AS TO THE ADMISSIBILITY OF
Application No. 13585/88
by the Observer Ltd. and Others and
Guardian Newspapers Ltd. and Others
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 January 1988
by The Observer Ltd. and Others and Guardian Newspapers Ltd. and Others
against the United Kingdom and registered on 3 February 1988 under
file No. 13585/88;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure of
the Commission;
- the Commission's decision of 7 October 1988 to bring the
application to the notice of the respondent Government
and invite the parties to submit written observations on
its admissibility and merits ;
- the observations submitted by the respondent Government on
27 January 1989 and the observations in reply submitted
by the applicants on 25 April 1989 ;
- the Commission's decision of 9 May 1989 to hold a hearing
on the admissibility and merits of this case joined with
application No. 13166/87, Times Newspapers Ltd and Neil
v. UK;
- the hearing of the parties on 5 October 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicants are:
(1) The Observer Limited, the proprietors and publishers of the
national Sunday newspaper the "Observer", published in the United
Kingdom (UK),
(2) Mr. Donald Trelford, the editor of the Observer,
(3) Mr. David Leigh, and
(4) Mr. Paul Lashmar, who are both reporters employed on The
Observer. They were the joint-authors of an article which appeared in
the issue of the Observer dated Sunday, 22 June 1986, which detailed
certain of the contents of the memoirs (at that time unpublished) of
Mr. Peter Wright (a former Assistant Director of the British Security
Service "MI5") entitled "Spycatcher".
(5) Guardian Newspapers Limited, the proprietors and publishers of
the UK national daily newspaper "The Guardian",
(6) Mr. Peter Preston, the editor of The Guardian, and
(7) Mr. Richard Norton-Taylor, a reporter employed on The
Guardian, who was the author of an article in the issue of that
newspaper dated Monday, 23 June 1986, which also detailed certain of
the contents of Mr. Wright's proposed book.
The applicants are represented before the Commission by
Messrs. Lovell White and Durrant, Solicitors, London.
The application concerns the unrestricted reporting of details
about the book, "Spycatcher", by Mr. Peter Wright.
Mr. Peter Wright was for many years employed by the British
Government as a member of MI5, a branch of the British Security
Services. He retired in 1976. He now lives in Australia. He decided
to write his memoirs, including an account of what he claims were
illegal activities by the British Security Services in particular MI5.
In those memoirs entitled "Spycatcher" (hereafter referred to as the
book), Mr. Wright alleges, inter alia, that MI5 conducted unlawful
actitivies calculated to undermine the Labour Government of 1974-79
burgled and bugged the embassies of allied and hostile countries,
planned and participated in other unlawful and covert activities at
home and abroad and that Sir Roger Hollis, who led MI5 during the
latter part of Mr. Wright's employment, was a Soviet agent. Mr Wright
has unsuccessfully sought to persuade the British Government to
institute an independent inquiry into these allegations. Such an
inquiry has also been sought by, amongst others, James Callaghan
(Prime Minister 1976-79 and a senior member of the Cabinet of Harold
Wilson 1974-76) and other prominent members of the Labour Government
of 1974-79 including two former Home Secretaries, Roy Jenkins and
Merlyn Rees. Part of the material in "Spycatcher" had already been
published in a number of books about the British Security Services
written by Mr. Chapman Pincher. Moreover, on 16 July 1984 Mr. Wright
had given a lengthy interview to Granada Television in its "World in
Action" programme about the work of the British Security Services.
The programme was shown again in December 1986. Other books and
another television programme on the workings and secrets of these
Services were produced around the same time, but little Government
action was taken against these authors or the media.
In September 1985 the Attorney General of England and Wales
(the Attorney General), on behalf of the UK Government, began
proceedings in the Equity Division of the Supreme Court of New South
Wales, Australia, to restrain publication of Mr. Wright's memoirs and
of any information contained therein derived from his work for the
British Security Services. The evidential basis for the claim by the
Attorney General was two affidavits sworn by Sir Robert Armstrong,
Secretary to the British Cabinet, on 9 and 27 September 1985. On
17 September 1985 Mr. Wright and his Australian publishers, Heinemann
Publishers Australia Pty Ltd. (Heinemann Australia), gave an
undertaking not to publish pending the hearing of the British
Government's claim for an injunction. The British Government have
refused to indicate to Mr. Wright and Heinemann Australia which parts
of the book (if any) they would wish to have "blue pencilled" as
containing information damaging to national security.
On Sunday 22 June 1986 whilst the Australian proceedings were
still pending the Observer, and on Monday 23 June 1986 The Guardian,
published short articles on inside-pages, giving details of some of
the contents of Mr. Wright's book. These details included the
following allegations of improper, criminal and unconstitutional
conduct on the part of MI5 officers:
(i) MI5 "bugged" all diplomatic conferences at Lancaster
House in London throughout the 1950s and 1960s, as well as the
Zimbabwe Independence negotiations in 1979.
(ii) MI5 "bugged" diplomats from France, Germany, Greece and
Indonesia, as well as the hotel suite of Mr. Kruschev during his visit
to Britain in the 1950s, and were guilty of routine burglary and
bugging (including the entering of Russian consulates abroad).
(iii) MI5 plotted unsuccessfully to assassinate President
Nasser of Egypt at the time of Suez.
(iv) MI5 plotted against Mr. Harold Wilson during his
premiership from 1974 to 1976.
(v) MI5 (contrary to its guidelines) diverted its resources
to investigate left-wing political groups in Britain.
The Attorney General instituted proceedings for breach of
confidence in the Chancery Division of the High Court of Justice of
England and Wales against the Observer and The Guardian and on 27 June
1986 obtained ex parte interim injunctions to restrain further such
publication by either of those newspapers pending the trial of the
actions. After an inter partes hearing, on 11 July 1986, Mr. Justice
Millett (sitting in the Chancery Division of the High Court of
Justice) varied these injunctions restraining such publication. The
evidential basis for the claim by the Attorney General was the two
affidavits sworn by Sir Robert Armstrong in the Australian
proceedings.
The Observer and The Guardian appealed the Order of
Mr. Justice Millett and, on 25 July 1986, the Court of Appeal
dismissed their appeal and upheld the injunctions, with minor
modifications. Under the terms of the Orders The Guardian and the
Observer and their editors were restrained 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 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."
The Orders contained the following provisos:
"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. 4382 of 1985, is not prohibited from publication;
3. no breach of this Order shall be constituted by a
fair and accurate report of proceedings in
(A) either House of Parliament in the United Kingdom
whose publication is permitted by that House; or
(B) a court in the United Kingdom sitting in public."
In the judgment of the Court of Appeal interim injunctions
restraining publication were granted because Mr. Wright's book
contained secret information which, in the view of the Court, might
well cause damage to national security if disclosed. The Appellate
Committee of the House of Lords granted leave to appeal on 6 November
1986. A hearing was eventually scheduled for November 1987, but the
appeal was subsequently withdrawn in the light of the House of Lords
decision of 30 July 1987.
The trial of the British Government's action in Australia took
place before Mr. Justice Powell in the Equity Division of the New
South Wales Supreme Court in November and December 1986. Judgment was
delivered on 13 March 1987. Mr. Justice Powell rejected the claim by
the Attorney General against both Mr. Wright and Heinemann Australia.
Pending an appeal before the New South Wales Court of Appeal, Mr.
Wright and his publishers gave undertakings not to publish. The
appeal was heard by the New South Wales Court of Appeal in the week
commencing Monday, 27 July 1987. Judgment was reserved.
On 27 April 1987, The Independent published a major summary of
certain of the allegations made in Mr. Wright's book. Later the same
day, The London Evening Standard and The London Daily News published
reports of what had appeared in The Independent. The next day the
Attorney General applied for leave to move against the publishers and
editors of those three newspapers for contempt of court (hereafter
referred to as the Independent case). Leave was granted on 29 April
1987. In this application the Attorney General was acting
independently of the Government in his capacity as "the guardian of
the public interest in the due administration of justice" (judgment of
the Master of the Rolls in Attorney General v. Newspaper Publishing
Plc and Others (1987) 3WLR 942 at p. 965H). This is to be
distinguished from his capacity as Government representative in the
breach of confidence proceedings against the Observer and Guardian
newspapers.
Similar reports appeared in Australian and American
newspapers: on 29 April 1987 in The Melbourne Age and Canberra Times,
and on 3 May 1987 in The Washington Post.
Following these British newspaper publications The Guardian and
the Observer applied on 29 April 1987 to discharge the injunctions
against them on the ground that there had been a significant change in
circumstances since the injunctions had been granted against them in
1986.
The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to
hear those applications on 7 May 1987, but adjourned them pending the
determination of a preliminary issue of contempt law raised in the
Independent case. He invited the Attorney General to pursue these
latter proceedings in the same court as the former proceedings, the
Chancery Division of the High Court. This the Attorney General did on
11 May 1988. On the same day, the Vice-Chancellor ordered the trial
of the preliminary issue whether a publication made in the knowledge
of an outstanding injunction against another party, and which, if made
by that other party would amount to a breach of that injunction,
constituted a criminal contempt of court for interfering with the
process of justice concerning that injunction.
Viking Penguin Incorporated purchased from Heinemann Australia
the United States (USA) publication rights to the book and on
14 May 1987 Viking Penguin announced its intention of publishing
the book in the USA.
On 2 June 1987, the Vice-Chancellor decided the preliminary
issue of law in the contempt proceedings. He held that publication by
The Independent and the two London newspapers could not amount to
contempt of court because such publication was not a breach of the
express terms of the injunctions against The Guardian and the Observer
and to which injunctions the former had anyway not been a party. The
Attorney General lodged an appeal against the Vice-Chancellor's
judgment. On 15 June 1987 the Observer and The Guardian applied
to have the hearing of their discharge application restored.
Consideration of the discharge of the injunctions was, however,
further adjourned pending the outcome of the Attorney General's appeal
on the contempt issue in The Independent case, the hearing of which
began on 22 June 1987.
The Sunday Times purchased the British newspaper serialisation
rights to the book from Heinemann Australia. On 12 July 1987, The
Sunday Times published the first instalment of extracts from the book.
The newspaper explained that publication of the extracts was being
timed to coincide with publication of the book in the USA, which was
due to take place on 14 July 1987. On 13 July 1987, the Attorney
General commenced proceedings against Times Newspapers Limited and Mr.
Andrew Neil for alleged contempt of court. On 14 July 1987, Viking
Penguin published the book in the USA. It was an immediate
bestseller, some 310,000 copies having been printed in the USA, with
its fifth print run, by the date of the application to the Commission.
A substantial number of copies were sold to British citizens visiting
the USA or who purchased the book by telephone or post from bookshops
in the USA. The British Government took no legal steps to attempt to
restrain publication of the book in the USA or Canada, where it also
became a bestseller. Immediately after publication of the book in the
USA, people began to bring copies of the book into the UK. No steps
were taken by the Government to prevent such import. It took the view
that it had the powers to ban import of the book but that any such ban
was likely to be ineffective. Anyone in the UK could purchase a copy
of the book by credit card or cash from the USA by post or by
telephone. The telephone number and address of American bookshops
willing to deliver the book to the UK was widely advertised in the UK.
In the contempt proceedings in The Independent case the Court
of Appeal (Sir John Donaldson MR, Lloyd LJ and Balcombe LJ) announced
on 15 July 1987 (for reasons handed down on 17 July 1987) that it
would reverse the judgment of the Vice-Chancellor and decided
unanimously that such publication could, as a matter of law, amount to
a contempt of court. In his judgment, Sir John Donaldson, Master of
the Rolls, stressed that confidentiality, not official secrecy, was
the central issue in the case. He held, inter alia, that if a court
had prohibited publication of information pending trial which was said
to be confidential, but publication was nevertheless made, there was
no point in having a trial since the cloak of confidentiality could
never be restored. The contempt issue in the present case involved an
interference with the due administration of justice. The application
of the law of contempt is universal, the fact that it was to be
applied in novel circumstances, i.e. to newspapers not party to the
injunction against The Guardian and the Observer, was not a widening
of its application but a new example of its application. Third parties
with a legitimate interest in the injunction could apply to the court
for its modification or apply for clarification if they had doubts
whether the action they contemplated was lawful.
In his concurring judgment, Lloyd LJ held, inter alia, as
follows:
"... I would accept that not all acts which are calculated
to interfere with the course of justice will necessarily
ground a charge of contempt. The act must be sufficiently
serious and sufficiently closely connected with the
particular proceedings. But in the present case the conduct
relied on by the Attorney General is not marginal. It is
not a mere prejudging of the issue to be decided in the
particular proceeding. It is not a mere usurpation of the
court's function. It is the destruction, in whole or in
part, of the subject matter of the action itself. The
central issue in the Guardian action is whether The Guardian
should be restrained from publishing confidential information
attributable to Mr. Wright. Once the information has
been published by another newspaper, the confidentiality
evaporates. The point of the action is gone. It is
difficult to imagine a more obvious and more serious
interference with the course of justice than to destroy
the thing in dispute."
Balcombe LJ agreed with his colleagues. The Court of Appeal
refused leave to appeal to the House of Lords. No petition for such
an appeal was lodged with the House of Lords itself and no application
was made to the High Court by The Independent, The London Evening
Standard or The London Daily News to modify the interim injunctions
against The Guardian and the Observer.
The Sunday Times made it clear that unless restrained by law,
the second set of extracts from the book would be published on Sunday,
19 July 1987. On 16 July, the Attorney General applied for an
injunction to restrain The Sunday Times from publishing further
extracts from the book. The Attorney General brought his claim to
restrain what he said would be a contempt of court by reason of the
injunctions against The Guardian and the Observer and by reason of the
Court of Appeal's decision in The Independent case.
The Vice-Chancellor granted a temporary injunction restraining
publication by The Sunday Times until Tuesday, 21 July 1987. It was
agreed that on Monday, 20 July 1987 the Vice-Chancellor would consider
the claim of The Guardian and the Observer to have the injunctions
against them discharged and that The Sunday Times would (by reason of
being effectively bound by those injunctions because of the Court of
Appeal judgment in The Independent case) have a right to be heard in
support of those newspapers' claims to have the injunctions discharged.
He was also to hear the Attorney General's application for an
injunction against The Sunday Times. It was agreed that if the
injunctions against The Guardian and the Observer were discharged, his
claim against The Sunday Times would also fail.
The Vice-Chancellor heard argument from 20 to 22 July 1987.
He gave judgment on 22 July as follows:
1. If there had been a material change of circumstances since
July 1986, he had to consider whether it was now appropriate to grant
injunctions against The Guardian and the Observer.
2. There had been "a most substantial change in circumstances".
He regarded as most significant the fact that the book had been
published in the USA and was available in and had reached the UK.
3. The Vice-Chancellor was bound by the principles laid down by
the House of Lords in American Cyanamid Co v. Ethicon Ltd <1975> AC
396 concerning the grant of interlocutory injunctions, namely, it is
not the court's function at this intermediary stage to determine
complex questions of law and fact which call for detailed argument and
mature consideration. These matters are for the trial court to
decide. However, if there is an arguable case that an injunction may
be granted at trial, and if neither side could be adequately
compensated in damages after trial, then whether an interlocutory
injunction should be granted depends on the balance of convenience.
4. The Vice-Chancellor held that the Attorney General had an
arguable case under the law of confidence (albeit one that he strongly
doubted was correct), that he might obtain an injunction against the
newspapers at trial even though they were neither confidants nor
aiders and abettors of a confidant, and even though the information,
the publication of which the Attorney General wished to restrain, was
now known or available to the public as a result of publication in the
USA.
5. He held that damages would be an inadequate remedy to
compensate the Attorney General if he failed to obtain an
interlocutory injunction but were successful at trial. He also held
that damages would not be a sufficient remedy to compensate the
newspapers for restraints on publication were they to succeed at
trial.
6. He then proceeded to consider the balance of convenience. He
held that, weighing all the factors, it was inappropriate to continue
the injunctions. This was because the information contained in the
book was no longer secret and the only public interest in restraining
publication - to deter other members of the Security Services from
seeking to publish their memoirs - was outweighed by the public
interest in freedom of expression and the freedom of the press in all
the circumstances of this case. He commented as follows:
"The truth of the matter is that in the contemporary
world of electronics and jumbo jets news anywhere is
news everywhere. But whilst the news is international,
the jurisdiction of this court is strictly territorial.
Once the news is out by publication in the United States
and the importation of the book into this country, the law
could, I think, be justifiably accused of being an ass and
brought into disrepute if it closed its eyes to that reality
and sought by injunction to prevent the press or anyone else
from repeating information which is now freely available to
all".
The Attorney General immediately appealed and pending that
appeal the injunctions against The Guardian and the Observer, but not
against The Sunday Times, were continued in force.
The Court of Appeal (Sir John Donaldson MR, Ralph Gibson LJ
and Russell LJ) heard argument on this matter on 23 and 24 July 1987.
In its judgment of 24 July 1987 the Court of Appeal decided as
follows:
1. The Vice-Chancellor had erred in law in various respects.
2. Therefore it was appropriate for the Court of Appeal to
exercise its own discretion.
3. In the light of the American publication of the book, it was
inappropriate to continue the injunctions in their original form.
However, it was appropriate to vary the original injunctions to
restrain publication in the course of business of all or part of the
book or other statements by or attributed to Peter Wright on security
matters, but to permit a summary in general terms of his allegations.
The Court of Appeal gave leave to all parties to appeal to the
Appellate Committee of the House of Lords.
The Appellate Committee of the House of Lords (Lord Bridge,
Lord Brandon, Lord Templeman, Lord Ackner and Lord Oliver) heard
argument from 27 to 29 July 1987. They gave judgment on Thursday,
30 July 1987. They decided, by a majority of 3-2, to continue the
temporary injunctions granted by Mr. Justice Millett and the Court of
Appeal in July 1986. Lord Bridge (the immediate past Chairman of the
Security Commission, the Government body responsible for supervising
aspects of the work of the British Security Services) and Lord Oliver
dissented on the ground that no injunctions should lie against the
newspapers because the information was no longer secret. However, the
majority of the Appellate Committee decided that the scope of the
injunctions granted in 1986 should be widened to restrict certain
reporting of what would take place in open court in the further
Australian proceedings, otherwise passages from the book read out in
the Australian courts might be reproduced in English newspapers, thus
circumventing the injunctions. Its written reasons for the judgment
were given on 13 August 1987 (1987 1WLR 1248).
Lord Brandon (with whose observations Lord Templeman agreed)
held, inter alia, as follows:
(i) it was of the utmost importance that the injunctions
in issue were interlocutory injunctions, that is temporary
injunctions having effect until the trial of the action only:
continuation of the injunction until trial did not in any
way prejudge the validity of the Attorney General's claim
to final injunctions, its purpose being only to hold the
ring until a just decision on the validity of that claim
could be made;
(ii) before the publication of the book 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: this was the view taken by
Millett J. and the Court of Appeal and was not really open
to challenge;
(iii) the key issue was whether the publication of the book
in the USA had the effect that the Attorney General no longer
had an arguable claim to permanent injunctions at trial:
although the Attorney General's case for obtaining final
injunctions at trial had been much weakened by the publication
of the book, it remained nevertheless an arguable case;
(iv) in order to enable a court to carry out properly the
exercise of weighing and balancing the public right to freedom
of expression in the press and the public interest in the
protection of the secrecy of the British Security Service,
it was essential that it should have adduced before it the
best possible evidence on the crucial questions which arose
in the case in the form of oral evidence from witnesses
subject to cross-examination: the only way in which it
could thus justly be decided whether the Attorney General's
case, being still arguable, should succeed or fail was by
having the action tried;
(v) if the temporary injunction were discharged now, so
that the newspapers were left free to disseminate generally
the disclosures made in the book, there would be no point
in the Attorney General proceeding to trial: his arguable
case would 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;
(vi) if, on the other hand, the temporary injunctions were
continued until trial, the effect would be only to postpone
and not to prevent the exercise by The Guardian and the
Observer newspapers of the rights to publish: although the
exercise of such rights would certainly have been delayed,
it was a material factor that Mr. Wright's disclosures
related 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 would in no way be equivalent to a
complete denial of those which the Attorney General might have;
(vii) having regard to the matters in (v) and (vi) above,
the discharge of the temporary injunctions was capable of
causing much greater injustice to the Attorney General than
the continuation of them until trial was capable of causing
to the newspapers; in that situation it was clear that in the
overall interests of justice continuation of the injunctions
until trial was preferable to their discharge.
Lord Ackner, the third majority member of the Appellate
Committee, held, inter alia, as follows:
(i) it was common ground and/or accepted by each member
of the Appellate Committee
(a) that the Attorney General had an arguable
case for a permanent injunction;
(b) that damages were a worthless remedy for the
Crown and that, if the interlocutory injunctions were
not continued, the Crown would immediately and
irrevocably lose the prospect of obtaining a permanent
injunction which it might obtain if a trial were to
take place;
(c) that, by contrast to (b) above, the
continuance of the interlocutory injunction was not,
as the Vice-Chancellor had accepted, "a final locking
out of the press": if successful in the action, the
press would then be able to publish the material which
had no present urgency in that the allegations made in
the book were in a number of respects stale;
(d) that there was a real public interest
concerned with the efficient functioning of the
Security Service and that interest required protection;
(ii) it accordingly followed that it would be a denial of
justice to refuse to allow the injunctions to be continued
until the action was heard: to refuse to continue the
interlocutory injunctions would bring about the very result
that the Vice-Chancellor had 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.
Although arriving at a contrary conclusion on the facts of the
case, the minority of the Appellate Committee (Lord Bridge and Lord
Oliver) did not differ substantially from the above approach of the
majority as to the proper test to be applied in determining whether to
continue or discharge the interlocutory injunctions. In particular,
Lord Oliver made clear, inter alia:
(i) that he entertained no doubt whatsoever that the
interlocutory injunctions granted by Millett J. and confirmed
by the Court of Appeal in July 1986 were, in the circumstances
which existed at that time, entirely correct;
(ii) that if, notwithstanding the publication of the book,
an arguable case was made out for the grant of a permanent
injunction at trial, the question would become one of balance
of convenience.
The principal respect in which Lord Oliver differed from the
majority of the Appellate Committee was as to the question whether,
following the publication of the book in the USA, there remained an
arguable case for the grant of a permanent injunction at trial. While
noting that the newspapers had presented their arguments on the
footing that there remained an arguable case, and while accepting that
the point of law involved was a difficult and novel one, Lord Oliver
took the view that the Appellate Committee had before it all the
material on which to determine the point. Although he stated that he
fully appreciated the point forcefully made in the speeches of the
majority that the question should not now be determined without full
argument at trial, Lord Oliver stated that, in the light of the degree
of public availability of the information in "Spycatcher", he could
not see how it could be successfully argued at trial that the
appellants should be permanently enjoined from publishing such
information. Lord Oliver thus concluded that there no longer existed
any arguable case for a permanent injunction at the trial and that
accordingly the interlocutory injunctions should be discharged.
This judgment of the House of Lords terminated the
interlocutory proceedings in the UK.
Throughout the interlocutory proceedings in this case it
appears that the applicants have made submissions to the domestic
courts under Article 10 of the Convention. Account was taken of these
submissions as was demonstrated in the judgment of the House of Lords:
Lord Brandon commented that "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 para. 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".
Lord Templeman (with whom Lord Ackner agreed) recognised that
the "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" involved considerations under Article 10 of
the Convention. He reviewed the Convention case-law on freedom of
expression, in particular, The Sunday Times case (Eur. Court H.R.
judgment of 26 April 1979, Series A No. 30). In terms of the
Convention he found several reasons necessitating the imposition of
injunctions: to prevent damage to national security, i.e. the
Security Service, to deter or prevent any recurrence of publication by
disgruntled public servants of damaging truths and falsehoods abroad,
to protect the reputation or rights of others, to prevent disclosure
of information obtained by a member of the Secret Service in
confidence and to maintain the authority of the judiciary.
However, Lord Harwich considered that the imposition of
injunctions would create an "unnecessary fetter on freedom of speech"
and doubted the ability of the English "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".
On 24 September 1987 the New South Wales Court of Appeal
delivered its reserved judgment dismissing the Attorney General's
appeal. The Attorney General applied for leave to appeal to the High
Court of Australia against the Court of Appeal's decision. Pending
the hearing the High Court declined to grant temporary injunctions
against publication of the book. Proceedings against newspapers for
injunctions have been brought by the Attorney General also in Hong
Kong and New Zealand. In Hong Kong temporary injunctions were
granted, but in New Zealand it was reported in The Independent on
16 December 1987 that the Chief Justice had given judgment against the
Attorney General and permanent injunctions had been refused.
In the meantime publication and dissemination of "Spycatcher"
and its contents continued worldwide, not only in the USA (around
715,000 copies were printed and nearly all were sold by October 1987)
and Canada (around 100,000 copies printed), but also in Australia
(145,000 copies printed, half of which were sold within a month of
publication), Ireland (30,000 copies printed and distributed) and
several thousand copies were sent to various European countries from
the USA (80,000 copies to Holland, 10,000 to Germany, 500 to Norway,
2,000 to Malta and 1,000 to Cyprus). From Australia copies were
distributed in Asian countries. Radio broadcasts in English about the
book were made in Denmark and Sweden, and translations of the book
were made in 12 other languages, including Spanish, Catalan, French,
German, Swedish, Italian, Danish, Icelandic, Dutch and Portuguese.
Against the background of this wide dissemination of the book,
the substantive trial of the Attorney General's actions against the
Observer and The Guardian took place before Scott J. during the latter
part of November and early December 1987. The Sunday Times was also
party to these proceedings, in respect of a determination of the
Attorney General's claim against the applicants for an alleged breach
of confidence, which claim had been lodged in November 1987. On
21 December 1987 Scott J. delivered judgment dismissing the actions
and discharging the injunctions against the first two newspapers
((1988) 2WLR 805).
Scott J. held that Mr. Wright owed a duty to the Crown not to
disclose any information obtained by him in the course of his
employment in MI5, that he broke that duty by writing 'Spycatcher' and
submitting it for publication, and that the subsequent publication of
the book in July 1987 and its subsequent dissemination amounted to a
further breach, so that the Attorney General would be entitled to an
injunction against Mr. Wright or any agent of his restraining
publication of the book in the UK. He found that the Observer and The
Guardian were not in breach of their duty of confidentiality, created
by being recipients of Mr. Wright's unauthorised disclosures, when
they fairly reported in general terms the litigation in Australia and
the allegations in the book in their respective articles of 22 and 23
June 1986. The Sunday Times on the other hand had published extracts
from the book containing certain material which did not raise
questions of public interest outweighing those of national security.
Accordingly it had been in breach of duty in publishing the first
instalment of extracts from the book on 12 July 1987. However, the
Attorney General was not entitled to an injunction to restrain further
serialisation by The Sunday Times or any other newspaper since the
wide publication of the book abroad had destroyed any secrecy as to
the contents. Nevertheless the judge held that The Sunday Times was
liable to account for the profits accruing to it as a result of the
publication of the first extract. In his judgment he took account,
inter alia, of the defendants' pleadings under Article 10 of the
Convention, the Government's ensuing treaty obligations and the
case-law of the Convention organs, which establishes that the
limitation of free expression in the interests of national security
should not be regarded as necessary unless there is a pressing social
need for the limitation and unless the limitation is proportionate to
the legitimate aims pursued. He found the arguments for press freedom
overwhelming and the Government's desire for absolute protection of
the Secret Services draconian and impracticable once information is
released and easily available abroad. He therefore dismissed the
Attorney General's claim for a permanent injunction to restrain
publication of material from the book, but imposed further temporary
injunctions pending an appeal to the Court of Appeal.
On appeal by the Attorney General and a cross-appeal by The
Sunday Times, the Court of Appeal (Sir John Donaldson M.R., Dillon and
Bingham L.J.J.) on 10 February 1988 (the hearings having been held
from 18 to 25 January 1988), affirmed the decision of Scott J.
((1988)2WLR 805). However, again the temporary injunctions were
continued pending appeal to the House of Lords. The House of Lords
(Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of
Chieveley and Lord Jauncey of Tullichettle) also affirmed the
decision of Scott J. in a judgment dated 13 October 1988. Dismissing
the appeal by the Attorney General and the cross-appeal by The Sunday
Times, it held as follows:
"1. That a duty of confidence could arise in contract
or in equity and a confidant who acquired information in
circumstances importing such a duty should be precluded
from disclosing it to others; that a third party in
possession of information known to be confidential was
bound by a duty of confidence unless the duty was
extinguished by the information becoming available
to the general public or the duty was outweighed by a
countervailing public interest requiring disclosure of
the information; that in seeking to restrain the disclosure
of government secrets the Crown must demonstrate that
disclosure was likely to damage or had damaged the public
interest before relief could be granted; that since the
world-wide publication of 'Spycatcher' had destroyed any
secrecy as to its contents, and copies of it were readily
available to any individual who wished to obtain them,
continuation of the injunctions was not necessary; and
that, accordingly, the injunctions should be discharged.
2. (Lord Griffiths dissenting) that the articles of 22
and 23 June had not contained information damaging to
the public interest; that the Observer and The Guardian
were not in breach of their duty of confidentiality when
they published the articles of 22 and 23 June 1986; and
that, accordingly, the Crown would not have been entitled
to a permanent injunction against both newspapers.
3. That The Sunday Times was in breach of its duty of
confidence in publishing its first serialised extract
from 'Spycatcher' on 12 July 1987; that it was not
protected by either the defence of prior publication or
disclosure of iniquity; that imminent publication of the
book in the USA did not amount to a justification; and
that, accordingly, The Sunday Times was liable to account
for the profits resulting from that breach.
4. That since the information in 'Spycatcher' was now in
the public domain and no longer confidential no further
damage could be done to the public interest that had not
already been done; that no injunction should be granted
against the Observer and The Guardian restraining them
from reporting on the contents of the book; and that
(Lord Griffiths dissenting) no injunction should be
granted against The Sunday Times to restrain serialising
of further extracts from the book.
5. That members and former members of the Security Service
owed a lifelong duty of confidence to the Crown, and that
since the vast majority of them would not disclose
confidential information to the newspapers it would not be
appropriate to grant a general injunction to restrain the
newspapers from future publication of any information on
the allegations in 'Spycatcher' derived from any member or
former member of the Security Service."
COMPLAINTS
The applicants complain of violations of Article 10 read alone
and together with Articles 13 and 14.
The applicants submit that they are victims of an unjustified
interference with their freedom of expression, ensured by Article 10
of the Convention. They contend that it is incumbent on them, as
journalists and newspaper publishers, to impart information and ideas
concerning matters of public interest, the public, particularly their
readers, having a corresponding right to receive them. The applicants
also claim to have had no effective remedy, satisfying Article 13 of
the Convention, for their Article 10 grievance, and to have suffered
discrimination, contrary to Article 14 of the Convention, on the basis
of national or social origin and on the basis of property, wealth and
the acquisition of privileged knowledge.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 January 1988 and
registered on 3 February 1988. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application. It decided on 7 October 1988 to give notice of the
application to the respondent Government, pursuant to Rule 42 para. 2
(b) of the Rules of Procedure, and to invite the parties to submit
their written observations on the admissibility and merits of the
application. On 27 January 1989 the Government submitted their
observations on admissibility and merits, to which the applicants
replied on 25 April 1989.
On 9 May 1989 the Commission decided to hold a hearing on the
admissibility and merits of the application, to be joined with that of
Times Newspapers Ltd and Neil v. UK, application No. 13166/87. The
hearing was held on 5 October 1989. The Government were represented
by Mr. M. Wood, Agent, Foreign and Commonwealth Office, Sir Patrick
Mayhew, QC, MP, Attorney General, Counsel, Mr. N. Bratza, QC, Counsel,
Mr. P. Havers, Counsel, Mrs. S. Evans, Home Office, and Mrs. S. Marsh,
Legal Secretariat to the Law Officers. The applicants, the Observer,
Guardian and Others, were represented by Mr. D. Browne, Counsel, Miss
J. Braybrook, Solicitor, and Mrs. J. McDermott, Solicitor. The
applicants, Times Newspapers Ltd and Mr. Neil, were represented by Mr.
A. Lester, QC, Counsel, Mr. D. Pannick, Counsel, and Mr. A. Whitaker,
Legal Manager of Times Newspapers Ltd.
THE LAW
The applicants have complained that temporary injunctions,
first imposed by Mr. Justice Millett on 11 July 1986 and confirmed and
widened by the House of Lords on 30 July 1987, were in breach of their
freedom of expression ensured by Article 10 (Art. 10) of the
Convention. These injunctions prevented the entire British press (by
virtue of the contempt laws) from giving their readers further details
of the contents of the book "Spycatcher". The applicants contended,
inter alia, that the injunctions were not prescribed by law, for the
domestic law concerning breach of confidence was insufficiently
foreseeable (cf. Eur. Court H.R., Sunday Times judgment of 26 April
1979, Series A no. 30, p. 31 para. 49). Furthermore, after the
widespread publication of "Spycatcher" in the world, particularly
since its publication in the USA on 14 July 1987 and its uncontrolled
importation into the UK by private individuals, further prior
restraint on publication in newspapers was no longer based on any
pressing social need, measure of proportionality, or relevant or
sufficient reasons. Consequently, the injunctions were not necessary
in a democratic society for any of the purposes recognised in the
second paragraph of Article 10 (Art. 10) of the Convention. Insofar
as this complaint encompasses the first year of the injunctions, 11
July 1986 to 30 July 1987, the applicants contended that they had
complied with the requirements of Article 26 (Art. 26) of the
Convention, as they were absolved from pursuing their appeal against
Mr. Justice Millett's injunctions up to the House of Lords because
events (The Independent's report of 27 April 1987 and the book's
publication in the USA on 14 July 1987) overtook matters, rendering
any further appeal on that point ineffective. Moreover, the
injunctions imposed continuous restraints on reporting from the
outset.
The applicants also complained that they had no effective
domestic remedy satisfying Article 13 (Art. 13) of the Convention to
test their Article 10 (Art. 10) claim. Finally the applicants
complained of arbitrary discrimination, in breach of Article 14
(Art. 14) of the Convention, insofar as they and their readers, by
virtue of the House of Lords' injunctions, were unable to receive and
impart information widely available abroad, given that Article 10
para. 1 (Art. 10-1) of the Convention guarantees freedom of expression
"regardless of frontiers".
The Government contended, first, insofar as the applicants
were complaining of the period 11 July 1986 to 30 July 1987, that this
aspect of the case was inadmissible for failure to exhaust domestic
remedies, because no appeal was pursued before the House of Lords
against the original injunctions imposed by Mr. Justice Millett.
Otherwise this aspect of the case was inadmissible for non-observance
of the six months' rule, because the final effective decision on that
point was that of the Court of Appeal on 25 July 1986, whereas the
application was not lodged with the Commission until 27 January 1988.
Furthermore, this aspect was not raised in the originating application
to the Commission.
As to the remainder of the application concerning the House of
Lords' decision of 30 July 1987 onwards, the Government submitted,
inter alia, that any interference with the applicants' freedom of
expression was prescribed by law and necessary and proportionate in a
democratic society for maintaining the authority of the judiciary,
within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention as
interpreted by the European Court of Human Rights in its Sunday Times
judgment (ibid p. 34 para. 56). Encompassed in this notion is the
protection of the rights of litigants, in this instance the right of
the Attorney General to have his confidentiality claims against The
Guardian, the Observer and, subsequently, The Sunday Times, preserved
until mature consideration of them, and the newspapers' defences,
could be given by the trial court. The Government stressed the
temporary and finite nature of the injunctions which continued only
until trial. As regards the applicants' claim under Article 13
(Art. 13) of the Convention. Moreover Article 13 (Art. 13) of the
Convention does not give a right to a constitutional remedy permitting
the challenge of a law or its application (cf. No. 8603/79, Crociani
v. Italy, Dec. 18.12.80, D.R. 22 p. 147). Finally, the Government
submitted that the applicants' Article 14 (Art. 14) claim was
unsubstantiated.
Article 10 (Art. 10) of the Convention guarantees freedom of
expression, including the right to receive and impart information and
ideas regardless of frontiers. This freedom is subject to limitations
which are prescribed by law and necessary in a democratic society in
the interests of, inter alia, national security, the protection of the
rights of others, the prevention of disclosure of confidential
information and the maintenance of the authority of the judiciary.
Article 13 (Art. 13) of the Convention guarantees an effective remedy
before a national authority for any breach of the Convention and
Article 14 (Art. 14) of the Convention secures the enjoyment of these
rights without discrimination on any ground, such as national or
social origin, property or other status.
As regards the Government's preliminary objection concerning
the applicants' compliance with Article 26 (Art. 26) of the Convention
in relation to the original injunctions imposed by Mr. Justice
Millett on 11 July 1986, the Commission finds that the claim is of a
continuous nature and that the applicants have complied with Article
26 (Art. 26) of the Convention. The Commission notes that the
question of the original injunctions was raised in the applicants'
originating application to it, even if emphasis was mostly placed on
the House of Lords' decision of 30 July 1987. This latter decision
continued, and slightly broadened, the restrictions which had been
imposed a year before. However, the applicants could not reasonably
have been expected to pursue their appeal before the House of Lords
concerning Mr. Justice Millett's order of 11 July 1986 when events in
April and July 1987 had substantially changed the basis of the
applicants' defence to the Attorney General's claims. This left an
application for the discharge of the injunctions as the only
reasonable course of action open to them.
As regards the substance of the application, the Commission
considers, in the light of the parties' submissions, that the case
raises complex issues of law and fact under the Convention, the
determination of which should depend on an examination of the merits
of the application as a whole. The Commission concludes, therefore,
that the application is not manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy