Judgments - Ashworth Security Hospital v MGN Limited

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    64. Mr Browne subjected the approach of the trial judge, Rougier J, and the judgment of the Master of the Rolls with which the other members of the Court of Appeal agreed, to criticism. In particular, he objected to the terms of the final paragraph of the Master of the Rolls judgment where he stated, [2001] 1 WLR 515, 537:

    "99.  The disclosure of confidential medical records to the press is misconduct which is not merely of concern to the individual establishment in which it occurs. It is an attack on an area of confidentiality which should be safeguarded in any democratic society. The protection of patient information is of vital concern to the National Health Service and, I suspect, to health services throughout Europe. This is an exceptional case. If the order made by Rougier J discourages press sources from disclosing similar information in the future, this will be no bad thing."

    65. Mr Browne submits that in that paragraph the Master of the Rolls is treating the chilling effect of an order on journalists as "no bad thing". This he said stands the Strasbourg jurisprudence on its head because it claims to detect a social value in the deterrent effect of an order on other potential sources in the future. Mr Browne in making this submission has misunderstood the Master of the Rolls. Earlier in his judgment the Master of the Rolls had subjected the jurisprudence of the European Court to detailed analysis and clearly had in mind the importance of the protection of sources provided by both section 10 and article 10. What the Master of the Rolls regarded as being "no bad thing" was not the disclosure of the identity of sources but the discouragement of the wrongful disclosure of the contents of medical records by sources. This was conduct which exceptionally justified ordering the disclosure of documents which would reveal the identity of the source.

    66. That Mr Browne has misunderstood the Master of the Rolls is apparent from the fact that notwithstanding Laws LJ repeated on two occasions that he agreed the appeal should be dismissed for the reasons given by the Master of the Rolls, he himself stated the situation with regard to the protection of sources of the press in terms to which no possible objection could be taken in paragraphs 101 and 102 of his judgment. The situation here is exceptional, as it was in Financial Times Ltd v Interbrew SA [2002] EWCA Civ 274 and as it has to be, if disclosure of sources is to be justified. The care of patients at Ashworth is fraught with difficulty and danger. The disclosure of the patients' records increases that difficulty and danger and to deter the same or similar wrongdoing in the future it was essential that the source should be identified and punished. This was what made the orders to disclose necessary and proportionate and justified. The fact that Ian Brady had himself disclosed his medical history did not detract from the need to prevent staff from revealing medical records of patients. Ian Brady's conduct did not damage the integrity of Ashworth's patients' records. The source's disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment.

    67. I would dismiss this appeal with costs. I do not consider that their Lordships should exercise their discretion to extend the stay on the order of Rougier J.

LORD NOLAN

My Lords,

    68. I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Woolf and Lord Hobhouse of Woodborough. For the reasons that they give, I, too, would dismiss this appeal. I agree that the further stay requested by the appellants should not be granted.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    69. I agree with my noble and learned friend Lord Woolf that the appeal should be dismissed for the reasons which he has given in his Opinion. I should also express my agreement with the judgment in the Court of Appeal of the Master of the Rolls, Lord Phillips of Worth Matravers.

    70. I will add only an observation about two decisions of the European Court of Human Rights, Goodwin v United Kingdom (17488/90) (1996) 22 EHRR 123 and Bergens Tidende v Norway (26132/95) (2000) 31 EHRR 16

    71. In Goodwin, the newspaper had been ordered to disclose the source from which it had obtained confidential material. The newspaper relied upon Article 10; the United Kingdom responded by invoking paragraph (2) of the Article. The Court underlined the importance for press freedom of the protection of journalistic sources. "Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest." (paragraph 39) However the Court went on to say that this was subject to the proportionate protection of legitimate concerns under paragraph (2) of the Article. The justification proffered by the national authorities must be "relevant and sufficient". (paragraph 40, emphasis supplied.) In that case, the justification given for making the disclosure order against the newspaper was accepted by the Court to have been relevant; the Government failed because the Court did not accept that, on the facts of that case, the justification was sufficient or the order a proportionate response. Thus the Court said at paragraphs 44 - 46:

    "Unless aware of the identity of the source, [the company] would not be able to stop such further dissemination of the contents of the plan, notably by bringing proceedings against him or her for recovery of the missing document, for an injunction against further disclosure by him or her and for compensation for damage.

      It also had a legitimate reason as a commercial enterprise in unmasking a disloyal employee or collaborator who might have continuing access to its premises in order to terminate his or her association with the company.

      These are undoubtedly relevant reasons. ...

      In sum, there was not, in the Court's view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. ..."

    72. The Bergens Tidende case concerned a complaint by the newspaper that its rights under Article 10 of the Convention had been infringed by a libel action which a cosmetic surgeon had successfully brought against it in respect of defamatory articles it had published saying he was incompetent. The European Court of Human Rights upheld the complaint but in doing so held that the rights of the press are balanced by responsibilities. Under the heading 'General Principles', the Court referred to its well-established case law and the freedom of expression which constitutes one of the essential foundations of a democratic society, subject to Article 10(2) which leaves the national authorities with a certain margin of appreciation and continued:

    "The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest." (paragraph 49)

In applying these principles, the Court came back to the same point (paragraphs 52 and 53):

    "Where, as in the present case, measures taken by the national authorities are capable of discouraging the press from disseminating information on matters of legitimate public concern, careful scrutiny of the proportionality of the measures on the part of the Court is called for.

      However, the Court further observes that Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph (2) of the Article, the exercise of this freedom carries with it 'duties and responsibilities' which also apply to the press."

The freedom given to the press is thus not one which the press may exercise without having proper regard to the rights of others, including the right of preserving confidentiality.

    73. These judgments of the Court confirm the compatibility of the Norwich Pharmacal jurisdiction as formulated by my noble and learned friend and the Master of the Rolls, provided that it is only exercised to obtain disclosure of a journalist's sources when it is proportionate to do so. I agree that on the facts of this case there was sufficient and proportionate justification.

 
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