Law Report: Journalist need not reveal source: Broadmoor Hospital v Hyde: Queen's Bench Division (Sir Peter Pain) - 3 March 1994

In considering whether it was 'necessary in the interests of justice', within the meaning of section 10 of the Contempt of Court Act 1981, to require a journalist to reveal the source of a leaked confidential report, the court could take into account whether or not the organisation seeking the order had first made any inquiries or attempted on its own behalf to discover the source of the leak.

Sir Peter Pain, sitting as an additional High Court judge, dismissed a summons by the plaintiff, Broadmoor Hospital, in so far as it sought to require the defendants, Neil Hyde, a journalist, and INS, his news agency, to reveal the source of confidential inquiry reports, leaked to the defendants, on the escape from the special hospital of two prisoners, both convicted murderers, in December 1993.

Copies of the reports were presented to the first defendant on 25 January 1994, after a synopsis of their contents had already appeared in the Camberley Mail.

He wrote an article which was then used by five other newspapers.

The next day the plaintiff obtained an injunction, later replaced by an undertaking, restraining the defendants from publishing, disclosing, or divulging the contents of or making further use of the inquiry reports until trial.

The question now was whether the defendants should be ordered to name their source.

Patrick Milmo QC and Gordon Bishop (Biddle & Co) for the plaintiff; Lord Lester of Herne Hill QC and Patrick Moloney (Mishcon de Reya) for the defendants.

SIR PETER PAIN, giving a chambers judgment in open court, said the plaintiff, as a public body, could not obtain an order to reveal the defendants' source, thereby restricting freedom of expression, unless it could show that this would be in the public interest. See Attorney General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109, 272-272, 282-284 (the second Spycatcher case), and Derbyshire County Council v Times Newspapers Ltd (1993) AC 534, 547, where Lord Keith said: 'It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.'

Following Norwich Pharmacal v Customs and Excise Commissioners (1974) AC 133, the plaintiff also had to show, inter alia, that it was the victim of an actionable wrong by a third party, namely the source.

The defendants argued that the source would, if sued by the plaintiff, have a good defence on the ground that disclosure was in the public interest.

Though unattractive, since it would involve approving a deliberate breach of confidence, the possibility of such a defence succeeding could not be ruled out in the light of the defendants' assertions that the reports revealed misconduct in the management of the hospital, particularly at the highest level, the likelihood of a cover- up and the danger of low-grade staff being made scapegoats.

The plaintiff hotly denied the possibility of any sort of cover-up. However, it still faced the obstacle of section 10 of the Contempt of Court Act 1981, which provided that: 'No court may require a person 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 . . .'

It was 'in the interests of justice' for the plaintiff to identify the defendants' source so it could discipline or dismiss that person and give a warning to anyone who might be tempted to leak in future. But was such a remedy 'necessary' in the sense meant by section 10?

According to the evidence, it was not suggested that any attempt had been made by the plaintiff to discover the source of the leak, otherwise than by applying to the court. Nor was there any evidence to show that such inquiries, if made, would not have been fruitful.

Finally, the actual disclosure made in this case, the material actually published in the press, was not of great importance.

In his Lordship's judgment, the court had no jurisdiction to make the order sought; but if it had, his Lordship would not exercise his discretion in favour of making it.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Guru Careers: Bathroom Showroom Manager / Bathroom Sales Designer

£22 - £25k basic + Commission=OTE £35k + Benefits: Guru Careers: A Bathroom Sh...

Guru Careers: Marketing Executive / Digital Marketing Executive

COMPETITIVE: Guru Careers: A Marketing / Digital Marketing Executive (CRM, Eve...

Recruitment Genius: Sales Executive / Foreign Exchange Dealer - OTE £40,000+

£16000 - £40000 per annum: Recruitment Genius: A Foreign Exchange Dealer is re...

Recruitment Genius: IT Engineer

£19000 - £25000 per annum: Recruitment Genius: An opportunity now exists for a...

Day In a Page

Refugee crisis: David Cameron lowered the flag for the dead king of Saudi Arabia - will he do the same honour for little Aylan Kurdi?

Cameron lowered the flag for the dead king of Saudi Arabia...

But will he do the same honour for little Aylan Kurdi, asks Robert Fisk
Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Humanity must be at the heart of politics, says Jeremy Corbyn
Joe Biden's 'tease tour': Could the US Vice-President be testing the water for a presidential run?

Joe Biden's 'tease tour'

Could the US Vice-President be testing the water for a presidential run?
Britain's 24-hour culture: With the 'leisured society' a distant dream we're working longer and less regular hours than ever

Britain's 24-hour culture

With the 'leisured society' a distant dream we're working longer and less regular hours than ever
Diplomacy board game: Treachery is the way to win - which makes it just like the real thing

The addictive nature of Diplomacy

Bullying, betrayal, aggression – it may be just a board game, but the family that plays Diplomacy may never look at each other in the same way again
Lady Chatterley's Lover: Racy underwear for fans of DH Lawrence's equally racy tome

Fashion: Ooh, Lady Chatterley!

Take inspiration from DH Lawrence's racy tome with equally racy underwear
8 best children's clocks

Tick-tock: 8 best children's clocks

Whether you’re teaching them to tell the time or putting the finishing touches to a nursery, there’s a ticker for that
Charlie Austin: Queens Park Rangers striker says ‘If the move is not right, I’m not going’

Charlie Austin: ‘If the move is not right, I’m not going’

After hitting 18 goals in the Premier League last season, the QPR striker was the great non-deal of transfer deadline day. But he says he'd preferred another shot at promotion
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones