Her Majesty's Attorney General (Appellant) v. Punch Limited and another (Respondents)
44. This is so, even if in the particular case, the injunction is drawn in seemingly over-wide terms. The remedy of the third party whose conduct is affected by the order is to apply to the court for the order to be varied. Furthermore, there will be no contempt unless the act done has some significant and adverse effect on the administration of justice in the proceedings. This tempers the rigour of the principle.
45. Departure from this straightforward approach runs into serious practical difficulties. If, in this context, the purpose of the court in granting an interlocutory injunction means something other than the effect its terms show it was intended to have between the parties, how is a third party to know what it is? How is a third party to know what is the purpose, which he must respect, if it is something other than the purpose evident on the face of the order? Uncertainty is bound to follow, with consequential difficulties in proving that a third party knowingly impeded or prejudiced the purpose the court sought to achieve when granting the injunction. I see no justification or need to go down this route, which is not supported by authority.
46. This discussion does, of course, underline how important it is for courts to seek to ensure that injunctions are not drawn in wider terms than necessary. This is of particular importance when the terms of the injunction may, in practice, affect the conduct of third parties.
47. On this basis I turn to consider the purpose of Hooper J's order. In my view, not only was the scope of the order clear, so also was its purpose; clear, indeed, beyond a peradventure. Self-evidently, the purpose of the judge in making the order was to preserve the confidentiality of the information specified in the order pending the trial so as to enable the court at trial to adjudicate effectively on the disputed issues of confidentiality arising in the action. This is apparent from merely reading the order. The Attorney General's claim for a permanent injunction might be defeated in advance of the trial if, before the trial, Mr Shayler was at liberty to put this information into the public domain. In other words, but to the same effect, the purpose of the court in making the order was to ensure that the court's decision on the claims in the proceedings should not be pre-empted by Mr Shayler disclosing any of the information specified in the order before the trial.
48. This being the purpose of the injunction, the actus reus of contempt lies in thwarting this purpose by destruction of the confidentiality of the material which it was the purpose of the injunction to preserve.
49. As already stated, Mr Steen accepts that the publication of the offending magazine article constituted the actus reus of contempt. He is right to do so. He did an act which Hooper J's order prohibited Mr Shayler from doing. Publication of the information by 'Punch' was destructive in part of the purpose of Hooper J's order.
50. Although Mr Steen seems not to accept this, this is not a case where the conduct was inconsistent with the court's order in only a technical or trivial way. Disclosure of the three pieces of information mentioned above, not previously published, has had a significant and adverse effect on the trial of the action against Mr Shayler. Contrary to the court's object in granting the interlocutory injunction, the Attorney General's claim to keep these pieces of information confidential has now been thwarted in advance of the trial.
Mens rea: Mr Steen's intention
51. Before your Lordships' House the argument presented on behalf of Mr Steen was that it matters not whether the purpose of Hooper J's order was as set out above or as stated by Lord Phillips MR. Either way, the Attorney General failed to prove that Mr Steen possessed the necessary mens rea. Mr Steen's evidence was that he thought the purpose of the order was to prevent damage to national security, it was not his intention to damage national security in any way, and he did not consider he was doing so. Before Silber J the Attorney General did not seek to challenge Mr Steen's evidence that when he published the article he did not believe it contained any damaging disclosures. Accordingly, so the argument runs, the Attorney General did not establish that Mr Steen intended to thwart the court's purpose in making the interlocutory injunction.
52. I am not impressed by this argument. The facts speak for themselves. Mr Steen is an intelligent man and experienced journalist. He knew that the action against Mr Shayler raised confidentiality issues relating wholly or primarily to national security. He must, inevitably, have appreciated that by publishing the article he was doing precisely what the order was intended to prevent, namely, pre-empting the court's decision on these confidentiality issues. That is knowing interference with the administration of justice.
53. I do not see how on this issue, which is the relevant issue, the admitted or proved facts are susceptible of any other interpretation. The judge was entitled so to conclude, even though these conclusions were not put in so many words to Mr Steen in the course of his cross-examination. No credible alternative conclusion regarding Mr Steen's relevant beliefs or intentions has been advanced on his behalf. Mr Steen may have thought the order was intended to protect national security, and that publication would not damage national security. He may have had, as he says, no intention of damaging national security. Those beliefs and intentions are not inconsistent with an intention to take it upon himself to make a decision which, as he knew, the court had reserved to itself. I have to say, however, that even on the basis of his stated beliefs and intentions Mr Steen's conduct was surprisingly irresponsible. He frankly admitted, as is obvious, that he was not qualified to assess whether disclosure of any particular information would damage national security. Despite this he proceeded to publish information whose disclosure was, as he knew, asserted by the Attorney General to be damaging to national security.
Information in the public domain
54. Mr Steen raised a further point, concerning republication of information already in the public domain. To this I must now turn.
55. Disclosure of information which is already fully and clearly in the public domain will not normally constitute contempt of court in the type of case now under discussion. Contempt lies in knowingly subverting the court's purpose in making its interlocutory order by doing acts having some significant and adverse effect on the administration of justice in the action in which the order is made. If the third party publishes information which is already fully and clearly in the public domain by reason of the acts of others, then the third party's act of publication does not have this effect. It does not have an adverse effect on the administration of justice in the action. The court's purpose in making its interlocutory order has, by then, already been defeated by the acts of others. This is so, whether those acts occurred before or after the court made its order.
56. In the present case Mr Steen advanced an argument that, although the three items of information already mentioned were not in the public domain, the Attorney General failed to prove that Mr Steen knew this was so. I cannot accept this submission. I am far from persuaded that the Attorney General is obliged to prove such knowledge in the absence of any evidence or suggestion that Mr Steen mistakenly thought the information was already public knowledge. It is not necessary, however, to express a concluded view on this in the present case. Suffice to say, when the contents of the article were under review and under discussion between the Treasury Solicitor and Mr Steen, Mr Steen did not suggest that this material, or the substance of it, was already public knowledge. Had Mr Steen believed that was the position he would surely have raised this point at that time. Having seen Mr Steen give evidence in the witness box the judge was entitled so to conclude: see paragraphs 71-72 of his judgment. This being so, the judge was entitled to draw the inference that when publishing the article Mr Steen was not acting in the mistaken belief that this information was already in the public domain.
57. In my view therefore this appeal succeeds. Silber J was right to hold that both the actus reus and mens rea were proved to the requisite high standard. I would set aside the order of the Court of Appeal and restore the order of the judge.
58. There remain two matters of general importance I must mention. Lord Phillips MR was critical of the role afforded to the Attorney General by the proviso to Hooper J's order. This, he said, subjects the press to the censorship of the Attorney General: paragraph 104.
59. I respectfully disagree. This criticism misunderstands the purpose and effect of the proviso. By including this proviso in his order the judge was not thereby passing to the Attorney General the ability to rule definitively on what the person enjoined or a third party might not publish. The injunction was granted 'until further order'. Mr Shayler or a third party whose conduct is affected by the order was always at liberty to apply to the court for the order to be varied so as to permit disclosure of particular information. The court retained control throughout. The object of the proviso was to provide an additional facility for such persons, of which they might take advantage if they wished. It added to the rights of such persons, not detracted from them. A court order which otherwise represents a justified and proportionate restraint on freedom of expression cannot become objectionable by the inclusion of this proviso in the order. Speed is of importance to the media. The proviso sets out a simple, expeditious and inexpensive procedure which avoids the necessity of an application to the court whose outcome would not be in dispute.
60. Nevertheless, the inclusion of this proviso in the order may give the appearance of delegating control of what may be published to the Attorney General. This is better avoided. It is desirable, therefore, that in future this type of order, when it includes this type of proviso, should on its face make plain that the party enjoined, and anyone else whose conduct is affected by the order, has the right to apply to the court for a variation of its terms.
The wording of this type of order
61. The second matter I must mention, to which I have already alluded, concerns the difficulty of drafting an interlocutory order in terms which are sufficiently certain but go no wider than is necessary to restrain disclosure of information in respect of which the Attorney General has an arguable case for confidentiality. In the present case the wide terms of Hooper J's order did not operate in a disproportionately restrictive manner so far as Punch Ltd and Mr Steen were concerned. They knowingly published previously unpublished material whose disclosure was, as they knew, asserted by the Attorney General to be damaging to national security.
62. This may not always be so. In particular, an interlocutory injunction in the wide form used in the present case may well in practice have a significant 'chilling' effect on the press and the media generally, inhibiting discussion and criticism of the Security Service. Parts of the media may well be discouraged from publishing even manifestly innocuous material which falls within the literal scope of the order. A newspaper may be unwilling to approach the Attorney General, the plaintiff in the action in which the order was made. An application to the court for a variation of the order may involve delay and expense. Even less attractive is the prospect of proceeding to publish without further ado, at the risk of having to face contempt proceedings and penal sanctions. The ability to defend such proceedings, on the basis that disclosure of the material had no adverse effect on the administration of justice, will not usually afford much consolation to a journalist.
63. This is not a satisfactory state of affairs. It is to be hoped that it may be possible to devise an improved form of words for interlocutory injunctions of this type which will give the Attorney General the protection he seeks in sufficiently certain terms but without being as all embracing as the order in the present case. It is to be hoped that the drafting difficulties may be capable of being overcome, at least to some extent. This is a matter for consideration by the Attorney General in the first instance. It is also a matter judges will wish to have in mind in future when asked to make interlocutory orders in this type of case.
64. For the reasons given by my noble and learned friend Lord Nicholls of Birkenhead in his opinion I would also set aside the order of the Court of Appeal and restore the order of the judge. While I have had no difficulty in arriving at the conclusion that the appeal should succeed, I have been troubled by what seemed to me the over-wide terms of the injunction granted in the present case. I was concerned that the House ought not to give its imprimatur to such a wide wording of this type of order. Having studied Lord Nicholls' judgment, and taking into account in particular paragraphs 34-36 and paragraphs 61-63 of his judgment, my fears are allayed.
65. Mr Shayler was a Crown servant in the Security Service who undertook to maintain the confidence of information which he obtained in the course of his employment. In August 1997, after leaving the Service, he wrote or provided information for newspaper articles in breach of his undertaking. On 4 September 1997, on the application of the Attorney-General, Hooper J. granted an injunction until trial or further order restraining Mr Shayler from disclosing any information obtained in the course of his employment. The order was subject to two exceptions: first, any information in respect of which the Attorney-General stated in writing that the Crown did not seek to restrain publication and secondly, the repetition of information already disclosed in one of the newspaper articles.
66. The primary effect of such an injunction is to regulate the conduct of the person against whom it is made. But it also has an indirect effect upon the conduct of third parties. In general, it is a contempt of court for anyone, whether party to the proceedings or not, deliberately to interfere with the due administration of justice. One species of such interference, identified by the House of Lords in Attorney-General v Times Newspapers Ltd  1 AC 191, is the deliberate publication of information which the court has ordered someone else to keep confidential. Publication interferes with the administration of justice because it destroys the subject-matter of the proceedings. Once the information has been published, the court can no longer do justice between the parties by enforcing the obligation of confidentiality.
67. In the present case the respondent Mr Steen, as editor of "Punch", engaged Mr Shayler to write articles about security matters. Mr Steen was aware of the terms of the injunction, having taken the precaution of obtaining a copy from the Treasury Solicitor. After publishing several articles without seeking to avail himself of the proviso for obtaining the Attorney-General's consent, he submitted a draft to the Treasury Solicitor in July 2000. The Treasury Solicitor replied at once saying that in his opinion publication would be a breach of the injunction and damaging to national security. He said he would need more time to consult relevant departments before being able to say precisely which passages were objectionable. Mr Steen did not wait but published the article with some amendments of his own devising. On the cover of the magazine he published the Treasury Solicitor's letter with the words "Inside whistleblower David Shayler tells the story MI5 doesn't want you to read."
68. It is not disputed that the publication of the article was a breach of the injunction by Mr Shayler. It contained information obtained in the course of his employment which did not fall within either proviso. Mr Steen might well have been liable for aiding and abetting his contempt of court. But that is not the way the Attorney-General has chosen to present the case. He says that Mr Steen is personally guilty of contempt under the principle in Attorney-General v Times Newspapers Ltd  1 AC 191 because his publication interfered with the administration of justice. It destroyed confidentiality which it was the purpose of the injunction to protect.
69. Mr Steen accepted in evidence that he had known that the article breached the terms of the injunction. But he thought that the purpose of the injunction was to protect national security and he did not think he had published anything which could damage national security. Asked whether he was in a position to make a judgment on these matters, he agreed that he was not.
70. Silber J, in a lucid judgment to which I would pay tribute, rejected the submission that the purpose of the injunction was limited to protecting national security. No doubt that was the purpose of the Attorney-General in bringing proceedings and the underlying reason why the judge made the order. But the purpose of the order was no more nor less than to do what the order purported to do, namely to restrain the publication, pending trial or further order, of information falling within its terms and not excepted by the provisos. The order said nothing about national security. The question of whether, at a later stage, all or any of the information within the terms of the order should be subject to further restraint was left for decision by the judge at the trial. Meanwhile, the purpose of the order was to prevent this exercise from becoming pointless, as to all or part, by reason of prior publication.
71. The judge accordingly found that Mr Steen had published information which materially frustrated the purpose of the court's order and that he had acted intentionally because he knew that the purpose of the injunction was to prevent publication of (inter alia) the very information which he published. He held him to be in contempt.
72. The majority of the Court of Appeal allowed the appeal, substantially because it took a different view of what was meant by the purpose of the injunction and considered that the Attorney-General had failed to prove that Mr Steen intended to frustrate it. Lord Phillips of Worth Matravers MR said ( QB 1028, 1058, para 100) said that the purpose of the Attorney-General in obtaining the injunctions was "to prevent publication of material that might be prejudicial to national security" and that it was proper to infer that the judge had the same "ultimate purpose" in granting the injunctions. So the purpose of the injunction was to preserve the confidentiality of material "whose disclosure arguably posed a risk of damaging national security". Simon Brown LJ appears to have agreed: see p. 1064, para 129. On the other hand, Longmore LJ said (at p. 1065, para 137) that the purpose was "to prevent publication, before trial, of any information derived from Mr Shayler which was not already in the public domain."
73. I respectfully disagree with both these analyses of the purpose of the injunction. In Attorney-General v Times Newspapers Ltd  1 AC 191, 223 Lord Oliver of Aylmerton enlarged upon what he understood by "the purpose" of the injunction. It was not, he said, the litigant's purpose in obtaining the order or in fighting the action but?
74. In the case of a negative interlocutory injunction, the purpose which the court is intending to fulfil is ordinarily to preserve the existing position pending a decision on the merits. It does not involve any decision as to whether any particular act falling within the prohibition would, or even arguably would, infringe the plaintiff's rights. It is true that a judge will not make such an order unless he considers that, in the words of Lord Diplock in American Cyanamid Co. v Ethicon Ltd  AC 396 there is a serious question to be tried. But otherwise the decision to grant or withhold such an order is usually based upon discretionary considerations of the balance of convenience. As Lord Diplock said in the Cyanamid case (at p. 406):
75. Considerations of discretion and the balance of convenience are even more important when it comes to deciding upon the scope of the interlocutory injunction. Although, as I have said, Hooper J's order necessarily entailed that he thought that the Attorney-General's claim gave rise to a serious issue to be tried, it does not follow that he thought that the disclosure of any piece of information falling within the terms of the injunction would be arguably damaging to national security. It was no doubt equally obvious to him that the terms of the order covered such matters as the cafeteria food to which Lord Steyn referred in argument. But he made the order in the terms which he did because of the inherent difficulty of devising a form of words which would distinguish in advance between such harmless disclosures and information which would be damaging to national security without creating such uncertainty as to make the order difficult both to enforce and to comply with. He therefore chose to frame the order in wide terms, leaving the defendant or a third party to apply to the court to vary its terms to exclude specific publications which they claim would be innocuous: see Sir John Donaldson MR in Attorney-General v Newspaper Publishing plc  Ch. 333, 375. In so doing, he would have had to balance the inconvenience to the defendant or a newspaper in having to apply for a variation against the risk to national security if a more narrowly drafted order inadvertently allowed something damaging to slip through the net.
76. The purpose of the order was therefore in my opinion simply to prevent from happening whatever the order said should not happen. As Silber J pointed out, the order says nothing about national security. Nor does it except material already in the public domain, apart from the article mentioned in the first proviso. I respectfully think that all the members of the Court of Appeal fell into the very confusion against which Lord Oliver had warned; a confusion signalled by the phrase "ultimate purpose" used by the Master of the Rolls (at p. 1058, para 100) to describe the state of mind of the judge when he made the order.
77. The practical consequences of this confusion are vividly recognised in the dissenting judgment of Simon Brown LJ. If the purpose of the order were indeed to prevent disclosure of any matter that arguably risked harming the national interest, then proof of mens rea for contempt would involve proving to the criminal standard that Mr Steen knew that the materials which he published arguably risked harming the national interest. The fact that Mr Steen was ill-equipped to form a view on the matter would not assist the Crown. People often hold strong and bona fide views about matters of which they know virtually nothing. The result would be, as Simon Brown LJ pointed out, that the injunction would be virtually unenforceable against third parties like Mr Steen. They would be entitled to make the very judgment which the judge granting the order had reserved for decision at the trial and, provided they did so honestly, would be entitled with impunity to destroy the effect of the order. Simon Brown LJ was rightly, if I may say so, unable to accept this conclusion, but I find it difficult to see how he was able to escape it after accepting the view of the Master of the Rolls about the purpose of the order. It was at this point that in my opinion the reasoning of the Court of Appeal went astray.
78. Counsel for Mr Steen relied heavily upon a passage in a letter written by Mr Sean Martin on behalf of the Treasury Solicitor explaining the principles upon which he acted in giving consent to publication:
79. I think that this is disingenuous. It is perfectly clear that the injunction was intended to restrain publication of everything which it prohibits from being published. That is what it says. Although Mr Martin speaks of "the purpose of the injunction", it is clear in the context that he is speaking of the Attorney-General's purpose in obtaining the injunction. Mr Steen could not possibly have thought that the Treasury Solicitor was inviting him to form a judgment on what would damage national security.
80. The Master of the Rolls, in his concluding paragraphs, accepted that the effect of his judgment was virtually to destroy the contempt jurisdiction against third parties which had been recognised in the Times Newspapers case. But he thought that it did not matter very much because ordinarily the third party could be proceeded against for aiding and abetting a contempt by the party against whom the injunction had been made:
81. That may be so, but it should be observed that Times Newspapers was just such a case. There was no injunction against the confidant because he was living abroad. The proceedings against one newspaper were for frustrating the purpose of an injunction which had been granted against another newspaper. In such a case, there could be no question of aiding and abetting. On the contrary, the one newspaper was trying to steal a march on the other.
82. My Lords, I must in conclusion advert to the comments of the Master of the Rolls on the second proviso, allowing for the consent of the Attorney-General to publication. He said, at p 1059, para 104, that it "subjects the press to the censorship of the Attorney-General" and expressed the view that it infringed article 10 of the European Convention on Human Rights. It was, he said, wrong to restrain the publication of "manifestly innocuous material" without the consent of the Attorney-General.