By Roger Pearson
The public interest in a journalist’s right to protect his source and a hospital’s right to keep its medical records confidential clashed at London’s High Court today, where lawyers claimed it would breach a journalist’s human rights for him to have to name the source who exposed medical records of Moors murderer Ian Brady.
The competing principles collided head-on at the start of a seven day test case hearing in which the Mersey Care NHS Trust, which runs top security Ashworth Hospital where Brady is locked up, argues that the need to protect medical records overrides the right of expression.
The hospital is asking Mr. Justice Tugendhat to order freelance journalist Robin Ackroyd to reveal his source for a story he wrote in the Daily Mirror in December 1999, which quoted from confidential patient records following the killer’s hunger strike.
Opening the case today, Vincent Nelson QC, for the hospital, claimed the balance was firmly on the side of the hospital.
The newspaper fought unsuccessfully all the way to the House of Lords to avoid having to disclose its source. But when it met with final defeat, Ackroyd stepped forward to reveal he provided them with the story for which he was paid £1,250. However, he refused to name his source.
In October 2002, the High Court ruled he had no arguable defence and must reveal his source, however in May the following year, the Court of Appeal
Overturned that decision and said he should be allowed to defend himself at trial.
The Appeal Court ruled it was “a clear case of a journalist whose freedom of expression would be inhibited if he were required to disclose the identity of his sources.”
Mr.Nelson told the judge today that the Trust were no longer seeking compensation from Mr. Ackroyd, but they do consider him a “wrongdoer” and say he should be ordered to reveal the identity of his source.
However, in written submissions before the court, Gavin Millar QC for Mr. Ackroyd argues that the disclosure of the information by the sources was an act of expression within the Article 10 right to “freedom of expression” in the European Convention on Human Rights, which was “justified in the public interest.”
The disclosure by the journalist to the newspaper was an exercise of his right to freedom of expression which was also justified in the public interest, and so Mr.Ackroyd should be entitled to retain the right to keep his source anonymous under the 1981 Contempt of Court Act.
He said: “Information which should be placed in the public domain is frequently made available to the press by individuals who would lack the courage to provide the information if they thought there was a risk of their identity being disclosed.
“The fact that journalists’ sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public.
“It is for this reason that it is well established now that the courts will normally protect journalists’ sources from identification.”
“Mr Ackroyd wrote the article in good faith, believing that it tackled issues of legitimate public interest and that he was not doing anything wrong.”
He argued that the passage of time, now some six years since the article was published, was another reason the order should not now be made.
He said Mr.’ Ackroyd’s career as an investigative journalist had already been damaged and that this would be compounded if an order were made.
And, he argued, the Trust cannot now say disclosure was necessary to remove the risk of further disclosures of confidential medical material by the source. There have been no leaks since, and the source may have long since left Ashworth.
The hearing is set to last up to ten days and 65-year-old Brady himself has offered to give evidence in Mr. Ackroyd’s defence, claiming the Trust uses the legal pretext of doctor-patient confidentiality to conceal conditions at Ashworth.
The hearing continues.