Her Majesty’s Attorney General (Original Respondent and Cross-
Appellant)
v.
Guardian Newspapers Limited and others (Original Appellants
and Cross-Respondents)
JUDGMENT
Die Jovis 30° Julii 1987
Upon Report from the Appellate Committee to whom was
referred the Cause Her Majesty’s Attorney General against
Guardian Newspapers Limited and others et e contra, That the
Committee had heard Counsel on Monday the 27th, Tuesday the
28th and Wednesday the 29th days of this instant July, upon
the Petition and Appeal of Guardian Newspapers Limited, of
164, Deansgate, Manchester, and of Peter Preston and Richard
Norton-Taylor of 119, Farringdon Road, London EC1, praying
that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty’s Court of Appeal of
24th July 1987, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the
Petition and Appeal of Her Majesty’s Attorney General of the
Royal Courts of Justice, Strand, London WC2, praying that the
matter of the Order set forth in the Schedule thereto, namely
an Order of Her Majesty’s Court of Appeal of 24th July 1987
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; as also upon the Case of
Guardian Newspapers Limited, Peter Preston and Richard Norton-
Taylor lodged in answer to the said Cross-Appeal; and due
consideration had this day of what was offered on either side
in this Cause:
Oral Judgment: 30.7.87
13.8.87
HOUSE OF LORDS
HER MAJESTY’S ATTORNEY GENERAL
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)
v.
GUARDIAN NEWSPAPERS LIMITED AND OTHERS
(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)
HER MAJESTY’S ATTORNEY GENERAL
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)
v.
THE OBSERVER LIMITED AND OTHERS
(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)
HER MAJESTY’S ATTORNEY GENERAL
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)
v.
TIMES NEWSPAPERS LIMITED AND ANOTHER
(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Oliver of Aylmerton
LORD BRIDGE OF HARWICH
My Lords,
I write this opinion in wholly exceptional circumstances. On
30 July your Lordships announced in the House your decision by a
majority of three to two to maintain in full force the injunctions
granted by Millett J. and affirmed by the Court of Appeal last
year (“the Millett injunctions”) against publication of what I shall
refer to for brevity as Mr. Wright’s Spycatcher allegations and to
extend the scope of the injunctions to cover reports on the
proceedings now current in Australia against Mr. Wright and his
publishers there. Because I am about to leave the country and
shall not be back until September I thought it would not be
possible to publish the reasons for the decision before September
and I so indicated to the House. I had in mind that, in the usual
way, each member of the House participating in the decision would
wish to have the opportunity, before publication, of reading the
considered opinions of the others. I have since been persuaded
that the urgency of informing the public of the reasons which
– 1 –
underlie the conclusions reached by the majority and the minority
alike is such that delay until September would be unacceptable. I
understand that your Lordships all share this view. This means,
however, that I must accept the disadvantage of expressing my
dissent before I have had a chance of reading and at least trying
to understand the reasons which your Lordships in the majority are
going to give in support of your decision.
The proceedings arise from an application to discharge the
Millett injunctions. I have no doubt that the Millett injunctions
were properly granted in the first place. As the law now stands,
under a decision of the Court of Appeal in contempt proceedings
which for present purposes I assume to be correct, the Millett
injunctions operate as a universal ban on any publication within the
jurisdiction of anything which would contravene the injunctions. I
attach little importance, as relevant changes of circumstance, to
the partial disclosures of the Spycatcher allegations which some
newspapers have succeeded in making. The watershed, to my
mind, came with the publication of Spycatcher in the United
States of America. Her Majesty’s Government did not attempt to
stop this, because they knew they would fail. They have also
announced that they will not attempt to prevent the importation
of Spycatcher into this country. These two vital facts set the
scene for the present controversy.
I shall excuse myself from giving any extended account of
the proceedings in the courts below. I note however that no judge
considering the matter so far has thought it appropriate to
maintain the Millett injunctions without qualification. The Vice-
Chancellor favoured their total discharge for the reasons which he
gave. The Court of Appeal favoured a variation of the injunctions
with the introduction of a new proviso to permit publication of “a
summary in very general terms” of the Spycatcher allegations. Sir
John Donaldson M.R. thought that the existing injunctions were
“clearly much too wide” to achieve the strictly limited purpose
which he believed still to be capable of achievement and that was
why he added the new proviso. Ralph Gibson L.J. said:
“If the choice were between discharging the injunctions
entirely and maintaining the injunctions in the form in which
they were made, notwithstanding the alterations in the
circumstances already described by my Lord and in the
judgment of the learned Vice-Chancellor, I would, I think,
with regret at the impotence of the law as the Vice-
Chancellor expressed it, but having had the benefit of the
Vice-Chancellor’s judgment without the hesitation which he
experienced, have upheld his conclusion that the injunctions
must be discharged. … I accept that it is not reasonable
to try to maintain the injunctions in their original form
because so to do causes public inconvenience and impairment
of public discussion and information for no sufficient benefit
in maintenance of the rights which the Attorney General is
seeking to enforce.”
Russell L.J. said:
“In the amended form of injunctions proposed by my Lord
the Master of the Rolls there is built in a measure of
protection for the legitimate interests of the press, which it
is no part of the function of this court to stultify.”
– 2 –
Before your Lordships all parties accepted that the
compromise solution favoured by the Court of Appeal could not be
supported in law and would be unworkable in practice. There was
and is no escape by way of any compromise from the need to
resolve the issue. The injunctions must either be maintained or
discharged.
I appreciate that the decision of your Lordships’ House is in
form merely interlocutory. But it was quite rightly accepted by
Mr. Mummery, for the Attorney General, that the case in favour
of maintaining the injunctions cannot be any stronger at the trial
than it is today. It must follow from this, in my view, that the
real question raised by the newspapers’ appeals and the cross-
appeal of the Attorney General is whether the Attorney General,
on the relevant and undisputed facts, can sustain a claim for
permanent injunctions. If no case for permanent injunctions can
be made out, it must be absurd to keep the interim injunctions in
force. Conversely, although a trial of the action would, at least
theoretically, leave the door open for the newspapers to canvass
afresh every issue canvassed before your Lordships in these appeals
and, of course, to adduce fresh evidence and argument on issues
not already canvassed, I fear that, in practice, your Lordships’
decision of the present appeals will effectively foreclose the
options open to the trial judge.
The basis of the claim for the Millett injunctions was to
prevent disclosure of the Spycatcher allegations in breach of the
life-long obligation of confidence which Mr. Wright, as a former
officer of the Security Service, owed to Her Majesty’s
Government. So long as any of the Spycatcher allegations
remained undisclosed, I should have been wholeheartedly in favour
of maintaining the injunctions in the interests of national security
for all the reasons so cogently deployed in the affidavit of Sir
Robert Armstrong. But it is perfectly obvious and elementary
that, once information is freely available to the general public, it
is nonsensical to talk about preventing its “disclosure.” Whether
the Spycatcher allegations are true or false is beside the point.
What is to the point is that they are now freely available to the
public or, perhaps more accurately, to any member of the public
who wants to read them. I deliberately refrain from using
expressions such as “the public domain” which may have technical
overtones. The fact is that the intelligence and security services
of any country in the world can buy the book Spycatcher and read
what is in it. The fact is that any citizen of this country can
buy the book in America and bring it home with him or order the
book from America and receive a copy by post. Some enterprising
small traders have apparently found it worth their while to import
copies of the book and sell them by the roadside. It remains to
be seen whether the Attorney General will institute proceedings
for contempt of court against any public library which imports
copies of Spycatcher and makes it available to borrowers. Mr.
Mummery had no instructions which enabled him to answer the
question I asked about that.
If, as I have always thought, the interest of national
security in protecting sensitive and classified information is to
conceal it from those who might make improper use of it, it is
manifestly now too late for the Millett injunctions to serve that
– 3 –
interest. If the confidence of friendly countries in the ability of
this country to protect its secrets has been undermined by the
publication in the United States of America of Spycatcher, the
maintenance of the Millett injunctions can do nothing to restore
that confidence. So much, I believe, is obvious and
incontrovertible.
I well understand the sense of indignation which all of us
must feel that Mr. Wright, to use the colloquialism, should have
got away with it, worse still that he should make a profit from
his breach of confidence. Perhaps his publishers come under the
same condemnation. But the remedy for that wrong lies not in a
futile injunction but in an action for an account of profits.
The legal basis for the Attorney General’s claim to enjoin
the newspapers is that any third party who comes into possession
of information knowing that it originated from a breach of
confidence owes the same duty to the original confider as that
owed by the original confidant. If this proposition is held to be of
universal application, no matter how widely the original
confidential information has been disseminated before reaching the
third party, it would seem to me to lead to absurd and
unacceptable consequences. But I am prepared to assume for
present purposes that the Attorney General is still in a position to
assert a bare duty binding on the conscience of newspaper editors
which is capable of surviving the publication of Spycatcher in
America.
The key question in the case, to my mind, is whether there
is any remaining interest of national security which the Millett
injunctions are capable of protecting and, if so, whether it is of
sufficient weight to justify the massive encroachment on freedom
of speech which the continuance of the Millett injunctions in
present circumstances necessarily involves.
There is no fresh evidence from Sir Robert Armstrong or
anyone else who can speak for the Security Service about the
security implications following the American publication of
Spycatcher. Sir Robert’s original affidavit was made in the
radically different circumstances obtaining before that publication.
So, in effect, the hapless Mr. Mummery was left to make bricks
without straw (which of course he did with his usual skill) in
seeking to persuade your Lordships that, despite the free
availability of the book Spycatcher itself and despite the citations
from it and discussion of its contents which have been and will
continue to be available in foreign newspapers freely circulating in
this country, a blanket ban on any repetition, citation or discussion
of its contents in the British press was necessary in the interests
of national security. If I have understood the argument, stripped
of rhetorical embellishment, it amounts to this. First, unless
enjoined Mr. Wright may make yet further disclosures about the
Security Service not already contained in Spycatcher. This may be
true, but is entirely beside the point. If the Attorney General
were prepared to modify the Millett injunctions so as to exclude
from their ambit the Spycatcher allegations, in the same way that
anything in Mr. Chapman Pincher’s book Their Trade is Treachery
is excluded, there would be nothing left to argue about. What the
newspapers seek is liberty to repeat and discuss the Spycatcher
allegations – no more, no less. Secondly, Mr. Mummery takes
– 4 –
material from Sir Robert’s affidavit out of the context in which it
was made and seeks to rely on it for the proposition that the
Millett injunctions should be maintained in their full rigour to
deter other officers of the intelligence or security services from
following Mr. Wright’s deplorable example. The suggestion must
be, I take it, that a future Mr. Wright contemplating going into
exile and publishing his memoirs in the United States and who
would not be deterred by the prospect of having to account to Her
Majesty’s Government for his profits, would nevertheless be
deterred by the knowledge he would be denied by injunction any
more than a limited access for his story to the general reading
public in this country. This seems to me a rather fanciful
suggestion, but if there is anything in it, now that the original aim
of preventing disclosure of secret material can no longer be
attained, the deterrent argument can only carry minimal weight.
What of the other side of the coin and the encroachment on
freedom of speech? Having no written constitution, we have no
equivalent in our law to the First Amendment to the Constitution
of the United States of America. Some think that puts freedom
of speech on too lofty a pedestal. Perhaps they are right. We
have not adopted as part of our law the European Convention on
Human Rights to which this country is a signatory. Many think
that we should. I have hitherto not been of that persuasion, in
large part because I have had confidence in the capacity of the
common law to safeguard the fundamental freedoms essential to a
free society including the right to freedom of speech which is
specifically safeguarded by Article 10 of the Convention. My
confidence is seriously undermined by your Lordships’ decision. Ail
the judges in the courts below in this case have been concerned
not to impose any unnecessary fetter on freedom of speech. I
suspect that what the Court of Appeal would have liked to
achieve, and perhaps set out to achieve by their compromise
solution, was to inhibit The Sunday Times from continuing the
serialisation of Spycatcher, but to leave the press at large at
liberty to discuss and comment on the Spycatcher allegations. If
there were a method of achieving these results which could be
sustained in law, I can see much to be said for it on the merits.
But I can see nothing whatever, either in law or on the merits, to
be said for the maintenance of a total ban on discussion in the
press of this country of matters of undoubted public interest and
concern which the rest of the world now knows all about and can
discuss freely. Still less can I approve your Lordships’ decision to
throw in for good measure a restriction on reporting court
proceedings in Australia which the Attorney General had never
even asked for.
Freedom of speech is always the first casualty under a
totalitarian regime. Such a regime cannot afford to allow the
free circulation of information and ideas among its citizens.
Censorship is the indispensable tool to regulate what the public
may and what they may not know. The present attempt to
insulate the public in this country from information which is freely
available elsewhere is a significant step down that very dangerous
road. The maintenance of the ban, as more and more copies of
the book Spycatcher enter this country and circulate here, will
seem more and more ridiculous. If the Government are
determined to fight to maintain the ban to the end, they will face
inevitable condemnation and humiliation by the European Court of
– 5 –
Human Rights in Strasbourg. Long before that they will have been
condemned at the bar of public opinion in the free world.
But there is another alternative, The Government will
surely want to reappraise the whole Spycatcher situation in the
light of the views expressed in the courts below and in this House.
I dare to hope that they will bring to that reappraisal qualities of
vision and of statesmanship sufficient to recognise that their wafer
thin victory in this litigation has been gained at a price which no
Government committed to upholding the values of a free society
can afford to pay.
I add a postscript to record that I have now had the
opportunity to read first drafts of the opinions of my noble and
learned friends, Lord Templeman and Lord Ackner. I remain in
profound disagreement with them.
LORD BRANDON OF OAKBROOK
My Lords,
The facts and circumstances leading up to these appeals and
cross-appeals have been fully set out in the opinions of my noble
and learned friends, Lord Templeman and Lord Oliver of
Aylmerton. I adopt gratefully their accounts of these matters and
do not think it necessary for me to give a separate account of
them of my own.
I was a party to the majority decision of this House given
on 30 3uly 1987 that the injunctions in issue should not be
discharged but should be continued until trial. My reasons for
being a party to that decision can be summarised in nine
propositions as follows:
-
-
-
The action brought by the Attorney General against The
Guardian and The Observer has as its object the protection
of an important public interest, namely, the maintenance so
far as possible of the secrecy of the British Security
Service. -
The injunctions in issue are interlocutory, that is to say,
temporary injunctions, having effect until the trial of the
action only. -
Before the publication of Spycatcher in America the
Attorney General had a strong arguable case for obtaining
at trial final injunctions in terms similar to those of the
temporary injunctions.
-
-
(4) While the publication of Spycatcher in America has much
weakened that case, it remains an arguable one.
(5) The only way in which it can justly be decided whether the
Attorney General’s case, being still arguable, should succeed
or fail is by having the action tried.
– 6 –
-
-
-
On the hypothesis that the Attorney General’s claim, if
tried, will succeed, the effect of discharging the temporary
injunctions now will be to deprive him, summarily and
without a trial, of all opportunity of achieving that success. -
On the alternative hypothesis that the Attorney General’s
claim, if tried, will fail, the effect of continuing the
temporary injunctions until trial will be only to postpone,
not to prevent, the exercise by The Guardian and The
Observer of the rights to publish which it will in that event
have been established that they have. -
Having regard to (6) and (7) above, the discharge of the
temporary injunctions now is capable of causing much
greater injustice to the Attorney General than the
continuation of them until trial is capable of causing to The
Guardian and The Observer. -
Continuation of the injunctions until trial is therefore
preferable to their discharge.
-
-
I have not dealt separately with the injunction against The
Sunday Times because it is common ground that the fate of that
injunction must follow the fate of the injunctions against The
Guardian and The Observer.
The nine propositions which I have set out in summary form
above require amplification and comment.
(1) The public interest character of the Attorney General’s
claim
It has been suggested that the right sought to be enforced
by the Attorney General is a private right only, and that, as such,
it must necessarily be overridden by the public right of citizens of
a democratic country such as the United Kingdom to freedom of
expression in the press. In my view this is not correct. The
Attorney General is suing, as the representative of the Crown, in
order to protect the public interest in the maintenance of the
secrecy of the British Security Service. The public right to
freedom of expression cannot, even in a democratic country such
as the United Kingdom, be absolute. It is necessarily subject to
certain exceptions, of which the protection of national security is
one. This is expressly recognised in Article 10(2) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, to which the United Kingdom has adhered although its
provisions have not been incorporated into our domestic law.
(2) The temporary nature of the injunctions in issue
The fact that the injunctions in issue are temporary only is,
in my view, of the utmost importance. Continuation of them until
trial does not in any way prejudge the decision which has to be
made at trial on the validity of the Attorney General’s claim to
final injunctions. The purpose of such continuation is only to hold
the ring until a just decision on the validity of that claim can be
made.
– 7 –
(3) The arguability of the Attorney General’s case before
publication of Spycatcher in America
The Attorney General’s case is and always has been (i) that
Mr. Wright, as a former member of the British Security Service,
owed to the Crown a life long duty of confidence and non-
disclosure extending to every aspect of his work in the Service; (ii)
that the publication by Mr. Wright of Spycatcher would be a plain
breach of that duty; (iii) that The Guardian and The Observer,
having obtained access to the matters contained in Spycatcher with
knowledge of Mr. Wright’s breach of duty in disclosing them came
under the same duty of confidence and non-disclosure as he was;
(iv) that publication by The Guardian and The Observer of the
matters contained in Spycatcher, whether true or false, would be a
breach of their duty; (v) that publication by them of the matters
contained in Spycatcher would do great harm to the British
Security Service; (vi) that damages would not be an adequate or
appropriate remedy for the breach of duty so committed; and (vii)
that injunctions restraining The Guardian and The Observer from
publishing the matters disclosed by Mr. Wright in Spycatcher or
elsewhere were therefore necessary in order to prevent the great
harm to the British Security Service which would otherwise be
done.
It is evident that Millett J. who granted the temporary
injunctions originally, and the Court of Appeal which upheld them
with minor modifications, had no doubt that the Attorney General
had a strong arguable case for obtaining at trial final injunctions
in terms similar to those of the temporary injunctions. Although a
further appeal by The Guardian and The Observer to this House
against the decision of Millett J., as affirmed by the Court of
Appeal, is still pending, its prosecution appears to have been
overtaken by events. In any case, it seems to me that the view
taken by Millett J. and the Court of Appeal with regard to the
strong arguability of the Attorney General’s case at that stage is
not really open to challenge.
(4) The arguability of the Attorney General’s case following the
publication of Spycatcher in America
This is to my mind the key issue. Since the temporary
injunctions were first granted, Spycatcher has been published in
America, has been widely sold there and is likely to be even more
widely sold there in the future. Under American law the British
Government could not have hoped to prevent such publication and
sale, and so did not attempt to do so. A substantial number of
copies of Spycatcher as published in America have found their way
into the United Kingdom and have been available for reading to
those having access to them. More copies are likely to find their
way here and to be similarly available for reading in the future.
The British Government, although it has power in theory to
prohibit the importation of copies of the book, accepts that it
cannot in practice effectively exercise that power. It has
therefore not attempted, nor does it intend to attempt, to impose
any such prohibition.
The three newspapers rely on these supervening events as
constituting decisive grounds for discharging the temporary
injunctions now. They put their case in two ways. First, they say
– 8 –
that once the matters contained in Spycatcher have, by whatever
means, become public knowledge in the United Kingdom, any duty
of non-disclosure under which they may previously have been lapses
and ceases to be binding on them. Secondly, they say that, in any
case, in these new circumstances, continuation of the temporary
injunctions any longer would be futile: all the damage to the
British Security Service capable of resulting from Mr. Wright’s
breach of duty has already been done and there is no further
damage which continuation of the injunctions can prevent.
In relation to both arguments it is, I think, putting the case
too high to say that the matters contained in Spycatcher have
become public knowledge in the United Kingdom. A limited
section of the public, who feel a strong motivation to acquire
knowledge of the matters concerned, can no doubt obtain access to
a copy of the book published in America and not prohibited from
being imported here. But this does not mean that the matters
concerned are already within the knowledge of the public as a
whole. If they were, it is difficult to see why the newspapers
should be so bent on publishing them, and so incensed at being
restrained even temporarily from doing so.
The first argument raises a question of law, on which there
is inconclusive guidance in existing authorities. It was further
apparent that counsel had not come prepared to deal with that
question of law as fully as would be necessary for your Lordships
to reach a final conclusion upon it. If the argument is correct in
relation to the newspapers, it appears that it must also be correct
in relation to Mr. Wright himself, with the consequence that his
duty of non-disclosure has also lapsed and ceased to be binding on
him, and he could return to the United Kingdom and publish his
memoirs there without legal restraint. I am not willing, on what
is only an interlocutory appeal, and assisted only by incomplete
argument, to reach such a startling, and indeed anarchic,
conclusion.
The second argument seems to me to raise what is, in
substance, a question of fact rather than of law. That is whether
the publication of Spycatcher in America and its importation on a
limited scale into the United Kingdom has exhausted the damage
to the British Security Service which Mr. Wright’s breach of duty
is capable of causing, so that there is no further damage left to
be done which continuation of the temporary injunctions could help
to prevent.
In paragraph 10 of his affidavit in the Australian
proceedings, Sir Robert Armstrong deposed as follows:
“10. The publication of any narrative prepared or
contributed to by [Mr. Wright] which was based upon
information available to him as a senior member of the
British Security Services would be likely to cause
unquantifiable damage by reason of the disclosure involved.
Additionally, it will clearly damage the work of the British
Security Service in the following further respects:
(a) the intelligence and security services of friendly
foreign countries with which the British Security
service is in liaison would be likely to lose confidence
in its ability to protect classified information.
– 9 –
(b) the British Security Service depends upon the
confidence and co-operation of other organisations and
persons. That confidence would suffer serious damage
should [Mr. Wright] reveal information of the nature
described above.
(c) there would be a risk that other persons who are or
have been employed in the British Security Services
who have had access to similar information might
seek to publish it.”
There is no doubt that the major part of the damage which
Sir Robert Armstrong said would be caused by the publication of
Spycatcher has, in the events which have now occurred, already
been done, and that nothing which the courts can do, by way of
injunctions or otherwise, can undo it. It remains for consideration,
however, whether the risk referred to in paragraph 10(c) of Sir
Robert Armstrong’s affidavit, namely future repetitions by other
members of the British Secret Service of Mr. Wright’s breach of
duty, is so serious that the courts should do all that they can,
including granting at trial final injunctions in terms similar to
those of the temporary injunctions, in order not to eliminate this
risk (for I do not see how it can be eliminated) but to minimise it
as much as possible.
The Vice-Chancellor discussed this consideration in his
judgment. He said at p. 25 of the transcript:
“There remains what Mr. Mummery argues is the
remaining public interest, namely, to prevent general
dissemination of the contents of this book through the press
within the United Kingdom so that by discouraging general
dissemination those who are tempted to follow Mr. Wright’s
example in the future and write their memoirs hot from the
Security Service will not find it such a satisfactory or
profitable business. I think there is force in that. I think
that the ability to restrain the unauthorised use of
confidential memoirs by those who do not mind abusing their
confidence, so as to discourage others from doing it, is a
real point. I do not think it can be just swept aside.
The United Kingdom is likely to be the best market
for anybody writing these memoirs, and to discourage the
use of that market by such people would be, I think, a
discouragement.”
I agree with the Vice-Chancellor that this consideration is a
real one which cannot be swept aside. It involves questions of the
effect in the future on the morale and discipline of members of
the British Security Service of the courts allowing the disclosure
of confidential matters in breach of duty abroad to lead inevitably
to general dissemination of such matters to the public as a whole
by the press in the United Kingdom. Once it is accepted that the
risk concerned is a real one and not such as to be swept aside, it
follows, I think, that although the Attorney General’s case for
obtaining final injunctions at trial which he had earlier had been
much weakened, it remains nevertheless an arguable case. The
Vice-Chancellor so held and I agree with him. The damage to the
– 10 –
British Security Service which has already been done cannot be
undone. But it may be that the courts can still take useful steps
to reduce materially the risk of similar damage being done again
in the future.
(5) The only way to decide justly whether the Attorney
General’s case should succeed or fail is by having the action tried
The Vice-Chancellor considered that the need to discourage
repetitions of Mr. Wright’s breach of duty in the future did not
justify the continuation of restrictions on the public right of
freedom of expression in the press. As I indicated earlier,
however, the public right to freedom of expression in the press is
not the only public interest involved. Protection of the secrecy of
the British Security Service is also a public interest and is also
involved. Want of secrecy in the past has cost lives: that cannot
now be remedied. Want of secrecy in the future may cost more
lives: the risk of that can possibly be reduced. So there are two
public interests involved: they have to be weighed against each
other and a balance struck between them.
In order to enable a court to carry out properly this
exercise of weighing and balancing, it is in my view, essential that
it should have adduced before it the best possible evidence on
these crucial questions: in what way, for what reasons and to what
extent, having regard to the publication of Spycatcher in America
and its so far limited importation into the United Kingdom,
general dissemination of its contents to the public by the press
here would increase the risk of other members of the British
Security Service acting in the same manner as Mr. Wright in the
future. These are not matters with regard to which a court can
take judicial notice or rely on its own instincts. They are matters
for oral evidence from persons such as Sir Robert Armstrong, or
others with comparable expertise. That evidence will, of course,
like any other oral evidence given at a trial, be subject to
challenge by cross-examination. It is for these reasons that I
consider that the only way in which it can be justly decided
whether the Attorney General’s claim for final injunctions should
succeed or fail is by having the action tried.
(6) The effect of discharging the temporary injunctions now
If the temporary injunctions are discharged now, so that the
newspapers are left free, subject to any questions of copyright, to
disseminate generally the disclosures made by Mr. Wright in
Spycatcher, there will be no point in the Attorney General
proceeding to trial. All possible damage to the British Security
Service will indeed then have been done. His arguable case will
have been completely destroyed, by summary process at an
interlocutory stage and without his ever having had the opportunity
of having it fairly tried on appropriate evidence.
(7) The effect of continuing the temporary injunctions until trial
If the temporary injunctions are continued until trial, and
the Attorney General’s claim to final injunctions then fails, the
newspapers will be free to publish Mr. Wright’s disclosures as they
please. They will certainly have been delayed in exercising rights
which will, in that event, have been vindicated. Mr. Wright’s
– 11 –
disclosures, however, relate not to recent events but to events
many years in the past. That being so, a further delay in the
exercise of the newspapers’ rights will in no way be equivalent to
a complete denial of those which the Attorney General may have.
(8) and (9) The potential injustice of the two available courses to
either party and the choice between them
For the reasons which I have given the choice lies between
one course which may result in permanent and irrevocable damage
to the cause of the Attorney General and another course which
can only result in temporary and in no way irrevocable damage to
the cause of the newspapers. In that situation it seems to me
clear that the second of the two courses should, in the overall
interests of justice, to be preferred to the first.
It was urged upon your Lordships that the Vice-Chancellor’s
decision, being a discretionary one, should not be interfered with
by an appellate tribunal unless it was shown that he had erred in
some way. With great respect to him I think that he did err in
that he did not sufficiently regard the radical difference which I
have stressed above between the kinds of injustice capable of
being caused to the Attorney General if the temporary injunctions
are discharged now and to the newspapers if they are continued
until trial.
Once a decision is taken in principle to continue the
temporary injunctions until trial, it is essential that any loopholes
in their present formulation, which might enable the purpose of
that decision to be circumvented, should be eliminated. It was on
that ground that I agreed with the alteration of proviso (2) of the
injunctions proposed by my noble and learned friends, Lord
Templeman and Lord Ackner.
I would end my opinion with certain firm disclaimers. My
decision in this case is not based on my thinking that, when the
action comes to be tried, the Attorney General’s claim is in any
way sure of succeeding. It may succeed or it may fail. The
decision on that will be for the trial judge and, in the first place
at any rate, for him alone. Nor did I reach my decision in this
case because I do not strongly support, subject to well-recognised
exceptions, the general principle of freedom of expression in the
press. I do. I reached my decision solely on the ground that the
Attorney General has an arguable case for the protection of an
important public interest, and that it would be unjust, by
discharging the temporary injunctions now, to deprive him
irrevocably of the opportunity of having that case fairly
adjudicated upon at a proper trial.
For obvious reasons that trial should take place as soon as
possible: it has already been delayed much too long.
– 12 –
LORD TEMPLEMAN
My Lords,
On the 30 July this year your Lordships by a majority
decided to continue injunctions restraining the appellant newspapers
from disclosing or publishing any information obtained by Peter
Maurice Wright in his capacity as a member of the British
Security Service. The principle affirmed by that decision was that
the law will prevent the mass circulation in this country of
confidential information which prejudices the public interest in the
maintenance of an efficient and effective secret Security Service.
Three defences were put forward by the appellant newspapers,
first, that Mr. Wright intended his treachery to be helpful to the
British public, secondly, that damage to the Security Service
arising from Mr. Wright’s treachery had already been fully
inflicted, and thirdly, that the public interest in receiving
information entitled the press to publish treachery at home
provided it had been published abroad. A majority of your
Lordships rejected these defences.
The Secretary to the Cabinet, Sir Robert Armstrong, in an
affidavit sworn in these proceedings, deposed as follows:
“The main function of the British Security Service is the
defence of the realm as a whole, from external and internal
dangers arising from attempts at espionage and sabotage, or
from actions from persons and organisations whether
directed from within or without the United Kingdom, which
may be judged to be subversive at this date.”
Mr. Wright was employed by the British Security Service.
On 1 September 1955 he signed a declaration that he understood
the effect of section 2 of the Official Secrets Act 1911 which was
set out in the declaration and renders liable to prosecution any
person in possession of information
“… which he has obtained or to which he has had access
owing to his position as a person who holds or who has held
office under His Majesty . . . and communicates the
information to any person, other than a person to whom he
is authorised to communicate it, or a person to whom it is
in the interests of the State his duty to communicate it.”
When Mr. Wright left the Security Service he signed a
further declaration, dated 30 January 1976, acknowledging, inter
alia, that the provisions of the Official Secrets Acts applied to
him after his appointment had ceased, that he was fully aware
that serious consequences might follow any breach of the
provisions of those Acts, and that he understood
“that I am liable to be prosecuted if either in the United
Kingdom or abroad I communicate, either orally or in
writing, including publication in a speech, lecture, radio or
television broadcast, or in the press or in book form or
otherwise, to any unauthorised person any information
acquired by me as a result of my appointment (save such as
has already officially been made public) unless I have
previously obtained the official sanction in writing of the
department by which I was appointed.”
– 13 –
In addition to the obligations of secrecy expressly
acknowledged by Mr. Wright, he was also under an obligation
arising out of his employment by the Security Service and
enforceable in equity not to divulge any information which he
obtained in the course of his employment. The obligation arises
because of
“the broad principle of equity that he who has received
information in confidence shall not take unfair advantage of
it. He must not use it to the prejudice of he who gave it:”
per Lord Denning M.R. in Seager v. Copydex [1967] 1
W.L.R. 923 at 931.
The same obligation attaches to the press and anyone else who
receives confidential information knowing that it is confidential.
It is unlawful to make further disclosure.
The Cabinet Secretary further deposed that the work of Mr.
Wright for the Security Service:
“Involved him in frequent and close liaison with the
Intelligence and Security Services of friendly foreign
countries and the exchange of information with those
Services. It was, and continues to be, essential to the
effectiveness of all such liaison and exchanges that they are
conducted upon a basis of mutual trust and confidence.”
The Cabinet Secretary also said that the effective
functioning of the British Security Service requires that its affairs
be kept secret. The Attorney General who represents the public
and who has brought these proceedings in their interest, could not,
in the view of the Cabinet Secretary:
“particularise the damage that would be caused by specific
disclosures of fact by Mr. Wright without, himself, making
further disclosures of material which is confidential, and
undermining the efficacy of the duty of confidentiality
which is also sought to be in force.”
He continued:
“It is likely that any disclosures of facts relating to the
Security Service by Mr. Wright would not only be a breach
of his contract and of his duty of confidence owed to the
Service but would be likely to endanger the effective
discharge by the Service of its current and future
responsibilities, and as a consequence be of value for a
foreign power and highly detrimental to the public interest
of the United Kingdom as well as causing harm to individual
officers, former officers, their families and other persons
who might be identified by or as a consequence of such
disclosures. The dangers could arise notwithstanding that
the information disclosed was unclassified and is on its face
and in isolation apparently innocuous. Such information may
take on a wider significance if put together with other
information in possession of other persons and thereby, for
example, enable them to check the veracity of their sources
of information. Furthermore, information which appears to
– 14 –
be innocuous at a particular date or to a particular officer
may at a later date become significant.”
It follows that Mr. Wright could not publish his memoirs as
an employee of the Security Service without committing flagrant
breaches of the duty of secrecy and confidentiality which he owed
to the public in the national interest. No publisher or newspaper
in this country may lawfully publish Mr. Wright’s memoirs or
disclose information obtained by Mr. Wright in the course of his
service concerning any aspect of the work of the Security Service.
Mr. Wright, apart from making money out of his memoirs, protests
that his memoirs will be helpful to the British public. The press
and others consider that his memoirs will be helpful in achieving
the objects of an enquiry into the working of the Security Service,
an amendment of the Official Secrets Acts, and the enactment of
freedom of information legislation. But these objects are unlikely
to be attained so long as the British press is prepared to publish
confidential information relating to the British Security Service
without investigation or corroboration and in disregard of orders of
the court designed to preserve the Security Service from harm.
Mr. Wright could not, of course, hope to be allowed to
publish his memoirs in England. He accordingly entered into
arrangements with an Australian company in New South Wales,
Heinemann Publishers Australia Pty. Ltd., which is a subsidiary of
the English Heinemann Publishers. In September 1985 the Crown
began proceedings in New South Wales to restrain such publication.
Interim relief obtained in New South Wales apparently did not
prevent Mr. Wright and the Australian Heinemanns from publishing
outside Australia. Seizing upon this loophole the Australian
Heinemann company granted the American rights in Mr. Wright’s
memoirs to Viking Penguin Incorporated. This is an American
subsidiary of the English Pearson Group. In the United States of
America an injunction might have been obtained against Mr. Wright
if he had been within the jurisdiction but under the law of the
United States could not be obtained against Viking Penguin
Incorporated or anyone else in the United States. Mr. Wright’s
memoirs were written by him or written for him either in
Australia or in the United States and were given the name
Spycatcher. On 22 June 1986 and 23 June 1986 respectively, The
Observer and The Guardian published in their newspapers in this
country, an outline of Mr. Wright’s allegations. The Observer
stated that it:
“… has obtained details of what is disclosed in the
manuscript written by retired senior MI5 officer, Peter
Wright, who lives in Tasmania.”
The Observer subsequently explained that The Observer had
not seen the manuscript or extracts from it.
The publication of The Observer and The Guardian articles
was unlawful and on 11 July 1986 Millett J. granted injunctions
(“the Millett injunctions”) against The Observer and The Guardian
restraining them from disclosing or publishing any information
obtained by Mr. Wright in his capacity as a member of the British
Security Service and which they know or have reasonable grounds
to believe to have come or been obtained directly or indirectly
from Mr. Wright. The order had two provisos. The first proviso
– 15 –
allowed the newspapers to reproduce attributions to Mr. Wright
already made by Mr. Chapman Pincher’s published works or in a
television programme or programmes broadcast by Granada
Television. The second proviso allowed disclosure of any material
disclosed in open court in the Supreme Court of New South Wales
unless prohibited by the judge there sitting or which, after the
trial there in action No. 4382 of 1985 is not prohibited from
publication. Millett J. delivered a lucid and convincing judgment
explaining his reasons for coming to the conclusion that it would
be against the public interest for newspapers in this country to
publish information derived from Mr. Wright. On the 25 July 1986
the Court of Appeal dismissed an appeal from the judgment of
Millett J. subject to certain minor modifications.
Between 27 April 1987 and 14 July 1987 the following
events took place:
-
-
-
On 27 April 1987 The Independent stated that a copy
of the manuscript of Spycatcher had been “passed
unsolicited” to The Independent. The newspaper quoted
extracts from the book but added that “The Independent has
destroyed all copies of the manuscript in its possession.”
On the same day the London Evening Standard and the
London Daily News followed suit and published information
which could only have been derived from Mr. Wright in the
final analysis. The Attorney General applied to commit the
three newspapers for contempt since they were clearly
acting in breach of the object of the Millett injunctions. -
Shortly after 27 April 1987 The Guardian and The
Observer applied to the court to discharge the Millett
injunctions on the grounds of changed circumstances
including the articles in The Independent and the other two
London evening papers on 27 April. -
On 28 April 1987 Australian newspapers published
articles about Spycatcher. -
On 3 May 1987 the Washington Post announced that it
had “obtained” a manuscript copy of Spycatcher and
published extracts and comments. -
On 12 July 1987 The Sunday Times published “major
extracts from the book Spycatcher by Peter Wright the
former MI5 officer. Its serialisation has been timed to
coincide with the publication of the book in the United
States.” -
On 14 July 1987 the Court of Appeal which heard
argument before and after 12 July, declared that The
Independent, the London Daily News and the London Evening
Standard “could indeed have been in contempt of court and
so could The Sunday Times and any other newspaper which
published information attributed to Mr. Wright. It could not
be said that they were in contempt of court because none
had yet had an opportunity of putting forward a defence.”
Contempt proceedings had been or were then instituted
against The Sunday Times.
-
-
– 16 –
All the newspaper articles were bound to put pressure on the court
to allow publication of Spycatcher in this country regardless of any
damage to the Security Service and despite the reasoned judgment
of Millett J. that the disclosure of any relevant information
derived from Mr. Wright would be contrary to the public interest
and ought to be restrained. On 22 July 1987 the Vice-Chancellor
discharged the orders made by Millett J. but his decision was
reversed by the Court of Appeal on 24 July 1987, hence the
appeal to this House.
My Lords, this appeal involves a conflict between the right
of the public to be protected by the Security Service and the right
of the public to be supplied with full information by the press.
This appeal therefore involves consideration of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) to which the British Government adheres. Article 10
of the Convention is in these terms:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and
to receive and impart information and ideas without
interference by public authority and regardless of
frontiers . . . .
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security,
territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining
the authority and impartiality of the judiciary.”
In The Sunday Times’ case (Eur. Court H.R. The Sunday
Times case, decision of 27 October 1978, series A 30), the
European Court of Human Rights decided by a majority of 11 to 9
that there had been a violation of the Convention by reason of the
judgment of this House which restrained The Sunday Times from
publishing:
“Any article which prejudges the issues of negligence, breach
of contract or breach of duty or deals with the evidence
relating to any of the said issues arising in any actions
pending or imminent against Distillers … in respect of the
development, distribution or use of the drug Thalidomide.”
The European Court pointed out that this House applying domestic
law had balanced the public interest in freedom of expression and
the public interest in the due of administration of justice. But
the European Court:
” … is faced not with the choice between two conflicting
principles but with a principle of freedom of expression
which is subject to a number of exceptions which must be
narrowly interpreted …. It is not sufficient that the
interference involved belongs to that class of exceptions
– 17 –
listed in Article 10 which has been invoked; neither is it
sufficient that the interference was imposed because its
subject-matter fell within a particular category or was
caught by a legal rule formulated in general or absolute
terms; the Court has to be satisfied that the interference
was necessary having regard to the facts and circumstances
prevailing in the specific case before it.”
The question is therefore whether the interference with
freedom of expression constituted by the Millett injunctions was,
on 30 3uly 1987 when they were continued by this House,
necessary in a democratic society in the interests of national
security, for protecting the reputation or rights of others, for
preventing the disclosure of information received in confidence or
for maintaining the authority and impartiality of the judiciary
having regard to the facts and circumstances prevailing on the 30
July 1987 and in the light of the events which had happened. The
continuance of the Millett injunctions appears to me to be
necessary for all these purposes.
My Lords, in my opinion a democracy is entitled to take the
view that a public servant who is employed in the Security Service
must be restrained from making any disclosures concerning the
Security Service and that similar restraints must be imposed on
anybody who receives those disclosures knowing that they are
confidential.
There are safeguards. No member of the Secret Service is
immune from criminal prosecution or civil suit in respect of his
actions. Instructions from superior officers are no defence. In
addition, anyone, whether public servant, newspaper editor or
journalist who is aware that a crime has been committed or is
dissatisfied with the activities of the Secret Service is free to
report to the police in relation to crime and in other matters is
free to report to the Prime Minister who is charged with the
responsibility of the security services and to the Security
Commission which advises the Prime Minister. The Security
Services are not above the law. In the present case there is not
the slightest evidence that these safeguards have failed.
Furthermore there is nothing to prevent the press investigating all
the allegations made by Mr. Wright and reporting the results of
their investigations to the public. It is only unlawful for the press
to publish information unlawfully disclosed by Mr. Wright and
which may or may not be true.
In terms of the Convention there are three reasons why in
the present case restraints are necessary to prevent the press
publishing information disclosed by Mr. Wright.
Any person who joins the Security Service accepts that he
cannot defend himself or the Security Service against false
accusations and cannot give any explanation for his actions or for
the activities of the Security Service without himself thereby
endangering the secrecy of the Security Service which is of
paramount importance. Any person who joins the Security Service
knows that no official defence or explanation can be given. He
accepts that accusations may be made and circulated abroad and
that rumours may reach individuals in this country. But he relies
on the Attorney General, acting in the public interest, to seek to
– 18 –
prevent the mass circulation of accusations and attributions and
insinuations in this country and to prevent so far as possible the
revelation of Security Service activities. And he relies on the
courts acting within their jurisdiction to prevent mass circulation
of secret and confidential information in this country if the courts
consider that such protection is necessary. The hundreds of pages
of Spycatcher which embellish but cannot improve the general
allegations already known to have been made by Mr. Wright may
include accusations, purported conversations, and unfair criticisms
which no individual member of the Secret Service can wish to be
made the subject of sensational newspaper headlines or delivered
up to the newspaper reading public. So long as there are in this
country only odd copies of Spycatcher, members of the Security
Service are substantially free from harrassment. But once mass
circulation takes place in newspapers and particularly once The
Sunday Times publishes Spycatcher in serial form, then members of
the Security Service will be liable to be harrassed with accusations
to which they cannot respond. The publication in this country of
Spycatcher will thus cause grievous harm to individuals and deal a
blow to the morale of the Security Service. The British public
will lose confidence in the Security Service. Our friends will be
dismayed and our enemies will rejoice at the failure of the British
to protect the Security Service from calumny reported in the
British press. Whatever may happen abroad it must be harmful to
the Security Service and contrary to the public interest for Mr.
Wright to be allowed to attack the Security Service in this country
by revealing or pretending to reveal information which he is
forbidden to reveal by law and loyalty. There is a great
difference between the power of the press operating through mass
circulation and the power of Mr. Wright confined to the export to
this country of individual copies of Spycatcher.
I reject the argument that the law will appear ridiculous if
it imposes a restriction on mass circulation when any individual
member of the public may obtain a copy of Spycatcher from
abroad. The court cannot exceed its territorial jurisdiction but the
court can prevent the harm which will result from mass circulation
within its own jurisdiction and can prevent Mr. Wright and British
newspapers from profiting from the unlawfal conduct of Mr.
Wright. It is said that the same result could be achieved by an
order on Mr. Wright and the newspapers to account to the
Attorney General for any profits they will make from Spycatcher.
The public interest does not lie in making profits but in preventing
profits being made in this country from treachery to this country.
In my opinion, therefore, the injunctions are necessary in
terms of the Convention because harm will be caused to the
Security Service if the press insist on disclosing to their readers
not the general nature of Mr. Wright’s uncorroborated allegations
but the mass circumstantial hearsay contained in Spycatcher
relating to the Security Service and its activities.
The second reason which makes it necessary to continue
restrictions on the press lies in the fact that if the injunctions are
discharged in the present case an immutable precedent will have
been created. If the injunctions are discharged it must follow that
any disgruntled public servant or holder of secret or confidential
information relating to the Security Service can achieve mass
circulation in this country of damaging truths and falsehoods by
– 19 –
the device of prior publication anywhere else abroad. Nothing will
ever again be confidential save the identity of a source whom a
newspaper wishes to conceal. If the Millett injunctions were
discharged, Mr. Wright could write to the Washington Post making
a serious new allegation or bolstering up old allegations citing
names and actions and purporting to give chapter and verse. Once
the Washington Post had entertained an American audience with
these revelations, then the products of Mr. Wright’s recollections
and imaginations could be plastered across the British press. I
reject the allegation that the press are being gagged or censored
or submitted to Soviet discipline. The Millett injunctions were not
imposed by the Government, the injunctions were imposed and are
being continued by independent and impartial judges because they
consider that despite the importance of the right of freedom of
expression it is necessary in the national interest to prevent the
Security Service being harmed now and in the future. The
imposition of restraints on the press in the exercise of a judicial
discretion in conformity with the Convention is an expression and
not a negation of democracy in action.
There is a third and final reason why the restraints imposed
in the present case satisfy the tests of the Convention. All the
newspaper reports between the 27 April and 14 July 1987 were
contrary to the object and purpose of the Millett injunctions.
Those reports originated with Mr. Wright and his publishers abroad
and were intended to bring pressure on the English courts to allow
Spycatcher to be published here. The Millett injunctions cannot
now be discharged without surrendering to the press an
untrammelled, arbitrary and irresponsible power to evade an order
of the court designed for the safety of the realm to protect the
confidentiality of information obtained by a member of the Secret
Service.
Finally, I must refer to one proviso to the Millett
injunctions which was deleted by the order of your Lordships’
House on 30 July. The proviso was in these terms:
“(2) No breach of this order shall be constituted by the
disclosure or publication of any material disclosed in open
court in the Supreme Court of New South Wales unless
prohibited by the judge there sitting or which after the trial
in action No. 4382 of 1985 is not prohibited from
publication.”
When Millett J. made that proviso in the interests of The
Guardian and The Observer it would not have occurred to him that
other newspapers would subsequently publish extracts from
Spycatcher. It is very likely that in the course of the proceedings
in New South Wales long extracts from Spycatcher have been read
in open court. The Sunday Times has demonstrated that it is
prepared to go to any lengths to publish extracts from Spycatcher.
The order of this House prohibiting inter alia the publication of
extracts from Spycatcher in this country was made on Thursday,
30 July. It was quite possible that if the proviso had not been
deleted then on Sunday, 2 August, The Sunday Times would have
published long extracts from Spycatcher explaining that these had
been read in open court in New South Wales. Indeed, when
deletion of the proviso was discussed, counsel for The Sunday
Times very properly and prudently asked whether, if the proviso
– 20 –
were deleted, The Sunday Times would be forbidden from
publishing extracts from Spycatcher which had been read out in
open court, and he was informed that such was the object and
intent of the order proposed and made by this House.
At the conclusion of the hearing of this appeal I was
satisfied that it was the duty of this House in its judicial capacity
to stand firm in order to prevent harm to the Security Service, to
preserve the right and duty of the court to uphold within the
jurisdiction the secrecy of the Security Service when necessary and
to ensure that the object and intent of orders made by the court
are not flouted.
Since writing this speech I have read in draft the speeches
to be delivered by my colleagues. I agree with the observations
of Lord Brandon of Oakbrook and Lord Ackner. I agree with Lord
Oliver of Aylmerton that this is a uniquely difficult case but for
the reasons I have set out I am unable to agree with the
conclusions reached by my noble and learned friends, Lord Bridge
of Harwich and Lord Oliver of Aylmerton.
LORD ACKNER
My Lords,
At the conclusion of his able address on behalf of The
Sunday Times, Mr. Anthony Lester Q.C. said “this case cries out
for a sense of proportion.” It became sadly apparent immediately
after the announcement of the decision of your Lordships’ House
on 30 July that this most sensible crie de coeur went totally
unheeded by the entire media. This, despite the fact, that it was
clearly announced that the reasons for the decision would be given,
but not immediately, because some of your Lordships have long
standing commitments overseas.
The first step towards a balanced appreciation of the
problem which your Lordships are asked to solve, is to set out
those facts and propositions which either are not in dispute, or are
indisputable, so that there may be built on common ground a firm
foundation upon which valid contentions and arguments can be
constructed. I hope that but a tithe of the publicity given to the
ill-informed criticisms of the majority decision of your Lordships’
House is now accorded to the basis and the reasons given for that
decision. If so, I believe that it will then be readily appreciated
by the public that the temporary, and I stress temporary, remedy
given to safeguard the efficiency of our National Security Service
was, after paying all proper regard to safeguarding freedom of
speech, rightly preferred to satisfying immediately the desire of
the newspaper appellants to increase their circulation by publishing
on a massive scale, material emanating from Mr. Wright, in
flagrant breach of his obligations as a former senior officer in the
British Security Service.
First I shall state under appropriate headings that which for
all practical purposes is not in dispute. I apologise for the
frequent underlining but emphasis sometimes helps to clear up
misunderstandings. Significantly, the most important of the factors
– 21 –
to which I will refer are to be found recorded with characteristic
clarity in the transcript of the judgment of Sir Nicolas Browne-
Wilkinson, the learned Vice-Chancellor, given on 15 July 1987. For
it is upon this very judgment that the appellant newspapers place
such a total and uncritical reliance.
1. Mr. Wright’s employment and his fundamental obligation
owed to the Crown not to disclose confidential information
Mr. Wright was employed for many years in a senior
capacity by the British Security Services. During the course of his
employment he had access to highly classified information. That
employment imposed an absolutely crucial obligation upon Mr.
Wright to keep that information confidential and not to publish it
in any manner without the authority of the Crown. This is beyond
dispute. The proceedings brought by the Crown in Australia, to
which I will make but brief reference hereafter, were based on
breaches of this duty of confidentiality. That such a duty of
confidentiality existed has been admitted at all times by all
concerned (per the Vice-Chancellor at p. 1G to H).
2. Mr. Wright’s breach of duty
Mr. Wright retired on 31 January 1976. After his
retirement he publicly announced that he had submitted a
memorandum to the Chairman of a Select Committee of the House
of Commons alleging penetration of the Security Service by foreign
agents and calling for an inquiry. Being dissatisfied that no
inquiry was held he decided, so he alleges, to disclose the relevant
material in his memoirs, together with allegations of unlawful
conduct on the part of members of the Security Service over the
years. It was accepted by the Vice-Chancellor, and at no stage
has the contrary been suggested to your Lordships, that Mr. Wright
has committed a most serious breach of his duty of confidentiality
(see p. IF of the transcript of the Vice-Chancellor’s judgment). It
has, therefore, at all times been conceded that if Mr. Wright,
instead of emigrating to Australia, had sought to publish his book
in this country, both he and his publishers would immediately have
been restrained by injunctions. Furthermore, Mr. Wright would,
prima facie, have committed serious breaches of the Official
Secrets Acts and the reasonable assumption is that he would have
been prosecuted.
3. The Australian Proceedings
The British courts do not have jurisdiction beyond their
shores. Every sovereign nation jealously guards its own
jurisdiction. The inability of the English courts to supply a
remedy by granting an injunction or other relief against Mr. Wright
is not a weakness for which the courts can be blamed.
Accordingly, when Mr. Wright emigrated to Australia and sought to
publish his book, all that the Crown could do was to seek an
injunction in the courts of Australia, in particular in the courts of
New South Wales. As the Vice-Chancellor pointed out at p. 24C,
it was no fault of the Crown that Mr. Wright’s book came into
the public domain (I would prefer the phrase “received the
publicity”) in Australia to the extent it has. The Vice-Chancellor
accepted that the Crown had done everything that it thought itself
able to do to stop publication worldwide of the memoirs (p. 24C).
Indeed, at the conclusion of his judgment the Vice-Chancellor said:
– 22 –
“I do not in any sense criticise, even if it were my job, the
seriousness with which the Government has pursued this
case.”
4. The arguable point of law
The Vice-Chancellor, having considered at some length the
authorities, concluded that there was an arguable point of law
available to the Attorney General, “a novel and difficult point of
law” as he described it, to justify a claim for a permanent
injunction at trial, notwithstanding the publication of Spycatcher in
America. The Attorney General had submitted to the Vice-
Chancellor that where information has been impressed with a duty
of confidentiality, and somebody acquires such information knowing
that it was so communicated originally, then the person acquiring
that information with that knowledge, himself comes under a duty
not to disclose it further. That duty exists whether or not the
information is otherwise in the public sphere. This view had the
clear support of the Court of Appeal including in particular that
of Nourse L.J. with his special knowledge of the courts’ equitable
jurisdiction. Significantly, the Law Commission in their Report on
the Law of Breach of Confidence in 1981 (Cmnd. Paper 8388), in
stating their understanding of the existing law, said in paragraph
4.11:
“The third party is liable to be restrained from disclosing or
using information which he knows, or it would seem, he
ought to know, was subject to an obligation of confidence.”
It is, of course, incontrovertible that the entire media, including in
particular the appellant newspapers, well know that Mr. Wright’s
information, which they are so anxious to publish, is confidential
information and that his publication of it has been a flagrant
breach of his obligation of confidentiality. Mr. Gray Q.C., to
whose excellent address I would wish to pay tribute, without in
any way conceding that the Attorney General would ultimately
succeed in establishing a good cause of action, accepted that the
Attorney General had a good arguable point of law in his favour
and indeed this had been accepted in the Court of Appeal. I
understood and still understand all your Lordships are prepared to
accept the Vice-Chancellor’s conclusion on this point. It would, in
my opinion, be quite wrong to seek finally to decide the validity
of this point on a 48-hour notice emergency interlocutory appeal
to your Lordships’ House, where it was never contemplated that
the contrary would be argued and where we have not had the
benefit of the opinions of the Court of Appeal.
5. The remedy available to the Crown
It has throughout these proceedings been accepted, and the
Vice-Chancellor so stated in terms, that an award of damages
would be an ineffective and inappropriate remedy for the Attorney
General. An injunction is the only thing that is any good to him
(see p. 22G). This is so crystal clear, that the proposition requires
no further exposition. However, as I will shortly seek to show,
this agreed fact is of such fundamental importance and the public
has been subjected to such confused reporting, that I feel obliged
to stress it. If the mass publication which is now sought is
– 23 –
permitted before the trial of the action in which the validity of
the Attorney General’s case is to be put to the test, then there
would be no point or purpose in such a trial. The Attorney
General would have lost his remedy before the court was able to
hear his case.
6. The Crown’s claim is for an interlocutory injunction
While it is accepted that the refusal now to grant to the
Crown an injunction pending trial will render it totally futile for
the Crown thereafter to seek to establish that it has a claim in
law for a permanent injunction, the grant to the Crown of an
injunction pending the trial will not render futile the newspapers’
continued claim to publish. This was accepted by the Vice-
Chancellor who said:
” . . . It is right to bear in mind that the allegations made
by Mr. Wright in Spycatcher are in a number of respects
‘old hat.’ They have been bandied around, some would think
ad nauseam, in Mr. Chapman Pincher’s book and in
subsequent articles. There is nothing very new apparently
about them. There is nothing urgent about them, in the
sense that they are of recent events.” (See p. 24B).
Whether the Crown has valid cause of action, raises essentially a
question of law, which can be (and indeed could have been)
determined by a speedy trial at first instance, and then in the
appellate courts, if the initial decision is not accepted. If the
Crown fails to establish a good cause of action, the time thus
spent will add little to the existing staleness which by now
characterises Mr. Wright’s assertions. The right of the press to
publish and the public to know, on that hypothesis, will not have
been totally frustrated, but only delayed. The cause of free
speech will not have suffered. It will, on this assumption, have
triumphed.
7. The public interest factor
This case involves an entirely new and highly significant
factor which is of the greatest relevance to the exercise of the
courts discretion in considering whether to grant or refuse an
injunction pending trial. Both Millett J., in granting the original
injunction, and the Vice-Chancellor, in discharging it, preceded on
the same principle which I understand your Lordships accept, that
when there is a conflict between the public interest of preserving
confidentiality and some other public interest, then the court
should favour the preservation of confidentiality, unless that other
public interest outweighs it. But in this case there is more than
the public interest of preserving confidentiality. Here, unlike the
not infrequent case where a company wishes to prevent, to its
financial detriment, the publication of its trade secrets, there is
the following additional public interest factor accepted by the
Vice-Chancellor and stated in these words:
“There remains what Mr. Mummery urges is the remaining
public interest, namely, to prevent general dissemination of
the contents of this book through the press within the
United Kingdom so that by discouraging general
dissemination those who are tempted to follow Mr. Wright’s
– 24 –
example in the future and write their memoirs hot from the
Security Service will not find it such a satisfactory or
profitable business.” (see p. 25E to F).
The Vice-Chancellor then gave his assessment of the significance
of this public interest. He said:
“I think there is force in that. I think that the ability to
restrain the unauthorised use of confidential memoirs by
those who do not mind abusing their confidence, so as to
discourage others from doing it, is a real point. I do not
think it can be just swept aside.” (see p. 24H to 25A).
(emphasis added)
The Vice-Chancellor then accepted that the United Kingdom is
likely to be the best market for anybody writing these memoirs
and to discourage the use of that market would be a
discouragement indeed.
Again, I must emphasise, that the existence of this public
interest factor, as accepted by the Vice-Chancellor and which I
shall further particularise, is not challenged by the newspapers and
its existence is, I understand, fully accepted by all your Lordships.
8. The basis of the Vice-Chancellor’s decision
The Vice-Chancellor accepted in terms that to permit
publication would be to admit that our courts were unable to
safeguard secrets of great public importance. He added:
“And let nobody underestimate how important these secrets
are. There seems to have been a temptation to treat this
case as an unreasonable pursuit by the Government of
unreasonable ends. This is not a view I share. The
revelation of secrets of a security agent, it seems to me,
are highly important and highly undesirable. I, therefore,
think it is most regrettable, if it proves to be the case,
that there is no way in which the court can preserve that
confidentiality.” (see p. 25A to B).
This, no doubt, accounted for the Vice-Chancellor reaching his
decision with “considerable hesitation,” adding that he believed “the
matter to be quite nicely weighted and in no sense obvious.”
The basis of the Vice-Chancellor’s reluctant decision can be
simply stated. He accepted and the contrary has not been argued
before us, that Millett J.’s order granting the original injunction in
July 1986 later upheld by the Court of Appeal was correct, but he
considered that there had been a material change in the
circumstances and that this change rendered it futile to continue
the injunction. In his opinion to continue the restraint on
publication would serve no useful purpose and make the law look
ridiculous. In a sentence, as a result of the publication of the
book in America, and the accepted impracticability of preventing
the importation of the book into this country, Mr. Wright had
“got away with it” altogether, with the result that the courts are
now impotent, even to limit the damage which he has done.
– 25 –
Having set out in some detail what is or must be treated as
common ground, I can, on the conventional approach to this
appeal, state my reasons quite shortly, since, as I understand it,
all your Lordships accept:
-
-
-
That the Attorney General has an arguable case for a
permanent injunction. -
That damages are a worthless remedy for the Crown
and, if the interlocutory injunction is not continued,
the Crown loses here, now and forever the prospect
of achieving a permanent injunction, which it might
well obtain if a trial were to take place. -
That by contrast to 2 above, the continuance of the
interlocutory injunction is not, as the Vice-Chancellor
accepted, “a final locking out of the press”. If
successful in the action, the press will then be able
to publish the material which has no present urgency.
-
-
4. That there is, as described by the Vice-Chancellor a
real public interest concerned with the efficient
functioning of the Security Service and that interest
requires protection.
It must then follow that it would be a denial of justice to
refuse to allow the injunction to be continued until the action is
heard. To refuse to continue the interlocutory injunction would
bring about the very result that the Vice-Chancellor said should be
avoided, namely the “sweeping aside” of the public interest factor
without any trial. The Attorney General would thus have been
prematurely and permanently denied any protection from the
courts. It would be established without trial and for all time, that
by the simple expedient of going abroad, arranging for publication
in the press, in a country, such as the United States, where there
is no remedy by way of injunction, the courts in this country then
become incapable of exercising their well established jurisdiction.
Your Lordships would have established a “Charter for Traitors” to
publish on the most massive scale in England whatever they have
managed to publish abroad.
Accordingly, with every respect to the Vice-Chancellor, his
conclusion, after carrying out the so-called “balancing operation,”
cannot be justified. Mr. Mummery for the Crown was fully
entitled to submit that there was a fatal inconsistency in the
manner in which he weighed the scales.
That is the short and simple answer to these appeals.
However, it is so short and so simple that it has been suppressed
by and submerged in the press hysteria which has greeted the
announcement of your Lordships’ orders. Although the press have
transcripts of the judgment of the Vice-Chancellor, the very
foundation upon which these appeals were based, there has been
virtually no reference to it. The press do not wish the public to
exercise a sense of proportion. The case has therefore to be
presented as open and shut, admitting of no possible argument, and
of only one decision – that favourable to the press. This one-sided
reporting is an abuse of power and a depressing reflection of
falling standards and values.
– 26 –
I do not share the Vice-Chancellor’s “considerable hesitation”
nor do I consider the case “nicely weighted.” If the Vice-
Chancellor had appreciated that the public interest factor which he
accepted had force, was a “real point” and “cannot be swept
aside,” went much further than he realised, I do not believe he
would have reached his reluctant decision. The so-called
“deterrent effect,” of preventing mass publication, is by no means
as limited as he describes. Firstly, what of Mr. Wright, if your
Lordships refused to continue these injunctions pending trial? Mr.
Lester, with characteristic frankness, suggested that if Mr. Wright,
whom he aptly described as an “information thief,” now attempted
to publish his book here, no injunction would lie against him or his
English publishers since, so he submitted, it could after the
publication in America serve no useful purpose. But “the appetite
grows with what it feeds on.” Mr. Wright’s appetite may not be
the exception. For all your Lordships know, Mr. Wright may have
produced to date only Spycatcher Mk. I, and there may be further
instalments still to come. Secondly, quite apart from deterring
Mr. Wright and other members of the Security Service, who may
in the future suffer from the same lack of loyalty, what of the
loyal members of the Service whom they leave behind? Are they,
or their families, to be totally unprotected by the Crown and left,
in so far as they still survive the attack, to the highly expensive
(there is no legal aid available) and uncertain remedy of a libel
action, which the media not only can but may positively welcome
defending? What material, if any, can they legitimately use in
their own defence, without further undermining the efficiency of
the very Service to which they wish to remain loyal?
The function of the British Secret Service is the defence of
the realm from dangers arising from acts of or attempts at
espionage, sabotage or subversion. It is axiomatic that the
efficiency of that Service is crucial. If your Lordships were to
permit, without there being any trial of this important matter, the
widest possible publication of the contents of this book within your
jurisdiction, where the best market is to be found, the prejudical
effect on the morale of the Service is bound to be considerable.
But there is yet a further and important additional prejudicial
consequence. It would be utterly unrealistic not to accept that
this would cause yet further loss of confidence of friendly
countries in the efficiency of our Service. All this is fully
supported by the affidavits of Sir Robert Armstrong and is indeed
obvious. To quote Millett J. in his judgment last year:
“It is difficult to believe that a Security Service whose
senior members were free to write their memoirs would be
taken seriously by other secret services or that Security
Services of friendly countries would willingly co-operate or
share sensitive information with such a Service.”
And I would add “and the more so if the courts of the disloyal
member stand idly by, wringing their hands, and doing nothing
within their own jurisdiction to stop mass circulation, even pending
trial.”
My Lords, English Justice will have come to a pretty pass,
if our inability to control what happens beyond our shores is to
result in total incapacity to control what happens within our very
own jurisdiction. Some 60 years ago, the then Lord Chancellor,
Lord Sankey, said:
– 27 –
“Amid the cross-currents and shifting sands of public life
the Law is like a great rock upon which a man may set his
feet and be safe …”
For the word “rock” the appellants would have your
Lordships now read “jellyfish”!
If the publication of this book in America is to have, for all
practical purposes, the effect of nullifying the jurisdiction of the
English courts to enforce compliance with the duty of confidence
both by interlocutory and by permanent injunction, then, as Mr.
Mummery ruefully observed, English law would have surrendered to
the American Constitution. There the courts, by virtue of the
First Amendment, are, I understand, powerless to control the press.
Fortunately, the press in this country is, as yet, not above the
Law, although like some other powerful organisations, they would
like that to be so, that is, until they require the Law’s protection.
My noble and learned friend, Lord Bridge, in the course of
argument asked the question which he considered to be crucial, “Is
there any irreparable harm that Mr. Wright has not done yet?” I
would answer that question with an emphatic “Yes.” The
appellants’ arguments proceed upon the basis of an obvious fallacy.
They submit that as a result of the publication of the book in
America, the existing injunctions can no longer serve any useful
purpose. It is, of course, abundantly clear that the injunctions are
no longer effective to safeguard any national secrets that the book
might contain. They are indeed “out of the bag” but from that it
does not follow that the function of the injunctions is spent. The
recent crescendo of protestations in the press proves that there is
all the difference in the world between tolerating the importation
of casual copies, as opposed to the mass circulation of the
material contained in the book, which the newspapers and the
media are so bent upon achieving.
There remain three other points with which I should deal.
These are:
(1) The European Convention of Human Rights
Mr. Lester laid great emphasis upon the provisions of
Article 10 of the European Convention dealing with the freedom of
expression. Article 10(2) provides qualifications and exceptions to
which the exercise of free expression may be made subject. They
include such conditions:
“as are prescribed by Law and are necessary in a
democratic society in the interests of National Security . . .
for the protection of the . . . rights of others, for
preventing the disclosure of information received in
confidence. . . “
Given that it is accepted that the Crown has an arguable
case for a permanent injunction, that damages are a useless
remedy; that there exists a significant public interest factor and
that your Lordships are concerned only with a pre-trial restraint
on publication, I see no prospect of the Convention availing the
appellants. Indeed I adopt all my learned and noble friend, Lord
– 28 –
Templeman, has said in his closely reasoned judgment as to the
relevance and applicablity of Article 10, and I fully support the
conclusion at which he, unlike my noble and learned friend, Lord
Bridge of Harwich, arrives.
(2) The Financial Remedy
The suggestion has been made that the only true remedy in
a situation such as Mr. Wright’s is, to quote a phrase used in the
judgment of the American case of Snepp v. United States [1980]
444 U.S. 507, that Mr. Wright (and I assume also his publishers),
should be required “to disgorge the benefits of his faithlessness.”
Translated into more conventional forensic language, I understand
this to mean that there should be an action for an account of the
profits which he and his publishers have made, payment thereof to
the Crown, together with exemplary damages on some undefined
basis. There are at least three answers to the suggestion that this
would be an adequate remedy. Firstly, your Lordships know not
whether such a remedy can be obtained in Australia or Canada or
elsewhere where this book may be published, with the possible
exception of America. Secondly, the practical problems of
enforceability may indeed be very great, particularly in cases
where the author has spent his profits and the publishers have
disposed of them in some way or another. However, most
important of all, profit may not have been the motivation for the
publication. An ex-employee of the Service may be embittered or
unbalanced, may publish his memoirs out of spite to embarrass his
superiors; to mount some eccentric campaign or publish for any
number of other reasons. With all respect to the ingenuity behind
the argument of a financial remedy, I must confess that it left me
quite unimpressed.
(3) The removal of the proviso in Millett J.’s order relative to
material disclosed in the Australian Courts
This proviso read as follows:
“No breach of this order shall be constituted by the
disclosure or publication of any material disclosed in open
court in the Supreme Court of New South Wales unless
prohibited by the judge there sitting or which after the trial
therein in action No. 4382 of 1935 is not prohibited by
publication.”
When the matter came before the Court of Appeal last
month as a result of the Vice-Chancellor discharging the injuctions,
the Court of Appeal, of its own motion, deleted the second half of
that proviso, that is to say, the words “or which after the trial
there in action No. 4382 of 1985 is not prohibited from
publication.”
The Master of the Rolls, in giving his judgment said:
“If it be held that the law of Australia does not prevent
publication by or on behalf of Mr. Wright in that
Commonwealth, the position there will be the same as it
appears to be in the United States and it is not clear to me
why such a conclusion should be treated as decisive of quite
a different issue, namely whether as a matter of English
– 29 –
Law Mr. Wright, or anyone else within the jurisdiction,
should be permitted to profit from the exploitation of the
United Kingdom market for Wright material. Certainly this
should not be an automatic consequence and the newspapers
and anybody else affected by the injunction should be free
to apply to the court for a modification of the injunction
after the Australian proceedings are concluded, if they
consider the result of those proceedings to be material.”
I entirely agree with those observations. Mr. Mummery,
initially in the course of the hearing of the appeals did not seek
to support that part of the order of the Court of Appeal.
However, when it was pointed out to him that if your Lordships
were minded to approve the continuation of the injunctions pending
trial, such orders could be automatically frustrated if the Crown
failed before the Court of Appeal of New South Wales, and failed
to obtain any prohibition on publication in Australia pending appeal
to the High Court, Mr. Mummery then sought to support its
deletion. Mr. Gray and Mr. Lester fairly conceded the logic of
the Master of the Rolls and I need spend no further time on that
part of the proviso.
However, when your Lordships were considering the orders
which should be made in the event of the appeals being dismissed,
it occurred to the majority of your Lordships that the first half of
the proviso should also be deleted. As my noble and learned
friend, Lord Templeman, has demonstrated by his detailed
references to the dates of the relevant events, there has been an
orchestrated and sustained attempt to achieve a situation from
which the courts would be powerless to excercise their undoubted
jurisdiction to prevent or even limit these serious breaches of
confidentiality and the resultant prejudice to the efficiency of the
British Security Service.
It has required no imagination to anticipate the resentment
which the newspapers and, indeed, the entire media, would feel
and vociferously express, if we ultimately imposed a restraint on
publication, albeit a temporary restraint. Moreover, it is a fact of
life, however regrettable, that there are elements in the press as
a whole which not only lack responsibility, but integrity. A very
recent civil action has provided a glaring example. It would have
been absurd and naive of your Lordships not to have appreciated
that every attempt would inevitably have been made to frustrate
your Lordships’ orders. The “antic disposition” of the press and
the media following the announcement of the orders, establishes
this fully. The first part of the proviso supplied a potential
loophole which might somehow, by hook or by crook, have been
used by such elements to nullify the temporary damage limitation
operation which the majority of us thought essential. This risk
fully justified our taking this most unusual course in this wholly
unique situation
Conclusion
-
-
-
Your Lordships indisputably have the power to continue
these temporary restraining orders. -
The public interest in maintaining the efficiency of the
National Security Service, upon which the safety of this realm is
dependent, requires your Lordships to exercise that jurisdiction.
-
-
– 30 –
(3) To abdicate that responsibility in the face of pressure
from the press and media would be a serious defeat both for the
independence of the judiciary and for the Rule of Law.
LORD OLIVER OF AYLMERTON
My Lords,
Prior to his finally leaving the service of the Crown in 1976
Mr. Peter Wright occupied a number of senior positions in the
counter-espionage branch of the British Security Service. His
appointment to those positions involved, beyond argument, an
obligation to preserve the secrecy and confidentiality of
information coming to his knowledge in the course of his duties.
For motives which have not been explored and which are, in any
event, immaterial, Mr. Wright, having retired and taken up
residence in Australia, set about writing and arranging for the
publication of his memoirs. He has written a book in which he
deploys a great deal of information about the operation of the
Service to which he formerly belonged. It may be that some or
all of it is speculative or imaginary. I do not know. But we
must, for present purposes, accept his own assessment of it and
the book purports to be his truthful recollection of events in which
he participated in the course of his duties or which came to his
knowledge by virtue of his confidential position. There could
hardly be a clearer or more flagrant breach of Mr. Wright’s
obligation of confidentiality.
In September 1985 Her Majesty’s Attorney General caused
proceedings to be instituted in the Supreme Court of New South
Wales against both Mr. Wright and the company, Heinemann
Publishers Australia Pty. Ltd., which was proposing to publish his
manuscript, claiming an injunction against the disclosure and
publication of confidential material. Those proceedings, which
culminated in a trial at which the Attorney General’s claim was
dismissed, received considerable publicity both in Australia and in
the United Kingdom. An appeal against the decision of the trial
judge is currently being heard and undertakings by the defendants
not to publish the memoirs in Australia have been given to
preserve the position pending the hearing of the appeal.
In June 1986 The Observer and Guardian newspapers
published an outline of some allegations contained in the memoirs
which, so it was said, were going to be canvassed in the
Australian proceedings. On the 27 June 1986 the Attorney General
commenced proceedings against both newspapers and obtained ex
parte injunctions against further publication of information derived
from Mr. Wright in his capacity as a member of the Security
Service or information in or excerpts from his as yet unpublished
memoirs. Applications to vary or discharge those injunctions were
heard by Millett J. on 11 July 1986 when the injunctions were
continued until trial or further order in a modified form. The
newspapers appealed to the Court of Appeal which, on 25 July
1986, affirmed the order of Millett J. with the addition of a
proviso preserving the right of the defendants to publish fair and
accurate reports of proceedings in Parliament or in a court in the
United Kingdom sitting in public.
– 31 –
Millett J.’s order was, so far as material, in the following
terms: it restrained the defendants until judgment in the action or
further order in the meantime from:
“(1) Disclosing or publishing or causing or permitting to be
disclosed or published to any person any information
obtained by Peter Maurice Wright in his capacity as a
member of the British Security Service and which
they know, or have reasonable grounds to believe to
have come or have been obtained whether directly or
indirectly from the said Peter Maurice Wright.
(2) Attributing in any disclosure or publication made by
them to any person any information concerning the
British Security Service to the said Peter Maurice
Wright whether by name or otherwise provided that
(1) this Order shall not prohibit direct quotation of
attributions to Peter Maurice Wright already made by
Mr. Chapman Pincher in published works or in a
television programme or programmes broadcast by
Granada Television; (2) no breach of this Order shall
be constituted by the disclosure or publication of any
material disclosed in Open Court in the Supreme
Court of New South Wales unless prohibited by the
Judge there sitting or which, after the trial there in
action no. 3582 of 1985, is not prohibited from
publication.”
The order reserved liberty to apply to vary or discharge on 24
hours notice.
The issues and the circumstances in which they arose were
fully analysed by Millett J. in the course of a careful and
admirable judgment. At that time, although many of the
allegations which, it was understood, Mr. Wright was making had
been publicly ventilated before in the press, on television and in
books published by others (in one of which Mr. Wright was said to
have collaborated), the full part played or said to have been
played by him had not been publicly proclaimed. It was known
that he had been a member of the Security Service and it was
known that he was, regrettably, seeking to publish his memoirs in
breach of his duty. What was not publicly known was the extent
to which Mr. Wright was proposing to flesh out the skeleton of
what was already public knowledge or to corroborate previously
canvassed allegations from his own personal experience and
knowledge. As Millett J. expressed it: “The objection is not to
the allegations themselves, but to Mr. Wright’s input.” “The
concern is not with what Mr. Wright says, but with the fact that
it is a former senior officer of the Security Service who says it.”
What was new about Mr. Wright was, first, that here was a former
member of the Security Service seeking to publish his memoirs
without prior authority and, secondly, that the insight which that
publication would give into the working of the Service would,
because of his position, carry a spurious stamp of authenticity.
Although it was said that Mr. Wright had had access to classified
information of the highest sensitivity it was not suggested that
such information was disclosed by the proposed book. But, as was
pointed out by Sir Robert Armstrong in his second affidavit sworn
– 32 –
in the Australian action, even unclassified and, on its face,
innocuous information may take on a wider significance when
combined with other information in the possession of those whose
interests are inimical to those of this country. The damage likely
to flow from the publication of the memoirs was summarised by
Sir Robert in paragraph 10 of his first affidavit sworn in those
proceedings as follows:
“The publication of any narrative prepared or contributed to
by [Mr. Wright] which is based upon information available to
him as a senior member of the British Security Service
would be likely to cause unquantifiable damage by reason of
the disclosures involved. Additionally, it will clearly damage
the work of the British Security Service and thereby the
national security of the United Kingdom in the following
further respects:
“(a) The Intelligence and Security Services of
friendly foreign countries with which the British
Security Service is in liaison would be likely to
lose confidence in its ability to protect
classified information;
(b) The British Security Service depends upon the
confidence and co-operation of other
organisations and persons. That confidence
would suffer serious damage should [Mr. Wright]
reveal information of the nature described
above;
(c) There would be a risk that other persons who
are or have been employed in the British
Security Service who have had access to similar
information might seek to publish it.”
It was substantially upon this evidence that Millett J. relied
in reaching the conclusion that he ought to continue the ex parte
injunction granted against the defendants albeit in a somewhat
modified form. It was a conclusion which he reached after a most
careful balancing of the interests both of the plaintiff and of the
public in preserving confidentiality and those of the defendants in
the free dissemination of information and comment upon matters
which were, quite clearly, of grave public concern. One
consideration which clearly weighed heavily in the Attorney
General’s favour was, to quote the judge’s words, that:
“The refusal of injunctive relief would permit indirect
publication and effectively and permanently deprive the
Attorney General of his rights in advance of trial.”
At the same time, Millett J. was careful to ensure that the
injunction should not go beyond the strict requirements of the
interests which they were designed to safeguard; in particular he
added the proviso as regards publication in Australia which has
formed the subject-matter of debate before your Lordships. He
did so in these terms:
“I should also add a proviso so that the defendants may be
at liberty to publish matters disclosed in open court in the
– 33 –
proceedings in Australia, or which after the trial there are
not prohibited from publication. This is not because I
consider that the court should simply follow what is decided
in Australia, but because I see no reason why these
defendants should be discriminated against by being denied
the right to publish information which in the circumstances
every other newspaper in the world will be free to publish,
including English newspapers and foreign newspapers
circulating in England. Mr. Laws submitted that this was a
future matter which could properly be dealt with under the
liberty to apply. I disagree. In the newspaper world time
is of the essence, and should the Crown’s attempts to
safeguard what it conceives to be the legitimate interests of
the Security Service fail, the court should not uselessly put
the defendants at a disadvantage when compared with their
competitors.”
My Lords, in common with all your Lordships, I entertain no
doubt whatever that Millett J.’s order, in the circumstances which
existed at that time, was entirely correct. But it is, in the light
of the arguments ventilated before your Lordships on this appeal,
essential to bear in mind the circumstances in which it was made,
the purpose for which it was made and the limitations which the
judge thought it right to impose upon its operation. Mr. Wright’s
allegations had not then been published in any part of the world
and their publication was inhibited pending trial in the only
country in which publication was then threatened. The damage
apprehended by the Attorney General was, therefore, capable of
being contained, at least temporarily, so long as general
publication could be prevented.
A little over a year has passed since those injunctions were
granted. During that time, the action in Australia has been tried
and has received wide and perfectly proper publicity both in this
country and elsewhere. Such of the allegations of Mr. Wright as
have emerged in the course of proceedings in open court in New
South Wales and the fact that at least some of the material dealt
with in the memoirs has already been permitted to be published
without objection or hindrance and the reason why that has
occurred, have been, again quite properly, the subject-matter of
public interest and debate. In April 1987 an English newspaper,
The Independent, which was not directly inhibited by any order of
the court, published a summary of the allegations made by Mr.
Wright including a number of what purported at any rate to be the
verbatim quotations from the manuscript text of the proposed book
(by that time referred to the name Spycatcher under which it has
subsequently been published.) Parts of The Independent report
were, on the same day, published by the London Evening Standard
and the London Daily News and were referred to in television and
radio news bulletins. Almost immediately afterwards further
disclosure of the material in Spycatcher was displayed in articles
in the Melbourne Age and The Canberra Times in Australia. On 3
May 1987 the Washington Post, which enjoys no doubt a very
limited circulation in the United Kingdom but which is obtainable
at some newsagents in London and, I imagine, in other major cities
and airports, published a major article regarding the contents of
Spycatcher.
– 34 –
In the light of the fact that many, if not all, of Mr.
Wright’s allegations had, for good or ill, achieved a notoriety far
beyond anything that existed at the date of the original injunctions
against the appellants, they moved the court for an order to vary
or discharge the injunctions and that came before the Vice-
Chancellor on 7 May 1987. In the meantime, however, the
Attorney General had moved to commit the editor of The
Independent and to sequestrate that newspaper’s assets for
contempt of court in publishing the summary of the contents of
Spycatcher in its article on 27 April. Accordingly the hearing of
the appellant’s application to discharge was stood over until after
the hearing of the contempt motion. Judgment on that motion
was given by the Vice-Chancellor on 2 June when he dismissed the
motion. The Attorney General immediately appealed to the Court
of Appeal and the appellants’ restored application for discharge
was further stood over until after the hearing of that appeal. In
the meantime, three events occurred. First, on 14 May an
American publisher, Viking Penguin Incorporated, a subsidiary of an
English company, announced that it was proposing to publish
Spycatcher in the United States. It is and was clear that any
proceedings by the Attorney General to prevent publication in the
courts of the United States were foredoomed to failure as a
matter of law and the English parent company was resistant to
suggestions that it should seek to prevent its United States
subsidiary from proceeding with the publication. Secondly, on 12
July, The Sunday Times, which was, like The Independent, not then
directly enjoined from publication, published the first of what were
intended to be several instalments of the serialisation of extensive
extracts from the book itself. That publication was timed to
coincide with the third event, that is to say, the first publication
of the book in the United States, which took place on 14 July.
On that day, with extensive publicity, the book was put on sale in
major bookshops throughout the United States, including, perhaps
not surprisingly, bookstalls at Kennedy Airport. The evidence is
that it has moved into the bestseller class and is being reprinted.
It is now notorious that not wholly insubstantial quantities have
been and are being imported into the United Kingdom and are on
sale here, though not, I think, through the normal book distribution
network. It has been announced that the Government has decided
not to take steps to prevent such imports, on the ground that to
do so would be unworkable and ineffective. The books can thus be
freely obtained here or can be ordered by telephone from the
United States by any member of the public sufficiently interested
to do so.
On 15 July the Court of Appeal allowed the appeal against
the Vice-Chancellor’s dismissal of the contempt motion against The
Independent, holding (in reasons given two days later) that, without
deciding that the publication complained of actually constituted a
contempt, it was capable of doing so if the necessary intent could
be proved. On 16 July the Vice-Chancellor granted an injunction
restraining The Sunday Times from publishing the remaining
instalments of its threatened serialisation.
It was against this background that the substantive hearing
of the appellants’ application for the discharge of the original
injunctions against them took place on 15 July. In a long and
careful extemporary judgment, the Vice-Chancellor, having
reviewed the facts and the authorities, concluded that there had
– 35 –
been a most material change of circumstances since the grant of
the original injunctions but that he ought still to assume that
there remained an arguable case in favour of the grant of
permanent injunctions at trial. Accordingly, he approached the
case as one to which the ordinary American Cyanamid principles
applied. Having most carefully balanced the factors for and
against continuing the injunctions he reached the conclusion that
the balance lay in favour of the appellants and accordingly ordered
that the injunctions be discharged. From that decision the
Attorney General appealed to the Court of Appeal which, on 24
July, reversed the Vice-Chancellor but substituted for the original
injunctions new injunctions prohibiting the publication of any
extract from Spycatcher or of any statement by Mr. Wright
concerning the British or any other Security Service but with a
proviso that the order should not prevent “the publication of a
summary in very general terms of the allegations made by Mr.
Wright.” This was something for which neither side had asked and
neither side has sought to support it before your Lordships. It is,
if I may say so with respect to the Court of Appeal, manifestly
unsatisfactory. What the Attorney General seeks to restrain are
not the ipsissima verba of Mr. Wright, as if these were actions for
infringement of copyright, but the substance of the allegations
which he has made in breach of his duty of confidence and against
which the substituted injunctions provide substantially no
protection. What the appellants wish to be free to do is to
publicise and comment upon those allegations and a liberty to do
so only in “very general terms” would be calculated to leave any
newspaper editor in a state of bewilderment with no certain guide
as to what are “general terms” and how general is “very general.”
It is clear that the Court of Appeal, faced with the stark choice
of all or nothing – a choice which has been reiterated before your
Lordships – conceived this formula as a via media and that they
regarded the Vice-Chancellor as having erred in perceiving that all
or nothing was the only choice with which he was faced. Lord
Justice Gibson indeed indicated that, faced with that choice, he
would have upheld the conclusion that the injunctions must be
discharged. I mention this because it seems to be to dispose of
any suggestion that in reaching the conclusion that he did, the
Vice-Chancellor was so plainly wrong that an appellate court is at
liberty without more to substitute its own discretion. There must
be borne in mind always the limited function of an appellate
tribunal in an appeal against the exercise of a judicial discretion
and I remind myself of the cautionary words of Lord Diplock in
Hadmore Productions v. Hamilton [1983] 1 A.C. 191 at p. 220:
“An interlocutory injunction is a discretionary relief and the
discretion whether or not to grant it is vested in the High
Court judge by whom the application for it is heard. Upon
a appeal from the judge’s grant or refusal of an
interlocutory injunction the function of an appellate court,
whether it be the Court of Appeal or your Lordships’ House,
is not to exercise an independent discretion of its own. It
must defer to the judge’s exercise of his discretion and
must not interfere with it merely upon the ground that the
members of the appellate court would have exercised the
discretion differently. The function of the appellate court
is initially one of review only. It may set aside the judge’s
exercise of his discretion on the ground that it was based
upon a misunderstanding of the law or of evidence before
– 36 –
him or upon an inference that particular facts existed or did
not exist, which, although it was one which might
legitimately have been drawn upon the evidence that was
before the judge, can be demonstrated to be wrong by
further evidence that has become available by the time of
the appeal; or upon the ground that there has been a change
of circumstances after the judge made his order that would
have justified his acceding to an application to vary it.
Since reasons given by judges for granting or refusing
interlocutory injunctions may sometimes be sketchy there
may also be occasions where even though no erroneous
assumption of law or fact can be identified the judge’s
decision to grant or refuse the injunction is so aberrant that
it must be set aside upon the ground that no reasonable
judge regardful of his duty to act judicially could have
reached it. It is only if and after the appellate court has
reached the conclusion that the judge’s exercise of his
discretion must be set aside for one or other of these
reasons, that it becomes entitled to exercise an original
discretion of its own.”
It was said in the Court of Appeal that the Vice-Chancellor
had erred in principle in two respects. First it was said that he
approached the case on the footing that he had to consider not
whether the altered circumstances warranted the discharge of the
injunctions but whether, in the altered circumstances, injunctions
should be granted de novo. For my part, I think this is a
distinction without a difference. Essentially the questions posed
are the same and I can see no error in the Vice-Chancellor’s
approach. Then it was said that he erred in principle in not
perceiving and considering the via media which the Court
propounded. Neither side seeks now to suggest that he was in
error in that respect. What is now said is that he erred in not
seeing an inconsistency between his assumption that the Attorney
General still had an arguable case for an injunction at trial and an
order discharging the existing injunction which would, in effect,
decide the issue by rendering futile the further prosecution of the
claim. But that is a choice which sometimes the court is
compelled to make. The mere fact of an arguable case – and it
is clear that the Vice-Chancellor considered it less than strongly
arguable – does not automatically entitle the plaintiff to an
injunction pending trial, particularly in a case where it is common
ground that damages would not be an adequate or appropriate
compensation for an injunction subsequently vacated. It was a
matter which the Vice-Chancellor had clearly in mind and which
he took into consideration in the careful balancing exercise in
which he engaged. The majority of your Lordships take the view
that he got the balance wrong but, for my part, I detect no error
in his approach and I would be content to decide this appeal on
the simple ground that the conclusion at which he arrived was a
proper exercise of the discretion with which he, as the judge of
first instance, was invested and one with which an appellate court
ought not to interfere. But this is an unique case – unique, as I
very much hope, in its facts and unique in its importance. It is
right, therefore, that I should state the reasons which have led me
to agree with the Vice-Chancellor, more particularly because the
majority of your Lordships consider not only that his decision was
wrong in principle but, indeed, that the injunctions should be
strengthened even beyond the terms in which they were originally
– 37 –
granted by Millett J. and beyond the terms for which the Attorney
General has asked. At the outset, there has to be borne in mind
a factor which is, in my judgment, of critical importance. The
appellants before your Lordships are The Observer and The
Guardian newspapers. The Sunday Times, which is affected by the
injunctions as a result of contempt proceedings, has appeared and
argued in support of their appeals. It may – I do not know – be
in some special position as a result of the purchase, in
circumstances of which we know nothing, of some rights in Mr.
Wright’s or his publishers’ copyright in the book. But the
injunctions, whilst they no doubt, as matters stand, affect other
newspapers and other organs of the news media, are injunctions
against the appellants and it is with their position that your
Lordships are primarily concerned. It must therefore be kept
clearly in mind that the appellants have done and are proposing to
do nothing which is not normally involved in the proper conduct of
their legitimate business of collecting, disseminating and
commenting upon news which they regard as of interest to their
reading public. It so happens that, most regrettably, a former
servant of the Crown has chosen to publicise that which was
confided to him under an obligation of secrecy but the appellants
have not themselves been party to the revelation of the
confidential information to the public. I quote from the judgment
of the Vice-Chancellor:
“So, in the present case, it is not suggested, nor could it be
suggested, that The Guardian and The Observer had in any
sense been involved in any activity with Mr. Wright leading
to the publication of his book. Anything they would wish to
publish in the future would be obtainable from the public
domain from Spycatcher itself. They have not aided and
abetted Mr. Wright in his breach of duty. That seems to
me to be a new case not covered by authority.”
I echo that, for I have not been able to find nor have your
Lordships been referred to any previously reported decision which
could be said to be even remotely parallel to the instant case.
My Lords, a visitor to this jurisdiction (carrying, perhaps,
copies of Spycatcher and the Washington Post in his hand) might, I
think pardonably, be surprised at the situation with which he is
confronted on his arrival in the land which many regard as the
cradle of democratic liberty. Outside these shores he and every
other member of the public can read newspaper reports of and
comments on Mr. Wright’s memoirs. He can listen to them –
perhaps listen to them ad nauseam – on radio and television.
Those reports and comments can be acquired and read throughout
Europe. They can be acquired and read from newspapers published
from Trodheim to Taranto and from newspapers freely imported
from the United States, Canada, the Antipodes and the Irish
Republic. They can even – or could at the date of the hearing
before your Lordships – be published and broadcast as close to
home as Scotland, Northern Ireland and the Channel Islands. It is
a no doubt regrettable but inescapable fact of life that Mr.
Wright’s allegations are available to the news media for public
ventilation everywhere except in England. Even in Australia,
where the principal action is proceeding, the only parties enjoined
from publication so far as I am aware are Mr. Wright and his
publishers. Yet The Guardian and The Observer newspapers, and
– 38 –
effectively the entire English press and other news media, remain
prohibited from reproducing or commenting upon matter contained
in a book which can be and is being obtained freely by members
of the public here and which can on occasions be seen being read,
with what attention or enjoyment I know not, by travellers on the
London Underground.
This is a situation which, I venture to think, none of your
Lordships regards as anything but extremely regrettable. Where I
differ from the majority of your Lordships is in the assessment of
whether the continuation of the injunctions, perfectly rational and
explicable in their origins, can now any longer be justified and
whether, constitutionally and in the public interest in a free
society, they ought to be permitted to continue even temporarily
pending a full trial, possibly a year or more hence, of the issues
raised on the pleadings in this case. In saying this I do not
underestimate the obvious importance of the public interest in
protecting the Security Service. What I question is both the
effectiveness and the appropriateness, in the circumstances as they
now exist, of seeking to do so by continuing against these
appellants a fetter on disclosure of information which, for good or
ill, is now freely obtainable and disclosable by other members of
the public.
In substance, the arguments in favour of the continuation of
interlocutory injunctive relief, notwithstanding the existing and
almost certainly increasing availability of the information upon
which comment is restrained, are threefold. First, it is said that
the continuation of the injunctions will serve the purpose of
sustaining the morale of the Security Service. I put it that way
although it has been negatively expressed by Mr. Mummery in his
able and persuasive argument. As he has put it, the discharge of
the injunction will be damaging to morale, and it will be so in two
ways. First – and this arises rather from argument than from any
evidence which has been filed in the proceedings – it may be
disconcerting to existing members of the Service if they feel that
they may, in the future, figure in the memoirs of some fellow
member without effective interference by the court. Equally,
existing members of the Service who may be disgruntled or
avaricious may be encouraged to write their memoirs if Mr. Wright
is seen to “get away with it” by gaining even wider currency for
his allegations than exists already. Secondly, it is said that
although the information publication of which is sought to be
restrained has become public, publicised, notorious and available
virtually everywhere in the world outside England, and although it
is available here to anyone sufficiently interested to seek it by
buying or borrowing a copy of Spycatcher, that situation has been
brought about by the machinations of the wrongdoers whom it is
sought to restrain in the Australian action. An English court, it is
submitted, ought to be reluctant to permit its orders to be set at
naught by the very people whose wrongful action gave rise to the
action in which the orders were made. Thirdly, it is argued, the
injunctions sought by the Attorney General are interlocutory only.
None of the information the publication of which it is sought to
restrain can be said to be of vital immediate moment. All of it
relates to events which occurred – if they did occur – 12 or more
years ago. What real harm, it is argued, when the public has been
deprived of this information for 12 years, can there be in holding
up further distribution of it for a further year or two years until
– 39 –
the action has been brought to trial and it can be determined
definitively whether the Attorney General is or is not entitled to
an injunction to restrain its dissemination for all time? The Vice-
Chancellor having accepted, so it is argued, that the Attorney-
General has still an arguable case for an injunction at trial, to
determine the present application against him would, in effect, be
to render a trial otiose, for even total victory would be certain to
be barren. On the other hand, to continue the restraint against
the appellants, even if they are totally in the right, would merely
be to postpone for a period the publication of what is pretty stale
news anyway.
My Lords, this case is, as I have said, an unique case. For
my part, I have found it also uniquely difficult because of the
cogency of the arguments on both sides and of the very finely
balanced considerations which, partly as a matter of convenience
and partly as a matter of policy, require to be taken into account.
There was a point during the argument when the skill of Mr.
Mummery’s advocacy almost persuaded me to take the same view
as the majority of your Lordships. Further reflection impelled me
to an opposite conclusion, but I mention it lest, in the predictable
clamour aroused when your Lordships’ decision was announced, it
should be thought that the solution of the very difficult problems
posed came easily or obviously to any member of your Lordships’
House. In the end I have been persuaded to a conclusion opposed
to that of the majority of your Lordships but, like the Vice-
Chancellor whose decision I would uphold, with a degree of
hesitation.
Taking the arguments which have been deployed in turn,
that which seeks to justify the continuation of the injunctions on
what I may call the Admiral Byng principle, “pour encourager les
autres,” I find less than persuasive as a matter of fact, but more
importantly, it involves, I believe, a misuse of the injunctive
remedy against these appellants. The morale effect within the
Service is, as I see it, the only aspect of the damage to the
Service envisaged in the evidence before Millett J. which can still
have any relevance. In so far as the publication of Mr. Wright’s
memoirs involves disclosure of material of interest to an inimical
foreign power or decreases the confidence of other friendly
security services in the secrecy of the United Kingdom’s Service,
that damage must already have been irrevocably done whether or
not the appellants are permitted to give further currency to the
memoirs or to comments upon them. The only remaining question
is how far the continuation of the injunctions serves to maintain
the efficiency of the Service. So far as an injunction against the
English press, whether permanent or temporary, might act as a
deterrent to other members of the Service, it seems to me that
its frailty is demonstrable and has already been demonstrated by
the obvious ease with which publication may be brought about in
other parts of the world. It is accepted that it cannot be
restrained in the United States and that route remains open
whether or not publication is permitted here. It is at least
questionable how far, if publication took place within the Common
Market, importation could be effectively restricted in the absence
of compelling reasons of national security. Moreover, the
deterrent effect of proceedings for an account of profits remains
and the determination with which the present claim has been and
is being pursued against Mr. Wright should be ample demonstration
– 40 –
that the path of the would-be publisher of confidences would not
be easy. As to the insecurity which may be felt by existing
members of the Service, the fact is that, whether or not the news
media here can be restrained from publishing allegations by their
fellow members, the free availability of the book in this country
demonstrates the continued existence of that risk. The suggestion
is that the fears of members of the Service will be allayed by the
knowledge that the readiest market for news of this sort and the
section of the world public most likely to be interested will be cut
off from publication. I could see the force of this if the
information had indeed been effectively cut off, but when one
considers the degree of publicity that has already occurred – and
occurred without any impropriety on the part of the appellant –
the contention loses much, if not all, of its impact. When
allegations, however unfair and possibly untrue have already been
made the subject-matter of extensive public discussion and are
freely current worldwide in book form and in foreign newspapers
circulating both here and abroad, further restraint on public
discussion can, I should have thought, provide little reassurance.
But even allowing that there remains any substance in this
argument, I question whether the imposition of an injunction on A
simply in order to punish B and to provide an example to C is a
correct or permissible use of an injunctive remedy. The injunction
was originally imposed in order to preserve the confidentiality of
the then unpublished allegations. That confidentiality has now,
without fault on the part of the appellants, been irrevocably
destroyed and, no doubt, destroyed as a result of a calculated
policy adopted by Mr. Wright and those associated with him. I am
as reluctant as any of your Lordships to acknowledge that the
intention of the court has been effectively flouted by a public
dissemination which the courts in this jurisdiction are powerless to
prevent. But once that has occurred and the proscribed material
is available for public ventilation and discussion by everybody
except those subject to the existing restraint, I question whether it
can be right to continue that restraint against parties in no way
concerned with flouting the court’s orders and to interfere with
their legitimate business of publishing and commenting upon
matters already in the public domain for the purpose, not of
preventing that which can no longer be prevented, but of punishing
Mr. Wright and providing an example to others. I can well see –
and this equally applies to the second argument to which I have
referred – that the denial to Mr. Wright of the audience that he
most desires to reach may provide a cogent reason why the
Attorney General may wish to maintain the injunctions, but I am
not persuaded that, as against these appellants, it constitutes a
proper justification for them. It does so only if, in seeking
further to publish what is already public, they can properly be said
to be threatening some invasion of private law right of the Crown.
It is the third argument on behalf of the Attorney General
which has given me the greatest concern, for although it results in
a situation which cannot, as I think, do anything but engender
disrespect for the law, it has an appealing logic given the major
premise upon which it is based, that is to say, that there remains
an arguable case for the grant of permanent injunctions against
these appellants at the trial. In the events which have happened I
question that premise, although the appellants have – I sense
somewhat reluctantly – presented their arguments on that footing.
The judgment of the Vice-Chancellor contains a penetrating
– 41 –
analysis of the applicable principles of law and of the process of
reasoning which led him to the conclusion that the appellants, in
acquiring information from the book which is now on public sale,
albeit in limited numbers, could not properly be restrained from
republication of facts or allegations which are already public
property. No useful purpose would be served in repeating that
analysis and I am content to accept and adopt it. I accept, of
course, that it is no necessary impediment to the claim of a
plaintiff in an action for breach of confidence that the information
the publication of which is complained of is capable of being
discovered or assembled from sources available to the public. I
accept too, for present purposes, that even where the very
information sought to be used has previously been made public,
there may be circumstances in which the recipient, by contract or
conduct, comes under a fiduciary obligation to refrain from
unauthorised republication. The case of Schering Chemicals Ltd. v.
Falkman [1982] Q.B. 1 was such a case, although it has not been
without its critics (see Report of the Law Commission (No. 110)
paragraph 6.67). That case is, however, in my judgment, clearly
distinguishable from the instant case, for there the defendants
were the original recipient of the information (who was, arguably,
himself bound by contract to keep the information confidential and
certainly had accepted the obligation to do so as one of the terms
upon which he was afforded facilities by the plaintiffs) and a
television company which was directly involved in assisting him,
with knowledge of the circumstances, in breaching his obligation.
In so far as the majority judgments suggest that, apart from direct
obligation or complicity in the breach of a direct obligation,
information in the public domain can be the subject-matter of a
claim for breach of confidence, I would, for my part, prefer the
powerful dissenting judgment of Lord Denning M.R. Again, I
accept that the confidant who has himself made public the
information confided to him cannot rely upon the publicity which
he himself has generated so as to destroy the confidentiality.
That equally must apply to anyone who knowingly aids and abets
him in his unauthorised disclosure. But, as was pointed out by the
Vice-Chancellor, the salient feature of the instant case and one
which distinguishes all previous authorities, is that the persons
against whom relief is sought are persons who have come upon the
information sought to be protected without having been involved in
any way in its wrongful publication. The justification for the
imposition of a restraint upon republication by such a person must,
in my judgment, rest upon the premise that once he knows that
the information was confidential and has been disclosed in breach
of confidence, it would be unconscionable for him to make use of
it. Once, however, that information has been so widely
disseminated that it can properly be said to be in the public
domain then it ceases to be any longer confidential information.
There cannot be an injunction against use or republication by the
general public and it cannot, in my judgment, any longer be said
to be unconscionable for a person untainted with complicity in its
original publication to make use of that which is available to be
made use of by everyone else, save possibly the original confidant
and those who have aided and abetted him. So far as they are
concerned, I do not for my part accept that continued availability
of injunctive relief against them stands or falls with the
continuation of the injunctions against these appeallants. The case
of Schering Chemicals Ltd. v. Falkman indicate quite otherwise.
The Vice-Chancellor was led to assume that there still remained
– 42 –
an arguable case because the point of law involved was a difficult
and novel one. So it is, but, as was pointed out in the course of
the argument, the case of the Attorney General is unlikely to
improve between now and the trial and your Lordships have, as it
seems to me, all the material required to determine the point. I
fully appreciate the point which is forcefully made in the speeches
of the majority of your Lordships that the question should not now
be determined without a further argument for which the trial
would provide an occasion, but for my part, I find it difficult to
see how, once the information has achieved such a degree of
public availability and notoriety that any member of the public
may legitimately possess himself of it, read it, discuss it and pass
it on to others, it can be right to regard it as otherwise than in
the public domain. If that is right then I find it even more
difficult to see how it could be successfully argued that the
appellants should be permanently enjoined from “disclosing to any
person” (including presumably their own employees) information
which has been and is being freely disclosed by members of the
public to one another by selling or lending a book which is in free
and open circulation.
All other considerations apart, I find difficulty in seeing how
a permanent injunction at trial would be other than brutum
fulmen. In the action the appellants raise the defences of public
interest and iniquity, issues which, I should have thought, cannot
possibly be tried without an investigation of the very allegations
which it is sought to restrain. Are we to be presented with the
unedifying spectacle of a court trying the action or a substantial
part of it in camera, not for the purpose of preserving secrets of
the State or anything of that nature, but simply in order to
prevent the public from learning and commenting upon allegations
which are contained in a book which any member of the public is
at liberty to go out and buy in the market place? If the
injunction sought at trial is not to be rendered otiose in the very
process of obtaining it, that would seem to be a necessary
consequence, but it involves making a serious and entirely novel
intrusion upon the principle that legal proceedings should be
conducted in public and it cannot, I should have thought, do
otherwise than bring the law into disrespect.
It is said that there is a public interest in ensuring that
confidentiality of information should be preserved and that, even
though it may be available generally, the appellants, in
contradistinction to others not concerned in the business of
disseminating news, ought to be restrained because of the width of
their potential circulation. But that, as the Vice-Chancellor
remarked, is the negation of freedom of the press. “If,” he said
“the press is precluded from saying things that other people are
not precluded from, that seems to be not a freedom of the press
but an additional fetter on it.” We do not have a First
Amendment but, as Blackstone observed, the liberty of press is
essential to the nature of a free state. The price that we pay is
that that liberty may be and sometimes is harnessed to the
carriage of liars or charlatans, but that cannot be avoided if the
liberty is to be preserved. No one contends that the liberty is
absolute and there are occasions when it must yield to national
emergency, to considerations of national security, and, on occasion,
to private law rights of confidentiality where they are not
overborne by some countervailing public interest. I do not for a
– 43 –
moment dispute that there are occasions when the strength of the
public interest in the preservation of confidentiality outweighs even
the importance of the free exercise of the essential privileges
which lie at the roots of our society. But if those privileges are
to be overborne, then they must be overborne to some purpose.
The argument is not perhaps much assisted by homely metaphors
about empty stables or escaping cats, but I cannot help but feel
that your Lordships are being asked in the light of what has now
occurred to beat the air and to interfere with an essential
freedom for the preservation of a confidentiality that has already
been lost beyond recall. It was recognised by Millett J. when the
injunctions were granted by him that indirect publication elsewhere
would largely stultify the Attorney General’s claim. The same
recognition of reality is to be found in the judgment of the Court
of Appeal in the contempt motion against The Sunday Times.
That indeed, was the raison d’etre of the injunctions. It is a
matter for regret that that has now in fact occurred, but the
reality has to be faced. Once information has travelled into the
public domain by whatever means and is the subject-matter of
public discussion in the press and other public media abroad – I
emphasise again without fault on the part of the appellants – I
find it unacceptable that publication and discussion in the press in
this country should be further restrained. In practical terms I
cannot see how the appellants can, at the trial, properly be
restrained by permanent injunction for making use of information
of which every other newspaper and the news media generally
throughout the western hemisphere are free to make use. Ideas,
however unpopular or unpalatable, once released and however
released into the open air of free discussion and circulation,
cannot for ever be effectively proscribed as if they were a
virulent disease. “Facilis descensus Averni” and to attempt, even
temporarily, to create a sort of judicial cordon sanitaire against
the infection from abroad of public comment and discussion is not
only, as I believe, certain to be ineffective but involves taking the
first steps upon a very perilous path.
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Bridge of Harwich,
and I share the concern which he there expresses. However
regrettable it may be, I do not think that any arguable case for a
permanent injunction at the trial now remains and I would
accordingly allow the appeal and restore the order of the Vice-
Chancellor.
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Source: https://www.bailii.org/
