The “vital public interest” in protecting a journalist’s source was upheld by the Court of Appeal in investigative reporter Robin Ackroyd’s legal battle with Ashworth Security Hospital.

The court accepted trial judge Mr Justice Tugendhat’s finding that Mr Ackroyd had facilitated wrongdoing against the hospital by publishing leaked confidential information about the hunger strike and forced feeding of ‘Moors Murderer’ Ian Brady.

But the appeal judges said there was no basis to interfere with the High Court’s ruling that it was not “necessary and proportionate” to order the journalist – who had a “history of acting responsibly” – to disclose his source.

Mr Ackroyd’s story, published in 1999 by The Daily Mirror under Gary Jones’ byline, included Brady’s claim that he had been mocked by a nurse “making gagging and gurgling noises” as fridge-cold liquid was poured into his stomach through a nasal tube.

Sir Anthony Clarke MR described the litigation as “a most unusual case”, and at first glance the appeal judgment does seem inconsistent with precedent, because in earlier proceedings brought by the hospital against The Daily Mirror, the House of Lords had ordered the newspaper to reveal its source – i.e. Mr Ackroyd who, in turn, then had to be sued for a disclosure order.

But the Court of Appeal upheld a contradictory outcome in the legal action against Mr Ackroyd – largely because circumstances had changed markedly since the newspaper was ordered to reveal its own source.

In the years since publication, the hospital had not suffered further leaks of confidential information so disclosure was not needed to prevent further breaches of confidence; many staff had left – about 600! – meaning Mr Ackroyd’s source might no longer be involved with the hospital. Mr Ackroyd had not been motivated by financial gain and had given evidence at trial (in January 2006), and the purpose of his source was likely to have been to act in the public interest.

With such new factors, the court could not fault Tugendhat J’s analysis that ordering disclosure of Mr Ackroyd’s source (and thereby interfering with freedom of expression) was no longer “necessary”.

Disclosure would no longer meet a “pressing social need” and would not now be “proportionate” given the “vital public interest in the protection of a journalist’s source”.

The appeal court indicated free speech must be measured in “specifics”: not all speech was of equal value. However, in view of the hospital’s history of problems in the 1990s and the “importance of investigative journalism in bringing them to light”, Tugendhat J had been entitled to regard the journalist’s freedom of expression as being of “a high order when put in the scale against the important consideration that medical records should be kept confidential”.

Tugendhat J had also been right in taking into account Mr Ackroyd’s “good record” in investigating the hospital and other stories, and in findng that it was “in the public interest that his sources should not be deterred from communicating with him”.

The appeal judgment will be welcomed by the media, but the case’s unusual facts are unlikely to recur.