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Duffy & Anor v Sunday Newspapers Ltd & Ors [2017] NIQB 71 (19 July 2017)

[2017] NIQB 71	Ref:	STE10273

Judgment: approved by the Court for handing down	Delivered:	19/07/2017
(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

________

QUEEN'S BENCH DIVISION

________

BETWEEN

COLIN FRANCIS DUFFY, ALEX McCRORY

AND HENRY JOSEPH FITZSIMONS

Plaintiffs:

and

SUNDAY NEWSPAPERS LIMITED, JAMES McDOWELL, PAULA MACKIN,

THE CHIEF CONSTABLE OF THE POLICE SERVICE FOR

NORTHERN IRELAND, A PERSON OR PERSONS UNKNOWN

THE ATTORNEY GENERAL FOR NORTHERN IRELAND,

THE ADVOCATE GENERAL FOR NORTHERN IRELAND,

and THE ATTORNEY GENERAL FOR ENGLAND AND WALES

Defendants:

________

STEPHENS J

Introduction

The plaintiffs, Colin Francis Duffy, Alex McCrory and Henry Joseph Fitzsimons have each commenced separate proceedings against a number of defendants. The first three defendants ("the newspaper defendants") are Sunday Newspapers Limited, the publisher of the "The Sunday World," James McDowell, the editor of the Sunday World and Paula Mackin, a journalist for that newspaper. The fourth defendant is the Chief Constable of the Police Service for Northern Ireland ("the Chief Constable"). The fifth defendant was described in each of the writs as "An officer or officers of the Police Service for Northern Ireland unknown". The plaintiffs sought to amend the name of the fifth defendant to "A person or persons unknown" and that amendment was granted on 24 October 2016. The fifth defendant is alleged to be the source or sources of articles published in the Sunday World on 8 February 2015 and on 8 November 2015 ("the articles"). The Chief Constable is sued on the basis of his vicarious liability for the actions of the fifth defendant, it still being asserted that the fifth defendant is a police officer. The writs also named the sixth, seventh and eighth defendants, the Attorney General for Northern Ireland, the Advocate General for Northern and the Attorney General for England and Wales, though none of whom have been served so that at present they are not parties to any of these actions.

The plaintiffs allege that whilst criminal proceedings against them were active a source or sources disclosed to the newspaper defendants a transcript of covert audio recordings leading to the publication of the articles about them based on those recordings asserting their criminal guilt.

The newspaper defendants have given undertakings not to re-publish the content of the articles. By these applications the plaintiffs seek:

(a) an interlocutory injunction to prohibit the fifth defendant from any further disclosure of the contents of covert audio recordings of conversations which are alleged to have been between the plaintiffs and which the prosecution in the criminal proceedings assert establish that the plaintiffs participated in a conspiracy to murder and are members of a proscribed terrorist organisation; and

(b) an order for interrogatories to compel the editor of and a journalist for, the "Sunday World" to reveal the name or at least the status of the source or sources who disclosed to them the contents of the covert audio recordings; and/or

(c) a similar order to reveal the name or at least the status of the source or sources under the principles contained in Norwich Pharmacal Co v Customs and Excise [1973] 2 All ER 943.

The fifth defendant is a person or persons unknown and has not been served with proceedings or the application for an injunction so that application against him or her is an ex parte application.

The editor and journalist oppose the application to compel them to disclose their source or sources relying on Section 10 of the Contempt of Court Act 1981 and Article 10 ECHR.

Mr Fitzgerald QC and Mr Girvan appeared for the plaintiff, Colin Francis Duffy. Mr Fitzgerald QC and Mr Fletcher appeared for the plaintiff Alex McGrory. Mr Girvan appeared for the plaintiff Henry Joseph Fitzsimmons. Mr Lockhart QC and Mr Coghlin appeared for the first three defendants, Sunday Newspapers Ltd, James McDowell and Paula Mackin. Mr Coll QC and Mr McGuinness appeared for the Chief Constable. The fifth defendant has not been served with these proceedings and there has been no application by the plaintiff for substituted service on the fifth defendant by way of service on the first defendant. There has been no appearance by the fifth defendant either in the action or to these applications. The sixth, seventh and eighth defendants, the Attorney General for Northern Ireland, the Advocate General for Northern Ireland and the Attorney General for England and Wales have not been served with proceedings and therefore are not presently parties to these actions. Mr Coll and Mr McGuinness informed the court that they held a watching brief for the Advocate General for Northern Ireland and the Attorney General for England and Wales though they were not making any submissions on their behalf.

Potential stay of these civil proceedings and a reporting restriction order

These civil proceedings are connected to ongoing criminal proceedings so I directed that enquiries be made of the Public Prosecution Service as to whether in their view the civil proceedings should be stayed pending the outcome of the criminal trial. Those enquiries were made both in the summer of 2016 and also in October 2016. The Public Prosecution Service decided not to bring any application to stay these civil proceedings. The absence of a requirement to stay the proceedings does not necessarily mean that these civil proceedings should be heard and determined prior to the criminal proceedings. I will hear the parties in relation to the question as to whether the court has a general jurisdiction to adjourn any trial of these proceedings until after the conclusion of the criminal proceedings taking into account factors such as whether the issues in the criminal proceedings and the determination of those issues will assist the determination of these proceedings in the context of what the plaintiffs have achieved to date in these proceedings which has been to secure them from repetition of any unlawful conduct.

On 8 April 2016 I imposed a reporting restriction order under section 4(2) of the Contempt of Court Act 1981. Section 4(1) of the 1981 Act limits the circumstances in which the publisher of a report of legal proceedings will be held liable. Its effect is that, even though a publication may create a substantial risk that the course of justice will be seriously impeded or prejudiced, a person who comes within section 4(1) will not be held liable. Section 4(1) provides:

"Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith."

Section 4(2) then gives a means of protection against prejudice to the administration of justice by providing for postponement of reporting. Section 4(2) provides:

"In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

I was concerned that this court did not have a proper opportunity to give consideration to the question as to whether a fair and accurate report of the present proceedings might create a substantial risk of prejudice to the administration of justice in the criminal proceedings. In such circumstances I imposed a reporting restriction order. I have indicated to the parties that I will hear further submissions in relation to that reporting restriction order after I deliver this judgment.

Potential consolidation of the three actions

During the hearing of these interlocutory applications the court enquired as to why the plaintiffs had commenced 3 separate sets of proceedings with 3 separate sets of documents with the costs of the 3 proceedings either being paid by the Legal Aid fund or if the plaintiffs were successful with the potential for 3 sets of costs against a defendant. That concern was expressed in the context that in these interlocutory applications the parties only referred to the pleadings and the papers in relation to the action in which Mr Duffy was the plaintiff. The other two sets of proceedings being for all practical purposes identical. Mr Fitzgerald accepted that consolidation of the proceedings in some form should occur and that his instructing solicitors were to liaise with the Legal Services Commission. There has been no application by the defendants to consolidate the 3 actions. Pending some form of consolidation I give this judgment in all 3 actions.

Factual background

On 5 December 2013 a police landrover and two other PSNI vehicles came under gun attack as they travelled on the Crumlin Road, Belfast, towards Twaddell Avenue. Two AK47 rifles and 14 spent rounds of ammunition were later recovered along with a hijacked and burnt out taxi.

It is alleged that on 6 December 2013 three men met in Lurgan and that covert listening devices recorded their conversation. On the basis that these men were the plaintiffs they were all arrested on 15 December 2013 and interviewed under caution. The plaintiffs remained silent during the interviews and did not speak. The plaintiffs did not deny during interview that their voices were present on the recording. The plaintiffs have not offered any alibi evidence to suggest that they were elsewhere when the recordings were made. The defence statements in the criminal proceedings have not raised any alibi defence. On 17 December 2013 they were each charged with serious criminal offences linked to the gun attack on 5 December 2013 including attempted murder, possession of firearms and ammunition with intent, preparation of terrorist acts, directing a terrorist organisation and belonging to or professing to belong to a proscribed organisation. The evidence relied on by the prosecution to support these criminal charges are the covert audio recordings of the conversations on 6 December 2013 taken in conjunction with expert speech recognition evidence which the prosecution asserts identifies each of the plaintiffs as having participated in the conversations. The audio recordings are crucial to the prosecution's case.

In relation to each of the plaintiffs criminal proceedings have been active within the meaning of section 2 and Schedule 1 of the Contempt of Court Act 1981 since their arrest on 15 December 2013 and each of them have been subject to a criminal charge so as to engage Article 6 ECHR by at the latest 17 December 2013.

The plaintiffs were remanded in custody and made applications for bail. One such bail application which was heard in open court was reported by the BBC on its website on 18 July 2014 under the heading "Dissident republican suspects: Bail refused in Belfast case." The report stated that the High Court had heard that three alleged dissident republicans were recorded talking about security force targets with a chance of "getting a kill". It was reported that prosecutors claimed that the men also discussed weaponry and explosives and losing two assault rifles in an attack on police in north Belfast. The report names the plaintiffs and states that a barrister informed the court that the men were arrested on the basis of a secretly-recorded meeting in Lurgan the day after the Twaddell Avenue attack and that this "was clearly a leadership or command discussion regarding the IRA, focusing on the attack against police and the loss of two assault rifles." That bail application is but one example of the numerous court hearings in which details of the case have been brought to the attention of the court in a public forum.

On 12 December 2014 committal papers were served on all three plaintiffs. These committal papers included a transcript of a covertly recorded conversation. On 26 January 2015 copies of the covert audio recording on disc were served upon the respective legal representatives of the plaintiffs. So by the date of publication of the two articles the covert audio recordings and documents relating to the recordings and the interviews of the plaintiffs would not only have been in the possession of the Chief Constable but were also in the possession of employees of the Public Prosecution Service, employees of the Court Service, the plaintiffs and their solicitors and anyone to whom the plaintiffs may have made the materials and information available.

On 8 February 2015 an article was published in the Sunday World under the heading "Sold out by own words. The dissidents' desperate dash to cover their tracks." A second article was published on 8 November 2015 under the heading "Down to the wire talks shootings and bombings were recorded spooks bugged baby's buggy to nab OnH suspect." Both articles named the plaintiffs. The first article purported to quote from the covert audio recordings. The second article asserted that highly sensitive security documents seen by the Sunday World proved "a trio of alleged terrorists were bugged" and that the Sunday World had obtained a 15 page disclosure document produced during interviews (of the plaintiffs) by the police.

The committal proceedings commenced in Belfast Magistrates Court in January 2016 and on 21 March 2016 all three plaintiffs were returned for trial in the Crown Court.

Inspector Lowans states that during the committal proceedings and on 4 and 5 February 2016 the prosecution's speech recognition expert witness gave evidence as did a Detective Constable. He also states that the primary matters focused upon during the committal proceedings were in relation to the deployment of devices and security service personnel who interacted with Colin Duffy in Spain together with the methodology of the prosecutions speech recognition expert witness. The committal proceedings were in open court. The only reporting restrictions were in relation to reporting of bail conditions and in relation to an application made to Mr Justice Treacy on 22 June 2016. To the best of Inspector Lowans knowledge there has been no other reporting restriction placed upon the Crown Court proceedings. Inspector Lowans also referred to press articles including for instance an article in the Belfast Telegraph dated 21 March 2016 which states that "the prosecution alleges that security services recorded the three men in conversation at a meeting a day after the gun attack."

Inspector Lowans states that during the course of the committal proceedings, (which proceedings occurred after the two articles were published) a journalist may have been provided with a copy of the provisional deposition of the prosecution's expert witness in relation to speech recognition. Inspector Lowans also states that this matter was referred to the Attorney General for Northern Ireland by the Public Prosecution Service but that he does not believe the provision of the provisional deposition to the journalist was made by an officer of the PSNI. He further states that the police, the Court Service, PPS legal representatives and the plaintiffs' legal representatives would have all had access to the provisional deposition. Furthermore, Inspector Lowans refers to differences between the provisional deposition of the expert witness and the contents of one of the articles published by the newspaper defendants stating not only that the particular expert witness did not refer to this information in his provisional deposition but also that there are no voice expert reports in this case containing that information. From this it can be seen that the Chief Constable will be relying on an inference that the information did not come from the PSNI though it may be possible that it did but was distorted in its repetition or that there was journalistic inaccuracy.

The deposition of the prosecutions expert witness (3/174-344/26 of 171) refers to two different copies of a transcript of a covert audio recording. They are the same transcripts but one has the additional words "solicitor's copy" above the words "interview copy" but otherwise they appear identical.

"No Bill" applications were made by all three plaintiffs in relation to all the counts on the indictment under section 2(c) of the Grand Jury Abolition Act (Northern Ireland) 1969. Those applications were refused on 23 January 2017 (COL10138).

It is envisaged that the contents of the covert audio recordings of conversations which are alleged to have been between the plaintiffs will be in the public domain during the course of the criminal trial together with the allegation in the criminal proceedings that those recordings establish that the plaintiffs committed a number of criminal offences including participating in a conspiracy to murder and membership of a proscribed terrorist organisation.

The plaintiffs causes of action and the defence of the newspaper defendants and the defence of the Chief Constable

In these civil proceedings the plaintiffs allege that the covert audio recordings which are referred to and quoted in the articles are sensitive personal data within the Data Protection Act 1998 and that all five of the defendants, who are parties to this action, were data controllers. That the first three defendants and the fifth defendant processed the data by disclosing it or making it available and the fourth defendant (if the fifth defendant was his servant or agent) also processed the data. That in order to process the data each of the defendants had a duty to comply with the data protection principles including the first data protection principle which is that personal data shall be processed fairly and lawfully. As the Data Protection Act 1998 is within the scope of EU Law the question as to whether personal data is processed fairly and lawfully has to be assessed by reference to the EU Charter of Fundamental Rights and Freedoms. Furthermore, as the covert recordings must have been authorised under RIPA any processing which does not comply with the provisions of that legislation could not be lawful processing. The plaintiffs also referred to and rely on a number of other data protection principles. The second principle in Schedule 1 Part I paragraph 2 states that:

"Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

The plaintiffs assert that covert recordings could only have been obtained for the specified purpose of a criminal investigation and that to disclose the recordings to the newspaper defendants and for them to disclose the recordings to the public was to process it in a manner incompatible with that purpose.

Schedule 1 Part I paragraph 4 states that:

"Personal data shall be accurate and, where necessary, kept up to date."

Schedule 1 Part I paragraph 7 states that:

"Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."

The plaintiffs assert that the Chief Constable was in breach of this obligation to take measures against unauthorised or unlawful processing of personal data.

In relation to the first data protection principle that personal data is to be processed fairly and lawfully it is provided that data be treated as obtained fairly if they consist of information obtained from a person who:

"(a) is authorised by or under any enactment to supply it, …"

The plaintiffs assert that the individual from whom the first three defendants obtained the personal data could not be a person authorised by or under any enactment to supply it.

The plaintiffs also assert that on the facts of this case in order to disclose sensitive personal data the data subject has to consent (Schedule 3 paragraph 1) and that there was no such consent, though it may be possible for the newspaper defendants to rely on the defence in section 32 of the 1998 Act.

The plaintiffs also rely on a number of other causes of action. For instance they assert that prior to any criminal trial they have a reasonable expectation of privacy in relation to the covert audio recordings and that the newspaper defendants are liable in the tort of misuse of private information. On the same basis that there is liability on the fifth defendant and on the Chief Constable on the basis of his vicarious liability if the fifth defendant is his servant or agent. They also assert that the Chief Constable is a public authority and is vicariously liable for the breach by the fifth defendant of Article 6 ECHR. Furthermore, that the plaintiffs are entitled to an injunction to prevent the defendants and each of them processing their personal data unlawfully or from committing a contempt of court either under the strict liability rule in the Contempt of Court Act 1981 or under common law contempt of court. The plaintiffs claim both compensatory, aggravated and exemplary damages.

The newspaper defendants in their defence admit that they know the identity of the source or sources of the information contained in the articles, they assert amongst other matters that they are exempt from the data protection principles, except the seventh principle, on the basis that the data was processed only for the purposes of journalism, they deny that there was any expectation of privacy in relation to any of the information published in the articles, they assert that publication of the information in the articles was in the public interest and they deny all liability to the plaintiffs.

The Chief Constable in his defence asserts, amongst other matters, that the plaintiffs have failed to plead with specificity the "documents, materials and discovery" arising from the prosecution to which a duty of confidentiality is owed, that there are a number of persons and classes of persons other than police officers who would have had access to the materials in respect of the criminal charges, that he did not unlawfully provide and/or leak the categories of documents set out in the statement of claim, that he requires the plaintiffs to prove that the disclosure to the newspaper defendants was by a police officer, that personal data processed for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders is exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3 of the 1998 Act) and that he denies all liability to the plaintiffs.

The stance of the newspaper defendants protecting the source or sources from disclosure in effect precludes them, if found liable, from seeking a contribution from the Chief Constable on the basis that the source was a police officer. The Chief Constable is not so precluded and in such circumstances could seek a contribution from the newspaper defendants.

Legal principles in relation to an interlocutory injunction

The guidelines in American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 for the grant of an interlocutory injunction were considered in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44 in the context of Article 10 ECHR and section 12 of the Human Rights Act 1998. In American Cyanamid Lord Diplock said, at pages 407- 408, that the court must be satisfied the claim 'is not frivolous or vexatious; in other words, that there is a serious question to be tried.' In Cream Holdings Lord Nicholls at paragraph [22] said that:

"Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy s12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of s12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Art 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal." (emphasis added).

In Callaghan v Independent News and Media Limited [2008] NIQB 15 I applied that degree of flexibility stating that "the more serious the consequences the less cogent the evidence needs to be to satisfy that test." There can be a similar degree of flexibility depending on the seriousness of the consequences in other areas of the law see for instance Jordan's Applications [2014] NIQB 11 at paragraph [118].

An interlocutory injunction looks to the future between the date of the application and the date of trial. Its purpose is to restrain threatened breaches of the plaintiff's rights pending trial. Normally, in the context of an interlocutory application which engages Article 10 ECHR when a plaintiff has established that he will probably ('more likely than not') succeed at the trial in establishing that the defendant has infringed his rights or if appropriate the plaintiff has established a lesser degree of likelihood of infringement and provided that damages are not an adequate remedy and any balance of convenience, the court will assume that the infringement is not a one-off activity and will grant an interlocutory injunction to stop repetition. However this course is not inevitable so that if on the balance of probabilities no future threat exists an interlocutory injunction will be refused particularly where there are limited potential adverse consequences of any future infringement. Lord Dunedin in A-G for the Dominion of Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999 stated at 1005: '… no one can obtain a quia timet order by merely saying "Timeo"; he must aver and prove that what is going on is calculated to infringe his rights.' Similar guidelines were applied in relation to permanent injunctions in Proctor v Bayley (1889) 42 Ch D 390, (1889) 6 RPC 538, Coflexip SA and another v Stolt Comex Seaway MS Ltd and others [2000] EWCA Civ 242, Raleigh Cycle Co Ltd v H Miller & Co Ltd (1949) 66 RPC 23 at 43 and by Tugendhat J in relation to an interlocutory injunction in Citation plc v Ellis Whittam Ltd [2012] EWHC 549 (QB).

The application for an interlocutory injunction against the source

(a) Whether the plaintiffs will more likely than not succeed at trial against the source or whether the plaintiffs have established a lesser degree of likelihood

Whether the plaintiffs will more than likely than not succeed at trial against the source depends on the status of the source.

If the source was a police officer or a public official then the plaintiffs will probably (more likely than not) succeed at trial in establishing that the source acted unlawfully on a number of alternative or cumulative grounds including breach of confidence, misuse of private information and breach of the Data Protection Act 1998.

Even if the source was not a police officer or a public official then if the document was not kept securely in an office environment and the source was someone who (whether legitimately or not) had access to that office then again the plaintiffs will probably (more likely than not) succeed at trial against the source on a basis of breach of confidence.

The pool of potential sources is wide given for instance that the 15 page disclosure document was in the possession of police officers but was made available to the plaintiffs' solicitors with the potential for onward transmission to any of the plaintiffs and by them to others. Also given that any person engaged by the plaintiffs' solicitors to defend the criminal proceedings may have been provided with a copy of the document and also given a similar level of potential dissemination by the PSNI placing the document into a number of different office environments.

At this interlocutory stage it is not possible to analyse all the potential ways in which the information may have been provided to the newspaper defendants though it is difficult to envisage a source except for instance the plaintiffs or someone acting on their behalf who would not be acting unlawfully.

Despite the exact size of the pool of potential sources not being known, despite the fact that at this stage one cannot envisage all the methods by which the information became available to the newspaper defendants and despite the fact that whether disclosure by the source to the newspaper was unlawful may depend on the status of the source I am prepared to hold purely for the purposes of this interlocutory application that the plaintiffs have established that they will probably (more likely than not) succeed at trial in establishing that the source acted unlawfully.

(b) Whether a future threat of further infringement exists

There are a number of factors relevant to the question as to whether a future threat exists.

I am prepared to hold purely for the purposes of this interlocutory application that the source acted unlawfully on two separate occasions, that is prior to 8 February 2015 the date of the first article and prior to 8 November 2015 the date of the second article. On that basis this was not just one unlawful act but two separated by some 9 months. A single unlawful act gives rise to the assumption that it will be repeated and that assumption is strengthened by the fact that for the purposes of this interlocutory application there were two unlawful acts by the source. This factor supports the proposition that the plaintiffs have established that a future threat exists.

Against that the lack of any further reports over a substantial period of time supports the proposition that no future threat exists. On 24 November 2015 and 27 November 2015 the newspaper defendants gave undertakings not to re-publish. There has been no re-publication either by the newspaper defendants or by anyone else over the period of some 1 year and 8 months since 8 November 2015. Mr Fitzgerald suggested that the source could "hawk" the story around other media outlets which could lead to further publications but he recognised that there was no evidence that the source had approached any other media outlet either before or after the articles were published.

Another factor which supports the proposition that no future threat exists is that the source or sources are not anonymous given that in their defence the newspaper defendants admit that they know "the identity of the source or sources of the information contained in the articles …". The newspaper defendants have stated that they will immediately inform the source or sources that they should anticipate that any further disclosure by them of the covert audio recordings, of the contents of any of the prosecution expert evidence in relation to speech recognition, of anything which is likely to prejudice a terrorist investigation, or of anything which is a contempt of court, will result in their prosecution and conviction for serious criminal offences with consequences, if the source is a public official or an employee acting in breach of confidence, for their employment. The criminal offences which may have been committed by the source include for instance an offence under section 55 of the Data Protection Act 1998. That section makes it an offence for a person to knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data or the information contained in personal data. The source may also have committed a number of other offences including the common law offence of misconduct in public office which is committed, inter alia, when a public officer acting as such wilfully misconducts himself to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification. If the source is a public officer the unauthorised leaking of sensitive information could mean that he has committed that offence.

I consider that knowledge by the source or sources of the heavy sanction of prosecution is another highly relevant factor to be taken into consideration when determining whether the plaintiff has established that a future threat exists of further unlawful acts by the source or sources.

Taking all of those factors into account I conclude that the plaintiffs have no arguable case that there is now, or will at trial be found to be, a real risk that the fifth defendant will repeat the alleged unlawful acts. On that basis I refuse to grant an interlocutory injunction against the fifth defendant.

(c) The gravity of the consequences if the risk materialises

The question as to whether the plaintiffs have established a risk of further infringement which should be prevented by the grant of an interlocutory injunction also requires consideration of the gravity of the consequences if the risk materialises.

The first potential consequence would be to the criminal proceedings. Those proceedings are to be heard by a judge alone and it was not suggested that there would be any risk to the impartiality of the criminal trial by the contents of either of the articles. No question arises as to the impartiality of the judge being affected by any further publication.

Mr Fitzgerald accepted that the issues in the criminal trial related to the identification of the plaintiffs and if so as to what was said by each of them. Mr Fitzgerald, whilst emphasising that he was not instructed in the criminal proceedings, initially suggested that in theory there could be inappropriate pressure on a defence expert witness or theoretically on an alibi witness. However, there was no evidence supporting either of these theories and given that the application for an interlocutory injunction was on an ex parte basis Mr Fitzgerald stated that he could not advance either of those grounds as adversely impacting on a criminal trial.

The remaining potential adverse consequence was on the plaintiff's rights under Article 6 ECHR that they "shall be presumed innocent until proved guilty according to law." The presumption of innocence may be infringed not only by a judge or court but also by other public authorities, see the decision of the ECtHR in Allenet de Ribemont v France (Application No 15175/89) at paragraph 36. Article 6(2) governs criminal proceedings in their entirety irrespective of the outcome of those proceedings and guarantees that no one will be described or treated as guilty of an offence before his guilt has been established by a court, see the decision of the European Court of Justice in Yves Franchet v Byk (8 July 2008) at paragraph 209. So if the source was a public official then the plaintiff's fundamental right contained in Article 6(2) ECHR and article 48(1) of the Charter will have been breached and they will be entitled to a declaration and potentially they will be entitled to damages. In Ribemont the ECtHR awarded the applicant damages of 2M French Francs for breaches of the reasonable time requirement in Article 6(1) and for breach of his presumption of innocence in Article 6(2): see paragraphs [59]-[62]. An award of damages for breach of article 6 was considered by the House of Lords in R (on the application of Greenfield) v The Secretary of State for the Home Department [2005] 2 All ER 240 which considered amongst others the head of general or non-pecuniary damage of "physical and mental suffering." There is a distinction between anxiety involved in the criminal proceedings and anxiety as a result of the breach of the right to the presumption of innocence. In some situations it is reasonable to assume that the applicant must have suffered anxiety as a result of a breach of Article 6(2). To gain an award of damages under this head it is not necessary for the plaintiffs to show that but for the violation the outcome of the criminal proceedings would or would probably or even might have been different. The ECtHR has been very sparing in making awards and when it does the sums awarded have been noteworthy for their modesty: see paragraphs [16], [17] of Greenfield.

If there is a future breach of the plaintiff's presumption of innocence by or at the instigation of a public authority then if appropriate the plaintiffs can be compensated by an award of damages irrespective of the outcome of the criminal proceedings. For the purposes of this application for an interlocutory injunction I consider that a declaration or a declaration and an award of damages would be an adequate remedy.

In arriving at the decision not to grant an interlocutory injunction against the fifth defendant I have also taken into account my conclusion as to the gravity of the consequences if the risks materialises.

(d) Exercise of discretion as to the grant of an interlocutory injunction

In case I am incorrect in relation to those grounds for refusing to grant an interlocutory injunction I will also address the question as to whether an interlocutory injunction should be refused in the exercise of discretion.

The exercise of discretion to grant an interlocutory injunction where the identity of the fifth defendant is unknown has to take into account how the order of the court will be served or brought to the notice of the source and how it could be enforced.

The newspaper defendants have not agreed to serve any injunction on the fifth defendant.

There has been no application for substituted service on the fifth defendant of the proceedings, or of these applications, or of any order granting an interlocutory injunction by way of service on the newspaper defendants. Even if an application for substituted service on the source by service on the newspaper defendants was made, which it has not been, it would be a difficult application given the chilling effect on sources amounting to an interference with the Article 10 right to freedom of expression of the newspaper defendants, see X v Persons Unknown [2006] EWHC 2783 at paragraphs [74]-[77].

As the plaintiffs have not applied for or obtained an order for substituted service of any interlocutory injunction then a potential method of bringing the order to the source's attention would be to bring publicity to these proceedings. However, it would not be possible to know whether this method was effective and furthermore these proceedings are presently subject to a reporting restriction order under Section 4(2) of the Contempt of Court Act 1981.

Even if the order was not served on or brought to the attention of the fifth defendant the plaintiffs can still rely on the Spycatcher doctrine under which third parties should not knowingly frustrate orders of the court whether made inter parties or contra mundum. That would involve serving the injunction on other media outlets with a confidential schedule identifying the "hotspots" so as to avoid any coverage if the source tried to sell or provide information to those outlets. That would provide a potential remedy for contempt of court for the plaintiffs against those media outlets if they published any information about those "hotspots" but would only provide a remedy for contempt of court against the source if it was proved to the criminal standard that he was the same person or persons as the source or sources of the articles published by the newspaper defendants.

I consider that all these difficulties would lead in the exercise of discretion to the court declining to grant an interlocutory injunction against the fifth defendant.

The application for disclosure of the name or status of the source

The plaintiffs seek to obtain the identity of the name or in the alternative the status of the source either by way of interrogatories or under the jurisdiction established by the decision of the House of Lords in Norwich Pharmacal Co v Customs & Excise Commissioners [1973] 2 All ER 943.

In relation to the plaintiff's application for interrogatories it is noted that none of the parties have given discovery and it is sometimes reasonable to postpone the application where it is not yet plain what information will be obtained from discovery: see the Supreme Court Practice 1999 at paragraph 26/4/3. In relation to discovery from the newspaper defendants it is probable that some of the documents, if provided on discovery, would establish the identity or status of the source but if that was so then it is clear that the newspaper defendants will refuse to provide discovery relying on section 10 of the Contempt of Court Act 1981 and Article 10 ECHR. In such circumstances I do not consider it appropriate to postpone the plaintiff's application for interrogatories until after discovery by the newspaper defendants. However the Chief Constable has also not provided discovery and that discovery could well assist the court in relation to issues such as the size of the pool of potential sources within the PSNI and as to whether if the court orders disclosure by the newspaper defendants of the status of the source that would lead to a reasonable chance that the identity of the source would be revealed.

The jurisdiction to grant leave to serve interrogatories is contained in Order 26 rule 1(2) of the Rules of the Court of Judicature (Northern Ireland) 1980. The plaintiffs seek leave to serve interrogatories which would require the newspaper defendants to identify the source by name. However, Mr Fitzgerald stated that if the court did not wish to make such an order that instead the newspaper defendants could be ordered to answer an interrogatory as to whether the source is a PSNI officer or servant of the state.

The jurisdiction to require a person to assist by the delivery up of otherwise confidential information under Norwich Pharmacal arises where (a) without discovery of the information in the possession of the person against whom discovery was sought no action could be begun against the wrongdoer, and (b) the person against whom discovery was sought had himself, albeit through no fault of his own, been involved in the wrongful acts of another so as to facilitate the wrongdoing. Both jurisdictions to compel disclosure of the name or status of the source are subject to section 10 of the Contempt of Court Act 1981 which provides that:

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

It is recognised that the applications whether under Order 26, rule 1(2) or under Norwich Pharmacal turn on section 10 of the 1981 Act.

Section 10 contains a "negative right" not to be compelled to disclose "the source of information". That negative rights is to be read compatibly with Article 10 ECHR, see paragraph 30 of the judgment of Sedley LJ in Interbrew SA v Financial Times Ltd [2002] EMLR 24. The negative right includes not only the right not to be compelled to identify the source by name but also not being compelled to:

(a) provide information that would lead to a "reasonable chance" that the identity of the source would be revealed, see Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 at page 349G;

(b) provide information that creates a serious risk of compromising the identity of the journalist's sources…" see Sanoma v Uitgevers BV v The Netherlands [2011] EMLR 4 at paragraph 92;

(c) reveal the confidential material provided by the source, see Malik v Manchester Crown Court [2008] EMLR 19 at paragraph 50;

(d) reveal information which is likely to be something that the source would be uncomfortable about having disclosed, see paragraph 51 of Sir Cliff Richard v The British Broadcasting Corporation and another [2017] EWHC 1291 (Ch).

The negative right is not only not to disclose to the parties but also not to disclose to anyone. This means that the "reasonable chance" of identifying the source or the serious risk of compromising the identity of the journalist's sources is to be assessed by reference to the knowledge not only of the parties to the action but also by reference to the knowledge of others such as potential employers of the source.

It can be seen from the terms of section 10 that the plaintiffs in this case have to establish that disclosure is necessary in relation to one or more of the following gateways, namely:-

(a) in the interests of justice or

(b) in the interests of national security or

(c) for the prevention of disorder or crime.

All these gateways in section 10 fall within one or more of the catalogue of legitimate aims in Article 10 ECHR.

The plaintiffs did not seek to rely upon disclosure being necessary in the interests of national security but rather relied on the interests of justice and for the prevention of crime.

The phrase "in the interests of justice" was considered in Ashworth Hospital Authority v Mirror Group Newspapers Limited [2001] 1 WLR 515 at paragraphs [79]-[84]. Lord Phillips of Worth Matravers MR stated that 'interests of justice' in section 10 mean interests that are justiciable" and stated that the interpretation of Lord Bridge in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, at 43 accorded more happily with the scheme of Article 10. Lord Bridge stated that:

"It is, in my opinion, `in the interests of justice', in the sense in which this phrase is used in section 10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives."

The purpose of prevention of crime in section 10 is much wider than simply preventing repetition of crime, see Interbrew SA v Financial Times Limited [2002] EWCA Civ 274 at paragraph [39]. In Re An Inquiry under The Company Securities (Insider Dealing) Act 1985 [1998] 1 AC 660 it was stated that prevention of … crime was not restricted to particular crimes but was used in its broad general sense of deterrence and containment. Lord Griffiths stated:

"The phrase "prevention of… crime" carries, to my mind, very different overtones from "prevention of a crime" or even "prevention of crimes." There are frequent articles and programmes in the media on the prevention of crime. The subject on these occasions is discussed from many points of view including the social background in which crime breeds, detection, deterrence, retribution, punishment, rehabilitation and so forth. The prevention of crime in this broad sense is a matter of public and vital interest to any civilised society." (emphasis added)