Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor

Where confidential information held by a public authority is received by a publisher, the court must balance the public interests protected by confidentiality against the recipient’s rights under articles 6, 8 and 10 of the Convention. Neither article 8 nor article 10 has automatic precedence. The court must focus intensely on the specific rights engaged and ask whether the proposed restriction is necessary and proportionate.

Journalism directed to informing public debate, including the use of information to defend a libel claim, attracts a high degree of protection. Equitable conscience is an objective standard, informed by the Convention rights engaged, although the court may give appropriate weight to the considered judgment of an experienced professional. Relief may be confined to the immediate proposed use and revisited as related proceedings develop.

The Metropolitan Police Service and the Serious Organised Crime Agency sued Times Newspapers Ltd and Michael Gillard for breach of confidence concerning leaked law-enforcement documents. The claim originally included conversion, data protection and source-disclosure relief, but the live issues concerned injunctions and delivery up.

The defendants admitted possessing confidential documents and sought to use them in defending a separate libel action brought by David Hunt. The central questions were whether that proposed use engaged the defendants’ rights under articles 6 and 10, how those rights should be balanced against the article 8 rights of identified or identifiable third parties and the statutory and public interests in preventing crime, and whether the claim was properly brought in collateral proceedings.

1. Outcome. The claim succeeded to the extent set out in the open and closed judgments. The order was to restrict or alter specified passages in the draft amended defence, while permitting other use of the documents. The order was capable of later reconsideration if the libel proceedings created a material change.
2. Convention balance. A restriction on the defendants’ use of the documents could interfere with their article 6 right to a fair trial and equality of arms. The fact that the claimant in the libel action might not need the documents did not create equality of arms. Nevertheless, preventing use of relevant material for reasons recognised in R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274 would not necessarily make the libel trial unfair. That issue belonged primarily to the libel proceedings.
3. Under article 10, the question was whether the interference was greater than required to meet the legitimate aims in article 10(2). The article and the proposed use of the information to defend the libel claim were forms of journalism and expression attracting a high degree of protection. The defendants’ ability to prove truth was protected even though another defence might be available.
4. The court applied the ultimate balancing approach described in Re S (A Child) [2005] 1 AC 593: neither article 8 nor article 10 prevailed automatically; the specific rights, their justifications and proportionality had to be assessed in the individual case. The article 8 interests of non-parties had to be considered, including risks to officers, informants, suspected informants and their families.
5. In equity, conscience is objective. It is not a recipient’s personal preference. In Convention cases the governing standard is supplied principally by the Convention rights engaged, while the court may give weight to the considered judgment of an experienced professional. A journalist’s sincere belief is relevant but is not conclusive.
6. The court could grant relief in collateral proceedings. The claimants had sought injunctions and delivery up which could not readily have been obtained by intervention in the libel action, and the proceedings allowed disclosure of further documents. Use for planning the defence and seeking disclosure was not prohibited in principle, subject to the rights engaged at the time.
7. Legal professional privilege ordinarily prevailed over the public interest in obtaining the truth. The court could restrain use of privileged material even where it had been read. No overriding iniquity or forgery was established here.

First-instance decision. The judgment records related interlocutory decisions in the same proceedings, including [2011] EWHC 776 (QB) and [2011] EWHC 1566 (QB).