Robinson -v- Sunday Newspapers Ltd
Neutral citation (2011) NICA 13.
Court of Appeal Northern Ireland
Judgment was given on May 24th, 2011, by the Chief Justice, Lord Justice Morgan, with Lord Justice Higgins and Lord Justice Girvan concurring.
Judgment
The court ordered a private hearing of an application by Mrs Iris Robinson for an injunction to prevent the publication of details of her medical treatment. It found that reporting restrictions were not sufficient to prevent damage to her mental health because of the possibility of reporting of a public hearing taking place on social networking sites or the internet.
Background
The appellant is a former member of the Northern Ireland Assembly. In January 2010 she suffered an episode of mental illness following revelations about her private life which led to considerable media coverage.
In April 2010, the Sunday Worldpublished a series of articles with headlines which included "We find Iris" and "The Scarlet Woman goes for a stroll", accompanied by photographs of her taken in London.
She issued a writ seeking damages for breach of confidence and of her rights under articles 2 and 8 of the European Convention on Human Rights and for an injunction preventing further surveillance and photographing and preventing publication of information about her mental health and her treatment.
The court granted an interlocutory injunction and she asked that the full hearing be heard in private. Mr Justice Treacy said he would have to be persuaded this was appropriate.
In an affidavit, her solicitor said the photographs were taken while she was out for a walk as part of her ongoing rehabilitation and treatment. Her doctor said that further press surveillance or media coverage, including the taking of photographs, would increase her risk of self-harming or taking her own life and be likely to prolong her illness.
During the application, the applicant sought to have it heard in private, on the basis that the full application contained sensitive and intensely private material which would, if disclosed in open court, defeat the purpose of the application and generate further publicity.
Having considered the jurisprudence on the importance of the administration of justice in public, Mr Justice Treacy found that there was no evidence that the hearing of the case in public, if accompanied by restrictions on publication, would increase the risk of suicide. The risk of suicide could be mitigated or removed by reporting restrictions. She appealed against this ruling.
At the appeal, her doctor submitted a second affidavit, stressing that any such reporting would increase her risk of suicide or self-harm and impede her recovery. An affidavit from her solicitor confirmed that her family had stated she was acutely ill and on suicide watch.
Her lawyers submitted that ordering a hearing in private would be a precautionary step which could be reversed by publication of the judgment or a transcript after the hearing if this was considered appropriate.
She also said that the trial judge had failed to consider methods of reporting other than via the print media, including social networking sites and Twitter, which were less likely to respect reporting restrictions.
She pointed to the UK Supreme Court case, Al-Ghabra, where it was held that the principle of open justice may have to give way to the need to protect convention rights, in particular the right to life. The respondent contended that the appellant’s concerns could be met by the imposition of reporting restrictions.
Decision
Lord Justice Morgan said the medical evidence indicated there would be an increased risk of self-harm or suicide. He did not doubt that the respondent would observe a reporting restriction, but he added: “We should take judicial notice of the fact that social networking sites, Twitter and the internet generally, now provide an alternative means of publication to traditional daily or Sunday newspapers . . .
“In view of the interest . . . in the appellant’s medical treatment . . . we consider that there is a real danger that if these proceedings were open to the public the information disclosed in the hearing would be disseminated on the internet even if a reporting restriction was imposed.”
Following the full hearing, the trial judge will have to make a decision as to what material would be disclosed in a judgment and he could direct the availability of a transcript, he said. However, the court had a positive obligation under articles 2 and 3 of the ECHR to direct a private hearing of the application for the continuation of the injunction.The full judgment is on courtsni.gov.uk.
Barry Macdonald QC and Hugh MacMahon BL, instructed by Johnson Solrs, for the appellant; Nicholas Hanna QC and Robert Millar BL, instructed by Carson McDowell Solrs, for the respondent.