Protecting Confidential Journalist' Sources: Ashworth and Interbrew - A Lethal Cocktail?

Author:Mr Jonathan Crusher
Profession:Farrer & Co
 
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This summer, while the front pages of the red top newspapers were full of the latest developments in the Big Brother Household, a less public but an arguably more important drama was unfolding.

On 27 June the House of Lords concluded that Mirror Group Newspapers (MGN) should provide information to Ashworth Security Hospital which would reveal the identity of one of its journalistic sources. Thirteen days later, on 10 July, the Financial Times, The Guardian, The Times, the Independent and Reuters refused to comply with an order of the Court of Appeal to hand over documents to the Belgian brewer Interbrew which would similarly reveal the identity of their sources.

Clearly the journalist's moral obligation to protect confidential sources of information will occasionally place the journalist in direct conflict with the courts, a fine or imprisonment being the usual penalty for the refusal to obey the rule of law, but it was the scale of the defiance that was unprecedented. This was almost the final Chapter in a story of some complexity.

The Facts

On 2 December 1999, MGN published in the Daily Mirror an article written by Mr Gary Jones about Ian Brady, one of the Moors murderers. The article included verbatim extracts from information held on a database maintained by the staff of Ashworth Special Hospital where Ian Brady was being detained. Mr Jones received those extracts, together with additional information about Mr Brady from the database, from one of his regular sources. He paid 1,500. His source had received the information from a member of the Ashworth staff.

On 30 June 2001, Mr Justice Rougier ordered MGN to provide information so as to enable the source to be identified. MGN appealed and on 18 December 2001 the Court of Appeal upheld the order.

Meanwhile, on 27 and 28 November 2001, articles appeared in the Financial Times, The Times, The Guardian and the Independent and on the Reuters wires reporting that Interbrew were looking into the purchase of South African Breweries. These articles were based in part on information contained in documents purporting to have been prepared by Interbrew's financial advisers and which the news media had received in an anonymous parcel delivered to their offices by DHL.

On 19 December 2001, Mr Justice Lightman ordered the news media to hand over the original documents to Interbrew to enable it to identify the source. The news media appealed and on 8 March 2002 the Court of Appeal upheld Lightman J's decision.

The news media petitioned the House of Lords for leave to appeal but this was refused. The refusal was as a result of comments made by Lord Woolf in the House of Lords, Ashworth v MGN [2002] 1 WLR 2033. In the same speech he also upheld the decision of the Court of Appeal in Ashworth. His Lordship concluded that the circumstances in both cases were exceptional and therefore the source should be identified.

The Law

The Claimants in both cases sought an order for the delivery up of documents and disclosure of information received by the news media, so as to enable them to identify the source and pursue their legal remedies. They based their claim, in part, on the principle established in Norwich Pharmacal Co and Others -v- Customs and Excise Commissioners [1974] AC 132.

Norwich Pharmacal established that a person who becomes involved, through no fault of his own...

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