Reference: (1997) 24 EHRR CD 38
Court: European Commission of Human Rights
Date of judgment: 2 Jul 1997
Summary: Human Rights- Defamation - Libel - malicious falsehood - legal aid - mental patients - access to court - right to private life - inhuman and degrading treatment
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The applicant, the infamous Moors murderer, received a visit at Ashworth Special Hospital from a woman who had previously written a book falsely claiming that she was his daughter. After the visit an article appeared in a newspaper alleging that the applicant had sexually assualted the woman during the visit. The applicant brought proceedings for malicious falsehood against the newspaper which were struck out because he was unable to prove any financial loss that he would suffer as a result of the publication. He was granted legal aid for the purposes of an opinion on the merits of an appeal and other possible casues of action against the newspaper and the author of the book, but legal aid was subsequently withdrawn. As a mental patient the applicant could only bring proceedings through a next friend who must act by a solicitor.
(1) Whether the United Kingdom had failed in its duty under Article 3 to protect the applicant from inhuman and degrading treatment casued by the publications in the newspaper and the book;
(2) Whether the inability to bring proceedings for libel constitued a denial of access to court contrary to Article 6;
(3) Whether the inability to obtain any remedy in respect of the allegations amounted to a lack of repsect for the applicant’s private life under Article 8 and/or Article 13;
(4) Whether the rules on access to court which were applicable to the applicant, as a mental patient, were discriminatory contrary to Article 14.
(1) The United Kingdom authorities were not involved in the publications. Even if State responsibility was engaged, the nature and gravity of the allegations was not such as to amount to inhuman or degrading treatment.
(2) There was a potential problem of access to court for persons, such as the applicant, who were required to use the services of a solicitor to bring proceedings for which legal aid was unavailable. However, the Opinion which had been obtained indicated that the applicant had no reasonable prospect of success and that the costs of the proceedings would be disproportionate to any award of damages that might be made. In such circumstances the unavailability of legal aid did not constitute a denial of access to court.
(3) The fact that the applicant could not succeed in establishing a cause of action did not cast doubt on the effectiveness of those remedies in protecting private life.
(4) The requirement for a mental patient to act by his next friend.
This case is authority for a number of propositions, most notably that the positive obligation imposed under Article 8 does not require a State to adopt a general law of privacy. Notwithstanding that this applicant was unable to obtain a remedy for an interference with his private life, the United Kingdom was able to discharge its obligation by reference to the fact that such remedies usually provide a degree of protection. The Commission’s approach must now be doubted in the light of subsequent judgments of the Court, such as Peck v UK.