Judgments - Ashworth Security Hospital v MGN Limited

(back to preceding text)

    39. The decision in the Goodwin case followed on from the decision of their Lordships in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1. Lord Bridge of Harwich, with whom Lord Oliver of Aylmerton and Lord Lowry agreed, indicated how the approach to be adopted to section 10 involved very much the same balancing exercise as is involved in applying article 10. Lord Bridge expressed the position in these terms, at pp 43-44:

    "But the question whether disclosure is necessary in the interests of justice gives rise to a more difficult problem of weighing one public interest against another. A question arising under this part of section 10 has not previously come before your Lordships' House for decision. In discussing the section generally Lord Diplock said in Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, 350: 'The exceptions include no reference to "the public interest" generally and I would add that in my view the expression "justice", the interests of which are entitled to protection, is not used in a general sense as the antonym of "injustice" but in the technical sense of the administration of justice in the course of legal proceedings in a court of law, or, by reason of the extended definition of "court" in section 19 of the Act of 1981, before a tribunal or body exercising the judicial power of the state.'

    "I agree entirely with the first half of this dictum. To construe 'justice' as the antonym of 'injustice' in section 10 would be far too wide. But to confine it to 'the technical sense of the administration of justice in the course of legal proceedings in a court of law' seems to me, with all respect due to any dictum of the late Lord Diplock, to be too narrow. It is, in my opinion, 'in the interests of justice', in the sense in which this phrase is used in section 10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interests of justice that he should be able to identify him in order to terminate his contract of employment, notwithstanding that no legal proceedings may be necessary to achieve that end.

    "Construing the phrase 'in the interests of justice' in this sense immediately emphasises the importance of the balancing exercise. It will not be sufficient, per se, for a party seeking disclosure of a source protected by section 10 to show merely that he will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he bases his claim in order to establish the necessity of disclosure. The judge's task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached."

    40. It will be seen immediately from this passage of the speech of Lord Bridge that Lord Bridge was adopting a broader approach to what is "in the interests of justice" for the purposes of section 10 than the approach suggested by Lord Diplock in the earlier case of Secretary of State for Defence v Guardian Newspapers Limited. Lord Oliver in the Morgan-Grampian case, at pp 53G-54C, also questioned Lord Diplock's construction which he regarded as imposing a limitation not easily defensible in logic.

The Norwich Pharmacal jurisdiction issue

    41. Both Lord Diplock and Lord Bridge were considering what amounts to "the interests of justice" in the context of section 10 as does the third issue identified in the letter of 11 March 2002. However, it is important to note that section 10 does not give the court any authority which it did not otherwise have to make orders for disclosure of sources of information. The way this section works is that it assumes the jurisdiction exists and places restrictions upon its exercise. The views of Lord Diplock and Lord Bridge therefore do not directly deal with the prior question as to whether the Norwich Pharmacal jurisdiction to order disclosure of sources extends beyond situations where the information to be disclosed is required for purposes other than existing or intended proceedings.

    42. As to this question, basing himself upon the historic sources of the jurisdiction which is founded upon the historic equitable bill of discovery, Mr Browne for MGN contends that as the reason that the authority requires the information is not to bring the proceedings against any individual but to dismiss the original source of the information, the objective of the authority does not fall within this exceptional jurisdiction.

    43. Mr Nigel Pleming QC on behalf of the authority contests Mr Browne's approach. He submits that the Norwich Pharmacal jurisdiction is not as narrow as was submitted by Mr Browne. Alternatively, if he is wrong as to this he submits that, if this is necessary, in order to obtain an order, the authority is prepared to sue the source after the source is identified even though this will involve proceedings which are otherwise wholly unnecessary since the authority would be quite content if they were in a position to dismiss the source.

    44. It is clear that in the Norwich Pharmacal case itself, Lord Reid was contemplating situations where the intention of the claimant, once the source had been identified, was to bring proceedings against the source. The language used by Lord Reid can be explained by the fact that in that case, it was the intention of Norwich Pharmacal to bring proceedings. It is also to be noted that in the final paragraph already cited from his speech, Lord Reid was taking a common sense non-technical approach when justifying the jurisdiction. Furthermore, the other speeches do not link the jurisdiction to any requirement that the information should be available to the individual who had been wronged only for the purpose of enabling him to vindicate that wrong by bringing proceedings. In particular, Viscount Dilhorne in his speech says, at p 188:

    "discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it. The 'mere witness' rule has lost a great deal of its importance since the Common Law Procedure Act removed the bar to persons interested giving evidence, but it still has significance. Someone involved in the transaction is not a mere witness. If he could be sued, even though there be no intention of suing him, he is not a mere witness. In Orr v Diaper (1876) 4 Ch D 92 [Diaper] were involved, so were Elkans in Upmann v Elkan LR 12 Eq 140, so was the East India Company in Moodalay v Morton (1785) 1 BroCC 469 and it matters not that the involvement or participation was innocent and in ignorance of the wrongdoing." (Emphasis added.)

Viscount Dilhorne's reference to a person who could be sued even though there would be no intention of suing him is directly applicable to the present circumstances.

    45. Certainly, in the Norwich Pharmacal case there was no real issue as to this possible limitation on the Norwich Pharmacal jurisdiction. In the later case of British Steel Corp v Granada Television Ltd [1981] AC 1096, however, the point arose directly. In the Court of Appeal Lord Denning MR, at p 1127, in my view correctly regarded the Norwich Pharmacal case as opening "a new chapter in our law" and then went on to add:

    "Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same procedure should be available when he desires to obtain redress against the wrongdoer - or to protect himself against further wrongdoing."

    46. Templeman LJ's remarks, at p 1132, are even more apposite; he stated:

    "In my judgment the principle of the Norwich Pharmacal case applies whether or not the victim intends to pursue action in the courts against the wrongdoer provided that the existence of a cause of action is established and the victim cannot otherwise obtain justice. The remedy of discovery is intended in the final analysis to enable justice to be done. Justice can be achieved against an erring employee in a variety of ways and a plaintiff may obtain an order for discovery provided he shows that he is genuinely seeking lawful redress of a wrong and cannot otherwise obtain redress. In the present case BSC state that they will not finally determine whether to take legal proceedings or whether to dismiss the employee or whether to obtain redress in some other lawful manner until they have considered the identity, status and excuses of the employee. The disclosure of the identity of the disloyal employee will by itself protect BSC and their innocent employees now and for the future and is essential if B.S.C. are to redress the wrong."

    47. In their Lordships' House, Lord Wilberforce and in particular Lord Fraser of Tullybelton, at p 1200, were clearly of the view that the order could be made even if information was not required for the purposes of bringing an action against the informant.

    48. Mr Browne's arguments, based on the Parliamentary history of the section, I find totally unconvincing. I have no doubt that the object of section 10 was to provide protection inter alia for the media. I also accept that the approach to the application of section 10 should be that which was reflected in the judgment on article 10 of the European Court in Sunday Times v United Kingdom (1979) 2 EHRR 245, 281, para 65:

    "The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted. In the second place, the court's supervision under article 10 covers not only the basic legislation but also the decision applying it. It is not sufficient that the interference involved belongs to that class of the exceptions listed in article 10 (2) which has been invoked; neither is it sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms: the court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it."

    49. I cannot see any justification for coming to a conclusion as to the meaning of "interests of justice" which is inconsistent with the views expressed in the British Steel case. There are real disadvantages in not following those views. To do so will result in proceedings having to be brought for purely technical reasons. Mr Browne suggested that to agree to bring proceedings for this purpose would be an abuse of process, but why would it be an abuse? Such a claimant would be doing no more than bringing proceedings which he is entitled to bring. The situation would be no different from joining an additional party as a claimant or defendant for procedural purposes. The important protection which both section 10 and article 10 provide for freedom of expression is that they require the court stringently to scrutinise any request for relief which will result in the court interfering with freedom of expression including ordering the disclosure of journalists' sources. Both section 10 and article 10 are one in making it clear that the court has to be sure that a sufficiently strong positive case has been made out in favour of disclosure before disclosure will be ordered.

    50. In this connection, it is necessary to refer to the recent case of the Financial Times Ltd v Interbrew SA [2002] EWCA Civ 274. Sedley LJ's interesting judgment, to which I have already made reference, looked again at the history of the bill of discovery. Having done so, he came to the conclusion that the detection of crime is not a proper object of the Norwich Pharmacal jurisdiction for both historical and contemporary reasons. He recognised that he was taking a different view from the Master of the Rolls in this case, but he considered the issues were different. This is to adopt an unduly restrictive approach to this case. Sedley LJ went on to state, in paragraph 20:

    "Even in the period before the mid-19th century, when the majority of prosecutions were privately brought, the identification of criminals does not feature in the reported cases as a proper purpose of the bill of discovery. Today, when prosecution, subject to rare exceptions, is the task of the state, I can see no justification for introducing it. The prosecution of offences, notably in the field of financial services, is the business of specialised agencies equipped with statutory powers of search and seizure. Each of these powers, none of them unlimited, represents a carefully struck balance between the needs of the community and the rights of the individual. To undercut them with a civil right to compel production of documents or data at the instance of a person claiming to be the victim of a crime would be to court catastrophe. For what purpose would the documents be exigible? If prosecution, that will rarely be the applicant's intent. Here, for instance, Interbrew say that they are entirely content to leave the question of criminal proceedings to the [Financial Services Authority]. If the purpose is civil process, what is the relevance of the commission of a crime? If it has to be crime of which the applicant is a victim, there is almost bound to be a civil cause of action. If it were able to be a crime of which the applicant is not a victim, the limited Norwich Pharmacal purpose would be replaced by a practically untrammelled right to disclosure."

    51. In paragraph 28, Sedley LJ makes additional remarks upon which Mr Browne in particular relies. They are in these terms:

    "To this relatively modest extent, therefore, I agree with Lightman J that a breach of confidence is made out. What is not in my view made out is the bigger and better cause of action in respect of the 'lethal cocktail' of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort. Nor, it seems to me, is it material to the Norwich Pharmacal jurisdiction that Interbrew will be able to dismiss the source, if they find him or her within their organisation, for misconduct in falsifying as well as leaking documents. That is well within the ambit of the interests of justice on the broad interpretation of section 10 of the 1981 Act if and when one reaches it; but for the same reasons as are set out above in relation to the detection of crime, it can have no place in the jurisdiction to require disclosure in support of a cause of action."

    52. If Sedley LJ is correct in his views as to the restrictions on use of the Norwich Pharmacal jurisdiction to discover those who are responsible for crimes and for the purposes of dismissing a source who is an employee, then clearly this raises difficulties for the authority unless it adopts its alternative course of undertaking to bring proceedings.

    53. However, I do not agree with the views of Sedley LJ set out in the passages of his judgment I have cited. His views on the legitimacy of requiring the identification of the wrongdoer so that he can be dismissed are inconsistent with the statement of the position expressed in the British Steel case. In relation to crime, I would not accept the distinction Sedley LJ makes. As Sedley LJ recognises, it is likely that in the great majority of circumstances, if the wrongdoing constitutes a crime, it will also constitute a civil wrong so the different treatment is unjustified. In addition the jurisdiction, as it has developed, enables an individual who has caused harm by wrongdoing, wrongdoing with which the defendant has become involved, to be identified. 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 I can find no justification for not requiring the wrongdoer to be identified if he has committed a criminal wrong. To draw a distinction between civil and criminal wrongs can only be justified if, contrary to the views I have already expressed, disclosure can only be ordered to enable civil proceedings to be brought against the wrongdoer. If the victim of the wrongdoing is content that the wrongdoer should be prosecuted by the appropriate prosecuting authority I cannot see any objection to his obtaining the identity of the wrongdoer to enable that to happen. The prosecution may achieve for the victim the remedy which the victim requires just as dismissal of an employee can do so. The more restrictive approach attaches excessive significance to the historic origins of the jurisdiction. If this approach had been adopted to the jurisdiction to grant injunctions, freezing orders (Mareva injunctions) would never have been developed from the late 1970s onwards.

    54. As I understand Sedley LJ's reasoning, he is concerned that a claim to exercise the Norwich Pharmacal jurisdiction might be made by someone who is not a victim of the wrongdoing. The answer to this concern is not to limit artificially the Norwich Pharmacal jurisdiction but to confine the remedy to the victim of the crime. It is true that crimes are usually offences against the public as a whole but the courts and the law are now progressively showing greater concern for the protection of individual victims of crimes. Certainly, I would agree that an individual who has not suffered in consequence of a crime would not be entitled to bring proceedings. Such proceedings would have to be brought on behalf of the public by the Attorney General. What would be the outcome of such an application I do not have to anticipate. However, allowing the victim of a crime to obtain the identity of the wrongdoer should not involve the dramatic consequences that Sedley LJ fears.

    55. In the case of a proposed private prosecution surprisingly, having regard to the views he had already expressed, Sedley LJ accepted the position could be different. He said, in paragraph 22:

    "Private prosecutions are still permissible and from time to time prove their value as a longstop behind an inert public authority. I would want to leave open the situation where an applicant can show a genuine need or wish to bring a private prosecution but requires the respondent's help in identifying the wrongdoer. It is not this case. In a case such as this, which is the ordinary case, I would hold that it is immaterial to the Norwich Pharmacal jurisdiction that the wrongdoer may have been guilty of a crime. What matters is that the applicant means to bring a civil action, or otherwise to assert its legal rights (see the British Steel case, per Lord Wilberforce, at p 1174), as soon as it knows who the correct defendant is."

    56. Sedley LJ refers to Lord Wilberforce's speech, at p 1174. There Lord Wilberforce stated: "Now I would be prepared if necessary to hold that, given a cause of action, an intention to seek redress - by court action or otherwise - would be enough…" Clearly Lord Wilberforce anticipated that there would be a cause of action as there will be in the case of most crimes. However, I would not myself regard Lord Wilberforce's remark as meaning that in the appropriate circumstances wrongdoing which amounted to a crime would not suffice, albeit that it did not involve a cause of action. The very fact that Sedley LJ leaves open the situation where an applicant wishes to bring a private prosecution does indicate that the situation is not quite as black and white as his earlier remarks indicated. I do, however, find it just as objectionable to require a person who has been wronged to bring a private prosecution in order to obtain the identity of the source of the wrongdoing when the Crown Prosecution Service would prosecute as it is to require the victim to have to bring civil proceedings when this is unnecessary.

    57. The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T Ltd [1997] 1 WLR 1309 (where relief was granted because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action).

    58. What I have said in relation to the disclosure of the identity of the source with a view to possible criminal proceedings does not detract from the requirement that the person from whom disclosure is sought must have been involved, whether innocently or otherwise, in the wrongdoing which would in these circumstances be criminal. It is this requirement that means the Norwich Pharmacal jurisdiction does not offend the general principle that at common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries: see Rice v Connolly [1966] 2 QB 414, 419E, per Lord Parker CJ.

    59. One of the arguments Mr Browne placed before their Lordships for not adopting the non-technical approach, which I regard as being the correct was that if the disclosure was not linked with proceedings which would actually be brought, there would be no means of the court protecting a defendant against misuse of the material which was disclosed.

    60. I agree that this is a matter for concern. However, this concern will be met if an order for disclosure is not made unless a claimant has identified clearly the wrongdoing on which he relies in general terms and identifies the purposes for which the disclosure will be used when it is made. The use of the material will then be restricted expressly or implicitly to the disclosed purposes unless and until the court permits it to be used for another purpose.

Order for disclosure made in this case

    61. It is contended that the order for disclosure was not proportionate or necessary on the facts of this case. This argument is not based on technicalities and it raises considerations of considerable importance as to how section 10 and article 10 in practice protect journalist's sources. Any disclosure of a journalists sources does have a chilling effect on the freedom of the press. The court when considering making an order for disclosure in exercise of the Norwich Pharmacal jurisdiction must have this well in mind. The position is analogous to the long recognised position of informers under the criminal law. In D v NSPCC [1978] AC 171 their Lordships applied the approach of the courts to police informants to those who provided information to the NSPCC. Having referred, at p 218, to Marks v Beyfus (1890) 25 QBD 494 Lord Diplock explained the rationale of the rule as being plain, if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. Ordering journalists to disclose their sources can have similar consequences. The fact is that information which should be placed in the public domain is frequently made available to the press by individuals who would lack the courage to provide the information if they thought there was a risk of their identity being disclosed. The fact that journalists' sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public. It is for this reason that it is well established now that the courts will normally protect journalists' sources from identification. However, the protection is not unqualified. Both section 10 and article 10 recognise this. This leads to the difficult issue at the heart of this appeal, namely whether the disclosure ordered was necessary and not disproportionate. The requirements of necessity and proportionality are here separate concepts which substantially cover the same area. In his submissions Mr Browne relied correctly on the decision of the European Court in Goodwin v United Kingdom 22 EHRR 123. I find no difficulty in accepting the approach that the European Court emphasised, in paragraph 40 of its judgment, that: (i) "As a matter of general principle, the 'necessity' for any restriction of freedom of expression must be convincingly established" and (ii) "limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court."

    62. Furthermore, I would also adopt Mr Browne's contention that any restriction on the otherwise unqualified right to freedom of expression must meet two further requirements. First, the exercise of the jurisdiction because of article 10(2) should meet a "pressing social need" and secondly the restriction should be proportionate to a legitimate aim which is being pursued.

    63. In applying these tests to the facts of this case to which I have already referred (in paragraphs 16 to 18) it is also important to have in mind the evidence of Dr. James Collins who is the responsible medical officer for Ian Brady. He explains why it is essential for the care and safety of individual patients and the safety of other patients and staff that relevant information is entered in the patients notes and why those entries having been made, their integrity and confidentiality should be preserved. He refers to the fact that psychiatry, more than any other branch of medicine, depends on a trusting relationship between therapists and patients. In addition he draws attention to the fact that the basis of virtually all assessment, diagnosis, treatment and analysis of risk is dependent on information provided by others. He explains that if the staff feel that if there is a possibility of what they report entering the public domain their reporting will be inhibited as they will think that this will place staff or patients at risk. In addition, Mr Brewster (information manager), in his statement, sets out the reasons why it is important that the authority should be able to identify the employee or employees who are responsible for the wrongful disclosure. These include preventing further disclosure and removing the cloud of suspicion that at present hangs generally over the authority's employees who have access to the records which were published. Medical records will always be confidential but this is particularly important in the case of the class of patients that the authority is responsible for caring for at Ashworth. This is confirmed by the approach of the European Court to medical records in relation to article 8. I refer to the judgment of that court in Z v Finland (1998) 25 EHRR 371, paragraphs 94 and 95:

    "94.  In determining whether the impugned measures were 'necessary in a democratic society', the court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.

    "95.  In this connection, the court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the contracting parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

    "Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community

    "The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in article 8 of the Convention."

Those paragraphs of the judgment were of course addressing the question of whether medical data should be disclosed in a different context from the present and it was not necessary for the court to balance the conflicting interests which are at play as is essential here. However, the court's judgment provides a useful guide as to the significance of the wrongdoing which occurred here.

 
continue previous