Stone v South East Coast Strategic Health Authority, Kent County Council, Kent Probation and Secretary of State for Health & Josephine Russell (Interested Parties) [2006] EWHC 1668 (Admin)

This case relates to the claimant, Michael Stone (S), convicted of the murders of Lin and Megan Russell, and of the attempted murder of Josie Russell.

Following his conviction an independent Inquiry was undertaken and completed 3 years after his conviction.  S co-operated with the Inquiry by giving it full access to his medical, probation and other records.  The intention of the Inquiry Panel was that its report would be published.  S accepted the report may be provided to health professionals and relevant professional bodies but he objected to the publication of the report to the world at large, although he accepted that some version of the report could and should be placed before the public.  He asserted that extensive citations from his private and medical notes would if publicised be a disproportionate and unlawful interference with his private life, contrary to Article 8 ECHR.  He also asserted that the publication would breach provisions of the Data Protection Act 1998.  The defendants, South East Coast Strategic Health Authority, Kent County Council and Kent Probation Service, resolved to publish the report in its entirety; S challenged this decision seeking declaratory relief, and a quashing order. The Secretary of State and Josie Russell were joined to the proceedings as interested parties.

The question for the court was whether the decision to publish the report was an interference of S’s right to privacy which was not justified under Article 8(2) ECHR.  Wider matters of pubic interest were also relevant such as the need for a person to able to freely discuss sensitive matters with his or her doctor, probation officer and social worker without being deterred by the risk of subsequent disclosure.  The court held that any such publication should pursue a legitimate aim and ensure that “the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.”  Campbell v MGM Ltd [2004] .  In such a case the provisions of Article 10 were also engaged because of the rights of the public to be free to receive information where it was sought to be published.

A balancing exercise was required for the purposes of Article 8.  S had conceded that there ought to be some publication to the public and it had a right to know what went wrong and be able to form an understanding of the conclusions reached.  However a redaction of the type proposed by S was not viable and would have devalued the report and could have misled the public.  There was a public interest in the public at large knowing of the actual care and treatment supplied to S and knowing the failures and deficiencies identified in the report.  The community had a reasonable and justified expectation that an Inquiry undertaken after such a high profile case would be publicised in full so that the public was not left in the dark about how it had happened or left to speculate about the lessons that should have been learned.  S had put himself in the public domain by reason of the criminal acts he had committed and of which he was guilty.  The detailed information contained in the report would serve to correct certain errors and inaccuracies in previous public reporting.  S was concerned that information published in the report would incline the public against his assertions but the court held that this was unlikely to significantly damage his reputation with regard to his criminality any more than previous publicity he had experienced.

The court held that a compelling case in favour of publication was made out, balancing relevant considerations under Article 8, and such a decision was proportionate and justified as being necessary in the public interest.  Article 10 was engaged and relevant and confirmed such a viewpoint.  It was desirable for the press and media to have access to the full report, the more so to correct previous publicised inaccuracies so that their summaries and their comments for public consumption were based on knowledge of the full facts as set out in the report.

EC Directive 95/46/EC of 24/10/95 is intended to provide “suitable safeguards so as to protect the fundamental rights and the privacy of individuals.”  The Data Protection Act 1998 in reflecting this Directive provides that personal data should be processed fairly and lawfully and shall not be processed unless one of the conditions in Schedule 2 is met or in the case of sensitive personal data, one of the conditions in Schedule 3 is also met. (Sensitive personal information includes information regarding the data subject’s physical or mental condition.)  It was not disputed that the defendant’s decision to publish would involve “processing” of “sensitive personal data” relating to S.  It was also conceded by S that a condition in Schedule 2 was satisfied, namely that “the processing was necessary .… for the purpose of any other functions of a public nature exercised in the public interest by any person.”  The court held  that since the defendants had the power to commission an inquiry under the National Health Service Act 1977, a condition under Schedule 3 paragraph 7 was also met, namely that “the processing was necessary for the exercise of any functions conferred on any person by or under any enactment.”  It rejected S’s submissions that this provision should contain suitable safeguards in accordance with the EC Directive.  The Act had built in safeguards and in any case the Directive allowed a margin of appreciation in its implementation.  The public interest required the publication of the report in full.  The decision to publish was justified and proportionate, and did not constitute an unwarranted interference with Article 8 and the ECHR.  Neither was there a breach of the Data Protection act 1998.

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