Lexploria

AS TO THE ADMISSIBILITY OF

Applications No. 27436/95 and No. 28406/95

by Ian STEWART-BRADY

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 14 March 1995 and

29 June 1995 respectively by Ian STEWART-BRADY against the United

Kingdom and registered on 31 May 1995 and 1 September 1995 respectively

under files No. 27436/95 and No. 28406/95;

Having regard to:

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

the Commission;

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

applications;

- the observations submitted by the respondent Government on

22 April 1996 and the observations in reply submitted by the

applicant on 14 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1938. He is

detained in Ashworth Special Hospital. Before the Commission he is

represented by Mr. Robin Makin, solicitor of E. Rex Makin & Co.,

Liverpool.

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

summarised as follows.

A. The particular circumstances of the case

In 1966 the applicant was convicted of murdering three children

and was given a triple life sentence. He is detained in Ashworth

Special Hospital in Liverpool, having been transferred there subject

to a direction in 1985, under the Mental Health Act 1983. He suffers

from chronic paranoid psychosis and from depression.

In 1993 a book written by H. was published under the title "The

Devil's Daughter" ("the book"). It was based upon the pretence that H.

was the applicant's daughter. The book included numerous letters

falsely attributed to the applicant.

In January 1994 H. visited the applicant. The visit took place

in the interview room with constant staff supervision. Subsequently H.

tried to sell her story describing this visit to a newspaper. However,

after she had admitted that the facts invoked in the story were false,

the newspaper refrained from publishing it.

H. then sold the story to a national newspaper ("the newspaper").

The story was published on 12 June 1994, under the title "Brady abused

me in jail says his `daughter'". The article included allegations that

H. had undergone a "sex ordeal" with the applicant who had "tried to

molest" her in his top security cell, that he had "clumsily tried to

seduce her" and had "grabbed [her] face and stuck his tongue down [her]

throat".

It is asserted by H. that before publication she had informed the

newspaper that the allegations were in fact untrue. Subsequent to the

publication of the article, the applicant's mental state deteriorated

significantly. A psychiatric report indicated that this deterioration

was caused by the publication of the article.

The applicant was granted legal aid to seek, inter alia, damages

for malicious falsehood as regards the article published on 12 June

1994. The newspaper strongly criticized this fact in an article

entitled "Moors Killer Cash Scandal" which was published on 28 August

1994. The applicant brought an action against the newspaper. He alleged

that the article published on 12 June 1994 was untrue and that it had

been published maliciously, in that the publisher knew the allegation

to be untrue or was reckless as to its truth.

The applicant asserted that he had suffered actual financial loss

in that he had incurred personal expenses amounting to £71.50 in order

to seek redress. He also alleged that the words in the article were

likely to cause him pecuniary damage through the loss of privileges

which he enjoyed at the Ashworth Hospital and which comprised the right

to receive visitors, gifts and the discretionary weekly allowance of

£8.15 paid as a reward for work. Finally, the applicant alleged that

he had suffered anxiety, distress and injury to his feelings.

On 4 November 1994 the High Court rejected the applicant's

request for an interim injunction to restrain the newspaper from

publishing further material disparaging the applicant.

On 12 December 1994 the High Court, sitting in the hospital where

the applicant is detained, struck out the applicant's claim. In the

court's view, the applicant had no arguable claim that the publication

had caused or was "calculated" (in the sense of "likely") to cause him

financial loss. As regards the discretionary weekly allowance, the

applicant could not show that the withdrawal of the allowance was a

likely consequence of the publication. Further, neither a possible

deprivation of the other privileges nor the expenditure actually

incurred by the applicant in order to seek redress could come within

the meaning of financial loss as understood in the law of malicious

falsehood. The court, having found the applicant had suffered no

financial loss as understood in the law of malicious falsehood, went

on to hold that:

"Of course, this action in malicious falsehood cannot be brought

to maintain a reputation or to recover damages for insults to

reputation or to feelings."

Leave to appeal was refused, but the time for applying to the

Court of Appeal for leave to appeal was extended to 14 February 1995,

in order to enable the applicant to make an application to extend his

legal aid certificate.

On 26 January 1995 the Liverpool Legal Aid Area Office refused,

contrary to Counsel's advice, to extend the legal aid granted to the

applicant to cover an application for leave to appeal against the

judgment of 12 December 1994. In the view of the Legal Aid Area Office

the costs of further pursuing the proceedings were likely to exceed the

value of any benefit to be gained, and the prospects of success of the

proceedings were not such as to justify the granting of legal aid. On

23 February 1995 the Area Committee upheld this decision.

The applicant also sought to obtain legal aid to bring

proceedings against the publishers of the book "The Devil's Daughter".

According to Counsel's advice of 28 March 1995 it was not open to the

applicant to bring proceedings in malicious falsehood (due to the

decision of the court in the case against the newspaper) or an action

for libel (due to the pre-existing infamous reputation of the

applicant), and any likely award of damages in an action in false

attribution would be so small that legal aid would not be granted,

applying the test of reasonableness. The applicant did not obtain legal

aid.

B. The relevant domestic law and practice

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

Kingdom.

A defamatory statement involves the publication of any imputation

which tends to lower an individual in the estimation of right thinking

members of society generally, which tends to bring a person into

hatred, contempt, ridicule or would tend to cause the person to be

shunned or avoided.

Where a defamatory statement is made in a permanent form, the

person concerned can bring an action for libel.

The law of malicious falsehood requires a plaintiff to prove that

the words were false, that they were published maliciously and that

special (pecuniary) damage has followed as a direct and natural result

of their publication.

Pursuant to Section 3 (1) of the Defamation Act 1952 it is not

necessary to allege or prove special damage in an action for malicious

falsehood if the words upon which the action is founded are

"calculated" (i.e. likely) either to cause pecuniary damage to the

claimant and are published in writing or other permanent form or to

cause pecuniary damage to the claimant in respect of any office,

profession, calling, trade or business held or carried on by him at the

time of the publication.

Under Schedule 2 Part II of the Legal Aid Act 1988 legal aid is

not available for proceedings wholly or partly in respect of

defamation.

Pursuant to Order 80 Rule 1 of the Rules of the Supreme Court a

person who, by reason of mental disorder within the Mental Health Act

1983, is incapable of managing and administering his property and

affairs is a person under a disability for the purpose of civil

proceedings in the United Kingdom.

Under Rule 2(1) and 2(3) of the aforesaid Order a person under

a disability may not bring or make a claim in any proceedings except

by his next friend who must act by a solicitor.

The High Court has inherent jurisdiction to make orders deemed

to be in the welfare of children. Such orders have been made to protect

the illegal or otherwise potentially damaging attention of the media

afforded to children who have been convicted of murder. There is no

inherent jurisdiction to act in similar circumstances in the welfare

of persons under mental disability.

COMPLAINTS

The applicant alleges a violation of Article 3 of the Convention,

in that the United Kingdom authorities failed to protect him adequately

against degrading treatment to which he was exposed by the media.

The applicant further complains that, because of the bar on legal

aid for defamation proceedings, he was unable to bring an action for

libel. He alleges that he was thus deprived of access to a court as

guaranteed by Article 6 para. 1 of the Convention.

In the applicant's view the United Kingdom also failed to comply

with the positive obligation under Article 8 of the Convention, to

ensure respect for his private life.

Under Article 13 of the Convention, the applicant complains that

there was no remedy available to him under the domestic law.

Finally, he alleges a violation of Article 14 of the Convention

in that as a mentally incapacitated person without means he was not

granted the same protection of his Convention rights as the majority

of the population enjoy. He also complains that the welfare of people

under a mental disability is not protected in the same way as that of

children in similar circumstances.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 27436/95 was introduced on 14 March 1996 and

registered on 31 May 1996. Application No. 28406/95 was introduced on

29 June 1995 and registered on 1 September 1995.

On 18 January 1996 the Commission decided to join and communicate

the applications to the respondent Government.

The Government's written observations were submitted on 22 April

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 14 June 1996.

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

THE LAW

1. The applicant complains that the United Kingdom authorities

failed to protect him adequately against inhuman and degrading

treatment to which he was exposed by the media, and that this

constituted a violation of Article 3 (Art. 3) of the Convention.

The Commission notes that the Government had no involvement in

the alleged defamatory publications. However, even assuming that State

responsibility was engaged, the Commission considers the complaint

under Article 3 (Art. 3) of the Convention to be manifestly ill-founded

for the following reasons.

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

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government state that the nature and gravity of the

allegations in the newspaper article and the book, were not

sufficiently serious to amount to "torture or to inhuman or degrading

treatment", within Article 3 (Art. 3) of the Convention.

The applicant states that he endured and was unable to prevent

a widely publicised false attack upon his private life. He complains

that in consequence of these false publications he suffered a

deterioration of his mental state.

The Commission recalls that:

"ill-treatment must attain a minimum level of severity if it is

to fall within the scope of Article 3 (Art. 3). The assessment

of this minimum is, in the nature of things, relative: it depends

on all the circumstances of the case, such as the duration of the

treatment, its physical or mental effects and in some cases, the

sex, age and state of health of the victim, etc." (Eur. Court

H.R., Ireland v. United Kingdom judgment of 18 January 1978,

Series A no. 25 p. 65, para. 162).

The Commission accepts that the applicant may have been adversely

affected by publications he considered defamatory. However the

Commission considers in the circumstances of the present case that the

adverse consequences of the publication of such alleged defamatory

information cannot be said to attain the level of severity required in

order to constitute a breach of Article 3 (Art. 3).

It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains that the fact that he was unable to seek

any legal remedy in respect of the alleged false and defamatory

publications constituted a breach of the Government's positive

obligation to secure the right to respect for his private life as

guaranteed by Article 8 (Art. 8) of the Convention.

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

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government deny that the applicant suffered any invasion of

his privacy. They further submit that, although there is no general

cause of action for breach of privacy in English law, the right to

privacy is fully protected by a system of specific remedies. In the

context of false or defamatory publications, proceedings for

defamation, malicious falsehood and false attribution of authorship are

all prima facie available.

The applicant submits that defamatory articles and books

containing false information about himself constituted an interference

with his private life, for which there was no legal remedy available.

The applicant further submits that the Government have failed to act

to protect him, as a vulnerable mental patient, from such publications.

The Commission notes that there is no question in the present

case of any involvement by the respondent Government in the contentious

publications. In limited circumstances the Convention will impose a

positive obligation on a High Contracting Party to protect the right

to respect for private life (see Eur. Court H.R., X and Y v. the

Netherlands judgment of 26 March 1995, Series A no. 91 p. 11,

para. 23). While it is true that in English law there exists no

actionable right of privacy as such, the right is not without

protection, in particular through the law of defamation and malicious

falsehood. The applicant complains that he was unable to bring an

action for libel since he required legal representation and since legal

aid is unavailable for such proceedings. However, the Commission notes

that the applicant had been advised by counsel that an action in libel

would in any event be likely to fail, having regard to the applicant's

pre-existing reputation as a notorious murderer. The Commission

further notes that the applicant was granted legal aid to pursue an

action for malicious falsehood but that the action failed since the

applicant was unable to show that he had suffered financial loss as a

result of the publications. The fact that the applicant could not in

the particular circumstances of his case succeed in establishing either

cause of action does not in the view of the Commission cast doubt on

the effectiveness of the remedies in providing protection for private

life. The Commission therefore concludes that the case does not

disclose a failure to respect the applicant's rights under Article 8

(Art. 8) of the Convention.

It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains that, as a result of legal aid being

unavailable, he was denied access to court in order to challenge the

false nature of the publications.

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

as relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

The Government state that the unavailability of legal aid for

defamation proceedings, in the circumstances of the present case, does

not amount to a denial of effective access to court as guaranteed by

Article 6 para. 1 (Art. 6-1) of the Convention. They note that legal

aid was available and was granted to the applicant to take proceedings

for malicious falsehood against the publishing newspaper in respect of

the article, and was only discharged after the claim was struck out by

the court and the Legal Aid Area Office considered the prospects of

success at appeal did not justify further public expenditure. With

regard to the book, the Government note that legal aid was granted to

obtain counsel's opinion. It was on receipt of that opinion, which

considered that any likely award of damages would be modest, that legal

aid was refused.

The applicant states that he was denied effective access to

court. He complains that his mental state suffered as a result of the

publications and that compensation for such damage was not recoverable

in proceedings for malicious falsehood or false attribution of

authorship. Legal aid is not available to any person for proceedings

in defamation, however the applicant argues that as a mental patient

he had to be represented by a next friend acting by a solicitor and was

thus even denied the possibility of appearing as a plaintiff in person.

The Commission notes that Article 6 para. 1 (Art. 6-1) does not

guarantee a right to free legal aid in all civil cases. However in the

Airey case (Eur. Court HR, Airey v. Ireland judgment of 9 October 1979,

Series A no. 32 p. 12, para. 24), the Court decided that the right of

access to court guaranteed by Article 6 para. 1 (Art. 6-1) is a right

which is "practical and effective" and not merely "theoretical and

illusory". The Court held that as regards civil litigation:

"... Article 6 para. 1 (Art. 6-1) may sometimes compel the State

to provide for the assistance of a lawyer when such assistance

proves indispensable for an effective access to court either

because legal representation is rendered compulsory, as is done

by the domestic law of certain contracting states for various

types of litigation or by reason of the complexity of the

procedure or of the case." (p. 15, para. 26)

The Commission notes that because the applicant was under a

mental disability, legal representation was compulsory if he was to

bring proceedings. The applicant wished to bring libel proceedings,

however legal aid is not available for such proceedings. Thus prima

facie the Commission acknowledges there could be a potential problem

of access to court.

The Commission notes that the applicant was given legal aid to

seek legal advice on other possible proceedings in relation to the same

publications. In the case of the newspaper article he was given legal

aid to bring proceedings in malicious falsehood and subsequently legal

assistance to defend the newspaper's ultimately successful application

to strike out the case (the applicant was unable to show significant

financial detriment which was a necessary element in such proceedings).

In addition legal aid was granted to the applicant to obtain counsel's

opinion as to the possibility of bringing proceedings in relation to

the publication of the book.

Further, the applicant was infamous as a murderer prior to

publication of the defamatory material complained of. Counsel had

advised, in relation to the possibility of bringing proceedings in

relation to the book, that by virtue of the applicant's reputation he

had no realistic cause of action in libel. The applicant would have

faced the same difficulty in respect of a libel action against the

newspaper. In these circumstances and given the limited financial

resources of any civil legal aid scheme, the Commission considers that

it has not been shown that the absence of legal aid for defamation

proceedings by the applicant in relation to either the book or the

article was arbitrary.

In relation to the specific refusal of the legal aid board to

fund the appeal against the striking out of the applicant's claim in

respect of the article and the refusal to fund proceedings for false

attribution of authorship, both of these decisions were made on the

bases of there being no reasonable prospects of success and the costs

of funding litigation being disproportionate to any likely damages to

be awarded. The Commission does not consider such refusal for legal aid

to be arbitrary and as such the refusals cannot be criticised as

constituting a denial of access to court as guaranteed by Article 6

para. 1 (Art. 6-1) of the Convention (see X v. the United Kingdom, No.

8158/78, Dec. 10.7.80, D.R. 21, p. 95 at p. 101, para. 16).

Thus in the circumstances, the Commission considers that the

applicant was not denied right of access to court.

It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant complains under Article 14 (Art. 14) of the

Convention that he as a convicted murderer and a person suffering from

a mental disability was subject to discrimination in breach of Article

14 (Art. 14) of the Convention.

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

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government deny that there has been any discriminatory

treatment of the applicant. They further submit that the fact that the

applicant, being under a mental disability, was obliged to act by a

next friend with the assistance of legal advice, constituted a

legitimate restriction on the access to court.

The applicant considers he has been subject to discriminatory

treatment by virtue of his status as a person under a mental disability

and a convicted murderer. He further claims that the powers of the High

Court to restrict media attention, available in respect of children who

have been convicted of murder, should be extended to offer the same

protection to adults under a mental disability.

The Commission recalls that access to court may be subject to

limitations (See Eur. Court HR, Ashingdane v. the United Kingdom

judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). The

Commission considers that the fact that persons suffering from a mental

disability face a particular restriction, namely that they act by a

next friend who must be represented by a solicitor, does not constitute

a denial of access to court. As such the facts of the present case

disclose no discriminatory treatment of the applicant and thus no

appearance of a violation of Article 14 (Art. 14) of the Convention.

The allegation of discrimination, based on a comparison with

children convicted of murder, is a comparison of two different factual

situations and as such discloses no discrimination under Article 14

(Art. 14) of the Convention (See Eur. Court HR, Belgian Linguistic

judgment of 23 July 1968, Series A no. 6, pp. 33-34, paras. 9-10).

It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicant complains that he had no effective access to a

court to protect his interests and that this constituted a violation

of Article 13 (Art. 13) of the Convention.

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

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Government repeat their submissions made in relation to

Article 6 para. 1 and Article 8 (Art. 6-1, 8).

The applicant complains that his rights under the Convention had

been violated and that he had no effective remedy in the domestic

courts.

The Commission recalls that the guarantees of Article 13

(Art. 13) of the Convention apply only to a grievance which can be

regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the

United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14,

para. 31). In the present case, the Commission has rejected the

substantive claims as disclosing no appearance of a violation of the

Convention. For similar reasons, they cannot be regarded as "arguable".

It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATIONS INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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STEWART-BRADY v. THE UNITED KINGDOM

STEWART-BRADY v. THE UNITED KINGDOM