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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Broadmoor Hospital Authority & Anor v R [1999] EWCA Civ 3039 (20 December 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/3039.html Cite as: [2000] 2 All ER 727, [2000] Lloyd's Rep Med 65, 52 BMLR 137, [1999] EWCA Civ 3039, [2000] QB 775, (2000) 52 BMLR 137, [2000] 1 WLR 1590, [2000] EMLR 245

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE POOLE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Tuesday, 20 December 1999

Tuesday, 20 December 1999

JUDGMENT

LORD WOOLF MR :

1. This case raises an issue of general importance. The issue is whether a statutory body is entitled to be granted an injunction in civil proceedings to support its performance of its statutory duties.
2. The claimants are Broadmoor Hospital Authority (the "Authority") and Dr. Vermeulen. Broadmoor is a special hospital provided by the Secretary of State for the Department of Health pursuant to S.4 of The National Health Service Act 1977 as amended. Special Hospitals are provided for the detention of persons who in the opinion of the Secretary of State "require treatment under conditions of special security on account of their dangerous, violent or criminal propensities". The Authority is responsible for the management and the provision of treatment at Broadmoor. Dr Vermeulen is the Responsible Medical Officer ("RMO") who has responsibility for treating the defendant.
3. The defendant is a patient suffering from paranoid schizophrenia. He is detained at Broadmoor as a result of his conviction for manslaughter of an occupational therapist in September 1991. At the time of his offence, the defendant was undergoing treatment for his mental illness. At the time of his offence, apparently, he had intended to kill a psychiatrist.
4. By May 1998, the defendant had written a book entitled "Armageddon Ahoy". The defendant at his own expense had made arrangements for the Book to be printed and published. On realising this, the Authority issued proceedings. Subsequently, Dr Vermeulen was added as a party. The Authority's legal advisers communicated with the Attorney General's office as to whether the Attorney General would be prepared to bring proceedings in his capacity as guardian of the public interest. The Attorney General was not prepared to do so.
5. In the amended statement of claim the claimants seek an injunction that that the defendant be restrained:

(a) from publishing or seeking to publish the Book entitled "Armageddon Ahoy" or any parts thereof.

(d) from posting to anyone save those persons identified in section 134(3) of the Mental Health Act 1983 (the "Act") the Book entitled "Armageddon Ahoy" or any part of the said Book.

6. The claimants also by an amendment pursuant to leave granted by this court at a directions hearing on 29 April 1999 seek declarations that :

(a) the first and/or second plaintiffs entitled to instruct the defendant not to keep in his possession and/or not to publish or seek to publish the Book.

(b) it would be unlawful for the defendant to publish the Book in its present form.

(c) the first and second (plaintiffs) are entitled to seize the Book or any parts thereof.

7. The claim for the declarations are not in issue on this appeal. Mr Richard Gordon QC, who appears on behalf of the defendant, accepted in argument that the jurisdiction of the court to grant the declarations which are now claimed may be wider than the jurisdiction to grant the injunctions.
8. On 1 May 1998 Mr Justice Colman made an ex parte order granting the injunctions. The defendant's agent delivered up the copies of the Book. That order in relation to the first injunction was then continued by Mr Justice Penry-Davis on 18 May 1998. On 12 October 1998 after hearing argument on behalf of the parties, Mr Justice Poole discharged the orders made by Mr Justice Colman and Mr Justice Penry-Davis. Mr Justice Poole also ordered that so much of paragraph 7 in the Statement of Claim as alleges (either expressly or by implication) that the plaintiff has power :

(a) to prevent the defendant keeping in his possession, custody or power any copies of the Book that are neither :

(i) within the confines of Broadmoor, or

(ii) in the course of transmission by post and/or

(b) to prevent the defendant from publishing the Book

be amended or struck out as disclosing no reasonable cause of action.

9. Mr Justice Poole also ordered that "all copies of the Book delivered by the defendant (whether personally or by his agent) from outside Broadmoor Hospital and received by the plaintiff" as a result of Mr Justice Colman's injunction should be delivered up to the defendants' solicitors within 7 days. Pending the hearing of this appeal, the order of Mr Justice Poole has been stayed.

The Statement of Claim

10. As the judge struck out part of the Statement of Claim its terms are relevant. The Statement of Claim recites the fact that Broadmoor at the relevant times only admitted patients "who would present a grave danger to the public" and that Sections 3 and 37 of the Act provide for the involuntary admission of patients and their detention in hospital for medical treatment. It also sets out that Section 63 confers an express power on the RMO to provide medical treatment without the patient's consent.
11. The Statement of Claim alleges that the hospital had the power and (by amendment) the right to control and discipline patients in Broadmoor including the defendant and to take all necessary steps to secure a safe and therapeutic environment for patients detained at Broadmoor. By amendment it also alleges that Dr Vermeulen, as the defendant's RMO, had the right and power to instruct the defendant to surrender or hand over any offensive or potentially harmful book in his possession that would damage or interfere with his effective treatment. It is also alleged that Dr Vermeulen had the power and the right to instruct the defendant not to publish a book or to court publicity in a way that would damage his treatment. Reliance is also placed on Section 134 of the Act which gives the authority to withhold from the post office a postal package addressed "to any person by a patient detained" if in the opinion of the managers of the hospital they consider the package is likely to cause distress to the person to whom it is addressed or to any other person (not being a person on the staff of the hospital) or cause danger to any person or staff.
12. An allegation is also made that by necessary implication Broadmoor has a general duty to ensure that patients do not transmit to the outside world materials or documents that are likely to cause distress to the person to whom they are addressed or to cause danger to any person. Reliance is also placed on a duty which those working in Broadmoor but to patients to preserve the confidentiality of details concerning the patients mental condition, their history, their treatment and their progress in Broadmoor. It is also alleged that the defendant owes a similar duty to his fellow detainees.
13. Paragraph 7 (now paragraph 9.1) of the Statement of Claim, referred to in Mr Justice Poole's judgment, in its amended form states that not only have the claimants the power to do the matters referred to in the judge's order, but they now have the duty and/or right to do those things and the claimants are entitled to instruct the defendant to deliver up the Book or material which relates to the Book.
14. The Amended Statement of Claim also refers to the publication by the defendant of an earlier book about his life and the fact that the publication caused a deterioration in the defendant's mental state and distress to the family of the occupational therapist who the defendant killed. The likely effect of the publication of the Book particularly if this attracted the attention of the media is amplified in the witness statements and affidavits prepared by Dr Vermuelen.

Dr Vermuelen's Evidence

15. In his evidence Dr Vermuelen refers to the contents of the Book which the court has had the opportunity to read. As he explains, the Book describes how the defendant killed his victim and sets out his justification for doing so. That description includes the fact that the defendant states that he had "behaved without malice and with the highest motives" and that he knew he was moral. A feature of the Book is that the defendant explains that he wanted publicity for himself and that the crime was committed to "make me newsworthy". The Book describes how he enquired of the police whether his killing had been reported. He "wanted to know whether the media had yet picked upon my case". Dr Vermuelen states that the defendant had no prior knowledge or encounter with his victim and in his, the doctor's opinion, the publication of the Book would cause distress to the victim's family.
16. Dr Vermuelen also points out that the Book contains references to thirteen other Broadmoor patients. And that if any of those patients had the opportunity to read the Book they would recognise themselves from its contents. The Book sets out details of his fellow patients history and offences including in at least one case what the doctor had written about that patient. Some of the details are said to be intimate or embarrassing and there are references to two suicide attempts on the part of fellow patients. He says that if the contents of the Book were to come to the patients attention they would be deeply disturbed. There is also a suggestion made that the patients could attack the defendant as a result of the publication.

The Judgment

17. The argument which was advanced before Mr Justice Poole was more restrictive than the argument which has been advanced before this court. In addition the Statement of Claim had not then been amended. However, in regard to that argument and on the pleadings in their then state, Mr Justice Poole concluded that the injunction had to be discharged because it depended upon the assertion of a power that the authority did not possess and was inconsistent with the structure of the Act.
18. Mr Gordon's principle argument in support of Mr Justice Poole's decision is that the court had no power to grant the injunctions. However he also submits that, in any event, they should not have been granted as a matter of discretion. The arguments raised on the appeal can therefore be conveniently divided under two heads. First of all the jurisdiction or the power of the court to grant the injunctions (the Jurisdiction Issue) and secondly, assuming the court has the power to grant the injunction, whether it was appropriate to grant the injunction on the facts of this case (the Discretion Issue).

The Jurisdiction Issue

19. Mr Gordon divides his submissions as to why the court lacks jurisdiction to grant the injunctions under a number of heads. They can however be conveniently regarded as addressing the lack of standing of the claimants and the absence of any involvement of a right of the claimants. The considerations which they raise overlap so I will deal with them together.
20. Usually, and probably invariably, if a person is entitled to be granted an injunction he will have the necessary standing to claim an injunction. Thus a party to a contract who is entitled to rely on a contract has sufficient standing to bring an action based on his rights under the contract, to seek an injunction. The situation is the same in tort. It is also true in relation to equitable rights. If you have an equitable right an injunction is available in support of that equitable right Thus in the Siskina [1979] A.C. 210, Lord Diplock pronounced his well known dicta that an injunction is available "in protection or assertion of some legal or equitable right which the High Court has jurisdiction to enforce by final judgment". (At p.356E-F) That valuable dicta has, however, to be applied with a degree of caution. It is far from being an exhaustive statement of the extent of the court's powers to grant an injunction or as a guide as to who is entitled to bring proceedings to claim an injunction. The correct position is succinctly summarised in Spry, The Principles of Equitable Remedies 5^th Ed. (1997) at p.32 in the following terms :
21. The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves , not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.
22. I recognise that the editor of Spry in the passage from which I have quoted cites in a footnote two statements, one of Lord Goff in South Carolina Insurance Co v Assurantie Maatschappij [1987] A.C. 24 at p.44-45 and the other Lord Nicholls in Mercedes Benz A.G. v Leiduck [1996] A.C. 283 at p.308 which are contained in minority speeches in the House of Lords on this subject. However, Lord Brandon in the South Carolina case in giving the opinion with which Lord Bridge and Lord Brightman agreed identified a further category of situation from that identified by Lord Diplock namely "where one party to an action has behaved or threatens to behave in a manner which is unconscionable" and in addition referred to two exceptional situations which also do not fall within Lord Diplock's classification, namely the grant of an injunction to restrain proceedings in a foreign court and the grounds for the grant of a Mareva or freezing injunction.
23. Lord Goff's reluctance in the South Carolina case "to accept the proposition that the power of the court to grant injunctions is restricted to certain exclusive categories" and Lord Nicholls' statement in the Mercedes Benz case that there are "highly persuasive voices that the jurisdiction to grant an injunction, should not be rigidly confined to exclusive categories by judicial decision" have been echoed in New Zealand by Cooke P (as he then was) in TV3 Network Ltd v Eveready New Zealand Ltd [1993] 2 NZLR 435 when he stated "the remedy of injunction should be available whenever required by justice" (at p.438). This is an approach which I would respectfully endorse.
24. Lord Diplock in the Siskina case and Lord Brandon in the South Carolina case were not, for example, dealing with applications for judicial review. This approach was not exhaustive. From 1977, an injunction has been available as an alternative remedy to the prerogative writs on an application for judicial review and on an application for judicial review there is a different test to establish standing, namely that of "sufficient interest in the matter to which the application relates". (Order 53r.3(7) and Section 31 of the Supreme Court Act 1981). This test does not depend on rights. "Sufficient interest" has been approached by the courts in a generous manner so that almost invariably if an applicant can establish a case which deserves to succeed, standing will not constitute a bar to the grant of a remedy. This is a sensible and an appropriate approach since the purpose of rules as to standing are to protect the courts from being troubled by litigants who have no interest in the litigation and are mere busy bodies. They are not designed to prevent litigants who have a meritorious claim from pursing that claim.
25. The broad approach on an application for judicial review is in accord with the approach of Lord Goff and Lord Nicholls but it must be recognised that it does not yet reflect the position in ordinary private law proceedings in the courts. In particular without the assistance of the Attorney General, Mr Gordon is right to submit that in general a member of the public is unable to bring private law proceedings and obtain an injunction to uphold public rights or to enforce public duties or to enforce the criminal law. (See Gouriet v Union of Post Office Workers [1978] AC 435). He submits here we are in the area, if any right is involved, of public law rights. Again, however, it must be recognised that the general rule states how the jurisdiction of the court will be exercised in practice rather than defining that jurisdiction which is statutorily codified by Section 37 of the Supreme Court Act 1981. There can therefore be situations where in private law proceedings there are situations where the courts will recognise the ability of an individual to obtain injunctive relief even though the courts will be intervening to protect a public duty. Thus, in the Chief Constable of Kent v V [1983] 1 QB 34 this court recognised the standing of the Chief Constable to obtain an injunction to prevent the dissipation of assets which the police had a public law duty to preserve pending the resolution of a criminal trial. Differing reasons were given by the members of the court for this conclusion and the approach of Lord Denning MR has been doubted in subsequent cases including the Chief Constable of Hampshire v A Limited [1985] QB 132. Nonetheless, the correctness of the result in that case has not been doubted. The justification for the decision in my view is the fact that the Chief Constable has a special responsibility for the enforcement of the criminal law.
26. In the Chief Constable of Kent case, the Chief Constable was not in a position to rely on any statute. A statute can expressly authorise a public body to bring proceedings for an injunction to support the criminal law. This is the position under the Local Government Act 1972 (section 222). In relation to many statutory functions the power to bring proceedings can be implicit. The statutes only rarely provide expressly that a particular public body may institute proceedings in protection of specific public interests. It is usually a matter of implication. If a public body is given responsibility for performing public functions in a particular area of activity, then usually it will be implicit that it is entitled to bring proceedings seeking the assistance of the courts in protecting its special interests in the performance of those functions. The position is analogous to that which exists where a member of the public suffers special damage in consequence of a public wrong. Mr Gordon submits this wider jurisdiction is confined to the grant of a declaration and it is correct that most of the examples where a statutory body has been granted relief are cases where what was being sought was a declaration. However, once it is recognised, that the public body has standing, then I can see no reason why the remedy available to the public body should be confined to a declaration and not extend also to an injunction. Of course, the court may be more prepared to grant a declaration than an injunction as a matter of discretion but the decision will then not turn on a lack of standing or an absence of jurisdiction. I would therefore summarise the position by stating that if a public body is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the courts should grant such an application when "it appears to the court to be just and convenient to do so".
27. In his submissions Mr Gordon not only challenges the existence of any such approach as I have identified but also submitted that what was involved here was not the authority's rights or duties but powers. I do not accept Mr Gordon's approach. The legislation which deals with the running of the special hospitals and the treatment of patients detained there makes it clear that the authority has duties. It has duties to treat the patients; it has duties to maintain the security of the hospital and it has a duty to provide a therapeutic environment. As a consequence of its duties it can be said to have certain implicit statutory rights. It has for example the right to search patients or for that matter visitors. Mr Gordon would describe this not as a right but a power. It can appropriately be so described but once the authority has in its discretion determined that it should exercise the power, it becomes under a duty to exercise the power and has the right to do so. The power, the duty and the right are public law and not private law rights but in my judgment this does not affect the ability of the authority to seek an injunction or the jurisdiction of the court to grant an injunction. (See R v Broadmoor General Hospital Authority ex parte S H & D 5^th February 1998 and R v Broadmoor Special Hospital Authority ex parte SHDL 15 October 1997 at p.27 et seq and Poutney v Griffiths [1976] A.C. 314 especially at p.335).
28. Mr Gordon accepts that the Authority has responsibilities on these lines but he would submit that in addition to being only powers they are confined to what happens within the confines of the hospital and does not extend outside the perimeters of the hospital in the absence of express statutory authority. Furthermore he submits that as the authority is well able to rely on its general powers such as its powers to search the inmates, no intervention by the courts by way of injunction is required.
29. It is important to note that the grant of the injunction need not be to enforce the statutory power directly. So here there is no express power to seize books outside the hospital. However, if it can be shown an activity is taking place outside the hospital the court may, if appropriate, grant an injunction to restrain that activity if it is an activity which can be shown to be having a sufficiently significant impact on the security of the hospital or the treatment of a patient. There would need to be circumstances warranting the interference with a third party. Here this creates no difficulty because the third party, the printer, is only involved as the patient's agent. If however there were to be someone who was not a patient who was indulging in conduct, for example writing letters to patients which was interfering with security or treatment in the hospital there would be jurisdiction to grant an injunction.
30. Mr Gordon also submits that Section 134 of the Mental Health Act is inconsistent with the court being able to grant an injunction. Section 134 confers on the authority a specific power to seize postal packets to prevent the dissemination of material by detained patients that are likely to cause distress to the person to whom it is addressed or to any person or to cause danger to any person. Mr Fitzgerald relies on this power and submits that the court could where appropriate uphold this power by the grant of an injunction. Mr Gordon disputes this and contends that to grant an injunction on this basis would bypass the prisoner's express statutory right to a review of the exercise of this power under Section 121 of the Act. The power contained in Section 134 of the Mental Health Act, is partly explained by the fact that in the absence of this power, to interfere with a postal package can be an offence under Section 56 of the Post Office Act 1953. Furthermore, while it is correct that the grant of an injunction could bypass the statutory right of review, this point has reduced significance because the court before granting an injunction would be required to be satisfied that the intrusion into the patient's interest which the injunction would involve was justified. Again I regard the existence of the power under Section 134 as being relevant to discretion and not jurisdiction.
31. There are submissions of Mr Gordon which I would accept. First I would accept that the authority cannot bring proceedings to protect any patients' right to privacy or confidence. To protect other patients, the authority have to rely on the interference which the conduct of which complaint is made would have on the performance of their duties. In particular, duty of the Authority to maintain security, order and a therapeutic environment within the hospital. The position is the same with regard to the family of the defendant's victim. Naturally, the court would wish to protect them from being caused further distress. But regrettably I do not consider that the courts here can help in proceedings brought by the Authority. The powers and responsibility of the Authority do not extend to providing the protection the family would like unless the conduct complained of affects the Authority's responsibilities within the hospital.
32. As far as jurisdiction is concerned therefore, I regard the court as being able on the application of the authority to grant an injunction if the grant of that injunction is justified in order to enable the authority to perform its statutory responsibilities. It must however be recognised that primarily these responsibilities relate to what happens within the hospital. Conduct outside the hospital can affect what happens within the hospital and if this is so jurisdiction exists in the court to provide protection by injunction.

Discretion

33. I therefore turn to whether it is right for either of the injunctions which were claimed to be granted. Poole J on the more restricted argument before him, came to the conclusion that the injunction should not be granted because they depended upon the assertion of power which the plaintiff did not possess and because of the structure of the Mental Health Act 1983. As to the structure of the Act and the powers of the plaintiff, I take a different view from the judge in so far as what happens outside the hospital affects what happens within. I do however consider that his decision was right as a matter of discretion. My reasons are as follows :

(i) To grant an injunction against a patient who is detained, without limitation of time, which is the defendant's position, is an exercise of jurisdiction which will rarely be appropriate. Mr Gordon is right that generally the authority's own internal powers will be sufficient and will not require the backing of the court. In addition there are problems where there is no practical step which the courts can take to enforce the injunction because the patient is already compulsorily detained. This underlines the unsuitability of granting an injunction.

(ii) No doubt the object of obtaining an injunction was to bind the printers and publishers as the defendant's agent. The injunction would have been capable of being enforced against them and as a matter of principle I would not regard this as an impermissible objective if otherwise the Authority's powers would be adversely affected. The fact that the printers and publishers are independent third parties means however that caution should be exercised before an injunction is granted with the intention that it should only in practice bite on a third party. Furthermore, the court would need to be satisfied it is required for example to maintain security or to treat the patient.

(iii) It follows that the fact that the injunction is designed to operate outside the confines of Broadmoor is not in principle a reason why an injunction should not be granted. If for example an individual was causing interference with the discipline of a special hospital by writing letters to the patients then notwithstanding the ability of the authority to censor correspondence, in the appropriate situation an injunction against the individual could be granted to reduce the risk of discipline being undermined and treatment interfered with. However there would need to be a substantial risk of the Authority's powers being prejudiced and I am not satisfied there is such a risk here.

(iv) The concern of the Authority here is less with the publication of the Book than the publicity in the media which could occur as a result of the Book being published. Mr Gordon properly draws attention to the importance which the common law and Article 10 of the European Convention of Human Rights attaches to freedom of speech. The freedom is not unqualified but this remains an important consideration.

(v) Injunctions should not be granted if they are unlikely to be effective. I have grave reservations as to whether it could be possible prevent publication in the media now that the Book has been printed and has been in limited circulation. The grant of the injunction which the plaintiff's seek would be likely to have to be followed up by further actions in the court. An illustration of what can happen has already been provided by the application which the Authority made to restrain publication of these proceedings. I understand the desire of the Authority to protect the defendant and his fellow patients, but I am far from satisfied that this can be in fact achieved by the grant of the injunctions which are sought.

34. On balance I have therefore come to the conclusion that the injunctive relief which is sought is not a remedy which should be granted.
35. Although therefore I would dismiss the appeal, I would emphasise that it is my earnest hope that the media will feel it appropriate to exercise self-restraint in relation to the publicity they give to these proceedings and to the Book. Although the court is not in a position to protect the family of the defendant's victim, I would hope that this is a matter to which the media will give appropriate weight. I would also hope that the media will fully take into account the fact that if they do give extensive coverage to the defendant's Book, they will be fulfilling the purpose for which the defendant committed his horrendous crime.
36. We have not had an opportunity of hearing an argument as to what consequential orders are appropriate in the light of our decision on this appeal and while I would dismiss the appeal I would be prepared to hear submissions as to consequential relief.

LORD JUSTICE MORRITT :

37. The circumstances in which this appeal arises have been fully described by the Master of the Rolls. I gratefully adopt his account of them. The question is whether the court has jurisdiction to grant to the Broadmoor Hospital Authority ("Broadmoor") an injunction requiring the defendant ("R") to deliver up to them the manuscript of the book he has written so as to prevent its publication. It is common ground that the manuscript was not, when such an injunction was originally granted by Colman J on 1^st May 1998, physically within the confines of Broadmoor. It was held by a publisher but as agent for R. It is also common ground that R is not incapable, by reason of any mental disorder or otherwise, of managing and administering his own property and affairs. Accordingly the Court of Protection has no jurisdiction over him or his property. s.94(2) Mental Health Act 1983.
38. The factual justification for preventing publication advanced in the evidence is fourfold, namely (1) the distress to the relatives of R's victim; (2) the serious risk to R of violent assault by those of his fellow patients he has identified in the book; (3) the detrimental effect on the mental health of R of discovering, following publication, that his claim to be "innocent" and blameless is not accepted by others, described in the affidavit of the Responsible Medical Officer as "certainly not conducive to his treatment" and (4) the disturbance to and interference with the treatment of the other patients details of whose offence, disorders or treatment are disclosed in the book.
39. It is not suggested that any of these concerns is not real. In particular I share the first. It is therefore with the greatest regret that I conclude that it cannot be any justification for the implication or exercise of the requisite power as it would have nothing to do with the performance of the functions or duties of Broadmoor. The second and fourth factors could not justify the width of the injunction sought because there are only about 13 pages out of 150 in which material relevant to other patients in Broadmoor is contained. Thus the claim must be tested by reference to the powers and duties of Broadmoor relating to the treatment of R.
40. Of the three grounds originally advanced in justification of the injunction the only one now pursued is an implied statutory right or power to require a patient undergoing treatment not to publish a book written by him and, if required, to deliver up to Broadmoor the manuscript and any copies of it under the patient's control even if situate outside Broadmoor. The implication is said to arise from the duties and functions of Broadmoor as a special hospital provided by the Secretary of State for Health pursuant to s.4 National Health Service Act 1977 for persons subject to detention under Mental Health Act 1983 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. It is the function of Broadmoor to provide such treatment and a safe therapeutic environment within which to do so. R v Broadmoor Special Hospital Authority, ex parte S, H and D (Court of Appeal 5^th February 1998 unreported).
41. In the performance of those functions Broadmoor has both express and implied powers. The express powers include a power, s.63, to carry out most forms of treatment under the direction of the responsible medical officer but without the consent of the patient and a power, s.134, to intercept incoming or outgoing mail. But, as Auld LJ observed in R v Broadmoor Special Hospital Authority, ex parte S, H and D (CA Transcript p.14), the relevant legislation leaves unspoken many of the necessary incidents of control flowing from a power of detention for treatment. Those powers are to be found by implication. But, as this court held in that case, the test for the implication of such powers is that of necessity. (CA Transcript per Auld LJ at pp.15-17 and per Judge LJ at p.25).
42. The injunction sought would interfere with the exercise by R of his civic right of free speech and his proprietary right as the owner of the copyright in the book. As such the test for the implication of the necessary power is the stringent one to which Steyn LJ referred in R v Home Secretary, ex parte Leech [1994] QB 198 at p. 212E, namely whether "there is a self-evident and pressing need" for the power in question. per Auld LJ in R v Broadmoor Special Hospital Authority, ex parte S, H and D (CA Transcript at p.15)
43. The necessity relied on by Broadmoor is the corollary of their power and duty to detain a patient for treatment. Treatment is widely defined in s.145 Mental Health Act 1983 as interpreted by this court in B v Croydon Health Authority [1995] 1 AER 683. I can well understand that in certain cases publication may frustrate or undermine particular treatment being administered to a patient. But, in that event, the necessity would not be confined to publications by the patient alone but would extend to publications by third parties. In opening this appeal Mr Fitzgerald QC for Broadmoor limited the implication for which he contended to a power exerciseable in respect of the patient only. But in his reply he recognised that if the requisite necessity existed with regard to publications by the patient the power must extend also to publications by third parties. In my view that concession was right. Thus the real issue is whether a right or power for a special hospital to control publications liable to frustrate or undermine the treatment of one of its patients can be implied from the duties and functions imposed on it by statute.
44. The answer to the issue so formulated is, in my view, clear. A power of such constitutional significance is not to be implied. If Parliament is to grant such a power, and in my view it must be a matter for Parliament and not the discretion of the court, then it must do so in terms which admit of no doubt as to its intention. cf R v Home Secretary, ex parte Pierson [1997] 3 WLR 492, 507.
45. Even if the implication sought is limited to a power exerciseable in respect of publications of the works of the patient I do not consider that it can be made. It may well be desirable to have such a power, if only to back up that conferred by s.134, but that is not sufficient. McCarthy & Stone (Developments) Ltd v Richmond upon Thames LBC [1992] 2 AC 48, 70/71. I am not satisfied that there is any necessity for it whether expressed as a self-evident or pressing need or otherwise.
46. S.134 entitles Broadmoor, subject to exceptions concerning MPs and similar persons, to intercept incoming and outgoing mail to or from a patient. But the conditions for the exercise of the power are strict. Outgoing mail from the patient may be stopped if it is likely to cause distress to any person, not being on the staff of the hospital, or danger to any person. Incoming mail addressed to the patient may be stopped if it is necessary to do so in the interests of the safety of the patient or for the protection of other persons. But the decisions of the managers of the special hospital in this respect are subject to review by the Mental Health Act Commission pursuant to s.121(7) Mental Health Act 1983.
47. The power Broadmoor contends should be implied would not be subject to the express safeguards built into s.134. It was suggested that the discretion of the court whether to grant an injunction and if so on what terms, could be used to provide equivalent safeguards. In my view that would not be sufficient. The court could only provide such safeguards in those cases where it was necessary to resort to the court. In many cases it would not be.
48. It was also suggested that the implication of the power would be inconsistent with the express provisions of ss.134-138 and the assumptions underlying s.134 Mental Health Act 1983. Ss.134-138 are all concerned with the control of the patient or his communications with persons outside Broadmoor. It is suggested that these provisions provide a code not susceptible of any further implication. S.134(9) provides that the exercise of the power contained in that section is not to constitute an offence under s.56 Post Office Act 1953. The suggestion is that if Broadmoor has the implied power contended for then its exercise could not have given rise to any offence under any of the relevant sections, including s.56, of the Post Office Act 1953 anyway. There is some force in each of these points but if the requisite necessity for the implication were made out then, in my view, it would override these considerations.
49. For all these reasons, which are essentially the same as those given by Poole J for discharging the injunctions, I would dismiss this appeal.
50. Counsel for R also submitted that if there were any such power as Broadmoor contended for then it could not be enforced by injunction against R at the suit of Broadmoor. It was submitted that there was no private law cause of action within which an injunction could be granted consistent with the decisions of the House of Lords in British Airways v Laker Airways [1984] 3 WLR 413 and South Carolina Insurance Co. v Assurantie NV [1986] 3 WLR 398. If there was the power contended for then, it was submitted, it existed in public law and was not enforcible by Broadmoor consistently with the decision of the House of Lords in Gouriet v Union of Post Office Workers [1978] AC 435 and of this court in A-G v Blake [1998] Ch.439, 459-461. The decision of this court in Chief Constable of Kent v V [1982] 3 WLR 462 was described as dependent on the unique position of a chief constable and devoid of any ratio decidendi capable of application in this case.
51. Had I reached a different conclusion on whether the requisite power could be implied I would, in agreement with the Master of the Rolls on this point, have concluded that it could be enforced by Broadmoor. I would have rested my conclusion on the simple ground that if Parliament is to be treated as having conferred the power then it must also have intended that Broadmoor might enforce it. In my view the power would be in the nature of a statutory right conferred on a particular person or class of person to be exercised as occasion required in the performance of their statutory functions. Powers have commonly been conferred on statutory undertakings, such as railway or canal companies, entitling them to go on the land of another for some purpose. So far as I am aware it has never been suggested, let alone decided, that such undertakings may not enforce such a right by injunction if necessary. By parity of reasoning if Broadmoor has the right to require R to deliver up the manuscript of his book and all copies of it in his possession or control or to prevent publication of it and needs an injunction to enforce it I can see no reason for denying the requisite jurisdiction to grant it.
52. For these reasons I agree with the Master of the Rolls that this appeal should be dismissed.

LORD JUSTICE WALLER:

53. I gratefully adopt the circumstances in which this appeal has arisen as described in the judgment of the Master of the Rolls. I have also read the judgment of Morritt LJ. I also agree that this appeal should be dismissed, but as there is not full agreement between Morritt LJ and the Master of the Rolls on the jurisdiction to grant an injunction, I ought to express my own views on that aspect shortly.
54. First, let me say in agreement with both my lords, that the distress that may be caused to the victim's family is a matter of great regret and one hopes that the publishers of the book will think again in any event. But if the Authority were entitled to obtain an injunction to restrain publication simply on the basis of the distress to the family of the victims, then, since I see no distinction between the position of a victim of a patient in Broadmoor from the position of a prisoner, or for that matter an ex-prisoner from any prison, it would follow that every prison could bring an action to assist victims. Their statutory powers do not on any view extend so far.
55. Second, let me also say that as regards breaches of the confidence of other inmates, I agree with the Master of the Rolls that it is not within the Authority's statutory power to protect those. To protect those confidences, proceedings would have to be by or on behalf of those patients.
56. On the important question of the Authority's powers and the circumstances in which it can seek the aid of the court, I respectfully agree with the Master of the Rolls and would adopt his ultimate formulation which is in these terms:-

"If a public body is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the court should grant such an application when "it appears to the court to be just and convenient to do so.""

57. It seems to me that if someone interferes with the carrying out by a statutory authority of its statutory duty, there should be no reason in principle why the court should not come to the assistance of the statutory authority, and, if the circumstances make it "just and convenient", grant an injunction. Thus, for example, if a third party were to set out to frustrate the Authority in its treatment of a patient, I can see no reason why the court should not grant an injunction to prevent that conduct. If a third party attempted to interfere with the discipline at Broadmoor, I would see no reason why the court should not assist the Authority by injunction if necessary. The example of someone sending in letters designed to hinder the treatment of a patient, or to encourage breaches of discipline, seem to me to be situations where the court might well interfere.
58. Where I think that I differ from the Master of the Rolls and perhaps come nearer to Morritt LJ relates to the facts of the instant case. It seems to me impossible to categorise the activity of "R" as interfering with the performance of the Authority's public responsibilities. His conduct cannot be said to have been designed to frustrate his treatment or the treatment of others. Thus it would be my view that the injunction cannot fairly be said to being sought to prevent interference with the performance of the Authority's public responsibilities, and I would refuse to grant an injunction on that ground alone.
59. If, contrary to what I have said, the only question to consider is whether in the court's discretion an injunction should be granted, having regard to the powers that the Authority do have to prevent patients within the hospital seeing material, I would, in addition to the points that the Master of the Rolls makes on discretion, have refused the injunction.

Order: Dismissed with costs subject to detailed assessment; leave to appeal to the House of Lords refused.