Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) Chief Constable of South Yorkshire Police
Reference:  EWHC 1291 (Ch)
Court: High Court of Justice, Chancery Division
Judge: Mann J
Date of judgment: 26 May 2017
Summary: Interim Application - Request for Further Information – Journalistic Sources – Misuse of Private Information – Articles 6, 8 & 10 ECHR.
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Justin Rushbrooke QC - Leading Counsel (Claimant)
Godwin Busuttil (Claimant)
Adam Wolanski QC (Defendant)
Instructing Solicitors: Simkin LLP for C, BBC Litigation Dept for 1st D, DWF LLP for 2nd D.
On 14 August 2014 C’s home was searched by the South Yorkshire Police (‘SYP’). The raid was in connection with an investigation into historic child sex abuse. Mr Dan Johnson, a journalist working for the BBC, had been told about the raid by SYP in advance and as a result BBC was able to provide more or less concurrent coverage of SYP’s raid with journalists, photographers and a helicopter. In due course the CPS announced that C would not be charged with any offence.
C brought an action against the BBC and the SYP for misuse of private information under the Data Protection Act 1998. An interim application was issued by C under CPR Part 18 requiring the BBC to confirm or deny that Mr Johnson found out about SYP’s investigation from a source within Operation Yewtree or someone who had obtained that information from Yewtree. The BBC refused to answer the request on the basis that to do so would risk identifying its journalist’s source.
(1) Was the request relevant to any issue in this case?
(2) What was the likelihood that answering the request would lead to the identification of the source?
(3) Was s.10 of the Contempt of Court Act 1981 and/or the protection afforded by Goodwin v United Kingdom (1996) E.H.R.R. 123 engaged?
(4) What was the appropriate balancing exercise to be undertaken when information relating to a journalist’s source was involved and where should the balance be struck?
(1) The focus for trial would be on the BBC’s broadcast, but the request went to a question of real weight as it challenged the BBC’s case both factually and legally. It was relevant to the determination of whether C had a reasonable expectation of privacy and it might possibly also go to the validity of the BBC’s public interest defence.
(2) The risk that an affirmative response to the request would reveal Mr Johnson’s source was very low. The evidence suggested that the pool of individuals who could have been the source was large, while the possibility that an affirmative answer would spark a second investigation by the Metropolitan Police into who the source was was small.
(3) Since the likelihood of an affirmative answer leading to the identification of the individual source was so low, there was no need to consider what the appropriate test was for the engagement of s.10 of the Contempt of Court Act 1981 or whether the principles laid down in Goodwin v United Kingdom (1996) E.H.R.R. 123 provided additional protection when a case involved the disclosure of information related to a journalist’s source.
(4) Article 10 was engaged by the request – as C had always accepted – and answering the request would create a ‘chilling effect’ to some extent. Set against that, the answer to the question was very material to C’s case. Weighing the one against the other, the balance came down clearly in favour of C. The BBC must answer the question.
This case provides a good illustration of the principles involved when the court is being asked not to order someone to disclose the identity of a source (directly engaging s.10, Contempt of Court Act 1981) but to disclose any other information about a source. The submission that such an application involved a balancing exercise in which Article 10 had a presumptive priority was rejected. The correct approach was the conventional Re S balancing exercise where each of the rights has presumptive parity.