Attorney General v Mulholland. Attorney General v Foster
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 13 February 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0213-1 |
| Court | Court of Appeal |
| Date | 13 February 1963 |
In the Matter of the Tribunals of Inquity (Evidence) Act, 1921
In the Matter of a Certificate Issued in Respect of Brendan Joseph Mulholland by the Chairman Of the Tribunal Appointed to Inquire Into the Circumstances in Which Oppences Under the Official Secrets Acts were Committed by William John Christopher Vassall and Into Certain Allegations and Other Matters Arising Therefrom
[1963] EWCA Civ J0213-1
The Master of the Rolls
(Lord Denning)
Lord Justice Donovan and
Lord Justice Danckwerts
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Gorman
MR R.V. CUSACK, Q.C. and MR DAVID HIRST (instructed hy Messrs Swepstone, Walsh & Son) appeared as Counsel for the Appellants
THE ATTORNEY-GENERAL (SLR JOHN HOBSON, Q.C.), The Hon. J.R. CUMMLNG-BRUCE and MR W.W.STABB (instructed by the Treasury Solicitor) appeared as Counsel for the Respondent.
These are appeals by two journalists, Mr Brendan Joseph Mulholland and Reginald William Foster against sentences which have been passed upon them by Mr Justice Gorman. A Tribunal of Inquiry was enquiring into matters which Parliament had required to be investigated. The Chairman of the Tribunal, in pursuance of the statute, certified to the High Court that the:, had refused to answer the questions to which the tribunal had legally required an answer. After hearing the case and a claim of privilege which the journalists had put forward, the Judge found each of them guilty as if he had been guilty of a contempt of court and passed sentence accordingly.
I need not go into the statute or the facts in great detail. It appears that allegations were made in some newspapers which reflected gravely on persons in high places and on Naval officers and civil servants in the Admiralty, The articles clearly imported that there had been neglect of duty on their part in not discovering a spy who was in their midst. In making these allegations the newspapers were exercising the undoubted freedom which belongs to them. They are entitled to expose wrongdoing and to criticise the Government and a-one else, no matter how high and powerful he may be. But these were allegations which could not be overlooked. Coming from newspapers with such great influence for good or ill, they demanded investigation. If well founded, the security arrangements at the Admiralty needed complete overhaul and those at fault would have to pay the penalty for their neglect. So Parliament decided that there should be an investigation. It set up a tribunal to enquire into the matter as of urgent public importance. In the course of the inquiry the journalists responsible-for these articles were asked to give the source of their information and they refused to answer.
Now, was this a question which they could legally be required to answer? That depends on two questions: First, was itrelevant and necessary in this sense, that it was a question that ought to be answered to enable proper investigation to be made? Secondly, if it was, have the journalists a privilege in point of law to refuse to answer? Under the statute any witness before the Tribunal is entitled to the same immunities and privileges as if he were a witness before the High Court. I turn to consider these two points in order, remembering that the certificate of the Tribunal is not binding on the Courts. The Judge before whom it comes must enquire into the matters afresh to see if an offence has been committed.
So far as Mr Mulholland is concerned, these were the three passages in the newspaper as to which he was asked his course. One was a passage in an article which asserted that "colleagues of his in the Admiralty called Vassall "Auntie" to his face". Another passage in another article was this, that "a girl typist in the Admiralty office where he worked had decided that no £15 a week clerk could possibly live the way he did honestly", and the third passage was that "it was the sponsorship of two high ranking officials which led to Vassall avoiding the strictest part of the Admiralty's security vetting". Mr Mulholland was asked what were the sources of that information and he declined to give the source. He said he would not enquire from the source as to whether ho was willing that it should be divulged. The Chairman of the Tribunal, Lord Radcliffe, directed him to answer and he declined.
Was the question relevant to the Inquiry? Was it one that the journalist ought to answer? It seems to me that if the Inquiry was to be as thorough as the circumstances demanded, it was encumbent on Mr Mulholland to disclose to the Tribunal the source of his information. The newspapers had made these allegations. If they made them with a due sense of responsibility (as befits a Press which enjoys such freedom as ours) then they must have based them on a trustworthy source. Heavenforbid that they should invent them I And if they did get them from a trustworthy source, then the Tribunal must be told of it. How otherwise can the Tribunal discover whether the allegations are well founded or not? The Tribunal cannot tell unless they see for themselves this trustworthy source, this witness who is the foundation of it all. The Tribunal must, therefore, be entitled to ask what was the source from which the information came.
It is said that the Tribunal had access to other sources of information which might make it unnecessary for the newspapers to disclose their source: and that the newspapers do not know of these other sources because so much of the proceedings were held in camera, I am not in the least impressed by this argument. Even if the Tribunal did have access to other sources of information, nevertheless it is still necessary for the Tribunal to know whence the newspapers got their information so as to confirm, contradict or complete these other sources. The root cause of the whole Inquiry was the information which the newspapers published and it is their sources which must be tracked down so as to see whether they are trustworthy or not. Once the source of the information is ascertained, the Tribunal are better able to see whether it is such as to implicate or exculpate those concerned at the Admiralty.
I hold, therefore, that so far as Mr Mulholland is concerned, these questions were both relevant and necessary to the Inquiry which the Tribunal had in hand.
So far as Mr Foster is concerned, the case is rather different. We were invited by kr Cusack to take a special course with him on the ground that the questions were not relevant. The part of the article on which ho was questioned was this: "Why did the spy-catchers fail to notice Vassall who sometimes were women's clothes on West End trips?". When Mr Foster was asked on that matter, he said he was not responsible for the word "wore" women's clothes. He said: "I was informed thatVassall was known to have bought women's clothing in the West: End". Then he was further asked whether he could remember the source of the information and ho said he could not remember the particular source, the particular person; there were a number of people to be considered in these enquiries. But then he was asked: If you cannot remember the names of your informants, can you remember the type of source from which your information cares, and I added the specific question, did it come from a shop? (A) It did not come from a shop, (Q) HOW do you know it did not come from a shop". He was pressed on that question: Did he know the type of source? He refused to answer as a matter of principle on the type of source from which it came.
It was said Mr Cusack on his behalf that his case is different from Mr Mulholland's. Here is a case of a man who did not remember the actual source. All he refused to say was the type of source. It was said that later Vassall himself gave evidence that he bought women's clothes in the West End. Why then was it necessary for this question to be pressed, at all events at this stages when the later evidence is before the Courts? It seems to me that the answer is simply this: The fact that Vassall bought women's clothes is not the whole point, The point is; Did those about him in the Admiralty know it earlier on before he was arrested and ought they to have imported it? Were they guilty of a neglect of duty? On that point the type of source is a relevant question which could be, asked and was asked. It could and might have led to further inquiries which would have more nearly pinpointed the actual source so that it could be tracked down by the Tribunal.
I feel that in Poster's case also the answer must be that the question was relevant and one that ought to be answered for the proper purposes of the Inquiry.
But then it is said (and this is the second point) that however relevant these questions were and however proper to beanswered for the purpose of the Inquiry, a journalist had a privilege by law entitling him to refuse to give his sources of information. The journalist puts forward as his justification the pursuit of truth: It is in the public interest, he says, that he should obtain information in confidence and publish it to the world at larges, for by so doing ho brings to the public notice that which they should know. He can expose wrongdoing and neglect of duty which would other wise go unremedied. He cannot get this information, he says, unless he keeps the source of it secret. The mouths of his informants will be closed to him if it is known that their identity will be disclosed. So he claims to be entitled to publish all his information with out ever being under any obligation, even when directed by the Court or a Judge, to disclose Whence he got it. It seems to me that the journalists put the matter much too high. The only profession that I know which is given a...
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