Protecting journalist’s sources

Mersey Care NHS Trust v Ackroyd QBD TLR 9 February

The Mirror newspaper on 2 December 1999 published an article concerning the treatment received by the Moors murderer Ian Brady while on hunger strike. The NHS trust obtained a disclosure order against Mirror Group Newspapers Ltd for the source of the article. The order was affirmed on appeal both by the Court of Appeal and the House of Lords. As a result, the defendant, Robin Ackroyd, was identified as an intermediate source and this action was commenced against him. The hospital had established the threshold condition that there had been wrongdoing of which it was the victim, and in which the defendant was involved. However, faced with the conflicting rights claimed by the parties under article 8 (right of privacy) and article 10 (freedom of expression) of the European Convention on Human Rights, it was necessary to consider the comparative importance of the specific rights being claimed by the parties. These are: first, that neither article has precedence over the other; second, where values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; third, the justifications for interfering with or restricting each right have to be taken into account; fourth, the proportionality test has to be applied to each. Considering the facts as they were in 2006, it had not been convincingly established by the NHS trust that there was pressing social need for the sources to be identified. Furthermore, an order for disclosure of the defendant’s sources would not be proportionate to the pursuit of the hospital’s legitimate aim to seek redress against the source, given the vital public interest in the protection of a journalistic source. The NHS trust was not therefore entitled to the order for disclosure that it sought. The decision was the opposite to that reached in the previous action which lead to the disclosure of Mr Ackroyd as the intermediate source. That was not because the medical records were considered less private, less confidential, or less deserving of protection than so judged by the previous courts; it was because the facts were different from the facts found in that action. That was partly due to the new evidence and partly due to the passage of time since 1999. Furthermore, unlike the courts in the previous action, the judge had heard the evidence of Mr Ackroyd and concluded that he was a responsible journalist whose purpose was to act in the public interest.