TIMES NEWSPAPERS LTD AND ANDREW NEIL v. THE UNITED KINGDOM



                      Application No. 18897/91

                      by TIMES NEWSPAPERS Ltd and Andrew NEIL

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

12 October 1992, the following members being present:

           MM.   S. TRECHSEL, Acting President

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Sir   Basil HALL

           M.    F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

           Mr.   K. ROGGE, Deputy to the 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 30 September 1992

by TIMES NEWSPAPERS Ltd and Andrew NEIL against the United Kingdom and

registered on 3 0ctober 1991 under file No. 18897/91;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants are

1.    Times Newspapers Ltd., publishers of The Sunday Times, a national

Sunday newspaper published in the United Kingdom ;

2.    Andrew Ferguson Neil, editor of The Sunday Times, a British

citizen.

      They are represented before the Commission by Messrs. Theodore

Goddard, Solicitors, London.

      This is the third application which the applicants have brought

in relation to the litigation arising out of the intended publication

of the memoirs of Peter Wright, a former member of the British Security

Service MI5, in a book entitled "Spycatcher".  The full facts

concerning that litigation are set out in the judgment of the European

Court of Human Rights in the case of The Sunday Times v. the United

Kingdom (No. 2) (Eur. Court H.R., judgment of 26 November 1991, Series

A No. 217).  The first application (No. 13166/87, Comm. Report 12.7.90)

concerned injunctions imposed on the Observer and Guardian newspapers,

and subsequently, The Sunday Times itself, preventing the applicants

publishing further extracts from "Spycatcher".  The Court held in its

aforementioned judgment that the imposition of injunctions as of

30 July 1987 by the House of Lords was in violation of the applicants'

rights under Article 10 of the Convention, but not of their rights

under Articles 13 and 14 of the Convention.  The second application

(No. 14644/89, Comm. Report 8.10.91) concerned the ultimate order of

the House of Lords on 13 October 1988 requiring the applicants to

account for the extra profit made from their publication of the

extracts from "Spycatcher" on 12 July 1987.  The Committee of

Ministers, agreeing with the Commission, held on 15 May 1992 that the

applicants' rights under Articles 10, 13 and 14 of the Convention had

not been violated (Resolution DH(92)15).  In the present case the

applicants complain of the findings of the domestic courts that they

were in contempt of court in publishing the first "Spycatcher" extracts

and obliging them to pay the Attorney General's costs in bringing the

contempt proceedings.

      The facts of the present case, as submitted by the applicants and

which may be deduced from documents lodged with the application, may

be summarised as follows:

      "Peter Wright, a former member of the British Security Service

      MI5, sought to publish his memoirs in a book entitled

      'Spycatcher'.  The book contained several allegations of

      misconduct on the part of MI5.  Much of the material in the book

      had already been disclosed by other authors or in television

      programmes, including a Granada Television interview with Mr.

      Wright in 1984.  'Spycatcher' was first to be published in

      Australia in 1985 but the United Kingdom Government, represented

      by the Attorney General, instituted proceedings in the Australian

      courts to prevent publication.  In June 1986 the Observer and

      Guardian newspapers published short reports about some of the

      allegations in the book.  The Attorney General instituted

      proceedings against these newspapers for breach of confidence in

      the Chancery Division of the High Court of Justice of England and

      Wales.  Temporary injunctions restraining further such reports

      were granted from 11 July 1986 until the matter was finally

      decided on the merits by the House of Lords on 13 October 1988"

      (No. 14644/89, Comm. Report 8.10.91, para. 17).

      In the meantime, on 27 April 1987, a major summary of certain of

the allegations in "Spycatcher", allegedly based on a copy of the

manuscript, appeared in the United Kingdom national daily newspaper The

Independent.  Later the same day reports of that summary were published

in The London Evening Standard and the London Daily News.  The next day

the Attorney General applied to the Queen's Bench Division of the High

Court for leave to move against the publishers and editors of these

three newspapers for contempt of court, that is conduct intended to

interfere with or prejudice the administration of justice.  Leave was

granted on 29 April.  In this application the Attorney General was

acting independently in his capacity as "the guardian of the public

interest in the due administration of justice".

      The Vice-Chancellor, Sir Nicolas Browne Wilkinson, decided to

hold a hearing on the preliminary issue of law "whether a publication

made in the knowledge of an outstanding injunction against another

party (ie the injunctions against the Observer and Guardian newspapers)

and which if made by that other party, would be in breach thereof,

constitutes a criminal contempt of court upon the footing that it

assaults or interferes with the process of justice in relation to the

said injunction".  The Vice-Chancellor held on 2 June 1987 "that since

the respondents were neither parties to the actions nor subject to the

injunctions, their conduct in publishing the memoirs with the knowledge

of the outstanding injunctions did not constitute a criminal contempt

of court".  The Attorney General immediately lodged an appeal against

this preliminary ruling.

      On 12 July 1987 The Sunday Times, which had purchased the British

newspaper serialisation rights from Mr. Wright's Australian publishers

and had obtained a copy of the manuscript from Viking Penguin

Incorporated in the United States, printed in its later editions, in

order to avoid the risk of proceedings for an injunction, the first

instalment of extracts from "Spycatcher".  It explained that this was

timed to coincide with publication of the book in the United States,

which was due to take place on 14 July.  On 13 July the Attorney

General also commenced proceedings against the applicants for contempt

of court on the ground that the publication frustrated the purpose of

the original injunctions in July 1986.

      On 14 July 1987 Viking Penguin Incorporated published

"Spycatcher" in the United States of America ; some copies had, in

fact, been put on sale on the previous day.  It was an immediate

best-seller.  The British Government, which had been advised that

proceedings to restrain publication in the United States would not

succeed, took no legal action to that end either in that country or in

Canada, where the book also became a best-seller.

      A substantial number of copies of the book were then brought into

the United Kingdom, notably by British citizens who had bought it

whilst visiting the United States or who had purchased it by telephone

or post from American bookshops.  The telephone number and address of

such bookshops willing to deliver the book to the United Kingdom were

widely advertised in that country.  No steps to prevent such imports

were taken by the British Government, which formed the view that

although a ban was within their powers it was likely to be ineffective.

They did, however, take steps to prevent the book being available at

United Kingdom booksellers or public libraries.

      On 15 July 1987 the Court of Appeal announced that it would

reverse the preliminary ruling of the Vice-Chancellor in the

Independent case.  Its reasons, which were handed down on 17 July, were

basically as follows: the purpose of the original injunctions was to

preserve the confidentiality of the "Spycatcher" material until the

substantive trial of the actions against the Observer and Guardian ;

the conduct of The Independent, The London Evening Standard and the

London Daily News could, as a matter of law, constitute a criminal

contempt of court because publication of that material would destroy

that confidentiality and, hence, the subject matter of those actions,

and therefore interfere with the administration of justice.

      The Master of the Rolls, Sir John Donaldson, in one of the

judgments given by the Court of Appeal, commented on the fragile nature

of the subject matter of the litigation:

      "Confidential information is like an ice cube.  Give it to the

      party who undertakes to keep it in his refrigerator and you still

      have an ice cube by the time the matter comes to trial.  Either

      party may then succeed in obtaining possession of the cube.  Give

      it to a party who has no refrigerator or will not agree to keep

      it in one, and by the time of the trial you just have a pool of

      water which neither party wants.  It is the inherently perishable

      nature of confidential information which gives rise to unique

      problems."

      There was no doubt that the information held by Mr. Wright was

confidential and that until the litigation over the injunctions against

the Observer and Guardian had been determined on the merits other

publishers were not free to print "Spycatcher" material, for to do so

would deprive the Attorney General of a part of the rights which he was

asserting in those actions and to that extent the publications by The

Independent, The London Evening Standard and the London Daily News made

it impossible for the courts to do justice between the parties.  The

Master of the Rolls rejected the idea that the Attorney General was

seeking to widen the law of criminal contempt, albeit in accordance

with established principles.  He held as follows:

      "The law of contempt is based upon the broadest of principles,

      namely, that courts cannot and will not permit interference with

      the due administration of justice.  Its application is universal.

      The fact that it is applied in novel circumstances ...  is not

      a widening of its application.  It is merely a new example of its

      application."

      He made the following summary:

      "(1) Confidential information, whatever its nature - personal,

      financial, technical or security - has one essential common

      characteristic.  It is irremediably damaged in its confidential

      character by every publication and the more widespread the

      publication, the greater the damage.  (2) If a prima facie claim

      to confidentiality can be established, but this is opposed by a

      claim of a right to publish, whether on grounds of the public

      interest or otherwise, these opposing and wholly inconsistent

      claims  must be evaluated and balanced the one against the other.

      (3) The public interest in ensuring that disputes are resolved

      justly and by due process of law may require a different balance

      to be struck at different stages.  Thus, pending the trial of the

      action, the balance will normally come down in favour of

      preserving confidentiality, for the very obvious reason that,

      this is not done and publication is permitted, there will be

      nothing left to have a trial about.  (4) It is for the courts,

      and not for either of the opposing parties, to decide where, in

      the public interest, that balance lies.  (5) Third parties -

      strangers to the action - who know that the court has made orders

      or accepted undertakings designed to protect the confidentiality

      of the information pending the trial, commit a serious offence

      against justice itself if they take action which will damage or

      destroy the confidentiality which the court is seeking to protect

      and so render the due process of law ineffectual.  (6) If such

      third parties, having a legitimate interest in so doing, wish to

      contest the court's decision to protect the confidentiality of

      the information on any grounds, including in particular that they

      have special rights or interests of which account has not been

      taken, they should apply to the court which will hear them and

      make any modification of its orders which may be appropriate.

      This is a well-established procedure which works speedily and

      well in the context of ex parte orders, such as those made in the

      exercise of the Mareva and Anton Piller jurisdictions.  Similarly

      they should apply to the court if they have doubts whether the

      action which they contemplate taking is lawful.  (7) It is for

      the courts, and not for third parties, to decide whether,

      balancing competing public and private interests including those

      of the third parties, confidentiality should continue to be

      preserved at any particular time."

      The Court of Appeal remitted the case to the High Court for it

to determine whether the three newspapers had acted with the specific

intent of so interfering.

      By the time the case came before Mr. Justice Morritt in the High

Court in April 1989 The Sunday Times had been joined as a defendant

together with two other newspapers, The Sunday Telegraph and News on

Sunday for "Spycatcher" articles they had published on 26 July and

2 August 1987 respectively.  On 8 May 1989 Mr. Justice Morritt found

The Independent, The Sunday Times and News on Sunday to be in contempt

of court and imposed a fine of £50,000, plus costs, in each case ; the

motions against the other newspapers were dismissed.  He held that the

actus reus of the criminal contempt had to be considered as at the time

it was committed in the light of the purpose of the original

injunctions against the Observer and Guardian newspapers.  It could not

be examined with the knowledge of hindsight after the worldwide

publication of "Spycatcher".  At the material time, therefore, the

purpose of the original injunctions had been to preserve the

confidentiality of the material in the possession of Mr. Wright.  That

confidentiality was partially destroyed with each publication from

"Spycatcher", notwithstanding that it was also partially destroyed by

other publications.  Moreover such partial destruction constituted an

interference with the administration of justice despite the fact that

it had no effect on the eventual outcome of the trial on the merits

when it was decided not to grant permanent injunctions against

publication of the "Spycatcher" material.

      As regards the mens rea, or intention to commit the offence,

Mr. Justice Morritt was satisfied that The Sunday Times had knowingly

perpetrated contempt of court in publishing the "Spycatcher" extracts

on 12 July 1987.  He noted that on 2 March 1987 the Treasury Solicitor,

having heard about The Sunday Times' plans to serialise "Spycatcher",

had by letter advised the newspaper that it was subject to the same

obligations as the Observer and Guardian newspapers.  He had enclosed

a copy of the injunctions against those newspapers.  The following day

the legal adviser to The Sunday Times had replied to the Tre

Solicitor stating that it was the newspaper's intention to serialise

the Australian lawyer's account of the trial so that their article

would be more about the Australian litigation rather than the book.

Moreover he had contended that the newspaper was not bound by the

Observer and Guardian injunctions.  After the institution of contempt

proceedings against The Independent, The Evening Standard and the

London Daily News the Treasury Solicitor had again warned The Sunday

Times.

      The Sunday Times' editor, Mr. Neil, went about obtaining the

serialisation rights over the book and an advance copy of it in order

to publish before his competitors did so.  The Vice-Chancellor decided

the preliminary contempt of law issue on 2 June 1987.  On 7 July 1987

Mr. Neil flew to New York and obtained a copy of "Spycatcher".  On

9 July 1987 he received legal advice from senior counsel that neither

he nor his newspaper would be liable for contempt of court if they

published information covered by the Observer and Guardian injunctions.

On 10 July 1987 the Treasury Solicitor again sent a warning letter in

view of the contempt proceedings against the other newspapers and the

Attorney General's pending appeal against the Vice-Chancellor's

preliminary ruling.  The Sunday Times nevertheless went ahead with the

publication of the "Spycatcher" extracts on 12 July 1987, but did not

include them in the first edition of the day in order to avoid giving

advance warning to the Attorney General which would no doubt have

prompted him to seek an interlocutory injunction against the newspaper.

The applicants refused to undertake not to publish any further extracts

from "Spycatcher" and on 16 July 1987 the Attorney General obtained an

interlocutory injunction restraining further publication.

      The applicant, Mr. Neil, acknowledged in the contempt proceedings

that he knew of the Observer and Guardian injunctions and that he

regarded "Spycatcher" as "banned in Britain", but he was satisfied with

the legal advice which he had received.  He had, therefore, intended

putting "Spycatcher" into the public domain regardless of the

consequences.  Mr. Justice Morritt held that Mr. Neil realised that the

inevitable consequence of publishing the extracts was to damage or

destroy the confidentiality of the material possessed by Mr. Wright and

he thereby interfered with the administration of justice in the

proceedings between the Attorney General and the Observer and Guardian

even if he genuinely, but wrongly, believed he would not be in contempt

of court.  The judge, therefore, concluded that the Attorney General

had established beyond reasonable doubt that the publication of the

"Spycatcher" extracts by The Sunday Times was a contempt of court.  The

applicants appealed against this judgment.

      On 27 February 1990 the Court of Appeal, consisting of three

judges, unanimously dismissed the applicants' appeal against the

finding that they had been in contempt, agreeing with the judgment of

Mr. Justice Morritt, but it concluded that no fines should be imposed.

This was because, firstly, the Vice-Chancellor had given his

preliminary ruling that the other newspapers were not in contempt of

court, even though the applicants knew that his ruling was subject to

an appeal ; secondly the applicants had received legal advice that they

would not be in contempt if they published the "Spycatcher" extracts

and, thirdly, the publication of the whole book in the United States

of America was imminent, thus largely destroying any confidentiality

in Mr. Wright's material.  The circumstances were, therefore,

exceptional and did not justify a fine.

      Whilst Article 10 of the Convention does not form part of English

law it was accepted by at least one appellate judge that it was

relevant to the interpretation of principles of law which might be

unclear and where there is no binding authority.  It was assumed that

the English law of contempt was in conformity with Article 10 of the

Convention and accepted that the burden of proof was upon the Attorney

General, in order to restrain disclosure of Government secrets, to show

that the information was confidential and that it was necessary in the

public interest not to publish it (pp. 40, 47-49 of the judgment of

Lord Justice Ralph Gibson).

      It was emphasised that on the critical date of 17 July 1987, when

The Sunday Times published the "Spycatcher" extracts, the object of the

original injunctions against the Observer and Guardian had not yet been

thwarted by the publication of the book in the United States of

America.  The fact that the book was published there two days later was

relevant to the assessment of the sanction which was to be imposed, but

not to the determination of the contempt itself committed by The Sunday

Times.  The imminent publication on 14 July did not justify The Sunday

Times' action.  Lord Justice Nicholls commented: "There is about The

Sunday Times case a large element of hindsight.  On 12 July the

pressing social need that there should be no publication of 'Wright

material' still existed".

      On 11 April 1991 the Appellate Committee of the House of Lords

unanimously dismissed the appeal by the applicants against the Court

of Appeal's decision on the issue of contempt of court.  It was held

that the purpose of the original injunctions granted by Mr. Justice

Millett in 1986 against the Observer and Guardian was the prevention

of publication of material from "Spycatcher" pending the trial of the

actions for breach of confidence; that the consequence of such

publication by the applicants was to nullify, at least in part, the

purpose of that trial because it placed in the public domain material

which it was claimed by the Attorney General in those actions should

remain confidential; and that, accordingly, the conduct of the

applicants constituted the actus reus of impeding or interfering with

the administration of justice in the confidentiality actions, and since

mens rea in respect of such conduct had been conceded by the

applicants, the necessary elements to constitute contempt of court had

been established.

      Lord Brandon of Oakbrook confirmed the lower court's ruling that

the aim and purpose of the law of contempt is to prevent interference

with the due administration of justice.  He held that the Attorney

General was not seeking to widen the law of criminal contempt.  The

Attorney General's submissions were deemed to be based upon long

established common law principles and in applying those principles to

the novel facts of the present case the offence of contempt had been

established.

      Lord Oliver of Aylmerton emphasised the inherent jurisdiction of

the courts to ensure the effective administration of justice by

punishing contempt of court, a notion which has been "developed by the

common law over centuries.  It is as essential as it is ancient, for,

unless litigants can be assured that the rights which it is the duty

of the courts to protect can be fairly determined and effectively

protected and enforced, the system of justice necessarily ceases to

command confidence and an essential foundation of the structure of

civilised society is undermined".  He held, as regards Article 10 of

the Convention, that the contempt proceedings were "clearly necessary

for maintaining the authority of the judiciary" in view of the need to

uphold the temporary injunctions against the Observer and Guardian

newspapers pending the determination of the merits of the Attorney

General's claim on the merits against these newspapers.

      Lord Jauncey of Tullichettle concluded in a similar vein as

follows:

      "It only remains to consider whether the public interest in the

      freedom of the press should in this case override the interests

      of the administration of justice.  The importance in a democracy

      of a free press cannot be overstated.  Nevertheless, there are

      occasions where that importance must give way to other

      considerations.  National security is one such consideration.

      The importance of affording to an accused a fair trial is

      another.  In my view the public interest in enabling justice to

      be done unimpeded between party and party is another.  As I have

      already remarked, it is only in a limited type of case that

      freedom of the press is likely to be affected by possible

      interference with the course of justice and I consider that in

      these cases the public interest in having justice done unimpeded

      between parties must prevail over that interest in the freedom

      of the press.

      For all the foregoing reasons I have no doubt that the appeal

      should be dismissed."

      Whilst the applicants were no longer liable to pay a fine for

their contempt of court they remained liable to pay the Attorney

General's legal costs, as they were the losing party in the

proceedings.  To date the Attorney General's costs claim amounts to

£27,744.80.  The costs bill has not yet been finalised or settled.

COMPLAINTS

      The applicants complain of a violation of Article 10 of the

Convention, read on its own and together with Article 7 of the

Convention.  They submit, inter alia, that the finding that they were

in contempt of court was neither prescribed by law, within the meaning

of Article 10 para. 2 of the Convention, nor an offence for the

purposes of Article 7 of the Convention as of 12 July 1987, when they

published the "Spycatcher" extracts, because at that time there was no

judicial precedent to establish "that the performance by a third party

of an act which other named persons had been enjoined from performing

could amount to contempt of court by the third party unless that third

party was aiding and abetting the person so enjoined or was privy or

party to a breach of the order by the party so enjoined".  They rely

for this proposition on the decision of the Vice-Chancellor in the

present case on 2 June 1987 and claim that it was reflected in the

Court of Appeal's decision of 17 July 1987 not to impose a fine upon

them.

THE LAW

      The applicants complain of a violation of Article 10

(Art. 10) of the Convention, read on its own and in conjunction with

Article 7 (Art. 7) (Art. 10+7) of the Convention, in respect of the

House of Lords' judgment against them on 11 April 1991.

1.    As regards Article 10 (Art. 10) of the Convention

      Article 10 (Art. 10) of the Convention provides as follows:

      "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."

      a) Interference with freedom of expression

      The applicants claim that the House of Lords' decision on

11 April 1991, upholding the finding of contempt of court, was an

interference with their freedom of expression, ensured by Article 10

para. 1 (Art. 10-1) of the Convention, by the very finding itself, by

virtue of the imposition of the Attorney General's bill of costs and

by the binding nature of the decision with its repercussions and

inhibiting effect on freedom of expression in the future in analogous

cases.

      The Commission agrees with the applicants that there has been an

interference with their freedom of expression in the present case.

      b) Prescribed by law

      One of the applicants' main contentions is that the interference

with their freedom of expression was not prescribed by law within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

      According to the case-law of the European Court of Human Rights

two requirements flow from the expression "prescribed by law": that the

law be both adequately accessible and foreseeable (Eur. Court H.R., The

Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31,

para. 49).

      On the question of accessibility, the Commission has examined the

various domestic court judgments in the present case and notes that,

apart from the preliminary ruling of the Vice-Chancellor on 2 June

1987, these courts have unanimously concluded that the principles of

criminal contempt of court have been long established in common law.

As Sir John Donaldson, Master of the Rolls, held in the Court of Appeal

on 17 July 1987: "The law of contempt is based upon the broadest of

principles, namely, that the courts cannot and will not permit

interference with the due administration of justice.  Its application

is universal.  The fact that it is applied in novel circumstances ...

is not a widening of its application.  It is merely a new example of

its application" (p. 5 above).  The domestic courts reviewed a wealth

of previous legal authorities and, in the absence of any evidence of

arbitrariness in the judgments in the present case, the Commission is

satisfied that the law concerning the offence of criminal contempt of

court was adequately accessible at the material time.

      On the question of foreseeability, the Commission notes that the

applicants had warning of the risks they were running from an early

stage in the "Spycatcher" proceedings.  They were aware from the day

of the imposition of the temporary injunctions against the Observer and

Guardian newspapers in July 1986 that the key issue in the "Spycatcher"

litigation with the Attorney General was to preserve the

confidentiality of the material held by Peter Wright, a former member

of the British Security Service, MI5.  As of 2 March 1987 they had been

advised by the Treasury Solicitor that they were under the same

obligations as the Observer and Guardian newspapers to preserve that

confidence until the courts had determined the merits of the Attorney

General's claim.  After the institution of proceedings against The

Independent, The London Evening Standard and the London Daily News for

contempt of court in April 1987 by the Attorney General, the Treasury

Solicitor repeatedly warned the applicants that in the Government's

view they would risk similar proceedings if they sought to publish any

"Spycatcher" material.  Although the applicants were advised that the

Government's view of the law of contempt was wrong, the Commission

finds nevertheless that the applicants were fully aware of the risks

involved in publishing such material and chose deliberately to do so

in circumstances intended to escape prior Government detection.  The

Commission concludes from the applicants' awareness of these risks that

the relevant law was sufficiently accessible.  The interference in the

present case was accordingly "prescribed by law", within the meaning

of Article 10 para. 2 (Art. 10-2) of the Convention.

      c) Legitimate aim

      Interference with freedom of expression may only be justified if

it pursues a legitimate aim such as protecting the interests of

national security, preventing the disclosure of information received

in confidence or maintaining the authority of the judiciary.

      The applicants have not suggested that the contempt of court

proceedings against them did not pursue a legitimate aim.

      The Commission refers to the judgment of Lord Oliver of Aylmerton

in the House of Lords on 11 April 1991 in the present case that the

contempt proceedings were "clearly necessary for maintaining the

authority of the judiciary", an essential part of which being the

protection of the rights of litigants until the dispute between them

has been fairly determined by the courts (p. 8 above ; cf. also Eur.

Court H.R., The Sunday Times judgment of 26 April 1979, Series A

No. 30, pp. 33-35, paras. 54-57).  Moreover, the Commission does not

lose sight of the fact that there were important background elements

to the present case, namely the protection of information received in

confidence and the protection of national security (see No. 14644/89,

Times Newspapers Ltd and Neil v. the United Kingdom, Comm. Report

8.10.91, paras. 42-43).

      The Commission finds, therefore, that the contempt of court

proceedings against the applicants pursued the legitimate aim of

maintaining the authority of the judiciary.

      d) Necessary in a democratic society

      The key issue in the present case is whether it was necessary in

the circumstances for the House of Lords to find the applicants in

contempt of court for publishing the "Spycatcher" extracts on 12 July

1987.

      The Commission refers to the general principles of necessity in

the domain of press freedom and the State's margin of appreciation

under Article 10 (Art. 10) of the Convention as set out in the previous

applications brought by the present applicants concerning the

"Spycatcher" litigation (Eur. Court H.R., The Sunday Times (No. 2)

judgment of 26 November 1991, Series A No. 217, pp. 28-30,

paras. 50-51; No. 14644/89, Comm. Report 8.10.91, paras. 44-49 ;

cf. also Eur. Court H.R., The Sunday Times judgment of 26 April 1979,

Series A No. 30, pp. 35-38, paras. 58-62).

      The applicants submit that the interference with their freedom

of expression by the contempt of court finding met no pressing social

need and was disproportionate to any legitimate aim pursued for three

reasons :

-     the imminent publication of "Spycatcher" in the United States of

      America,

-     the lack of proportionality in imposing liability upon them for

      contempt of court by reference to the purpose of an injunction

      granted against third persons, and

-     the absence of any effect of their publication of the

      "Spycatcher" extracts on the ultimate outcome of the Attorney

      General's claim on the merits for permanent injunctions against

      the Observer and Guardian, to which proceedings they were

      subsequently joined as defendants.

      However, the Commission agrees with the remark of Lord Justice

Nicholls in the Court of Appeal's judgment of 27 February 1990 in the

present case that "there is about The Sunday Times case a large element

of hindsight" (p. 8 above).  As in application No. 14644/89 brought by

the applicants, the Commission finds that the crucial date in the

"Spycatcher" proceedings which materially changed the circumstances of

the litigation was 14 July 1987, when the book went on sale in the

United States and became an instant best-seller (Comm. Report 8.10.91,

paras. 55-56).  Up to that time the confidentiality of the "Spycatcher"

material was, arguably, worth preserving ; after that date there was

nothing confidential left to protect.  So two days before, on 12 July

1987, the day when the applicants achieved their scoop in publishing

extracts from the book, there was an arguable case that they had

contributed to the partial destruction of the confidentiality of

material which was still the subject of pending litigation in the

courts.  The Commission considers therefore that subsequent events,

including the ultimate failure of the Attorney General's claim against

the Observer, Guardian and Sunday Times for permanent injunctions, are

irrelevant to the issue before the Commission.  The question remains

whether it was proportionate in the circumstances to impose obligations

on the applicants which flowed from injunctions imposed on other

newspapers, to which proceedings the applicants had not been a party

until they themselves became involved in publishing "Spycatcher"

material.

      The Commission has had regard to the special perishable nature

of the subject matter of the "Spycatcher" litigation : confidential

information.  The Master of the Rolls aptly likened such information

to an ice cube in need of refrigeration until such time as the matter

comes to trial (p. 5 above).  The applicants were aware of this but

deliberately sought to break that confidentiality regardless of the

consequences, albeit believing that it was in the public interest (p. 7

above, Mr. Justice Morritt's judgment of 8 May 1989).  Given the

State's margin of appreciation in this area, the Commission finds

nothing unreasonable or arbitrary in the conclusion of the domestic

courts that the applicants thereby interfered with the administration

of justice in the proceedings between the Attorney General and the

Observer and Guardian newspapers, of which proceedings the applicants

had full knowledge.  The Commission again refers to the findings of the

Master of the Rolls:

      "Third parties - strangers to the action - who know that the

      court has made orders or accepted undertakings designed to

      protect the confidentiality of the information pending the trial,

      commit a serious offence against justice itself if they take

      action which will damage or destroy the confidentiality which the

      court is seeking to protect and so render the due process of law

      ineffectual.  If such third parties, having a legitimate interest

      in so doing, wish to contest the court's decision to protect the

      confidentiality of the information on any grounds, including in

      particular that they have special rights or interests of which

      account has not been taken, they should apply to the court which

      will hear them and make any modification of its orders which may

      be appropriate.  This is a well-established procedure which works

      speedily and well in the context of ex parte orders, such as

      those made in the exercise of the Mareva and Anton Piller

      jurisdictions.  Similarly they should apply to the court if they

      have doubts whether the action which they contemplate taking is

      lawful.  It is for the courts, and not for third parties, to

      decide whether, balancing competing public and private interests

      including those of the third parties, confidentiality should

      continue to be preserved at any particular time" (p. 6 above).

      Similarly the Commission considers that there was nothing

unreasonable or arbitrary in the House of Lords' conclusion in the

present case that "the public interest in having justice done unimpeded

between parties must prevail over that interest in the freedom of the

press" (p. 9 above, the judgment of Lord Jauncey of Tullichettle).  The

Commission also notes that there was no prior restraint on the

publication of the "Spycatcher" extracts by the applicants and that the

sanction of finding them in contempt of court, with liability for

costs, was of a minor nature.

      The Commission concludes that the decision of the House of Lords

of 11 April 1991, finding the applicants in contempt of court, was

proportionate to the legitimate aim of maintaining the authority of the

judiciary in order to protect the rights of other parties in pending

"Spycatcher" litigation in England.  The House of Lords' judgment could

therefore be regarded as necessary within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    As regards Article 7 (Art. 7) of the Convention

      The relevant part of Article 7 (Art. 7) of the Convention

provides as follows:

      "No one shall be held guilty of any criminal offence on account

      of any act or omission which did not constitute a criminal

      offence under national or international law at the time when it

      was committed."

      The applicants contend that they could not have been guilty of

an offence of contempt of court when publishing the "Spycatcher"

extracts on 12 July 1987 because at that time third parties could not

be bound by an injunction imposed on a person unless they were aiding

and abetting that person to break it.  However the Commission has held

above (p. 11) that the offence of criminal contempt for which the

applicants were found guilty was prescribed by law within the meaning

of Article 10 para. 2 (Art. 10-2) of the Convention.  For the reasons

described above in reaching that conclusion, the Commission considers

that the constituent elements of the common law offence of contempt of

court were sufficiently clear as of 12 July 1987.  The fact that the

established legal principles involved were applied to novel

circumstances does not render the offence retroactive in any way:

      "... it is not objectionable that the existing elements of the

      offence are clarified and adapted to new circumstances which can

      reasonably be brought under the original concept of the offence"

      (No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77, at pp. 79-82, paras.

      4-10).

      The Commission finds, therefore, that the offence of contempt of

court existed at the time it was committed by the applicants and that

the present case discloses no appearance of a violation of Article 7

(Art. 7) of the Convention.  It follows that this part of the

application is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

      Deputy to the Secretary               Acting President

         to the Commission                  of the Commission

             (K. ROGGE)                       (S. TRECHSEL)

 

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