TIMES NEWSPAPERS LTD ; NEIL v. THE UNITED KINGDOM



Application No. 13166/87

TIMES NEWSPAPERS Ltd and Andrew NEIL

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 12 July 1990)

                        TABLE OF CONTENTS

                                                            Page

I.      INTRODUCTION (paras. 1-13)                           1-3

        A.  The application (paras. 2-4)                      1

        B.  The proceedings (paras. 5-8)                     1-2

        C.  The present Report (paras. 9-13)                 2-3

II.     ESTABLISHMENT OF THE FACTS (paras. 14-54)            4-17

III.    OPINION OF THE COMMISSION (paras. 55-89)            18-25

        A.  Points at issue (para. 55)                        18

        B.  As regards Article 10 of the Convention         18-23

            (paras. 56-77)

            a)  Interference with freedom of expression     18-19

                (para. 58)

            b)  Prescribed by law                           19-20

                (paras. 59-63)

            c)  Legitimate aim                                20

                (paras. 64-65)

            d)  Necessary in a democratic society           20-23

                (paras. 66-77)

            Conclusion (para. 77)                             23

        C.  As regards Article 13 of the Convention           23

            (paras. 78-81)

            Conclusion (para. 81)                             23

        D.  As regards Article 14 of the Convention          23-24

            (paras. 82-86)

            Conclusion (para. 86)                              24

        E.  Recapitulation (paras. 87-89)                      25

Concurring opinion of Sir Basil Hall                           26

APPENDIX I      History of the proceedings                   27-28

APPENDIX II     Decision on the admissibility                29-46

                of the application

I.      INTRODUCTION

1.      The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application

2.      The application is brought by Times Newspapers Ltd and Andrew

Ferguson Neil.  Times Newspapers Ltd publish "The Sunday Times", a

national Sunday newspaper published in the United Kingdom (hereafter

abbreviated to UK).  The Sunday Times' current circulation is about

1.3 million and it has a readership of several million in the UK and

abroad.  Mr.  Neil is editor of The Sunday Times and a British

citizen.  Before the Commission the applicants were represented by

Messrs.  Theodore Goddard, Solicitors, London, in particular Mr.  M.

Kramer, Solicitor, together with Mr.  A. Lester, QC, Counsel, Mr.  D.

Pannick, Counsel, and Mr.  A. Whitaker, Legal Manager of Times

Newspapers Ltd.

3.      The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr.  M. Wood of

the 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.

4.      The application concerns temporary injunctions preventing

newspaper publication of details of the contents of the book

"Spycatcher" by Peter Wright, a retired member of the British Security

Service.  It raises issues under Articles 10, 13 and 14 of the

Convention.

B.      The proceedings

5.      The application was introduced on 31 July 1987 and registered

on 24 August 1987.  After a preliminary examination of the case by the

Rapporteur, the Commission decided on 7 October 1987 to give notice of

the application to the respondent Government, pursuant to Rule

42(2)(b) of its Rules of Procedure, and to invite the parties to

submit their written observations on the admissibility and merits of

the application.  On 4 February 1988 the respondent Government lodged

their observations, after an extension of the time-limit for their

submission.  The applicants replied on 21 March 1988.

6.      On 9 July 1988 the Commission decided to adjourn the

examination of the case pending the final judgment of the House of

Lords on the substantive issues raised by the application.  It also

decided to invite the parties to submit any further comments they

might have on the application in the light of that decision, which was

expected, and was given, on 30 July 1988.  On 17 October 1988 the

Commission confirmed this invitation to the parties.  The applicants

submitted their further observations on 2 February 1989, followed by

the Government on 10 February 1989.

7.      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

The Observer Ltd and Others and Guardian Newspapers Ltd and Others v.

UK, Application No. 13585/88.  The hearing was held on 5 October 1989

with the parties represented as above (paras. 2 and 3).  Following the

hearing and deliberations, the Commission declared the two

applications admissible and disjoined them.  On 8 November 1989 the

parties were sent the text of the Commission's decision on

admissibility and they were invited to submit any further observations

they might have on the merits of the case.  The Government submitted

observations on 8 January 1990 to which the applicants replied on

15 March 1990.  The Government submitted further observations on

2 July 1990.

8.      After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reactions the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.      The present Report

9.      The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   C.L. ROZAKIS

                Mr.  L. LOUCAIDES

10.     The text of this Report was adopted by the Commission on

12 July 1990 and is now transmitted to the Committee of Ministers of

the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

11.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

        1)  to establish the facts, and

        2)  to state an opinion as to whether the facts found

            disclose a breach by the State concerned of its

            obligations under the Convention.

12.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

13.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.     ESTABLISHMENT OF THE FACTS

14.     The application concerns restrictions imposed on the

publication of details about the book "Spycatcher" by Peter Wright.

15.     Mr.  Wright was for many years employed by the British

Government as a member of MI5, a branch of the British Security

Service.  He retired in 1976.  He now lives in Australia.  He decided

to write his memoirs, including an account of what he claimed were

illegal activities by the British Security Service in particular MI5.

In those memoirs entitled "Spycatcher" (hereafter referred to as the

book), Mr.  Wright alleged, 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

unsuccessfully sought to persuade the British Government to institute

an independent inquiry into these allegations.  Such an inquiry was

also 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 Service written by 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 Service.  The programme was

shown again in December 1986.  Other books and another television

programme on the workings and secrets of the Service were produced

around the same time, but little Government action was taken against

these authors or the media.

16.     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 Service.  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 refused

to indicate to Mr.  Wright and Heinemann Australia which parts of the

book, if any, they wished to have "blue pencilled" as containing

information damaging to national security.

17.     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 the Suez crisis.

        (iv)  MI5 plotted against 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.

18.     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, as well as

their editors and the two journalists who had written the articles,

and on 27 June 1986 obtained ex parte interim injunctions to restrain

further such publication by either newspaper pending the trial of the

actions.  (Hereafter reference will only be made to the two newspapers

and not all the individuals who were party to the proceedings.)  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 publication.  The evidential basis for the

claim by the Attorney General was the two affidavits sworn by

Sir Robert Armstrong in the Australian proceedings.

19.     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 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."

20.     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."

21.     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 (see paras. 39-44 below).

22.     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.

23.     On 27 April 1987, The Independent newspaper 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.

24.     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.

25.     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.

26.     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.

27.     Viking Penguin Incorporated purchased from Heinemann Australia

the United States (hereafter abbreviated to USA) publication rights to

the book and on 14 May 1987 Viking Penguin announced its intention of

publishing the book in the USA.

28.     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.

29.     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 the applicants, Times Newspapers

Limited and Andrew Neil, for 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 imports.  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 were widely advertised

in the UK.

30.     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 being 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.

31.     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."

32.     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.

33.     The applicants 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 applicants 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.

34.     The Vice-Chancellor granted a temporary injunction restraining

publication by the applicants 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 applicants 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 that claim.  He was also to hear the Attorney General's

application for an injunction against the applicants.  It was agreed

that if the injunctions against The Guardian and the Observer were

discharged, his claim against the applicants would also fail.

35.     The Vice-Chancellor heard argument from 20 to 22 July 1987.

He gave judgment on 22 July as follows:

        (i)    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.

        (ii)   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.

        (iii)  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.

        (iv)   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.

        (v)    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.

        (vi)   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 Service 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."

36.     The Attorney General immediately appealed and pending that

appeal the injunctions against The Guardian and the Observer, but not

against the applicants, were continued in force.

37.     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:

        (i)    The Vice-Chancellor had erred in law in various

        respects.

        (ii)   Therefore it was appropriate for the Court of Appeal

        to exercise its own discretion.

        (iii)  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.

38.     The Court of Appeal gave leave to all parties to appeal to the

Appellate Committee of the House of Lords.

39.     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 Service) 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).

40.     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.

41.     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; (this had been

                conceded by the appellant newspapers given the

                domestic law;)

                (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;

                this would extend, as was conceded by the appellant

                newspapers, to the need to restrain any market for the

                unauthorised disclosure or use of the confidential

                memoirs of Secret Service officers;

        (ii)    it accordingly followed that, notwithstanding the

        publication of "Spycatcher" in the USA, 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 result in the "sweeping aside"

        of the aforementioned public interest factor without any

        trial; the Attorney General would thus have been prematurely

        and permanently denied any protection from the courts.

42.     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.

43.     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.

44.     This judgment of the House of Lords terminated the

interlocutory proceedings in the UK.

45.     During the interlocutory proceedings in this case the

applicants 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 as follows:

        "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".

46.     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.

47.     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".

48.     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 were also brought by the Attorney General 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.

49.     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.

50.     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 lasted several days and took place before

Scott J. during the latter part of November and early December 1987.

The applicants were also party to these proceedings, in respect of a

determination of the Attorney General's claim against them for an

alleged breach of confidence, which claim had been initiated by the

Attorney General in a writ issued on 27 October 1987.  On 21 December

1987 Scott J. delivered judgment dismissing the actions and

discharging the injunctions against the first two newspapers ((1988)

2WLR 805).

51.     Scott J. described the facts leading up to the contempt

proceedings against the applicants, in the context of the background

of imminent publication of the book in the USA, the pending Australian

proceedings and the temporary injunctions against The Guardian and the

Observer, as follows:

        "In this climate the editor of The Sunday Times, Mr.  Neil,

        negotiated with the Australian publishers for the right to

        serialise the book in The Sunday Times.  Terms were reached

        and were set out in a letter dated 4 June 1987 which Mr.  Neil

        wrote to the publishers.  A price of $150,000 was agreed, of

        which $25,000 was payable at once and the balance after

        serialisation.  If serialisation were delayed a lesser sum

        would be payable.  Three or four extracts were contemplated,

        comprising together 20,000 to 25,000 words.  The letter of

        4 June 1987 contained a paragraph emphasising the need for

        secrecy.  It was clear from Mr.  Neil's evidence that he well

        understood that if anyone on the Government side smelt any

        whiff of The Sunday Times' intention to serialise, an

        application for a restraining injunction would immediately

        have been made by the Attorney General.

        Mr.  Neil wanted the serialisation of 'Spycatcher' in The

        Sunday Times to coincide with the publication of the book

        in the United States.  So liaison with Viking Penguin Inc.

        was necessary.  Further, Mr.  Neil knew that the undertakings

        which had been given to the court in Australia, and which

        continued pending the hearing of the appeal, would prevent

        the Australian publishers from sending him a copy of the

        manuscript.  Mr.  Neil had to obtain a copy of the manuscript

        in order to prepare the serialisation but could not obtain

        one from Australia.  His solution was to obtain one from

        the United States publishers, Viking Penguin Inc.  The launch

        of the book in the United States was due to take place on

        Monday 13 July.  On 7 July 1987 Mr.  Neil flew to the United

        States and obtained a copy of the manuscript with the

        intention that the first extract would appear in The Sunday

        Times on Sunday 12 July 1987.  It did so.  The publication

        of 12 July was accompanied by special measures to throw

        the Government off the scent.  The first edition of the

        newspaper, comprising some 76,000 copies, was published

        without the 'Spycatcher' extracts.  The extracts were

        included in the later editions.  This was to prevent the

        Government, on reading the first edition, from obtaining an

        immediate injunction to restrain the printing of the later

        editions.  By the time the later editions came to the

        Government's attention it would be too late for any action

        to be taken to restrain publication.  That was the plan and

        it worked.  The presses printing the later editions ran from

        7.08p.m. to 4.23a.m., during which time some 1.25 million

        copies carrying the 'Spycatcher' extracts were produced.

        There was evidence that sales of The Sunday Times of 12 July

        1987 were slightly above average.

        The next day, Monday 13 July 1987, the Attorney General

        commenced proceedings against The Sunday Times for contempt

        of court."

52.     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 applicants 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 they 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 applicants were

liable to account for the profits accruing to the company 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 Service 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.

53.     On appeal by the Attorney General and a cross-appeal by the

applicants, the Court of Appeal (Sir John Donaldson MR, Dillon and

Bingham LJJ) on 10 February 1988 (the hearings having been held from

18 to 25 January 1988), affirmed the decision of Scott J..  However,

again, the temporary injunctions were continued pending appeal to the

House of Lords.

54.     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 ((1988)3WLR 776).  Dismissing the appeal by the Attorney General

and the cross-appeal by the applicants, it held as follows:

        "(i)    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.

        (ii)   (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.

        (iii)  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.

        (iv)   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.

        (v)    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."

III.    OPINION OF THE COMMISSION

A.      Points at issue

55.     The following are the points at issue in the present

application:

-       whether the interlocutory injunctions imposed on the British

media by virtue of the House of Lords' judgment on 30 July 1987 were

in violation of the applicants' freedom of expression ensured by

Article 10 (Art. 10) of the Convention;

-       whether the applicants had an effective remedy, pursuant to

Article 13 (Art. 13) of the Convention, in respect of their complaint

under Article 10 (Art. 10);

-       whether the interlocutory injunctions also constituted

discrimination in violation of Article 14 of the Convention read in

conjunction with Article 10 (Art. 14+10).

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

56.     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.  This Article shall not prevent States from

        requiring the licensing of broadcasting, television or

        cinema enterprises.

        2.  The exercise of these freedoms, since it carries

        with it duties and responsibiities, 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."

57.     The Commission must proceed to examine whether the

interlocutory injunctions by which the applicants were bound

constituted an interference with their freedom of expression ensured

by Article 10 para. 1 (Art. 10-1) of the Convention; if so, whether that

interference was prescribed by law and whether it had a legitimate aim

or aims.  Finally, it must consider whether the interference was

necessary, i.e. corresponded to a pressing social need and was

proportionate to the pursuit of that or those legitimate aim or aims.

        a)  Interference with freedom of expression

58.     It is undisputed in the present case that the interlocutory

injunctions in effect imposed on the applicants and the whole of the

British media by the House of Lords' judgment of 30 July 1987

constituted an interference with the applicants' freedom of expression

ensured by Article 10 para. 1 (Art. 10-1) of the Convention.  These

injunctions prevented the applicants from, inter alia, publishing

further extracts from the book "Spycatcher", further details about the

allegedly unlawful conduct of the British Secret Service described in

that book, or further information obtained from the book's author,

Peter Wright, a retired member of that Service (paras. 19-20, 30-31

and 33-34 above).  The Commission finds that the gagging effect of the

injunctions, imposing prior restraint on further publication of

matters of legitimate public interest, constituted an interference

with the applicants' freedom of expression with wide repercussions.

The Commission must examine whether that interference was justified

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

        b)  Prescribed by law

59.     Any interference with freedom of expression must be prescribed

by law.  The word "law" in the expression "prescribed by law" covers

not only statute but also unwritten law such as the law of contempt of

court or breach of confidence in English common law.  Two requirements

flow from this expression, that of the adequate accessibility and

foreseeability of law, to enable the individual to regulate his

conduct in the light of the foreseeable consequences of a given action

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

No. 30, pp. 30-31, paras. 47-49).

60.     The applicants have contended that the imposition of temporary

injunctions in the present case was not "prescribed by law" within the

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

relevant domestic law being insufficiently foreseeable.  The

Government refuted this contention.  They submitted that the relevant

principles of law concerning the grant of interim injunctions pending

trial of an action were clear and well-established.

61.     The Commission notes that the relevant domestic law in the

present case concerned not only that of interim injunctions, but also

the law of contempt of court and breach of confidence, all being

aspects of English common law, i.e. non-statutory law.  At the outset

the Government were concerned to prevent the publication of

information directly or indirectly obtained from Peter Wright, a

retired member of the British Secret Service, who, in breach of his

professional duty of confidence, had divulged information about that

Service.

62.     A legal dispute arose between the Government, represented by

the Attorney General, and the applicants over whether, inter alia, a

third party, such as a newspaper, could be bound by that duty of

confidence and thereby prevented, by permanent injunction, from

publishing information obtained from Mr.  Wright.  It seems that the

applicants had conceded in the interlocutory proceedings that, for the

purposes of domestic law, the Attorney General had an arguable point,

albeit unfounded on the merits.  To protect the Attorney General's

interests as a litigant and maintain the procedural status quo until

the trial on the merits, the law of interim injunctions, as set out in

the case of American Cyanamid Co. v.  Ethicon Ltd <1975> AC 396, was

applied in this case (see para. 35 (iii) above).  Once the interim

injunctions were imposed on the Observer and Guardian newspapers the

whole of the British media was bound by them for as long as they

lasted by virtue of the law of contempt of court (see paras. 30-31 and

33 above).

63.     The Commission is of the opinion that a rule which authorises

prior restraint of a publication must specify the criteria for such a

restriction with sufficient precision to be compatible with the

Convention requirement "prescribed by law".  Having noted that even

after the publication of the book in the USA the Law Lords were not

able to agree on what importance should be attached to the

availability of the information contained in "Spycatcher" on the open

market, the Commission queries whether the different aspects of common

law applied in the present case were entirely clear.  However, the

Commission finds that the dominant legal principles in the present

case are those concerning the grant of interim injunctions.  It also

finds that they were well-established in English common law, at least

since 1975 in the aforementioned American Cyanamid case.  They can

therefore be said to have been adequately foreseeable.  The

differences between the parties in the present case have turned

principally on the necessity of imposing the interim injunctions,

not on the absence of any legal authority for doing so.  In these

circumstances, the Commission concludes that the interference with the

applicants' freedom of expression by interim injunctions imposed on

them by virtue of the House of Lords' judgment of 30 July 1987 was

"prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

        c)  Legitimate aim

64.     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.

65.     It is not disputed by the parties that the central purpose of

the interlocutory injunctions in the present case has been to protect

the position of the Attorney General as a litigant pending the trial

of the confidentiality claim on the merits.  The Commission considers

that such a purpose falls within the scope of the legitimate aim of

maintaining the authority and impartiality of the judiciary, within

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

Indirectly the imposition of the original injunctions on The Guardian

and Observer newspapers by Mr.  Justice Millett on 11 July 1986, and

which subsequently bound the whole of the British media including the

applicants, was also intended to serve the purpose of protecting

national security.  Mr.  Justice Millett considered that one of the

elements to be tested at the eventual trial was whether the efficacy

of the British Secret Service would be impaired if its officers felt

free to divulge confidential matters.  The Commission considers that

this, in principle, falls within the scope of the legitimate aim of

protecting the interests of national security, within the meaning of

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

Government have not directly relied on this aspect of justification

for the purposes of the proceedings before the Commission.

        d)  Necessary in a democratic society

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

in the circumstances to impose temporary injunctions in question.

67.     The adjective "necessary" within the meaning of Article 10

para. 2 (Art. 10-2) of the Convention is not synonymous with

"indispensable" or as flexible as "reasonable" or "desirable", but it

implies the existence of a pressing social need.

68.     The notion of necessity implies that the interference of which

complaint is made corresponds to this pressing social need, that it is

proportionate to the legitimate aim pursued and that the reasons given

by the national authorities to justify it are relevant and sufficient

(Eur. Court H.R., Barthold judgment of 25 March 1985, Series A No. 90,

pp. 24-25, para. 55).

69.     The initial responsibility for securing Convention rights and

freedoms lies with the individual Contracting State.  Accordingly

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

Contracting State a margin of appreciation, ultimate supervision of

which remains with the Convention organs.  The scope of the margin of

appreciation will vary depending on the aim pursued under Article 10

para. 2 (Art. 10-2) of the Convention.  The aim of the restriction in

the present case is the maintenance of the authority of the judiciary,

the protection of national security being a background element (see

paras. 64-65 above).

70.     The Court has acknowledged that the margin of appreciation

available to States in assessing the pressing social need to protect

certain aspects of national security is a wide one (Eur. Court H.R.,

Leander judgment of 26 March 1987, Series A No. 116, p. 25, para. 59).

The Court has also held that the expression "maintaining the authority

and impartiality of the judiciary" not only refers to maintaining

public confidence in the ability of the machinery of justice to

determine legal rights and obligations and to settle disputes, but

also encompasses the protection of the rights of litigants (Eur. Court

H.R., aforementioned Sunday Times judgment, p. 34, paras. 55-56).

However, the State's margin of appreciation in this area is more

restricted as the notion of the "authority" of the judiciary has a

more objective basis, reflecting a fairly substantial measure of

common ground in the domestic law and practice of the Contracting

States (ibid, pp. 35-37, para. 59).

71.     Freedom of expression constitutes one of the essential

foundations of a democratic society, in particular freedom of

political and public debate.  This is of special importance for the

free press which has a legitimate interest in reporting on and drawing

the public's attention to deficiencies in the operation of Government

services, including possible illegal activities.  It is incumbent on

the press to impart information and ideas about such matters and the

public has a right to receive them (cf. mutatis mutandis the

aforementioned Sunday Times judgment, p. 40, para. 65, and Eur. Court

H.R., Lingens judgment of 8 July 1986, Series A No. 103, p. 26, paras.

41-42).

72.     The Commission must now examine whether, in the circumstances

of the present case, there was a pressing social need to maintain the

interlocutory injunctions against the Observer and Guardian

newspapers, by which injunctions the applicants were bound, and

whether the injunctions were proportionate to the aim pursued.

73.     The applicants contended that there was no pressing social

need for the perpetuation of injunctions by the House of Lords on

30 July 1987 and by subsequent courts until 13 October 1988.  They

pointed out that by the end of July 1987 extensive details about the

contents of "Spycatcher" had been divulged in other books, television

interviews with Mr.  Wright and certain major newspapers in Britain,

Australia and the USA (paras. 15 and 23-24 above).  The book itself

went on sale in the USA on 14 July 1987.  It became an instant best

seller there and elsewhere (paras. 29 and 49 above).  Any further

restriction on the newspaper reporting of "Spycatcher" could not have

effectively protected the Attorney General's litigation interests

because the confidentiality which the Attorney General sought to

protect had been broken, the allegations in "Spycatcher" being public

knowledge by then.  The applicants contended that the application of

private litigation principles through the American Cyanamid case and

its test of the "balance of convenience" fell short of the

Convention's necessity test, and the need to balance the public's

right to be informed against the unrealistic confidentiality claim by

the Attorney General.

74.     The Government submitted that the temporary injunctions

imposed by the House of Lords on 30 July 1987, and perpetuated

thereafter by the English courts until 13 October 1988, were

necessary.  The fact that much of the information in question was

already in the public domain ignored the new source of information

provided by an insider, namely, Mr.  Wright and his book "Spycatcher".

It was his authoritative role as a retired member of the Security

Service, his breach of confidence with its repercussions on the

effective operation of the Service, which concerned the Government.

There was a clear need to preserve the subject matter of the case for

mature determination of the issues at the trial.  The applicants had

even conceded that under domestic law the Attorney General had an

arguable claim to a permanent injunction against them based on the law

of breach of confidence.  The imposition of merely temporary

injunctions until trial justifiably and proportionately responded to

the pressing social need of maintaining the authority of the

judiciary, within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention.

75.     The Commission is unable to accept the Government's

proposition.  It was clear by the time the book was published in the

USA that the confidentiality of information held by Peter Wright had

been destroyed.  The Commission observes that the Government had taken

no steps to prevent earlier disclosure of information by Mr.  Wright.

Moreover, the Government made no attempt to prevent the importation of

"Spycatcher" into the UK.  The Commission fails to see a pressing

social need to prevent the British public reading about something

which the rest of the world was free to read by then and which

concerned a matter of major interest to them.  Moreover, the argument

concerning the merely temporary nature of the injunctions loses its

cogency when account is taken of the fact that, first, related

proceedings against the Observer and Guardian newspapers had been

underway for some considerable time before the applicants became

involved in them; secondly, once the applicants were joined in these

proceedings even so they took over a year to complete and, thirdly,

the evidence upon which the House of Lords based its decision on the

merits in October 1988 was available by July 1987.

76.     In these circumstances the Commission is of the opinion that

the interlocutory injunctions imposed by the House of Lords on 30 July

1987, continuing in force until 13 October 1988, and which bound the

applicants, were not necessary and met no pressing social need to

maintain the authority and impartiality of the judiciary within the

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

        Conclusion

77.     The Commission concludes, by a unanimous vote, that there has

been a violation of Article 10 (Art. 10) of the Convention.

C.      As regards Article 13 (Art. 13) of the Convention

78.     Article 13 (Art. 13) of the Convention provides as follows:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding that

        the violation has been committed by persons acting in

        an official capacity."

79.     The applicants have contended that the House of Lords in its

judgment of 30 July 1987 failed to apply the principles laid down in

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

Convention, or its standards, are not incorporated into UK domestic

law, the applicants submitted that they had no effective remedy before

a national authority for their claims of a breach of Articles 10 (Art. 10)

and 14 (Art. 14) of the Convention.  The Government contended that

just as Article 13 (Art. 13) of the Convention does not guarantee a

remedy by which legislation can be controlled as to its conformity

with the Convention, so too Article 13 (Art. 13) cannot be interpreted

as guaranteeing a remedy against the decision of the highest court in

the domestic legal system which is allegedly in breach of a

substantive Article of the Convention.

80.     The Commission is of the opinion that the interpretation of

the Convention as a whole imposes certain limitations on the right to

a remedy recognised by Article 13 (Art. 13).  In the present case the

applicants  complain of a decision by the highest judicial authority

in the English legal system.  The Commission considers that in this

situation Article 13 (Art. 13) does not require yet a further remedy.

Article 13 (Art. 13) does not, therefore, apply in this case.

        Conclusion

81.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention.

D.      As regards Article 14 (Art. 14) of the Convention

82.     Article 14 (Art. 14) of the Convention provides as follows:

        "The enjoyment of the rights and freedoms set forth in

        this Convention shall be secured without discrimination

        on any ground such as sex, race, colour, language,

        religion, political or other opinion, national or social

        origin, association with a national minority, property,

        birth or other status."

83.     The applicants have contended that the House of Lords'

judgment of 30 July 1987 arbitrarily discriminated against them and

their readers.  It imposed restraints on the importing of the relevant

information in the UK by the applicants and by other British newspaper

and broadcasting organisations, when that information was widely

available to persons beyond the frontiers of the UK and when the

information could be imported into the UK by anyone who chose to buy

the book from a US bookshop.  Publishers in the USA were free to

impart the information and ideas to their readers, but the applicants

could not do so.  In the applicants' view there was no objective and

reasonable justification for such differences of treatment in the

enjoyment of freedom of expression regardless of frontiers.

84.     The Government responded that the restrictions imposed on the

applicants by reason of the law of contempt were no more extensive or

less favourable than on any other newspaper publisher or other section

of the media as regards the "Spycatcher" material.  The applicants

were subject to no difference in treatment under the law than others

in a comparable position.  The fact that the information was widely

available to persons beyond the frontiers of the UK was not evidence

of discriminatory treatment but a mere reflection of the fact that in

matters such as these the jurisdiction of the domestic court is in

essence territorial and the court has no power to control what occurs

outside its territorial jurisdiction.  The fact that no ban was

imposed on the importation of "Spycatcher" ignores the impact on the

administration of justice of the limited importation of individual

copies of the book compared with the publication of the contents of

the book in a mass circulation newspaper.  Neither newspaper

publishers nor their readers are in a comparable position to an

individual importing a copy of the book.

85.     The Commission is of the opinion that the applicants cannot

claim to be victims of a violation of Article 14 (Art. 14) of the

Convention in respect of their readers' freedom of expression (right

to receive information) ensured by Article 10 (Art. 10).  It also

agrees with the Government's contentions that the applicants were not

subject to any different treatment under the domestic law than others

in a comparable position.  The Government's liability under the

Convention is limited to its jurisdiction.  Within the United Kingdom

the whole of the British media was bound by the House of Lords'

judgment of 30 July 1987, by virtue of the law of contempt of court,

to refrain from publishing details of the contents of "Spycatcher".

In these circumstances the Commission considers that the applicants

did not suffer any discrimination in the enjoyment of their Article 10

(Art. 10) rights, contrary to Article 14 (Art. 14) of the Convention.

        Conclusion

86.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention.

E.      Recapitulation

87.     Commission concludes, by a unanimous vote, that there has been

a violation of Article 10 (Art. 10) of the Convention (para. 77).

88.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention (para. 81).

89.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention (para. 86).

    Secretary to the Commission          President of the Commission

           (H.C. KRÜGER)                        (C.A. NØRGAARD)

                Concurring opinion of Sir Basil Hall

        While my conclusion is too that there is a violation of

Article 10 of the Convention in this case, the grounds for my

conclusion differ from those of the majority of the Commission.

        I refer to my separate concurring opinion in the complaints

brought by the owners, editors and journalists of the Observer and

Guardian newspapers (No. 13585/86 Comm.  Report 12.7.90) and in

particular to the view there expressed that steps should have been

taken to ensure that a hearing on the merits took place at the

earliest possible date.  It is not my view that the justification for

the interim injunctions ceased on the publication of "Spycatcher" in

the USA and elsewhere.  There was still an arguable issue to be tried.

        However when proceedings for breach of confidence were

instituted against The Sunday Times on 27 October 1987, the issues in

those proceedings were virtually the same as those in the proceedings

against the Observer and Guardian, with the additional element that

The Sunday Times proposed to publish extracts from the book

"Spycatcher".  However a ban against the publication had, through the

law of contempt of court, been in effect since 17 July 1987 when the

Court of Appeal had found The Independent to have been in contempt of

court.

        A speedy determination of the Observer and Guardian actions

would have gone far to have determine the position of The Sunday

Times.

        When on 27 October 1987 The Sunday Times proprietors and

editor were joined in the actions relating to the Observer and

Guardian, the hearing on the merits was, in my view, already overdue,

something for which the United Kingdom authorities have a

responsibility.  The continuation of the interim injunctions was no

longer justifiable.  Their continuation prevented publication by The

Sunday Times.  In so far as there were separate issues in this case,

it is not apparent that they were such as to necessitate the delay

that occurred before the trial on the merits.

        There was, accordingly, a violation of Article 10 of the

Convention.

                                Appendix I

                        HISTORY OF THE PROCEEDINGS

     Date                                  Item

________________________________________________________________

31.07.87                        Introduction of the application

24.08.87                        Registration of the application

Examination of admissibility

07.10.87                        Commission's deliberations and

                                decision to invite the parties to

                                submit their written observations

                                on admissibility and merits

04.02.88                        Government's observations

21.03.88                        Applicants' reply

09.07.88                        Adjournment of application pending

                                final House of Lords' judgment

17.10.88                        Commission's deliberations and

                                decision to invite the parties to

                                comment on the relevance of the

                                House of Lords' judgment to the

                                application

02.02.89                        Applicants' further observations

10.02.89                        Government's further observations

09.05.89                        Commission's deliberations and

                                decision to hold a hearing.

                                Application joined to Application

                                No. 13585/89

05.10.89                        Hearing on admissibility and merits,

                                the parties being represented as

                                follows:

                                Government:

                                Mr.  M. Wood, Government Agent

                                Sir Patrick Mayhew, QC, MP, Attorney

                                General, Counsel

                                Mr.  N. Bratza, QC, Counsel

                                Mr.  P. Havers, Counsel

                                Mrs.  S. Evans, Home Office

                                Mrs.  S. Marsh, Legal Secretariat

                                to the Law Officers.

                                Applicants:

                                Mr.  A. Lester, QC, Counsel

                                Mr.  D. Pannick, Counsel

                                Mr.  A. Whitaker, Legal Manager of

                                Times Newspapers Ltd.

05.10.89                        Commission's deliberations and

                                decision to declare the application

                                admissible.

                                Application disjoined from

                                Application No. 13585/89

Examination of the merits

08.11.89                        Parties invited to submit further

                                written observations on the merits

08.01.90                        Government's observations

15.03.90                        Applicants' observations

02.07.90                        Government's further observations

03.07.90                        Commission's deliberations on the

                                merits and final votes

09.07.90                        Commission's deliberations on the

                                text of its Article 31 Report

12.07.90                        Adoption of Report

 

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