Mental health has become increasingly prevalent in certain defence cases in civil law, and the right to withhold the details of these cases involving mental disorders has been argued by some as the logical next step.
In 1996, a man – known to the public only as ‘C’ – was convicted for the murder of his ex-girlfriend and her new partner. Whilst imprisoned, C was diagnosed with a personality disorder – among other mental health problems – and was transferred to a high-security hospital under the Mental Health Act 1983.
Stephen Knafler QC argued in defence of C, after Appeal Court judges upheld a High Court ruling that denied C the right to anonymity during the review application of his case, back in July 2014. Knafler protested the decision, believing that legal challenges involving mental health patients should be held in private, or at the very least the patient’s identity should be protected.
The issue first became apparent following C’s appeal of the decision to refuse him unescorted leave in the community after his release from the medium-security hospital he was in at the time.
Removing Identity Protection Could Put Reformed Patients in Danger
Knafler reasoned that “everything said (about C) is liable to be published to the whole world and be on the internet for ever and a day”. He argued that patients without identity protection could be subject to “media bombardment”, which would prevent them from successfully reintegrating back into society – and could also potentially put them at physical harm.
The QC argued that patients were “under an extreme level of compulsion” and had no choice but to disclose “extremely frank” details in court in order to make up their defence case. He argued that during court sessions, the most unforgiving and private details about an individual’s mental state are revealed to courts and tribunals – details the patient has a right to withhold from the public domain.
In response to the “fundamental common law principle” that court cases must be held in public, Mr Knafler protested in 2014 that mental health cases are a “protected class”, which falls outside this general rule.
Currently, legal charges in all mental health tribunals withhold the identities of patients. With superinjunctions becoming ever harder to achieve, the QC argued that this right should be extended to the High Court and Court of Appeal hearings.
Should Anonymity Be Decided on a Case to Case Basis?
This case has brought to light the question of presumed anonymity for individuals who are appearing in court and also undertaking mental health treatment. Many have argued that applications for anonymity should be dealt with on a case-by-case basis, including Kate Olley, who was representing the then justice secretary Chris Grayling.
Grayling, who is said to have remained neutral in response to the case of C, has said he was “strongly opposed to the idea that there should be any general presumption of anonymity” in cases such as this.
The Media Lawyers Association has also spoken out, claiming that the case “raises significant issues about the open justice principle” and anonymity can only be justified “where it is strictly necessary”.
The case is currently in the hands of the Supreme Court, which is yet to release its judgement, but it could potentially result in a defining moment in British civil law.