R (on the application of C) v Secretary of State for Justice [2016] UKSC 2

A convicted murderer detained under the Mental Health Act 1983 challenged the Secretary of State's refusal of unescorted community leave. The Supreme Court considered whether he should remain anonymous in the proceedings and granted anonymity, allowing his appeal.

Facts

The appellant, aged 46, had a long history of mental illness and was compulsorily admitted to psychiatric hospital under section 2 of the Mental Health Act 1983 in his twenties. Shortly after release from a second admission, he murdered a former fellow patient and her new boyfriend in a particularly savage killing. Convicted of murder in 1997 (and again after retrial in 1998), he received life imprisonment with a tariff later reduced to 11 years. In August 2000 he was transferred to a high security psychiatric hospital under section 47 of the 1983 Act, with restrictions under section 49. In 2007 he was transferred to a medium secure hospital.

In April 2013, the First-tier Tribunal notified the Secretary of State under section 74 that the appellant would, if subject to a restriction order, be entitled to conditional discharge. The Secretary of State referred the case to the Parole Board and twice refused consent for unescorted community leave. The appellant applied for judicial review of that refusal. The High Court initially granted anonymity, but Cranston J discharged it (save in relation to the hospital and staff) when dismissing the substantive claim. The Court of Appeal upheld that decision. The Parole Board subsequently directed the appellant’s release on life licence in September 2015, conditional upon a change of name to avoid media attention.

Issues

The Supreme Court identified two issues:

• Whether there should be a presumption of anonymity in civil proceedings (or certain kinds of civil proceedings) in the High Court relating to a patient detained in a psychiatric hospital or otherwise subject to compulsory powers under the 1983 Act.
• Whether an anonymity order should be made on the facts of this particular case.

Arguments

The appellant contended that anonymity was necessary to protect his health, treatment, and prospects of rehabilitation, and that compulsory mental health patients are routinely granted anonymity in such proceedings. His responsible clinician identified specific risks, including the need for enhanced hospital security, distress to victims’ families, impact on his treatment, and prior concerns about his safety if his whereabouts became known.

The Secretary of State adopted a neutral stance on appeal. The Media Lawyers Association intervened, emphasising the public interest in open justice and the importance of being able to identify the parties in proceedings.

Judgment

Lady Hale (with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hughes agreed) allowed the appeal and maintained the anonymity order.

Open justice and CPR 39.2(4)

Lady Hale reaffirmed that open justice is a fundamental principle, citing Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 and Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1. She acknowledged that publishing the names of parties serves a distinct interest from holding hearings in public, since stories about identifiable individuals are more engaging and effective in communicating information to the public.

Restrictions on publicity require a balance between article 8 (private life) and article 10 (freedom of expression) Convention rights, applying In re S (A Child) [2004] UKHL 47 and related authorities. The applicable test under CPR 39.2(4) is whether anonymity is necessary to protect the interests of the party.

The position of mental health patients

Lady Hale drew a distinction between ordinary civil proceedings involving a mental patient and proceedings concerning compulsory powers under the 1983 Act. She noted that in the First-tier Tribunal, Upper Tribunal and Court of Protection, there is a presumption of anonymity (and often privacy) in mental health cases. This reflects the longstanding practice of the High Court in former lunacy proceedings, and Lady Hale rejected Maurice Kay LJ’s reasoning in the Court of Appeal that this historical practice was inapplicable. She observed that statutory predecessors to the compulsory powers in the 1983 Act existed at the time of Scott v Scott, and that the judicial safeguards under those Acts were conducted in private.

The chilling effect

Lady Hale identified two aspects of the “chilling effect” of disclosure: (i) it may undermine the trust between patient and clinicians necessary for effective treatment and risk assessment; and (ii) it may discourage patients from bringing proceedings to challenge their detention, which is itself only compatible with article 5 of the Convention if subject to regular independent review.

Conclusion in principle

Lady Hale declined to lay down a presumption of anonymity in all such cases. The question in every case is that posed by CPR 39.2(4): is anonymity necessary in the interests of the patient? A balance must be struck between the public’s right to know who the principal actors are (particularly where notorious criminals are concerned) and the potential damage to the therapeutic enterprise and to the patient and others if identification occurs.

Application to this case

Although the crime caused incalculable distress to the victims’ families, their interests were protected through the statutory rights afforded by the Domestic Violence, Crime and Victims Act 2004. Public oversight could be achieved by holding hearings in public without identifying the patient. Weighing the chilling effect, the specific risks identified by the responsible clinician, the risks to the appellant from members of the public (recognised by the Secretary of State and by the Parole Board’s requirement that he change his name), and the importance of successful reintegration, Lady Hale concluded that anonymity was necessary.

Implications

The decision clarifies the approach to anonymity orders in High Court proceedings concerning patients detained or subject to compulsory powers under the 1983 Act. There is no automatic presumption of anonymity in such proceedings, but the court must apply the test in CPR 39.2(4) and balance the article 8 and article 10 rights at stake, taking into account the chilling effect on treatment and on patients’ willingness to invoke their right to challenge detention.

The judgment recognises that proceedings concerning the compulsory powers of detention, care and treatment under the 1983 Act are materially different from ordinary civil litigation and bear a close analogy to proceedings in the specialist tribunals and the Court of Protection, where privacy and anonymity are the starting point. The case is significant for mental health practitioners, hospital managers, patients, the media, and the courts in shaping how identification issues are approached when such cases reach the High Court or Court of Appeal, especially where notorious crimes are involved.

The judgment is carefully limited: anonymity remains a fact-sensitive inquiry, and the public retains a strong interest in knowing how sensitive decisions about dangerous patients are made. The decision does not extend a broader rule of anonymity beyond what is necessary to protect the interests of the patient in the particular case.

Verdict: Appeal allowed. The Supreme Court maintained the anonymity order in favour of the appellant.

Source: R (on the application of C) v Secretary of State for Justice [2016] UKSC 2