This summer, while the front pages of the red top newspapers were full of the latest developments in the Big Brother Household, a less public but an arguably more important drama was unfolding.
On 27 June the House of Lords concluded that Mirror Group Newspapers (MGN) should provide information to Ashworth Security Hospital which would reveal the identity of one of its journalistic sources. Thirteen days later, on 10 July, the Financial Times, The Guardian, The Times, the Independent and Reuters refused to comply with an order of the Court of Appeal to hand over documents to the Belgian brewer Interbrew which would similarly reveal the identity of their sources.
Clearly the journalist's moral obligation to protect confidential sources of information will occasionally place the journalist in direct conflict with the courts, a fine or imprisonment being the usual penalty for the refusal to obey the rule of law, but it was the scale of the defiance that was unprecedented. This was almost the final Chapter in a story of some complexity.
The Facts
On 2 December 1999, MGN published in the Daily Mirror an article written by Mr Gary Jones about Ian Brady, one of the Moors murderers. The article included verbatim extracts from information held on a database maintained by the staff of Ashworth Special Hospital where Ian Brady was being detained. Mr Jones received those extracts, together with additional information about Mr Brady from the database, from one of his regular sources. He paid £1,500. His source had received the information from a member of the Ashworth staff.
On 30 June 2001, Mr Justice Rougier ordered MGN to provide information so as to enable the source to be identified. MGN appealed and on 18 December 2001 the Court of Appeal upheld the order.
Meanwhile, on 27 and 28 November 2001, articles appeared in the Financial Times, The Times, The Guardian and the Independent and on the Reuters wires reporting that Interbrew were looking into the purchase of South African Breweries. These articles were based in part on information contained in documents purporting to have been prepared by Interbrew's financial advisers and which the news media had received in an anonymous parcel delivered to their offices by DHL.
On 19 December 2001, Mr Justice Lightman ordered the news media to hand over the original documents to Interbrew to enable it to identify the source. The news media appealed and on 8 March 2002 the Court of Appeal upheld Lightman J's decision.
The news media petitioned the House of Lords for leave to appeal but this was refused. The refusal was as a result of comments made by Lord Woolf in the House of Lords, Ashworth v MGN [2002] 1 WLR 2033. In the same speech he also upheld the decision of the Court of Appeal in Ashworth. His Lordship concluded that the circumstances in both cases were exceptional and therefore the source should be identified.
The Law
The Claimants in both cases sought an order for the delivery up of documents and disclosure of information received by the news media, so as to enable them to identify the source and pursue their legal remedies. They based their claim, in part, on the principle established in Norwich Pharmacal Co and Others -v- Customs and Excise Commissioners [1974] AC 132.
Norwich Pharmacal established that a person who becomes involved, through no fault of his own, in the wrongful acts of another so as to facilitate the wrongdoing is under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.
The news media objected to any order requiring them to provide such information knowing that to do so might lead to the identification of their sources. In turn this created the significant risk that those sources, who were fearful of identification, would dry up.
They based their objection on the journalist's privilege enshrined in s.10 of the Contempt of Court Act 1981, which provides that:
"No Court may require a person to disclose, nor is any person guilty of contempt of Court for refusing to disclose, the source of the information contained in that publication for which he is responsible, unless it be established to the satisfaction of the Court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.".
This, however, is not to be read in isolation. S.6 of the Human Rights Act 1998 requires a court to act in a way which is compatible with, inter alia, Article 10 of the Convention for The Protection of Human Rights and Fundamental Freedoms. Article 10 states:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …"
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.".
S.2 of the HRA requires that, in determining a question which has arisen in connection with a Convention right, a court must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. The resolution of the legal arguments therefore involves an examination of the English precedents in the light of the European jurisprudence.
The Arguments - Norwich Pharmacal
The principle requires the involvement of the party against whom the order is being sought, albeit through no fault of his own, in the wrongdoing of another so as to facilitate that wrongdoing.
Elements
The wrongdoing of another.
The question which exercised the courts in both cases was whether the relief sought was confined to the situation where the news media had facilitated a civil wrong committed by the source against whom they intended to seek redress, or whether it would be granted when the source had committed any unlawful act including a criminal act.
In Interbrew, both Lightman J and Sedley LJ concluded that the principle was limited to the disclosure of information which identified someone against whom the Applicant meant to bring a civil action or otherwise assert its rights. Sedley LJ rejected the idea that it extended to the detection of crime. He maintained that prosecution of offences is the business of specialised agencies with statutory rights of search and seizure, "representing a carefully struck balance between the needs of society and the rights of the individual", and concluded that "to undercut them with a civil right … would be to court disaster".
Lord Woolf took a different view in Ashworth. He concluded that "if the law has developed so as to enable, in the appropriate circumstances, the wrongdoer to be identified if he has committed a civil wrong [he could] find no justification for not requiring the wrongdoer to be identified if he has committed a criminal wrong". His answer to Sedley LJ was that "if the victim of the wrongdoing is content that the wrongdoer should be prosecuted by the appropriate authority, [then he could] see no objection to his obtaining the identity of the wrongdoer to enable that to happen".
It is however important to bear in mind that Lord Woolf had already concluded that MGN were not innocent parties to the wrongdoing and therefore his conclusion that the principle extends to criminal acts is merely very persuasive.
Innocent involvement, so as to facilitate that wrongdoing.
In Ashworth, Lord Woolf concluded that it was sufficient to find that the source was a wrongdoer and that there was involvement in that wrongdoing on the part of the party against whom disclosure was sought. Involvement served to distinguish the party from a mere witness or bystander against whom no disclosure order would be made and publication of wrongfully obtained information amounted to involvement.
In both cases the courts decided that the Applicants had established a right to delivery up of the documents and to the provision of the information being sought.
The courts had then to decide whether the interests of Ashworth and Interbrew in obtaining the information, and their (and the public) interest in identifying the source, were sufficiently compelling to override the news media and the public interest in protecting the media's sources of information.
The Arguments – S.10 and Article 10
The wording of s.10 assumes the existence of a right to disclosure but places a strong inhibition on its exercise. A court must be satisfied that disclosure is "necessary" in order to serve one or more of the four objectives: the interests of justice or national security or the prevention of disorder or crime.
It was argued in both cases that disclosure was necessary in the "interests of justice". The courts had therefore to define the scope of the phrase "interests of justice" before deciding whether disclosure was necessary.
Interests of Justice
The news media in both Ashworth and Interbrew relied on Lord Diplock's reasoning in Secretary of State for Defence -v- The Guardian [1985] AC 339 to argue that "the interests of justice" should be interpreted narrowly. Disclosure should be limited to that required for existing or intended proceedings.
The courts preferred the wider approach adopted by Lord Bridge in X Ltd -v- Morgan Grampian (Publishers) Ltd [1990] 1 AC 1. They concluded that it was "in the interests of justice" that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs, whether or not by resorting to legal proceedings.
Having decided that the Claimants were entitled to the disclosure sought under the Norwich Pharmacal principle subject to the provisions of s.10, and that the interests of justice were engaged, the Courts were then required to struggle with the elusive concept of "necessity".
Necessity
The Courts turned for help to the decisions of the House of Lords in X Ltd -v- Morgan-Grampian (Publishers) Ltd [1990] 1 AC 1 and the European Court in Goodwin -v- United Kingdom (1996) 22 EHRR 123.
A number of statements emerge from the decisions in Interbrew and Ashworth which provide some assistance in determining when disclosure will be found to be necessary.
The House of Lords in Ashworth identified the following matters as relevant:
- as a matter of principle the necessity for disclosure "must be convincingly established";
- limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court;
- the disclosure must be in order to meet "a pressing social need"; and
- the disclosure should be "proportionate to a legitimate aim which is being pursued".
Relying on these guidelines and echoing the words of the European Court in Goodwin, the Lords concluded that there were "exceptional circumstances where vital public or individual interests [were] at stake" and therefore the information should be provided in order to reveal the identity of the source. Ashworth was entitled to pursue its remedies against the source in the interests of preventing a recurrence and encouraging the preservation of confidentiality in its medical records in the future.
In Interbrew, Sedley LJ provided a slightly fuller exploration of the principles involved. His guidance can be summarised in this way:
- the news media enjoy, by virtue of s.10 of the Contempt of Court Act 1981, a high level of initial protection not in their own right but in the public interest;
- in order to redress the balance, the Court must find it necessary to do so to meet a pressing social need, not just an individual one, and the basis upon which production of information is ordered in any particular case must not negate the right to freedom of expression;
- there must be no less invasive alternative. He was not prepared to look behind Interbrew's evidence of the extent of their investigation, and concluded on the face of it that they had done enough; and
- production must be a proportionate response.
Applying these guidelines he recognised that there was an inherent danger in relying on the evidence of the Claimant as to the extent of its enquiries because the Defendant in such a situation cannot meet that evidence with evidence of its own without assisting in disclosing the source.
He also disagreed with the view expressed by Laws LJ in the Court of Appeal in Ashworth that the public interest in non-disclosure is constant whatever the merits of the particular publication and the particular source.
He concluded that the critical issue was the purpose of the source and, in Interbrew, the source's purpose had been to do harm whether for profit or out of spite, whether that harm be done to the investing public or to Interbrew. Interbrew's interest in obtaining justice against the source prevailed.
Conclusion
In both Interbrew and Ashworth, the courts emphasised that orders to disclose press sources will only be granted in exceptional circumstances – these cases have not made it any easier to identify before publication which circumstances are exceptional. How is a newspaper to decide what to publish, if it is being told by a company that some but not all the information it has about that company is inaccurate and it knows that what is ultimately at risk is the identity of its source?
There is clearly room for argument about whether Norwich Pharmacal Orders will in the future be granted to identify perpetrators of crime. There will also be much argument about the relevance of the purpose of the source and the subject matter of the disclosures.
It may be that the European Court will take the opportunity to clarify these issues. Despite the fact that Interbrew decided not to pursue contempt proceedings against the news media, the news media are so concerned about the precedents set that they are taking the matter to Europe.
The final chapter in the story is yet to be written. Although the closure of the Big Brother Household has meant that Big Brother has faded from the thoughts of the British public, there remains one small group that he still haunts. The journalists and editors of the news media in the Interbrew case have still to deal with the demands of the Financial Services Authority.
Jonathan Crusher represented The Financial Times in Interbrew.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
