TNAG-0003-FCO40-39-Commission-of-Enquiry-into-the-Kowloon-disturbances-addition-1968 — Page 184

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APPENDICES

APPENDIX NO. 11 (Contd.)

refused to disclose the source of his information. I think it may be desirable to read that passage again. Having referred to the direction to answer and the refusal, Lord DENNING had this to say:

'Was the question relevant to the Inquiry? Was it one that the journalist ought to answer? It seems to me that, if the Inquiry was to be as thorough as the circum- stances demanded, it was incumbent on Mr. MULHOLLAND to disclose to the tribunal the source of his information. The newspapers have made these allegations. If they made them with the due sense of responsibility (as befits a press which enjoys such freedom as ours), then they must have based them on a trustworthy source. Heaven forbid that they should invent them. And if they did get them from a trustworthy source, then the tribunal must be told of it. How otherwise can the tribunal discover whether the allegations are well-founded or not? The tribunal cannot tell unless they see for themselves this trustworthy source, this witness who is the foundation of it all. The tribunal must therefore be entitled to ask what was the source from which the information came. It is said that the tribunal had access to other sources of information which might make it unnecessary for the newspapers to disclose their source; and that the newspapers did not know of these other sources because so much of the proceedings were held in camera. I am not in the least impressed by this argument. Even if the tribunal did have access to other sources of information, nevertheless, it is still necessary for the tribunal to know from whence the news- papers got their information, so as to confirm, contradict or complete these other sources. The root cause of the whole inquiry was the information which the news- papers published, and it is their sources which must be tracked down so as to see whether they are trustworthy or not. Once the source of the information is ascer- tained, the tribunal are better able to see whether it is such as to implicate or exculpate those concerned at the Admiralty. I hold, therefore, that, so far as Mr. MULHOLLAND is concerned, these questions are both relevant and necessary to the inquiry which the tribunal had in hand.'

At this point, I think I might also refer to a short passage which appears in the judgment of the Lord Chief Justice of England in the similar case of a journalist called CLOUGH, which occurred at or about the same time. The Lord Chief Justice was himself quoting from a judgment of Sir Owen DIXON, subsequently Chief Justice of Australia, in an Australian case where the Chief Justice had said in relation to some claim of privilege for silence by a journalist.

'The law was faced at a comparatively early stage of the growth of the rules of evidence with a 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 appear to require that there should be a special privilege, (then Sir Owen DIXON referred to such matters as husband and wife, attorney and client, and went on) an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of pursuit or calling could stand in the way of the imperative necessity of revealing the truth in the witness box.'

When requesting Mrs. ELLIOTT to answer, it was made plain to her that a policeman, who fails to come forward to tell the proper authorities what he claims to know of an alleged crime, is in serious dereliction of his duty. Whatever she might have thought the position to be at an earlier stage, she cannot think that he is now acting honestly or with propriety in concealing a crime of which he claims to be aware and it is apparent that she, by her present attitude, is not merely condoning but actively encouraging and participating in the very conduct she has claimed to condemn in others. Nevertheless, she is still not willing to give his name, possibly because she feels that to do so would betray a confidence which he reposed in her, though it cannot be overlooked that it would also destroy a source of informa- tion which she has apparently found useful-though in what circumstances we do not know -in the past.