TIMES NEWSPAPERS LTD ; NEIL v. THE UNITED KINGDOM
Doc ref: 13166/87 • ECHR ID: 001-45478
Document date: July 12, 1990
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Application No. 13166/87
TIMES NEWSPAPERS Ltd and Andrew NEIL
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 12 July 1990)
TABLE OF CONTENTS
Page
I. INTRODUCTION (paras. 1-13) 1-3
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-8) 1-2
C. The present Report (paras. 9-13) 2-3
II. ESTABLISHMENT OF THE FACTS (paras. 14-54) 4-17
III. OPINION OF THE COMMISSION (paras. 55-89) 18-25
A. Points at issue (para. 55) 18
B. As regards Article 10 of the Convention 18-23
(paras. 56-77)
a) Interference with freedom of expression 18-19
(para. 58)
b) Prescribed by law 19-20
(paras. 59-63)
c) Legitimate aim 20
(paras. 64-65)
d) Necessary in a democratic society 20-23
(paras. 66-77)
Conclusion (para. 77) 23
C. As regards Article 13 of the Convention 23
(paras. 78-81)
Conclusion (para. 81) 23
D. As regards Article 14 of the Convention 23-24
(paras. 82-86)
Conclusion (para. 86) 24
E. Recapitulation (paras. 87-89) 25
Concurring opinion of Sir Basil Hall 26
APPENDIX I History of the proceedings 27-28
APPENDIX II Decision on the admissibility 29-46
of the application
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The application is brought by Times Newspapers Ltd and Andrew
Ferguson Neil. Times Newspapers Ltd publish "The Sunday Times", a
national Sunday newspaper published in the United Kingdom (hereafter
abbreviated to UK). The Sunday Times' current circulation is about
1.3 million and it has a readership of several million in the UK and
abroad. Mr. Neil is editor of The Sunday Times and a British
citizen. Before the Commission the applicants were represented by
Messrs. Theodore Goddard, Solicitors, London, in particular Mr. M.
Kramer, Solicitor, together with Mr. A. Lester, QC, Counsel, Mr. D.
Pannick, Counsel, and Mr. A. Whitaker, Legal Manager of Times
Newspapers Ltd.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. M. Wood of
the Foreign and Commonwealth Office, Sir Patrick Mayhew, QC, MP,
Attorney General, Counsel, Mr. N. Bratza QC, Counsel, Mr. P. Havers,
Counsel, Mrs. S. Evans, Home Office, and Mrs. S. Marsh, Legal
Secretariat to the Law Officers.
4. The application concerns temporary injunctions preventing
newspaper publication of details of the contents of the book
"Spycatcher" by Peter Wright, a retired member of the British Security
Service. It raises issues under Articles 10, 13 and 14 of the
Convention.
B. The proceedings
5. The application was introduced on 31 July 1987 and registered
on 24 August 1987. After a preliminary examination of the case by the
Rapporteur, the Commission decided on 7 October 1987 to give notice of
the application to the respondent Government, pursuant to Rule
42(2)(b) of its Rules of Procedure, and to invite the parties to
submit their written observations on the admissibility and merits of
the application. On 4 February 1988 the respondent Government lodged
their observations, after an extension of the time-limit for their
submission. The applicants replied on 21 March 1988.
6. On 9 July 1988 the Commission decided to adjourn the
examination of the case pending the final judgment of the House of
Lords on the substantive issues raised by the application. It also
decided to invite the parties to submit any further comments they
might have on the application in the light of that decision, which was
expected, and was given, on 30 July 1988. On 17 October 1988 the
Commission confirmed this invitation to the parties. The applicants
submitted their further observations on 2 February 1989, followed by
the Government on 10 February 1989.
7. On 9 May 1989 the Commission decided to hold a hearing on the
admissibility and merits of the application, to be joined with that of
The Observer Ltd and Others and Guardian Newspapers Ltd and Others v.
UK, Application No. 13585/88. The hearing was held on 5 October 1989
with the parties represented as above (paras. 2 and 3). Following the
hearing and deliberations, the Commission declared the two
applications admissible and disjoined them. On 8 November 1989 the
parties were sent the text of the Commission's decision on
admissibility and they were invited to submit any further observations
they might have on the merits of the case. The Government submitted
observations on 8 January 1990 to which the applicants replied on
15 March 1990. The Government submitted further observations on
2 July 1990.
8. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reactions the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
9. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mr. L. LOUCAIDES
10. The text of this Report was adopted by the Commission on
12 July 1990 and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
11. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
12. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
13. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
14. The application concerns restrictions imposed on the
publication of details about the book "Spycatcher" by Peter Wright.
15. Mr. Wright was for many years employed by the British
Government as a member of MI5, a branch of the British Security
Service. He retired in 1976. He now lives in Australia. He decided
to write his memoirs, including an account of what he claimed were
illegal activities by the British Security Service in particular MI5.
In those memoirs entitled "Spycatcher" (hereafter referred to as the
book), Mr. Wright alleged, inter alia, that MI5 conducted unlawful
actitivies calculated to undermine the Labour Government of 1974-79,
burgled and bugged the embassies of allied and hostile countries,
planned and participated in other unlawful and covert activities at
home and abroad and that Sir Roger Hollis, who led MI5 during the
latter part of Mr. Wright's employment, was a Soviet agent. Mr Wright
unsuccessfully sought to persuade the British Government to institute
an independent inquiry into these allegations. Such an inquiry was
also sought by, amongst others, James Callaghan (Prime Minister
1976-79 and a senior member of the Cabinet of Harold Wilson 1974-76)
and other prominent members of the Labour Government of 1974-79
including two former Home Secretaries, Roy Jenkins and Merlyn Rees.
Part of the material in "Spycatcher" had already been published in a
number of books about the British Security Service written by Chapman
Pincher. Moreover, on 16 July 1984 Mr. Wright had given a lengthy
interview to Granada Television in its "World in Action" programme
about the work of the British Security Service. The programme was
shown again in December 1986. Other books and another television
programme on the workings and secrets of the Service were produced
around the same time, but little Government action was taken against
these authors or the media.
16. In September 1985 the Attorney General of England and Wales
(the Attorney General), on behalf of the UK Government, began
proceedings in the Equity Division of the Supreme Court of New South
Wales, Australia, to restrain publication of Mr. Wright's memoirs and
of any information contained therein derived from his work for the
British Security Service. The evidential basis for the claim by the
Attorney General was two affidavits sworn by Sir Robert Armstrong,
Secretary to the British Cabinet, on 9 and 27 September 1985. On
17 September 1985 Mr. Wright and his Australian publishers, Heinemann
Publishers Australia Pty Ltd. (Heinemann Australia), gave an
undertaking not to publish pending the hearing of the British
Government's claim for an injunction. The British Government refused
to indicate to Mr. Wright and Heinemann Australia which parts of the
book, if any, they wished to have "blue pencilled" as containing
information damaging to national security.
17. On Sunday 22 June 1986 whilst the Australian proceedings were
still pending the Observer, and on Monday 23 June 1986 The Guardian,
published short articles on inside-pages, giving details of some of
the contents of Mr. Wright's book. These details included the
following allegations of improper, criminal and unconstitutional
conduct on the part of MI5 officers:
(i) MI5 "bugged" all diplomatic conferences at Lancaster
House in London throughout the 1950s and 1960s, as well as the
Zimbabwe Independence negotiations in 1979.
(ii) MI5 "bugged" diplomats from France, Germany, Greece and
Indonesia, as well as the hotel suite of Mr. Kruschev during his visit
to Britain in the 1950s, and were guilty of routine burglary and
bugging (including the entering of Russian consulates abroad).
(iii) MI5 plotted unsuccessfully to assassinate President
Nasser of Egypt at the time of the Suez crisis.
(iv) MI5 plotted against Harold Wilson during his premiership
from 1974 to 1976.
(v) MI5 (contrary to its guidelines) diverted its resources
to investigate left-wing political groups in Britain.
18. The Attorney General instituted proceedings for breach of
confidence in the Chancery Division of the High Court of Justice of
England and Wales against the Observer and The Guardian, as well as
their editors and the two journalists who had written the articles,
and on 27 June 1986 obtained ex parte interim injunctions to restrain
further such publication by either newspaper pending the trial of the
actions. (Hereafter reference will only be made to the two newspapers
and not all the individuals who were party to the proceedings.) After
an inter partes hearing on 11 July 1986, Mr. Justice Millett (sitting
in the Chancery Division of the High Court of Justice) varied these
injunctions restraining publication. The evidential basis for the
claim by the Attorney General was the two affidavits sworn by
Sir Robert Armstrong in the Australian proceedings.
19. The Observer and The Guardian appealed the Order of
Mr. Justice Millett and, on 25 July 1986, the Court of Appeal
dismissed their appeal and upheld the injunctions, with minor
modifications. Under the terms of the Orders The Guardian and the
Observer were restrained from:
"1. disclosing or publishing or causing or permitting to be
disclosed or published to any person any information obtained by
Peter Maurice Wright in his capacity as a member of the British
Security Service and which they know, or have reasonable grounds
to believe, to have come or been obtained, whether directly or
indirectly, from the said Peter Maurice Wright;
2. attributing in any disclosure or publication made by
them to any person any information concerning the British
Security Service to the said Peter Maurice Wright whether by
name or otherwise."
20. The Orders contained the following provisos:
"1. this Order shall not prohibit direct quotation of
attributions to Peter Maurice Wright already made by
Mr. Chapman Pincher in published works, or in a television
programme or programmes broadcast by Granada Television;
2. no breach of this Order shall be constituted by the
disclosure or publication of any material disclosed in open
court in the Supreme Court of New South Wales unless prohibited
by the Judge there sitting or which, after the trial there in
action No. 4382 of 1985, is not prohibited from publication;
3. no breach of this Order shall be constituted by a
fair and accurate report of proceedings in
(A) either House of Parliament in the United Kingdom
whose publication is permitted by that House; or
(B) a court in the United Kingdom sitting in public."
21. In the judgment of the Court of Appeal interim injunctions
restraining publication were granted because Mr. Wright's book
contained secret information which, in the view of the Court, might
well cause damage to national security if disclosed. The Appellate
Committee of the House of Lords granted leave to appeal on 6 November
1986. A hearing was eventually scheduled for November 1987, but the
appeal was subsequently withdrawn in the light of the House of Lords
decision of 30 July 1987 (see paras. 39-44 below).
22. The trial of the British Government's action in Australia took
place before Mr. Justice Powell in the Equity Division of the New
South Wales Supreme Court in November and December 1986. Judgment was
delivered on 13 March 1987. Mr. Justice Powell rejected the claim by
the Attorney General against both Mr. Wright and Heinemann Australia.
Pending an appeal before the New South Wales Court of Appeal, Mr.
Wright and his publishers gave undertakings not to publish. The
appeal was heard by the New South Wales Court of Appeal in the week
commencing Monday, 27 July 1987. Judgment was reserved.
23. On 27 April 1987, The Independent newspaper published a major
summary of certain of the allegations made in Mr. Wright's book.
Later the same day, The London Evening Standard and The London Daily
News published reports of what had appeared in The Independent. The
next day the Attorney General applied for leave to move against the
publishers and editors of those three newspapers for contempt of court
(hereafter referred to as the Independent case). Leave was granted on
29 April 1987. In this application the Attorney General was acting
independently of the Government in his capacity as "the guardian of
the public interest in the due administration of justice" (judgment
of the Master of the Rolls in Attorney General v. Newspaper Publishing
Plc and Others (1987) 3WLR 942 at p. 965H). This is to be
distinguished from his capacity as Government representative in the
breach of confidence proceedings against the Observer and Guardian
newspapers.
24. Similar reports appeared in Australian and American
newspapers: on 29 April 1987 in The Melbourne Age and Canberra Times,
and on 3 May 1987 in the Washington Post.
25. Following these British newspaper publications The Guardian
and the Observer applied on 29 April 1987 to discharge the injunctions
against them on the ground that there had been a significant change in
circumstances since the injunctions had been granted against them in
1986.
26. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to
hear those applications on 7 May 1987, but adjourned them pending the
determination of a preliminary issue of contempt law raised in the
Independent case. He invited the Attorney General to pursue these
latter proceedings in the same court as the former proceedings, the
Chancery Division of the High Court. This the Attorney General did on
11 May 1988. On the same day, the Vice-Chancellor ordered the trial
of the preliminary issue whether a publication made in the knowledge
of an outstanding injunction against another party, and which, if made
by that other party would amount to a breach of that injunction,
constituted a criminal contempt of court for interfering with the
process of justice concerning that injunction.
27. Viking Penguin Incorporated purchased from Heinemann Australia
the United States (hereafter abbreviated to USA) publication rights to
the book and on 14 May 1987 Viking Penguin announced its intention of
publishing the book in the USA.
28. On 2 June 1987, the Vice-Chancellor decided the preliminary
issue of law in the contempt proceedings. He held that publication by
The Independent and the two London newspapers could not amount to
contempt of court because such publication was not a breach of the
express terms of the injunctions against The Guardian and the Observer
and to which injunctions the former had anyway not been a party. The
Attorney General lodged an appeal against the Vice-Chancellor's
judgment. On 15 June 1987 the Observer and The Guardian applied
to have the hearing of their discharge application restored.
Consideration of the discharge of the injunctions was, however,
further adjourned pending the outcome of the Attorney General's appeal
on the contempt issue in The Independent case, the hearing of which
began on 22 June 1987.
29. The Sunday Times purchased the British newspaper serialisation
rights to the book from Heinemann Australia. On 12 July 1987, The
Sunday Times published the first instalment of extracts from the book.
The newspaper explained that publication of the extracts was being
timed to coincide with publication of the book in the USA, which was
due to take place on 14 July 1987. On 13 July 1987, the Attorney
General commenced proceedings against the applicants, Times Newspapers
Limited and Andrew Neil, for contempt of court. On 14 July 1987,
Viking Penguin published the book in the USA. It was an immediate
bestseller, some 310,000 copies having been printed in the USA, with
its fifth print run by the date of the application to the Commission.
A substantial number of copies were sold to British citizens visiting
the USA or who purchased the book by telephone or post from bookshops
in the USA. The British Government took no legal steps to attempt to
restrain publication of the book in the USA or Canada, where it also
became a bestseller. Immediately after publication of the book in the
USA, people began to bring copies of the book into the UK. No steps
were taken by the Government to prevent such imports. It took the
view that it had the powers to ban import of the book but that any
such ban was likely to be ineffective. Anyone in the UK could
purchase a copy of the book by credit card or cash from the USA by
post or by telephone. The telephone number and address of American
bookshops willing to deliver the book to the UK were widely advertised
in the UK.
30. In the contempt proceedings in the Independent case the Court
of Appeal (Sir John Donaldson MR, Lloyd LJ and Balcombe LJ) announced
on 15 July 1987 (for reasons handed down on 17 July 1987) that it
would reverse the judgment of the Vice-Chancellor and decided
unanimously that such publication could, as a matter of law, amount to
a contempt of court. In his judgment, Sir John Donaldson, Master of
the Rolls, stressed that confidentiality, not official secrecy, was
the central issue in the case. He held, inter alia, that if a court
had prohibited publication of information pending trial which was said
to be confidential, but publication was nevertheless made, there was
no point in having a trial since the cloak of confidentiality could
never be restored. The contempt issue in the present case involved an
interference with the due administration of justice. The application
of the law of contempt being universal, the fact that it was to be
applied in novel circumstances, i.e. to newspapers not party to the
injunction against The Guardian and the Observer, was not a widening
of its application but a new example of its application. Third parties
with a legitimate interest in the injunction could apply to the court
for its modification or apply for clarification if they had doubts
whether the action they contemplated was lawful.
31. In his concurring judgment, Lloyd LJ held, inter alia, as
follows:
"... I would accept that not all acts which are calculated
to interfere with the course of justice will necessarily
ground a charge of contempt. The act must be sufficiently
serious and sufficiently closely connected with the
particular proceedings. But in the present case the conduct
relied on by the Attorney General is not marginal. It is
not a mere prejudging of the issue to be decided in the
particular proceeding. It is not a mere usurpation of the
court's function. It is the destruction, in whole or in
part, of the subject matter of the action itself. The
central issue in the Guardian action is whether The Guardian
should be restrained from publishing confidential information
attributable to Mr. Wright. Once the information has
been published by another newspaper, the confidentiality
evaporates. The point of the action is gone. It is
difficult to imagine a more obvious and more serious
interference with the course of justice than to destroy
the thing in dispute."
32. Balcombe LJ agreed with his colleagues. The Court of Appeal
refused leave to appeal to the House of Lords. No petition for such
an appeal was lodged with the House of Lords itself and no application
was made to the High Court by The Independent, The London Evening
Standard or The London Daily News to modify the interim injunctions
against The Guardian and the Observer.
33. The applicants made it clear that, unless restrained by law,
the second set of extracts from the book would be published on Sunday,
19 July 1987. On 16 July, the Attorney General applied for an
injunction to restrain the applicants from publishing further extracts
from the book. The Attorney General brought his claim to restrain
what he said would be a contempt of court by reason of the injunctions
against The Guardian and the Observer and by reason of the Court of
Appeal's decision in the Independent case.
34. The Vice-Chancellor granted a temporary injunction restraining
publication by the applicants until Tuesday, 21 July 1987. It was
agreed that on Monday, 20 July 1987 the Vice-Chancellor would consider
the claim of The Guardian and the Observer to have the injunctions
against them discharged and that the applicants would (by reason of
being effectively bound by those injunctions because of the Court of
Appeal judgment in the Independent case) have a right to be heard in
support of that claim. He was also to hear the Attorney General's
application for an injunction against the applicants. It was agreed
that if the injunctions against The Guardian and the Observer were
discharged, his claim against the applicants would also fail.
35. The Vice-Chancellor heard argument from 20 to 22 July 1987.
He gave judgment on 22 July as follows:
(i) If there had been a material change of circumstances
since July 1986, he had to consider whether it was now
appropriate to grant injunctions against The Guardian and
the Observer.
(ii) There had been "a most substantial change in
circumstances". He regarded as most significant the fact
that the book had been published in the USA and was
available in and had reached the UK.
(iii) The Vice-Chancellor was bound by the principles laid
down by the House of Lords in American Cyanamid Co v.
Ethicon Ltd <1975> AC 396 concerning the grant of
interlocutory injunctions, namely, it is not the court's
function at this intermediary stage to determine complex
questions of law and fact which call for detailed argument
and mature consideration. These matters are for the trial
court to decide. However, if there is an arguable case
that an injunction may be granted at trial, and if neither
side could be adequately compensated in damages after trial,
then whether an interlocutory injunction should be granted
depends on the balance of convenience.
(iv) The Vice-Chancellor held that the Attorney General had
an arguable case under the law of confidence (albeit one
that he strongly doubted was correct), that he might obtain
an injunction against the newspapers at trial even though
they were neither confidants nor aiders and abettors of a
confidant, and even though the information, the publication
of which the Attorney General wished to restrain, was now
known or available to the public as a result of publication
in the USA.
(v) He held that damages would be an inadequate remedy to
compensate the Attorney General if he failed to obtain an
interlocutory injunction but were successful at trial. He
also held that damages would not be a sufficient remedy to
compensate the newspapers for restraints on publication were
they to succeed at trial.
(vi) He then proceeded to consider the balance of convenience.
He held that, weighing all the factors, it was inappropriate
to continue the injunctions. This was because the information
contained in the book was no longer secret and the only public
interest in restraining publication - to deter other members
of the Security Service from seeking to publish their memoirs -
was outweighed by the public interest in freedom of expression
and the freedom of the press in all the circumstances of this
case. He commented as follows:
"The truth of the matter is that in the contemporary
world of electronics and jumbo jets news anywhere is
news everywhere. But whilst the news is international,
the jurisdiction of this court is strictly territorial.
Once the news is out by publication in the United
States and the importation of the book into this
country, the law could, I think, be justifiably accused
of being an ass and brought into disrepute if it closed
its eyes to that reality and sought by injunction to
prevent the press or anyone else from repeating
information which is now freely available to all."
36. The Attorney General immediately appealed and pending that
appeal the injunctions against The Guardian and the Observer, but not
against the applicants, were continued in force.
37. The Court of Appeal (Sir John Donaldson MR, Ralph Gibson LJ
and Russell LJ) heard argument on this matter on 23 and 24 July 1987.
In its judgment of 24 July 1987 the Court of Appeal decided as
follows:
(i) The Vice-Chancellor had erred in law in various
respects.
(ii) Therefore it was appropriate for the Court of Appeal
to exercise its own discretion.
(iii) In the light of the American publication of the book,
it was inappropriate to continue the injunctions in their
original form. However, it was appropriate to vary the
original injunctions to restrain publication in the course of
business of all or part of the book or other statements by or
attributed to Peter Wright on security matters, but to permit
a summary in general terms of his allegations.
38. The Court of Appeal gave leave to all parties to appeal to the
Appellate Committee of the House of Lords.
39. The Appellate Committee of the House of Lords (Lord Bridge,
Lord Brandon, Lord Templeman, Lord Ackner and Lord Oliver) heard
argument from 27 to 29 July 1987. They gave judgment on Thursday,
30 July 1987. They decided, by a majority of 3-2, to continue the
temporary injunctions granted by Mr. Justice Millett and the Court of
Appeal in July 1986. Lord Bridge (the immediate past Chairman of the
Security Commission, the Government body responsible for supervising
aspects of the work of the British Security Service) and Lord Oliver
dissented on the ground that no injunctions should lie against the
newspapers because the information was no longer secret. However, the
majority of the Appellate Committee decided that the scope of the
injunctions granted in 1986 should be widened to restrict certain
reporting of what would take place in open court in the further
Australian proceedings, otherwise passages from the book read out in
the Australian courts might be reproduced in English newspapers, thus
circumventing the injunctions. Its written reasons for the judgment
were given on 13 August 1987 (1987 1WLR 1248).
40. Lord Brandon (with whose observations Lord Templeman agreed)
held, inter alia, as follows:
(i) it was of the utmost importance that the injunctions
in issue were interlocutory injunctions, that is temporary
injunctions having effect until the trial of the action only;
continuation of the injunction until trial did not in any
way prejudge the validity of the Attorney General's claim
to final injunctions, its purpose being only to hold the
ring until a just decision on the validity of that claim
could be made;
(ii) before the publication of the book in America the
Attorney General had a strong arguable case for obtaining
at trial final injunctions in terms similar to those of
the temporary injunctions; this was the view taken by
Millett J. and the Court of Appeal and was not really open
to challenge;
(iii) the key issue was whether the publication of the book
in the USA had the effect that the Attorney General no longer
had an arguable claim to permanent injunctions at trial;
although the Attorney General's case for obtaining final
injunctions at trial had been much weakened by the publication
of the book, it remained nevertheless an arguable case;
(iv) in order to enable a court to carry out properly the
exercise of weighing and balancing the public right to freedom
of expression in the press and the public interest in the
protection of the secrecy of the British Security Service,
it was essential that it should have adduced before it the
best possible evidence on the crucial questions which arose
in the case in the form of oral evidence from witnesses
subject to cross-examination; the only way in which it
could thus justly be decided whether the Attorney General's
case, being still arguable, should succeed or fail was by
having the action tried;
(v) if the temporary injunction were discharged now, so
that the newspapers were left free to disseminate generally
the disclosures made in the book, there would be no point
in the Attorney General proceeding to trial; his arguable
case would have been completely destroyed by summary process
at an interlocutory stage and without his ever having had
the opportunity of having it fairly tried on appropriate
evidence;
(vi) if, on the other hand, the temporary injunctions were
continued until trial, the effect would be only to postpone
and not to prevent the exercise by The Guardian and the
Observer newspapers of the rights to publish; although the
exercise of such rights would certainly have been delayed,
it was a material factor that Mr. Wright's disclosures
related not to recent events but to events many years in
the past; that being so, a further delay in the exercise of
the newspapers' rights would in no way be equivalent to a
complete denial of those which the Attorney General might have;
(vii) having regard to the matters in (v) and (vi) above,
the discharge of the temporary injunctions was capable of
causing much greater injustice to the Attorney General than
the continuation of them until trial was capable of causing
to the newspapers; in that situation it was clear that in the
overall interests of justice continuation of the injunctions
until trial was preferable to their discharge.
41. Lord Ackner, the third majority member of the Appellate
Committee, held, inter alia, as follows:
(i) it was common ground and/or accepted by each member
of the Appellate Committee
(a) that the Attorney General had an arguable
case for a permanent injunction; (this had been
conceded by the appellant newspapers given the
domestic law;)
(b) that damages were a worthless remedy for the
Crown and that, if the interlocutory injunctions were
not continued, the Crown would immediately and
irrevocably lose the prospect of obtaining a permanent
injunction which it might obtain if a trial were to
take place;
(c) that, by contrast to (b) above, the
continuance of the interlocutory injunction was not,
as the Vice-Chancellor had accepted, "a final locking
out of the press"; if successful in the action, the
press would then be able to publish the material which
had no present urgency in that the allegations made in
the book were in a number of respects stale;
(d) that there was a real public interest
concerned with the efficient functioning of the
Security Service and that interest required protection;
this would extend, as was conceded by the appellant
newspapers, to the need to restrain any market for the
unauthorised disclosure or use of the confidential
memoirs of Secret Service officers;
(ii) it accordingly followed that, notwithstanding the
publication of "Spycatcher" in the USA, it would be a denial
of justice to refuse to allow the injunctions to be continued
until the action was heard; to refuse to continue the
interlocutory injunctions would result in the "sweeping aside"
of the aforementioned public interest factor without any
trial; the Attorney General would thus have been prematurely
and permanently denied any protection from the courts.
42. Although arriving at a contrary conclusion on the facts of the
case, the minority of the Appellate Committee (Lord Bridge and Lord
Oliver) did not differ substantially from the above approach of the
majority as to the proper test to be applied in determining whether to
continue or discharge the interlocutory injunctions. In particular,
Lord Oliver made clear, inter alia:
(i) that he entertained no doubt whatsoever that the
interlocutory injunctions granted by Millett J. and confirmed
by the Court of Appeal in July 1986 were, in the circumstances
which existed at that time, entirely correct;
(ii) that if, notwithstanding the publication of the book,
an arguable case was made out for the grant of a permanent
injunction at trial, the question would become one of balance
of convenience.
43. The principal respect in which Lord Oliver differed from the
majority of the Appellate Committee was as to the question whether,
following the publication of the book in the USA, there remained an
arguable case for the grant of a permanent injunction at trial. While
noting that the newspapers had presented their arguments on the
footing that there remained an arguable case, and while accepting that
the point of law involved was a difficult and novel one, Lord Oliver
took the view that the Appellate Committee had before it all the
material on which to determine the point. Although he stated that he
fully appreciated the point forcefully made in the speeches of the
majority that the question should not now be determined without full
argument at trial, Lord Oliver stated that, in the light of the degree
of public availability of the information in "Spycatcher", he could
not see how it could be successfully argued at trial that the
appellants should be permanently enjoined from publishing such
information. Lord Oliver thus concluded that there no longer existed
any arguable case for a permanent injunction at the trial and that
accordingly the interlocutory injunctions should be discharged.
44. This judgment of the House of Lords terminated the
interlocutory proceedings in the UK.
45. During the interlocutory proceedings in this case the
applicants made submissions to the domestic courts under Article 10 of
the Convention. Account was taken of these submissions as was
demonstrated in the judgment of the House of Lords. Lord Brandon
commented as follows:
"The public right to freedom of expression cannot, even in a
democratic country such as the United Kingdom, be absolute.
It is necessarily subject to certain exceptions, of which the
protection of national security is one. This is expressly
recognised in Article 10 para. 2 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, to which
the United Kingdom has adhered although its provisions have
not been incorporated into our domestic law".
46. Lord Templeman (with whom Lord Ackner agreed) recognised that
the "conflict between the right of the public to be protected by the
Security Service and the right of the public to be supplied with full
information by the press" involved considerations under Article 10 of
the Convention. He reviewed the Convention case-law on freedom of
expression, in particular, The Sunday Times case (Eur. Court H.R.,
judgment of 26 April 1979, Series A No. 30). In terms of the
Convention he found several reasons necessitating the imposition of
injunctions: to prevent damage to national security, i.e. the
Security Service, to deter or prevent any recurrence of publication by
disgruntled public servants of damaging truths and falsehoods abroad,
to protect the reputation or rights of others, to prevent disclosure
of information obtained by a member of the Secret Service in
confidence and to maintain the authority of the judiciary.
47. However, Lord Harwich considered that the imposition of
injunctions would create an "unnecessary fetter on freedom of speech"
and doubted the ability of the English "common law to safeguard the
fundamental freedoms essential to a free society including the right
to freedom of speech which is specifically safeguarded by Article 10
of the Convention".
48. On 24 September 1987 the New South Wales Court of Appeal
delivered its reserved judgment dismissing the Attorney General's
appeal. The Attorney General applied for leave to appeal to the High
Court of Australia against the Court of Appeal's decision. Pending
the hearing the High Court declined to grant temporary injunctions
against publication of the book. Proceedings against newspapers for
injunctions were also brought by the Attorney General in Hong Kong and
New Zealand. In Hong Kong temporary injunctions were granted, but in
New Zealand it was reported in The Independent on 16 December 1987
that the Chief Justice had given judgment against the Attorney General
and permanent injunctions had been refused.
49. In the meantime publication and dissemination of "Spycatcher"
and its contents continued worldwide, not only in the USA (around
715,000 copies were printed and nearly all were sold by October 1987)
and Canada (around 100,000 copies printed), but also in Australia
(145,000 copies printed, half of which were sold within a month of
publication), Ireland (30,000 copies printed and distributed) and
several thousand copies were sent to various European countries from
the USA (80,000 copies to Holland, 10,000 to Germany, 500 to Norway,
2,000 to Malta and 1,000 to Cyprus). From Australia copies were
distributed in Asian countries. Radio broadcasts in English about the
book were made in Denmark and Sweden, and translations of the book
were made in 12 other languages, including Spanish, Catalan, French,
German, Swedish, Italian, Danish, Icelandic, Dutch and Portuguese.
50. Against the background of this wide dissemination of the book,
the substantive trial of the Attorney General's actions against the
Observer and The Guardian lasted several days and took place before
Scott J. during the latter part of November and early December 1987.
The applicants were also party to these proceedings, in respect of a
determination of the Attorney General's claim against them for an
alleged breach of confidence, which claim had been initiated by the
Attorney General in a writ issued on 27 October 1987. On 21 December
1987 Scott J. delivered judgment dismissing the actions and
discharging the injunctions against the first two newspapers ((1988)
2WLR 805).
51. Scott J. described the facts leading up to the contempt
proceedings against the applicants, in the context of the background
of imminent publication of the book in the USA, the pending Australian
proceedings and the temporary injunctions against The Guardian and the
Observer, as follows:
"In this climate the editor of The Sunday Times, Mr. Neil,
negotiated with the Australian publishers for the right to
serialise the book in The Sunday Times. Terms were reached
and were set out in a letter dated 4 June 1987 which Mr. Neil
wrote to the publishers. A price of $150,000 was agreed, of
which $25,000 was payable at once and the balance after
serialisation. If serialisation were delayed a lesser sum
would be payable. Three or four extracts were contemplated,
comprising together 20,000 to 25,000 words. The letter of
4 June 1987 contained a paragraph emphasising the need for
secrecy. It was clear from Mr. Neil's evidence that he well
understood that if anyone on the Government side smelt any
whiff of The Sunday Times' intention to serialise, an
application for a restraining injunction would immediately
have been made by the Attorney General.
Mr. Neil wanted the serialisation of 'Spycatcher' in The
Sunday Times to coincide with the publication of the book
in the United States. So liaison with Viking Penguin Inc.
was necessary. Further, Mr. Neil knew that the undertakings
which had been given to the court in Australia, and which
continued pending the hearing of the appeal, would prevent
the Australian publishers from sending him a copy of the
manuscript. Mr. Neil had to obtain a copy of the manuscript
in order to prepare the serialisation but could not obtain
one from Australia. His solution was to obtain one from
the United States publishers, Viking Penguin Inc. The launch
of the book in the United States was due to take place on
Monday 13 July. On 7 July 1987 Mr. Neil flew to the United
States and obtained a copy of the manuscript with the
intention that the first extract would appear in The Sunday
Times on Sunday 12 July 1987. It did so. The publication
of 12 July was accompanied by special measures to throw
the Government off the scent. The first edition of the
newspaper, comprising some 76,000 copies, was published
without the 'Spycatcher' extracts. The extracts were
included in the later editions. This was to prevent the
Government, on reading the first edition, from obtaining an
immediate injunction to restrain the printing of the later
editions. By the time the later editions came to the
Government's attention it would be too late for any action
to be taken to restrain publication. That was the plan and
it worked. The presses printing the later editions ran from
7.08p.m. to 4.23a.m., during which time some 1.25 million
copies carrying the 'Spycatcher' extracts were produced.
There was evidence that sales of The Sunday Times of 12 July
1987 were slightly above average.
The next day, Monday 13 July 1987, the Attorney General
commenced proceedings against The Sunday Times for contempt
of court."
52. Scott J. held that Mr. Wright owed a duty to the Crown not to
disclose any information obtained by him in the course of his
employment in MI5, that he broke that duty by writing "Spycatcher" and
submitting it for publication, and that the subsequent publication of
the book in July 1987 and its subsequent dissemination amounted to a
further breach, so that the Attorney General would be entitled to an
injunction against Mr. Wright or any agent of his restraining
publication of the book in the UK. He found that the Observer and The
Guardian were not in breach of their duty of confidentiality, created
by being recipients of Mr. Wright's unauthorised disclosures, when
they fairly reported in general terms the litigation in Australia and
the allegations in the book in their respective articles of 22 and
23 June 1986. The applicants on the other hand had published extracts
from the book containing certain material which did not raise
questions of public interest outweighing those of national security.
Accordingly they had been in breach of duty in publishing the first
instalment of extracts from the book on 12 July 1987. However, the
Attorney General was not entitled to an injunction to restrain further
serialisation by The Sunday Times or any other newspaper since the
wide publication of the book abroad had destroyed any secrecy as to
the contents. Nevertheless the judge held that the applicants were
liable to account for the profits accruing to the company as a result
of the publication of the first extract. In his judgment he took
account, inter alia, of the defendants' pleadings under Article 10 of
the Convention, the Government's ensuing treaty obligations and the
case-law of the Convention organs, which establishes that the
limitation of free expression in the interests of national security
should not be regarded as necessary unless there is a pressing social
need for the limitation and unless the limitation is proportionate to
the legitimate aims pursued. He found the arguments for press freedom
overwhelming and the Government's desire for absolute protection of
the Secret Service draconian and impracticable once information is
released and easily available abroad. He therefore dismissed the
Attorney General's claim for a permanent injunction to restrain
publication of material from the book, but imposed further temporary
injunctions pending an appeal to the Court of Appeal.
53. On appeal by the Attorney General and a cross-appeal by the
applicants, the Court of Appeal (Sir John Donaldson MR, Dillon and
Bingham LJJ) on 10 February 1988 (the hearings having been held from
18 to 25 January 1988), affirmed the decision of Scott J.. However,
again, the temporary injunctions were continued pending appeal to the
House of Lords.
54. The House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord
Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle)
also affirmed the decision of Scott J. in a judgment dated 13 October
1988 ((1988)3WLR 776). Dismissing the appeal by the Attorney General
and the cross-appeal by the applicants, it held as follows:
"(i) That a duty of confidence could arise in contract
or in equity and a confidant who acquired information in
circumstances importing such a duty should be precluded
from disclosing it to others; that a third party in
possession of information known to be confidential was
bound by a duty of confidence unless the duty was
extinguished by the information becoming available
to the general public or the duty was outweighed by a
countervailing public interest requiring disclosure of
the information; that in seeking to restrain the disclosure
of government secrets the Crown must demonstrate that
disclosure was likely to damage or had damaged the public
interest before relief could be granted; that since the
world-wide publication of 'Spycatcher' had destroyed any
secrecy as to its contents, and copies of it were readily
available to any individual who wished to obtain them,
continuation of the injunctions was not necessary; and
that, accordingly, the injunctions should be discharged.
(ii) (Lord Griffiths dissenting) that the articles of
22 and 23 June had not contained information damaging to
the public interest; that the Observer and The Guardian
were not in breach of their duty of confidentiality when
they published the articles of 22 and 23 June 1986; and
that, accordingly, the Crown would not have been entitled
to a permanent injunction against both newspapers.
(iii) That The Sunday Times was in breach of its duty of
confidence in publishing its first serialised extract
from 'Spycatcher' on 12 July 1987; that it was not
protected by either the defence of prior publication or
disclosure of iniquity; that imminent publication of the
book in the USA did not amount to a justification; and
that, accordingly, The Sunday Times was liable to account
for the profits resulting from that breach.
(iv) That since the information in 'Spycatcher' was now
in the public domain and no longer confidential no further
damage could be done to the public interest that had not
already been done; that no injunction should be granted
against the Observer and The Guardian restraining them
from reporting on the contents of the book; and that
(Lord Griffiths dissenting) no injunction should be
granted against The Sunday Times to restrain serialising
of further extracts from the book.
(v) That members and former members of the Security Service
owed a lifelong duty of confidence to the Crown, and that
since the vast majority of them would not disclose
confidential information to the newspapers it would not be
appropriate to grant a general injunction to restrain the
newspapers from future publication of any information on
the allegations in 'Spycatcher' derived from any member or
former member of the Security Service."
III. OPINION OF THE COMMISSION
A. Points at issue
55. The following are the points at issue in the present
application:
- whether the interlocutory injunctions imposed on the British
media by virtue of the House of Lords' judgment on 30 July 1987 were
in violation of the applicants' freedom of expression ensured by
Article 10 (Art. 10) of the Convention;
- whether the applicants had an effective remedy, pursuant to
Article 13 (Art. 13) of the Convention, in respect of their complaint
under Article 10 (Art. 10);
- whether the interlocutory injunctions also constituted
discrimination in violation of Article 14 of the Convention read in
conjunction with Article 10 (Art. 14+10).
B. As regards Article 10 (Art. 10) of the Convention
56. Article 10 (Art. 10) of the Convention provides as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and
to receive and impart information and ideas without
interference by public authority and regardless of
frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibiities, may be subject to
such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a
democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information
received in confidence, or for maintaining the authority
and impartiality of the judiciary."
57. The Commission must proceed to examine whether the
interlocutory injunctions by which the applicants were bound
constituted an interference with their freedom of expression ensured
by Article 10 para. 1 (Art. 10-1) of the Convention; if so, whether that
interference was prescribed by law and whether it had a legitimate aim
or aims. Finally, it must consider whether the interference was
necessary, i.e. corresponded to a pressing social need and was
proportionate to the pursuit of that or those legitimate aim or aims.
a) Interference with freedom of expression
58. It is undisputed in the present case that the interlocutory
injunctions in effect imposed on the applicants and the whole of the
British media by the House of Lords' judgment of 30 July 1987
constituted an interference with the applicants' freedom of expression
ensured by Article 10 para. 1 (Art. 10-1) of the Convention. These
injunctions prevented the applicants from, inter alia, publishing
further extracts from the book "Spycatcher", further details about the
allegedly unlawful conduct of the British Secret Service described in
that book, or further information obtained from the book's author,
Peter Wright, a retired member of that Service (paras. 19-20, 30-31
and 33-34 above). The Commission finds that the gagging effect of the
injunctions, imposing prior restraint on further publication of
matters of legitimate public interest, constituted an interference
with the applicants' freedom of expression with wide repercussions.
The Commission must examine whether that interference was justified
under Article 10 para. 2 (Art. 10-2) of the Convention.
b) Prescribed by law
59. Any interference with freedom of expression must be prescribed
by law. The word "law" in the expression "prescribed by law" covers
not only statute but also unwritten law such as the law of contempt of
court or breach of confidence in English common law. Two requirements
flow from this expression, that of the adequate accessibility and
foreseeability of law, to enable the individual to regulate his
conduct in the light of the foreseeable consequences of a given action
(Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A
No. 30, pp. 30-31, paras. 47-49).
60. The applicants have contended that the imposition of temporary
injunctions in the present case was not "prescribed by law" within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention, the
relevant domestic law being insufficiently foreseeable. The
Government refuted this contention. They submitted that the relevant
principles of law concerning the grant of interim injunctions pending
trial of an action were clear and well-established.
61. The Commission notes that the relevant domestic law in the
present case concerned not only that of interim injunctions, but also
the law of contempt of court and breach of confidence, all being
aspects of English common law, i.e. non-statutory law. At the outset
the Government were concerned to prevent the publication of
information directly or indirectly obtained from Peter Wright, a
retired member of the British Secret Service, who, in breach of his
professional duty of confidence, had divulged information about that
Service.
62. A legal dispute arose between the Government, represented by
the Attorney General, and the applicants over whether, inter alia, a
third party, such as a newspaper, could be bound by that duty of
confidence and thereby prevented, by permanent injunction, from
publishing information obtained from Mr. Wright. It seems that the
applicants had conceded in the interlocutory proceedings that, for the
purposes of domestic law, the Attorney General had an arguable point,
albeit unfounded on the merits. To protect the Attorney General's
interests as a litigant and maintain the procedural status quo until
the trial on the merits, the law of interim injunctions, as set out in
the case of American Cyanamid Co. v. Ethicon Ltd <1975> AC 396, was
applied in this case (see para. 35 (iii) above). Once the interim
injunctions were imposed on the Observer and Guardian newspapers the
whole of the British media was bound by them for as long as they
lasted by virtue of the law of contempt of court (see paras. 30-31 and
33 above).
63. The Commission is of the opinion that a rule which authorises
prior restraint of a publication must specify the criteria for such a
restriction with sufficient precision to be compatible with the
Convention requirement "prescribed by law". Having noted that even
after the publication of the book in the USA the Law Lords were not
able to agree on what importance should be attached to the
availability of the information contained in "Spycatcher" on the open
market, the Commission queries whether the different aspects of common
law applied in the present case were entirely clear. However, the
Commission finds that the dominant legal principles in the present
case are those concerning the grant of interim injunctions. It also
finds that they were well-established in English common law, at least
since 1975 in the aforementioned American Cyanamid case. They can
therefore be said to have been adequately foreseeable. The
differences between the parties in the present case have turned
principally on the necessity of imposing the interim injunctions,
not on the absence of any legal authority for doing so. In these
circumstances, the Commission concludes that the interference with the
applicants' freedom of expression by interim injunctions imposed on
them by virtue of the House of Lords' judgment of 30 July 1987 was
"prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
c) Legitimate aim
64. Interference with freedom of expression may only be justified
if it pursues a legitimate aim such as protecting the interests of
national security, preventing the disclosure of information received
in confidence or maintaining the authority of the judiciary.
65. It is not disputed by the parties that the central purpose of
the interlocutory injunctions in the present case has been to protect
the position of the Attorney General as a litigant pending the trial
of the confidentiality claim on the merits. The Commission considers
that such a purpose falls within the scope of the legitimate aim of
maintaining the authority and impartiality of the judiciary, within
the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
Indirectly the imposition of the original injunctions on The Guardian
and Observer newspapers by Mr. Justice Millett on 11 July 1986, and
which subsequently bound the whole of the British media including the
applicants, was also intended to serve the purpose of protecting
national security. Mr. Justice Millett considered that one of the
elements to be tested at the eventual trial was whether the efficacy
of the British Secret Service would be impaired if its officers felt
free to divulge confidential matters. The Commission considers that
this, in principle, falls within the scope of the legitimate aim of
protecting the interests of national security, within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention. However, the
Government have not directly relied on this aspect of justification
for the purposes of the proceedings before the Commission.
d) Necessary in a democratic society
66. The key issue in the present case is whether it was necessary
in the circumstances to impose temporary injunctions in question.
67. The adjective "necessary" within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention is not synonymous with
"indispensable" or as flexible as "reasonable" or "desirable", but it
implies the existence of a pressing social need.
68. The notion of necessity implies that the interference of which
complaint is made corresponds to this pressing social need, that it is
proportionate to the legitimate aim pursued and that the reasons given
by the national authorities to justify it are relevant and sufficient
(Eur. Court H.R., Barthold judgment of 25 March 1985, Series A No. 90,
pp. 24-25, para. 55).
69. The initial responsibility for securing Convention rights and
freedoms lies with the individual Contracting State. Accordingly
Article 10 para. 2 (Art. 10-2) of the Convention leaves the
Contracting State a margin of appreciation, ultimate supervision of
which remains with the Convention organs. The scope of the margin of
appreciation will vary depending on the aim pursued under Article 10
para. 2 (Art. 10-2) of the Convention. The aim of the restriction in
the present case is the maintenance of the authority of the judiciary,
the protection of national security being a background element (see
paras. 64-65 above).
70. The Court has acknowledged that the margin of appreciation
available to States in assessing the pressing social need to protect
certain aspects of national security is a wide one (Eur. Court H.R.,
Leander judgment of 26 March 1987, Series A No. 116, p. 25, para. 59).
The Court has also held that the expression "maintaining the authority
and impartiality of the judiciary" not only refers to maintaining
public confidence in the ability of the machinery of justice to
determine legal rights and obligations and to settle disputes, but
also encompasses the protection of the rights of litigants (Eur. Court
H.R., aforementioned Sunday Times judgment, p. 34, paras. 55-56).
However, the State's margin of appreciation in this area is more
restricted as the notion of the "authority" of the judiciary has a
more objective basis, reflecting a fairly substantial measure of
common ground in the domestic law and practice of the Contracting
States (ibid, pp. 35-37, para. 59).
71. Freedom of expression constitutes one of the essential
foundations of a democratic society, in particular freedom of
political and public debate. This is of special importance for the
free press which has a legitimate interest in reporting on and drawing
the public's attention to deficiencies in the operation of Government
services, including possible illegal activities. It is incumbent on
the press to impart information and ideas about such matters and the
public has a right to receive them (cf. mutatis mutandis the
aforementioned Sunday Times judgment, p. 40, para. 65, and Eur. Court
H.R., Lingens judgment of 8 July 1986, Series A No. 103, p. 26, paras.
41-42).
72. The Commission must now examine whether, in the circumstances
of the present case, there was a pressing social need to maintain the
interlocutory injunctions against the Observer and Guardian
newspapers, by which injunctions the applicants were bound, and
whether the injunctions were proportionate to the aim pursued.
73. The applicants contended that there was no pressing social
need for the perpetuation of injunctions by the House of Lords on
30 July 1987 and by subsequent courts until 13 October 1988. They
pointed out that by the end of July 1987 extensive details about the
contents of "Spycatcher" had been divulged in other books, television
interviews with Mr. Wright and certain major newspapers in Britain,
Australia and the USA (paras. 15 and 23-24 above). The book itself
went on sale in the USA on 14 July 1987. It became an instant best
seller there and elsewhere (paras. 29 and 49 above). Any further
restriction on the newspaper reporting of "Spycatcher" could not have
effectively protected the Attorney General's litigation interests
because the confidentiality which the Attorney General sought to
protect had been broken, the allegations in "Spycatcher" being public
knowledge by then. The applicants contended that the application of
private litigation principles through the American Cyanamid case and
its test of the "balance of convenience" fell short of the
Convention's necessity test, and the need to balance the public's
right to be informed against the unrealistic confidentiality claim by
the Attorney General.
74. The Government submitted that the temporary injunctions
imposed by the House of Lords on 30 July 1987, and perpetuated
thereafter by the English courts until 13 October 1988, were
necessary. The fact that much of the information in question was
already in the public domain ignored the new source of information
provided by an insider, namely, Mr. Wright and his book "Spycatcher".
It was his authoritative role as a retired member of the Security
Service, his breach of confidence with its repercussions on the
effective operation of the Service, which concerned the Government.
There was a clear need to preserve the subject matter of the case for
mature determination of the issues at the trial. The applicants had
even conceded that under domestic law the Attorney General had an
arguable claim to a permanent injunction against them based on the law
of breach of confidence. The imposition of merely temporary
injunctions until trial justifiably and proportionately responded to
the pressing social need of maintaining the authority of the
judiciary, within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention.
75. The Commission is unable to accept the Government's
proposition. It was clear by the time the book was published in the
USA that the confidentiality of information held by Peter Wright had
been destroyed. The Commission observes that the Government had taken
no steps to prevent earlier disclosure of information by Mr. Wright.
Moreover, the Government made no attempt to prevent the importation of
"Spycatcher" into the UK. The Commission fails to see a pressing
social need to prevent the British public reading about something
which the rest of the world was free to read by then and which
concerned a matter of major interest to them. Moreover, the argument
concerning the merely temporary nature of the injunctions loses its
cogency when account is taken of the fact that, first, related
proceedings against the Observer and Guardian newspapers had been
underway for some considerable time before the applicants became
involved in them; secondly, once the applicants were joined in these
proceedings even so they took over a year to complete and, thirdly,
the evidence upon which the House of Lords based its decision on the
merits in October 1988 was available by July 1987.
76. In these circumstances the Commission is of the opinion that
the interlocutory injunctions imposed by the House of Lords on 30 July
1987, continuing in force until 13 October 1988, and which bound the
applicants, were not necessary and met no pressing social need to
maintain the authority and impartiality of the judiciary within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
Conclusion
77. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 10 (Art. 10) of the Convention.
C. As regards Article 13 (Art. 13) of the Convention
78. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in
an official capacity."
79. The applicants have contended that the House of Lords in its
judgment of 30 July 1987 failed to apply the principles laid down in
Article 10 para. 2 (Art. 10-2) of the Convention. Because the
Convention, or its standards, are not incorporated into UK domestic
law, the applicants submitted that they had no effective remedy before
a national authority for their claims of a breach of Articles 10 (Art. 10)
and 14 (Art. 14) of the Convention. The Government contended that
just as Article 13 (Art. 13) of the Convention does not guarantee a
remedy by which legislation can be controlled as to its conformity
with the Convention, so too Article 13 (Art. 13) cannot be interpreted
as guaranteeing a remedy against the decision of the highest court in
the domestic legal system which is allegedly in breach of a
substantive Article of the Convention.
80. The Commission is of the opinion that the interpretation of
the Convention as a whole imposes certain limitations on the right to
a remedy recognised by Article 13 (Art. 13). In the present case the
applicants complain of a decision by the highest judicial authority
in the English legal system. The Commission considers that in this
situation Article 13 (Art. 13) does not require yet a further remedy.
Article 13 (Art. 13) does not, therefore, apply in this case.
Conclusion
81. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention.
D. As regards Article 14 (Art. 14) of the Convention
82. Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
83. The applicants have contended that the House of Lords'
judgment of 30 July 1987 arbitrarily discriminated against them and
their readers. It imposed restraints on the importing of the relevant
information in the UK by the applicants and by other British newspaper
and broadcasting organisations, when that information was widely
available to persons beyond the frontiers of the UK and when the
information could be imported into the UK by anyone who chose to buy
the book from a US bookshop. Publishers in the USA were free to
impart the information and ideas to their readers, but the applicants
could not do so. In the applicants' view there was no objective and
reasonable justification for such differences of treatment in the
enjoyment of freedom of expression regardless of frontiers.
84. The Government responded that the restrictions imposed on the
applicants by reason of the law of contempt were no more extensive or
less favourable than on any other newspaper publisher or other section
of the media as regards the "Spycatcher" material. The applicants
were subject to no difference in treatment under the law than others
in a comparable position. The fact that the information was widely
available to persons beyond the frontiers of the UK was not evidence
of discriminatory treatment but a mere reflection of the fact that in
matters such as these the jurisdiction of the domestic court is in
essence territorial and the court has no power to control what occurs
outside its territorial jurisdiction. The fact that no ban was
imposed on the importation of "Spycatcher" ignores the impact on the
administration of justice of the limited importation of individual
copies of the book compared with the publication of the contents of
the book in a mass circulation newspaper. Neither newspaper
publishers nor their readers are in a comparable position to an
individual importing a copy of the book.
85. The Commission is of the opinion that the applicants cannot
claim to be victims of a violation of Article 14 (Art. 14) of the
Convention in respect of their readers' freedom of expression (right
to receive information) ensured by Article 10 (Art. 10). It also
agrees with the Government's contentions that the applicants were not
subject to any different treatment under the domestic law than others
in a comparable position. The Government's liability under the
Convention is limited to its jurisdiction. Within the United Kingdom
the whole of the British media was bound by the House of Lords'
judgment of 30 July 1987, by virtue of the law of contempt of court,
to refrain from publishing details of the contents of "Spycatcher".
In these circumstances the Commission considers that the applicants
did not suffer any discrimination in the enjoyment of their Article 10
(Art. 10) rights, contrary to Article 14 (Art. 14) of the Convention.
Conclusion
86. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 14 (Art. 14) of the Convention.
E. Recapitulation
87. Commission concludes, by a unanimous vote, that there has been
a violation of Article 10 (Art. 10) of the Convention (para. 77).
88. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention (para. 81).
89. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 14 (Art. 14) of the Convention (para. 86).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Concurring opinion of Sir Basil Hall
While my conclusion is too that there is a violation of
Article 10 of the Convention in this case, the grounds for my
conclusion differ from those of the majority of the Commission.
I refer to my separate concurring opinion in the complaints
brought by the owners, editors and journalists of the Observer and
Guardian newspapers (No. 13585/86 Comm. Report 12.7.90) and in
particular to the view there expressed that steps should have been
taken to ensure that a hearing on the merits took place at the
earliest possible date. It is not my view that the justification for
the interim injunctions ceased on the publication of "Spycatcher" in
the USA and elsewhere. There was still an arguable issue to be tried.
However when proceedings for breach of confidence were
instituted against The Sunday Times on 27 October 1987, the issues in
those proceedings were virtually the same as those in the proceedings
against the Observer and Guardian, with the additional element that
The Sunday Times proposed to publish extracts from the book
"Spycatcher". However a ban against the publication had, through the
law of contempt of court, been in effect since 17 July 1987 when the
Court of Appeal had found The Independent to have been in contempt of
court.
A speedy determination of the Observer and Guardian actions
would have gone far to have determine the position of The Sunday
Times.
When on 27 October 1987 The Sunday Times proprietors and
editor were joined in the actions relating to the Observer and
Guardian, the hearing on the merits was, in my view, already overdue,
something for which the United Kingdom authorities have a
responsibility. The continuation of the interim injunctions was no
longer justifiable. Their continuation prevented publication by The
Sunday Times. In so far as there were separate issues in this case,
it is not apparent that they were such as to necessitate the delay
that occurred before the trial on the merits.
There was, accordingly, a violation of Article 10 of the
Convention.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
31.07.87 Introduction of the application
24.08.87 Registration of the application
Examination of admissibility
07.10.87 Commission's deliberations and
decision to invite the parties to
submit their written observations
on admissibility and merits
04.02.88 Government's observations
21.03.88 Applicants' reply
09.07.88 Adjournment of application pending
final House of Lords' judgment
17.10.88 Commission's deliberations and
decision to invite the parties to
comment on the relevance of the
House of Lords' judgment to the
application
02.02.89 Applicants' further observations
10.02.89 Government's further observations
09.05.89 Commission's deliberations and
decision to hold a hearing.
Application joined to Application
No. 13585/89
05.10.89 Hearing on admissibility and merits,
the parties being represented as
follows:
Government:
Mr. M. Wood, Government Agent
Sir Patrick Mayhew, QC, MP, Attorney
General, Counsel
Mr. N. Bratza, QC, Counsel
Mr. P. Havers, Counsel
Mrs. S. Evans, Home Office
Mrs. S. Marsh, Legal Secretariat
to the Law Officers.
Applicants:
Mr. A. Lester, QC, Counsel
Mr. D. Pannick, Counsel
Mr. A. Whitaker, Legal Manager of
Times Newspapers Ltd.
05.10.89 Commission's deliberations and
decision to declare the application
admissible.
Application disjoined from
Application No. 13585/89
Examination of the merits
08.11.89 Parties invited to submit further
written observations on the merits
08.01.90 Government's observations
15.03.90 Applicants' observations
02.07.90 Government's further observations
03.07.90 Commission's deliberations on the
merits and final votes
09.07.90 Commission's deliberations on the
text of its Article 31 Report
12.07.90 Adoption of Report