House of Lords
|Session 2001- 02
Publications on the Internet|
Her Majesty's Attorney General (Appellant) v. Punch Limited and another (Respondents)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Her Majesty's Attorney General (Appellant) v.
Punch Limited and another (Respondents)
 UKHL 50
LORD NICHOLLS OF BIRKENHEAD
1. This appeal concerns the interaction of two principles of fundamental importance in this country: freedom of expression, and the rule of law. On 26 July 2000 the magazine 'Punch' published an article written by Mr David Shayler, a former member of the Security Service, under the heading 'MI5 could have stopped the bomb going off'. The Attorney General brought contempt of court proceedings against the magazine's publisher, Punch Ltd, and its editor, Mr James Steen. Silber J held that publication of this article was a contempt of court. He fined the company £20,000 and Mr Steen £5,000. The company did not appeal, but Mr Steen did. The majority of the Court of Appeal, Lord Phillips of Worth Matravers MR and Longmore LJ, considered there had been no contempt. In the minority, Simon Brown LJ, would have upheld the judgment of Silber J. So, by a majority of two to one, the decision of Silber J was set aside. The Attorney General has now appealed to your Lordships' House.
2. Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him. That is not the form of contempt in question in this case. In 1997 the court made an order against Mr Shayler, restraining him from disclosing information about the Security Service. But neither Punch Ltd nor Mr Steen was a party to those proceedings. No order was made against either of them.
3. The form of contempt asserted by the Attorney General in the present case is different, although closely related. Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order. That also is not the case presented by the Attorney General against Mr Steen, although the case could have been framed in this way. Punch Ltd and Mr Steen furthered Mr Shayler's breaches of the order made against him by publishing an article he wrote specially for them. However, the Attorney General has not advanced a case against Mr Steen or the company on this footing.
4. Aiding and abetting a breach of the order by the person specifically restrained by the order is not always an essential ingredient of 'third party' contempt. The purpose of a court in making an order may be deliberately frustrated by a third party even though he is acting independently of the party against whom the order was made. An interlocutory order for the non-disclosure of information is the paradigm example of the type of order where this principle is in point. The Spycatcher litigation is the best known recent instance of this. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse affect on the administration of justice in that action: see Lord Brandon of Oakbrook in Attorney General v Times Newspapers Ltd  1 AC 191, 203D, 206G-H, and, for the latter part, Lord Bingham of Cornhill CJ in Attorney General v Newspaper Publishing plc  1 WLR 927, 936. Lord Phillips MR neatly identified the rationale of this form of contempt, at  QB 1028, 1055, paragraph 87:
5. I shall have to consider later what is meant by 'the purpose of the judge in making the order' and like expressions. In the Court of Appeal Lord Phillips MR's approach on this point resulted in his giving contempt of court in this context a narrower scope than Lord Brandon.
6. The Attorney General's claim in the present case is of this character. The Attorney General's case against Punch Ltd and Mr Steen is presented solely on the basis that they deliberately impeded or prejudiced the purpose the court sought to achieve in making its non-disclosure order against Mr Shayler.
7. I must first summarise the events leading up to these contempt proceedings. A fuller narrative can be found in the judgment of Lord Phillips MR, at  EWCA Civ 403,  QB 1028, 1033-1036, paragraphs 2-19. David Shayler served as an officer with the Security Service, colloquially known as MI5, from November 1991 until he resigned in October 1996. His terms of service included extensive prohibitions on publishing information about the Security Service. When Mr Shayler left he took with him copies of many confidential documents containing sensitive information relating to intelligence activities of MI5. According to the Attorney General, Mr Shayler then disclosed some of this material to a newspaper publisher, Associated Newspapers Ltd. Articles written by Mr Shayler, or based on information provided by him, were published in the 'Mail on Sunday' and the 'Evening Standard' in August 1997.
8. In expectation of publication of a further article the Attorney General intervened and brought civil proceedings against Mr Shayler and Associated Newspapers. On 4 September 1997 Hooper J granted an interlocutory injunction against Mr Shayler. By this order, expressed to continue until the trial of the action or further order meanwhile, Mr Shayler was restrained from disclosing to any newspaper or anyone else:
9. Two provisos were attached to the order. First, the order did not apply to any information in respect of which the Attorney General stated in writing that the information is not information whose publication the Crown seeks to restrain. Second, the order did not preclude repetition of information disclosed in the 'Mail on Sunday' on 24 August 1997.
10. A similar order, although not in precisely identical terms, was made against Associated Newspapers. Neither Mr Shayler nor Associated Newspapers objected to the making of these orders.
Mr Shayler and Punch
11. Mr Shayler first wrote for 'Punch' in February 1999. Mr Steen was aware of the terms of the interlocutory non-disclosure orders made against Mr Shayler. Indeed, he had obtained copies of the injunctions from the Treasury Solicitor. This did not deter him. He still wished to employ Mr Shayler to write about the Security Service. He considered Mr Shayler would be capable of writing an interesting column in a journalistic style. Mr Steen intended that the column would criticise the performance of the security services, expose their alleged errors and inefficiencies, and show that their alleged incompetence has led to serious and sometimes tragic results. Mr Steen considered that Mr Shayler's standing, in the eyes of readers, was that he had been 'on the inside', that he knew what he was talking about, and that he was able to comment on security and related matters.
12. Mr Shayler started writing a regular fortnightly column in September 1999. Following his eighth piece in the magazine, the Treasury Solicitor, acting on behalf of the Attorney General, wrote to Mr Steen in December 1999. He reminded Mr Steen of the existence of the orders. He said he had been instructed that some of the material in the articles was damaging to national security.
13. A lively correspondence ensued. The Treasury Solicitor urged Mr Steen 'to take advantage of the proviso to the injunction allowing for the Crown to confirm that it does not object to publication of certain material'. Mr Steen responded that editorial steps were taken to ensure the injunctions were not breached. No material published could remotely be considered to threaten national security. He accused the Treasury Solicitor of attempting to force 'Punch' to submit to government censorship. The correspondence ended in January 2000 with a letter from the Treasury Solicitor stating that the purpose of the injunctions was not to prevent criticism of the Security Service but to prevent damage to national security.
The offending magazine article
14. On Friday 21 July 2000 Mr Steen received from Mr Shayler a draft article, with a view to publication on Wednesday of the following week. The draft dealt with the Bishopsgate bomb in 1993 and the death of WPC Yvonne Fletcher outside the Libyan Embassy in 1984. It was the published version of this article which led to these contempt proceedings.
15. The draft article identified the sources of two pieces of intelligence. This was a matter of concern to Mr Steen. So he got in touch with the Treasury Solicitor. At about 1 pm on Friday 21 July he faxed a copy of the article to the Treasury Solicitor, for consideration by the Attorney General. Mr Steen was anxious to obtain a speedy response. Following some telephone conversations the Treasury Solicitor faxed a letter to Mr Steen at midday on Monday 24 July. The Treasury Solicitor stated that his clients were satisfied that publication of the article in its existing form would damage national security. The text had been scrutinised over the weekend, and scrutiny was continuing. This involved consultation with other government departments. Comments on the text would be unlikely before close of business on that day. Mr Steen was asked to take no further steps meanwhile towards publication of the article.
16. Mr Steen did not respond to this faxed letter. However, having considered the matter with Mr Shayler, Mr Steen made some amendments to the draft article by deleting certain passages.
17. Shortly after 1 pm on the following day, Tuesday 25 July, the Treasury Solicitor faxed the amendments his clients wished to see made. If these amendments were made the Attorney General would agree to the publication of the article. He would consider any amended version Mr Steen might wish to put forward.
18. Mr Steen did not answer this fax. By now the article had been finalised and sent to the printers.
19. On the following day, Wednesday 26 July, the next issue of 'Punch' was published. The cover consisted of a slightly amended copy of the Treasury Solicitor's letter of 24 July, with the heading 'Inside whistleblower David Shayler tells the story MI5 doesn't want you to read'. Inside was Mr Shayler's article. The article was a little different from the draft version sent to the Treasury Solicitor, but it did not reflect the amendments sought by the Treasury Solicitor on 25 July. The article contained information whose publication had been prohibited by the non-disclosure orders. It contained three pieces of information not previously published. The first two concerned the two suspects connected with the Bishopsgate bombing. The third related to the way the Security Service surveillance operated.
The contempt proceedings: the judge's decision
20. For the defendant company or Mr Steen to be guilty of contempt of court, the Attorney General must prove that they did the relevant act (actus reus) with the necessary intent (mens rea). In a careful and thorough judgment Silber J concluded, in paragraph 62, that the actus reus had been proved: the defendants published the article which was in breach of the terms of the injunctions, with the result that the purpose of the court in making those injunctions was subverted and, in consequence, there has been some significant and adverse effect on the administration of justice. The judge held that the purpose of the court in granting the injunctions was not to protect national security but to ensure that until trial there should be no disclosure of information obtained by Mr Shayler in his employment: see paragraph 52.
21. The judge held that the Attorney General also succeeded in proving the necessary mens rea. Mr Steen is an intelligent and articulate journalist. He knew of the terms of the injunctions. He knew also that publication of the article was a breach of the injunctions, and he intended to act in breach of them: paragraph 75. He intended by publication to impede or prejudice the administration of justice by thwarting or undermining the intended effect of the injunctions: paragraph 78.
The Court of Appeal
22. In reaching the contrary overall conclusion Lord Phillips MR characterised the court's purpose in granting the injunctions differently from the judge. Lord Phillips said that the correct approach was to proceed on the basis that Hooper J's purpose in granting the injunctions was 'to prevent the disclosure of any matter that arguably risked harming the national interest': paragraph 100. He held that republication of material already in the public domain did not constitute the actus reus of contempt but that publication of the three items of previously unpublished material did. Publication of this material defeated the purpose of the injunction: paragraph 114.
23. As to mens rea, Lord Phillips held that in order to establish contempt the Attorney General needed to demonstrate that Mr Steen knew publication would interfere with the course of justice by defeating the purpose underlying the injunctions. That the Attorney General had failed to do. The evidence did not lay the ground for a finding that Mr Steen must have appreciated that the three items of previously unpublished information had not been published before and that publication of them might arguably be a threat to national security: see paragraphs 115-118.
24. Longmore LJ, at paragraphs 137-138, expressed the purpose of the injunctions in wider terms than Lord Phillips. He concluded that the purpose was to prevent publication before trial of any information derived from Mr Shayler not already in the public domain. So the actus reus of contempt was committed. But the necessary mens rea was not established. Mr Steen might have thought that the purpose of the order was to restrain only the publication of material dangerous to national security. Mr Steen contended that he had no intention to publish any such information, and the contrary was not established.
25. Simon Brown LJ, dissenting, agreed with Lord Phillips' conclusion about the purpose of the injunctions: paragraph 129. But, even so, the necessary mens rea was established. It might well be that Mr Steen had no intention of endangering national security and that he did not think he was doing so. But he knew he was not qualified to make that kind of judgment. He cannot have failed to appreciate that it was for this very reason there was a bar on publication pending trial by a judge. He intended to take upon himself the responsibility for determining whether national security was risked, and thereby he thwarted the court's intention: paragraph 131.
26. On this appeal Mr Steen accepts that in publishing the offending article he committed the actus reus of contempt. The sole issue on this appeal is whether his intention in acting as he did constituted the intention requisite for contempt of court in this case.
Freedom of expression, national security and the rule of law
27. This appeal concerns a restraint on the freedom of expression. Freedom of expression includes, importantly, the right to impart information without interference by public authority, to use the language of article 10(1) of the European Convention on Human Rights. Restraints on the freedom of expression are acceptable only to the extent they are necessary and justified by compelling reasons. The need for the restraint must be convincingly established. Restraints on the freedom of the press call for particularly rigorous scrutiny.
28. This appeal also concerns protection of national security. National security is one of the reasons, set out in the familiar list in article 10(2) of the Convention, which may justify a restraint on freedom of expression. The interests of national security may furnish a compelling reason for preventing disclosure of information about the work of the Security Service.
29. But, let it also be said at once, the Security Service is not entitled to immunity from criticism. In principle the public has a right to know of incompetence in the Security Service as in any other government department. Here, as elsewhere where questions arise about the freedom of expression, the law has to strike a balance. On the one hand, there is the need to protect the nation's security. On the other hand, there is a need to ensure that the activities of the Security Service are not screened unnecessarily from the healthy light of publicity. In striking this balance the seriousness of the risk to national security and the foreseeable gravity of the consequences if disclosure occurs, and the seriousness of the alleged incompetence and errors sought to be disclosed, are among the matters to be taken into account.
30. The rule of law requires that the decision on where this balance lies in any case should be made by the court as an independent and impartial tribunal established by law. Clearly, if a decision on where the balance lies is to be effective, the court must be able to prevent the information being disclosed in the period which will necessarily elapse before the court is in a position to reach an informed decision after giving a fair hearing to both parties to the dispute. Once public disclosure occurs confidentiality is lost for ever. If disclosure were permitted to occur in advance of the trial serious and irreparable damage could be done to national security.
31. Thus, depending on all the circumstances of the case, a temporary injunction for a reasonable period pending the trial may be necessary for the protection of national security. Even a temporary restriction on the exercise of freedom of expression is not to be imposed lightly. News is a perishable commodity. Public and media interest in topical issues fades. But, when granted, such an injunction becomes an integral feature of the due administration of justice in the proceedings in which it was made.
32. Equally clearly, if a temporary injunction is to be effective the law must be able to prescribe appropriate penalties where a person deliberately sets the injunction at nought. Without sanctions an injunction would be a paper tiger. Sanctions are necessary to maintain the rule of law; in the language of the Convention, to maintain the authority of the judiciary. If the rule of law is to be meaningful, the decision of the court on how, and to what extent, the status quo should be maintained pending the trial must be respected. It must be respected by third parties as well as the parties to the proceedings.
The terms of Hooper J's order
33. I come now to one of the difficulties in the present case. The Attorney General has stated that his purpose in seeking an interlocutory injunction against Mr Shayler was not to stifle criticism of the security service. His purpose was to protect national security. But whether disclosure of any particular information would pose a risk of damaging national security is a matter of dispute between the Attorney General and Mr Shayler, a dispute which can only be resolved at the trial of the action.
34. This situation gives rise to a practical difficulty in the formulation of an interlocutory injunction. It is a difficulty of a type familiar enough in the drafting of many forms of interlocutory injunctions. What is needed, so far as this can be achieved, is a form of words which is apt to keep confidential until the trial information whose disclosure arguably poses a risk of damaging national security but which is not wider in its scope. In principle, an order having a wider scope is not sustainable as a necessary restriction. A restraint on the publication of manifestly innocuous material is, in principle, excessive. The order of Hooper J, for instance, is capable of catching information which is plainly not confidential. In the course of oral argument my noble and learned friend Lord Steyn instanced information about the quality of food served in the staff cafeteria of the Security Service.
35. Here arises the practical difficulty of devising a suitable form of words. An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. An order expressed to restrain publication of 'confidential information' or 'information whose disclosure risks damaging national security' would be undesirable for this reason.
36. For the same reason an order restraining publication of material whose disclosure 'arguably risks damaging national security', or words to the like effect, would not be satisfactory. Its ambit would not be sufficiently certain. An injunction against Mr Shayler drawn in such terms would clearly exclude from its scope some information whose disclosure would be harmless. But such a formula would still not produce a clear boundary line. Including the word 'arguably' in the injunction would not render clear a boundary which otherwise would lack certainty in its application. There may well be matters where it would not be readily obvious whether disclosure would or would not 'arguably' risk damaging national security. There may well be matters whose disclosure would attract diametrically opposite views, the Attorney General contending that disclosure would risk damaging national security and Mr Shayler contending that disclosure would not even arguably pose such a risk. An interlocutory order ought not to be drawn in terms where it is apparent that such a dispute may arise over its scope.
37. I shall return to this question, and its practical implications, at a later stage. For the moment it is sufficient to note that Hooper J's order, set out above, avoided this difficulty by being expressed in clear, if wide, terms. The scope of the order was clear.
The purpose of Hooper J's order
38. Before considering what was the 'purpose' of Hooper J's order it is necessary to be clear on what this expression, and cognate expressions, mean in this context.
39. On this two points seem to me clear. Fundamental to the concept of contempt in this context is the intentional impedance or prejudice of the purpose of the court. The underlying purpose of the Attorney General, as the plaintiff in the proceedings against Mr Shayler, in seeking the order against Mr Shayler is nothing to the point. Lord Oliver of Aylmerton adverted to this distinction in Attorney General v Times Newspapers Ltd  1 AC 191, 223:
40. The second point is that the purpose of the court in making an interlocutory order means no more than the effect its terms show it was intended to have between the parties to the action in which it was made. Normally there will be no difficulty in gleaning this purpose from a reading of the order. The purpose of the order and its terms are co-extensive. It is right this should be so. If third parties are bound to respect the purpose of an order made in an action between other persons, it is essential they should be able to perceive this purpose readily from reading the order.
41. In the Court of Appeal Lord Phillips MR expressed a different view. He said that the effect and primary purpose of the third party contempt jurisdiction are to render it a criminal offence for any third party who is aware of the injunction to commit 'the potential wrong which the injunction is designed to prevent'. That, he said, is surely the most serious aspect of the contempt, and the fact that it will at the same time render the litigation pointless is a subsidiary consideration. He rejected the principle as summarised by Lord Brandon in the passage I have mentioned. A principle of this width, he said would run foul of the established principle of English law that an injunction does not bind a third party: see paragraphs 84-87.
42. From a reading of his judgment as a whole it is clear that Lord Phillips was troubled by the width of the interlocutory order which led to these contempt proceedings. I share his concern. But I fear that this disquiet led Lord Phillips astray on the basic principles of this jurisdiction.
43. When proceedings come before a court the plaintiff typically asserts that he has a legal right which has been or is about to be infringed by the defendant. The claim having come before the court, it is then for the court, not the parties to the proceedings or third parties, to determine the way justice is best administered in the proceedings. It is for the court to decide whether the plaintiff's asserted right needs and should have any, and if so what, interim protection. If the court orders that pending the trial the defendant shall not do certain acts the court thereby determines the manner in which, in this respect, the proceedings shall be conducted. This is the court's determination on what interim protection is needed and is appropriate. Third parties are required to respect this determination, as expressed in the court's order. The reason why the court grants interim protection is to protect the plaintiff's asserted right. But the manner in which this protection is afforded depends upon the terms of the interlocutory injunction. The purpose the court seeks to achieve by granting the interlocutory injunction is that, pending a decision by the court on the claims in the proceedings, the restrained acts shall not be done. Third parties are in contempt of court if they wilfully interfere with the administration of justice by thwarting the achievement of this purpose in those proceedings.