When asked what is most likely to blow governments off course, Harold MacMillan famously replied: “events, dear boy, events”
And whilst I don’t for one moment compare myself to a Prime Minister, I couldn’t help calling MacMillan’s remark to mind when preparing this column.
After all, I had a plan – read and inwardly digest the Supreme Court’s decision in Flood v. Times Newspapers, and write an article which explained the significance of the Court’s decision to re-affirm the libel defence of common law qualified privilege – so called Reynolds privilege.
This is an important decision, because the Supreme Court has emphasised that the purpose of the defence is “to promote greater freedom for the press to publish stories of genuine public interest”. What could be of more interest to all serious journalists?
But then an event occurred – in the form of a Recorder sitting at Plymouth County Court, which could have seen a respected regional reporter in the cells, or being fined, or both, for refusing to disclose his confidential source.
It’s a long story. Mr. Malcolm Haggart, a marine engineer in Plymouth, and Cllr Therese Beer have been locked in a bitter dispute, and equally bitter litigation, for the last three and a half years.
It all stemmed from a comment from Mr. Haggart, a former external member of Plymouth City Council’s standards committee, that he hoped Cllr Beer had achieved an “all over tan” on her recent holiday.
As you would expect, the Herald in Plymouth reported what was happening, and its political correspondent relied in part on leaked paperwork he had received from a source when he wrote his articles.
After much wrangling, Cllr. Beer sued Mr. Haggart for harassment. Mr. Haggart retaliated by suing Cllr Beer for breaches of the Local Government Act because, he alleged, she was the source who had leaked to the Herald.
A few weeks before the trial was due to start, Mr. Haggart issued a Witness Summons against the reporter, which required him to attend Court, disclose his notebook and any other relevant documents, and identify his source(s). As you can imagine, this caused something of a stir at the Herald.
Every journalist knows that the right (and the duty) to protect confidential sources is at the heart of journalism in our democracy. Freedom of expression means nothing if journalists can be compelled to disclose their confidential sources and/or confidential documents.
It’s a duty imposed by the Editor’s Code of Conduct, and it’s a right recognised by the Contempt of Court Act, the European Convention for Human Rights, and a string of European Court decisions.
To their credit, neither the Herald’s then editor nor its publisher wavered in their support for their reporter, whose stance was straightforward – I will not disclose confidential documents, sources, or information.
A week before the start of the trial, the Judge who had been in charge of the case and who was due to preside over the trial, heard our application for the Witness Summons should be struck out – and made an order to that effect.
He decided that the reporter’s evidence could have no relevance to the issues raised by Mr. Haggart and Cllr Beer, and he would not allow the reporter to be dragged to Court and questioned.
The issue of relevance had been our primary argument, so the Judge did not consider any of the other more complex submissions which were based on the Contempt of Court Act and the decisions of the courts in the UK and Europe.
So far, so good.
But that was not the end of the matter. It turned out that the Judge had been double-booked, so the trial of Beer v. Haggart was presided over by a Recorder drafted in at the last moment.
You can imagine my surprise when the Recorder stated on the first day of the trial that he might decide that the Herald’s reporter had information in his possession which might be relevant to the case after all, and therefore, he might make an order to require the reporter to give evidence.
And that’s why I found myself in Court (as reported elsewhere on Hold the Front Page).
The plan had been to apply for an adjournment, so we could present further detailed argument. Fortunately, that became unnecessary because the Recorder had decided, like the Judge before him, that the reporter simply had nothing relevant to contribute to the trial and so no order would be made against him.
There was no need to consider the more fundamental and important issues involving journalistic sources.
So – what lessons are there to be learned from this tale? Well, they include the following, at the very least:
- the protection of sources remains at the heart of responsible journalism;
- journalists cannot be complacent, because attacks on the principle of protecting sources can arise in the most unlikely of cases;
- this case was part of a trend in which demands for disclosure of confidential sources and information are becoming more frequent;
- even in these difficult times for the industry, publishers remain willing to support and protect their journalists, both in practical terms and by bringing in legal support;
- Judges recognise that the issue of the protection of sources is fundamentally important to a free and independent press, though whether or not to order journalists to reveal their sources will still be decided on a case by case basis.
This was a case which had its unexpected moments, though the correct decision for journalism was made in the end. But there could have been quite a different outcome if different judges had made different decisions.
As ever, being a responsible journalist sometimes really does involve making some really difficult decisions, based on fundamental principles. The risk of being in contempt of Court is anything but theoretical.
Footnote: In arguing that Mr. Haggart should pay the reporter’s legal costs, I thought it important that the Recorder should know that a few months ago, the reporter received a letter from Mr. Haggart in which he stated that in years gone by, he (the reporter) would have been cut up and placed in crab pots some 20 miles South of the Eddystone lighthouse.
Was this a threat which had been made purely to intimidate the reporter? Or was it just hyperbole?
The reporter and I thought it was pretty serious attempt at intimidation, though whether the Judge will be influenced remains to be seen – he has yet to deliver his judgement on our costs application.