James Rhodes v OPO (by his Litigation Friend BHM) and another,  UKSC 32
The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.
The draft of Instrumental includes accounts of the physical and sexual abuse of Mr Rhodes by the boxing coach at his school, who died before a trial could take place. The attacks, which included repeated rapes, left Mr Rhodes with a spinal injury. As the Supreme Court judgment records, Mr Rhodes explains in the book that he “was used, fucked, broken, toyed with and violated from the age of six. Over and over for years and years”.
The book then charts Mr Rhodes’ years of drink and drug abuse, his self-harm and suicide attempts, as well as his admissions to psychiatric units. It goes on to describe how music helped him to turn his life around. As Lord Toulson told the court on Wednesday, it has been, for Mr Rhodes, “nothing short of a lifeline.”
Part of the book refers to Mr Rhodes’ first marriage to an American novelist and the son they had together. They later divorced. A residence and contact order dated June 2009 included a fairly widely-drafted recital by which the mother and Mr Rhodes agreed to use their best endeavours to protect the son “from any information concerning the past previous history of either parent which would have a detrimental effect upon the child’s well-being.” Mr Rhodes’ son, who is now twelve years old, has been diagnosed with Asperger’s syndrome, ADHD, dyspraxia and dysgraphia.
The first draft of the book was leaked to the mother in February last year. Subsequent changes were made, such as the use of pseudonyms. But in the mother’s view these did not go far enough. She was concerned that the book would cause psychological harm to her son if he came to read it or extracts from it.
This prompted High Court proceedings, eventually taken over by the son’s godfather. An injunction was sought prohibiting publication or requiring deletion of a large number of passages. A consultant child psychologist gave evidence that the son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book because of his difficulties in processing information.
In July 2014, Mr Justice Bean (as he then was) dismissed the application for an interim injunction – a predictable outcome, one might think. However, the Court of Appeal reversed that decision in October 2014 but decided that only one issue could go to trial: whether publication would constitute the tort first described in Wilkinson v Downton, a 118 year-old High Court judgment. In that case, a man had, in 1897, chosen the wrong east London pub landlady on whom to play a practical joke. Not prepared to laugh off the suggestion that her husband had broken both his legs at the horse racing and needed her to get him home, she responded by suing Mr Wilkinson. He was held to have committed the tort of intentionally causing harm. Mr Justice Wright opined:
“everyone has a right to his personal safety, and … it is a tort to destroy this safety by wilfully false statements and thereby to cause a physical injury to the sufferer.”
The Court of Appeal also granted an interim injunction restraining Mr Rhodes from publishing certain information including “graphic accounts of… sexual abuse he suffered as a child.”
The Supreme Court
The Supreme Court unanimously allowed Mr Rhodes’ appeal. The leading judgment was given by Lady Hale and Lord Toulson, with Lord Neuberger issuing a concurring judgment.
Lady Hale and Lord Toulson explained that the tort in Wilkinson v Downton consists of three elements: (1) a conduct element, (2) a mental element and (3) a consequence element. Only the first two were in issue in this case.
In order for the conduct element to be made out, the claimant would have to point to words or conduct directed towards the claimant for which there was no justification or reasonable excuse. For Lady Hale and Lord Toulson, the answer was clear:
“There is every justification for the publication. A person who has suffered in the way the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is the corresponding public interest in others being able to listen to his life story in all its searing detail.”
While recognising that the right to disclosure is not absolute because a person may, for example, owe a confidentiality duty, the Court was clear that there is no general law prohibiting the publication of facts which will distress another person. Lady Hale and Lord Toulson found it hard to envisage any case where words which were not deceptive, threatening or abusive could be actionable under the tort recognised in Wilkinson v Downton. The Court of Appeal’s analysis had been “novel” in two senses: first, the material was not deceptive or intimidatory but autobiographical; secondly, the objections were not directed towards the substance of the material but to the vivid form of language used to express it.
The Supreme Court also considered that the injunction granted by the Court of Appeal prohibiting graphic language was “wrong in principle and in form.” It was insufficiently clear what “graphic” meant and, in any event, a right to convey information to the public includes a right to choose the language in which it is expressed in order to convey the information most effectively. The Supreme Court quoted one particularly emotive paragraph in which Mr Rhodes described the effect of rape upon him when he was just six years old.
In terms of the mental element of the tort, there had to be an intention to cause physical harm or severe mental or emotional distress; recklessness would not suffice. In Mr Rhodes’ case there was no evidence that he intended to cause psychiatric harm or severe mental or emotional distress to his son, and no justification for imputing an intention to cause harm on the basis of harm being foreseeable. Intention is a matter of fact and, while it may be inferred from evidence, it is not to be imputed as a matter of law.
The Court concluded that there was no real prospect of establishing either the conduct element or the mental element. As Lord Neuberger explained:
“While there is some (disputed) evidence that they could cause the claimant serious distress, the contents of the defendant’s book are not untrue, threatening or insulting, they are not gratuitous or unjustified, let alone outrageous, they are not directed at the claimant, and they are not intended to distress the claimant.”
The Court allowed the appeal and restored the order of Mr Justice Bean. It maintained an order granted earlier in the proceedings protecting the identity of the child.
Mr Rhodes described the judgment as “an amazing, resounding endorsement” of the right of sexual violence survivors to tell their stories:
“One of the hardest things has been the secrecy involved; not being able to talk about it directly or indirectly, the threat of imprisonment should I even reveal there was ongoing litigation.”
It is difficult to know for sure what effect Mr Rhodes’ book may have on his son’s well-being, but one hopes that in the years to come he might feel a sense of pride in his father’s decision to share publicly the story of how he developed from “a walled-off, cement-shoed, lights-out automaton” aged six, to an internationally-acclaimed musician and a vocal witness to the violent sexual abuse to which he was subjected.
Instrumental will be published next week and is dedicated to Mr Rhodes’ son.