In an era when child sexual abuse is literally coming out of the closet, an extraordinary decision has been taken by a British court to ban a book from an eminent performing artist on how he survived abuse as a child.
A judge has upheld an injunction bought by the man’s son to avoid publication on the grounds it would cause psychological damage to his son if the public knew about his father’s early life at school.
I am indebted to the excellent Inforrm blog for this story.You can read the full report by Dan Tench, a lawyer from Olswang, here.
The book was described in court as Inforrm reports as bringing together these terrible experiences “in an artistic and insightful way” and to be in “striking prose” and, it was said, contained “an important message of encouragement to those who have suffered similar abuse to speak about their past”.
But the man had a son by a marriage now dissolved. That son lived abroad (in a country quaintly termed “Ruritania” in the judgment) with his mother. The son suffered from a combination of attention deficit hyperactivity disorder, Asperger’s, Dysgraphia and Dyspraxia. Two psychologists said that the publication of the book revealing such details of his father would be likely to “exert a catastrophic effect on [his] self-esteem and to cause him enduring psychological harm”.
The injunction was granted by Lady Justice Arden using a bizarre piece of English law. As Dan Tench reports that:
“the publication of the book would be contrary to the tort of intentionally inflicting mental suffering as originally established in Wilkinson v Downton [1897] QB 57. Amazingly, this ground was sufficient for the boy to secure his injunction.
Wilkinson v Downton is a legal curiosity well-known to legal students. In it, a man as a practical joke had told a woman that her husband had had a serious accident. She had responded badly to the information and had suffered nervous shock. She was entitled to recover compensation for the psychological damage. It appears to remain good law, albeit rather rarely used.”
To fit the bill Lady Justice Arden decided this should apply if the claim was true rather than false and that because of the internet the boy could read it. As she put it : “the relevant information was disseminated to the world at large, provided there was a risk that it would be received by the boy (he was said to be “computer savvy” and may read it via the Internet). ”
Finally the argument was used, among others, that the boy might visit London and be able to see a copy of the book.
Dan Tench concludes “The judgement is perhaps best seen as simply a rogue decision which hopefully will be quickly put out of its misery by the Supreme Court. But if not, we have a precedent binding on the courts of first instance and the Court of Appeal which will cause all manner of difficulties.”
I would go much further. To my mind to ban a book using case law based on practical jokers to stop someone writing about child sexual abuse is a sick joke in itself. I hope this outrageous ban is lifted as soon as possible.
Update: Today the Telegraph reports that a group of eminent authors including William Boyd and sir Tom Stoppard have objected to the ban.
Westminster Confidential 