to a complete blackout on information received.
we hope to inform you of why? one day soon in the future.
It is sad in this day freedom is denied and suppressed.
keep tuning
The United Kingdom Commercial High Court has absolute supreme power.
We only publish for the moment what has been previously published.
Or if you are with blemish in the establishment will it.
The whole point of the justice system is for a judge to put things right when all else fails.
When a judge or judges fail with good integrity to protect the public they serve what does a person do to right a wrong.
If one has no funds to challenge corporate power then it is the corporate's who rule the law not the Judges in power. Corporate's and the misuse of power laugh in the face of good integrity.
No corporate power should have immunity to prosecution over Health & Safety Laws no Judge should condone such actions.
Below is a letter sent out to members of parliament on just such issues.
United Kingdom Public Disclosure Act 1998
The above act encourages people to raise concerns initially with their employers and the act gives legal protection against dismissal and other adverse actions such as victimisation should an employee disclose what they honestly consider to be malpractice and against the public interest in a number of defined areas such as.
Then if this is so why have British High Court Judges allowed the above to take place within court action against a British subject of Her Majesty The Queen.
The following letter attempts to highlight an injustice.
Pease House, 12a Horsemarket
DARLINGTON
County Durham
DL1 5PW
Telephone: 01325 365000
Fax: 01325 487334
mail@speakingup.freeserve.co.uk
advocacy-in-darlington.org.uk
Dear M.P
Contact is being made with every Member of Parliament in the house and every member of the House of Lords, every member has the same copy as you are reading. Will you have courage to act with good integrity.
I am writing for advice regarding a British citizen who contacted my advocacy service for urgent legal advice and assistance.
This man has been left completely isolated in a situation in which it would appear his former employers are preventing him simply from ‘whistle blowing’ about a huge public and personnel health issue
My client is bound by British High Court injunctions not to contact any member of parliament for advice or to discuss his plight in the media as a result of his Former Employer’s actions against him.
o He is also further injuncted not to contact any “legal or natural persons, or solicitors unless instructing the solicitors to act on his behalf”, seeking advice only is in breach of the court injunction unless he instructs the lawyer to represent him, and as he is impecunious and cannot obtain Legal Aid this is impossible.
o He is injuncted perpetually not to contact the media or press,
o He was also injuncted not to make application under the Freedom of Information
Act to seek information, even for evidence in his defence or ask for assistance
in his application from the Guardian Newspaper.
o He was ordered to supply the names and addresses of lawyers he contacted
o He was injuncted not to communicate with any legal or natural persons.
o He was ordered to place in possession of a lawyer he has since dismissed,
all information relating to this case.
o
o He was found in contempt jailed for two months (suspended for one year) in
part for contacting lawyers to aid in his defence.
o He has been denied certain humanitarian rights entitled to under The European Court of Human Rights.
o He can not reveal why the nature of the courts demands, even to you as an Member of Parliament for fear of threat, intimidation, incarceration and further mental stress.
o He can not complain about his solicitors actions to the law commission or indeed that of the applicants solicitor, as it may well breach the courts injunctions, by having to supply information banned by the High Court in his complaint.
o He has been forced to make private application to The European Court of Human Rights to request action be taken against The United Kingdom even though members of parliament can not be made aware of any issues, or to possibly assist him.
o He cannot even contact his sovereign queen Her Majesty Queen Elizabeth II to explain his plight without fear.
o He has been forced to the brink of bankruptcy with costs awarded against him of 200,000 pounds. He is in the process of such action for bankruptcy..
I ask you to bring this to the house’s attention as I feel there is little more I can do and this situation is unjust. If it were possible to give any further information he would, but he is in perpetual fear, as the injunctions imposed on him are made perpetual by the High Court.
The applicants lawyer Mark Davis openly advertises Hempel v B. Bradford on his company website www.davislaw.co.uk as a reported case, material my client understands deemed to be banned by the court. He does not have the same luxury of being able to tell people of his plight.
Websites such as www.cruisejunkie.com in one of its Editorial columns,” Events at Sea – How safe is your drinking water” are attempting to explain previously published material my client is injuncted against publishing. The proprietor of this website is well respected and is speaking to and has spoken to American senators on issues raised.
The complete social destruction of a United Kingdom subject is happening not to a terrorist suspect, rapist, murderer, paedophile government activist or a person with any criminal convictions, but to a previously hard working family man aged 54 with three children and four grand children.
Made possible by the United Kingdom High Court, he has had no proper defence council throughout since September 2005, as he is impecunious.
This is happening to a citizen of The United Kingdom. Why is it allowed to happen?
Is it possible for members of parliament to bring this to the attention of government and to the worldwide media? My client cannot, without fear of imprisonment. Are members of parliament afraid also to speak out.
He approached me because there was nowhere else to turn to and whilst I have done my best to assist him, I also ended up being threatened by the other side that have global interests and money. We have neither. Please help.
Yours sincerely
Chris
Here are some events that were previously banned in court action not necessarily in The United Kingdom but can now be shown due to eventual release by the European Court of Human Rights.
Information on many case studies can be found on the courts own web site listed below.
www.echr.coe.int
COURT (PLENARY)
CASE OF OBSERVER AND GUARDIAN v. THE UNITED KINGDOM
(Application no. 13585/88)
JUDGMENT
STRASBOURG
26 November 1991
In the case of the Observer and Guardian v. the United Kingdom?,
The European Court of Human Rights, taking its decision in plenary session in
pursuance of Rule 51 of the Rules of Court?? and composed of the following judges:
Mr R. RYSSDAL, President,
Mr J. CREMONA,
Mr Thór VILHJÁLMSSON,
Mrs D. BINDSCHEDLER-ROBERT,
Mr F. GÖLCÜKLÜ,
Mr F. MATSCHER,
Mr J. PINHEIRO FARINHA,
Mr L.-E. PETTITI,
Mr B. WALSH,
Sir Vincent EVANS,
Mr R. MACDONALD,
Mr C. RUSSO,
Mr R. BERNHARDT,
Mr A. SPIELMANN,
Mr J. DE MEYER,
Mr N. VALTICOS,
Mr S. K. MARTENS,
Mrs E. PALM,
Mr I. FOIGHEL,
Mr R. PEKKANEN,
Mr A.N. LOIZOU,
Mr J. M. MORENILLA,
Mr F. BIGI,
Mr A. BAKA,
and also of Mr M.-A. EISSEN, Registrar, and Mr H. PETZOLD, Deputy Registrar,
Having deliberated in private on 28 June and 24 October 1991,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court on 12 October 1990 by the European Commission
of Human Rights ("the Commission") and on 23 November 1990 by the
Government of the United Kingdom of Great Britain and Northern Ireland ("the
Government"), within the three-month period laid down in Article 32 para.
1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention"). It originated
in an application (no. 13585/88) against the United Kingdom lodged with the
Commission under Article 25 (art. 25) on 27 January 1988 by two companies incorporated
in England, The Observer Ltd and Guardian Newspapers Ltd, and five British citizens,
Mr Donald Trelford, Mr David Leigh, Mr Paul Lashmar, Mr Peter Preston and Mr
Richard Norton-Taylor.
The Commission’s request referred to Articles 44 and 48 (art. 44, art.
48) and the declaration whereby the United Kingdom recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46) and the Government’s
application, to Article 48 (art. 48). The object of the request and the application
was to obtain a decision as to whether or not the facts of the case disclosed
a breach by the respondent State of its obligations under Article 10 (art. 10)
and also, in the case of the request, Articles 13 and 14 (art. 13, art. 14)
of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of
the Rules of Court, the applicants stated that they wished to take part in the
proceedings and designated the lawyers who would represent them (Rule 30).
3. On 15 October 1990 the President of the Court decided, under Rule 21 para.
6 and in the interest of the proper administration of justice, that a single
Chamber should be constituted to consider both the instant case and the Sunday
Times (no. 2) case?.
The Chamber thus constituted included ex officio Sir Vincent Evans, the elected
judge of British nationality (Article 43 of the Convention) (art. 43), and Mr
R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 26 October
1990 the President drew by lot, in the presence of the Registrar, the names
of the seven other members, namely Mr J. Cremona, Mrs D. Bindschedler-Robert,
Mr F. Matscher, Mr R. Macdonald, Mr C. Russo, Mr R. Bernhardt and Mr R. Pekkanen
(Article 43 in fine of the Convention?? and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para.
5) and, through the Registrar, consulted the Agent of the Government, the Delegate
of the Commission and the representatives of the applicants on the need for
a written procedure (Rule 37 para. 1) and the date of the opening of the oral
proceedings (Rule 38).
In accordance with the President’s orders and directions, the registry
received, on 15 April 1991, the applicants’ memorial and, on 18 April,
the Government’s. By letter of 31 May 1991, the Secretary to the Commission
informed the Registrar that the Delegate would submit his observations at the
hearing.
5. On 21 March 1991 the Chamber decided, pursuant to Rule 51, to relinquish
jurisdiction forthwith in favour of the plenary Court.
6. On 25 March 1991 the President granted, under Rule 37 para. 2, leave to "Article
19" (the International Centre against Censorship) to submit written comments
on a specific issue arising in the case. He directed that the comments should
be filed by 15 May 1991; they were, in fact, received on that date.
7. As directed by the President, the hearing, devoted to the present and the
Sunday Times (no.2) cases, took place in public in the Human Rights Building,
Strasbourg, on 25 June 1991. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Government
Mrs A. GLOVER, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr N. BRATZA, Q.C.,
Mr P. HAVERS, Barrister-at-Law, Counsel,
Mrs S. EVANS, Home Office,
Mr D. BRUMMELL, Treasury Solicitor, Advisers;
- for the Commission
Mr E. BUSUTTIL, Delegate;
- for the applicants in the present case
Mr D. BROWNE, Q.C., Counsel,
Mrs J. MCDERMOTT, Solicitor;
- for the applicants in the Sunday Times (no. 2) case
Mr A. LESTER, Q.C.,
Mr D. PANNICK, Barrister-at-Law, Counsel,
Mr M. KRAMER,
Ms K. RIMELL, Solicitors,
Mr A. WHITAKER, Legal Manager,
Times Newspapers Ltd, Adviser.
The Court heard addresses by Mr Bratza for the Government, by Mr Busuttil for
the Commission and by Mr Browne and Mr Lester for the applicants, as well as
replies to questions put by the President of the Court.
8. The applicants filed a number of documents on the occasion of the hearing.
On 23 July, 5 August and 2 September 1991, respectively, the registry received
supplementary particulars of the applicants’ claim under Article 50 (art.
50) of the Convention, the observations of the Government on that claim and
the applicants’ reply to those observations. By letter of 17 September,
the Deputy Secretary to the Commission informed the Registrar that the Delegate
left this matter to the Court’s discretion.
AS TO THE FACTS
I. INTRODUCTION
A. The applicants
9. The applicants in this case (who are hereinafter together referred to as
"O.G.") are (a) The Observer Ltd, the proprietors and publishers of
the United Kingdom national Sunday newspaper Observer, Mr Donald Trelford, its
editor, and Mr David Leigh and Mr Paul Lashmar, two of its reporters; and (b)
Guardian Newspapers Ltd, the proprietors and publishers of the United Kingdom
national daily newspaper The Guardian, Mr Peter Preston, its editor, and Mr
Richard Norton-Taylor, one of its reporters. They complain of interlocutory
injunctions imposed by the English courts on the publication of details of the
book Spycatcher and information obtained from its author, Mr Peter Wright.
B. Interlocutory injunctions
10. In litigation where the plaintiff seeks a permanent injunction against the
defendant, the English courts have a discretion to grant the plaintiff an "interlocutory
injunction" (a temporary restriction pending the determination of the dispute
at the substantive trial) which is designed to protect his position in the interim.
In that event the plaintiff will normally be required to give an undertaking
to pay damages to the defendant should the latter succeed at the trial.
The principles on which such injunctions will be granted - to which reference
was made in the proceedings in the present case - were set out in American Cyanamid
Co. v. Ethicon Ltd ([1975] Appeal Cases 396) and may be summarised as follows.
(a) It is not for the court at the interlocutory stage to seek to determine
disputed issues of fact or to decide difficult questions of law which call for
detailed argument and mature consideration.
(b) Unless the material before the court at that stage fails to disclose that
the plaintiff has any real prospect of succeeding in his claim for a permanent
injunction, the court should consider, in the light of the particular circumstances
of the case, whether the balance of convenience lies in favour of granting or
refusing the interlocutory relief that is sought.
(c) If damages would be an adequate remedy for the plaintiff if he were to succeed
at the trial, no interlocutory injunction should normally be granted. If, on
the other hand, damages would not provide an adequate remedy for the plaintiff
but would adequately compensate the defendant under the plaintiff’s undertaking
if the defendant were to succeed at the trial, there would be no reason to refuse
an interlocutory injunction on this ground.
(d) It is where there is doubt as to the adequacy of the respective remedies
in damages available to either party or both that the question of balance of
convenience arises.
(e) Where other factors appear evenly balanced, it is a counsel of prudence
to take such measures as are calculated to preserve the status quo.
C. Spycatcher
11. Mr Peter Wright was employed by the British Government as a senior member
of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently,
without any authority from his former employers, he wrote his memoirs, entitled
Spycatcher, and made arrangements for their publication in Australia, where
he was then living. The book dealt with the operational organisation, methods
and personnel of MI5 and also included an account of alleged illegal activities
by the Security Service. He asserted therein, inter alia, that MI5 conducted
unlawful activities calculated to undermine the 1974-1979 Labour Government,
burgled and "bugged" the embassies of allied and hostile countries
and 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 had previously sought, unsuccessfully, to persuade the British Government
to institute an independent inquiry into these allegations. In 1987 such an
inquiry was also sought by, amongst others, a number of prominent members of
the 1974-1979 Labour Government, but in vain.
12. Part of the material in Spycatcher had already been published in a number
of books about the Security Service written by Mr Chapman Pincher. Moreover,
in July 1984 Mr Wright had given a lengthy interview to Granada Television (an
independent television company operating in the United Kingdom) about the work
of the service and the programme was shown again in December 1986. Other books
and another television programme on the workings and secrets of the service
were produced at about the same time, but little Government action was taken
against the authors or the media.
D. Institution of proceedings in Australia
13. In September 1985 the Attorney General of England and Wales ("the Attorney
General") instituted, on behalf of the United Kingdom Government, proceedings
in the Equity Division of the Supreme Court of New South Wales, Australia, to
restrain publication of Spycatcher and of any information therein derived from
Mr Wright’s work for the Security Service. The claim was based not on
official secrecy but on the ground that the disclosure of such information by
Mr Wright would constitute a breach of, notably, his duty of confidentiality
under the terms of his employment. On 17 September he and his publishers, Heinemann
Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to
publish pending the hearing of the Government’s claim for an injunction.
Throughout the Australian proceedings the Government objected to the book as
such; they declined to indicate which passages they objected to as being detrimental
to national security.
II. THE INTERLOCUTORY PROCEEDINGS IN ENGLAND AND EVENTS OCCURRING WHILST THEY
WERE IN PROGRESS
A. The Observer and Guardian articles and the ensuing injunctions
14. Whilst the Australian proceedings were still pending, there appeared, on
Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages
of the Observer and The Guardian reporting on the forthcoming hearing in Australia
and giving details of some of the contents of the manuscript of Spycatcher.
These two newspapers had for some time been conducting a campaign for an independent
investigation into the workings of the Security Service. The details given included
the following allegations of improper, criminal and unconstitutional conduct
on the part of MI5 officers:
(a) MI5 "bugged" all diplomatic conferences at Lancaster House in
London throughout the 1950’s and 1960’s, as well as the Zimbabwe
independence negotiations in 1979;
(b) MI5 "bugged" diplomats from France, Germany, Greece and Indonesia,
as well as Mr Kruschev’s hotel suite during his visit to Britain in the
1950’s, and was guilty of routine burglary and "bugging" (including
the entering of Soviet consulates abroad);
(c) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the
time of the Suez crisis;
(d) MI5 plotted against Harold Wilson during his premiership from 1974 to 1976;
(e) MI5 (contrary to its guidelines) diverted its resources to investigate left-wing
political groups in Britain.
The Observer and Guardian articles, which were written by Mr Leigh and Mr Lashmar
and by Mr Norton-Taylor respectively, were based on investigations by these
journalists from confidential sources and not on generally available international
press releases or similar material. However, much of the actual information
in the articles had already been published elsewhere (see paragraph 12 above).
The English courts subsequently inferred that, on the balance of probabilities,
the journalists’ sources must have come from the offices of the publishers
of Spycatcher or the solicitors acting for them and the author (see the judgment
of 21 December 1987 of Mr Justice Scott; paragraph 40 below).
15. The Attorney General instituted proceedings for breach of confidence in
the Chancery Division of the High Court of Justice of England and Wales against
O.G., seeking permanent injunctions restraining them from making any publication
of Spycatcher material. He based his claim on the principle that the information
in the memoirs was confidential and that a third party coming into possession
of information knowing that it originated from a breach of confidence owed the
same duty to the original confider as that owed by the original confidant. It
was accepted that an award of damages would have been an insufficient and inappropriate
remedy for the Attorney General and that only an injunction would serve his
purpose.
16. The evidential basis for the Attorney General’s claim was two affidavits
sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian
proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that
the publication of any narrative based on information available to Mr Wright
as a member of the Security Service would cause unquantifiable damage, both
to the service itself and to its officers and other persons identified, by reason
of the disclosures involved. It would also undermine the confidence that friendly
countries and other organisations and persons had in the Security Service and
create a risk of other employees or former employees of that service seeking
to publish similar information.
17. On 27 June 1986 ex parte interim injunctions were granted to the Attorney
General restraining any further publication of the kind in question pending
the substantive trial of the actions. On an application by O.G. and after an
inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery
Division) decided that these injunctions should remain in force, but with various
modifications. The defendants were given liberty to apply to vary or discharge
the orders on giving twenty-four hours’ notice.
18. The reasons for Mr Justice Millett’s decision may be briefly summarised
as follows.
(a) Disclosure by Mr Wright of information acquired as a member of the Security
Service would constitute a breach of his duty of confidentiality.
(b) O.G. wished to be free to publish further information deriving directly
or indirectly from Mr Wright and disclosing alleged unlawful activity on the
part of the Security Service, whether or not it had been previously published.
(c) Neither the right to freedom of speech nor the right to prevent the disclosure
of information received in confidence was absolute.
(d) In resolving, as in the present case, a conflict between the public interest
in preventing and the public interest in allowing such disclosure, the court
had to take into account all relevant considerations, including the facts that
this was an interlocutory application and not the trial of the action, that
the injunctions sought at this stage were only temporary and that the refusal
of injunctive relief might cause irreparable harm and effectively deprive the
Attorney General of his rights. In such circumstances, the conflict should be
resolved in favour of restraint, unless the court was satisfied that there was
a serious defence of public interest that might succeed at the trial: an example
would be when the proposed publication related to unlawful acts, the disclosure
of which was required in the public interest. This could be regarded either
as an exception to the American Cyanamid principles (see paragraph 10 above)
or their application in special circumstances where the public interest was
invoked on both sides.
(e) The Attorney General’s principal objection was not to the dissemination
of allegations about the Security Service but to the fact that those allegations
were made by one of its former employees, it being that particular fact which
O.G. wished to publish. There was credible evidence (in the shape of Sir Robert
Armstrong’s affidavits; see paragraph 16 above) that the appearance of
confidentiality was essential to the operation of the Security Service and that
the efficient discharge of its duties would be impaired, with consequent danger
to national security, if senior officers were known to be free to disclose what
they had learned whilst employed by it. Although this evidence remained to be
tested at the substantive trial, the refusal of an interlocutory injunction
would permit indirect publication and permanently deprive the Attorney General
of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful
activities had occurred some time in the past, there was, moreover, no compelling
interest requiring publication immediately rather than after the trial.
In the subsequent stages of the interlocutory proceedings, both the Court of
Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate
Committee of the House of Lords (see paragraphs 35-36 below) considered that
this initial grant of interim injunctions by Mr Justice Millett was justified.
19. On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld
the injunctions, with minor modifications. It referred to the American Cyanamid
principles (see paragraph 10 above) and considered that Mr Justice Millett had
not misdirected himself or exercised his discretion on an erroneous basis. It
refused leave to appeal to the House of Lords. It also certified the case as
fit for a speedy trial.
As amended by the Court of Appeal, the injunctions ("the Millett injunctions")
restrained O.G., until the trial of the action or further order, from:
"1. disclosing or publishing or causing or permitting to be disclosed or
published to any person any information obtained by Peter Maurice Wright in
his capacity as a member of the British Security Service and which they know,
or have reasonable grounds to believe, to have come or been obtained, whether
directly or indirectly, from the said Peter Maurice Wright;
2. attributing in any disclosure or publication made by them to any person any
information concerning the British Security Service to the said Peter Maurice
Wright whether by name or otherwise."
The orders contained the following provisos:
"1. this Order shall not prohibit direct quotation of attributions to Peter
Maurice Wright already made by Mr Chapman Pincher in published works, or in
a television programme or programmes broadcast by Granada Television;
2. no breach of this Order shall be constituted by the disclosure or publication
of any material disclosed in open court in the Supreme Court of New South Wales
unless prohibited by the Judge there sitting or which, after the trial there
in action no. 4382 of 1985, is not prohibited from publication;
3. no breach of this Order shall be constituted by a fair and accurate report
of proceedings in (a) either House of Parliament in the United Kingdom whose
publication is permitted by that House; or (b) a court of the United Kingdom
sitting in public."
20. On 6 November 1986 the Appellate Committee of the House of Lords granted
leave to appeal against the Court of Appeal’s decision. The appeal was
subsequently withdrawn in the light of the House of Lords decision of 30 July
1987 (see paragraphs 35-36 below).
B. The first-instance decision in Australia
21. The trial of the Government’s action in Australia (see paragraph 13
above) took place in November and December 1986. The proceedings were reported
in detail in the media in the United Kingdom and elsewhere. In a judgment delivered
on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim
against Mr Wright and his publishers, holding that much of the information in
Spycatcher was no longer confidential and that publication of the remainder
would not be detrimental to the British Government or the Security Service.
The undertakings not to publish were then discharged by order of the court.
The Attorney General lodged an appeal; after a hearing in the New South Wales
Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants
had given further undertakings not to publish whilst the appeal was pending.
C. Further press reports concerning Spycatcher; the Independent case
22. 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.
On 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 (hereinafter referred to as "the Independent case")
the Attorney General was not acting - as he was in the breach of confidence
proceedings against O.G. - as the representative of the Government, but independently
and in his capacity as "the guardian of the public interest in the due
administration of justice".
Reports similar to those of 27 April appeared on 29 April in Australia, in The
Melbourne Age and the Canberra Times, and on 3 May in the United States of America,
in The Washington Post.
23. On 29 April 1987 O.G. applied for the discharge of the Millett injunctions
(see paragraph 19 above) on the ground that there had been a significant change
of circumstances since they were granted. They referred to what had transpired
in the Australian proceedings and to the United Kingdom newspaper reports of
27 April.
The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications
on 7 May but adjourned them pending the determination of a preliminary issue
of law, raised in the Independent case (see paragraph 22 above), on which he
thought their outcome to be largely dependent, namely "whether a publication
made in the knowledge of an outstanding injunction against another party, 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". On 11 May,
in response to the Vice-Chancellor’s invitation, the Attorney General
pursued the proceedings in the Independent case in the Chancery Division of
the High Court and the Vice-Chancellor ordered the trial of the preliminary
issue.
24. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr
Wright’s Australian publishers the United States publication rights to
Spycatcher, announced its intention of publishing the book in the latter country.
25. On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law
in the Independent case. He held that the reports that had appeared on 27 April
1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt
of court because they were not in breach of the express terms of the Millett
injunctions and the three newspapers concerned had not been a party to those
injunctions or to a breach thereof by the persons they enjoined. The Attorney
General appealed.
26. On 15 June 1987 O.G., relying on the intended publication in the United
States, applied to have the hearing of their application for discharge of the
Millett injunctions restored (see paragraph 23 above). The matter was, however,
adjourned pending the outcome of the Attorney General’s appeal in the
Independent case, the hearing of which began on 22 June.
D. Serialisation of Spycatcher begins in The Sunday Times
27. On 12 July 1987 the United Kingdom national Sunday newspaper The Sunday
Times, which had purchased the British newspaper serialisation rights from Mr
Wright’s Australian publishers and 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 commenced proceedings for contempt of court
against Times Newspapers Ltd, the publisher of The Sunday Times, and Mr Andrew
Neil, its editor (hereinafter together referred to as "S.T."), on
the ground that the publication frustrated the purpose of the Millett injunctions.
E. Publication of Spycatcher in the United States of America
28. 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.
29. 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’s being available at United
Kingdom booksellers or public libraries.
F. Conclusion of the Independent case
30. On 15 July 1987 the Court of Appeal announced that it would reverse the
judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above).
Its reasons, which were handed down on 17 July, were basically as follows: the
purpose of the Millett injunctions was to preserve the confidentiality of the
Spycatcher material until the substantive trial of the actions against O.G.;
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 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 (sections 2(3) and 6(c) of the Contempt of Court Act 1981).
31. The Court of Appeal refused the defendants leave to appeal to the House
of Lords and they did not seek leave to appeal from the House itself. Neither
did they apply to the High Court for modification of the Millett injunctions.
The result of the Court of Appeal’s decision was that those injunctions
were effectively binding on all the British media, including The Sunday Times.
G. Conclusion of the interlocutory proceedings in the Observer, Guardian and
Sunday Times cases; maintenance of the Millett injunctions
32. S.T. made it clear that, unless restrained by law, they would publish the
second instalment of the serialisation of Spycatcher on 19 July 1987. On 16
July the Attorney General applied for an injunction to restrain them from publishing
further extracts, maintaining that this would constitute a contempt of court
by reason of the combined effect of the Millett injunctions and the decision
in the Independent case (see paragraph 30 above).
On the same day the Vice-Chancellor granted a temporary injunction restraining
publication by S.T. until 21 July 1987. It was agreed that on 20 July he would
consider the application by O.G. for discharge of the Millett injunctions (see
paragraph 26 above) and that, since they effectively bound S.T. as well, the
latter would have a right to be heard in support of that application. It was
further agreed that he would also hear the Attorney General’s claim for
an injunction against S.T. and that that claim would fail if the Millett injunctions
were discharged.
33. Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave
judgment on the last-mentioned date, discharging the Millett injunctions and
dismissing the claim for an injunction against S.T.
The Vice-Chancellor’s reasons may be briefly summarised as follows.
(a) There had, notably in view of the publication in the United States (see
paragraphs 28-29 above), been a radical change of circumstances, and it had
to be considered if it would be appropriate to grant the injunctions in the
new circumstances.
(b) Having regard to the case-law and notwithstanding the changed circumstances,
it had to be assumed that the Attorney General still had an arguable case for
obtaining an injunction against O.G. at the substantive trial; accordingly,
the ordinary American Cyanamid principles (see paragraph 10 above) fell to be
applied.
(c) Since damages would be an ineffective remedy for the Attorney General and
would be no compensation to the newspapers, it had to be determined where the
balance of convenience lay; the preservation of confidentiality should be favoured
unless another public interest outweighed it.
(d) Factors in favour of continuing the injunctions were: the proceedings were
only interlocutory; there was nothing new or urgent about Mr Wright’s
allegations; the injunctions would bind all the media, so that there would be
no question of discrimination; undertakings not to publish were still in force
in Australia; to discharge the injunctions would mean that the courts were powerless
to preserve confidentiality; to continue the injunctions would discourage others
from following Mr Wright’s example.
(e) Factors in favour of discharging the injunctions were: publication in the
United States had destroyed a large part of the purpose of the Attorney General’s
actions; publications in the press, especially those concerning allegations
of unlawful conduct in the public service, should not be restrained unless this
was unavoidable; the courts would be brought into disrepute if they made orders
manifestly incapable of achieving their purpose.
(f) The matter was quite nicely weighted and in no sense obvious but, with hesitation,
the balance fell in favour of discharging the injunctions.
The Attorney General immediately appealed against the Vice-Chancellor’s
decision; pending the appeal the injunctions against O.G., but not the injunction
against S.T. (see paragraph 32 above), were continued in force.
34. In a judgment of 24 July 1987 the Court of Appeal held that:
(a) the Vice-Chancellor had erred in law in various respects, so that the Court
of Appeal could exercise its own discretion;
(b) in the light of the American publication of Spycatcher, it was inappropriate
to continue the Millett injunctions in their original form;
(c) it was, however, appropriate to vary these injunctions to restrain publication
in the course of business of all or part of the book or other statements by
or attributed to Mr Wright on security matters, but to permit "a summary
in very general terms" of his allegations.
The members of the Court of Appeal considered that continuation of the injunctions
would: serve to restore confidence in the Security Service by showing that memoirs
could not be published without authority (Sir John Donaldson, Master of the
Rolls); serve to protect the Attorney General’s rights until the trial
(Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the
dissemination of material written in breach of confidence (Lord Justice Russell).
The Court of Appeal gave leave to all parties to appeal to the House of Lords.
35. After hearing argument from 27 to 29 July 1987 (when neither side supported
the Court of Appeal’s compromise solution), the Appellate Committee of
the House of Lords gave judgment on 30 July, holding, by a majority of three
(Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge
of Harwich - the immediate past Chairman of the Security Commission - and Lord
Oliver of Aylmerton), that the Millett injunctions should continue. In fact,
they subsequently remained in force until the commencement of the substantive
trial in the breach of confidence actions on 23 November 1987 (see paragraph
39 below).
The majority also decided that the scope of the injunctions should be widened
by the deletion of part of the proviso that had previously allowed certain reporting
of the Australian proceedings (see paragraph 19 above), since the injunctions
would be circumvented if English newspapers were to reproduce passages from
Spycatcher read out in open court. In the events that happened, this deletion
had, according to the Government, no practical incidence on the reporting of
the Australian proceedings.
36. The members of the Appellate Committee gave their written reasons on 13
August 1987; they may be briefly summarised as follows.
(a) Lord Brandon of Oakbrook
(i) The object of the Attorney General’s actions against O.G. was the
protection of an important public interest, namely the maintenance as far as
possible of the secrecy of the Security Service; as was recognised in Article
10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression
was subject to certain exceptions, including the protection of national security.
(ii) The injunctions in issue were only temporary, being designed to hold the
ring until the trial, and their continuation did not prejudge the decision to
be made at the trial on the claim for final injunctions.
(iii) The view taken in the courts below, before the American publication, that
the Attorney General had a strong arguable case for obtaining final injunctions
at the trial was not really open to challenge.
(iv) Publication in the United States had weakened that case, but it remained
arguable; it was not clear whether, as a matter of law, that publication had
caused the newspapers’ duty of non-disclosure to lapse. Although the major
part of the potential damage adverted to by Sir Robert Armstrong (see paragraph
16 above) had already been done, the courts might still be able to take useful
steps to reduce the risk of similar damage by other Security Service employees
in the future. This risk was so serious that the courts should do all they could
to minimise it.
(v) The only way to determine the Attorney General’s case justly and to
strike the proper balance between the public interests involved was to hold
a substantive trial at which evidence would be adduced and subjected to cross-examination.
(vi) Immediate discharge of the injunctions would completely destroy the Attorney
General’s arguable case at the interlocutory stage, without his having
had the opportunity of having it tried on appropriate evidence.
(vii) Continuing the injunctions until the trial would, if the Attorney General’s
claims then failed, merely delay but not prevent the newspapers’ right
to publish information which, moreover, related to events that had taken place
many years in the past.
(viii) In the overall interests of justice, a course which could only result
in temporary and in no way irrevocable damage to the cause of the newspapers
was to be preferred to one which might result in permanent and irrevocable damage
to the cause of the Attorney General.
(b) Lord Templeman (who agreed with the observations of Lords Brandon and Ackner)
(i) The appeal involved a conflict between the right of the public to be protected
by the Security Service and its right to be supplied with full information by
the press. It therefore involved consideration of the Convention, the question
being whether the interference constituted by the injunctions was, on 30 July
1987, necessary in a democratic society for one or more of the purposes listed
in Article 10 para. 2 (art. 10-2).
(ii) In terms of the Convention, the restraints were necessary in the interests
of national security, for protecting the reputation or rights of others, for
preventing the disclosure of information received in confidence and for maintaining
the authority of the judiciary. The restraints would prevent harm to the Security
Service, notably in the form of the mass circulation, both now and in the future,
of accusations to which its members could not respond. To discharge the injunctions
would surrender to the press the power to evade a court order designed to protect
the confidentiality of information obtained by a member of the Service.
(c) Lord Ackner (who agreed with the observations of Lord Templeman)
(i) It was accepted by all members of the Appellate Committee that: the Attorney
General had an arguable case for a permanent injunction; damages were a worthless
remedy for the Crown which, if the Millett injunctions were not continued, would
lose forever the prospect of obtaining permanent injunctions at the trial; continuation
of the Millett injunctions was not a "final locking-out" of the press
which, if successful at the trial, would then be able to publish material that
had no present urgency; there was a real public interest, that required protection,
concerned with the efficient functioning of the Security Service and it extended,
as was not challenged by the newspapers, to discouraging the use of the United
Kingdom market for the dissemination of unauthorised memoirs of Security Service
officers.
(ii) It would thus be a denial of justice to refuse to allow the injunctions
to continue until the trial, for that would sweep aside the public-interest
factor without any trial and would prematurely and permanently deny the Attorney
General any protection from the courts.
(d) Lord Bridge of Harwich
(i) The case in favour of maintaining the Millett injunctions - which had been
properly granted in the first place - would not be stronger at the trial than
it was now; it would be absurd to continue them temporarily if no case for permanent
injunctions could be made out.
(ii) Since the Spycatcher allegations were now freely available to the public,
it was manifestly too late for the injunctions to serve the interest of national
security in protecting sensitive information.
(iii) It could be assumed that the Attorney General could still assert a bare
duty binding on the newspapers, but the question was whether the Millett injunctions
could still protect an interest of national security of sufficient weight to
justify the resultant encroachment on freedom of speech. The argument that their
continuation would have a deterrent effect was of minimal weight.
(iv) The attempt to insulate the British public from information freely available
elsewhere was a significant step down the road to censorship characteristic
of a totalitarian regime and, if pursued, would lead to the Government’s
condemnation and humiliation by the European Court of Human Rights.
(e) Lord Oliver of Aylmerton
(i) Mr Justice Millett’s initial order was entirely correct.
(ii) The injunctions had originally been imposed to preserve the confidentiality
of what were at the time unpublished allegations, but that confidentiality had
now been irrevocably destroyed by the publication of Spycatcher. It was questionable
whether it was right to use the injunctive remedy against the newspapers (who
had not been concerned with that publication) for the remaining purpose which
the injunctions might serve, namely punishing Mr Wright and providing an example
to others.
(iii) The newspapers had presented their arguments on the footing that the Attorney
General still had an arguable case for the grant of permanent injunctions and
there was force in the view that the difficult and novel point of law involved
should not be determined without further argument at the trial. However, in
the light of the public availability of the Spycatcher material, it was difficult
to see how it could be successfully argued that the newspapers should be permanently
restrained from publishing it and the case of the Attorney General was unlikely
to improve in the meantime. No arguable case for permanent injunctions at the
trial therefore remained and the Millett injunctions should accordingly be discharged.
H. Conclusion of the Australian proceedings; further publication of Spycatcher
37. On 24 September 1987 the New South Wales Court of Appeal delivered judgment
dismissing the Attorney General’s appeal (see paragraph 21 above); the
majority held that his claim was not justiciable in an Australian court since
it involved either an attempt to enforce indirectly the public laws of a foreign
State or a determination of the question whether publication would be detrimental
to the public interest in the United Kingdom.
The Attorney General appealed to the High Court of Australia. In view of the
publication of Spycatcher in the United States and elsewhere, that court declined
to grant temporary injunctions restraining its publication in Australia pending
the hearing; it was published in that country on 13 October. The appeal was
dismissed on 2 June 1988, on the ground that, under international law, a claim
- such as the Attorney General’s - to enforce British governmental interests
in its security service was unenforceable in the Australian courts.
Further proceedings brought by the Attorney General against newspapers for injunctions
were successful in Hong Kong but not in New Zealand.
38. In the meantime publication and dissemination of Spycatcher and its contents
continued worldwide, not only in the United States (around 715,000 copies were
printed and nearly all were sold by October 1987) and in Canada (around 100,000
copies printed), but also in Australia (145,000 copies printed, of which half
were sold within a month) and Ireland (30,000 copies printed and distributed).
Nearly 100,000 copies were sent to various European countries other than the
United Kingdom and copies were distributed from Australia in Asian countries.
Radio broadcasts in English about the book were made in Denmark and Sweden and
it was translated into twelve other languages, including ten European.
III. THE SUBSTANTIVE PROCEEDINGS IN ENGLAND
A. Breach of confidence
39. On 27 October 1987 the Attorney General instituted proceedings against S.T.
for breach of confidence; in addition to injunctive relief, he sought a declaration
and an account of profits. The substantive trial of that action and of his actions
against O.G. (see paragraph 15 above) - in which, by an amendment of 30 October,
he now claimed a declaration as well as an injunction - took place before Mr
Justice Scott in the High Court in November-December 1987. He heard evidence
on behalf of all parties, the witnesses including Sir Robert Armstrong (see
paragraph 16 above). He also continued the interlocutory injunctions, pending
delivery of his judgment.
40. Mr Justice Scott gave judgment on 21 December 1987; it contained the following
observations and conclusions.
(a) The ground for the Attorney General’s claim for permanent injunctions
was no longer the preservation of the secrecy of certain information but the
promotion of the efficiency and reputation of the Security Service.
(b) Where a duty of confidence is sought to be enforced against a newspaper
coming into possession of information known to be confidential, the scope of
its duty will depend on the relative weights of the interests claimed to be
protected by that duty and the interests served by disclosure.
(c) Account should be taken of Article 10 (art. 10) of the Convention and the
judgments of the European Court establishing that a limitation of free expression
in the interests of national security should not be regarded as necessary unless
there was a "pressing social need" for the limitation and it was "proportionate
to the legitimate aims pursued".
(d) Mr Wright owed a duty to the Crown not to disclose any information obtained
by him in the course of his employment in MI5. He broke that duty by writing
Spycatcher and submitting it for publication, and the subsequent publication
and dissemination of the book 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 Spycatcher in the United Kingdom.
(e) O.G. were not in breach of their duty of confidentiality, created by being
recipients of Mr Wright’s unauthorised disclosures, in publishing their
respective articles of 22 and 23 June 1986 (see paragraph 14 above): the articles
were a fair report in general terms of the forthcoming trial in Australia and,
furthermore, disclosure of two of Mr Wright’s allegations was justified
on an additional ground relating to the disclosure of "iniquity".
(f) S.T., on the other hand, had been in breach of the duty of confidentiality
in publishing the first instalment of extracts from the book on 12 July 1987
(see paragraph 27 above), since those extracts contained certain material which
did not raise questions of public interest outweighing those of national security.
(g) S.T. were liable to account for the profits accruing to them as a result
of the publication of that instalment.
(h) The Attorney General’s claims for permanent injunctions failed because
the publication and worldwide dissemination of Spycatcher since July 1987 had
had the result that there was no longer any duty of confidence lying on newspapers
or other third parties in relation to the information in the book; as regards
this issue, a weighing of the national security factors relied on against the
public interest in freedom of the press showed the latter to be overwhelming.
(i) The Attorney General was not entitled to a general injunction restraining
future publication of information derived from Mr Wright or other members of
the Security Service.
After hearing argument, Mr Justice Scott imposed fresh temporary injunctions
pending an appeal to the Court of Appeal; those injunctions contained a proviso
allowing reporting of the Australian proceedings (see paragraphs 19 and 35 above).
41. On appeal by the Attorney General and a cross-appeal by S.T., the Court
of Appeal (composed of Sir John Donaldson, Master of the Rolls, Lord Justice
Dillon and Lord Justice Bingham) affirmed, on 10 February 1988, the decision
of Mr Justice Scott.
However, Sir John Donaldson disagreed with his view that the articles in the
Observer and The Guardian had not constituted a breach of their duty of confidence
and that the claim for an injunction against these two newspapers in June 1986
was not "proportionate to the legitimate aim pursued". Lord Justice
Bingham, on the other hand, disagreed with Mr Justice Scott’s view that
S.T. had been in breach of duty by publishing the first instalment of extracts
from Spycatcher, that they should account for profits and that the Attorney
General had been entitled, in the circumstances as they stood in July 1987,
to injunctions preventing further serialisation.
After hearing argument, the Court of Appeal likewise granted fresh temporary
injunctions, pending an appeal to the House of Lords; O.G. and S.T. were given
liberty to apply for variation or discharge if any undue delay arose.
42. On 13 October 1988 the Appellate Committee of the House of Lords (Lord Keith
of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey
of Tullichettle) also affirmed Mr Justice Scott’s decision. Dismissing
an appeal by the Attorney General and a cross-appeal by S.T., it held:
"(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 [1986]
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 [those] articles; 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 United States 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."
B. Contempt of court
43. The substantive trial of the Attorney General’s actions for contempt
of court against The Independent, The London Evening Standard, the London Daily
News (see paragraph 22 above), S.T. (see paragraph 27 above) and certain other
newspapers took place before Mr Justice Morritt in the High Court in April 1989.
On 8 May he held, inter alia, that The Independent and S.T. had been in contempt
of court and imposed a fine of £50,000 in each case.
44. On 27 February 1990 the Court of Appeal dismissed appeals by the latter
two newspapers against the finding that they had been in contempt but concluded
that no fines should be imposed. A further appeal by S.T. against the contempt
finding was dismissed by the Appellate Committee of the House of Lords on 11
April 1991.
PROCEEDINGS BEFORE THE COMMISSION
45. In their application (no. 13585/88) lodged with the Commission on 27 January
1988, O.G. alleged that the interlocutory injunctions in question constituted
an unjustified interference with their freedom of expression, as guaranteed
by Article 10 (art. 10) of the Convention. They further claimed that, contrary
to Article 13 (art. 13), they had no effective remedy before a national authority
for their Article 10 (art. 10) complaint and that they were victims of discrimination
in breach of Article 14 (art. 14).
46. The Commission declared the application admissible on 5 October 1989. In
its report of 12 July 1990 (Article 31) (art. 31), it expressed the opinion:
(a) by six votes to five, that there had been a violation of Article 10 (art.
10) in respect of temporary injunctions imposed on O.G. for the period from
11 July 1986 to 30 July 1987;
(b) unanimously, that there had been a violation of Article 10 (art. 10) in
respect of temporary injunctions imposed on O.G. for the period from 30 July
1987 to 13 October 1988;
(c) unanimously, that there had been no violation of Article 13 or Article 14
(art. 13, art. 14) .
The full text of the Commission’s opinion and of the two separate opinions
contained in the report is reproduced as an annex to this judgment?.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
47. At the hearing on 25 June 1991, the Government invited the Court to make
the findings set out in their memorial, namely that there had been no breach
of O.G.’s rights under Articles 10, 13 or 14 (art. 10, art. 13, art. 14).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
48. O.G. alleged that, by reason of the interlocutory injunctions to which they
had been subject from 11 July 1986 to 13 October 1988, they had been victims
of a violation of Article 10 (art. 10) of the Convention, which 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 (art.
10) 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 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."
This allegation was contested by the Government. It was accepted by the Commission,
by a majority as regards the period from 11 July 1986 to 30 July 1987 and unanimously
as regards the period from 30 July 1987 to 13 October 1988.
49. The restrictions complained of clearly constituted, as was not disputed,
an "interference" with O.G.’s exercise of their freedom of expression,
as guaranteed by paragraph 1 of Article 10 (art. 10-1). Such an interference
entails a violation of Article 10 (art. 10) if it does not fall within one of
the exceptions provided for in paragraph 2 (art. 10-2); the Court must therefore
examine in turn whether the interference was "prescribed by law",
whether it had an aim or aims that is or are legitimate under Article 10 para.
2 (art. 10-2) and whether it was "necessary in a democratic society"
for the aforesaid aim or aims.
A. Was the interference "prescribed by law"?
50. O.G. did not deny that the grant of the interlocutory injunctions was in
accordance with domestic law. Although they laid no emphasis on this point at
the hearing, they did maintain in their memorial that the interference complained
of was not "prescribed by law" for the purposes of Article 10 (art.
10). This contention was challenged by the Government and was not accepted by
the Commission.
51. It is true that the Attorney General’s actions for breach of confidence
raised issues of law which were not clarified until judgment had been given
on the merits. However, O.G.’s complaint was not directed to this aspect
of the case, but solely to the legal principles upon which the injunctions were
granted, which principles were, in their submission, neither adequately accessible
nor sufficiently foreseeable (see the Sunday Times judgment of 26 April 1979,
Series A no. 30, p. 31, para. 49).
52. In the Court’s view, no problem arises concerning accessibility, since
the relevant guidelines had been enunciated by the House of Lords several years
previously, in 1975, in American Cyanamid Co. v. Ethicon Ltd (see paragraph
10 above).
53. (a) As regards foreseeability, O.G. advanced three specific arguments.
(i) It was not clear whether the American Cyanamid decision had overruled certain
earlier rules relating to the grant of injunctions in particular areas of the
law. The Court notes, however, that O.G. themselves recognised that the principles
laid down in that decision had been expressed to be applicable to all classes
of action.
(ii) There had never been a case similar to theirs in which the American Cyanamid
principles had been applied. This fact, in the Court’s view, is of little
consequence in the present context: since the principles were expressed to be
of general application, recourse had perforce to be had to them from time to
time in novel situations, so that their utilisation on this occasion involved
no more than the application of existing rules to a different set of circumstances.
(iii) It was not until judgment was given on the merits of the Attorney General’s
actions (see paragraphs 39-42 above) that it became clear that an injunction
would be granted in a case of this kind only on proof of potential detriment
to the public interest. This, however, suggests that there was a greater likelihood
of a restriction being imposed under the law as it stood previously.
(b) More generally, having examined the American Cyanamid principles in the
light of its above-mentioned Sunday Times judgment (Series A no. 30), and especially
paragraph 49 thereof, the Court entertains no doubt that they were formulated
with a degree of precision that is sufficient in a matter of this kind. It considers
that O.G. must have been able to foresee, to an extent that was reasonable in
the circumstances, a risk that the interlocutory injunctions would be imposed.
54. The interference was accordingly "prescribed by law".
B. Did the interference have aims that are legitimate under Article 10 para.
2 (art. 10-2)?
55. The Government submitted that the interlocutory injunctions were designed
to protect the Attorney General’s rights at the substantive trial and
therefore had the aim, that was legitimate in terms of paragraph 2 of Article
10 (art. 10-2), of "maintaining the authority of the judiciary". Before
the Court, they also asserted that the injunctions indirectly served the aim
of protecting national security, since the underlying purpose of the Attorney
General’s actions was to prevent the effective operation of the Security
Service from being undermined.
Although O.G. expressed certain reservations on the second of these points,
they did not seek to deny that the interference had a legitimate aim.
56. The Court is satisfied that the injunctions had the direct or primary aim
of "maintaining the authority of the judiciary", which phrase includes
the protection of the rights of litigants (see the above-mentioned Sunday Times
judgment, Series A no. 30, p. 34, para. 56). Perusal of the relevant domestic
judgments makes it perfectly clear that the purpose of the order made against
O.G. was - to adopt the description given by Lord Oliver of Aylmerton (Attorney
General v. Times Newspapers Ltd [1991] 2 Weekly Law Reports 1019G) - "to
enable issues between the plaintiff and the defendants to be tried without the
plaintiff’s rights in the meantime being prejudiced by the doing of the
very act which it was the purpose of the action to prevent".
It is also incontrovertible that a further purpose of the restrictions complained
of was the protection of national security. They were imposed, as has just been
seen, with a view to ensuring a fair trial of the Attorney General’s claim
for permanent injunctions against O.G. and the evidential basis for that claim
was the two affidavits sworn by Sir Robert Armstrong, in which he deposed to
the potential damage which publication of the Spycatcher material would cause
to the Security Service (see paragraph 16 above). Not only was that evidence
relied on by Mr Justice Millett when granting the injunctions initially (see
paragraph 18 (e) above), but considerations of national security featured prominently
in all the judgments delivered by the English courts in this case (see paragraphs
18, 34, 36 and 40 above). The Court would only comment - and it will revert
to this point in paragraph 69 below - that the precise nature of the national
security considerations involved varied over the course of time.
57. The interference complained of thus had aims that were legitimate under
paragraph 2 of Article 10 (art. 10-2).
C. Was the interference "necessary in a democratic society"?
58. Argument before the Court was concentrated on the question whether the interference
complained of could be regarded as "necessary in a democratic society".
After summarising the relevant general principles that emerge from its case-law,
the Court will, like the Commission, examine this issue with regard to two distinct
periods, the first running from 11 July 1986 (imposition of the Millett injunctions)
to 30 July 1987 (continuation of those measures by the House of Lords), and
the second from 30 July 1987 to 13 October 1988 (final decision on the merits
of the Attorney General’s actions for breach of confidence).
1. General principles
59. The Court’s judgments relating to Article 10 (art. 10) - starting
with Handyside (7 December 1976; Series A no. 24), concluding, most recently,
with Oberschlick (23 May 1991; Series A no. 204) and including, amongst several
others, Sunday Times (26 April 1979; Series A no. 30) and Lingens (8 July 1986;
Series A no. 103) - enounce the following major principles.
(a) Freedom of expression constitutes one of the essential foundations of a
democratic society; subject to paragraph 2 of Article 10 (art. 10-2), it is
applicable not only to "information" or "ideas" that are
favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Freedom of expression, as enshrined
in Article 10 (art. 10), is subject to a number of exceptions which, however,
must be narrowly interpreted and the necessity for any restrictions must be
convincingly established.
(b) These principles are of particular importance as far as the press is concerned.
Whilst it must not overstep the bounds set, inter alia, in the "interests
of national security" or for "maintaining the authority of the judiciary",
it is nevertheless incumbent on it to impart information and ideas on matters
of public interest. Not only does the press have the task of imparting such
information and ideas: the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of "public
watchdog".
(c) The adjective "necessary", within the meaning of Article 10 para.
2 (art. 10-2), implies the existence of a "pressing social need".
The Contracting States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with a European supervision, embracing
both the law and the decisions applying it, even those given by independent
courts. The Court is therefore empowered to give the final ruling on whether
a "restriction" is reconcilable with freedom of expression as protected
by Article 10 (art. 10).
(d) The Court’s task, in exercising its supervisory jurisdiction, is not
to take the place of the competent national authorities but rather to review
under Article 10 (art. 10) the decisions they delivered pursuant to their power
of appreciation. This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably, carefully
and in good faith; what the Court has to do is to look at the interference complained
of in the light of the case as a whole and determine whether it was "proportionate
to the legitimate aim pursued" and whether the reasons adduced by the national
authorities to justify it are "relevant and sufficient".
60. For the avoidance of doubt, and having in mind the written comments that
were submitted in this case by "Article 19" (see paragraph 6 above),
the Court would only add to the foregoing that Article 10 (art. 10) of the Convention
does not in terms prohibit the imposition of prior restraints on publication,
as such. This is evidenced not only by the words "conditions", "restrictions",
"preventing" and "prevention" which appear in that provision,
but also by the Court’s Sunday Times judgment of 26 April 1979 and its
markt intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989 (Series
A no. 165). On the other hand, the dangers inherent in prior restraints are
such that they call for the most careful scrutiny on the part of the Court.
This is especially so as far as the press is concerned, for news is a perishable
commodity and to delay its publication, even for a short period, may well deprive
it of all its value and interest.
2. The period from 11 July 1986 to 30 July 1987
61. In assessing the necessity for the interference with O.G.’s freedom
of expression during the period from 11 July 1986 to 30 July 1987, it is essential
to have a clear picture of the factual situation that obtained when Mr Justice
Millett first imposed the injunctions in question.
At that time O.G. had only published two short articles which, in their submission,
constituted fair reports concerning the issues in the forthcoming hearing in
Australia; contained information that was of legitimate public concern, that
is to say allegations of impropriety on the part of officers of the British
Security Service; and repeated material which, with little or no action on the
part of the Government to prevent this, had for the most part already been made
public.
Whilst substantially correct, these submissions do not tell the whole story.
They omit, in the first place, O.G.’s acknowledgment, before Mr Justice
Millett, that they wished to be free to publish further information deriving
directly or indirectly from Mr Wright and disclosing alleged unlawful activity
on the part of the Security Service, whether or not it had been previously published
(see paragraph 18 (b) above). What they also omit is the fact that in July 1986
Spycatcher existed only in manuscript form. It was not then known precisely
what the book would contain and, even if the previously-published material furnished
some clues in this respect, it might have been expected that the author would
seek to say something new. And it was not unreasonable to suppose that where
a former senior employee of a security service - an "insider", such
as Mr Wright - proposed to publish, without authorisation, his memoirs, there
was at least a risk that they would comprise material the disclosure of which
might be detrimental to that service; it has to be borne in mind that in such
a context damaging information may be gleaned from an accumulation of what appear
at first sight to be unimportant details. What is more, it was improbable in
any event that all the contents of the book would raise questions of public
concern outweighing the interests of national security.
62. Mr Justice Millett’s decision to grant injunctions - which, in the
subsequent stages of the interlocutory proceedings, was accepted as correct
not only by the Court of Appeal but also by all the members of the Appellate
Committee of the House of Lords (see paragraph 18 in fine above) - was based
on the following line of reasoning. The Attorney General was seeking a permanent
ban on the publication of material the disclosure of which would, according
to the credible evidence presented on his behalf, be detrimental to the Security
Service; to refuse interlocutory injunctions would mean that O.G. would be free
to publish that material immediately and before the substantive trial; this
would effectively deprive the Attorney General, if successful on the merits,
of his right to be granted a permanent injunction, thereby irrevocably destroying
the substance of his actions and, with it, the claim to protect national security.
In the Court’s view, these reasons were "relevant" in terms
of the aims both of protecting national security and of maintaining the authority
of the judiciary. The question remains whether they were "sufficient".
63. In this connection, O.G. objected that the interlocutory injunctions had
been granted on the basis of the American Cyanamid principles which, in their
opinion, were incompatible with the criteria of Article 10 (art. 10). They maintained
that, in a case of this kind, those principles were unduly advantageous to the
plaintiff since he had to establish only that he had an arguable case and that
the balance of convenience lay in favour of injunctive relief; in their submission,
a stricter test of necessity had to be applied when it was a question of restricting
publication by the press on a matter of considerable public interest.
The American Cyanamid case admittedly related to the alleged infringement of
a patent and not to freedom of the press. However, it is not the Court’s
function to review those principles in abstracto, but rather to determine whether
the interference resulting from their application was necessary having regard
to the facts and circumstances prevailing in the specific case before it (see
the above-mentioned Sunday Times judgment, Series A no. 30, p. 41, para. 65).
In any event, perusal of the relevant judgments reveals that the English courts
did far more than simply apply the American Cyanamid principles inflexibly or
automatically; they recognised that the present case involved a conflict between
the public interest in preventing and the public interest in allowing disclosure
of the material in question, which conflict they resolved by a careful weighing
of the relevant considerations on either side.
In forming its own opinion, the Court has borne in mind its observations concerning
the nature and contents of Spycatcher (see paragraph 61 above) and the interests
of national security involved; it has also had regard to the potential prejudice
to the Attorney General’s breach of confidence actions, this being a point
that has to be seen in the context of the central position occupied by Article
6 (art. 6) of the Convention and its guarantee of the right to a fair trial
(see the above-mentioned Sunday Times judgment, Series A no. 30, p. 34, para.
55). Particularly in the light of these factors, the Court takes the view that,
having regard to their margin of appreciation, the English courts were entitled
to consider the grant of injunctive relief to be necessary and that their reasons
for so concluding were "sufficient" for the purposes of paragraph
2 of Article 10 (art. 10-2).
64. It has nevertheless to be examined whether the actual restraints imposed
were "proportionate" to the legitimate aims pursued.
In this connection, it is to be noted that the injunctions did not erect a blanket
prohibition. Whilst they forbade the publication of information derived from
or attributed to Mr Wright in his capacity as a member of the Security Service,
they did not prevent O.G. from pursuing their campaign for an independent inquiry
into the operation of that service (see paragraph 14 above). Moreover, they
contained provisos excluding certain material from their scope, notably that
which had been previously published in the works of Mr Chapman Pincher and in
the Granada Television programmes (see paragraph 19 above). Again, it was open
to O.G. at any time to seek - as they in fact did (see paragraphs 23 and 26
above) - variation or discharge of the orders.
It is true that although the injunctions were intended to be no more than temporary
measures, they in fact remained in force - as far as the period now under consideration
is concerned - for slightly more than a year. And this is a long time where
the perishable commodity of news is concerned (see paragraph 60 above). As against
this, it may be pointed out that the Court of Appeal (see paragraph 19 above)
certified the case as fit for a speedy trial - which O.G. apparently did not
seek - and that the news in question, relating as it did to events that had
occurred several years previously, could not really be classified as urgent.
Furthermore, the Attorney General’s actions raised difficult issues of
both fact and law: time was accordingly required for the preparation of the
trial, especially since, as Lord Brandon of Oakbrook pointed out (see paragraph
36 (a) (v) above), they were issues on which evidence had to be adduced and
subjected to cross-examination.
65. Having regard to the foregoing, the Court concludes that, as regards the
period from 11 July 1986 to 30 July 1987, the national authorities were entitled
to think that the interference complained of was "necessary in a democratic
society".
3. The period from 30 July 1987 to 13 October 1988
66. On 14 July 1987 Spycatcher was published in the United States of America
(see paragraph 28 above). This changed the situation that had obtained since
11 July 1986. In the first place, the contents of the book ceased to be a matter
of speculation and their confidentiality was destroyed. Furthermore, Mr Wright’s
memoirs were obtainable from abroad by residents of the United Kingdom, the
Government having made no attempt to impose a ban on importation (see paragraph
29 above).
67. In the submission of the Government, the continuation of the interlocutory
injunctions during the period from 30 July 1987 to 13 October 1988 nevertheless
remained "necessary", in terms of Article 10 (art. 10), for maintaining
the authority of the judiciary and thereby protecting the interests of national
security. They relied on the conclusion of the House of Lords in July 1987 that,
notwithstanding the United States publication: (a) the Attorney General still
had an arguable case for permanent injunctions against O.G., which case could
be fairly determined only if restraints on publication were imposed pending
the substantive trial; and (b) there was still a national security interest
in preventing the general dissemination of the contents of the book through
the press and a public interest in discouraging the unauthorised publication
of memoirs containing confidential material.
68. The fact that the further publication of Spycatcher material could have
been prejudicial to the trial of the Attorney General’s claims for permanent
injunctions was certainly, in terms of the aim of maintaining the authority
of the judiciary, a "relevant" reason for continuing the restraints
in question. The Court finds, however, that in the circumstances it does not
constitute a "sufficient" reason for the purposes of Article 10 (art.
10).
It is true that the House of Lords had regard to the requirements of the Convention,
even though it is not incorporated into domestic law (see paragraph 36 above).
It is also true that there is some difference between the casual importation
of copies of Spycatcher into the United Kingdom and mass publication of its
contents in the press. On the other hand, even if the Attorney General had succeeded
in obtaining permanent injunctions at the substantive trial, they would have
borne on material the confidentiality of which had been destroyed in any event
- and irrespective of whether any further disclosures were made by O.G. - as
a result of the publication in the United States. Seen in terms of the protection
of the Attorney General’s rights as a litigant, the interest in maintaining
the confidentiality of that material had, for the purposes of the Convention,
ceased to exist by 30 July 1987 (see, mutatis mutandis, the Weber judgment of
22 May 1990, Series A no. 177, p. 23, para. 51).
69. As regards the interests of national security relied on, the Court observes
that in this respect the Attorney General’s case underwent, to adopt the
words of Mr Justice Scott, "a curious metamorphosis" (Attorney General
v. Guardian Newspapers Ltd (no. 2) [1990] 1 Appeal Cases 140F). As emerges from
Sir Robert Armstrong’s evidence (see paragraph 16 above), injunctions
were sought at the outset, inter alia, to preserve the secret character of information
that ought to be kept secret. By 30 July 1987, however, the information had
lost that character and, as was observed by Lord Brandon of Oakbrook (see paragraph
36 (a) (iv) above), the major part of the potential damage adverted to by Sir
Robert Armstrong had already been done. By then, the purpose of the injunctions
had thus become confined to the promotion of the efficiency and reputation of
the Security Service, notably by: preserving confidence in that Service on the
part of third parties; making it clear that the unauthorised publication of
memoirs by its former members would not be countenanced; and deterring others
who might be tempted to follow in Mr Wright’s footsteps.
The Court does not regard these objectives as sufficient to justify the continuation
of the interference complained of. It is, in the first place, open to question
whether the actions against O.G. could have served to advance the attainment
of these objectives any further than had already been achieved by the steps
taken against Mr Wright himself. Again, bearing in mind the availability of
an action for an account of profits (see paragraphs 39-42 above), the Court
shares the doubts of Lord Oliver of Aylmerton (see paragraph 36 (e)(ii) above)
as to whether it was legitimate, for the purpose of punishing Mr Wright and
providing an example to others, to use the injunctive remedy against persons,
such as O.G., who had not been concerned with the publication of Spycatcher.
Above all, continuation of the restrictions after July 1987 prevented newspapers
from exercising their right and duty to purvey information, already available,
on a matter of legitimate public concern.
70. Having regard to the foregoing, the Court concludes that the interference
complained of was no longer "necessary in a democratic society" after
30 July 1987.
D. Conclusion
71. To sum up, there was a violation of Article 10 (art. 10) from 30 July 1987
to 13 October 1988, but not from 11 July 1986 to 30 July 1987.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION
WITH ARTICLE 10 (art. 14+10)
72. O.G. complained that newspapers published abroad, which could be freely
imported into the United Kingdom, were not bound by the interlocutory injunctions;
they thus had an advantage over the Observer and The Guardian in that country
as well as in the latter’s overseas markets. O.G. alleged that on this
account they had been victims of a violation of Article 14 of the Convention
taken in conjunction with Article 10 (art. 14+10), the former provision reading
as follows:
"The enjoyment of the rights and freedoms set forth in [the] 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."
73. The factual basis for the foregoing complaint was in part contested by the
Government, who maintained that the publishers and distributors of foreign newspapers
within the United Kingdom would, by operation of the law of contempt of court
(see paragraph 30 above), equally have been subject to the restraints in question.
In any event, the Court agrees with the Government and the Commission that this
complaint has to be rejected.
Article 14 (art. 14) affords protection against different treatment, without
an objective and reasonable justification, of persons in similar situations
(see, for example, the Fredin judgment of 18 February 1991, Series A no. 192,
p. 19, para. 60). If and in so far as foreign newspapers were subject to the
same restrictions as O.G., there was no difference of treatment. If and in so
far as they were not, this was because they were not subject to the jurisdiction
of the English courts and hence were not in a situation similar to that of O.G.
74. There was thus no violation of Article 14 taken in conjunction with Article
10 (art. 14+10).
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
75. O.G. complained of the fact that the English courts did not apply the proper
principles in relation to Article 10 (art. 10) and that neither that provision
nor the case-law relevant thereto had been incorporated into English law. They
alleged that on this account they had been victims of a violation of Article
13 (art. 13) of the Convention, which provides:
"Everyone whose rights and freedoms as set forth in [the] 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."
76. The Court agrees with the Government and the Commission that this allegation
has to be rejected.
The thrust of O.G.’s complaint under the Convention was that the imposition
of interlocutory injunctions constituted an unjustified interference with their
freedom of expression and it is clear that they not only could but also did
raise this issue in substance before the domestic courts. And it has to be recalled
that the effectiveness of a remedy, for the purposes of Article 13 (art. 13),
does not depend on the certainty of a favourable outcome (see the Soering judgment
of 7 July 1989, Series A no. 161, p. 48, para. 122).
As regards the specific matters pleaded, the Court has held on several occasions
that there is no obligation to incorporate the Convention into domestic law
(see, for example, the James and Others judgment of 21 February 1986, Series
A no. 98, p. 47, para. 84). Again, Article 13 (art. 13) does not go so far as
to guarantee a remedy allowing a Contracting State’s laws as such to be
challenged before a national authority on the ground of being contrary to the
Convention (see the same judgment, p. 47, para. 85).
77. There has accordingly been no violation of Article 13 (art. 13).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
78. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal authority
or any other authority of a High Contracting Party is completely or partially
in conflict with the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of the Court shall,
if necessary, afford just satisfaction to the injured party."
O. G. made no claim for compensation for damage, but they did seek underalso
o this provision reimbursement of their legal costs and expenses in the domestic
and the Strasbourg proceedings, in a total amount of £212,430.28.
The Court has examined this issue in the light of the criteria established in
its case-law and of the observations submitted by the Government and the applicants.
A. The domestic proceedings
79. The claim in respect of the domestic proceedings totalled £137,825.05.
It did not extend to the 1987 hearing before the Vice-Chancellor (see paragraphs
32-33 above), the costs of which had already been paid by the Government to
the applicants. Its breakdown is as follows:
(a) for the Court of Appeal hearing ended on 25 July 1986 (see paragraph 19
above): £55,624.11 (composed of £23,526.23 for the fees and disbursements
of the applicants’ solicitors and counsel, £17,364.29 for interest
thereon for the period from 25 July 1986 to 25 June 1991 and £14,733.59
for the costs and interest paid by the applicants to the Attorney General);
(b) for the Court of Appeal hearing ended on 24 July 1987 (see paragraph 34
above): £31,098.20 (composed of £14,310.29 for the fees and disbursements
of the applicants’ solicitors and counsel, £8,421.50 for interest
thereon for the period from 24 July 1987 to 25 June 1991 and £8,366.41
for the costs and interest paid by the applicants to the Attorney General);
(c) for the House of Lords hearing ended on 30 July 1987 (see paragraphs 35-36
above): £51,102.74 (composed of £43,102.74 for the fees and disbursements
of the applicants’ solicitors and counsel and £8,000 for the costs
paid by the applicants to the Attorney General).
80. The Court’s observations on this claim are as follows.
(a) Having found no violation in respect of the period from 11 July 1986 to
30 July 1987 (see paragraphs 61-65 and 71 above), it agrees with the Government
that no award should be made in respect of costs referable to the 1986 Court
of Appeal hearing. However, the same does not apply to those referable to the
1987 Court of Appeal hearing: although the latter proceedings took place within
the period in question, they post-dated the publication of Spycatcher in the
United States of America (see paragraphs 28-29 above) and, like those before
the House of Lords in 1987, are to be regarded as an attempt to obtain, through
the domestic legal order, prevention of the violation that the Court has found
to have occurred in the period from 30 July 1987 to 13 October 1988 (see paragraphs
66-71 above).
(b) The Court is unable to accept the Government’s submission that the
extra costs attributable to the fact that the Observer applicants and the Guardian
applicants were represented by different firms of solicitors should be disallowed.
They were entitled to instruct such lawyers as they chose. Nevertheless, bearing
in mind that the interests of both sets of applicants were substantially the
same, the Court shares the Government’s view that the charges for the
services of the total number of fee earners involved cannot all be considered
to have been "necessarily" incurred.
(c) The Court also agrees with the Government’s submission that the costs
charged by the solicitors concerned cannot be regarded as reasonable as to quantum
for the purposes of Article 50 (art. 50); furthermore, it also accepts that
some reduction should be made in the amount claimed for counsel’s fees
before the House of Lords.
(d) The Court notes that, as regards the 1987 Court of Appeal hearing, the Government
have raised no objection to the applicants’ claim for interest and that
the sum paid by the latter to the Attorney General itself included interest.
81. Having regard to the foregoing, the Court awards to the applicants, in respect
of their own costs (including interest on those incurred in the Court of Appeal)
and the amounts paid by them to the Attorney General, the sum of £65,000.
B. The Strasbourg proceedings
82. On the applicants’ claim in respect of costs and expenses referable
to the Strasbourg proceedings (totalling £74,605.23), the Court’s
observations are as follows.
(a) A reduction should be made to reflect the fact that no violation was found
to have occurred in the period from 11 July 1986 to 30 July 1987. On the other
hand, it would not be appropriate to make a significant reduction in respect
of the unsuccessful complaints of breach of Articles 13 and 14 (art. 13, art.
14) (see paragraphs 72-77 above), since the bulk of the work done by the applicants’
advisers related to Article 10 (art. 10) (see, mutatis mutandis, the Granger
judgment of 28 March 1990, Series A no. 174, p. 21, para. 55).
(b) The remarks in paragraph 80(c) above concerning the solicitors’ charges
apply equally to the Strasbourg proceedings.
The Court also considers that, in the circumstances, certain of the amounts
claimed by way of counsel’s fees exceed what can be regarded as reasonable
as between the parties.
83. Having regard to the foregoing, the Court awards the sum of £35,000.
C. Conclusion
84. The total amount to be paid to the applicants is accordingly £100,000.
This figure is to be increased by any value-added tax that may be chargeable.
FOR THESE REASONS, THE COURT
1. Holds by fourteen votes to ten that there was no violation of Article 10
(art. 10) of the Convention during the period from 11 July 1986 to 30 July 1987;
2. Holds unanimously that there was a violation of Article 10 (art. 10) during the period from 30 July 1987 to 13 October 1988;
3. Holds unanimously that there has been no violation of Article 13 (art. 13) or of Article 14 taken in conjunction with Article 10 (art. 14+10);
4. Holds unanimously that the United Kingdom is to pay, within three months,
to the applicants jointly the sum of £100,000 (one hundred thousand pounds),
together with any value-added tax that may be chargeable, for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 November 1991.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule
53 para. 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) partly dissenting opinion of Mr Pettiti, joined by Mr Pinheiro Farinha;
(b) partly dissenting opinion of Mr Walsh;
(c) partly dissenting opinion of Mr De Meyer (concerning prior restraint), joined
by Mr Pettiti, Mr Russo, Mr Foighel and Mr Bigi;
(d) separate opinion of Mr De Meyer (concerning domestic remedies), joined by
Mr Pettiti;
(e) separate opinion of Mr Valticos;
(f) partly dissenting opinion of Mr Martens;
(g) partly dissenting opinion of Mr Pekkanen; (h) partly dissenting opinion
of Mr Morenilla.
R.R.
M.-A.E.
PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGE PINHEIRO FARINHA
(Translation)
I voted for a violation of Article 10 (art. 10) also in respect of the first
period, unlike the majority. In my view there was a violation as much for the
first period concerning the Observer and The Guardian as for the second which
also concerned The Sunday Times. Indeed I consider it to be contradictory to
adopt a different position on these two periods while reaffirming the fundamental
value in a democracy of the freedom of expression.
The injunction originated in the proposal to publish in Australia in 1985 Mr
Wright’s memoirs which included material already revealed by the books
of Mr Pincher and by the Granada television programmes in the United Kingdom.
"Secret agents" often publish their memoirs after their retirement
and this does not in general give cause for concern to the States in question.
The pretext for the proceedings instituted in Australia was not a betrayal of
State secrets but a breach of confidentiality. The articles in the Observer
and The Guardian of June 1986 concerned similar facts. The courts concluded
that the source of the material was Spycatcher’s publishers. The proceedings
instituted by the Attorney General were founded on the breach of confidentiality.
The interlocutory injunction issued by Mr Justice Millett in July 1986, based
on a failure to comply with the duty of discretion, already constituted in my
view an infringement of the freedom of expression. That freedom cannot be made
subject to the criterion of confidentiality, otherwise there would no longer
be any literature.
In any event the extension of the injunction beyond a few days or weeks (until
October 1988) constituted an additional infringement of the freedom of expression,
because where the press is concerned a delay in relation to items of current
affairs deprives a journalist’s article of a large part of its interest.
The publication in America and in Europe of more significant memoirs by the
heads of secret services has never given rise to a similar prohibition (see
in France the books of Mr de Maranches and Mr Marion).
One gets the impression that the extreme severity of Mr Justice Millett’s
injunction and of the course adopted by the Attorney General was less a question
of the duty of confidentiality than the fear of disclosure of certain irregularities
carried out by the security service in the pursuit of political rather than
intelligence aims.
In this respect there was a violation of the right to receive information, which
is the second component of Article 10 (art. 10). To deprive the public of information
on the functioning of State organs is to violate a fundamental democratic right.
However, the majority of the Court concerned itself with the first aspect rather
than the second.
If the State believes that a publication puts at risk State secrets or national
security, there are other procedural means at its disposal. If the State contests
a failure to comply with the duty of discretion on the part of a retired civil
servant, appropriate procedures are available. In the present case the State
did not prosecute Mr Wright.
However, the United Kingdom should, by virtue of the positive obligation imposed
by the European Convention, have secured the public’s right to be informed.
At the hearing the Government did not enlarge upon this issue.
An interim injunction, not subsequently lifted after a short period, is in effect
a disguised means of instituting censure or restraint on the freedom of the
press (other disguised means used in other countries include prosecution for
alleged tax offences). The violation is in my view all the more patent in that
it is confirmed by the decision finding a violation as regards the second period.
The majority’s reasoning is indeed based on interference with the freedom
of expression; but to explain the contrary decision concerning the first period
the Court confines itself to stating as follows:
"What they also omit is the fact that in July 1986 Spycatcher existed only
in manuscript form. It was not then known precisely what the book would contain
and, even if the previously-published material furnished some clues in this
respect, it might have been expected that the author would seek to say something
new. And it was not unreasonable to suppose that where a former senior employee
of a security service - an ‘insider’, such as Mr Wright - proposed
to publish, without authorisation, his memoirs, there was at least a risk that
they would comprise material the disclosure of which might be detrimental to
that service; it has to be borne in mind that in such a context damaging information
may be gleaned from an accumulation of what appear at first sight to be unimportant
details. What is more, it was improbable in any event that all the contents
of the book would raise questions of public concern outweighing the interests
of national security." (see paragraph 61 of the judgment)
The contradiction in the way the two periods were viewed is in my opinion the
following: on the one hand, a decision imposing a restriction based on mere
suppositions or assumptions by the Attorney General and the competent court
is regarded as justified; on the other, the publication of the book in the United
States and then its partial circulation are said to have rendered the continuation
of the injunction unjustified.
But freedom of expression in one country cannot be made subject to whether or
not the material in question has been published in another country. In the era
of satellite television it is impossible to partition territorially thought
and its expression or to restrict the right to information of the inhabitants
of a country whose newspapers are subject to a prohibition.
The publication abroad was not truly material to the pretext invoked initially,
namely confidentiality, because that had already been breached by Mr Pincher’s
books and the Granada programmes before Mr Justice Millett’s order and
because it was in any case very relative. It is possible, with hindsight, to
measure the weakness of the Attorney General’s argument, although he persisted
with the proceedings in 1987 and in 1988. This requirement of confidentiality,
which according to him was of major importance, was as it turned out regarded
as insignificant by the courts as soon as the information had become known abroad
and the book Spycatcher reached the United Kingdom clandestinely in the luggage
of a few citizens and tourists.
It is true that in the decision on the merits Mr Justice Scott, in keeping with
the great liberal and judicial tradition of the United Kingdom, found that the
Observer and The Guardian had not infringed the duty of discretion, but he did
so belatedly, not until 21 December 1987.
On 13 October 1988 the House of Lords rightly decided that it was not necessary
to restrain the Observer and The Guardian from disseminating the contents of
the book.
These contradictory decisions of eminent judges show the lack of clarity of
the position adopted by the Attorney General. The first decision of the United
Kingdom courts remains a surprising one. If the majority of the Court had reasoned
on the basis of the "right to receive information" aspect, it would
undoubtedly have found a violation for both periods.
It may be recalled that in the Elliniki Radiophonia Tiléorassi - Anonini
Etairia case (Case no. 260/89), Mr Lenz, Advocate General at the Court of Justice
of the European Communities, made the following observations in his Opinion:
(unofficial translation)
"49. The Rules of the Convention must be regarded as an integral part of
the Community legal system. Television Directive ... indicates in this connection
that the first paragraph of Article 10 (art. 10) of the Convention for the Protection
of Human Rights and Fundamental Freedoms, ratified by all the Member States,
applied to the broadcasting and distribution of television services, is likewise
a specific manifestation in Community law of a more general principle, namely
the freedom of expression. This right must therefore be observed by the Community
organs.
50. However, it is also clear that the Court of Justice is not required to rule
in the first instance on alleged or real violations by the Member States of
the human rights secured under that Convention (that is the role of the organs
so designated by the European Convention on Human Rights); ..."
The judgment of the Court of Justice of the European Communities, delivered
on 18 June 1991, contains the following passage: (unofficial translation)
"41. As regards Article 10 (art. 10) of the European Convention on Human
Rights ..., it should be noted in the first place that, as the Court has consistently
held, fundamental rights form an integral part of the general principles of
law, the observance of which it ensures. In so doing, the Court draws inspiration
from constitutional traditions common to the Member States and from indications
provided by the international treaties for the protection of human rights on
which the member States have collaborated or of which they are signatories (see,
inter alia, the judgment of 14 May 1974, Nold, Case no. 4/73 ECR [1974] 491,
at paragraph 13). In this connection the European Convention on Human Rights
is of particular significance (see, inter alia, the judgment of 15 May 1986,
Johnston Case no. 222/84, ECR [1986] 1651, paragraph 18). It follows that, as
the Court affirmed in the judgment of 13 July 1989, Wachauf (Case no. 5/88,
ECR [1989] 2609, at paragraph 19), measures incompatible with the respect for
the human rights therein recognised and secured are not permissible in the Community."
The eminent judge Lord Bridge appositely observed in the House of Lords in his
dissenting opinion:
"Freedom of speech is always the first casualty under a totalitarian regime.
Such a regime cannot afford to allow the free circulation of information and
ideas among its citizens. Censorship is the indispensable tool to regulate what
the public may and what they may not know. The present attempt to insulate the
public in this country from information which is freely available elsewhere
is a significant step down that very dangerous road. The maintenance of the
ban, as more and more copies of the book Spycatcher enter this country and circulate
here, will seem more and more ridiculous. If the Government are determined to
fight to maintain the ban to the end, they will face inevitable condemnation
and humiliation by the European Court of Human Rights in Strasbourg. Long before
that they will have been condemned at the bar of public opinion in the free
world." ([1987] 1 Weekly Law Reports 1286F)
The same line of thought is reflected in the words of Mr Redwood, a United Kingdom
Secretary of State, when he gave vent to his anxiety concerning the "current
flood of restrictive directives from the EEC which threatens the freedom of
expression" (Le Monde, 3 November 1991).
The protection afforded by Article 10 (art. 10) is therefore essential; this
has always been the approach of the European Court in its judgments: Sunday
Times I, Barthold, Lingens.
The defence of democracy cannot be achieved without the freedom of the press.
The countries of Eastern Europe which have thrown off the shackles of totalitarian
rule have well understood this. The European Court through all its earlier judgments
has shown its attachment to the protection of freedom of expression and the
priority which this is acknowledged to have.
To remain consistent with its case-law it should, in my view, have found a violation
for both periods.
The Council of Europe has together with the organs of the European Convention
a crucial task: this is to introduce true freedom of expression in all its forms
and at the same time guarantee the public’s right to receive information.
This acquired democratic right must be preserved if we wish to protect freedom
of thought!
PARTLY DISSENTING OPINION OF JUDGE WALSH
1. I agree with the majority of the Court that in respect of the period 30 July
1987 to 13 October 1988 there was a violation of Article 10 (art. 10) of the
Convention by reason of the injunctions imposed on the applicants in respect
of that period.
2. Unlike the majority of the Court I am of opinion that there was also a breach
of Article 10 (art. 10) in respect of the period 11 July 1986 to 30 July 1987.
3. Freedom of the press is not totally unrestricted. The press in its pursuit
of news is not free to counsel or to procure the commission of acts which are
illegal, and may be restrained in appropriate cases from publishing material
so gained, or may be liable in damages or may suffer both restraint and damages.
In so far as breach of confidentiality amounts to an illegality either on the
criminal side or on the civil side the newspapers will be so liable in respect
of matters the revelation of which they have counselled or procured.
4. Their liability is not necessarily the same when their news gathering has
benefited from windfall revelations which may have resulted from some breach
of confidence for which they have no responsibility. It is a legitimate activity
of the press to follow up such news and to publish the results of their inquiries
provided in so doing they do not come in conflict with, say, national security.
However that cannot be invoked to gain a restriction simply by an expression
of opinion on the part of the authorities as was the case here. The issues of
breach of confidence and national security were joined by the Government in
the present case to the extent that the lines between them were blurred in the
initial application for an injunction. The truth or falsity of the "revelations"
was not put in issue. It appears to me that for the purposes of Article 10 (art.
10) of the Convention the publication of "revelations" cannot be restrained
without at least an allegation of their truth by the moving party. If, as was
done in the Australian hearing, the Government simply "admits the truth"
for the purposes of the case the application to restrain becomes moot. Sufficient
of the allegations by Mr Wright had already become public to enable the truth
or otherwise of them to be ascertained. The identification of Mr Wright as the
source did not affect that issue.
Even if the truth of the principal allegations is to be assumed, namely that
the Security Service agents had indulged in illegal activities, that had already
been publicly aired in a manner which left no doubt that Mr Wright, by his writings,
conversations and television interview, was at least one source of the allegations.
The applicant newspapers campaigned for an investigation of the allegations
and their subsequent conduct was in furtherance of that campaign. They were
not engaged directly or indirectly in debriefing Mr Wright on other knowledge
he had gained as a secret service agent. There was no indication that the newspapers
were intent on publishing any material other than what was directly related
to information already published and which it had not been sought to restrain.
The "revelation" that Mr Wright was personally involved in the commission
of the alleged illegal activities could scarcely be regarded as a restrainable
piece of information in the light of all that was already known.
5. In view of the fact that the claim of confidentiality made in support of
the initial application for a restraining order never made clear that a true
breach of confidentiality was imminent, namely that true facts were threatened
with disclosure, the Attorney General’s position, which it was sought
to protect, was never really made known at that stage. In my opinion the circumstances
were insufficient to bring the case within the area of restrictions permitted
by Article 10 para. 2 (art. 10-2) of the Convention.
It is clear that the matters the applicants had wished to deal with were of
great interest to the public and perhaps even of concern. The public interest
invoked by the Government appears to be equated with Government policy. That
policy may very well justify, in the Government’s view, making every effort
to stem leakages from the Security Service or indeed in the interests of that
service to take no action at all to deal with the allegations or indeed to pursue
Mr Wright in any way available. These are policy matters and are not grounds
for invoking the restrictions permitted by Article 10 para. 2 (art. 10-2) .
Equally it may be understandable that, as was evident, the main objective of
the proceedings was to act as a deterrent to those who in the future might be
tempted to reveal secrets gained from their work as agents or members of the
Security Service. That, however, is not a consideration which can justify the
application of the restrictions on the press permitted by Article 10 para. 2
(art. 10-2). The relief sought against the applicants, as distinct from Mr Wright,
has not been shown to have been, in all the circumstances, necessary in the
democratic society which is the United Kingdom.
PARTLY DISSENTING OPINION OF JUDGE DE MEYER (concerning prior restraint), JOINED
BY JUDGES PETTITI, RUSSO, FOIGHEL AND BIGI
I cannot endorse the Court’s reasoning concerning prior restraint upon
publications. Nor can I agree with its finding that, in the present case, the
applicants’ right to freedom of expression was not violated before the
end of July 1987.
In my view, it was violated not only after that date and until the case was
concluded in October 1988, but already from the very beginning of the proceedings
in June 1986, when the Attorney General set about seeking injunctions against
them.
My reasons for so finding are simple.
I firmly believe that "the press must be left free to publish news, whatever
the source, without censorship, injunctions, or prior restraint"?: in a
free and democratic society there can be no room, in time of peace, for restrictions
of that kind, and particularly not if these are resorted to, as they were in
the present case, for "governmental suppression of embarrassing information"??
or ideas.
Of course, those who publish any material which a pressing social need required
should remain unpublished may subsequently be held liable in court, as may those
acting in breach of a duty of confidentiality. They may be prosecuted if and
in so far as this is prescribed by penal law, and they may in any case be sued
for compensation if damage has been caused. They may also be subject to other
sanctions provided for by law, including, as the case may be, confiscation and
destruction of the material in question and forfeiture of the profit obtained.
Under no circumstances, however, can prior restraint, even in the form of judicial
injunctions, either temporary or permanent, be accepted, except in what the
Convention describes as a "time of war or other public emergency threatening
the life of the nation" and, even then, only "to the extent strictly
required by the exigencies of the situation"???.
SEPARATE OPINION OF JUDGE DE MEYER (concerning domestic remedies), JOINED BY
JUDGE PETTITI
I cannot subscribe to the third sub-paragraph of paragraph 76 of this judgment.
The reasons given in the second sub-paragraph suffice to conclude that there
was, in the present case, no violation of the right of the applicants to an
"effective remedy before a national authority".
The question whether a certain treaty is, or is not, "incorporated into
domestic law" may be of some interest as regards other kinds of treaties.
It has no relevance when fundamental rights are concerned: these are of such
a nature that it cannot be necessary to have them formally "incorporated
into domestic law".
As I stated already on another occasion, the object and purpose of the European
Convention on Human Rights was not to create, but to recognise rights which
must be respected and protected even in the absence of any instrument of positive
law?. It has to be accepted that, everywhere in Europe, these rights "bind
the legislature, the executive and the judiciary, as directly applicable law"??
and as "supreme law of the land, ... anything in the constitution or laws
of any State to the contrary notwithstanding"???.
SEPARATE OPINION OF JUDGE VALTICOS
(Translation)
While in full agreement with the foregoing judgment, I wish to comment on a
passage which appears at paragraph 76 of the text. It is recalled therein, at
the third sub-paragraph, that "the Court has held on several occasions
that there is no obligation to incorporate the Convention into domestic law".
This statement is correct, but remains somewhat over-succinct.
It cannot of course be disputed that under international law the strict obligation
incumbent on States which ratify a convention concerning their legislation and
their practice is to give effect to the convention at national level and that
this does not necessarily mean that the actual terms of the convention must
as such be transposed into the domestic legal system. What is essential is that
the convention is, in one way or another, complied with. All this is beyond
question and indeed elementary.
There is however in this connection a tendency towards over- simplification
which leads to confusion. The starting point is that the formal effects which
the ratification of a convention entails at domestic level naturally depend
on the national constitutional system or practice and that, in this respect,
under the said system (or practice) in several countries (moreover an increasing
number of them) that ratification entails the incorporation of the ratified
text into domestic law, while in others the two orders (international and municipal)
remain distinct, even though sometimes the ratifying statute expressly enacts
this incorporation. It is also worth noting that such incorporation is moreover
effective, at least directly, only if the convention provisions are - according
to the generally accepted expression - self-executing, in other words capable
of execution without implementation by more specific (national) rules. All this
is well-known and calls to mind old academic quarrels, happily mostly forgotten,
and I trust that I shall be forgiven for recalling these self-evident truths.
I consider nevertheless that it is necessary to return, at least indirectly,
to this question here because I wish to draw the following conclusion: yes,
the Court is right when it affirms once again that States are not bound to i