Ashworth Security Hospital v MGN Limited
39. The decision in the Goodwin case followed on from the decision of their Lordships in X Ltd v Morgan-Grampian (Publishers) Ltd  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:
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:
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  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:
46. Templeman LJ's remarks, at p 1132, are even more apposite; he stated:
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:
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  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:
51. In paragraph 28, Sedley LJ makes additional remarks upon which Mr Browne in particular relies. They are in these terms:
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:
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  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  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  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:
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.