United Kingdom House of Lords Decisions

HOUSE OF LORDS

Lord Slynn of Hadley Lord Browne-Wilkinson Lord Woolf Lord Nolan Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE

ON 27 JUNE 2002
[2002] UKHL 29

LORD SLYNN OF HADLEY

My Lords,

    1. My Lords, I fully agree with my noble and learned friend Lord Woolf that this appeal should be dismissed for the reasons he gives. His analysis of the case law and the principles involved to my mind makes two things in particular abundantly clear. The first is that the jurisdiction recognised in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 to order disclosure of, inter alia, the identity of a source of information or documents does not depend on whether the person against whom the order is sought has committed a tort, a breach of contract or other civil or criminal wrong. It is sufficient but, it is important to stress, also necessary that that person should be shown to have "participated" or been "involved" in the wrongdoing which is at the basis of the application for discovery.

    2. This latter requirement together with the residual discretion of the court as to whether it is right that an order should be made in all the circumstances provide a safeguard against an unjustified order for discovery. No one can or should forget the importance of the freedom of the press but it is plain as article 10 of the European Convention for the protection of Human Rights and Fundamental Freedoms (1953) and section 10 of the Contempt of Court Act 1981 require, that there are restrictions which are to be accepted as necessary in a democratic society.

    3. The second point is that it is not a necessary precondition of the exercise of the jurisdiction that the applicant should have begun, or had an intention to begin, legal proceedings in respect of the allegedly wrongful act—in cases like these against the source. My noble and learned friend's reference to the speeches in British Steel Corp v Granada Television Ltd [1981] AC 1096 and in particular to the judgments of Lord Denning MR, at p 1127, and of Templeman LJ, at p 1132, in the Court of Appeal seems to me to establish this point conclusively despite the very well argued submissions of Mr Browne QC to the contrary.

    4. As to whether in this case the order was justified, I have no doubt that there was a sufficient and proportionate justification. The fact that Mr Brady may have initiated or consented to some publication of his medical records cannot possibly deprive the hospital of the protection which they patently need.

LORD BROWNE-WILKINSON

My Lords,

    5. 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.

LORD WOOLF

My Lords,

    6. This appeal is concerned with the right of a newspaper to refuse to reveal its sources. It arises out of the publication on 2 December 1999 of an article in the "Daily Mirror" which was written by their investigations editor, Mr Gary Jones. The article included verbatim extracts of the medical records of Ian Brady (one of the Moors murderers), a patient at Ashworth Security Hospital ("Ashworth"). He was, at the time of the publication, engaged on a well publicised hunger strike.

    7. Ashworth Hospital Authority is responsible for the management of Ashworth. The authority is the claimant in the proceedings and respondent before your Lordships. The authority is one of the three special health authorities established by the Secretary of State for Health pursuant to sections 1 and 4 of the National Health Services Act 1977, as amended, for persons subject to detention under the Mental Health Act 1983 as requiring treatment under conditions of special security on account of their dangerous, violent or criminal propensities.

    8. On 19 April 2000, Rougier J ordered the defendant, MGN Ltd, the publisher of the "Daily Mirror", by its proper officer within two working days to make and serve upon the authority a witness statement:

(i) explaining how it came to be in the possession or control of any medical records kept by the claimant in respect of Ian Brady whether that possession or control be of originals, copies or extracts;

(ii) identifying any employee of the claimant and the name of the person or persons (and any address, telephone and fax numbers known for such a person or persons) who were involved in the defendant acquiring possession or control of the said records.

    9. MGN appealed against that order and on 18 December 2000 the Court of Appeal dismissed that appeal. In the course of the further appeal to their Lordships, MGN contend that Rougier J had no jurisdiction to grant the order, but that if he did have jurisdiction to grant the order, he was not entitled to do so in the circumstances of this case.

    10. On 30 September 1999, Ian Brady was transferred to another ward. He took objection both to the transfer and to the manner in which it was effected. In addition to making complaints to the police and through the National Health Service complaints procedure he went on hunger strike. At the same time he began a media campaign, writing repeatedly to the BBC and others and issuing information through his solicitor complaining about the way that he had been treated, giving details of his hunger strike and the manner in which he was affected.

    11. Because of the substantial media interest which Ian Brady generated, the director of communications of Ashworth found it necessary to make 12 press releases between 30 September 1999 and 11 January 2000 answering inquiries for information. The release of the 2 October 1999 began by stating: "Ian Brady, a patient at Ashworth Hospital, has exercised his right to refuse permission for the hospital to disclose any clinical details about him". On 29 October, it was announced that he had refused food for a total of 30 days and that a program of "refeeding" had been introduced, which involved force feeding by means of a nasogastric tube.

    12. On 2 February 2000, Ian Brady obtained permission to apply for judicial review, in order to challenge the continuing decision to force feed him. The hearing was held in private but, due to the public interest in the case, Maurice Kay J delivered his judgment in open court: see R (Brady) v Ashworth Hospital Authority [2000] Lloyd's Med R 355; (2001) 58 BMLR 173. Maurice Kay J ruled that force feeding was lawful since it was reasonably administered as part of the medical treatment given for the mental disorder from which Ian Brady was suffering. By virtue of section 63 of the 1983 Act consent was not needed for such treatment. The judgment set out in detail particulars of Ian Brady's clinical history which related to his decision.

    13. It was Mr Jones's evidence that he did not know the identity of the initial source of the information, but that he assumed it to be an employee of Ashworth. However, he accepted that he did know the identity of the intermediary who supplied the material to him. It is also accepted that knowledge of the intermediary would in all probability lead to the identity of the original source. Mr Jones had previously dealt with the intermediary on the understanding that he would be paid for stories supplied. On this occasion he paid £1,500.

    14. It was found by the Court of Appeal and was not disputed on this appeal that it was the overwhelming likelihood that the source provided the intermediary with a print out from Ashworth's computer database which is used to record data about patients ("PACIS"). This meant the source was probably an employee of the authority.

    15. Rougier J found that the extracts of the information published in the article were no more than a watered down version of material which Ian Brady had placed already in the public domain in furtherance of his campaign.

    16. The importance of confidentiality of medical records is emphasised when a new member of staff is engaged at Ashworth. The contract of employment contains a clause:

"Disclosure of information. You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the authority."

    17. It is part of the agreed facts that leaks to the press have a detrimental effect on security; treatment of patients and staff morale, because they may inhibit proper recording of information about patients; may deter patients from providing information about themselves; may damage the patient-doctor relationship, which rests on trust; may lead to assaults by patients on a patient about whom information is disclosed; may create an atmosphere of distrust amongst staff, which is detrimental to efficient and co-operative work; and give rise to fear of future (and potentially more damaging) leaks.

    18. In the case of patients at Ashworth, it is particularly important that accurate records are kept because otherwise warning signs indicating that a patient is in a condition in which he could be a danger to himself, his fellow patients or the staff could be overlooked so inhibiting preventative action being taken.

    19. It is not in dispute that Ashworth has itself carried out an appropriate investigation in an attempt to discover the source of the leak without success, and that the only way in which the source is likely to be discovered is as a result of an order such as that made by Rougier J. It is also not in dispute that the reason for seeking an order for disclosure is to discipline the person responsible for the leak which in practice would mean that that person would be dismissed.

    20. After the publication in the "Daily Mirror", Ashworth tightened security and since then there has been no further breach of security. This increased security has involved reducing access to PACIS which has a detrimental effect on the running of Ashworth. Furthermore, the judge concluded that if confidence in the security of a database is undermined, the use of the database for recording sensitive information would be inhibited and this would have the effect of dissuading patients from providing information about themselves. As the judge stated:

"Once it were known among patients that their records might well be leaked there would, in all probability, be a sharp downturn in the essential therapeutic patient-doctor relationship where trust is of fundamental importance."

    21. The judge also concluded that "it is not so much the nature of this leak, but the fact that it happened at all, which is all-important, for, unless stopped, that which has occurred once may well occur again".

    22. By a letter of 11 March 2002, Kerman and Co., the solicitors to MGN, wrote to the Judicial Office of the House "to make it absolutely clear what issues are and are not in dispute on this appeal". The letter initially identified the points which MGN are not taking as follows:

(i) They do not dispute that the authority has an independent right in the confidentiality of the records, assuming that the contents of the records were truly confidential.

(ii)  Nor do they contend that the jurisdiction, which they describe as the Norwich Pharmacal jurisdiction, should be confined to cases of tort.

(iii)  On the assumption that the sending by the intermediary of Ian Brady's running records to Mr Jones was a tortious act, MGN no longer contend that MGN was not innocently mixed up in that act "so as to trigger the operation of the Norwich Pharmacal jurisdiction against them".

    23. The letter then goes on to identify the contentions which MGN were advancing. These are:

(iv)  The authority had failed to establish that the unpublished material in Ian Brady's running records was truly confidential in the sense that it was secret or not in the public domain (the confidentiality issue).

(v)  As all the published information had been placed in the public domain by Ian Brady himself, MGN was not a tortfeasor in publishing the extracts from the running records (the tortfeasor issue).

(vi)  The "interests of justice" exception to section 10 of the Contempt of Court Act 1981 is limited to cases where disclosure is required for existing or intended proceedings (the section 10 issue).

(vii)  Whether, applying the article 10 jurisprudence to the proper construction of section 10 and to the facts of this case, the authority have established convincingly that an order for discovery was proportionate to a legitimate aim within article 10(2) and strictly necessary in a democratic society (the article 10 issue).

(viii)  The Norwich Pharmacal jurisdiction to order discovery is an aid to litigation and does not extend to cases where a claimant has neither brought nor intends to bring proceedings (the Norwich Pharmacal jurisdiction issue).

    24. The letter reflects conveniently the shape of the principle arguments advanced by Mr Desmond Browne QC on behalf of MGN on this appeal and I therefore propose to deal with the issues which the letter identifies as well as the issue as to the manner in which Norwich Pharmacal jurisdiction was exercised in this case. Issues numbered one and two can be taken together and I turn to them now.

    25. If this was not already clear from the letter of 11 March 2002, MGN made it clear both in their written and oral arguments in support of the appeal that it is a part of MGN case that if the information relating to Ian Brady which they published was not confidential, in the sense that it was neither secret nor in the public domain, and this meant that MGN was not a tortfeasor, then disclosure could not be ordered.

    26. This approach on the part of MGN Limited reveals a fundamental misconception as to the basis for ordering disclosure under the now well established Norwich Pharmacal jurisdiction. Under this jurisdiction, there is no requirement that the person against whom the proceedings have been brought should be an actual wrongdoer who has committed a tort or breached a contract or committed some other civil or criminal wrongful act. In Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133 itself, the Customs and Excise Commissioners were an entirely innocent party. The commissioners had, however, because of their statutory responsibilities become involved or mixed up in the illicit importation of the chemicals manufactured abroad which Norwich Pharmacal alleged infringed their patent. The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. While therefore the exercise of the jurisdiction does require that there should be wrongdoing, the wrongdoing which is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not that of the person against whom the proceedings are brought.

    27. The correct position is made clear from the speech of Lord Reid in the Norwich Pharmacal case. The first passage of the speech of Lord Reid to which I would refer states, at p 174:

"So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?"

    28. Lord Reid answers this question in the affirmative without dealing in detail with the earlier authorities other than by making a general reference to the speeches of Lord Cross of Chelsea and Lord Kilbrandon which do so. However, Lord Reid goes on to state in further passages of his speech, at p 175, to which I will now refer that:

"They [the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

"I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him. It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has himself incurred some minor liability. I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that."

    29. Lord Kilbrandon, having referred to the authorities and, like Lord Reid, been impressed by the views expressed by Lord Romiley MR in Upmann v Elkan (1871) LR 12 Eq 140; 7 Ch App 130, summarises the position by saying, at pp 205-206:

"There is no suggestion that in so doing he is pretending to exercise any right of relief against the discoverers.

"In my opinion, accordingly, the respondents, in consequence of the relationship in which they stand, arising out of their statutory functions, to the goods imported, can properly be ordered by the court to disclose to the appellants the names of persons whom the appellants bona fide believe to be infringing these rights, this being their only practicable source of information as to whom they should sue, subject to any special right of exception which the respondents may qualify in respect of their position as a department of state. It has to be conceded that there is no direct precedent for the granting of such an application in the precise circumstances of this case, but such an exercise of the power of the court seems to be well within broad principles authoritatively laid down. That exercise will always be subject to judicial discretion, and it may well be that the reason for the limitation in practice on what may be a wider power to order discovery, to any case in which the defendant has been 'mixed up with the transaction', to use Lord Romilly's words, or 'stands in some relation' to the goods, within the meaning of the decision in Post v Toledo, Cincinnati and St Louis Railroad Co (1887) 11 NERep 540, is that that is the way in which judicial discretion ought to be exercised."

    30. Similar statements can be found in the Norwich Pharmacal case in the other speeches of their Lordships. They make it clear that what is required is involvement or participation in the wrongdoing and that if there is the necessary involvement, it does not matter that the person from whom discovery is sought was innocent and in ignorance of the wrongdoing by the person whose identity it is hoped to establish.

    31. Although initially I detected in Mr Browne's argument a suggestion that because of the activities of Ian Brady in publicising his medical condition, there was no initial wrongdoing by the source who supplied the intermediary so that that intermediary could supply Mr Jones with the material for his article, this suggestion cannot be sustained. The probabilities are that the source was a member of staff who had access to Ian Brady's file within PACIS. (According to the agreed statement of facts and issues those who had access to the file "included the staff on his ward, his patient care team, site managers, medical care staff, health records staff, the pharmacy, all doctors in the directorate and their medical secretaries, all psychologists and social workers and security staff".) As was pointed out by Lord Browne-Wilkinson in the course of argument, any members of staff would have been acting in breach of their contracts of employment if they were responsible for transmitting the contents of a file to the intermediary. They would undoubtedly be wrongdoers.

    32. I also accept the conclusion of Lord Phillips of Worth Matravers MR in the Court of Appeal [2001] 1 WLR 515, paras 50-54 that, while Ian Brady's conduct in putting similar information into the public domain could well mean that he would not be in a position to complain about the publication, this did not destroy the authority's independent interest in retaining the confidentiality of the medical records contained in Ashworth's files. So the source who abstracted the information from the database not only acted in breach of confidence; he or she also acted in breach of contract.

    33. The Master of the Rolls went on to conclude, in paragraph 63:

"The intermediary, knowing that the information had been obtained in breach of confidence, passed it to MGN, through Mr Jones. MGN, knowing that the information had been transferred in breach of confidence, published extracts from it. In these circumstances, claims for breach of confidence lie against MGN, the intermediary and the source."

    34. On the facts of the present case the Master of the Rolls is almost certainly correct in coming to this conclusion. However, for the purposes of the present appeal, as I have already explained, such a finding in favour of the authority is not necessary. It is sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which is incontestably the position. Whether the source's wrongdoing was tortious, or in breach of contract in my judgment matters not. If there was wrongdoing then there is no further requirement that Mr Jones' and MGN conduct should also be wrongful. It is sufficient if, in the words of Lord Dilhorne in the Norwich Pharmacal case, at p 188C, that there was "involvement or participation". As MGN published the information which was wrongfully obtained, the answer as to whether there was involvement or participation must be an emphatic yes.

    35. Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement, the reference to participation can be dispensed with because it adds nothing to the requirement of involvement, is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion.

    36. It is not the only protection available to the third party. There is the more general protection which derives from the fact that this is a discretionary jurisdiction which enables the court to be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances: see John v Express Newspapers [2000] 1 WLR 1931. The need for involvement can therefore be described as a threshold requirement. The fact that there is involvement enables a court to consider whether it is appropriate to make the order which is sought. In exercising its discretion the court will take into account the fact that innocent third parties can be indemnified for their costs while at the same time recognising that this does not mean there is no inconvenience to third parties as a result of becoming embroiled in proceedings through no fault on their part.

    37. The third and fourth issues can also be considered together. Section 10 of the 1981 Act provides:

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a 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."

Article 10 of the Convention provides:

"(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 and regardless of frontiers…

"(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."

    38. Judicial opinion differs as to the extent that section 10 was passed in order that our domestic law might reflect article 10. That this is the case can be seen by comparing the views of Schiemann LJ in Camelot Group plc v Centaur Communications Limited [1999] QB 124, 128 with Sedley LJ's in Financial Times Ltd v Interbrew SA [2002] EWCA Civ 274 (paragraphs 9 and 10). However, whatever was the objective of those promoting section 10, there can be no doubt now that both section 10 and article 10 have a common purpose in seeking to enhance the freedom of the press by protecting journalistic sources. The approach of the European Court of Human Rights as to the role of article 10 in achieving this was clearly set out by the court in Goodwin v United Kingdom (1966) 22 EHRR 123 in these terms:

"39. The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.

Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

The same approach can be applied equally to section 10 now that article 10 is part of our domestic law.

    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.

    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.

    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.

    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)

"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.