Stewart-Brady, R (On the Application of) v Press Complaints Commission & Anor

A complaints body may conclude that no censure is warranted without deciding whether a technical breach of its code occurred, where its task is substantive and the circumstances do not justify censure in any event. Judicial review is a residual remedy. Intervention should be reserved for cases where it is clearly desirable, and courts should not rely on a technical interpretation of a code as the basis for intervention. In assessing whether publication of a photograph warrants censure, relevant circumstances include the public-interest context, the nature of the photograph, and the extent of intrusion, harassment or exploitation of vulnerability. The fact that a subject could be photographed does not itself establish compliance, but may be relevant to the seriousness of any intrusion.

The applicant sought renewed leave to apply for judicial review of an adjudication by the Press Complaints Commission concerning a photograph published beside an article in The Sun. The article concerned the applicant’s treatment as a patient at Ashworth Hospital, but no complaint was made about the article itself. The complaint concerned the photograph and alleged breaches of clauses 4, 6 and 8(ii) of the Commission’s Code of Practice.

The initial application was refused by a single judge. Jowitt J dismissed the renewed application. The Court of Appeal considered whether the Commission had arguably misdirected itself by treating the applicant’s crimes as removing protection under the Code, or by treating the fact that he could be photographed as conclusive. It also considered whether the Commission could conclude that publication did not warrant censure without making a formal finding on breach.

Application refused unanimously. Lord Woolf MR gave the principal judgment. Millett LJ agreed and added separate reasons. Potter LJ agreed with both preceding judgments.

1. The court assumed, for the purpose of the renewed application, that the Press Complaints Commission was amenable to judicial review. Whether it was in fact subject to that jurisdiction required determination after full argument, rather than on an application for leave. The court also declined to reject the application for delay at the leave stage if the merits otherwise justified leave, although applications of this kind should be pursued expeditiously.
2. The Commission was entitled to adopt a substantive approach. Where there was room for argument about a technical breach of the Code, but the Commission was clearly satisfied that no censure was required, it could state that conclusion without deciding formally whether a breach had occurred.
3. Clause 4 treated intrusion into private life, including photography on private property, as generally unacceptable unless justified in the public interest. Parts of a hospital where patients were treated or accommodated could fall within private property. Clause 6 added nothing material to this complaint, while clause 8(ii) was relevant because it specifically addressed photographing individuals on private property without consent.
4. The fact that the applicant was in a position from which he could be photographed did not establish that there was no breach of the Code. It was nevertheless relevant to the dimension and seriousness of any intrusion, particularly in relation to harassment. The Commission was entitled to consider the public-interest article, the indistinct and unobjectionable nature of the photograph itself, and the absence of intrusion, harassment or exploitation of the applicant’s vulnerability.
5. The adjudication did not show that the Commission considered the applicant to have forfeited all protection under the Code because of his crimes. On the proper reading of the adjudication, the Commission was entitled to conclude that, whether or not there had been a technical breach, publication of the photograph did not warrant censure. There was no realistic prospect of the judicial review claim succeeding.

The renewed application for leave was refused.

• Court of Appeal (Civil Division) — The renewed application for leave to apply for judicial review was refused unanimously: [1996] EWCA Civ 986.
• Queen’s Bench Division (Crown Office List) — Jowitt J dismissed the renewed application.
• Single judge — The initial application for leave was refused.