Attorney-General v. Clough

[1963]		773
1 Q.B.

[QUEEN'S BENCH DIVISION]

ATTORNEY-GENERAL v. CLOUGH.

1963 Jan. 24, 25.

Lord Parker C.J.

Evidence - Privilege - Journalist - Source of information in tribunal of inquiry - Inquiry into security matters connected with spying offences - Newspaper report as to matters resulting from commission of offences - Refusal by journalist to disclose source of information - Whether communication between journalist and informant privileged - Tribunals of Inquiry (Evidence) Act, 1921 (11 Geo. 5, c. 7), s. 1 (2) (b).

Tribunal of Inquiry - Evidence - Contempt - Inquiry into security matters connected with spying offences - Refusal by witness to answer question - Referred to High Court, to be dealt with as if guilty of contempt of High Court - Tribunals of Inquiry (Evidence) Act, 1921, s. 1 (2) (b).

Contempt of Court - Witness, by - Refusal to answer question - Tribunal of inquiry - Inquiry into security matters - Refusal by journalist to give source of information - Offence certified to High Court -

[1963]		774
1 Q.B.	ATT.-GEN. v. CLOUGH.

Trial by single judge - Tribunals of Inquiry (Evidence) Act, 1921 s. 1 (2) (b).

Libel and Slander - Discovery - Privilege - Confidential information given to journalist.

Practice - Discovery - Privilege - Journalist - Confidential information given to.

Judicial Precedent - Australian decisions - Contempt of court - Refusal by journalist to answer question as witness.

A tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921,¹ applied, was set up to inquire into breaches of security in connection with spying offences committed by V., an Admiralty clerk. The day following V.'s conviction, C., a journalist, had written in a newspaper that V.'s spying led to Russian trawler spying fleets turning up in the area of certain sea exercises. At the inquiry C. refused to answer a question put to him by the tribunal which would have disclosed the source of that information. The chairman of the tribunal certified that in the tribunal's opinion the question was relevant to the purposes of the inquiry and necessary for C. to answer. On a motion to inquire into an offence under section 1 (2) (b) of the Act of 1921, committed by C. in refusing to answer a question to which the tribunal legally required an answer, and for leave to issue a writ of attachment:-

Held, (1) that a question as to the source of the information which led C. to write as he did of the result of V.'s spying was clearly relevant to the tribunal's inquiry.

(2) That, although certain classes of communication had been recognised as privileged, the law had not developed and crystallised the confidential relationship between the press and an informant into one of the classes of privilege known to the law; and that, although it was open to a court to say that the special circumstances

1 Tribunals of Inquiry (Evidence) Act, 1921, s. 1: "(1) Where it has been resolved ... by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the resolution as of urgent public importance, and in pursuance of the resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights, and privileges as are vested in the High Court, ... or a judge of ... such court ... (2) If any person - ... (b) being in attendance as a witness refuses ... to answer any question to which the tribunal may legally require an answer; ... the chairman of the tribunal may certify the offence of that person under his hand to the High Court, ... and the court may thereupon inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement' that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court. (3) A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session."

[1963]		775
1 Q.B.	ATT.-GEN. v. CLOUGH.

in a particular case required the court to recognise a claim to immunity by a journalist on the grounds of public policy (post, p. 792); there were no special circumstances in the present case since C.'s personal interests or those of his profession could not be preferred to the overriding public policy as evidenced by the setting up of the tribunal; accordingly, C. had committed an offence punishable as if he had been guilty of contempt of the High Court and a writ of attachment would issue.

McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73 followed.

Wheeler v. Le Marchant (1881) 17 Ch.D. 675, C.A. considered.

Dictum of Buckley L.J. in Adam v. Fisher (1914) 30 T.L.R. 288, C.A. not applied.

MOTION for writ of attachment or for an order of committal.

On October 21, 1962, John Christopher Vassall, an Admiralty clerk, was sentenced to 18 years' imprisonment for offences under the Official Secrets Act, 1911. He had pleaded guilty to four charges, three of which charged him with communicating to another person information which might have been directly or indirectly useful to an enemy and the fourth count charged him with collecting information for a purpose prejudicial to the safety or interests of the state, which might be directly or indirectly useful to an enemy.

Following a resolution by both Houses of Parliament, the Home Secretary on November 15, 1962, made his warrant appointing a tribunal of inquiry consisting of Lord Radcliffe, as chairman, Barry J. and Sir Milner Holland Q.C. The warrant setting up the tribunal provided that the Tribunals of Inquiry (Evidence) Act, 1921, should apply to the tribunal. The terms of reference of the tribunal were as follows: "Whereas it has been resolved by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance, that is to say, the circumstances in which offences under the Official Secrets Acts were committed by William John Christopher Vassall, and in particular: (1) the allegations made that the presence of another spy inside the Admiralty was known to the First Lord and his service chiefs after the Portland case² eighteen months ago; (2) any other allegations which have been or may be brought to their attention, reflecting similarly on the honour and integrity of persons, who, as Ministers, naval officers and civil servants, were concerned in the case; (3) any breaches of

2 Resulting in the conviction of five persons for spying offences: see Reg. v. Kroger and Others (The Times, May 9, 1961).

[1963]		776
1 Q.B.	ATT.-GEN. v. CLOUGH.

security arrangements which took place; and (4) any neglect of duty by persons directly or indirectly responsible for Vassall's employment and conduct, and for his being treated as suitable for employment on secret work."

In the course of the inquiry, Desmond Clough, a journalist, employed by the "Daily Sketch" as a defence correspondent, gave evidence regarding a passage in an article published in the "Daily Sketch" the day after Vassall's conviction. The chairman of the tribunal questioning Clough about the passage stated: "I gather that you are the source in your office of the statement made by the paper [the 'Daily Sketch'] that: 'Vassall's spying led to Russian trawler spying fleets turning up with uncanny accuracy in the precise area of the secret N.A.T.O. sea exercise' and you have told us that you yourself derived the information which linked Vassall with that particular Russian activity from what you described as 'someone in Whitehall.' I think I am bound to direct you that in order that we should follow up the facts alleged with regard to that we should know the name of that informant so that we can send for him and question him."

Clough: "My Lord, perhaps I may say a very brief few words on this. I feel personally that a special correspondent, even more than a general reporter, does rest on his sources of information to a very large extent on confidences from people in defence departments. This information came from a reliable, responsible source in Whitehall and I feel that if I disclose this source of information I would be breaking a trust. I feel that my future career as a defence correspondent would be jeopardised because nobody would then feel prepared to speak to me - or for that reason any other specialist defence correspondent - on an off-the-record basis for fear that their name might be disclosed at some later date. I am afraid, Sir, that I have firmly made up my mind that I am not prepared to disclose the name of this man, although he does exist, I can assure you."

Lord Radcliffe, the chairman of the tribunal issued a certificate to the High Court of Justice certifying that Desmond Clough, being in attendance as a witness before the tribunal, refused in the course of the evidence, as set out above, to answer a question which the tribunal required him to answer and which in the opinion of the tribunal was relevant to the purposes of the inquiry and necessary for the witness to answer.

The Attorney-General then moved the High Court to inquire into an offence under section 1 (2) (b) of the Tribunals of Inquiry

[1963]		777
1 Q.B.	ATT.-GEN. v. CLOUGH.

(Evidence) Act, 1921, alleged to have been committed by Desmond Clough on January 16, 1963, in that he, being in attendance as a witness before the tribunal refused to answer a question to which the tribunal legally required an answer, the particulars of which were specified in the certificate of the chairman of the tribunal, and to punish or to take steps for the punishment of Desmond Clough in like manner as if he had been guilty of contempt of the High Court and in particular for leave to issue a writ of attachment or for an order of committal against him or such other punishment as for a contempt of the High Court as to the court might seem fit.

Sir John Hobson Q.C., A.-G., W. W. Stabb and J. R. Cumming-Bruce in support of the motion. The respondent in refusing to disclose to the tribunal the source of his information, was guilty of the offence certified under section 1 (2) of the Tribunals of Inquiry (Evidence) Act, 1921. He was placed in the position of choosing between, on the one hand, his duty as a citizen to answer questions relevant to the inquiry, to assist in discovering the truth under the law, further the purposes of both Houses of Parliament, and assist in preserving the safety of the realm, and, on the other hand, what he conceived to be his duty as a journalist to preserve the confidentiality of information received and not to disclose the name of his informant. Not only common sense and reason but also the law demands that his duty as a citizen should have priority. It is a paradox to assert that a newspaper could not discover the truth unless it itself withholds it when the courts are endeavouring to discover what that truth might be.

The principal questions on this motion are (1) Did the respondent refuse to answer a question to which the tribunal could legally require an answer? and (2) would he, had he been a witness before the High Court, have a privilege entitling him to refuse to answer that question? As to (1), the question was relevant for the purposes of the inquiry. The tribunal was inquiring into the circumstances in which the offences were committed by Vassall, considering what breaches of security there might have been by persons directly or indirectly responsible for Vassall's conduct, and it was relevant for it to know what information Vassall had given and what circumstances had led to the Russian spying trawler fleet going to the place of the N.A.T.O. exercises. The information would enable the tribunal to know whether there was a breach of security and whether it ought to

[1963]		778
1 Q.B.	ATT.-GEN. v. CLOUGH.

have been known by the responsible persons. It should know what information the Admiralty had and who had it. The question, therefore, was one to which the tribunal was legally entitled to have an answer.

As to (2), journalists do not enjoy a special immunity or privilege not to disclose when required to do so by a court, or by the tribunal, the name and identity of a person who has spoken to them in confidence. Every extension of privilege not to disclose information is a shackle on the discovery of the truth and an impediment to the due administration of the law which is the foundation of the liberties of the citizens of this country. A very sound reason in law or public policy, therefore, is required before such a shackle may be placed on the discovery of the truth. No such claim to privilege on behalf of a journalist has ever been allowed in any case, nor is it mentioned or supported in any textbook on the law of evidence. If it is the confidentiality of information which is sought to be protected, the privilege should be that of the informant and not of the journalist, in the same way as the privilege between lawyer and client is that of the client and not of the lawyer.

[LORD PARKER C.J. This is different. In the normal case privilege is that of the informant who does not intend information to be passed on. Here the informant intended that it should be passed on and did not want that done under his own name.]

It is only what is being protected which is different. It would be odd if the privilege were that of the journalist and the protection afforded by the privilege needed by the informant. The informant might or might not want his identity disclosed, while the journalist with the privilege might not take the same view. It is to be expected that it is the informant and not the journalist who is privileged.

The categories of privilege are now strictly limited and are well known and decided: see the categories set out in Phipson on Evidence, 9th ed. (1952), p. 196 et seq. They are founded on the interests of the state or the due administration of the law and no new category can be established unless it arises out of common law or statute. Mere confidentiality or the necessity to make a communication in circumstances of confidentiality in order to carry on the ordinary business of life does not attract privilege as a matter of law or of public policy. Wheeler v. Le Marchant³ is

3 (1881) 17 Ch.D. 675, C.A.

[1963]		779
1 Q.B.	ATT.-GEN. v. CLOUGH.

relied on. Mere confidentiality does not as a matter of law or public policy attract the privilege of non-communication.

[LORD PARKER C.J. What is the difference? Law embraces public policy, does it not?]

Yes, but the law runs in fixed channels to protect special information. One would not now extend the privilege of non-communication on the grounds of public policy alone. Public policy is a question of law for the courts to decide. It is not one of fact, and one does not call evidence as to what public policy may or may not be.

Whether communications made under the seal of the confessional are privileged or not has been much debated and is still in doubt, but textbook writers generally hold the view that no such privilege exists. Whether such a privilege exists or not is not relevant to the present inquiry. Even conceding that it does exist, which is doubtful, it would be an odd principle which could justify on the grounds of public policy a right for newspapers not to disclose the names of their informants, when no privilege attaches to communications between ministers of religion and their parishioners outside the seal of the confessional, Members of Parliament and their constituents, doctors and patients, bankers and clients, accountants and clients and in fact all professional advisors with the exception of lawyers where the administration of the law is concerned. Similarly, communications between members of a family are not privileged with the exception of those between spouses. In all those cases there is a high interest in the maintenance of confidentiality and it would be dishonourable for one of those persons voluntarily to break a confidence. The revealing of confidences would be damaging to the interests of any person who fell within those categories and yet the law demands that the confidentiality should be overriden in favour of the administration of justice. It would therefore be odd if public policy placed a higher immunity on journalists than on any one else.

The highest it can be put on the respondent's behalf is either that there is a public interest which will give the court a discretion as to whether to protect journalists from disclosure or that there are special cases in which an immunity will be allowed. Even if the law goes that far, which the Crown submits is putting the matter too high, disclosure ought to be made because this is a case where no discretion or favour ought to be given and in any event so far as it is a matter of discretion the tribunal has exercised it. The discretion should not be exercised in favour of the

[1963]		780
1 Q.B.	ATT.-GEN. v. CLOUGH.

respondent and disclosure should be ordered for the following reasons: first, the tribunal was set up by a resolution of both Houses of Parliament; secondly, it was set up to investigate a matter of public importance; and thirdly, it was set up to deal with the safety and security of the State, the activities of a most dangerous spy, and the conduct of Ministers of the Crown, of officers of Her Majesty's services and of civil servants.

Allegations affecting all those matters had been made by journalists who now appeared to be suggesting that they were entitled to refuse to assist the tribunal in discovering the truth. McGuinness v. Attorney-General of Victoria⁴ is persuasive authority, directly in point, which has never been contradicted and which the court should follow.

The Crown is asking either for a writ of attachment or for an order for committal, but the former would be more convenient if the court was contemplating imprisonment, since the writ could lie in the office for a certain time pending notice of appeal. Punishment for contempt can be either a fine or imprisonment or, in bad cases, both: see Oswald on Contempt of Court, 3rd ed., pp. 237, 239. A general committal or one during pleasure appears to be lawful, but the present case would count as a criminal contempt and imprisonment would be for a fixed period.

R. V. Cusack Q.C. and David Hirst for the respondent. This is the exercise of an unusual jurisdiction which, so far as one knows, has never been invoked before. It is common ground that the respondent is a young man of the highest character and reputation, who has taken this stand on a question of conscience. His refusal to answer the question put by the tribunal was not made in a spirit of truculence or discourtesy and so was unlike the ordinary case of contempt of court. This case should be approached as involving serious issues but no personal discredit on the respondent.

The Tribunals of Inquiry (Evidence) Act, 1921, is a procedural Act and applied originally to tribunals which were not statutory bodies, but were set up by a resolution of both Houses of Parliament when it was considered expedient to inquire into a matter of urgent public importance, as in the present case. The provisions of the Act have now been extended to quite different bodies, such as the Agricultural Marketing Re-organisation Commission and the White Fish Authority. Although that may seem irrelevant, it emphasises that the certificate of the tribunal can

4 (1940) 63 C.L.R. 73.

[1963]		781
1 Q.B.	ATT.-GEN. v. CLOUGH.

only be regarded as a report to the High Court and the court must inquire into "the alleged offence" and decide whether or not to punish the person concerned as if he had committed a contempt of court. In exercising those powers the court is in no way bound by the contents of the certificate sent forward by any particular tribunal.

[LORD PARKER C.J. That is accepted.]

On the question of the public interest prevailing, it cannot be the situation that the matters into which the tribunal is inquiring must always take precedence. If that were so, section 1 (3) of the Act of 1921 would be a nullity; if that subsection has any meaning at all, it must mean that in some circumstances a witness might have an immunity and privilege. It is misleading to stress the importance of this tribunal - that is not in dispute - and to say that the citizen must do his duty to the tribunal and must waive every other consideration. The interest of the tribunal cannot be regarded as the paramount consideration in connection with section 1 (3). It is for the court itself to decide what the immunities and privileges of a witness are under that subsection.

The respondent claims that he is in fact and in law privileged from answering the question put to him by the tribunal on the basis that such privilege would be allowed in the High Court and therefore should be allowed by the tribunal. The basis of the claim is that the assertion that no privilege attaches to the profession of the press, as distinguished from members of the general public, is a fallacy because, both in law and in practice, in a variety of fields, Parliament and the courts have recognised that the profession occupies a special position and has special privileges. The special privileges and immunities which the press enjoy carry the recognition that the press exercises an important function in the public interest. It is on that basis that the submission is made that in this case no contempt has been committed, and that the privilege which the respondent claims is part of the special position which is accorded to the press in this country.

There are various statutory provisions which support the contention that the press are not regarded as ordinary members of the public but have a different status; for example, they are entitled to be present and report certain details in domestic proceedings and proceedings before juvenile courts when ordinary members of the public are excluded: see also the Public Bodies (Admission to Meetings) Act, 1960, the Copyright Act, 1956, and the Defamation Act, 1952. Where defamation is concerned qualified privilege has attached to newspaper statements since

[1963]		782
1 Q.B.	ATT.-GEN. v. CLOUGH.

1881, while reports of legal proceedings have been absolutely privileged since 1888. The question whether journalists should be obliged to disclose the source of their information should ba considered against that background. As a matter of practice the High Court has for many years recognised the position of journalists and newspapers in regard to disclosure of sources of information and will not force them to disclose unless there are special reasons. The force of that qualification is appreciated, but there are a number of authorities which establish the general principle. Newspapers stand in such a position that it is not desirable in the public interest that disclosure should be forced: see Adam v. Fisher⁵ and Hope v. Brash.⁶ [Reference was also made to Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders' Publishing Association Ltd.⁷] The general principle running through the cases shows that in interlocutory proceedings for discovery a newspaper will not be forced to reveal the names of its informants or the sources of its information: Lyle-Samuel v. Odhams Ltd.⁸ and Maas v. Gas Light & Coke Co.⁹ Tucker L.J. in Lawson & Harrison v. Odhams Press Ltd.¹⁰suggests that the rule of practice regarding the non-disclosure of a source of information in discovery proceedings has become a matter of law. Stress is laid on the public interest which enters into the matter. In Georgius v. Oxford University Press, Vice-Chancellor and Delegates¹¹ Denning L.J. appears to be treating the matter as one of law.

Professional privilege between solicitor and client runs throughout proceedings (see Greenough v. Gaskell¹²; similarly, the privilege which attaches to spouses, the privilege against answering incriminating questions, and Crown privilege all show that a privilege which attaches at an interlocutory stage attaches throughout and at the trial itself. It would be useless to permit a privilege at one stage if it is to be destroyed at a later stage, and there is no instance in which this has been done. The fact that the only authorities relating to the privilege of newspapers relate to discovery does not decide the matter either way. If a

5 (1914) 30 T.L.R. 288, C.A.

6 [1897] 2 Q.B. 188; 13 T.L.R. 478, C.A.

7 [1906] 1 K.B. 403; 22 T.L.R. 266, C.A.

8 [1920] 1 K.B. 135; 35 T.L.R. 711, C.A.

9 [1911] 2 K.B. 543; 27 T.L.R. 473, C.A.

10 [1949] 1 K.B. 129, 134; 64 T.L.R. 532; [1948] 2 All E.R. 717, C.A.

11 [1949] 1 K.B. 729, 732; 65 T.L.R. 101; [1949] 1 All E.R. 342, C.A.

12 (1833) 1 My. & K. 98.

[1963]		783
1 Q.B.	ATT.-GEN. v. CLOUGH.

claim of privilege was raised by the newspaper at the trial itself it must have been allowed for otherwise there would surely have been reported cases on it. The privilege against disclosing sources of information is different from any question of relevance and is based on the foundation of public interest.

It is conceded that McGuinness v. Attorney-General of Victoria¹³ is against the respondent, but it is submitted that it is wrong and ought not to be followed in this country. The privilege that attaches to newspapers on discovery is there treated as a rule of practice whereas in this country it has now become a rule of law. Although English authorities say that even in discovery cases a newspaper reporter can be ordered to disclose his source of information if there are special circumstances, there is no reported case in which it has been held that there were special reasons justifying disclosure. In the present case there are special reasons why the respondent should not be asked to disclose his sources of information. Reporters like the respondent are in an unusual position in that they are often informed of matters which they are not allowed to print. The press is recognised as the repository of secret and confidential information. The recognition of the peculiar position of journalists and the press is reinforced by matters of common knowledge, e.g., they receive the Honours List the day before it is published; they often receive copies of Ministerial speeches before they are delivered. It could not be supposed that a journalist who received confidential information in an advance copy of a speech could be required to disclose it in the course of legal proceedings His privilege would have to be recognised. The essence of the matter is, first, that a journalist has an obligation towards his suppliers of information and it would be dishonourable for him to reveal them; secondly, he owes a duty to his employers not to imperil their receipt of information in the future, which would clearly occur if an informant knew that the reporter would break his confidence; thirdly, he has a self-interest in the matter because he would be out of business if it were known that he revealed confidential information; fourthly, the law will not force a man to divulge his trade secrets and fifthly, journalists have a conscientious objection to revealing sources of information which is part of the ethics of their profession. A person should not be asked to commit a breach of professional ethics.

As to the seal of the confessional, whatever the law may be,

13 63 C.L.R. 73.

[1963]		784
1 Q.B.	ATT.-GEN. v. CLOUGH.

it is not the practice for a priest to reveal what is said to him in the confessional. It is not the practice of the courts to force people to violate their own conscience and scruples.

[LORD PARKER C.J. Does it make any difference when the source of information has a duty to come forward?]

It depends on the source. If he did come forward, he could refuse to answer incriminating questions. The respondent has not made any request to the informant to come forward because he accepts the responsibility as his own, but in any event such a request would inevitably prejudice the obtaining of confidential information in the future. If sources have to be disclosed there would be a fetter on the functions of the press which are useful, such as acting as the watchdogs of the public, informing the public, exercising the public's right to probe and to inquire, and also to expose, which are often in the public interest. Those functions could not be exercised if it were known or established that the source of information was liable to be disclosed. The theme of public interest runs through the authorities and the matter must be looked at broadly, namely, as to the general effect on the public interest as a whole if a journalist is required to disclose the source of his information on demand. On those principles, the question which the tribunal directed the respondent to answer is not one which, had it arisen in High Court proceedings, the High Court would have directed him to answer. The respondent is, therefore, entitled to the protection provided by section 1 (3) of the Act of 1921.

Nor was the question relevant to the purposes of the inquiry. The certificate given by the tribunal is not binding on this court. On the evidence which was not before the tribunal, it is clear that, although the respondent thought that he had received information of a confidential nature, the information about the Russian trawler fleet was in fact common knowledge. The question was, therefore, neither relevant nor necessary. The respondent was not obliged to answer, either because he was privileged or because it was not relevant; in neither case can there be any question of contempt.

Sir John Hobson Q.C., A.-G. in reply. Privilege is always enunciated as a rule of practice in libel and slander where there is a lis; here there is no lis and the question of privilege is dealt with under the substantive law of evidence. The privilege granted to newspapers is a discretionary rule limited to interlocutory proceedings: Plymouth Mutual Co-operative and

[1963]		785
1 Q.B.	ATT.-GEN. v. CLOUGH.

Industrial Society Ltd. v. Traders' Publishing Association Ltd.¹⁴In Lyle-Samuel v. Odhams Ltd.¹⁵ Scrutton L.J. takes care to limit the privilege to a rule of discretion relating only to discovery and interrogatories. O'Brennan v. Tully¹⁶ shows that different considerations apply at trial; privilege does not protect the witness who knew the name of the writer. That case is not binding on this court, but it is of persuasive authority.

LORD PARKER C.J. This is a case where, in the normal way, I should have taken time to consider my judgment, but as no doubt everyone concerned desires a decision at once, and as my view on the matter is quite clear, I propose very shortly to give judgment. [His Lordship stated the facts, read the relevant parts of section 1 of the Tribunals of Inquiry (Evidence) Act, 1921, and continued:] As I conceive it, it is the duty of this court under the Tribunals of Inquiry (Evidence) Act, 1921, to inquire into the alleged offence, and to see in the first place whether the present respondent refused to answer a question which the tribunal might legally require him to answer. The legality of the question depends, as I conceive it, on two matters: (1) whether it was relevant; and (2) whether the answer to the question was excused by some immunity or privilege that the witness would have had if he had been a witness in the High Court.

I think that everybody will have the greatest sympathy with the respondent; certainly the tribunal did. They gave him every opportunity to change his mind; they quite clearly also saw whether it would be possible to get the information from another source without requiring the respondent to give the name of his informant. Finally and reluctantly they were compelled to order the respondent to disclose the information, and when he failed to do so, reported the matter to this court.

The first matter for this court is whether the question was relevant. The tribunal considered that it was; and while undoubtedly it is not for this court, as it were, to rubber-stamp the opinion of the tribunal but to inquire into it afresh, I certainly would hesitate in a case of an inquiry which has gone on for a number of days, to refuse to follow a tribunal who, having dealt with this matter during all those days and being fully versed with all the details, were satisfied it was relevant. But so far as this case is concerned, without, as it were, informing myself of all

14 [1906] 1 K.B. 403.

15 [1920] 1 K.B. 135, 145.

16 (1935) 69 Ir.L.T. 115.

[1963]		786
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

the knowledge which the tribunal had at the time when the question was asked, I am quite satisfied that the question was relevant.

As I have said, the terms of reference to the tribunal were as wide as can be conceived: to inquire into "other allegations" - which embrace the passage in the "Daily Sketch" - which was brought to their attention, and "reflecting ... on the honour and integrity of persons who, as Ministers, naval officers and civil servants, were concerned in the case; (3) any breaches of security arrangements which took place; and (4) and neglect of duty by persons directly or indirectly responsible for Vassall's employment and conduct, and for his being treated as suitable for employment on secret work."

The passage in the "Daily Sketch" was "Vassall's spying led to Russian trawler spying fleets turning up with uncanny accuracy in the precise area of the secret N.A.T.O. sea exercises." Quite clearly a question as to the source of information that it was Vassall's spying that led to that, I should have thought must be relevant.

Mr. Cusack, to whom I am very indebted for his most able argument throughout the case, has relied strongly on the evidence of Colonel Lohan,^* who gave oral evidence before me, and whose evidence was not before the tribunal. Colonel Lohan says, and of course I accept it entirely from him, that prior notice is always published - was always published, at any rate, up to December, 1962 - well in advance of any N.A.T.O. exercise. It is unnecessary to go through the form of notification, whether it was by what is called "Notam" by the Admiralty, or in some other way. He says that that notification to many people, including aviators and mariners, had to be given well in advance in order to see that shipping and planes did not obstruct the exercise. He also said that for a long time it has been public knowledge that Russian trawlers do turn up at these exercises. That, as I have said, I entirely accept. But nonetheless, it seems to me that the question remains relevant. It may be that many people knew that this happened, but the question that has been inquired into is whether the presence of the Russian trawlers was due, not to some information given to the public, but due in any way to the activities of Vassall. Accordingly, I remain satisfied that the question in this case was relevant.

* Deputy Director of Public Relations at the Ministry of Defence and acting secretary of the Services Press and Broadcasting Committee.

[1963]		787
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

The second matter is whether there is, in law, an immunity or privilege for somebody in the respondent's position, assuming he was a witness before the High Court. As the Attorney-General has I think rightly said, one must start from this, that any privilege which exists constitutes a shackle on the discovery of the truth and an impediment on the due administration of the law. If one starts from that, it seems to me that the undoubted privileges and immunities which now are recognised have arisen from the fact that public policy has demanded that, notwithstanding that some such shackle or impediment may result, the public is nevertheless better served by recognising certain limited privileges and immunities.

Great reliance of course is placed, and indeed is recognised by the court as proper to place, on confidential information, between whosoever that information passes; but confidentiality of itself has never been recognised as a ground for a valid claim of immunity. I might just read a passage from the judgment of Jessel M.R. in Wheeler v. Le Marchant,¹ where he said: "It does not appear to me to be necessary, either as a result of the principle which regulates this privilege" - he was dealing with the privilege of a solicitor and client - "or for the convenience of mankind, so to extend the rule. In the first place, the principle protecting confidential communications is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advise or to prescribe for the patient, are not protected. Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most delicate nature, on which advice is sought with respect to a man's honour or reputation, are not protected. Therefore it must not be supposed that there is any principle which says

1 (1881) 17 Ch.D. 675, 681, C.A.

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1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character, and in this country is restricted to the obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that legal advice may be obtained safely and sufficiently."

That was in 1881, and there is no doubt that at that time and since, the law has recognised certain immunities and privileges. For my part I think that such recognition derives from the principle that the public is better served, and accordingly public policy demands, that although it may make it more difficult to ascertain the truth and to administer justice, certain communications ought to be treated as privileged.

Pursuant to that, a number of matters have, as it were, crystallised out of public policy, and have become what one might call rules of law. The matter is dealt with in Phipson on Evidence (1952), 9th ed., first, in chapter 14, at p. 196, entitled "Facts excluded by public policy," and dealing with affairs of state and the like; and secondly, chapter 15, at p. 202, entitled "Facts excluded by privilege," where reference is made to the professional confidence between solicitor and client, matrimonial communications, questions which tend to incriminate and questions of adultery in divorce cases.

As I have said, certain classes of communication have been recognised as privileged. In the rest of a vast area, it must be for the court to ascertain what public policy demands. If, in the circumstances of any particular case it became clear that public policy demanded a recognition of some claim to privilege, then, as I conceive, it would be the duty of this court to give due effect to public policy and recognise the claim.

What is said in the present case on behalf of the respondent is that legally and constitutionally the press is in a special position, different from ordinary members of the public. There is asserted boldly before this court that here in this court the press are recognised as having special privileges which would extend to immunity from giving the names of the source of their information. Reference has been made to the particular position of the press and their particular privileges in regard to the attendance at matrimonial courts, juvenile courts, with their special

[1963]		789
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

treatment under the Defamation Act, 1952, and the position resulting from the practice of this court in interlocutory matters of libel and slander. There is no doubt that the press has received very special consideration, both by Parliament and, I venture to think, by these courts. But because some special privileges and immunities have been given to them, it does not follow that they can claim what they now assert, a complete immunity to disclose the source of any information.

One of the strongest ways in which the argument is developed is by reference to a whole series of cases, many in the Court of Appeal, which have prevailed for 50 years and more to the effect that in matters of discovery and interrogatories a defendant newspaper proprietor or journalist will not be required to give the source of his information. It has been put in the cases in many different ways, and I do not propose to go through them. In some cases the practice of not requiring an answer to such an interrogatory has been based on the fact that to require an answer will disclose the defendant's witnesses. In others, it has been put on the basis that it will enable the plaintiff to sue the people whose names are disclosed. In yet others, it is treated as a matter which is oppressive, and of course that would apply to the refusal to allow an interrogatory in any case, whether or not the defendant was a newspaper proprietor. But there is no doubt that one reason given, and this I think is the strongest way in which it can be put, was that given as a second reason in Adam v. Fisher² where Buckley L.J.'s judgment was reported as follows: "His Lordship had asked in the course of the argument why newspapers had been treated differently from other people in this matter. It seems two answers might be given. One was that it might be assumed that the object of getting the name of the informant of a newspaper was to sue the informant, which was plainly improper. The second answer" - and this is why I am reading this case - "was that a newspaper stood in such a position that it was not desirable on grounds of public interest that the name of a newspaper's informant should be disclosed."

As far as I know, that is the only passage in all these cases dealing with the position in interlocutory matters where that is given as a reason, and I confess that if that is a valid reason it would apply not only to interlocutory proceedings but at a trial. I venture to think, however, that when one reads these cases as

2 (1914) 30 T.L.R. 288, C.A.

[1963]		790
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

a whole, that reason, which is given as a second reason by Buckley L.J. (with whom Phillimore L.J. agreed) in Adam v. Fisher,³never reappeared. It has, however, now become, as is pointed out, not merely a rule of practice but a rule of law that in matters of discovery where the press are concerned, and only where the press are concerned, they will never be required to reveal the source of their information.

As I have said, this principle has been applied only in the reported cases in interlocutory matters, and when confined to that, it is fully understandable, because in interlocutory proceedings the whole essence of the question is whether it is proper and necessary at that stage that certain matters should be disclosed, and the court has a discretion in the matter, and that has nothing to do with what may ultimately have to be ordered or required at the trial itself.

One of the most remarkable things is that in all the reports in this country there is not to be found one single case where this so-called privilege or immunity has been raised and ruled upon at the trial of an action, as opposed to being dealt with in interlocutory proceedings. As far as I know, this is the first time that such a matter has been raised here. It is, perhaps, idle to speculate on the reasons. It may be that the courts have been tender (and I hope that they have been, because I have great sympathy with the press) in requiring a journalist to answer such a question. It may be equally that the press themselves have recognised that it is a question which they must answer, and have answered it.

So far as the legal principle is concerned, I adopt entirely what was said by the High Court of Australia as recently as 1940, because in Australia and Ireland, I think, this matter has arisen. The case in Australia is McGuinness v. Attorney-General of Victoria.⁴ It has in many ways a striking resemblance to this case, because there, there was a tribunal set up in the form of a commission to inquire into the question whether there had been any bribery or attempt to bribe any member of Parliament. By virtue of an Act [Evidence Act, 1928 (Vict.)], as in this case, the commission had power to summon witnesses before it. It provided that no person should be compelled to answer any question that he would not be compelled to answer at the trial of an action in the Supreme Court - that was the Supreme Court of Victoria. It was enacted that any person present before the commission

3 30 T.L.R. 288, C.A.

4 (1940) 63 C.L.R. 73.

[1963]		791
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

who, without lawful excuse, refused or failed to answer any question touching the subject-matter of the inquiry should be guilty of an offence. Again, there was power in the commission to bring the matter to the notice of the Supreme Court, and in fact this was done and the respondent was found guilty of contempt. He was in fact only fined £15, but there was an appeal on what no doubt was thought to be a point of principle to the High Court of Australia,⁴ which consisted of Latham C.J., Rich, Starke, Dixon and McTiernan JJ. A number of points were taken, but as regards the alleged immunity or privilege the five members of the court were unanimous in saying that none existed.

The judgments are well worth reading, particularly those of Rich and Dixon JJ. For my part, I need only refer, and I do without hesitation, to the judgment of Dixon J. the now present Chief Justice, a man whose judgment commands the greatest respect, not only in Australia and this country, but I venture to think throughout the world. He said⁵: "No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege," then he refers to such matters as husband and wife, attorney and client, "an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box."

Dixon J. then refers to the Duchess of Kingston's case,⁶ to Lord Mansfield's judgment, and other matters. He goes on in this way⁷: "But although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action

4 63 C.L.R. 73.

5 Ibid. 102.

6 (1776) 1 Leach 146; 20 State Tr. 355.

7 63 C.L.R. 104.

[1963]		792
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

from the necessity of deposing to the source of information contained in his publication or to statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters." Dixon J. then refers to the line of cases to which I have already referred, and comes to the conclusion, which I entirely accept and agree with, that the decisions in those cases depend not on privilege, but on the limits of discovery.

Not only do I treat that decision as most persuasive authority, but I confess that I should hesitate very long if in a matter which pertained to the common law of England, this country should differ, unless it had to, with another Commonwealth country. It is surely of importance, to say the least, that the common law should develop homogeneously throughout the Commonwealth.

Reference has also been made to an Irish case, O'Brennan v. Tully,⁸ where at the trial a different line was taken to that which was taken on the interlocutory proceedings, and the reporter in question was required to give information at the trial, although he might well, in interlocutory proceedings, have been entitled to refuse.

In those circumstances I have without the slightest hesitation come to the conclusion that in regard to the press, the law has not developed and crystallised the confidential relationship in which they stand to an informant into one of the classes of privilege known to the law. As I have said, it still, as I conceive it, would remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune, and I therefore ask myself whether, in the circumstances of the present case, it is necessary from the point of view of public policy that I should recognise the claim to immunity which is raised.

The answer as I see it must be: No. I suggested, or tried to suggest to the respondent, that really he has no complaint against the courts; if complaint there be, it is that Parliament has said that the public interest of the country demands that an inquiry should be made in a searching way under these terms of reference. That is the public policy so far as this case is concerned, and however much sympathy one has with the

8 (1935) 69 Ir.L.T. 115.

[1963]		793
1 Q.B.	ATT.-GEN. v. CLOUGH.	Lord Parker C.J.

respondent, it is quite impossible to say that his personal interests, indeed the interests of his profession should, as a matter of public policy, be preferred to the overriding public policy of Parliament, as evidenced by the setting up of this inquiry.

In those circumstances, I am quite satisfied not only that an offence was committed before the tribunal, but that it is my unpleasant task to proceed under the Act of 1921 to deal with the respondent for this offence, and take steps for his punishment in the like manner as if he had been guilty of contempt of the High Court.

Jan. 25. LORD PARKER C.J. The court adjourned last night so that I might have more time in which to decide what punishment should be inflicted. After giving the matter the best consideration I can, I have come to the conclusion that I certainly cannot impose in this case a merely nominal sentence.

The sentence which I propose to impose is one of six months' imprisonment. It is only right to say that I do it on this basis: first, that the failure to answer the question will prevent the tribunal from obtaining information which they require, and secondly, that the respondent is minded, certainly at the present, to adhere to his present course of conduct whatever this court or the Court of Appeal or the House of Lords, assuming the case goes that far, may decide.

If, therefore, the tribunal should get the required information from any other source or the respondent should relent and give that information, I should have thought, though this is not a matter for me, that some remission of the sentence would be justified.

Accordingly, I rule that an order be made that a writ of attachment shall issue upon the condition that if the respondent within the period of 10 days reveals his source of information to the tribunal the writ shall not be enforced, and upon the further condition that if the respondent during the said period of 10 days gives notice of appeal to the Court of Appeal and sets down the appeal, the writ shall lie in the office until the determination of the appeal, and, I would add, or further order.

Order accordingly with costs.

Solicitors: Treasury Solicitor; Swepstone, Walsh & Son.

C. J. E.