Court upholds 'vital public interest' of secret sources

London's Court of Appeal, headed by Master of the Rolls Sir Anthony Clarke, this week threw out the latest bid to force freelance journalist Robin Ackroyd to reveal where he obtained a confidential medical report from Ashworth Hospital on Moors murderer Ian Brady.

Clarke said the court agreed with a High Court judge that it had not been "convincingly established" that there was a pressing social need for Ackroyd to reveal where he obtained the report from back in 1999.

He also referred to what he called the "vital public interest in the protection of a journalist's source".

But at the same time he revealed that earlier proceedings taken against Mirror Group Newspapers (MGN) in a bid to force it to reveal the source from which it had obtained the medical report were conducted through the High Court, Appeal Court and up to the House of Lords on a "false assumption". This, said Clarke, was "disturbing".

He said: "In all the circumstances, the judge was in our opinion entitled to hold that it was not convincingly established that there was in 2006 a pressing social need that the source or sources should be identified.

"He was also entitled to hold that an order for disclosure 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 journalist's source. It follows we would dismiss the appeal."

In a word of warning to journalists, though, he added that the court wanted to emphasise that nothing in Wednesday's decision was intended to lead to the conclusion that medical records were less private or confidential, or less deserving of protection.

Then, turning to the earlier proceedings against MGN, he said: "It was assumed that an order made against MGN would yield the name of the underlying source. That has not proved to be the case."

That, he said, was "a curious feature" of action that had been taken against MGN.

He continued: "It was there assumed that, if the court made, or upheld, an order that MGN discloses its source, the ultimate source or sources in the hospital would be disclosed."

That the High Court, Court of Appeal and House of Lords should consider the matter on the basis of a "false assumption" was, he said, "disturbing."

Given that the editor of The Mirror knew that his information had come from Ackroyd he said it was difficult to see how the misapprehension could have arisen, though he added that there was no basis on which the "falsity of that assumption" could be held against Ackroyd.

The consequences of the false assumption were real, though, Clarke said. If Ackroyd's name had been disclosed in May 2000, the ultimate trial of the action involving him would be likely to have taken place before the first anniversary of the disclosure and not over five years later than that.

And he said that if it had been appreciated that all MGN could disclose when action was taken against them was the name of Ackroyd it was almost inconceivable that the case against MGN would have reached the House of Lords.

"An enormous amount of money and, perhaps more significantly, energy on the part of the hospital would have been saved and better directed to other activities," Clarke commented.

Mersey Care NHS Trust said in a statement after the judgment that it was considering a new action for costs against MGN in the light of the judge's findings.

In the incident at the centre of the case, Ackroyd was paid £1,250 for his role, but since the story was published in the Mirror, Mersey Care NHS Trust has left no stone unturned in its fight to discover who leaked the documents.

In February last year, the High Court threw out the Trust's claim for an order forcing Ackroyd to disclose his source.

During the appeal hearing last October lawyers for the Trust claimed, among other things, that the High Court judge was wrong to find that the data disclosed was no longer "high in the range of sensitivity" or "intimate or highly sensitive".

During the High Court hearing, Ackroyd said: "The continued pursuit of this action by Ashworth Hospital six years after publication of the article in The Mirror smacks of vindictiveness on its part.

"I believe that Ashworth has been motivated by a desire to deter me and other journalists from uncovering and exposing mismanagement of the hospital and ill treatment of its patients."

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