APPENDICES
¶2.46 The Court of Appeal also clarified that s10 applies to material received with a view to publication, whether published or not.56 2.47 Section 10 operates by giving a journalist a prima facie right to refuse to disclose a source,
and no order can be made to this effect unless it can be established that disclosure of the source is necessary in the interests of justice or national security or for the prevention of disorder or crime.57 Even if it is shown that one of the exceptions is made out, for example that disclosure is necessary for the protection of national security, the court retains its discretion to decline to order the source. However, it is likely to be rare that the Court would decline to order disclosure in circumstances where the exception was made out, and would probably be limited to a situation where a journalist would be put at risk.58
¶2.48 In X Ltd v Morgan-Grampian (Publishers) Ltd Lord Bridge gave guidance on the general
approach to be adopted to s10, noted that:59 "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 a particular case on the one hand against the importance of protecting the sources 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."
¶Interpretation of the exceptions set out in section 10 2.49 In relation to the phrase "necessary for the prevention of crime" it has been held that
"necessary", although stronger than "useful or expedient", is less strong than "indispensable".60 " Prevention of crime" is not restricted to a specific future crime, but means the deterrence and control of crime generally so that crimes allegedly already committed might come within the exception.61
¶2.50 "Necessary in the interests of justice" was initially given a restricted meaning in Secretary
1855of State for Defence v Guardian Newspapers where Lord Diplock limited the phrase to the technical interests of the administration of justice.62 Lord Bridge adopted a broader approach in X v Morgan Grampian, finding that the phrase is wide enough to include the exercise of legal rights and self-protection from legal wrongs, whether or not by court action.63 He held that the "interests of justice" were not confined to technical sense of the administration of justice in the course of legal proceedings in a court of law. The sense in which it is used in section 10 is such that persons should be entitled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not they result in legal proceedings. The House of Lords in Ashworth Hospital Authority v MGN Ltd confirmed that the definition of "interests of justice" in s10 was wide enough to include cases where the injured party sought some form of lawful redress other than litigation, thus preferring the approach of Lord Bridge of Harwich in X Ltd v Morgan- Grampian (Publishers) Ltd (see above) to Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd, [1985] AC 339.64
¶Appendix 4 | Legal Materials
¶2.51 The prevention of crime and national security are not the only good reasons for limiting the
public interest in the confidentiality of sources: the interests of justice exception allows for a more detailed evaluation including the importance of the case for the claimant, the public interest in the information from the source, and the method by which the source obtained the material. "Necessary" has been interpreted to mean "really needed".65
as relevant to the question of necessity: i) as a matter of principle the necessity for disclosure must be convincingly established, ii) limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court, iii) the disclosure must be in order to meet a pressing social need, iv) the disclosure should be proportionate to the legitimate aim which is being pursued.66
¶2.53 An example of the approach of the Court to an order requiring disclosure of a source in the
context of enquiries made by a regulatory body is the judgment of the House of Lords in In re An Inquiry under the Company Securities (Insider Dealing) Act 1985.67 In this case the House of Lords considered whether a journalist was entitled to immunity from disclosing his source of information contained in a publication in the context of an inquiry by inspectors under section 177 of the Financial Services Act 1986 into the leak of price-sensitive information. The journalist refused to answer questions in the course of the inquiry which might lead to the identification of his source and argued he had a reasonable excuse for refusing to answer questions on the basis that he was conferred with immunity by s10 of the Contempt of Court Act.
¶2.54 The House of Lords held that the effect of s10 is to recognise and establish that in the interests
of a free and effective press it is in the public interest that a journalist should be entitled to protect their sources unless some other overriding public interest requires them to reveal it.68 It was in the public interest that a journalist should be entitled to protect their source of information unless one of the other matters of public interest referred to required it to be revealed. It was for the party seeking disclosure, in this case the inspectors, to satisfy the court that identification of sources was necessary for the prevention of crime. The House of Lords held that "necessary" could not be precisely defined, but the nearest paraphrase was "really needed" and that "prevention of crime" was not restricted to the prevention of particular crimes but was used in the broadest general sense of deterrence and containment.69 On the facts the inspectors had satisfied the Court that it was of real importance for the purposes of their inquiry that they should know what the journalist's sources of information had been.
¶2.55 The facts of Ashworth Hospital Authority are instructive. The House of Lords considered an
1856appeal by MGN Ltd against an order made by the High Court requiring it to identify who had provided it with the medical records of Ian Brady, a notorious convicted murderer detained in a secure hospital, parts of which had appeared in an article in their newspaper. The Court noted that both s10 and Article 10 have a common purpose in seeking to enhance the freedom of the press by protecting journalistic sources.70 It concluded that the approach set out by the ECtHR can be applied equally to s10 given that Article 10 is part of domestic law and that the application of s10 should follow the judgment on Article 10 in the decision of