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Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information
Published online by Cambridge University Press: 16 January 2009
Extract
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.
Lord Scarman, speaking during the House of Lords report stage of the Contempt of Court Bill, stated that the relevant provision would “ameliorate the law relating to contempt of court so that the public right to be informed is not impeded or obstructed.” Similarly, Lord Morris, speaking in support of the same clause of the Bill, noted that it “creates a privilege in aid of truth, a privilege in aid of the public interest, a vital and essential privilege, particularly when one bears in mind the ever-encroaching power, whether direct or indirect, of the Executive over the well-being or otherwise of the taxpayer and voter.”
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References
1 H.L.Deb.. Vol. 416, 10 February 1981. col. 158.
2 H.L.Deb., Vol. 416, 10 February 1981, col. 155. (Emphasis added.)
3 H.L.Deb., Vol. 416. 10 February 1981, col. 162.
4 The clause under discussion was moved as amendment No. 4, which was, at the House of Lords report stage, proposed as an insertion before clause 7 of the Bill.
5 See the House of Lords committee stage of the Contempt of Court Bill, H.L.Deb., Vol. 416, 15 January 1981, col. 210.
6 H.L.Deb., Vol. 416, 10 February 1981, col. 153.
7 See the Contempt of Court Act 1981, s.19.
8 The definition had been unanimously recommended by the members of the Phillimore Committee on contempt of court. See Report of the Committee on Contempt of Court, Cmnd. 5794, December 1974, paras. 80 and 216(8).
9 See H.L.Deb., Vol. 416, 10 February 1981, col. 159.
10 See “Journalists Win Right to Protect Source,” The Times, 20 May 1981, 2.Google Scholar
11 Marks v. Beyfus (1980) 25 Q.B.D. 494 and Neilson v. Laugharne [1981] O.B. 736.
12 D.v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171.
13 Report of the Committee on Contempt of Court, supra, paras. 29 and 40.
14 The members of the Law Reform Committee on privilege in civil proceedings did not make a particularly significant contribution in this area. They expressed the view that “Privilege in the main is the creation of the common law, whose policy, pragmatic as always, has been to limit to a minimum the categories of privileges which a person has an absolute right to claim, but to accord to the judge a wide discretion to permit a witness, whether a party to the proceedings or not, to refuse to disclose information where disclosure would be a breach of some ethical or social value and non-disclosure would be unlikely to result in serious injustice in the particular case in which it is claimed.” See the Sixteenth Report of the Law Reform Committee, “Privilege in Civil Proceedings,” Cmnd. 3472, December 1967, para. 1.
15 See H.L.Deb., Vol. 416, 10 February 1981, col. 158.
16 See ante, p.266.
17 The first of the two unsuccessful amendments which were proposed in the Lords (see ante. p.267) contained no reference to an exception based upon “the interests of justice.” The exceptions to the general principle of non-disclosure were limited to disclosures which were “necessary in the interests of national security or for the prevention of disorder or crime.” See H.L.Deb., Vol. 416, 15 January 1981, col. 210.
18 See Tipping v. Clarke (1843) 2 Hare 383; 67 E.R. 157. For a summary of the historical position, see Hillman's Airways Ltd. v. Société Anonyme D'Éditions Aéronautiques Internationales [1934] 2 K.B. 357 and Snell, The Principles of Equity (1868), pp. 484–489.Google Scholar
19 See Ord., R.S.C. 24 and British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096, 1171, per Lord Wilberforce.Google Scholar
20 See, for example, British Steel Corporation v. Granada, ibid., 1167, per Lord Wilberforce and 1181, per Dilhorne, Viscount. See also Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133, 177, per Morris, Lord of Borth-y-Gest and 183. per Viscount Dilhorne.Google Scholar
21 See British Steel Corporation v. Granada [1981] A.C. 1096, 1200, per Fraser, Lord of Tullybelton and D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171. 217–220. per Lord Diplock.Google Scholar
22 See Marks v. Beyfus (1890) 25 O.B.D. 494; Neilson v. Laugharne [1981] OB. 736 and Hehir v. Commissioner of Police of the Metropolis [1982] 1 W.L.R. 715. In this context see also the Report of the Royal Commission on Standards of Conduct in Public Life, Cmnd. 6524. July 1976. At para. 287 of their report, the members of the Royal Commission noted that ”We have already discussed the problem of an employee fearing victimisation if he makes a complaint against his colleagues or employers, but some further comment is needed here. It is impossible for the police to give a prospective complainant a guarantee of permanent confidentiality since his evidence might be essential to enable a prosecution to be mounted. We are, however, assured that the police always do their best to protect the anonymity of those who complain to them and will make arrangements to hear a complaint in ways that are least likely to bring him to the attention of his colleagues.“
23 R. v. Lewes Justices, ex pane Secretary of Stale for Home Department [1973] A.C. 388.
24 D. v. National Society for the Prevention of Cruelty to Children [1978] A. C . 171. See also Gaskin v. Liverpool City Council [1980] 1 W.L.R. 1549.Google Scholar
25 See Adam v. Fisher (1914) 30 T.L.R. 288Google Scholar and Broadcasting Corporation of New Zealand v. Alex Harvey Industries [1980] 1 N.Z.L.R. 163.Google Scholar See also Charles Baker v. F.F. Investment, 470 F.2d. 778 (1972)Google Scholar but cf. Garland v. Torre, 259 F.2d. 545 (1958).Google Scholar In the latter case, it was held that the First Amendment to t he United States Constitution did not endow a newspaper columnist with the right to refuse to answer questions about the identity of the source of allegedly defamatory information. The court went on to state that the freedom of the press was not an unqualified concept. The same type of reasoning was applied in Branzburg v. Hayes, 33, L.Ed.2d.626 (1972). For a discussion of the protection of journalists sources of information in the United States, see D'Alemberte, , “Journalists Under the Axe: Protection of Confidential Sources of Information” (1969) 6 Harvard Journal on Legislation 307.Google Scholar See also “Law Backs Journalists in Maryland,” The Times, 2 April 1963, 10 and “US Journalists Win Secrecy Appeal,” The Times, 16 July 1963, 10.Google ScholarCf. H.M. Advocate v. Airs [1975] Scots L.T. 177; “A Journalist's Duty Confronts the Law,” The Times, 26 July 1978, 15 and, in relation to the Bernard Falk incident, The Times, 5 May 1971, 1 and 17.Google Scholar
26 Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133 and British Steel Corporation v. Granada [1981] A.C. 1096.Google Scholar
27 See Attorney General v. Mulholland; Attorney General v. Foster [1963] 2 Q.B. 477; Attorney-General v. Clough [1963] Q.B. 773 and McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73.Google Scholar
28 Cf. however, R. v.Secretary of State for the Home Department, ex pane Hosenball [1977] 3 All E.R. 452 for an example of the way in which the national security may be said to preclude the identification of sources of information. In that case, the Court of Appeal held, inter alia, that the public interest in the security of the nation was a sufficient justification for the Home Secretary's refusal to divulge the identity of sources of information upon which he had based a deportation order. At p. 460 of his judgment, Lord Denning noted that “The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of the information must not be disclosed.”Google Scholar
29 See, for example, British Steel Corporation v. Granada Television Ltd., [1981] A.C. 1096.Google Scholar
30 See, for example, Riddick v. Thames Board Mills [1977] Q. B. 881. At p. 895 of his judgment in that case, Lord Denning M.R. stated that “The reason for compelling discovery of documents … lies in t he public interest in discovering the truth so that justice may be done between t he parties. That public interest is to be put i n to the scales against the public interest in preserving privacy and protecting confidential information.”Google Scholar
31 [1911] 2 K.B. 543.
32 (1890) 25 Q.B.D. 494.
33 [1978] A.C. 171.
34 [1981] Q.B. 736.
35 [1973] A.C. 388.
36 See also R. v. Secretary of State for the Home Department, ex pane Hosenball [1977] 3 All E.R. 452 and R. v. Cheltenham Justices, ex pane Secretary of State for Trade [1977] 1 W.L.R. 95.Google Scholar Although the decision in the latter case hinged upon the immateriality of the information that was sought, the court was prepared to hold, as an alternative ground for its decision, that the public interest in maintaining sources of information about companies that are under investigation would prevail over the inconvenience that would be caused by a refusal to order discovery. See ibid., 100. In a wider context, see generally Burmah Oil Co. Ltd. v. Bank of England [1980] A.C. 1090 and Williams, , “Crown Privilege and Burmah Oil” [1980] C.L.J. 1.Google Scholar
37 [1982] 1 W.L.R. 715.
38 A latter-day “candour” argument, of a type similar to that which has found renewed favour in Crown privilege or public interest immunity cases (see, for example, Air Canada v. Secretary of Stale for Trade [1983] 2 A.C. 394, 438, per Wilberforce, Lord)Google Scholar, also arose in Science Research Council v. Nassé [1979] 3 All E.R. 673, although the House of Lords was careful to emphasise that there was no public interest immunity issue in the Nassé case.Google Scholar
39 There was no suggestion that the plaintiff had acted as a “supergrass.” Cf. “Legal Unease Grows Around the Ulster Supergrass Trials,” The Sunday Times, 11 September 1983, 3.Google Scholar
40 [1982] Q.B. 1065.
41 [1983] 1 A.C. 578.
42 Cf. Air Canada v. Secretary of State for Trade [1983] 2 A.C. 394.Google Scholar
43 Campbell v. Tameside Metropolitan Borough Council [1982] O.B. 1065, 1079.
44 R. v. Birmingham City District Council, ex parte 0. [1983] 1 A.C. 578, 594. (Emphasis added.)
45 [1963] 1 Q.B. 477.
46 [1963] 1 Q.B. 773.
47 See also s.20 of the Contempt of Court Act 1981.
48 Attorney-General v. Mulholland [1963] 1 Q.B. 477, 487.Google Scholar
49 [1981] A.C. 1096.
50 See Attorney-General v. Mulholland [1963] 1 Q.B. 477, 487.
51 Lord Denning pointed out that, unlike lawyers (see Wheeler v. Le Marchant (1881) 17 Ch.D. 675)Google Scholar, clergymen, bankers, doctors and members of other professions cannot refuse to disclose relevant information to a court of law. Even in the case of the lawyer, the privilege belongs to the client rather than his legal adviser (see Attorney-General v. Mulholland [1963] 1 Q.B. 477, 489). In that context it is interesting to note that Mulholland had refused to ask his source whether he would object to the disclosure of his name.Google Scholar
52 Ibid., 490. Donovan and Danckwerts L.JJ. agreed with Lord Denning's judgment, but Donovan L.J. also felt constrained to emphasise that there is an “infinite variety of fact and circumstance which a court encounters, which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer.” See ibid., 492. The Court of Appeal dismissed the appeal against sentence. Lord Denning expressed the view that the sentences of six and three months' imprisonment were proportionate to “the serious nature of the offence.” See Attorney-General v. Mulholland, ibid., 493.
53 See ibid., 490. Lord Denning noted that, by virtue of R.S.C., Ord. 31, r. l A, the rule had been extended to apply to persons, other than journalists, who were involved in interlocutory proceedings in relation to defamation actions. The relevant rule is now embodied in Ord, R.S.C.. 82, r.6. See also The Report of the Parnell Commission, Cmnd. 5891 (1889); O'Brennan v. Tully (1935) 69 Ir.L.T. 115 and McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73.Google Scholar
54 [1963] 1 Q. B. 773.
55 See Attorney-General v. Clough, ibid., 776.
56 See, for example, Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders' Publishing Association Ltd. [1906] 1 K.B. 403Google Scholar; Lyle Samuel v. Odhams Ltd. [1920] 1 K. B. 135 and Lawson and Harrison v. Odhams Press Ltd. [1949] 1 K.B. 129.Google Scholar
57 (1914) 30 T. L. R. 288. See also Lord Denning's reference t o the Fisher case in Attorney-General v. Mulholland [1963] 1 Q.B. 477, 490.Google Scholar
58 Attorney-General v. Clough, ibid., 789–790.
59 See also R.S.C., Ord. 82, r.6 which has replaced R.S.C., Ord. 31, r.lA.
60 Attorney-General v. Clough [1963] 1 Q. B. 477, 789–790.Google Scholar
61 Like the members of t h e Court of Appeal in the Mulholland case. Lord Parker C.J. relied on O'Brennan v. Tully (1935) 69 I r. L.T. 115 and McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73.Google Scholar
62 Attorney-General v. Clough [1963] 1 Q. B. 773, 792. See, for example, Maas v. Gas Light and Coke Company [1911] 2 K.B. 543.Google Scholar
63 Ibid. Clough was sentenced to six months' imprisonment. For t he relevant penal provision, see s.l(2)(b) of the Tribunals of Inquiry (Evidence) Act 1921.
64 Ibid.
65 Norwich Pharmacol Co. v. Customs and Excise Commissioners [1974] A.C. 133, 175.Google Scholar Lord Cross of Chelsea noted that “in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request [for disclosure of sources of information] was made would be fully justified in saying that he would only make it under an order of the court. Then the court would have to decide whether in all the circumstances it was right to make an order. In so deciding it would no doubt consider such matters as the strength of the applicant's case against the unknown alleged wrongdoer, the relation subsisting between the alleged wrongdoer and the respondent, whether the information could be obtained from another source, and whether the giving of information would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant.” See ibid., 199.
66 See ibid., 175, per Reid, Lord; 190Google Scholar, per Dilhorne, Viscount; 198–199Google Scholar, per Lord Cross of Chelsea and 206–207, per Kilbrandon, Lord.Google Scholar
67 These are the words of Viscount Dilhorne. Sec ibid., 190.
68 Cf. Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [1974] A.C. 405, which involved a manufacturer's attempts to inspect Customs and Excise Department documents concerning traders dealing in amusement machines which had been supplied by the manufacturer, who was attempting to dispute the size of his purchase tax liability. The House of Lords, which was constituted identically to that in the Norwich case, accepted that the information that was sought in the case was confidential and their Lordships distinguished the Norwich case on that basis, although they emphasised that confidentiality was not a separate head of privilege. Nevertheless, their Lordships would not order the disclosure of the information in question because that would cause “resentment” among those who had given information to the Commissioners. It was not suggested that an order for discovery would have had an adverse effect on the flow of information to the Customs Department and it is clear that “Crown privilege” in the traditional sense was not a basis for the decision. Note also “Ex-police Chief Faces Contempt Report Over Polygraph Clients,” The Times, 9 July 1984, 3.Google Scholar
69 R. v. Lewes Justices [1973] A.C. 388, 401.Google Scholar
70 At first instance, in the High Court, the British Steel Corporation had issud a writ claiming an order for the delivery up of the documents. After the documents were returned to the Corporation, the writ had been amended into a claim for an order for an affidavit setting out the names of Granada's sources.
71 In view of the fact that discovery was the sole substantive remedy that was sought by the Corporation, the proceedings were treated by all parties as the trial of the action, although it was noted that the proceedings were interlocutory in form. See British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096, 1120 per Megarry V.-C. See also ibid., p. 1167, per Wilberforce, Lord and 1181, per Dilhorne, Viscount.Google Scholar
72 Their Londships stressed that the “newspaper rule” was confined to the interlocutory stage of proceedings in defamation actions or actions for slander of goods or title. See British Steel Corporation v. Granada Television Ltd., ibid., 1173, per Wilberforce, Lord; 1179, per Dilhorne, Viscount and 1197, per Fraser, Lord of Tullybelton.Google Scholar
73 See British Steel Corporation v. Granada [1981] A.C. 1096, 1171, 1174, per Wilberforce, Lord.Google Scholar
74 Ibid., 1173–1174.
75 At p. 1174 of his opinion, after stating that the British Steel Corporation had not renounced any intention to seek damages from the source, Lord Wilberforce said that “the suggestion that their only intention was to dismiss him is an assertion of Granada and nothing more.”
76 See ibid., 1132. See also the obiter dictum on p. 1174 of Lord Wilberforce's opinion where he states that, if it had been necessary on the facts, he would have been prepared to hold that an intention to seek redress, whether by court action or otherwise, would have been a sufficient basis for the Steel Corporation's claim for discovery. See also Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133, 188Google Scholar, per Viscount Dilhorne and Post v. Toledo, Cincinnati and St. Louis Railroad Co. (1887) 11 N.E.Rep. 540, 547Google Scholar, per Field, J. Cf. the position prior to the implementation of the Judicature Act 1873 and the rules of the Supreme Court of Judicature. For example, in Cardale v. Watkins (1820) 5 Madd. 18; 56 E.R. 801, it was reported that “a Court of Equity does not compel discovery for the mere gratification of curiosity, but in aid of some other proceeding either pending or intended, and that there must be allegations to that effect.”Google Scholar
77 See “BSC Drops Action over Granada Mole,” The Times, 18 August 1980, 2.Google Scholar
78 Their Lordships were unanimous in dismissing Granada's attempt to rely on the privilege against self-incrimination. This issue would now be governed by s.72 of the Supreme Court Act 1981.
79 British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096, 1185.Google Scholar
80 See ibid., 1194 where Lord Salmon states. “This immunity has nothing to do with confidentiality—whether between the press and the source, or the source and his employer. It rests solely upon the authorities to which I have referred and the principle of justice that the public shall not be unreasonably deprived by a free press of information of great public importance.”
81 Ibid., 1188. His Lordship found support for that proposition in Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd., [1980] 1 N.Z.L.R. 163, especially at 166–167.Google Scholar
82 British Steel Corporation v. Granada Television Ltd., ibid., 1190–1191.
83 Ibid., 1191.
84 Ibid.
85 Ibid., 1184.
86 See, for example, “A Restrictive Judgment,” The Times, 8 November 1980, 15 and ”We Shall Keep our Word,” The Times, 6 August 1980, 15.
87 See Dworkin, “The Press Is Still Fighting the Wrong Freedom Battle,” The Sunday Times, 10 August 1980, 12 and Nicol, “British Steel Corporation v. Granada: Naming Moles,” [1981] P.L. 163, 164.Google Scholar
88 See, for example, “Why Law Lords Decided to Unearth BSC Mole',” The Guardian, 31 July 1981, 2 and “Future Implications of Granada Disclosure Ruling,” The Times. 5 August 1980, 13.Google Scholar
89 See “Pledge is Repeated to Protect Mole at BSC,” The Guardian, 14 August 1980.1. In relation to the liability of an employer for a contempt committed by one of his employees, see pp. 62–65 of the Report of the Committee on Contempt of Court, Cmnd. 5794, December 1974.Google Scholar
90 See Ord, R.S.C.. 45, r.5 and Borrie and Lowe, Law of Contempt (1973). 341–359.Google Scholar
91 The decision whether or not to take action against Granada for being in contempt of court should not, in theory, be affected by the fact that Granada's informant admitted to his activities after top executives at the Steel Corporation declared that they had managed to ascertain his identity and after Granada had refused to comply with the court order for discovery. See “BSC Drops Action Over Granada ‘Mole’,” The Times, 18 August 1980, 2 and “Why I Did It—By the Steel Mole,” The Sunday Times, 2 November 1980, 4.Google Scholar
92 (1982) 75 Cr.App.R. 90.
93 Lundin's description of the activities of the Ladbroke organisation was published in Private Eye. See “Alexander's, Ragtime Banned,” Private Eye, 12 May 1978, 17.Google Scholar
94 R. v. Crowston, unreported decision of the Nottingham Crown Court, 2 June 1981.Google Scholar
95 A handwriting expert had given evidence to the effect that the handwriting on the document was that of the police sergeant.
96 See R. v. Crowston, supra, and “Judge Will Not Jail Reporter,” The Times, 4 June 1981, 4 and “Journalist Reprieved for Court Silence,” The Guardian, 4 June 1981, 3.Google Scholar
97 R. v. Crowston, ibid.
98 See Attorney-General v. Lundin (1982) 75 Cr.App.R. 90Google Scholar; “Journalist to Face Hearing,” The Times, 31 July 1981, 5; “QC Demands Prison For a Silent Journalist,” The Times, 18 December 1981, 6; “Reporter ‘Essential Cog in Inquiry’,” The Times, 22 December 1981, 3 and “Police Slip May Send Reporter to Jail,” The Times, 15 January 1982, 2.Google Scholar
99 The Attorney-General was ordered to pay the costs of the case and was refused leave to appeal.
1 Attorney-General v. Lundin, (1982) 75 Cr.App.R. 90, 99.Google Scholar The police sergeant was acquitted. See R. v. Crowston, note 24, supra, and “Police Sergeant Cleared in Corruption Case,” The Times, 6 June 1981, 2. Two employees of Ladbroke's were convicted under the Prevention of Corruption Act 1906 and sentenced to six months' imprisonment, suspended for 12 months. They admitted corruptly agreeing to pay Crowston for obtaining and passing information from the national police computer. See “The Risk of Exposing Crime,” The Times, 20 February 1982, 3.Google Scholar
2 Attorney-General v. Lundin, (1982) 75 Cr.App.R. 90, 101.Google Scholar
3 [1984] 1 All E.R. 453.
4 For a discussion of security classifications, see the Report of the Departmental Committee on Section 2 of the Official Secrets Act 1911, Vol. 1 (Cmnd. 5104, 1972), p. 29.Google Scholar
5 See also the decision of the Court of Appeal in Francome v. Mirror Group Newspapers Ltd. [1984] 1 W.L.R. 892.Google Scholar
6 In an obiter dictum, Sir John, Donaldson M.R. observed that he would have reached the same conclusion if he had had regard to the interests of justice or the prevention of crime. See Secretary of State for Defence v. Guardian Newspapers Ltd. [1984] 1 All E.R. 453, 458.Google Scholar
7 Secretary of State for Defence v. Guardian Newspapers Ltd. [1984] 1 All E.R. 453, 457.Google Scholar
8 Ibid., 457.
9 Ibid., 461.
10 Ibid., 459.
11 Sir John Donaldson M.R. suggested that the discretion “has always existed at common law and it is confirmed by s.3(3)(b) of the Torts (Interference with Goods) Act 1977.” See Secretary of State for Defence v. Guardian Newspapers Ltd., ibid., 458.
12 Secretary of State for Defence v. Guardian Newspapers Ltd., ibid., 457.
13 The return of the document led to the identification of the source and her prosecution under section 2 of the Official Secrets Act 1911. See “Woman, 23, Accused of Being ‘Mole’,” The Times, 10 January 1984, 1 and “Clerk for Trial on Secrets Charges,” The Times, 8 February 1984, 3.Google Scholar
14 For examples of the way in which the public interest defence has been applied to the action for breach of confidence, see Initial Services Ltd. v. Putterill [1968] 1 Q.B. 396Google Scholar; Hubbard v. Vosper [1972] 2 Q.B. 84Google Scholar; Church of Scientology of California v. Kaufman [1973] R.P.C. 527Google Scholar; Lion Laboratories Ltd. v. Evans, The Times, 27 March 1984, 25, and, in the context of official secrets, Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 32 A.L.R. 485.Google Scholar
15 Secretary of State for Defence v. Guardian Newspapers Ltd. [1984] 1 All E.R. 453, 461.Google Scholar
16 See British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096, 1174 and ante, p. 277. Note also that, at p. 463 of his judgment in the Guardian case, Slade L.J. stated that it would be a denial of justice to deprive the Crown of “the opportunity of a remedy.”Google Scholar
17 It can also be argued that the section would not have altered the fate of Mulholland, Foster and Clough. An order for the disclosure of their names could have been justified by reference to the “national security” exception. Note that, by virtue of ss. 19 and 20, the Act applies to tribunals of inquiry and to “any tribunal or body exercising the judicial power of the State.” See also the decision of the House of Lords in Attorney-General v. British Broadcasting Corporation [1980] 3 All E.R. 161 and Williams, “The BBC and Contempt of Court,” [1980] C.L.J. 229.Google Scholar
18 The section does not refer to relevance. This is not a defect in view of the fact that information which is necessary will prima facie be relevant.
19 See Norwich Pharmacal v. Customs and Excise Commissioners [1974] A.C. 133, 175, and ante, p. 275.Google Scholar
20 Attorney-General v. Lundin (1982) 75 Cr.App.R. 90, 101.Google Scholar
21 Bill 205, 9 May 1980.
22 Disclosure in general and disclosure of the identity of sources are, in a paradoxical fashion, linked in freedom of information legislation such as the Official Information Act 1982 (N.Z.). Experience will reveal the extent to which requests for information under that type of legislation will lead to the unmasking of sources of information.
23 The Bill lapsed.
24 The Data Protection Bill, which expired when the last Parliament was dissolved, was revived in slightly amended form and reintroduced into the House of Lords on 24 June 1983. The Bill gives “data subjects” a right of access to “personal data.” In essence, cl. 1 of the Bill defines personal data as information about a living individual which is stored on computer. A “data subject” is an individual who is the subject of personal data. Varying kinds of exemption from subject access provisions are described in the Bill (see, for example, cl.30 in relation to legal professional privilege, cl.28 in relation to the prevention or detection of crime and cl.29 in relation to the possibility of an exemption for d a t a concerning health and social work). There remains, however, a potential for the disclosure of the names of sources of information when data subjects request access to personal data held by doctors, social workers and journalists.
25 Note that some of Britain's leading journalists have objected to the immunities which the Police and Criminal Evidence Bill would, if enacted, grant to journalists. At present, the Bill exempts journalistic material held in confidence (see ell.9 and 10) from certain police powers of search in relation to serious arrestable offences. Those journalists who object to the exemption take the view that an unfortunate precedent would be involved in according this kind of special status to journalism. See “Journalists Split on Bill,” The Times, 18 February 1984, 2; “Journalists May Lose Police Bill Immunity,” The Times, 25 January 1984, 5 and “Press ‘Privilege’ and the Police Bill,” The Times, 30 May 1984, 13. Journalists did not raise such objections in relation to the Contempt of Court Bill.Google Scholar
26 See ante, p. 266.
* The Guardian case has been affirmed by the House of Lords (The Times. 26 October 1984); but the decision came too late for inclusion in this article.