Clauses Noted: 3
Publication: Liverpool Echo
Messrs E. Rex Makin, solicitors complained on behalf of Ian Stewart-Brady that photographs published in the Liverpool Echo, The Mirror and the Daily Record on 11 and 12 January 2000 represented an unjustified intrusion into his privacy in breach of Clause 3 (Privacy) of the Code of Practice.
The complaint was rejected.
The newspapers published photographs of Mr Ian Stewart-Brady which were taken as he was driven, under police guard, from Ashworth Hospital to Fazakerley Hospital. The accompanying texts reported that Mr Stewart-Brady had been on 'hunger strike' and that he was taken to Fazakerley Hospital for tests.
The solicitors said that the newspaper had been 'tipped off' and that the curtains of the van had been left open so that a photograph could be taken. They said that the photographs intruded into Mr Stewart-Brady's privacy without justification.
The Liverpool Echo said they had received information about Mr Stewart-Brady's visit to the Fazakerley Hospital and sent a photographer and two reporters to the hospital where they waited outside in an area open to members of the public. The photographs were taken from this position, using a normal lens, as the van drove past. The police present had raised no objection to their presence or conduct.
The Mirror and Daily Record argued that Mr Stewart-Brady had given up any right to privacy when he committed the crimes for which he has been convicted. He was sentenced to life imprisonment and the State, using tax payers money, is responsible for his welfare. Furthermore, he and his representatives have sought publicity for his condition by revealing to the media details of his campaign to have a right to starve himself to death. This campaign and the security operation to transport him to Fazakerley incurred further considerable expense to the public. The way he looks as a result of his campaign is therefore a matter of public interest.
The Commission disagreed with the arguments of two of the newspapers that Mr Stewart-Brady had given up any right to privacy - and indeed there are no circumstances in which the Commission would adopt such a line. The Code - in line with Human Rights Act - confers rights to privacy on everyone, no matter how horrendous their crimes.
The Commission therefore deployed the normal tests it would in such a privacy matter:
(i) Was the picture taken in a public place? (ii) Did it relate to a matter of public interest? (iii) Had the individual done anything to put issues relating to him in the public domain - and therefore provided de facto consent for the story? (iv) Had the individual taken steps to protect their privacy?
The Commission considered each of these in turn.
(i) It noted that the picture was taken in an area of the hospital grounds which was open to the public and that Mr Stewart-Brady was visible to anybody outside through the window of the van. There was no evidence that he had been harassed. There was therefore no reason why he - like any other individual - should not have been photographed.
(ii) It noted that Mr Stewart-Brady had been campaigning to have a right to starve himself to death. This matter has received considerable publicity and there was a campaign being conducted on his behalf about his position. This was clearly a matter of public interest.
(iii) The Commission noted that both Mr Stewart-Brady and his representatives have issued statements to the media about his clinical condition, his campaign and his objection to being force fed. It also noted that the complaint related only to the publication of the picture, not to the accompanying reports of his transfer to Fazakerley for tests. As the pictures only illustrated the stories, but were otherwise unexceptional, the Commission did not accept that they were either breaches or serious breaches of the Code; they were comparable to those considered by the Court of Appeal when, on a previous occasion, Mr Stewart-Brady unsuccessfully took the Commission to judicial review over its decision on a complaint he had made.
(iv) The Commission noted that Mr Stewart-Brady has failed to complain to the Commission about a number of previous articles which related to his health and his current campaign to have a right to starve himself to death.
The Commission found that the complaint failed on each of these counts. This was not an intrusion because the picture was taken in an area open to the public, it concerned a matter of public interest, and it illustrated articles about which there was no complaint. Furthermore, Mr Stewart-Brady has compromised his own right to privacy under the Code by putting material about his position at Ashworth into the public domain and then by complaining only selectively to the Commission about articles which relate to him.
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