AS TO THE ADMISSIBILITY OF

                        Application No. 13585/88

                        by the Observer Ltd. and Others and

                        Guardian Newspapers Ltd. and Others

                        against the United Kingdom

        The European Commission of Human Rights sitting in private on

5 October 1989, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   C.L. ROZAKIS

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 27 January 1988

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

against the United Kingdom and registered on 3 February 1988 under

file No. 13585/88;

        Having regard to:

     -  reports provided for in Rule 40 of the Rules of Procedure of

        the Commission;

     -  the Commission's decision of 7 October 1988 to bring the

        application to the notice of the respondent Government

        and invite the parties to submit written observations on

        its admissibility and merits ;

     -  the observations submitted by the respondent Government on

        27 January 1989 and the observations in reply submitted

        by the applicants on 25 April 1989 ;

     -  the Commission's decision of 9 May 1989 to hold a hearing

        on the admissibility and merits of this case joined with

        application No. 13166/87, Times Newspapers Ltd and Neil

        v.  UK;

     -  the hearing of the parties on 5 October 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be

summarised as follows:

        The applicants are:

(1)     The Observer Limited, the proprietors and publishers of the

national Sunday newspaper the "Observer", published in the United

Kingdom (UK),

(2)     Mr.  Donald Trelford, the editor of the Observer,

(3)     Mr.  David Leigh, and

(4)     Mr.  Paul Lashmar, who are both reporters employed on The

Observer.  They were the joint-authors of an article which appeared in

the issue of the Observer dated Sunday, 22 June 1986, which detailed

certain of the contents of the memoirs (at that time unpublished) of

Mr.  Peter Wright (a former Assistant Director of the British Security

Service "MI5") entitled "Spycatcher".

(5)     Guardian Newspapers Limited, the proprietors and publishers of

the UK national daily newspaper "The Guardian",

(6)     Mr.  Peter Preston, the editor of The Guardian, and

(7)     Mr.  Richard Norton-Taylor, a reporter employed on The

Guardian, who was the author of an article in the issue of that

newspaper dated Monday, 23 June 1986, which also detailed certain of

the contents of Mr.  Wright's proposed book.

        The applicants are represented before the Commission by

Messrs.  Lovell White and Durrant, Solicitors, London.

        The application concerns the unrestricted reporting of details

about the book, "Spycatcher", by Mr.  Peter Wright.

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

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

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

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

illegal activities by the British Security Services in particular MI5.

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

book), Mr.  Wright alleges, inter alia, that MI5 conducted unlawful

actitivies calculated to undermine the Labour Government of 1974-79

burgled and bugged the embassies of allied and hostile countries,

planned and participated in other unlawful and covert activities at

home and abroad and that Sir Roger Hollis, who led MI5 during the

latter part of Mr.  Wright's employment, was a Soviet agent.  Mr Wright

has unsuccessfully sought to persuade the British Government to

institute an independent inquiry into these allegations.  Such an

inquiry has also been sought by, amongst others, James Callaghan

(Prime Minister 1976-79 and a senior member of the Cabinet of Harold

Wilson 1974-76) and other prominent members of the Labour Government

of 1974-79 including two former Home Secretaries, Roy Jenkins and

Merlyn Rees.  Part of the material in "Spycatcher" had already been

published in a number of books about the British Security Services

written by Mr.  Chapman Pincher.  Moreover, on 16 July 1984 Mr.  Wright

had given a lengthy interview to Granada Television in its "World in

Action" programme about the work of the British Security Services.

The programme was shown again in December 1986.  Other books and

another television programme on the workings and secrets of these

Services were produced around the same time, but little Government

action was taken against these authors or the media.

        In September 1985 the Attorney General of England and Wales

(the Attorney General), on behalf of the UK Government, began

proceedings in the Equity Division of the Supreme Court of New South

Wales, Australia, to restrain publication of Mr.  Wright's memoirs and

of any information contained therein derived from his work for the

British Security Services.  The evidential basis for the claim by the

Attorney General was two affidavits sworn by Sir Robert Armstrong,

Secretary to the British Cabinet, on 9 and 27 September 1985.  On

17 September 1985 Mr.  Wright and his Australian publishers, Heinemann

Publishers Australia Pty Ltd. (Heinemann Australia), gave an

undertaking not to publish pending the hearing of the British

Government's claim for an injunction.  The British Government have

refused to indicate to Mr.  Wright and Heinemann Australia which parts

of the book (if any) they would wish to have "blue pencilled" as

containing information damaging to national security.

        On Sunday 22 June 1986 whilst the Australian proceedings were

still pending the Observer, and on Monday 23 June 1986 The Guardian,

published short articles on inside-pages, giving details of some of

the contents of Mr.  Wright's book.  These details included the

following allegations of improper, criminal and unconstitutional

conduct on the part of MI5 officers:

        (i)   MI5 "bugged" all diplomatic conferences at Lancaster

House in London throughout the 1950s and 1960s, as well as the

Zimbabwe Independence negotiations in 1979.

        (ii)  MI5 "bugged" diplomats from France, Germany, Greece and

Indonesia, as well as the hotel suite of Mr.  Kruschev during his visit

to Britain in the 1950s, and were guilty of routine burglary and

bugging (including the entering of Russian consulates abroad).

        (iii) MI5 plotted unsuccessfully to assassinate President

Nasser of Egypt at the time of Suez.

        (iv)  MI5 plotted against Mr.  Harold Wilson during his

premiership from 1974 to 1976.

        (v)   MI5 (contrary to its guidelines) diverted its resources

to investigate left-wing political groups in Britain.

        The Attorney General instituted proceedings for breach of

confidence in the Chancery Division of the High Court of Justice of

England and Wales against the Observer and The Guardian and on 27 June

1986 obtained ex parte interim injunctions to restrain further such

publication by either of those newspapers pending the trial of the

actions.  After an inter partes hearing, on 11 July 1986, Mr.  Justice

Millett (sitting in the Chancery Division of the High Court of

Justice) varied these injunctions restraining such publication.  The

evidential basis for the claim by the Attorney General was the two

affidavits sworn by Sir Robert Armstrong in the Australian

proceedings.

        The Observer and The Guardian appealed the Order of

Mr.  Justice Millett and, on 25 July 1986, the Court of Appeal

dismissed their appeal and upheld the injunctions, with minor

modifications.  Under the terms of the Orders The Guardian and the

Observer and their editors were restrained from:

        "1.     disclosing or publishing or causing or permitting to be

        disclosed or published to any person any information obtained by

        Peter Maurice Wright in his capacity as a member of the British

        Security Service and which they know, or have reasonable grounds

        to believe, to have come or been obtained, whether directly or

        indirectly, from the said Peter Maurice Wright;

        2.      attributing in any disclosure or publication made by

        them to any person any information concerning the British

        Security Service to the said Peter Maurice Wright whether by

        name or otherwise."

        The Orders contained the following provisos:

        "1.     this Order shall not prohibit direct quotation of

        attributions to Peter Maurice Wright already made by

        Mr.  Chapman Pincher in published works, or in a television

        programme or programmes broadcast by Granada Television;

        2.      no breach of this Order shall be constituted by the

        disclosure or publication of any material disclosed in open

        court in the Supreme Court of New South Wales unless prohibited

        by the Judge there sitting or which, after the trial there in

        action No. 4382 of 1985, is not prohibited from publication;

        3.      no breach of this Order shall be constituted by a

        fair and accurate report of proceedings in

        (A)     either House of Parliament in the United Kingdom

        whose publication is permitted by that House; or

        (B)     a court in the United Kingdom sitting in public."

        In the judgment of the Court of Appeal interim injunctions

restraining publication were granted because Mr.  Wright's book

contained secret information which, in the view of the Court, might

well cause damage to national security if disclosed.  The Appellate

Committee of the House of Lords granted leave to appeal on 6 November

1986.  A hearing was eventually scheduled for November 1987, but the

appeal was subsequently withdrawn in the light of the House of Lords

decision of 30 July 1987.

        The trial of the British Government's action in Australia took

place before Mr.  Justice Powell in the Equity Division of the New

South Wales Supreme Court in November and December 1986.  Judgment was

delivered on 13 March 1987.  Mr.  Justice Powell rejected the claim by

the Attorney General against both Mr.  Wright and Heinemann Australia.

Pending an appeal before the New South Wales Court of Appeal, Mr.

Wright and his publishers gave undertakings not to publish.  The

appeal was heard by the New South Wales Court of Appeal in the week

commencing Monday, 27 July 1987.  Judgment was reserved.

        On 27 April 1987, The Independent published a major summary of

certain of the allegations made in Mr.  Wright's book.  Later the same

day, The London Evening Standard and The London Daily News published

reports of what had appeared in The Independent.  The next day the

Attorney General applied for leave to move against the publishers and

editors of those three newspapers for contempt of court (hereafter

referred to as the Independent case).  Leave was granted on 29 April

1987.  In this application the Attorney General was acting

independently of the Government in his capacity as "the guardian of

the public interest in the due administration of justice" (judgment of

the Master of the Rolls in Attorney General v.  Newspaper Publishing

Plc and Others (1987) 3WLR 942 at p. 965H).  This is to be

distinguished from his capacity as Government representative in the

breach of confidence proceedings against the Observer and Guardian

newspapers.

        Similar reports appeared in Australian and American

newspapers: on 29 April 1987 in The Melbourne Age and Canberra Times,

and on 3 May 1987 in The Washington Post.

        Following these British newspaper publications The Guardian and

the Observer applied on 29 April 1987 to discharge the injunctions

against them on the ground that there had been a significant change in

circumstances since the injunctions had been granted against them in

1986.        The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to

hear those applications on 7 May 1987, but adjourned them pending the

determination of a preliminary issue of contempt law raised in the

Independent case.  He invited the Attorney General to pursue these

latter proceedings in the same court as the former proceedings, the

Chancery Division of the High Court.  This the Attorney General did on

11 May 1988.  On the same day, the Vice-Chancellor ordered the trial

of the preliminary issue whether a publication made in the knowledge

of an outstanding injunction against another party, and which, if made

by that other party would amount to a breach of that injunction,

constituted a criminal contempt of court for interfering with the

process of justice concerning that injunction.

        Viking Penguin Incorporated purchased from Heinemann Australia

the United States (USA) publication rights to the book and on

14 May 1987 Viking Penguin announced its intention of publishing

the book in the USA.

        On 2 June 1987, the Vice-Chancellor decided the preliminary

issue of law in the contempt proceedings.  He held that publication by

The Independent and the two London newspapers could not amount to

contempt of court because such publication was not a breach of the

express terms of the injunctions against The Guardian and the Observer

and to which injunctions the former had anyway not been a party.  The

Attorney General lodged an appeal against the Vice-Chancellor's

judgment.  On 15 June 1987 the Observer and The Guardian applied

to have the hearing of their discharge application restored.

Consideration of the discharge of the injunctions was, however,

further adjourned pending the outcome of the Attorney General's appeal

on the contempt issue in The Independent case, the hearing of which

began on 22 June 1987.

        The Sunday Times purchased the British newspaper serialisation

rights to the book from Heinemann Australia.  On 12 July 1987, The

Sunday Times published the first instalment of extracts from the book.

The newspaper explained that publication of the extracts was being

timed to coincide with publication of the book in the USA, which was

due to take place on 14 July 1987.  On 13 July 1987, the Attorney

General commenced proceedings against Times Newspapers Limited and Mr.

Andrew Neil for alleged contempt of court.  On 14 July 1987, Viking

Penguin published the book in the USA.  It was an immediate

bestseller, some 310,000 copies having been printed in the USA, with

its fifth print run, by the date of the application to the Commission.

A substantial number of copies were sold to British citizens visiting

the USA or who purchased the book by telephone or post from bookshops

in the USA.  The British Government took no legal steps to attempt to

restrain publication of the book in the USA or Canada, where it also

became a bestseller.  Immediately after publication of the book in the

USA, people began to bring copies of the book into the UK.  No steps

were taken by the Government to prevent such import.  It took the view

that it had the powers to ban import of the book but that any such ban

was likely to be ineffective.  Anyone in the UK could purchase a copy

of the book by credit card or cash from the USA by post or by

telephone.  The telephone number and address of American bookshops

willing to deliver the book to the UK was widely advertised in the UK.

        In the contempt proceedings in The Independent case the Court

of Appeal (Sir John Donaldson MR, Lloyd LJ and Balcombe LJ) announced

on 15 July 1987 (for reasons handed down on 17 July 1987) that it

would reverse the judgment of the Vice-Chancellor and decided

unanimously that such publication could, as a matter of law, amount to

a contempt of court.  In his judgment, Sir John Donaldson, Master of

the Rolls, stressed that confidentiality, not official secrecy, was

the central issue in the case.  He held, inter alia, that if a court

had prohibited publication of information pending trial which was said

to be confidential, but publication was nevertheless made, there was

no point in having a trial since the cloak of confidentiality could

never be restored.  The contempt issue in the present case involved an

interference with the due administration of justice.  The application

of the law of contempt is universal, the fact that it was to be

applied in novel circumstances, i.e. to newspapers not party to the

injunction against The Guardian and the Observer, was not a widening

of its application but a new example of its application.  Third parties

with a legitimate interest in the injunction could apply to the court

for its modification or apply for clarification if they had doubts

whether the action they contemplated was lawful.

        In his concurring judgment, Lloyd LJ held, inter alia, as

follows:

        "...  I would accept that not all acts which are calculated

        to interfere with the course of justice will necessarily

        ground a charge of contempt.  The act must be sufficiently

        serious and sufficiently closely connected with the

        particular proceedings.  But in the present case the conduct

        relied on by the Attorney General is not marginal.  It is

        not a mere prejudging of the issue to be decided in the

        particular proceeding.  It is not a mere usurpation of the

        court's function.  It is the destruction, in whole or in

        part, of the subject matter of the action itself.  The

        central issue in the Guardian action is whether The Guardian

        should be restrained from publishing confidential information

        attributable to Mr.  Wright.  Once the information  has

        been published by another newspaper, the confidentiality

        evaporates.  The point of the action is gone.  It is

        difficult to imagine a more obvious and more serious

        interference with the course of justice than to destroy

        the thing in dispute."

        Balcombe LJ agreed with his colleagues.  The Court of Appeal

refused leave to appeal to the House of Lords.  No petition for such

an appeal was lodged with the House of Lords itself and no application

was made to the High Court by The Independent, The London Evening

Standard or The London Daily News to modify the interim injunctions

against The Guardian and the Observer.

        The Sunday Times made it clear that unless restrained by law,

the second set of extracts from the book would be published on Sunday,

19 July 1987.  On 16 July, the Attorney General applied for an

injunction to restrain The Sunday Times from publishing further

extracts from the book.  The Attorney General brought his claim to

restrain what he said would be a contempt of court by reason of the

injunctions against The Guardian and the Observer and by reason of the

Court of Appeal's decision in The Independent case.

        The Vice-Chancellor granted a temporary injunction restraining

publication by The Sunday Times until Tuesday, 21 July 1987.  It was

agreed that on Monday, 20 July 1987 the Vice-Chancellor would consider

the claim of The Guardian and the Observer to have the injunctions

against them discharged and that The Sunday Times would (by reason of

being effectively bound by those injunctions because of the Court of

Appeal judgment in The Independent case) have a right to be heard in

support of those newspapers' claims to have the injunctions discharged.

He was also to hear the Attorney General's application for an

injunction against The Sunday Times.  It was agreed that if the

injunctions against The Guardian and the Observer were discharged, his

claim against The Sunday Times would also fail.

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

He gave judgment on 22 July as follows:

1.      If there had been a material change of circumstances since

July 1986, he had to consider whether it was now appropriate to grant

injunctions against The Guardian and the Observer.

2.      There had been "a most substantial change in circumstances".

He regarded as most significant the fact that the book had been

published in the USA and was available in and had reached the UK.

3.      The Vice-Chancellor was bound by the principles laid down by

the House of Lords in American Cyanamid Co v.  Ethicon Ltd <1975> AC

396 concerning the grant of interlocutory injunctions, namely, it is

not the court's function at this intermediary stage to determine

complex questions of law and fact which call for detailed argument and

mature consideration.  These matters are for the trial court to

decide.  However, if there is an arguable case that an injunction may

be granted at trial, and if neither side could be adequately

compensated in damages after trial, then whether an interlocutory

injunction should be granted depends on the balance of convenience.

4.      The Vice-Chancellor held that the Attorney General had an

arguable case under the law of confidence (albeit one that he strongly

doubted was correct), that he might obtain an injunction against the

newspapers at trial even though they were neither confidants nor

aiders and abettors of a confidant, and even though the information,

the publication of which the Attorney General wished to restrain, was

now known or available to the public as a result of publication in the

USA.

5.      He held that damages would be an inadequate remedy to

compensate the Attorney General if he failed to obtain an

interlocutory injunction but were successful at trial.  He also held

that damages would not be a sufficient remedy to compensate the

newspapers for restraints on publication were they to succeed at

trial.

6.      He then proceeded to consider the balance of convenience.  He

held that, weighing all the factors, it was inappropriate to continue

the injunctions.  This was because the information contained in the

book was no longer secret and the only public interest in restraining

publication - to deter other members of the Security Services from

seeking to publish their memoirs - was outweighed by the public

interest in freedom of expression and the freedom of the press in all

the circumstances of this case.  He commented as follows:

        "The truth of the matter is that in the contemporary

        world of electronics and jumbo jets news anywhere is

        news everywhere.  But whilst the news is international,

        the jurisdiction of this court is strictly territorial.

        Once the news is out by publication in the United States

        and the importation of the book into this country, the law

        could, I think, be justifiably accused of being an ass and

        brought into disrepute if it closed its eyes to that reality

        and sought by injunction to prevent the press or anyone else

        from repeating information which is now freely available to

        all".

        The Attorney General immediately appealed and pending that

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

against The Sunday Times, were continued in force.

        The Court of Appeal (Sir John Donaldson MR, Ralph Gibson LJ

and Russell LJ) heard argument on this matter on 23 and 24 July 1987.

In its judgment of 24 July 1987 the Court of Appeal decided as

follows:

1.      The Vice-Chancellor had erred in law in various respects.

2.      Therefore it was appropriate for the Court of Appeal to

exercise its own discretion.

3.      In the light of the American publication of the book, it was

inappropriate to continue the injunctions in their original form.

However, it was appropriate to vary the original injunctions to

restrain publication in the course of business of all or part of the

book or other statements by or attributed to Peter Wright on security

matters, but to permit a summary in general terms of his allegations.

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

Appellate Committee of the House of Lords.

        The Appellate Committee of the House of Lords (Lord Bridge,

Lord Brandon, Lord Templeman, Lord Ackner and Lord Oliver) heard

argument from 27 to 29 July 1987.  They gave judgment on Thursday,

30 July 1987.  They decided, by a majority of 3-2, to continue the

temporary injunctions granted by Mr.  Justice Millett and the Court of

Appeal in July 1986.  Lord Bridge (the immediate past Chairman of the

Security Commission, the Government body responsible for supervising

aspects of the work of the British Security Services) and Lord Oliver

dissented on the ground that no injunctions should lie against the

newspapers because the information was no longer secret.  However, the

majority of the Appellate Committee decided that the scope of the

injunctions granted in 1986 should be widened to restrict certain

reporting of what would take place in open court in the further

Australian proceedings, otherwise passages from the book read out in

the Australian courts might be reproduced in English newspapers, thus

circumventing the injunctions.  Its written reasons for the judgment

were given on 13 August 1987 (1987 1WLR 1248).

        Lord Brandon (with whose observations Lord Templeman agreed)

held, inter alia, as follows:

        (i)     it was of the utmost importance that the injunctions

        in issue were interlocutory injunctions, that is temporary

        injunctions having effect until the trial of the action only:

        continuation of the injunction until trial did not in any

        way prejudge the validity of the Attorney General's claim

        to final injunctions, its purpose being only to hold the

        ring until a just decision on the validity of that claim

        could be made;

        (ii)    before the publication of the book in America the

        Attorney General had a strong arguable case for obtaining

        at trial final injunctions in terms similar to those of

        the temporary injunctions: this was the view taken by

        Millett J. and the Court of Appeal and was not really open

        to challenge;

        (iii)   the key issue was whether the publication of the book

        in the USA had the effect that the Attorney General no longer

        had an arguable claim to permanent injunctions at trial:

        although the Attorney General's case for obtaining final

        injunctions at trial had been much weakened by the publication

        of the book, it remained nevertheless an arguable case;

        (iv)    in order to enable a court to carry out properly the

        exercise of weighing and balancing the public right to freedom

        of expression in the press and the public interest in the

        protection of the secrecy of the British Security Service,

        it was essential that it should have adduced before it the

        best possible evidence on the crucial questions which arose

        in the case in the form of oral evidence from witnesses

        subject to cross-examination: the only way in which it

        could thus justly be decided whether the Attorney General's

        case, being still arguable, should succeed or fail was by

        having the action tried;

        (v)     if the temporary injunction were discharged now, so

        that the newspapers were left free to disseminate generally

        the disclosures made in the book, there would be no point

        in the Attorney General proceeding to trial: his arguable

        case would have been completely destroyed by summary process

        at an interlocutory stage and without his ever having had

        the opportunity of having it fairly tried on appropriate

        evidence;

        (vi)    if, on the other hand, the temporary injunctions were

        continued until trial, the effect would be only to postpone

        and not to prevent the exercise by The Guardian and the

        Observer newspapers of the rights to publish: although the

        exercise of such rights would certainly have been delayed,

        it was a material factor that Mr.  Wright's disclosures

        related not to recent events but to events many years in

        the past; that being so, a further delay in the exercise of

        the newspapers' rights would in no way be equivalent to a

        complete denial of those which the Attorney General might have;

        (vii)   having regard to the matters in (v) and (vi) above,

        the discharge of the temporary injunctions was capable of

        causing much greater injustice to the Attorney General than

        the continuation of them until trial was capable of causing

        to the newspapers; in that situation it was clear that in the

        overall interests of justice continuation of the injunctions

        until trial was preferable to their discharge.

        Lord Ackner, the third majority member of the Appellate

Committee, held, inter alia, as follows:

        (i)     it was common ground and/or accepted by each member

        of the Appellate Committee

                (a)     that the Attorney General had an arguable

                case for a permanent injunction;

                (b)     that damages were a worthless remedy for the

                Crown and that, if the interlocutory injunctions were

                not continued, the Crown would immediately and

                irrevocably lose the prospect of obtaining a permanent

                injunction which it might obtain if a trial were to

                take place;

                (c)     that, by contrast to (b) above, the

                continuance of the interlocutory injunction was not,

                as the Vice-Chancellor had accepted, "a final locking

                out of the press": if successful in the action, the

                press would then be able to publish the material which

                had no present urgency in that the allegations made in

                the book were in a number of respects stale;

                (d)     that there was a real public interest

                concerned with the efficient functioning of the

                Security Service and that interest required protection;

        (ii)    it accordingly followed that it would be a denial of

        justice to refuse to allow the injunctions to be continued

        until the action was heard: to refuse to continue the

        interlocutory injunctions would bring about the very result

        that the Vice-Chancellor had said should be avoided, namely

        the "sweeping aside" of the public interest factor without

        any trial; the Attorney General would thus have been

        prematurely and permanently denied any protection from the

        courts.

        Although arriving at a contrary conclusion on the facts of the

case, the minority of the Appellate Committee (Lord Bridge and Lord

Oliver) did not differ substantially from the above approach of the

majority as to the proper test to be applied in determining whether to

continue or discharge the interlocutory injunctions.  In particular,

Lord Oliver made clear, inter alia:

        (i)     that he entertained no doubt whatsoever that the

        interlocutory injunctions granted by Millett J. and confirmed

        by the Court of Appeal in July 1986 were, in the circumstances

        which existed at that time, entirely correct;

        (ii)    that if, notwithstanding the publication of the book,

        an arguable case was made out for the grant of a permanent

        injunction at trial, the question would become one of balance

        of convenience.

        The principal respect in which Lord Oliver differed from the

majority of the Appellate Committee was as to the question whether,

following the publication of the book in the USA, there remained an

arguable case for the grant of a permanent injunction at trial.  While

noting that the newspapers had presented their arguments on the

footing that there remained an arguable case, and while accepting that

the point of law involved was a difficult and novel one, Lord Oliver

took the view that the Appellate Committee had before it all the

material on which to determine the point.  Although he stated that he

fully appreciated the point forcefully made in the speeches of the

majority that the question should not now be determined without full

argument at trial, Lord Oliver stated that, in the light of the degree

of public availability of the information in "Spycatcher", he could

not see how it could be successfully argued at trial that the

appellants should be permanently enjoined from publishing such

information.  Lord Oliver thus concluded that there no longer existed

any arguable case for a permanent injunction at the trial and that

accordingly the interlocutory injunctions should be discharged.

        This judgment of the House of Lords terminated the

interlocutory proceedings in the UK.

        Throughout the interlocutory proceedings in this case it

appears that the applicants have made submissions to the domestic

courts under Article 10 of the Convention.  Account was taken of these

submissions as was demonstrated in the judgment of the House of Lords:

        Lord Brandon commented that "the public right to freedom of

expression cannot, even in a democratic country such as the United

Kingdom, be absolute.  It is necessarily subject to certain

exceptions, of which the protection of national security is one.  This

is expressly recognised in Article 10 para. 2 of the Convention for

the Protection of Human Rights and Fundamental Freedoms, to which the

United Kingdom has adhered although its provisions have not been

incorporated into our domestic law".

        Lord Templeman (with whom Lord Ackner agreed) recognised that

the "conflict between the right of the public to be protected by the

Security Service and the right of the public to be supplied with full

information by the press" involved considerations under Article 10 of

the Convention.  He reviewed the Convention case-law on freedom of

expression, in particular, The Sunday Times case (Eur.  Court H.R.

judgment of 26 April 1979, Series A No. 30).  In terms of the

Convention he found several reasons necessitating the imposition of

injunctions:  to prevent damage to national security, i.e. the

Security Service, to deter or prevent any recurrence of publication by

disgruntled public servants of damaging truths and falsehoods abroad,

to protect the reputation or rights of others, to prevent disclosure

of information obtained by a member of the Secret Service in

confidence and to maintain the authority of the judiciary.

        However, Lord Harwich considered that the imposition of

injunctions would create an "unnecessary fetter on freedom of speech"

and doubted the ability of the English "common law to safeguard the

fundamental freedoms essential to a free society including the right

to freedom of speech which is specifically safeguarded by Article 10

of the Convention".

        On 24 September 1987 the New South Wales Court of Appeal

delivered its reserved judgment dismissing the Attorney General's

appeal.  The Attorney General applied for leave to appeal to the High

Court of Australia against the Court of Appeal's decision.  Pending

the hearing the High Court declined to grant temporary injunctions

against publication of the book.  Proceedings against newspapers for

injunctions have been brought by the Attorney General also in Hong

Kong and New Zealand.  In Hong Kong temporary injunctions were

granted, but in New Zealand it was reported in The Independent on

16 December 1987 that the Chief Justice had given judgment against the

Attorney General and permanent injunctions had been refused.

        In the meantime publication and dissemination of "Spycatcher"

and its contents continued worldwide, not only in the USA (around

715,000 copies were printed and nearly all were sold by October 1987)

and Canada (around 100,000 copies printed), but also in Australia

(145,000 copies printed, half of which were sold within a month of

publication), Ireland (30,000 copies printed and distributed) and

several thousand copies were sent to various European countries from

the USA (80,000 copies to Holland, 10,000 to Germany, 500 to Norway,

2,000 to Malta and 1,000 to Cyprus).  From Australia copies were

distributed in Asian countries.  Radio broadcasts in English about the

book were made in Denmark and Sweden, and translations of the book

were made in 12 other languages, including Spanish, Catalan, French,

German, Swedish, Italian, Danish, Icelandic, Dutch and Portuguese.

        Against the background of this wide dissemination of the book,

the substantive trial of the Attorney General's actions against the

Observer and The Guardian took place before Scott J. during the latter

part of November and early December 1987.  The Sunday Times was also

party to these proceedings, in respect of a determination of the

Attorney General's claim against the applicants for an alleged breach

of confidence, which claim had been lodged in November 1987.  On

21 December 1987 Scott J. delivered judgment dismissing the actions

and discharging the injunctions against the first two newspapers

((1988) 2WLR 805).

        Scott J. held that Mr.  Wright owed a duty to the Crown not to

disclose any information obtained by him in the course of his

employment in MI5, that he broke that duty by writing 'Spycatcher' and

submitting it for publication, and that the subsequent publication of

the book in July 1987 and its subsequent dissemination amounted to a

further breach, so that the Attorney General would be entitled to an

injunction against Mr.  Wright or any agent of his restraining

publication of the book in the UK.  He found that the Observer and The

Guardian were not in breach of their duty of confidentiality, created

by being recipients of Mr.  Wright's unauthorised disclosures, when

they fairly reported in general terms the litigation in Australia and

the allegations in the book in their respective articles of 22 and 23

June 1986.  The Sunday Times on the other hand had published extracts

from the book containing certain material which did not raise

questions of public interest outweighing those of national security.

Accordingly it had been in breach of duty in publishing the first

instalment of extracts from the book on 12 July 1987.  However, the

Attorney General was not entitled to an injunction to restrain further

serialisation by The Sunday Times or any other newspaper since the

wide publication of the book abroad had destroyed any secrecy as to

the contents.  Nevertheless the judge held that The Sunday Times was

liable to account for the profits accruing to it as a result of the

publication of the first extract.  In his judgment he took account,

inter alia, of the defendants' pleadings under Article 10 of the

Convention, the Government's ensuing treaty obligations and the

case-law of the Convention organs, which establishes that the

limitation of free expression in the interests of national security

should not be regarded as necessary unless there is a pressing social

need for the limitation and unless the limitation is proportionate to

the legitimate aims pursued.  He found the arguments for press freedom

overwhelming and the Government's desire for absolute protection of

the Secret Services draconian and impracticable once information is

released and easily available abroad.  He therefore dismissed the

Attorney General's claim for a permanent injunction to restrain

publication of material from the book, but imposed further temporary

injunctions pending an appeal to the Court of Appeal.

        On appeal by the Attorney General and a cross-appeal by The

Sunday Times, the Court of Appeal (Sir John Donaldson M.R., Dillon and

Bingham L.J.J.) on 10 February 1988 (the hearings having been held

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

((1988)2WLR 805).  However, again the temporary injunctions were

continued pending appeal to the House of Lords.  The House of Lords

(Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of

Chieveley and Lord Jauncey of Tullichettle) also affirmed the

decision of Scott J. in a judgment dated 13 October 1988.  Dismissing

the appeal by the Attorney General and the cross-appeal by The Sunday

Times, it held as follows:

        "1.  That a duty of confidence could arise in contract

        or in equity and a confidant who acquired information in

        circumstances importing such a duty should be precluded

        from disclosing it to others; that a third party in

        possession of information known to be confidential was

        bound by a duty of confidence unless the duty was

        extinguished by the information becoming available

        to the general public or the duty was outweighed by a

        countervailing public interest requiring disclosure of

        the information; that in seeking to restrain the disclosure

        of government secrets the Crown must demonstrate that

        disclosure was likely to damage or had damaged the public

        interest before relief could be granted; that since the

        world-wide publication of 'Spycatcher' had destroyed any

        secrecy as to its contents, and copies of it were readily

        available to any individual who wished to obtain them,

        continuation of the injunctions was not necessary; and

        that, accordingly, the injunctions should be discharged.

        2.  (Lord Griffiths dissenting) that the articles of 22

        and 23 June had not contained information damaging to

        the public interest; that the Observer and The Guardian

        were not in breach of their duty of confidentiality when

        they published the articles of 22 and 23 June 1986; and

        that, accordingly, the Crown would not have been entitled

        to a permanent injunction against both newspapers.

        3.  That The Sunday Times was in breach of its duty of

        confidence in publishing its first serialised extract

        from 'Spycatcher' on 12 July 1987; that it was not

        protected by either the defence of prior publication or

        disclosure of iniquity; that imminent publication of the

        book in the USA did not amount to a justification; and

        that, accordingly, The Sunday Times was liable to account

        for the profits resulting from that breach.

        4.  That since the information in 'Spycatcher' was now in

        the public domain and no longer confidential no further

        damage could be done to the public interest that had not

        already been done; that no injunction should be granted

        against the Observer and The Guardian restraining them

        from reporting on the contents of the book; and that

        (Lord Griffiths dissenting) no injunction should be

        granted against The Sunday Times to restrain serialising

        of further extracts from the book.

        5.  That members and former members of the Security Service

        owed a lifelong duty of confidence to the Crown, and that

        since the vast majority of them would not disclose

        confidential information to the newspapers it would not be

        appropriate to grant a general injunction to restrain the

        newspapers from future publication of any information on

        the allegations in 'Spycatcher' derived from any member or

        former member of the Security Service."

COMPLAINTS

        The applicants complain of violations of Article 10 read alone

and together with Articles 13 and 14.

        The applicants submit that they are victims of an unjustified

interference with their freedom of expression, ensured by Article 10

of the Convention.  They contend that it is incumbent on them, as

journalists and newspaper publishers, to impart information and ideas

concerning matters of public interest, the public, particularly their

readers, having a corresponding right to receive them.  The applicants

also claim to have had no effective remedy, satisfying Article 13 of

the Convention, for their Article 10 grievance, and to have suffered

discrimination, contrary to Article 14 of the Convention, on the basis

of national or social origin and on the basis of property, wealth and

the acquisition of privileged knowledge.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 27 January 1988 and

registered on 3 February 1988.  After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application.  It decided on 7 October 1988 to give notice of the

application to the respondent Government, pursuant to Rule 42 para. 2

(b) of the Rules of Procedure, and to invite the parties to submit

their written observations on the admissibility and merits of the

application.  On 27 January 1989 the Government submitted their

observations on admissibility and merits, to which the applicants

replied on 25 April 1989.

        On 9 May 1989 the Commission decided to hold a hearing on the

admissibility and merits of the application, to be joined with that of

Times Newspapers Ltd and Neil v.  UK, application No. 13166/87.  The

hearing was held on 5 October 1989.  The Government were represented

by Mr.  M. Wood, Agent, Foreign and Commonwealth Office, Sir Patrick

Mayhew, QC, MP, Attorney General, Counsel, Mr.  N. Bratza, QC, Counsel,

Mr.  P. Havers, Counsel, Mrs.  S. Evans, Home Office, and Mrs.  S. Marsh,

Legal Secretariat to the Law Officers.  The applicants, the Observer,

Guardian and Others, were represented by Mr.  D. Browne, Counsel, Miss

J. Braybrook, Solicitor, and Mrs.  J. McDermott, Solicitor.  The

applicants, Times Newspapers Ltd and Mr.  Neil, were represented by Mr.

A. Lester, QC, Counsel, Mr.  D. Pannick, Counsel, and Mr.  A. Whitaker,

Legal Manager of Times Newspapers Ltd.

THE LAW

        The applicants have complained that temporary injunctions,

first imposed by Mr. Justice Millett on 11 July 1986 and confirmed and

widened by the House of Lords on 30 July 1987, were in breach of their

freedom of expression ensured by Article 10 (Art. 10) of the

Convention. These injunctions prevented the entire British press (by

virtue of the contempt laws) from giving their readers further details

of the contents of the book "Spycatcher".  The applicants contended,

inter alia, that the injunctions were not prescribed by law, for the

domestic law concerning breach of confidence was insufficiently

foreseeable (cf. Eur. Court H.R., Sunday Times judgment of 26 April

1979, Series A no. 30, p. 31 para. 49).  Furthermore, after the

widespread publication of "Spycatcher" in the world, particularly

since its publication in the USA on 14 July 1987 and its uncontrolled

importation into the UK by private individuals, further prior

restraint on publication in newspapers was no longer based on any

pressing social need, measure of proportionality, or relevant or

sufficient reasons.  Consequently, the injunctions were not necessary

in a democratic society for any of the purposes recognised in the

second paragraph of Article 10 (Art. 10) of the Convention.  Insofar

as this complaint encompasses the first year of the injunctions, 11

July 1986 to 30 July 1987, the applicants contended that they had

complied with the requirements of Article 26 (Art. 26) of the

Convention, as they were absolved from pursuing their appeal against

Mr. Justice Millett's injunctions up to the House of Lords because

events (The Independent's report of 27 April 1987 and the book's

publication in the USA on 14 July 1987) overtook matters, rendering

any further appeal on that point ineffective.  Moreover, the

injunctions imposed continuous restraints on reporting from the

outset.

        The applicants also complained that they had no effective

domestic remedy satisfying Article 13 (Art. 13) of the Convention to

test their Article 10 (Art. 10) claim.  Finally the applicants

complained of arbitrary discrimination, in breach of Article 14

(Art. 14) of the Convention, insofar as they and their readers, by

virtue of the House of Lords' injunctions, were unable to receive and

impart information widely available abroad, given that Article 10

para. 1 (Art. 10-1) of the Convention guarantees freedom of expression

"regardless of frontiers".

        The Government contended, first, insofar as the applicants

were complaining of the period 11 July 1986 to 30 July 1987, that this

aspect of the case was inadmissible for failure to exhaust domestic

remedies, because no appeal was pursued before the House of Lords

against the original injunctions imposed by Mr. Justice Millett.

Otherwise this aspect of the case was inadmissible for non-observance

of the six months' rule, because the final effective decision on that

point was that of the Court of Appeal on 25 July 1986, whereas the

application was not lodged with the Commission until 27 January 1988.

Furthermore, this aspect was not raised in the originating application

to the Commission.

        As to the remainder of the application concerning the House of

Lords' decision of 30 July 1987 onwards, the Government submitted,

inter alia, that any interference with the applicants' freedom of

expression was prescribed by law and necessary and proportionate in a

democratic society for maintaining the authority of the judiciary,

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

interpreted by the European Court of Human Rights in its Sunday Times

judgment (ibid p. 34 para. 56).  Encompassed in this notion is the

protection of the rights of litigants, in this instance the right of

the Attorney General to have his confidentiality claims against The

Guardian, the Observer and, subsequently, The Sunday Times, preserved

until mature consideration of them, and the newspapers' defences,

could be given by the trial court.  The Government stressed the

temporary and finite nature of the injunctions which continued only

until trial.  As regards the applicants' claim under Article 13

(Art. 13) of the Convention.  Moreover Article 13 (Art. 13) of the

Convention does not give a right to a constitutional remedy permitting

the challenge of a law or its application (cf. No. 8603/79, Crociani

v. Italy, Dec. 18.12.80, D.R. 22 p. 147).  Finally, the Government

submitted that the applicants' Article 14 (Art. 14) claim was

unsubstantiated.

        Article 10 (Art. 10) of the Convention guarantees freedom of

expression, including the right to receive and impart information and

ideas regardless of frontiers.  This freedom is subject to limitations

which are prescribed by law and necessary in a democratic society in

the interests of, inter alia, national security, the protection of the

rights of others, the prevention of disclosure of confidential

information and the maintenance of the authority of the judiciary.

Article 13 (Art. 13) of the Convention guarantees an effective remedy

before a national authority for any breach of the Convention and

Article 14 (Art. 14) of the Convention secures the enjoyment of these

rights without discrimination on any ground, such as national or

social origin, property or other status.

        As regards the Government's preliminary objection concerning

the applicants' compliance with Article 26 (Art. 26) of the Convention

in relation to the original injunctions imposed by Mr. Justice

Millett on 11 July 1986, the Commission finds that the claim is of a

continuous nature and that the applicants have complied with Article

26 (Art. 26) of the Convention.  The Commission notes that the

question of the original injunctions was raised in the applicants'

originating application to it, even if emphasis was mostly placed on

the House of Lords' decision of 30 July 1987.  This latter decision

continued, and slightly broadened, the restrictions which had been

imposed a year before.  However, the applicants could  not reasonably

have been expected to pursue their appeal before the House of Lords

concerning Mr. Justice Millett's order of 11 July 1986 when events in

April and July 1987 had substantially changed the basis of the

applicants' defence to the Attorney General's claims.  This left an

application for the discharge of the injunctions as the only

reasonable course of action open to them.

        As regards the substance of the application, the Commission

considers, in the light of the parties' submissions, that the case

raises complex issues of law and fact under the Convention, the

determination of which should depend on an examination of the merits

of the application as a whole.  The Commission concludes, therefore,

that the application is not manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds for

declaring it inadmissible have been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE.

  Secretary to the Commission         President of the Commission

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