NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb01632.x |
| Date | 01 May 1981 |
| Published date | 01 May 1981 |
NOTES
OF
CASES
MOLES
AND
STEEL
PAPERS
THE
performance of the courts in dealing with the case of
British
Steel
Corporation
v.
Granada
Television
Ltd.’
has given rise to
fierce and notorious controversy.2 This is hardly surprising consider-
ing that the media, the conduit of public debate, has been directly
involved and maintain that it has been dealt
a
severe and unjustified
blow. Although most of the criticism is ill-considered and
mis-
directed, the case does raise issues of fundamental importance to
society; namely, the freedom of the media and the scope of con-
fidentiality. Indeed, the refusal by three of the Law Lords to treat
the case as even marginally connected with the freedom of the media
is itself cause for serious ~omment.~ However, in legal terms, the
case is significant not
so
much for what it actually decides, but more
for the objectionable assumptions
on
which the decision is based and
the important questions the courts declined to consider. The House
of Lords acted
as
if it were hearing the case at first instance and,
as such, did not fulfil its responsibilities, even
on
the most modest
interpretation, as the country’s highest judicial body.4
Sadly, a large part of the controversy can be reduced to an
un-
necessary confusion over the actual facts and purposes of the case.
This is espcxially lamentable when the House of Lords set great store
by the precise sequence and nature of the contested events. At the
end of January
19S0,
Laurie Flynn, a part-time researcher at
Granada, was given
250
unsolicited
“
confidential
”
documents be-
longing to
BSC
on
the understanding that the identity of the supplier
would remain secret.’ The documents were passed
on
to David
Boulton, the Head of Current Affairs at Granada. A decision was
taken to use
27
of these confidential documents in a
World in Action
programme, to be broadcast
on
the evening of February
4,
on
the
national steel strike that was then in progress. It was alleged in the
programme, on the basis of the so-called
“
Steel Papers,” that there
was serious mismanagement within
BSC
and that the Government,
despite public utterances to the contrary, was covertly intervening
1
[1980] 3
W.L.R.
774.
2
The extcnt and acrimony
of
the.debate can be gauged from the flood
of
letters
to
The Times,
especially on August
2
and
5,
1980.
Indeed, in
a
leading article,
The
Times
took the view that “in similar circumstances,
The Times
would decline to
reveal the name of
its
informant and would take the unpleasant legal consequences
that might follow
”;
see July
31, 1980.
3
Supra,
note
1
at pp.
821, 829
and
853,
per
Lords Wilberforce, Dilhorne and
Russell respectively.
4
The willingness of the House to
go
beyond the precise issue raised
is
amply
demonstrated by the five opinions delivered in
R.
v.
Sang,
[I9791
2
All
E.R.
1222;
see Hutchinson and Withington, Case Comment
(15JHO)
SS,,Can.B.Rev.
376.
5
Contrary to popular and judicial belief, the mole later revealed himself
on November
2,
1980,
as
Dougal Mackenzie, aged
55,
a
former records officer with
BSC
and not an employee in high executive office. He had been made redundant
it the beginning
of
the year.
320
May
19811
NOTES
OF
CASES
321
in the affairs of BSC.
On
the day before the broadcast of the pro-
gramme, Granada informed BSC that the
“
Steel Papers
”
were to
be used and invited BSC to take part in the programme. Sir Charles
Villiers, then Chairman
of
BSC, accepted the invitation and
answered questions based on the
“
Steel Papers.” At
no
time did
BSC seek an
ex
parte
interim injunction, as was open to
it,
to pre-
vent use of the “Steel Papers” by Granada. Fatally and ill-
advisedly, Granada conceded, if not insisted, in its arguments before
the courts, that such an injunction would “certainly have been
granted.”
After the broadcast of the programme, BSC obtained an injunction
to prevent further use of the
“
Steel Papers
”
and sought disclosure of
the documents.
On
February
28,
Granada delivered the “Steel
Papers
”
to BSC, but they were mutilated
in
such a way
as
to remove
any indication of the identity of the so-called
“
mole.”
On
March
6,
BSC sought an affidavit from Granada disclosing the name of the
“
mole.” Granada refused to comply with this request. The narrow
legal issue was, therefore, whether Granada could be compelled by
judicial process to disclose such information. Megarry V.-C. decided
that it could and the Court of Appeal unanimously upheld that
decision. The House
of
Lords dismissed an appeal by Granada
’
and
ordered it to disclose the identity of the
“
mole
”
forthwith.8 In
reaching its decision, the House concentrated upon whether it is in
the public interest to allow the media to refuse
to
disclose its
confidential sources of information.
The law of evidence is an institutional device designed to achieve
justice in the judicial resolution
of
disputes. As such, the facilitation
of the pursuit of truth must be given a high, but not absolute priority;
a
hindrance of that process may be justified in order to protect
interests of sufficient social importance.9 The recognition of certain
testimonial privileges flowing from communications between lawyer
and client, and husband and wife, is justified within such
a
frame-
work. However, the modem tendency has been to interpret such
privileges with increasing strictness
lo
and to effect
a
progressive
reduction in the obstacles to accuracy and rationality in the fact-
6
Supra.
note
1
at p.
821,
per
Lord Wilberforce. Lord Salmon denied that Granada
had admitted this and that it had acted wrongly;
ibid.
at p.
843.
Granada is now
preparing to take its case to the European Commission
on
Human Rights.
7
The unusual course was followed
of
announcing the actual disposition of the
appeal on July
30, 1980,
but not publishing the reason for the decision until Novem-
ber
30, 1980.
Lord Salmon refused to bo party to such
an
arrangement, explicitly
stating that he needed time to reflect on the many authorities and arguments before
he reached
a
final
dccision.
8
BSC did not press their right to an affidavit and accepted Granada’s explanation
that thc identity of the mole was only known to Laurie Flynn, the part-time
researcher, and that the company itself had
no
knowledge of his identity.
9
See William
M.
Evan, “Value Conflicts in the Law of Evidence” in
The
Sociology
of
Law:
A
Social Structural Perspeclive
(1980)
at pp.
160-166
and C.
T.
McCormick.
A
Handbook
of
rhe Law
of
Evidence
(1954)
at
D.
165.
~
~.
10
See
e.;.
the paring down
of
legai professional phvilege in
Waugh
v.
BRB
[1979]
3
W.L.R.
150
(H.L.).
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