The Times has won permission to use parts of leaked documents in its defence of a defamation action brought against it by a man it described as an “underworld king”.
Mr Justice Tugendhat held at the High Court that the newspaper’s rights under Article 10 of the European Convention on Human Rights would be infringed if it could not use at least some information from leaked confidential documents from law enforcement agencies.
The Metropolitan Police and Serious Organised Crime Agency (Soca) sued the newspaper and journalist Michael Gillard for breach of confidence after The Times published an article about David Hunt which was based on leaked confidential documents.
The story quoted from the documents and alleged that Hunt was the head of a vast organised crime group.
Hunt sued The Times for libel and the paper sought to plead justification [that the story was true] and the Reynolds defence, that it was responsible journalism on a matter of public interest.
When Times Newspapers Ltd, the paper’s publisher, referred to the leaked documents in its defence, the police and Soca sued for breach of confidence – seeking delivery of the documents and an order stopping the newspaper from using them except in a redacted form.
The police and Soca argued that disclosing the documents would jeopardise the ongoing police investigation into Hunt and put at risk the safety of individuals who could be identified from the documents, including police officers, informants and their families.
The issues were whether forcing the newspaper and Gillard to surrender the documents would infringe their right to freedom of speech under Article 10 of the Convention, or their right to a fair trial in the libel action under Article 6.
Other issues were whether allowing them to use the documents would constitute a breach of confidence or would infringe the Article 8 right to respect for privacy and family life of the people who could be identified from them.
The judge found there could, in principle, be an interference with the newspaper’s right to a fair trial in the libel action if they were prevented from relying on the documents to support their defence.
The fact that Hunt would also be denied access to the same documents would not mean that there was equality of arms, because the newspaper and journalist bore the burden of proof and needed the documents to prove their case.