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.