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v Guardian Newspapers Ltd [1992] 1 WLR 874; and note that it is for the pros-
ecution to prove that the risk of prejudice to the proceedings resulting from a
discussion in good faith of matters of general public interest was not merely
incidental to the discussion.) Section 5 may be seen, in its quali¬cation of the
strict liability rule, as giving e¬ect to the proportionality principle.
The Contempt of Court Act gives further recognition to the claims of freedom
of expression “ in particular, of the investigatory role of the media “ in granting
a conditional protection to the con¬dentiality of sources of information. Section
10 of the Act provides as follows:

No court may require a person to disclose, nor is any person guilty of contempt of court
for refusing to disclose, the source of information contained in a publication for which he
is responsible, unless it be established to the satisfaction of the court that disclosure is
necessary in the interests of justice or national security or for the prevention of disorder or
crime.


The purpose of this section was explained by Lord Diplock in Secretary of State
for Defence v Guardian Newspapers Ltd [1985] AC 339, 348“9:

Section 10 . . . recognises the existence of a prima facie right of ordinary members of the
public to be informed of any matter that anyone thinks it appropriate to communicate to
them as such. . . . Provided that it is addressed to the public at large or to any section of it
every publication of information falls within the section and is entitled to the protection
granted by it unless the publication falls within one of the express exceptions introduced by
the word unless.
The nature of the protection is the removal of compulsion to disclose in judicial proceed-
ings the identity or nature of the source of any information contained in the publication, even
though the disclosure would be relevant to the determination by the court of an issue in
those particular proceedings.


The need for the protection, Lord Diplock went on to say, was that ˜unless
informers could be con¬dent that their identity would not be revealed sources
of information would dry up™. For this reason the protection of journalistic
sources is regarded by the European Court of Human Rights as ˜one of the
basic conditions for press freedom™ (Goodwin v United Kingdom (1996) 22
EHRR 123, 143).
785 Liberty and the constitution


X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1 (HL)
A company, X Ltd, had prepared a business plan to be used in seeking loan
capital. An unknown person purloined a copy of the plan and that person or
another (the ˜source™) provided con¬dential and damaging information taken
from it to Mr Goodwin, a journalist, who used it in writing an article about
the company for a journal, The Engineer. The company applied for an order
requiring Mr Goodwin to disclose to it the notes which he had made of his con-
versations with the source. This would enable the company to identify the
source, take proceedings to recover the stolen document and prevent further
dissemination of the damaging information. Mr Goodwin invoked section 10
of the Contempt of Court Act 1981. Ho¬mann J ordered the defendant to dis-
close the notes to the company and this order was upheld by the Court of Appeal
and by the House of Lords.

Lord Bridge of Harwich: . . . [W]henever disclosure is sought, as here, of a document which
will disclose the identity of a source within the ambit of section 10, the statutory restriction
operates unless the party seeking disclosure can satisfy the court that ˜disclosure is neces-
sary™ in the interests of one of the four matters of public concern that are listed in the section.
I think it is indisputable that where a judge asks himself the question: ˜Can I be satisfied
that disclosure of the source of this information is necessary to serve this interest?™ he has
to engage in a balancing exercise. He starts with the assumptions, first, that the protection
of sources is itself a matter of high public importance, secondly, that nothing less than neces-
sity will suffice to override it, thirdly, that the necessity can only arise out of concern for
another matter of high public importance, being one of the four interests listed in the section.

The House of Lords was in no doubt that it was ˜in the interests of justice™ that
the company should be able to take remedial action against the source. In
weighing this public interest against the public interest in the protection of
sources, and concluding that discovery of the source was ˜necessary™ in the inter-
ests of justice, their Lordships were moved by the facts that the source had been
a party to a gross breach of con¬dence, that severe damage would be done to
the company™s business if further dissemination of the con¬dential material
could not be prevented, and that the publication of the information served no
legitimate purpose.
Following the dismissal of his appeal to the House of Lords, Mr Goodwin was
¬ned for contempt of court in his earlier refusal to comply with Ho¬mann J™s
order to disclose his source.
Upon a complaint by Mr Goodwin that the order to disclose his source had
violated his right of freedom of expression under Article 10 of the European
Convention, the European Court of Human Rights considered, in Goodwin
v United Kingdom (1996) 22 EHRR 123, whether the undoubted interference
with his right was justi¬ed under Article 10(2), as having the legitimate aim of
786 British Government and the Constitution


protecting the rights of X Ltd (identi¬ed in these proceedings as Tetra Ltd). The
court answered this question in the negative, on the ground that Tetra™s inter-
ests in unmasking a disloyal employee, preventing further disclosure and
obtaining compensation were not su¬cient to outweigh ˜the vital public
interest in the protection of the applicant journalist™s source™. Since the disclo-
sure order was disproportionate to the legitimate aim pursued it could not be
regarded as necessary in a democratic society for the protection of the
company™s rights.
It has been observed that the tests applied in this case by the European Court
of Human Rights and the House of Lords ˜were substantially the same™. It is said
that the two courts reached di¬erent conclusions on the facts, essentially in their
assessment of the damage likely to follow from any further disclosure of the
con¬dential information by the source. (See Camelot Group plc v Centaur
Communications Ltd [1999] QB 124.) Accordingly it was not considered that
any amendment of section 10 of the Contempt of Court Act was necessary in
consequence of the ruling of the European Court in Goodwin. (See further
Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033.)



(e) Freedom of expression and the Human Rights Act 1998
To date the Human Rights Act has not had an enormous impact on freedom of
expression, either positively or negatively, although such relatively few cases as
have arisen have been rather disappointing, from a civil libertarian point of
view. An early case was R v Shayler [2002] UKHL 11, [2003] 1 AC 247. As we
saw in chapter 5 (above, p 277), this case was a challenge to the compatibility
with Article 10 ECHR of certain provisions of the O¬cial Secrets Act 1989.
At the time of its enactment critics saw the Act as one of the Thatcher
Government™s most obnoxious assaults on freedom of political expression.
Section 1 of the 1989 Act makes it an o¬ence for a member or former member
of the security and intelligence services without lawful authority to disclose any
information relating to security or intelligence which came into that person™s
possession by virtue of his employment in the services. No damage to Britain™s
national security need actually (or even potentially) be caused by the disclosure
and it is no defence to a charge under section 1 that the disclosure was in the
public interest (on the ground that, for example, it revealed corruption in
the services). In Shayler the House of Lords ruled that, notwithstanding the
breathtaking scope of this section, it did not breach the protection of freedom
of expression a¬orded by Article 10. Had the Act™s ban on the disclosure of such
information been absolute, Lord Bingham suggested (at [36]), Article 10 would
have been breached. But, as it was, the Act allowed members and former
members of the services to disclose any concerns they may have as to the
lawfulness of the service™s activities to the Attorney General, to the Director
of Public Prosecutions or to the Metropolitan Police Commissioner, and to
787 Liberty and the constitution


disclose concerns about misbehaviour, irregularity, maladministration or
incompetence in the services to the Home, Foreign or Northern Ireland
Secretaries, to the Prime Minister, to the Cabinet Secretary or to the Joint
Intelligence Committee. Their Lordships ruled that such avenues were
su¬cient, given what Lord Bingham described (at [25]) as ˜the need for a secu-
rity or intelligence service to be secure™. Perhaps the decidedly muted support
for freedom of expression that one sees in this case had something to do with
the unpromising facts. Shayler, a former MI5 o¬cer, had disclosed a series of
classi¬ed documents relating to the Security Service to the Mail on Sunday
newspaper without ¬rst having gone through any of the channels for voicing
grievances permitted to him under the Act. He then ¬‚ed the country for
three years, before returning to face his charges. In the event he was jailed for
six months, of which term he served only seven weeks before being released.
R (Rusbridger) v Attorney General [2003] UKHL 38, [2004] 1 AC 357
concerned the compatibility with Article 10 of the Treason Felony Act 1848.
Section 3 of that Act makes it a criminal o¬ence, among other matters, to
˜compass, imagine, invent, devise or intend to deprive or depose our Most
Gracious Lady the Queen . . . from the style, honour, or royal name of the impe-
rial Crown of the United Kingdom™. This provision had as a prime target
editors of newspapers advocating republicanism in Britain. Rusbridger, the
editor of the Guardian newspaper, published a series of articles there in which
it was argued that Britain should become a republic. The Attorney General
brought no proceedings under the Act of 1848 in respect of the articles.
Rusbridger sought a statement from the Attorney General that the 1848 Act
would be disapplied in respect of all published advocacy of the abolition of the
monarchy other than by criminal violence. When the Attorney General
declined to give such a statement Rusbridger sought judicial review, seeking
either a declaration that section 3 of the 1848 Act does not apply in the context
of peaceful advocacy of the abolition of the monarchy or, in the alternative, a
declaration that section 3 of the 1848 Act is incompatible with Article 10
ECHR. The Administrative Court held that there was no decision by the
Attorney General that was susceptible to challenge by way of judicial review.
On appeal, the House of Lords agreed, refusing to grant either of the declara-
tions sought by the newspaper. However, several of their Lordships passed
comment on section 3 of the 1848 Act. Lord Steyn, for example, stated (at [28])
that ˜The part of section 3 of the 1848 Act which appears to criminalise the
advocacy of republicanism is a relic of a bygone age and does not ¬t the fabric
of our modern legal system. The idea that section 3 could survive scrutiny
under the Human Rights Act is unreal.™ Lord Scott stated (at [40]) that ˜It is as
plain as a pike sta¬ . . . that no one who advocates the peaceful abolition of the
monarchy and its replacement by a republican form of government is at any
risk of prosecution™.
Probably the most signi¬cant free speech case thus far in the Human Rights
Act era is the Prolife case, to which we now turn.
788 British Government and the Constitution


R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23,
[2004] 1 AC 185
Television broadcasters must ensure, so far as they can, that their programmes
contain nothing likely to be o¬ensive to public feeling. This ˜o¬ensive material
restriction™ is a statutory obligation placed on the independent broadcasters by
section 6(1)(a) of the Broadcasting Act 1990. The BBC is subject to a compara-
ble, non-statutory obligation under its agreement with the Secretary of State.
Prolife Alliance is a political party that campaigns for ˜absolute respect for inno-
cent human life from fertilisation until natural death™. Among its main policies
is the prohibition of abortion. In May 2001 Prolife Alliance ¬elded enough can-
didates for the June 2001 general election to entitle it to make a party election
broadcast in Wales. Early in May 2001 Prolife submitted a tape of its proposed
broadcast to BBC, ITV, Channel 4 and Channel 5. The major part of the pro-
posed programme was devoted to explaining the processes involved in di¬erent
forms of abortion, with prolonged and graphic images of the product of suction
abortion: aborted foetuses in a mangled and mutilated state, tiny limbs, a sep-
arated head, and the like. Representatives of each broadcaster refused to screen
these pictures as part of the proposed broadcast. The broadcasters did not raise
an objection regarding the proposed soundtrack. As Lord Nicholls put it (at [3])
˜Prolife Alliance was not prevented from saying whatever it wished about
abortion™. The objection related solely to the pictures. Prolife submitted two
further versions of the proposed broadcast to the broadcasters. In the two
revised versions the images of the foetuses were progressively more blurred.
Neither was acceptable. On 2 June a fourth version was submitted and
approved. This version replaced the o¬ending pictures with a blank screen
bearing the word ˜censored™. The blank screen was accompanied by a sound
track describing the images shown on the banned pictures. This version was
broadcast in Wales on the evening of the same day, ¬ve days before the general
election.
Prolife sought judicial review of the broadcasters™ decisions. The Court of
Appeal held in favour of Prolife, holding that the broadcasters™ decisions had
failed to have su¬cient regard to the issues of freedom of political expression
that were at stake. By a four-to-one majority (Lord Scott dissenting) the House
of Lords upheld the broadcasters™ appeal. Lord Nicholls was one of the majority.

Lord Nicholls: . . . Freedom of political speech is a freedom of the very highest importance
in any country which lays claim to being a democracy. Restrictions on this freedom need to
be examined rigorously by all concerned, not least the courts . . .
In this country access to television by political parties remains very limited. Independent
broadcasters are subject to a statutory prohibition against screening advertisements inserted
by bodies whose objects are of a political nature. The BBC is prohibited from accepting
payment in return for broadcasting. Party political broadcasts and party election broadcasts,
transmitted free, are an exception. These ˜party broadcasts™ are the only occasions when
789 Liberty and the constitution


political parties have access to television for programmes they themselves produce. In
today™s conditions, therefore, when television is such a powerful and intrusive medium of
communication, party broadcasts are of considerable importance to political parties and to
the democratic process.
The foundation of Prolife Alliance™s case is article 10 of the European Convention on
Human Rights. Article 10 does not entitle Prolife Alliance or anyone else to make free tele-
vision broadcasts. Article 10 confers no such right. But that by no means exhausts the appli-
cation of article 10 in this context. In this context the principle underlying article 10 requires
that access to an important public medium of communication should not be refused on
discriminatory, arbitrary or unreasonable grounds. Nor should access be granted subject to
discriminatory, arbitrary or unreasonable conditions. A restriction on the content of a
programme, produced by a political party to promote its stated aims, must be justified.
Otherwise it will not be acceptable. This is especially so where, as here, the restriction oper-
ates by way of prior restraint. On its face prior restraint is seriously inimical to freedom of
political communication.
That is the starting point in this case. In proceeding from there it is important to distin-
guish between two different questions. Once this distinction is kept in mind the outcome of
this case is straightforward. The first question is whether the content of party broadcasts
should be subject to the same restriction on offensive material as other programmes. The
second question is whether, assuming they should, the broadcasters applied the right
standard in the present case.
It is only the second of these two questions which is in issue before your Lordships.
I express no view on whether, in the context of a party broadcast, a challenge to the law-
fulness of the statutory offensive material restriction would succeed. For present purposes
what matters is that before your Lordships™ House Prolife Alliance accepted, no doubt for
good reasons, that the offensive material restriction is not in itself an infringement of Prolife
Alliance™s Convention right under article 10. The appeal proceeded on this footing. The only
issue before the House is the second, narrower question. The question is this: should the
court, in the exercise of its supervisory role, interfere with the broadcasters™ decisions that
the offensive material restriction precluded them from transmitting the programme proposed
by Prolife Alliance?
On this Prolife Alliance™s claim can be summarised as follows. A central part of its cam-
paign is that if people only knew what abortion actually involves, and could see the reality
for themselves, they would think again about the desirability of abortion. The disturbing
nature of the pictures of mangled foetuses is a fundamental part of Prolife Alliance™s
message. Conveying the message without the visual images significantly diminishes the
impact of the message. A producer of a party broadcast can be expected to exercise self-
control over offensiveness, lest the broadcast alienate viewers whose interest and support
the party is seeking. Here, it was common ground that the pictures in the proposed pro-
gramme were not fictitious or reconstructed or ˜sensationalised™. Nor was the use of these
images ˜gratuitous™, in the sense of being unnecessary. The pictures were of real cases. In
deciding that, even so, the pictures should not be transmitted the broadcasters must have
misdirected themselves. They must have attached insufficient importance to the context that
790 British Government and the Constitution

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