Recent developments concerning the apparent suicide of Dr David Kelly and the ongoing Hutton Inquiry have highlighted the importance attached to protecting sources and may lead to further debate on the subject.
It is a well-established principle that journalists will protect their source at all costs, but this is not simply a moral obligation. The requirements of the Code of Conduct of the National Union of Journalists, and the Press Complaints Commission Editors’ Code of Practice, both state that journalists have an obligation to protect confidential sources of information.
Further, Section 10 of the Contempt of Court Act 1981 recognises this important point of principle. The wide terms of reference given to the inquiry may lead to questions being asked of the media about how they came to identify Dr Kelly. In particular, other journalists may be asked to reveal their sources, which led them to identify him as the most likely to be the BBC’s source.
However, Lord Hutton has already said that in the inquiry he is conducting, there is no legal right to cross-examination of witnesses. The Hutton Inquiry is not a court and although instituted by the Government, is not a formal “tribunal of inquiry” (that is, constituted under the authority of both Houses of Parliament and appointed by the Secretary of State).
The distinction is critical because its power to call witnesses and to get journalists to disclose documents or answer questions seems to be limited to persuasion only.
If it was a tribunal, it would have many of the powers of a court. If a witness declined to answer a question and this was felt to be impeding the inquiry, the chairman would have the power, under Section 1(2) of the Tribunals of Inquiry (Evidence) Act 1921, to “certify the offence” of contempt to the High Court, which might then inquire into the alleged offence. However, the protection afforded by Section 10 would still apply because the provisions of the Contempt of Court Act 1981 are stated to apply equally to the proceedings of such a tribunal.
In normal circumstances, should someone wish to force a journalist to disclose his or her source, it is up to them to satisfy the Court that such disclosure is “necessary”. This carries with it a high burden as the Court of Appeal again confirmed earlier this year in Mersey Care NHS Trust versus Robin Ackroyd.
In giving judgment, the Court of Appeal reviewed, inter alia, the protection afforded by Section 10 and Article 10 of the European Convention on Human Rights.
They reaffirmed that the protection of journalistic sources is one of the basic conditions of press freedom.
Without such protection, sources may be deterred from assisting the press and informing the public on matters of public interest. In view of the “potentially chilling effect” an order for disclosure might have on the exercise of that freedom, the court recognised that such an order would not be compatible with article 10 “unless it is justified by an overriding requirement in the public interest”.
If Hutton found it was essential to his inquiry that he know a journalist’s source and/or if his other findings led to the setting up of another, formal Tribunal of Inquiry, then witnesses including journalists who had declined to co-operate with Hutton might find themselves under considerable pressure not to antagonise an inquiry with such public interest attached to it.
Brian Johnson is a solicitor in the media team at Farrer & Co
by Brian Johnson