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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2705 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) THE COMMISSIONER OF POLICE OF THE METROPOLIS (2) THE SERIOUS ORGANISED CRIME AGENCY
|- and -
|(1) TIMES NEWSPAPERS LTD (2) MICHAEL GILLARD
Gavin Millar QC and Anthony Hudson (instructed by Simons Muirhead & Burton) for the Defendants
Hearing dates: 18,19,20 and 22nd July 2011
Crown Copyright ©
Mr Justice Tugendhat:
THE PROCEDURAL HISTORY
OUTLINE OF THE CLAIMS AND THE DEFENCE
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
"1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, .conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of ... public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence".
THE ISSUES IN THE LIBEL PROCEEDINGS
THE DISPUTED INFORMATION
ECHR Art 6 - THE RIGHT TO A FAIR TRIAL
ECHR Art 8- THE RIGHT TO RESPECT FOR PRIVATE LIFE
ECHR Art 10(1) - THE RIGHT TO FREEDOM OF EXPRESSION
BALANCING ECHR Art 10(1) AND RIGHTS UNDER Art 8 AND Art 10(2)
"60. The European Court has not identified a consistent or uniform set of principles when considering the doctrine of proportionality: see Richard Clayton, "Regaining a Sense of Proportion: The Human Rights Act and the Proportionality Principle"  EHRLR 504, 510. But there is a general , international understanding as to the matters which should be considered where a question is raised as to whether an interference with a fundamental right is proportionate.
61. These matters were identified in the Privy Council case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 by Lord Clyde. He adopted the three stage test which is to be found in the analysis of Gubbay CJ in Nyambirai v National Social Security Authority  1 LRC 64...The first is whether the objective which is sought to be achieved-the pressing social need-is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for 'the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them."
"...The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd  2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the' specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
"135 .... where a minister has concluded that the public interest justifies excluding a passage from the open version of a judgment, the court must first consider whether there is anything in the suggestion, and, if there is, then unless the inclusion of the passage would have a grave effect on the public interest (in which case that would be the end of the matter), the court must then carry out a balancing exercise ...
141 ....The first step is to assess the arguments raised in relation to the public interest in the redacted paragraphs being excised; ... The second step is to consider the arguments in favour of publishing the redacted paragraphs. The third step involves striking a balance between the two competing sets of arguments ... "
"In a case such as the present it is salutary to bear in mind what Lord Reid said in the Conway case, at p 943g, namely 'cases would be very rare in which it could be proper [for a court] to question the view of the responsible minister that it would be contrary to the public interest to make public the contents of a particular document'. Especially, I would add, when it comes to issues such as national security ... "
"102...Where a prima facie case of public interest immunity is made out, ... [and] When the court is balancing the competing interests, Cross & Tapper on Evidence, 12th ed (2010), p. 484 suggests, with reference to case law from various common law jurisdictions, that "the court will take into account factors such as the seriousness of the claim for which disclosure is sought, whether or not the government is itself a party or alleged to have acted unconscionably, the relevance of the particular evidence to the dispute, taking into account other possible sources of evidence, and on the other side, the nature of the state's interest, and the length of time that has elapsed since the relevant discussion took place.
103. Thus, in both a criminal and a civil context, a judge dealing with an issue of PII has necessarily to form a view as to' the relevance of the material for which PII is claimed. This is a fortiori the position if a judge, having concluded that, in the public interest, material cannot be disclosed, goes on to consider whether, as a result, the case has become untriable: see Carnduff v Rock  EWCA Civ 680,  1 WLR 1786, below."
" ...In some circumstances, therefore, the court is faced not with a binary choice, between trial with or without the material for which PII has been claimed, but with a trinary choice: the third possibility is no trial at all - whoever happens to be the claimant then has no access to the court at all.
109. Logically, this third possibility may be capable of feeding back into the decision whether a claim for PII should be allowed. If the effect of a successful claim to PII is that the case will not be tried at all, that introduces a different dimension, which may affect the striking of the balance of competing interests (para 103 above) ..."
WHAT CONSTITUTES A BREACH OF CONFIDENCE?
"acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. .... However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual."
"The circumstances will dictate which one or more of the possible courses should be taken by an honest person. He might, for instance" flatly, decline to become involved. He might ask further questions. He might seek advice, or insist on further advice being obtained. He might advise the trustee of the risks but then proceed with his role in the transaction. He might do many things. Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct. Likewise, when called upon to decide whether a person was acting honestly, a court will look at all the circumstances known to the third party at the time. The court will also have regard to personal attributes of the third party, such as his experience and intelligence, and the reason why he acted as he did."
"Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration. Obviously in each case a balance has to be struck between competing public interests, and at least arguably in some cases the reasonableness of the police view may be open to challenge."
"3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest."
"Even though I concluded that this was not the case, should some allowance be made for a different view on the matter? The answer is probably in the negative, because it is only the court's decision which counts on the central issue of public interest.
 It might seem reasonable to allow in this context for some difference of opinion. I cannot believe that a journalist's sincere view on public interest, however irrationally arrived at, should be a complete answer. A decision on public interest must be capable of being tested by objectively recognised criteria. But it could be argued as a matter of policy that allowance should be made for a decision reached which falls within a range of reasonably possible conclusions. Little was said in submissions on this aspect of the case.
 It would seem odd if the only determining factor was the decision reached by a judge after leisurely debate and careful legal submission - luxuries not available to a hard-pressed journalist as a story is breaking with deadlines to meet. Obviously, on the other 'hand, the courts could not possibly abdicate the responsibility for deciding issues of public interest and simply leave them to whatever decision the journalist happens to take."
BREACH OF CONFIDENCE AND LEAKS TO JOURNALISTS
"43. In the case under review Mr Castells did not express his opinion from the senate floor, as he might have done without fear of sanctions, but chose to do so in a periodical. That does not mean, however, that he lost his right to criticise the Government. In this respect, the pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest (see, mutatis mutandis, the Sunday Times v. The United Kingdom judgment of 26 April 1979, Series A no. 30, p. 40, para. 65, and the Observer and Guardian judgment, cited above, Series A no. 216, p. 30, para. 59 (b)). Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 42)."
"59 ... Furthermore, protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital 'public watchdog' role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest (see Goodwin, cited above, § 39). …
63 ... While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the 'multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2".
THE PUBLIC DOMAIN
WHETHER THE CLAIMANTS SHOULD HAVE BROUGHT SEPARATE PROCEEDINGS
LEGAL PROFESSIONAL PRIVILEGE
"93. Fifth, there is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. In this context, the emergence of the truth is not of itself a sufficient public interest. The reason why the balancing exercise is not appropriate is because the balance between privilege and truth has already been struck in favour of the former by the establishment of the rules concerning legal professional privilege: see The Aegis Blaze  1 Lloyd's Rep 203, 211; R v. Derby Magistrates Court, ex parte B  AC 487, 508.
94. Sixth, other public interest factors may still apply. So there is no reason in principle why the court should not apply the rule that the court will not restrain publication of material in relation to misconduct of such a nature that it ought in the public interest to be disclosed to others ... "
WHETHER TNL WILL SUFFER AN UNFAIR TRIAL WITHOUT THE .DOCUMENTS
EVIDENCE HEARD AT THIS TRIAL
Art 10 – the relevant intended use of the disputed documents
Art 8 - Risk to person - Headings A to F and J
Reference to third party agencies - Heading G
Disclosure of Police Methods - Heading H
LPP - Heading I
THE SOCA DOCUMENT - Heading K - Document 3
Outstanding issues on the draft Amended Defence