A victory for journalistic secrecy

The Court of Appeal has decided that Robin Ackroyd, the freelance who provided a story to the Daily Mirror about the mistreatment of Moors murderer Ian Brady, should be allowed a trial to determine whether he should reveal his sources.

The decision in Mersey Care NHS Trust v Ackroyd marks a victory for journalists following an earlier setback in the prequel case of Ashworth Hospital Authority v MGN Ltd when the House of Lords ordered the Daily Mirror to reveal the intermediary who provided the story.

The Mirror obtained and published information about Brady’s mistreatment when being moved from one ward to another at Ashworth Hospital including his subsequent hunger strike. This included confidential medical records obtained from Ackroyd, who in turn had obtained them from hospital employees.

In an attempt to prevent further leaks, the hospital obtained an injunction against the Mirror to force it to reveal the name of the intermediary in the belief that this would lead them to the source of the initial leaks. They were wrong. Once Ackroyd admitted to being the Mirror’s intermediary he refused to reveal his sources.

The hospital was successful against Ackroyd in the High Court. The judge gave summary judgment, deciding that, following the first case, Ackroyd had no real prospect of successfully resisting the claim.

Ackroyd’s appeal centred around two main arguments. First, the High Court had been wrong to use its Norwich Pharmacal jurisdiction, ie to order a person who became mixed up in the wrongdoing of others to assist the court in helping the wronged person, by giving full information and disclosing the identity of the wrongdoers. Ackroyd argued that the hospital employees were not wrongdoers as they were acting in the public interest by revealing Brady’s mistreatment.

Brady’s second argument was that the judge failed properly to carry out the balancing exercise required under Section 10 of the Contempt of Court Act 1981 and Article 10 of the European Convention on Human Rights: The court is required to balance the need to protect journalistic sources (to provide for the free flow of information) against the need to reveal the sources to fulfil a pressing social need.

The Court of Appeal recognised that the protection of journalistic sources was fundamental to press freedom in a democratic society. It also recognised the clear public interest in preserving the confidentiality of medical records. However, that alone was not automatically to be regarded as an overriding requirement justifying a summary order for disclosure against Ackroyd. He had raised a difficult (but possible) defence which merited examination at a full trial.

The courts are now unlikely to grant disclosure orders against journalists without a full examination of the facts of each case. The facts in Ackroyd’s case are very similar to those in Ashworth. However, Ackroyd was able to raise enough fresh argument and new facts in order to prevent the Ashworth decision being applied directly against him. Whether the hospital will now take the case to trial remains to be seen.

Ashley Hurst is a lawyer with the technology, media and communications department at Lovells

by Ashley Hurst

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