(1) The Commissioner of Police of the Metropolis (2) The Serious Organised Crime Agency v (1) Times Newspapers Ltd (2) Michael Gillard
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWHC 1566 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X00308 |
| Date | 21 June 2011 |
[2011] EWHC 1566 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X00308
William McCormick QC and Iain Daniels (instructed by MPS/SOCA) for the Claimants
Gavin Millar QC and Anthony Hudson (instructed by Simons Muirhead & Burton) for the Defendants
Hearing dates: 15 June 2011
The claimants claim an injunction to restrain a breach of confidence by the defendants ("the publishers"), and other relief. The claim relates to leaked information, derived from the claimants, which was referred to by the publishers in a publication. The subject of the information has sued TNL for libel. TNL wishes to rely on the information it has already obtained from the claimants for the purpose of pleading a defence in the libel action. It also seeks disclosure of further documents for the same purpose.
THE HISTORY OF THE PROCEEDINGS
The proceedings started with an application by the claimants for an interim injunction. I granted an injunction to prohibit the disclosure of information which they allege to be confidential. The claimants then served their Claim Form and Particulars of Claim. The publishers served their Defence. After that the publishers applied for a variation of the injunction which I refused to grant. The claimants then served their Reply. The parties exchanged disclosure statements. After that the publishers made a request for further information of the Reply. They were not satisfied by the answers.
The publishers now apply for orders that the claimants answer certain requests for further information (the RFI point) and that they give certain further disclosure (the disclosure point).
THE RIGHTS AND OBLIGATIONS OF THE PARTIES
There is no dispute that the claimants have obligations under the Human Rights Act 1998, and under other statutes, to keep confidential certain types of information. Being arms of the state, they have no rights of their own (such as an individual may have), but only those rights that are necessary for them to carry out their obligations.
The types of information in question, and the reasons why such information cannot normally be disclosed, are most commonly discussed in the context of public interest immunity. That immunity has the effect that law enforcement agencies are not obliged to disclose certain kinds of information in the course of criminal or other proceedings. But if there has already been a disclosure, or there is a threatened disclosure, of such information, as is the case here, then the same principles give to law enforcement agencies a right to ask the court to make orders prohibiting the disclosure, or further disclosure, of such information.
It is similarly not in dispute that publishers enjoy the right to freedom of expression under Art 10. In addition to the right to freedom of expression, there is no dispute that TNL has a right to a fair trial of the libel proceedings. And public authorities (which include the claimants and the court) have a positive obligation to give effect to those rights.
The central issue in the present dispute is the extent to which the obligations of the claimants (which in turn give rise to their rights to protect certain information from disclosure) are to prevail over, or are to be subordinated to, the rights of the publishers both to freedom of expression, and to a fair trial of the libel action.
The claimants allege that the confidential information and documents were disclosed unlawfully by one or more officers or civilian employees, and that the publishers, having received those documents or that information, knew that they were confidential.
The publishers have declined to disclose the source from which they obtained the documents and information in question. The publishers do not admit the allegation that the publishers received information disclosed to them in breach of confidence.
The publishers plead in their Defence that such information as they received was properly and lawfully received either in the course of legitimate news gathering activities or investigative journalism on matters of public interest or for the purposes of defending the libel proceedings. They will use such material to the extent permitted by the court. They will resist any order for disclosure of their sources.
The meaning complained of by the claimant in the libel action is that he is guilty of very serious criminal offences committed by himself and others whom he organises. TNL has served a Defence pleading justification and Reynolds privilege or public interest. TNL issued an application against the claimants and other law enforcement agencies, as non-parties to the libel action, for disclosure under CPR 31.17. The application was opposed by the claimants, but the court has not been asked to hear and determine it.
The libel claimant applied to strike out the defence of justification for want of particularity. In the course of a hearing of that application, TNL accepted that the Defence as then formulated should be amended. At that stage the Defence did not rely upon the information alleged by the claimants to be confidential. TNL later produced a draft which did use or disclose such information, and sent it to the claimants for their consideration before sending it to the libel claimant. Shortly before this TNL has sent to the claimants copies of documents which it intended to rely upon in support of its application for non-party disclosure. It was that which precipitated the application by the claimants for an injunction. The result is that the draft amended Defence has not be shown to the libel claimant, and those proceedings have not progressed further.
It is the publishers' case in this action that TNL are entitled by Art 10 to use the documents and information the subject of this action in its defence of the libel action.
THE RFI POINT
In support of their Art 10 argument the publishers plead in their Defence that the publication complained of in the libel action was of public interest because the subject (the libel claimant) was the head of an organised crime group who had not been brought to justice, and was seeking to benefit financially from business dealings described in the publication.
In the Reply the claimants did not admit or deny that allegation. What they did plead was that the publication did not allege any failure on the part of the law enforcement agencies. That is correct. And likewise, the Defence of the publishers in this action does not raise any allegation of any failure of law enforcement agencies.
The fact that the claimants had not pleaded to the allegation set out in para 14 above gave rise to a request for further information from the publishers. This was also discussed in correspondence.
By the end of Mr McCormick's submissions the position of the claimants had been clarified as follows. Both agencies admitted that the libel claimant is the head of an organised crime group....
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