — Application refused by Secretary of State — Claimant seeking judicial review and anonymity order for non disclosure of his identity — High Court dismissing claim and refusing anonymity order — Court of Appeal dismissing appeal against refusal of anonymity order — Whether general presumption of anonymity in civil proceedings relating to patients compulsorily detained in psychiatric hospitals — Whether anonymity order to be made in claimant’s case

Facts

The claimant, who had had mental health problems for much of his life, was compulsorily admitted under the Mental Health Act 1983 to a psychiatric hospital. On his release he murdered his former girlfriend and her new boyfriend in a particularly brutal manner. He was convicted of murder in 1998 and was sentenced to life imprisonment with a tariff which would expire in May 2007. However in August 2000 he was transferred to a high security psychiatric hospital pursuant to a direction of the Secretary of State under the 1983 Act. In 2007 he was transferred from a high security hospital to medium security psychiatric hospital and from 2009 he had escorted leave in the community where he did voluntary work. In 2012 his responsible clinician applied to the Secretary of State for the claimant to have unescorted leave in the community, which was an important component in assessing the claimant’s suitability for discharge from hospital. The Secretary of State refused the application. The claimant sought judicial review of the Secretary of State’s refusal and the proceedings in the High Court were anonymised. The judge dismissed the claim for judicial review and refused the claimant’s application for an anonymity order but made an order prohibiting the publication of the claimant’s name pending his appeal. The Court of Appeal refused the claimant permission to appeal against the dismissal of the claim, granted permission to appeal against the refusal to make an anonymity order, dismissed the appeal, but left an anonymity order in place pending an appeal to the Supreme Court.

Held

On the claimant’s appeal —

Held, appeal allowed. The question was whether anonymity was necessary in the interests of the patient. There was no general presumption that an anonymity order should be granted in every case where a patient who was detained in a psychiatric hospital was involved in court proceedings. A balance had to be struck. The issue of anonymity had to be decided in each case by taking into account the public’s right to know, not only what was going on in the courts, but also who the principal actors were, particularly where notorious criminals were involved because the public needed to be reassured that sensible decisions were being made about them. Balanced against that was the purpose of the detention in hospital for treatment, which was to make the patient better so that there was no longer a risk to the patient or to others. The whole therapeutic enterprise might be put in jeopardy if confidential information were disclosed in a way which enabled the public to identify the patient and it might also be put in jeopardy unless patients had a reasonable expectation that their identities would not be disclosed without their consent. The disclosure might also put the patient himself, the hospital, those treating him and other patients there at risk. The public’s right to know had to be balanced against the potential harm, not only to the patient himself but to all others whose treatment could be affected by the risk of exposure. The claimant’s case concerned a horrendous crime which had caused incalculable distress to the victims’ families, who had statutory rights to be informed of arrangements made for the claimant’s discharge. Although the public had an interest in knowing how difficult and sensitive cases of this sort were decided both by the Secretary of State and the court, that public oversight and the interests of the media were protected by holding the hearing in public so that the kinds of evidence and arguments considered were known, even if the identity of the patient concerned was not. Putting in the balance all the general considerations about harm to the claimant’s health and well-being and the chilling effect of a risk of disclosure upon his willingness to be open with his doctors and other carers, and upon his willingness to avail himself of the remedies to challenge the continued deprivation of his liberty long after the period deemed appropriate punishment for his crimes had expired, he was much more likely to be able to lead a successful life in the community if his identity were not generally known. Putting all those factors into the balance an anonymity order was necessary because without it there was a very real risk that the progress which the claimant had made during his long years of treatment would be put in jeopardy and his reintegration into the community, which was an important purpose of his transfer to hospital, would not succeed. Accordingly, the anonymity order would be maintained in place (paras 36 —40).

Appellate History

Decision of the Court of Appeal [2014] EWCA Civ 1009 reversed.

Appearances

Stephen Knafler QC and Roger Pezzani (instructed by Guile Nicholas Law) for the claimant.

Katherine Olley (instructed by Treasury Solicitor) for the Secretary of State.

Jude Bunting (instructed directly) for the Media Lawyers Association, intervening by written submissions only.

Reported by: Shiranikha Herbert, Barrister

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