E v Channel Four & Another
Reference:  EWHC 1144 (Fam);  EMLR 709;  2 FLR 913;  UKHRR 789
Court: Family Division
Judge: Munby J
Date of judgment: 1 Jun 2005
Summary: Injunctions - Inherent jurisdiction - Capacity to consent to participation in television programme - Whether in subject's best interests - Balance between Article 10 and Article 8
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Instructing Solicitors: Hogans for the Official Solicitor; Simons Muirhead & Burton for Channel Four; Alastair Brett for The Times; and Peter Blackburn for the Interested Party
Channel Four had produced and were proposing to transmit a documentary about Pamela, a 32-year-old woman with a multiple personality disorder. The programme sought to contribute to public understanding of the condition from which she suffered as well as exploring more general issues about mental health. The Official Solicitor had been involved from an early stage in relation to the programme and had made certain demands on Pamela’s behalf. Eventually, although after some delay, the Official Solicitor applied for an injunction to prevent transmission of the programme on the grounds that Pamela lacked the necessary capacity to consent to participation in the programme and that transmission would be detrimental to her welfare.
(1) Whether Pamela had the necessary capacity to consent to the programme; (2) if not, whether it was in Pamela’s best interests that the programme should be broadcast; and, if not; (3) whether Pamela’s interests under Article 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweighed the private and public interests in freedom of expression under Article 10.
(1) The Official Solicitor was not likely to be able to establish at trial that Pamela did not have capacity to consent to the programme and, as such her views would be determinative of the issue and the injunction would be refused; (2) the Offical Solicitor was not likely, in any event, to establish that transmission of the programme would not be in Pamela’s best interests and, had it been necessary, the injunction would have been refused on that ground as well. The weight of the evidence suggested that transmission would have beneficial effects for Pamela; (3) It was not necessary to carry out the balancing exercise, but it was by no means clear that it would have led to the grant of an injunction.
This is the latest in a string of important decisions from Munby J in the area of media law as it affects the Family Division. The Official Solicitor emerges from the judgment in a very poor light. The injunction application was not supported by proper evidence and there had been substantial delay in bringing it before the Court. Further, the Official Solicitor had not even interviewed Pamela to ascertain for himself her views about the proposed programme. The judge, having watched the programme, described it as “a responsible piece of serious documentary film” and “a serious attempt to explore Pamela’s predicament and to explain it to the public in an educative and informative way.” Importantly, the Judge dismissed the Official Solicitor’s suggestion that broadcasters or print journalists should be required to obtain the consent of the Official Solicitor or the local authority before seeking to interview a vulnerable adult.