Judgment in Steen v. HMG in OSA-Shayler Case

14 December 2002. See appeals court judgment of 12 December 2002:

http://cryptome.org/steen-v-hmg2.htm

26 March 2001. Thanks to DR.

Source: http://www.courtservice.gov.uk/judgments/judg_home.htm

James Steen v. Her Majesty's Attorney-General

Case No: A2/2000/3522

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

The Hon Mr Justice Silber

Date: Friday 23rd March 2001

B e f o r e :

MASTER OF THE ROLLS (LORD PHILLIPS)
LORD JUSTICE SIMON BROWN
and
LORD JUSTICE LONGMORE

JAMES STEEN
Appellant

- and -

HER MAJESTY'S ATTORNEY-GENERAL
Respondent

David Price (instructed by Henry Hepworth for the Appellant)
Jonathan Crow (instructed by The Treasury Solicitor for the Respondent)

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Phillips MR :

Mr Steen, the appellant, used to be the editor of Punch. Both he and the publishers of that magazine have been held to have been guilty of contempt of court. This was because of an article published in an issue of Punch at the end of July last year. Silber J., who made the finding of contempt, fined Mr Steen £5,000 and Punch £20,000. Mr Steen now appeals to us against the finding of contempt. He is funding his own appeal and, in the interests of economy, originally instructed Mr David Price, the Solicitor, who has ably presented his appeal, to confine himself to a single ground of appeal which it was estimated would occupy the court for two hours. With the encouragement of the court and without objection from Mr Jonathan Crow, who appeared for the Attorney-General, he added a second ground of appeal in the course of argument. The appeal requires consideration of the basis of the findings of contempt made by the House of Lords in Attorney-General v. Times Newspapers Ltd [1992] 1 A.C. 191, the "Spycatcher" case.

The primary facts are not in dispute and the following summary of these draws largely from the judgment below.

From November 1991 until he resigned in October 1996, Mr David Shayler served as an officer in the Security Service ("the Service"). His engagement was subject to express terms prohibiting him from publishing information which related to or might be construed as relating to the Service or its membership or activities or to security or intelligence activities generally without prior written approval.

Source: http://wood.ccta.gov.uk/courtser/judgements.nsf/6ff876ba66f8361a8025683c00411386/dd1ab21f32d0424980256a180044cc08/$FILE/civil_steen.htm

Case No: A2/2000/3522

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

The Hon Mr Justice Silber

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 23^rd March 2001

B e f o r e :

MASTER OF THE ROLLS
(LORD PHILLIPS)
LORD JUSTICE SIMON BROWN
and
LORD JUSTICE LONGMORE

- - - - - - - - - - - - - - - - - - - - -

JAMES STEEN

Appellant

- and -

HER MAJESTY'S ATTORNEY-GENERAL

Respondent

- - - - - - - - - - - - - - - - - - - - -

David Price (instructed by Henry Hepworth for the Appellant)
Jonathan Crow (instructed by The Treasury Solicitor for the Respondent)

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Phillips MR :

Mr Steen, the appellant, used to be the editor of Punch. Both he and the publishers of that magazine have been held to have been guilty of contempt of court. This was because of an article published in an issue of Punch at the end of July last year. Silber J., who made the finding of contempt, fined Mr Steen £5,000 and Punch £20,000. Mr Steen now appeals to us against the finding of contempt. He is funding his own appeal and, in the interests of economy, originally instructed Mr David Price, the Solicitor, who has ably presented his appeal, to confine himself to a single ground of appeal which it was estimated would occupy the court for two hours. With the encouragement of the court and without objection from Mr Jonathan Crow, who appeared for the Attorney-General, he added a second ground of appeal in the course of argument. The appeal requires consideration of the basis of the findings of contempt made by the House of Lords in Attorney-General v. Times Newspapers Ltd [1992] 1 A.C. 191, the "Spycatcher" case.
The facts
The primary facts are not in dispute and the following summary of these draws largely from the judgment below.
From November 1991 until he resigned in October 1996, Mr David Shayler served as an officer in the Security Service ("the Service"). His engagement was subject to express terms prohibiting him from publishing information which related to or might be construed as relating to the Service or its membership or activities or to security or intelligence activities generally without prior written approval.
It is alleged by the respondent that sometime before his resignation, Mr. Shayler removed from the offices of the Service approximately 30 documents or copies taken by him ('the confidential documents') which contained confidential information belonging to the Crown and included details of or reference to secret intelligence, intelligence sources, the assessment of secret intelligence from intelligence sources, intelligence targets, investigative techniques and operational matters, the identity and telegraphic address of a number of foreign intelligence and security agencies and to diplomatic exchanges between Her Majesty's Government and a foreign government.
The respondent contends that subsequently Mr. Shayler provided to Associated Newspapers material derived from the confidential documents relating to the Service, including confidential information belonging to the Crown that had come into his possession in the course of his employment with the Service. This material was incorporated in articles that were published in late August 1997 in the 'Mail on Sunday' and the 'Evening Standard'. He further provided to Associated Newspapers information which was incorporated into articles that it was intended to publish in the Mail on Sunday on 31 August 1997.
At this point, however, the respondent intervened. He commenced an action against Mr Shayler as First Defendant and Associated Newspapers Ltd as Second Defendant and, on 30 August 1997, obtained from Keene J. interlocutory injunctions restraining publication. On 4^th September the action came before Hooper J. Neither Mr Shayler nor Associated Newspapers appeared, but Solicitors for Associated Newspapers wrote a letter giving undertakings and consenting to the Order that Hooper J. subsequently made against them.
Hooper J. made the following Order against Mr Shayler:
"The First Defendant be restrained until trial or further order whether by himself his servants or agents or otherwise howsoever from disclosing, whether to any newspaper or other organ of the media or any other person otherwise howsoever any information obtained by him in the course of or by virtue of his employment in and position as a member of the Security Service (whether presented as fact or fiction) which relates to or which may be construed as relating to the Security Service or its membership or activities or to security or intelligence activities generally, provided that this order does not apply to:
(1) any information in respect of which the Plaintiff (whether at the request of the Defendants or any of them, or any third party, or of his own motion) makes a statement in writing (either personally or by the Treasury Solicitor) that such information is not information in respect of which the Crown seeks to restrain publication;
(2) the repetition of information disclosed in The Mail on Sunday on 24th August 1997."
The first paragraph of the Order made against Associated Newspapers read as follows:
"The second Defendant be restrained until further order whether by itself, its servants or agents or otherwise howsoever from publishing, to any person any information obtained by it from the first Defendant and obtained by the first Defendant in the course of or as a result of his employment in and position as a member of the Security Service, whether in relation to the work of, or in support of, security or intelligence services or otherwise…."
In June or July 1998, the appellant in his capacity as editor of Punch met Mr Shayler in Paris and prior to that meeting, his office had requested and received copies of the injunctions from the Treasury Solicitor. The appellant wished to know what was covered by the injunctions. Mr Shayler subsequently started writing a regular column in Punch commencing with issue 89 (September 11/September 24 1999) and, from issue 90 onwards, the column carried his name on a by-line. By that time, Mr Shayler was well known as a warrant for his arrest had been issued and he had been arrested in Paris pending extradition proceedings, which were ultimately unsuccessful. In addition the book "Defending the Realm – MI5 and the Shayler Affair" by journalists Mark Hollingsworth and Nick Fielding had been published which gave details of Mr Shayler's experiences at MI5 as well as his gradual disenchantment with the Service and the reasons for that disenchantment.
Mr Steen explained to the court in an affidavit that he thought that Mr Shayler had important comments to make, which readers of Punch were entitled to know about and would find interesting, namely "the error and incompetence of MI5, and its direct and often tragic consequences." He also felt that Mr Shayler should have a platform from which to speak out and "not be pushed to the literal and figurative margins by the Security Services". Mr Shayler had worked on student newspapers at university and had had a rudimentary journalistic training at The Sunday Times; therefore he was, according to Mr Steen, quite capable of writing an interesting column in journalistic style.
According to Mr Steen:
"Mr Shayler's column was intended to criticise the performance of the security services, to expose its errors and inefficiencies and to show that its past incompetence had had serious and sometimes tragic results. Mr Shayler's status, his locus standi, so far as Punch's readers were concerned, was that he had been on the inside, that he knew what he was talking about, that he was able to comment about security and related matters."
By a letter of the 23 December 1999, following Mr Shayler's eighth piece in the magazine, Mr Martin for the Treasury Solicitor wrote to the appellant reminding him of the existence of the orders and stating that he had been instructed that "some of the material in the articles is damaging to national security".
Vigorous correspondence ensued between the appellant and Mr Martin, in the course of which Mr Martin urged the Appellant to "take advantage of the proviso to the injunction allowing the Crown to confirm that it does not object to the publication of certain material." To this the appellant responded that editorial steps were taken to ensure that the injunction was not breached nor reference made to material which might remotely be considered to be damaging to the national interest. He accused Mr Martin of attempting to force Punch to submit to Government censorship. The correspondence ended on 21 January 2000 with a letter from Mr Martin which included a statement that "the purpose of an injunction is not... to prevent criticism of the Security Service but is to prevent damage to national security".
There the matter rested until Friday, 21 July 2000 when Mr Martin received a telephone call from the appellant who said that he intended to publish an article by Mr Shayler in the following week's edition relating to the Bishopsgate bombing while much of the article was not new and would not come as a surprise, it contained, in his words, "a lot of MI5 jargon".
This letter led to a flurry of urgent communications between Mr Martin and the appellant. Mr Martin's clients needed time in order to comment on the proposed article, while the appellant was concerned about his printing deadline. Mr Martin stated in a telephone conversation that the article appeared to fall within the terms of the injunction as the article set out information obtained by Mr Shayler in the course of his employment. He followed this up with a letter on 24 July in which he stated "my clients are satisfied that the publication of the article in its existing form would be in breach of the injunction".
At about 1.00 p.m. on the 25 July, Mr Martin was supplied with his client's amendments to the draft article and he duly sent details to the second defendant under cover of a letter in which he said that his clients would be prepared to consent to publication of the information contained in the article provided that all the amendments were made. He added that if the second defendant did not regard some of the changes as acceptable, he should let Mr Martin have an amended version of the text indicating what changes had been made so he could take further instructions. By that stage the article had been finalised and sent to the printers.
He did not receive a reply to this letter and on 26 July the defendants Punch magazine issue 111 went on sale, which was the edition which gave rise to the contempt proceedings. The cover of the magazine reproduced Mr Martin's letter to the second defendant dated 24 July 2000 albeit in a slightly amended form and beneath the letter there appeared a headline stating:-
"Inside whistle-blower David Shayler tells the story MI5 does not want you to read".
The article had been amended from the draft version but did not reflect all the amendments which had been notified to the defendants.
The basis on which the respondent alleged that the publication of this article amounted to a contempt of court, as stated in the claim form, was that the publication:
"had the effect of publishing material which this Honourable court intended, by means of the injunctions, not to be published pending the trial in the action against Mr Shayler and Associated Newspapers. The defendants' said action thereby impeded or interfered with the administration of justice by thwarting and/or undermining the intended effects of the injunction. The defendants intended their actions should have that effect."
The major issues before Silber J.
The contempt alleged by the Respondent is not contempt under the Contempt of Court Act 1981, but contempt at common law. As such, it is subject to common law principles that govern the commission of a criminal offence. Both the 'actus reus' and the 'mens rea' must be demonstrated if the offence is to be made out. There was a dispute as to the nature of each of these elements of the alleged contempt.
The starting point was common ground. The nature of the contempt alleged was interference with the administration of justice. The 'actus reus' was conduct which defeated the purpose of the court in ordering the injunctions. The 'mens rea' was an intention to defeat that purpose. This did not mean that the Attorney-General had to demonstrate that the appellant had wished to defeat the purpose of the court, merely that he had foreseen that this would be the consequence of his conduct. At this point agreement ended.
Actus reus
The appellant's case was that the purpose of the injunctions ordered by Hooper J. was to prevent the publication of matter that was likely to damage the national security. The Crown had no right in law to restrain publication unless it could demonstrate that publication would be harmful to the public interest. The purpose of the injunctions must have been to restrain publication that would be unlawful, not to restrain publication of matter to which no lawful objection could be taken. The Attorney-General had not demonstrated that the publication had been damaging to the national interest, therefore the 'actus reus' of the contempt had not been made out.
The case for the Attorney-General was that the purpose of the injunctions appeared clearly from their express terms. This was to prevent the publication of the matter identified in the first paragraph of each order. Whether or not at the conclusion of the action this proved to be matter, publication of which the Crown was entitled to restrain, was not material. The purpose of the injunctions was to prevent publication of that matter until the court could rule on whether or not publication was lawful. By publishing matter which was clearly covered by the terms of the injunction, the appellant had committed the 'actus reus' of contempt.
Mens rea
The issue on 'mens rea' followed from that on 'actus reus'. The appellant argued that he believed that the purpose of the court in ordering the injunctions was to prevent the publication of matter that was likely to damage the national security. He had had no intention of publishing such matter, nor had he foreseen that he was doing so. If, in fact, he was mistaken as to the object of the court in ordering the injunctions, this mistake was, of itself, enough to absolve him of the necessary 'mens rea'.
The case for the Attorney-General was that the appellant had express knowledge of the terms of the injunctions. Thus he knew the conduct which the Court intended to prevent by those injunctions. Preventing that conduct was manifestly the purpose of ordering the injunctions. By publishing matter that he knew the court had intended should not be published he demonstrated the intention that constituted the 'mens rea' of the contempt.
The Judgment of Silber J.
Facts
The Judge made a number of further findings of primary fact, which are not now disputed.

Some of the information in the Punch article had been published before. (Judgment paragraph 58);

Three significant areas of information in the article had never been published before. (Judgment paragraph 58);

The information published was information covered by the express terms of the injunction;

While the publication of the article caused damage (Judgment paragraph 60) no details of damage to national security were adduced in evidence. (Judgment paragraph 63).

Actus reus

The facts of this case closely parallel those of Spycatcher, and Silber J. founded largely on that decision in his conclusions. The following passage from his judgment contains the essence of his conclusions on 'actus reus':
"The Attorney-General contends that the purpose of the court in granting the injunction was not to protect national security but to make an order for "the preservation of the information obtained by the employee in his capacity as a member of the Security Service pending the trial" (Attorney-General v Newspaper Publishing [1998] 1 Ch at 365D); in other words to ensure that until trial, there should be no disclosure of information obtained by Mr Shayler in his employment other than that disclosed in The Mail on Sunday on 24 August 1997 ("the MOS exception") unless the Attorney-General had approved. I believe this contention to be correct for four reasons, some of which overlap.
First, it is noteworthy that the terms of the injunction against Associated Newspapers are clear and they merely prevent publication of any information obtained from Mr Shayler and obtained by Mr Shayler in the course of and as a result of his employment and position as a member of the Security Service. It covers information "in relation to the work of or in support of the security and intelligence services or otherwise". This shows that the information covered by that injunction goes beyond security and intelligence matters and has no limitation on the subject matter or the material covered by the injunction. Second, the injunction against Mr Shayler refers to the work of the security and intelligence services but does not have a requirement that the information covered must relate to national security and it is quite likely that the injunction covers matters other than those of national security. The injunction against him might, for example, cover well-known facts about the identity of past or present heads of the Security Service. Third, the "Spycatcher" injunctions were in a similar form to the injunctions in this case against Associated Newspapers and they were regarded as being "originally imposed in order to preserve the confidentially of the then unpublished allegations" (per Lord Oliver in Attorney-General v Guardian Newspapers [1987] 1 WLR 1248 at 1318) or "the right of private and public authorities to seek and obtain the protection of the courts for confidential information which they claim to be their property" (per Sir John Donaldson MR in Attorney-General v Newspaper Publishing [1988] 1 Ch,. 333 at 361). In a later case, Lord Mustill said the Spycatcher injunctions were "obviously intended to stop the publication by any medium of materials which would compromise the pending proceedings" (Harrow Borough Council v Johnstone [1997] 1 WLR 459 at 468F). I cannot see why the purpose of the injunctions in the associated Newspapers case should be regarded as being different.
Fourth, these injunctions are no more concerned primarily with national security than the similar order in the Spycatcher case. In paragraph 32 above I quoted Sir Donaldson as saying of that application for contempt against a third party in a similar position to the defendants in this case that:
"I should like to emphasise with all the power at my command that this case is not primarily about national security or official secrets. It is about the right of private citizens and public authorities to seek and obtain the protection of the courts for confidential information which they claim to be their property" (Attorney General v Newspaper Publishing [1988] 1 Ch. 333 at 361).
Similar reasoning applies to the injunctions here and supports the idea that the purpose of the injunction was to preserve information. So a third party who knowingly uses that information before trial would be damaging or destroying the confidentiality which the court was seeking to protect and thus have a significant or adverse effect on the administration of justice, irrespective of national security considerations."
The Judge went on to consider whether the appellant had committed the 'actus reus' that he had identified. He held that inasmuch as the terms of the injunctions prohibited the publication of the specified matter, regardless of whether or not it had already been published, the appellant frustrated the purpose of the court by publishing such matter. Thus he held:
"…the purpose of the Court in granting the injunctions was to ensure that there should be no disclosure of any information obtained by Mr Shayler during his employment outside the MOS exception without the Attorney-General's consent. All the material in the offending article to which the Attorney-General objected fell within the ambit of the injunctions and was published in contravention of the purpose of the Court in granting the injunctions, namely to ensure that it was not published before trial. This is so even though some of the material might have been previously published, as significantly the proviso does not relate to any previously published material except that falling within the MOS exception (which is not relevant to the material under consideration) and that approved by the Attorney-General. If it had been the court's intention when granting the injunctions to exclude from the terms of the injunctions all material previously published, that exception would have been clearly specified in the same way as the MOS exception was but this was not done. So I conclude the fact that material was previously published (and outside the MOS exception) does not prevent it from being covered by the injunctions and so in respect of this material, the court's intention in granting the injunctions was to ensure that it was not republished. Both Associated Newspapers and Mr Shayler must have appreciated this and did not object to the injunctions or later seek a variation to exclude it from the injunction."
He went on to hold (paragraph 62) that he would have concluded that the 'actus reus' was established, even if all the material in the article had previously been published.
Mens rea.
Silber J. held (paragraph 67) that to prove the necessary mens rea the Attorney-General had to establish:
1. that the appellant knew of the injunctions;
2. that he intended that the publication of the article would contravene the injunctions and
3. that he intended that the publication should interfere with the administration of justice or the purpose of the court in granting the injunctions.
The Judge found that the appellant was aware of the terms of the injunctions. This was not and is not disputed.
The Judge found that the appellant knew that "the publication of the article was a breach of the injunctions and …intended to act in breach of it". The Judge then equated this intention with an intention to interfere with the administration of justice. He put the matter thus (paragraph 76):
"An injunction is a court order made to assist in the administration of justice and any interference with it impedes the administration of justice. By the same token and for the factors set out above and which demonstrate his intention to break the injunction, the second defendant must have intended to impede the administration of justice. Second, the second defendant clearly knew from reading the injunctions, which he clearly did, that the purpose of the Court in granting them was to prevent publication or disclosure of information falling within paragraph 1 of the order but not covered by the provisos. The terms of the injunction make it clear that it prevents publication falling outside the provisos; that was the only purpose that the court could have had in granting the injunction as that was what Associated Newspapers were restrained from doing. In his communication with the second defendant, Mr Martin referred to the purpose of the injunction from the claimant's point of view as being "to prevent damage to national security" but the court's purpose was to prevent disclosure as the terms of the injunctions would have demonstrated on a cursory reading of it."
The Judge stated in terms that he would have been satisfied of the intention to interfere with the administration of justice even if the Attorney-General's application had related solely to material that had already been published.
Human Rights
Before Silber J., the appellant argued that the Attorney-General's case was in conflict with the right to freedom of expression enshrined in Article 10 of the European Convention of Human Rights. On his case, the grant of the injunction against Mr Shayler and Associated Newspapers had the result of imposing a significant restriction on the freedom of expression of the entire media. This was neither necessary in a democratic society nor proportionate to any legitimate aim. It did not fulfil "a pressing social need".
Silber J. held that the principle of English law that held the appellant in contempt was both necessary in a democratic society and proportionate to the legitimate aim of ensuring that the court's purpose was not subverted and the rights of those protected by the injunctions not undermined. He focussed particularly on the fact that Article 10(2) of the Convention permits restriction on the freedom of expression in the interests of "maintaining the authority…of the judiciary". He stressed that:
"…the basis of my decision on this application is not national security but the need to preserve the integrity and value of injunctions, to protect those whose rights under the injunctions have been undermined and to punish those who interfere with the administration of justice by being actively involved in the disclosure of what the Court ordered should not be disclosed until trial."
The Judge considered, of his own motion, the effect of Section 12(4) of the Human Rights Act and concluded that it posed no bar to the Attorney-General's application as it was not in the public interest that the article complained of should have been published.
The issues on the appeal
When Mr Price opened the appeal he stated that, while Silber J's judgment was open to attack on a number of grounds, his instructions were to limit his attack to the issue of mens rea. For purposes of argument he was prepared to accept that the purpose of the Court in granting the injunctions was to prevent publication of the matter covered by the injunctions and, consequently, that the actus reus of contempt was publishing such matter. He proposed to argue, however, that the Judge should have accepted the appellant's evidence that he believed that the purpose of the injunctions was to prevent the publication of matter that might be damaging to national security. Mistake as to the true purpose of the injunction meant that the appellant did not have the necessary mens rea when he acted in a way that defeated that purpose. The appellant's approach was reflected in his written grounds of appeal.
We expressed disquiet at proceeding on this narrow basis. A court may have more than one purpose in granting an interlocutory injunction. The immediate purpose of restraining named defendants from publishing specific material will necessarily be to ensure that those defendants do not publish the material. An ulterior purpose may be to ensure that the material remains confidential until its status is determined at trial and the ultimate purpose may be to ensure that any parts of the material that are likely to damage the national interest remain permanently confidential. It seemed to us that the appellant's case raised the question of which purpose was the relevant purpose under the principles of the law of contempt developed in Spycatcher. In the course of argument Mr Price received instructions to apply to add to the grounds of appeal a contention that Silber J. should have held that the purpose of the Court in granting the injunctions had been to prevent the publication of matter likely to harm national security and that, accordingly, the actus reus of the alleged contempt was publishing matter that was likely to harm national security. We granted permission to add this ground.
SPYCATCHER
The jurisprudence in this area of the law is mainly to be found in the series of decisions relating to the book Spycatcher. The author of this was Peter Wright, a former member of M.I.5 who had retired to Tasmania. There he wrote an account of alleged improprieties carried on by members of M.I.5 during his time in the service. In breach of the duty of confidence owed to the Crown under the terms of his contract of service he proposed to publish this. The backdrop to the proceedings that then ensued in England consisted of attempts by the Crown to restrain publication in Australia and steps taken to outflank these by publication in the United States and elsewhere. In the English proceedings the Crown attempted to prevent publication of extracts from Spycatcher in this country. There were two parallel sets of proceedings. In the first the Attorney-General sought injunctions against newspapers that had published references to or extracts from the contents of the book. I shall call these 'the injunction proceedings'. In the second he sought to have punished for contempt of court other newspapers for publishing precisely what their colleagues had been forbidden to publish by interlocutory orders in the injunction proceedings. I shall call these 'the contempt proceedings'.
The cause of action in Spycatcher
The cause of action in the injunction proceedings was breach of confidence – the Crown alleged that anyone who received information knowing that it had emanated from Mr Wright in breach of his duty of confidence owed a duty in equity to treat the information as confidential. The Courts held, however, that where the Crown sought to restrain the disclosure of information relating to Government, special principles applied. Both in the Court of Appeal and in the House of Lords the following passage from the judgment of Mason J. in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR. 39 at 51-2 was cited with approval:
"The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to this affair will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only view of that information is that it enables the public to discuss, review and criticise government action. Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past working of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality."
In the leading speech in the House of Lords Lord Keith of Kinkel put the matter as follows: (Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 A.C.109 at 256):
"The position of the Crown, as representing the continuing government of the country may, however, be regarded as being special. In some instances disclosure of confidential information entrusted to a servant of the Crown may result in a financial loss to the public. In other instances such disclosure may tend to harm the public interest by impeding the efficient attainment of proper governmental ends, and the revelation of defence or intelligence secrets certainly falls into that category. The Crown, however, as representing the nation as a whole, has no private life or personal feelings capable of being hurt by the disclosure of confidential information. In so far as the Crown acts to prevent such disclosure or to seek redress for it on confidentiality grounds, it must necessarily, in my opinion, be in a position to show that the disclosure is likely to damage or has damaged the public interest. How far the Crown has to go in order to show this must depend on the circumstances of each case. In a question with a Crown servant himself, or others acting as his agents, the general public interest in the preservation of confidentiality, and in encouraging other Crown servants to preserve it, may suffice. But where the publication is proposed to be made by third parties unconnected with the particular confidant, the position may be different. The Crown's argument in the present case would go to the length that in all circumstances where the original disclosure has been made by a Crown servant in breach of the obligation of confidence any person to whose knowledge the information comes and who is aware of the breach comes under an equitable duty binding his conscience not to communicate the information to anyone else irrespective of the circumstances under which he acquired the knowledge. In my opinion that general proposition is untenable and impracticable, in addition to being unsupported by any authority. The general rule is that anyone is entitled to communicate anything he pleases to anyone else, by speech or in writing or in any other way. That rule is limited by the law of defamation and other restrictions similar to these mentioned in article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (cmd.8969). All those restrictions are imposed in the light of considerations of public interest such as to countervail the public interest in freedom of expression. A communication about some aspect of government activity which does no harm to the interests of the nation cannot, even where the original disclosure has been made in breach of confidence, be restrained on the ground of a nebulous equitable duty of conscience serving no useful practical purpose."
It is noteworthy that Lord Keith considered that the Crown might have good cause to restrain publication by a Crown servant, or his agents, in circumstances where a newspaper would be under no legal restraint in publishing the same subject matter.
In the injunction proceedings the Courts recognised that the subject matter of Spycatcher included matter that it was in the public interest should remain confidential. Lord Keith said at p. 259:
"In relation to Mr Wright, there can be no doubt whatever that had he sought to bring about the first publication of his book in this country, the Crown would have been entitled to an injunction restraining him. The work of a member of M.15 and the information which he acquires in the course of that work must necessarily be secret and confidential and be kept secret and confidential by him. There is no room for discrimination between secrets of greater or lesser importance, nor any room for close examination of the precise manner in which revelation of any particular matter may prejudice the national interest. Any attempt to do so would lead to further damage."
The Courts held, however, that once widespread world-wide publication had destroyed the confidentiality of the material, there was no ground for restraining publication in England. In the Court of Appeal at p.224 Bingham L.J. put the matter as follows:
"Of course there will be those in this country who are still unaware of the contents of Spycatcher. Some people are impermeable to information or wholly out of touch with the topical subjects of the day. But anyone with the slightest interest in the subject matter of Spycatcher is likely either to have read the book or to be aware of its contents. It is in my view a conclusive answer to this claim that the confidentiality the Attorney-General seeks to protect, through no act of the newspapers, no longer exists. I do not accept that an action for breach of confidence against third parties can succeed in those circumstances whatever the position as between confider and confidant. The same conclusion can be put another way. I do not think that the editors of these newspapers can be said to be subject to a duty in conscience not to publish material which is freely available in the market-place and publishable by other newspaper editors the world over."
The speeches in the House of Lords were to the same effect.
The position can be summarised as follows. The Crown has no right to restrain a newspaper from publishing information about government unless (i) disclosure of the information will be contrary to the public interest and (ii) the information has not already been disclosed. I now propose to consider the judgment below in the light of these principles.
The implications of the Judgment below
Silber J. observed, in a passage from his judgment from which I have already quoted, that there was no limitation on the subject matter of the material covered by the injunction against Associated Newspapers. He went on to note that the injunction against Mr Shayler probably covered matters other than those affecting national security, including "well known facts". It follows that the terms of the interlocutory injunctions extended beyond the categories of information that the Crown was entitled to require should remain confidential.
In particular, Silber J. held that the terms of the injunctions prohibited Mr Shayler and Associated Newspapers from publishing matter that had previously been published, and that for other newspapers to do this in the knowledge of the terms of the injunctions was to commit contempt of court. If this is correct, by endorsing the terms of the injunction to which Associated Newspapers submitted by consent, the Court in effect made it a criminal offence for newspapers to publish matter which they would otherwise have been lawfully entitled to publish. It is true that the Attorney-General agreed with Associated Newspapers a mechanism whereby the draconian effect of the injunction would be mitigated. The Attorney-General could release information from the scope of the injunction by stating in writing that the Crown did not seek to restrain publication of the information in question. Furthermore a newspaper could always apply to the Court to be released from the restraint of the injunction in relation to any particular information. Nonetheless, if the judgment below is correct, the effect of the injunctions granted by Hooper J. was to place a significant fetter on the right which the press would otherwise have enjoyed to republish matter that was in the public domain. It is time to turn to the Spycatcher contempt proceedings to see whether they lead to this result.
The Spycatcher contempt proceedings
The Spycatcher contempt proceedings flowed from an interlocutory injunction ordered by Millett J. in the injunction proceedings on 11 July 1986 against the Observer and Guardian newspapers in the following terms:
"The defendants and each of them be restrained until trial or further order from doing whether by himself or itself or by his or its servants or agents or any of them or otherwise howsoever the following acts or any of them that is to say: 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."
On 27April 1987 the Independent published articles which had been obtained from Mr Wright's manuscript of Spycatcher, which was at this point of time still unpublished anywhere in the world. Similar articles were published in the Evening Standard and the Daily News. The Attorney-General moved to have the publishers and editors of these three newspapers committed for contempt.
A preliminary point of law was argued before Sir Nicholas Browne-Wilkinson V.-C. in the following terms:
"Whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction."
The Vice-Chancellor answered this question in the negative; [1988] 1 Ch. 333 at p.347. He said:
"I have reached the conclusion that it is not. So to hold would be to subvert the basic principles of our civil law and introduce into it uncertainty and unfairness. English civil courts act in personam, that is to say they adjudicate upon disputes between the parties to an action and make orders against those parties only. In certain instances where the court has assumed the care and administration of a person or property, the court does make orders which, in one sense, operate in rem. Any interference with the person or the property being administered constitutes a contempt of court; for example, acts in relation to a ward of court, a ship subject to attachment or property of which the court has appointed a receiver. But in other cases so far as I am aware injunctions can only properly be made to restrain a defendant to the proceedings, as opposed to a third party, from doing certain acts: see Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All E.R. 406, and In re X (A Minor) (Wardship: Injunction) [1984] 1 W.L.R. 1422. Even a declaration made by a court is not binding on persons who are not parties to the suit. In my judgment this is the basis of the present state of the law that, for a third party. C, to be liable for contempt, the acts complained of must constitute a breach of the actual terms of the order. The Attorney-General's contention, if correct, strikes at the root of this basic principle. An order of the court would, in effect, operate in rem. i.e., be enforceable against everyone who had notice of it. The practical implications of this in ordinary civil litigation would be far reaching and in many cases unjust."
He went on, however, at p. 349 to express concern about this conclusion:
"There ought to be some sanction against the publication of matters which prejudice national security and the decision as to what does prejudice national security should not be left to the judgment of the editors of individual newspapers. I had assumed that the Official Secrets Act 1911 provided the necessary sanction. If it does not, then it is for Parliament, if it thinks fit, to provide the necessary sanction by providing a public law remedy linked directly to the protection of public rights. Private rights should not be bolstered by a distortion of the law of contempt in an attempt to produce a judge-made public law protecting official secrets."
The Court of Appeal reversed this decision. Dealing with the Vice-Chancellor's expression of concern, Sir John Donaldson M.R. said at p. 361:
"Whilst I agree that there ought to be some sanction against the publication of matters which prejudice national security, I should like to re-emphasise with all the power at my command that this case is not primarily about national security or official secrets. It is about the right of private citizens and public authorities to seek and obtain the protection of the courts for confidential information which they claim to be their property."
The Court of Appeal held that the terms of the injunction granted in the injunction proceedings did not bind newspapers which were not party to those proceedings. Nonetheless the injunctions were ordered for the purpose of administering justice in those proceedings and in order to preserve the confidentiality of the subject matter of those proceedings until trial. Disclosure of the matter that the Court had intended should remain confidential was an interference in the administration of justice which destroyed the very subject matter of the proceedings. It was for that reason that it constituted a contempt of court.
In the course of their judgments the Court of Appeal considered three decisions in which third parties had been held in contempt of court for committing acts which had been forbidden by an injunction ordered against the defendant in the action. These decisions featured more prominently in the judgments that were subsequently delivered by the House of Lords, and it is convenient to refer to them at this stage.
In Wellesley v Earl of Mornington (1848) 11 Beav. 180, an injunction had been ordered restraining the Earl from cutting down certain trees. This was a final, not an interlocutory order. The Earl's land agent, a Mr Batley, cut down the trees. The plaintiff moved to commit Mr Batley for contempt for breach of the order. The motion failed on the ground that Mr Batley was not bound by the order. The plaintiff then brought a second motion, (1848) 11 Beav. 181, seeking to commit Mr Batley for contempt in knowingly assisting in the breach of the order. Lord Langdale M.R. ruled that he was entitled to this relief, for Mr Batley was in contempt for
"intermeddling in these matters….
Batley, in the position in which he was, and knowing the duty of the Earl of Mornington, ought to have taken care not to do any acts, in violation of the order of the Court."
In Seaward v Paterson [1897] 1 Ch. 545 the plaintiff obtained an injunction restraining the defendant, who was his tenant, from interfering with the quiet enjoyment of the plaintiff and other tenants living in the vicinity of the demised premises. Once again the injunction was a permanent injunction. The plaintiff successfully moved to commit for contempt one Murray who had assisted in the holding of a boxing match on the premises. On appeal the order was upheld. The basis of Murray's liability was stated by each of the judges to be the aiding and abetting of the breach of the injunction – see pp 544, 557 and 560, but passages in the judgment of Lindley L.J. suggested that there might be a wider principle in play. Thus at p.555 he said:
"A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the order of the Court for the benefit of the person who got it. In the other case the Court will not allow its process to be set at naught and treated with contempt."
Finally, in Z Ltd v A-Z and AA-LL [1982] Q.B. 558 the Court of Appeal had to consider the basis upon which a Bank could be required to freeze the funds of a defendant against whom a Mareva injunction had been ordered. Lord Denning M.R. answered the question at p.574:
"The juristic principle is therefore this: As soon as the bank is given notice of the Mareva injunction, it must freeze the defendant's bank account. It must not allow any drawings to be made on it, neither by cheques drawn before the injunction nor by those drawn after it. The reason is because, if it allowed any such drawings, it would be obstructing the course of justice-as prescribed by the court which granted the injunction-and it would be guilty of a contempt of court.
I have confined my observations to banks and bank accounts. But the same applies to any specific asset held by a bank for safe custody on behalf of the defendant. Be it jewellery, stamps, or anything else. And to any other person who holds any other asset of the defendant. If the asset is covered by the terms of Mareva injunction, that other person must not hand it over to the defendant or do anything to enable him to dispose of it. He must hold it pending further order."
Eveleigh L.J., at p.578 said:
"I think that the following propositions may be stated as to the consequences which ensue when there are acts or omissions which are contrary to the terms of an injunction. (1) The person against whom the order is made will be liable for contempt of court if he acts in breach of the order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he wilfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction.
The first proposition is clear enough. As to the second, however, it was submitted that until the defendant had notice of the injunction nothing done by the bank could amount to contempt of court. Also two opposing views were canvassed (I use this expression as the arguments were not strictly contentious) as to the extent to which mens rea was a necessary ingredient in determining the bank's responsibility to the court.
I will give my reasons for the second proposition and take first the question of prior notice to the defendant. It was argued that the liability of a third party arose because he was treated as aiding and abetting the defendant (i.e. he was an accessory) and as the defendant could himself not be in breach unless he had notice it followed that there was no offence to which the third party could be an accessory. In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of court by himself. It will be conduct which knowingly interferes with the administration of justice causing the order of the court to be thwarted."
Kerr L.J. at p.586 remarked that all third parties were bound by the terms of a Mareva injunction as soon as they had notice of it without exploring the jurisprudential basis for this.
Returning to Spycatcher, Sir John Donaldson at p.367 relied on Wellesley v Earl of Mornington in support of the general proposition that those who interfere with the due administration of justice may be liable to be proceeded against on that account. Lloyd L.J. at p.377 thought all three cases "decided, and decided only, that a person may be liable in contempt if, with knowledge of the order, he aids and abets a breach of the order by the person enjoined". Balcombe L.J. at pp.384-5 was of the same view. He added:
"There is no English authority which establishes that it is a contempt of court, in the sense of knowingly interfering with the course of justice, for a person who is not prohibited by an order to do something which is forbidden by the order, unless he is "aiding and abetting" the person named in the order."
It is clear from the judgments of all three members of the Court of Appeal that the reason why they found that a third party could be in contempt for publishing matter the subject of an interlocutory injunction was the very fact that the injunction was interlocutory. The gravamen of the offence was knowing interference with the manner in which the Court had ordered that the trial process should be conducted.
Thus Sir John Donaldson observed at p.370:
"Knowledge of how the court is administering, or intends to administer, justice is of the essence of the unlawfulness of conduct which interferes with that administration, whether or not that conduct consists of disobedience to an order."
At p.373 he added:
"Here the newspapers without doubt have interfered with the administration of justice by rendering the trial of the government's claim against the Guardian and the Observer less effective."
At p.375 he summarised his conclusions as follows:
"I can summarise the position very shortly. (1) Confidential information, whatever its nature - personal, financial, technical or security - has one essential common characteristic. It is irremediably damaged in its confidential character by every publication and the more widespread the publication, the greater the damage. (2) If a prima facie claim to confidentiality can be established, but this is opposed by a claim of a right to publish, whether on grounds of the public interest or otherwise, the opposing and wholly inconsistent claims must be evaluated and balanced the one against the other. (3) The public interest in ensuring that disputes are resolved justly and by due process of law may require a different balance to be struck at different stages. Thus, pending the trial of the action, the balance will normally come down in favour of preserving confidentiality, for the very obvious reason that, if this is not done and publication is permitted, there will be nothing left to have a trial about. (4) It is for the courts, and not for either of the opposing parties, to decide where, in the public interest, that balance lies. (5) Third parties - strangers to the action - who know that the court has made orders or accepted undertakings designed to protect the confidentiality of the information pending the trial, commit a serious offence against justice itself if they take action which will damage or destroy the confidentiality which the court is seeking to protect and so render the due process of law ineffectual. (6) If such third parties, having a legitimate interest in so doing wish to contest the court's decision to protect the confidentiality of the information on any grounds, including in particular that they have special rights or interests of which account has not been taken, they should apply to the court which will hear them and make any modification of its orders which may be appropriate. This is a well-established procedure which works speedily and well in the context of ex parte orders, such as those made in the exercise of the Mareva and Anton Piller jurisdictions. Similarly they should apply to the court if they have doubts whether the action which they contemplate taking is lawful. (7) It is for the courts, and not for third parties, to decide whether, balancing competing public and private interests including those of the third parties, confidentiality should continue to be preserved at any particular time."
Lloyd L.J. at p.378 held:
"But the question here is not whether a third party is bound by the injunction, but whether he can be liable for contempt even though he is not bound by the injunction. He cannot be liable in contempt for breach of an order to which he is not a party; nor, on the facts of the present case, could the respondents be liable for aiding and abetting a breach. But it does not follow that they may not be liable for interfering with the course of justice.
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 proceedings. 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."
At p.380 he added:
"If a third party with knowledge of such an order does something which disables the court from conducting the case in the intended manner, then I see no reason why that should not be regarded as an ordinary interference with the process of justice. The third party would be liable for contempt, subject to proof of mens rea, not because he is in breach of the order, but because he has prevented the court from conducting the proceedings in accordance with its intention."
Balcombe L.J., at p.383, after referring to the preliminary point, as set out at paragraph 47 above, added:
"In the course of the argument before us this preliminary point was refined in two particular respects. (i) It was taken to relate only to a case where the injunction in question is designed to preserve the subject matter of the action-in this case confidential information-pending the trial, and the nature of the subject matter is such that, if the injunction is broken, the subject matter will have ceased to exists, thereby rendering any trial between the parties pointless. (ii) The question was modified so as to ask whether such a publication was capable of constituting a criminal contempt of court, it being accepted by the parties that even if the publication was capable of being contempt of court, it would not be such unless the necessary element of intent were present."
He expressed the view at p.389 that the court had jurisdiction to grant an injunction binding the world at large in order to preserve the subject matter of an action pending trial.
Leave to appeal to the House of Lords was refused on the ground that the facts should be established before the law received consideration by the House of Lords. Findings of contempt were, in due course made by Morritt J. at first instance and by the Court of Appeal. The decision of the Court of Appeal is not reported, but is of significance in the present context because issues of 'actus reus' and 'mens rea' were canvassed in a manner that was not to be repeated in the House of Lords. Before turning to those issues, however, I propose to move on to the decision of the House of Lords, for that was essentially concerned with an attack on the decision of the Court of Appeal on the preliminary point of law.
The vital issue
When considering the speeches in the House of Lords it is important to bear in mind the question that lies at the heart of this appeal. I would define that issue as follows.
Where a Court orders that specified material is not to be published, will a third party who, with knowledge of the Order, publishes the specified material automatically commit a contempt of Court, or will contempt only occur if the third party thereby knowingly defeats the purpose for which the Order was made?
To answer that question it is necessary to identify the reason for the finding of contempt made by their Lordships.
The decision of the House of Lords
In the House of Lords the appellants conceded that they had had 'mens rea'. By this I understand that they conceded that they were aware that they were doing precisely what the injunctions had prohibited the defendants from doing, and thus were deemed to have intended that result. The issue was whether this action constituted the 'actus reus' of contempt. The appellants' argument rested, essentially, on the proposition that it was an established principle of English law that an injunction did not affect a third party unless it could be shown that he had aided and abetted a breach of the injunction by the defendant who was enjoined.
Lord Keith did not make an independent speech, but concurred in the speeches of the other members of the Committee.
Lord Brandon founded his decision very largely on the cases of Wellesley v Earl of Mornington, Seaward v Paterson and Z Ltd v A-Z and AA-LL. The conclusion that he drew from these cases appears at p.206:
"Suppose that there is an action between A and B in which B claims, but A disputes, that B is entitled to demolish A's house and that in that action the court grants A an interlocutory injunction restraining B from demolishing A's house pending the trial of the action. Suppose further that C, of his own volition and in no way aiding or abetting B, himself demolishes A's house while the action between A and B is still pending. On those facts C would, in my opinion, be committing a contempt of court, because he would be knowingly impeding or interfering with the administration of justice by the court in the action between A and B.
These examples of case 2 show that the test for deciding whether C has committed a contempt of court is whether C has by his conduct knowingly impeded or interfered with the administration of justice by the court in the action between A and B. That was the test applied in each of the three authorities referred to above. It might perhaps appear that, since each authority was concerned with C aiding and abetting the breach of an injunction granted against B in an action between A and B to which C was not a party, that such aiding and abetting by C is the only kind of conduct on his part which can constitute a contempt of court by him. In my opinion, however, that is not the right conclusion to be reached from those authorities. The ground of decision in each of them was that the knowing impedance of and interference by C with the administration of justice by the court in the action between A and B, to which C was not a party, was a contempt of court. It was incidental only that the form of conduct which was held to constitute contempt in the three cases concerned was the aiding and abetting of breaches by B of an injunction obtained against him by A.
It seems to me, as a matter of principle that, if C's conduct, in knowingly doing acts which would, if done by B, be a breach of the injunction against him, results in impedance to or interference with the administration of justice by the court in the action between A and B, then, so far as the question of C's conduct being contempt of court is concerned, it cannot make any difference whether such conduct takes the form of aiding and abetting B on the one hand or acting solely of his own volition on the other. "
I would observe that although Lord Brandon takes as his example an interlocutory injunction, his analysis would seem applicable in principle to the situation where a third party defeats the object of the litigation by doing that which the Court has expressly forbidden by final injunction at the end of the action. Furthermore, two of the three cases upon which Lord Brandon relied were cases of final injunctions. Yet Lord Brandon went on to make it plain at p.207 that the defendants had committed the act of contempt because they had, by making public that which the court had ordered should remain private, nullified the purpose of the ongoing trial.
Lord Ackner at pp.212-4 also considered that both Wellesley v Earl of Mornington and Seaward v Paterson were examples of contempt of court consisting of interference with the course of justice, rather than cases where liability lay simply for aiding and abetting the breach of an injunction by a third party. Lord Ackner in his turn made no reference to the fact that these were cases of final injunctions. He went on to place particular reliance on Z Ltd v A-Z and AA-LL. It is implicit in his judgment, having particular regard to the following passage at p.211, that he also considered that it was interference with pending proceedings that was the essence of the contempt.
"In this brief statement of the essential facts it would seem to me to be a remarkable lacuna in the law of contempt of court, its very function being to prevent interference with the course of justice, if it provided no remedy to deal with the situation which I have described. Whatever would be the point of a court making an order designed to preserve the confidentiality of material, the subject matter of a dispute between A and B, pending the trial of the action, if at the whim of C, the protection afford by the court by its order could be totally dissipated? How then do the appellants seek to justify the existence of what would be a most anomalous situation?"
While Lord Brandon adopted an example of a contempt that involved an interlocutory injunction, Lord Oliver chose as his example a situation that involved the frustration of a final order – see p.219. He went on to cite as further examples of such contempt Wellesley v Earl of Mornington, Seaward v Paterson and Z Ltd v A-Z and AA-LL. He also made no reference to the fact that the first two of these cases involved final orders.
Subsequently, however, Lord Oliver at p.224 made it plain that, on the facts of the case, the act of contempt consisted of conduct which prevented the issue between the plaintiff and the defendant being properly and fairly tried:
"If the court has taken into its hands the conduct of the matter to the extent of ordering the interim preservation of the interest of the plaintiff so that the issue between him and the defendant can be properly and fairly tried, it has to be accepted that that is what the court had determined that the interests of justice require. The gratuitous intervention of a third party intended to result in that purpose being frustrated and the outcome of the trial prejudiced must manifestly interfere with and obstruct what the court has determined to be the interests of justice. Those interests are not dependent upon the scope of the order."
Lord Jauncey also referred to the triumvirate of cases mentioned above. He went on to say at p.229 to 230:
"My Lords in none of these cases, nor in any other case cited by the appellants, is it stated that in relation to a court order a third party can only be liable for contempt of court if he aids and abets a person named therein to breach it. In all these cases, however, it is made clear that a third party's liability depends upon the fact that he has interfered with the course of justice; indeed nowhere more clearly than by Lindley L J in Seaward v Paterson [1897] 1 Ch. 545. Given that interference with the course of justice is the basis of a third party's liability for contempt in the foregoing circumstances I can see no reason in principle for distinguishing the position of a third party who aids and abets a breach of the order and one who intends to and does achieve a similar interference with or frustration of the order by means which do not involve assisting the person named therein to breach it. If a third party by such independent act renders nugatory a court order of whose existence he is aware, why should he not be liable for contempt as he would be if he had actively assisted the named person to defeat the operation of the order? In both cases the third party has, with knowledge, interfered with the course of justice, and in both cases he should in my view by subject to the same liability."
I can see no basis for restricting these observations, made about a case involving a final order, to the position where the court's order is interlocutory. In a passage on p.231, however, Lord Jauncey appeared to suggest that this type of contempt of court was restricted to the interlocutory situation.
"I turn to consider whether there is any reason why established principle should not be applied to the situation in this case. I do not accept the proposition that to apply established principles in the foregoing circumstances would effectively be to convert every injunction from an order in personam to an order contra mundum. That proposition ignores the distinction between the breach of an order by the person named therein and interference with the course of justice resulting from a frustration of the order by the third party. Every injunction is not capable of being frustrated by a third party stranger. For example, A obtains an injunction against B trespassing on his land. C's subsequent trespass on A's land, in knowledge of that order, in no way impairs the effect of the order against B. It can only be in a limited type of case that independent action by a third party will have the effect of interfering with the operation of an order to which he is not a party. Cases involving confidential information are obvious examples. If B is restrained pending the trial of an action by A from publishing or otherwise communicating information which is claimed by A to be confidential and his property, it is obvious that publication of the information by C before the trial is likely to render the restraining order nugatory and proceedings abortive. While in some cases B or C might be members of the media, they might equally well be private individuals as, for example, in a case involving the disclosure of trade secrets by an employee, past or present, to his employer's trade rivals."
What is the ratio?
I asked Mr Crow whether the principle upon which he relied in this case was restricted to the publication of material which was subject to an interlocutory injunction, or whether it extended also to the situation where a court had granted a final injunction against publication. With a degree of hesitation he plumped for the latter. I am not surprised that he did. All too often in these cases, the claimant's object is achieved when an interlocutory injunction is granted and the stage of a substantive hearing is never reached. It seems to me that in ordering an interim injunction in a case such as this the primary object of the court is to prevent what will arguably constitute a legal wrong for which damages will not be an adequate remedy. The party against whom the injunction is granted will be in criminal contempt if he breaches the injunction. The effect and, so it seems to me, the primary purpose, of the third party contempt jurisdiction is 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 surely is 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.
Some of the reasoning of the House of Lords might appear to support the following principle:
Where the Court makes an order prohibiting a defendant from infringing a right, or potential right, of the plaintiff on the ground that damages will not be an adequate remedy, the Court thereby rules on the requirement of justice. Any third party who, with knowledge of the injunction, intentionally destroys the plaintiff's right, thereby interferes with the ends of justice and commits a contempt of court.
That principle, however, would run foul of the established principle of English law that an injunction does not bind a third party, a principle acknowledged by both the Court of Appeal and the House of Lords in Spycatcher. For this reason the House of Lords judgment cannot support a principle of that width.
I have some difficulty with the reliance placed by the House of Lords on cases where contempt was established in relation to final orders. Notwithstanding these problems, I have reached the following conclusions in relation to the basis of the House of Lords' finding that contempt of court was established in Spycatcher.
a) Intentional interference with the manner in which a judge is conducting a trial can amount to a contempt of court.
b) When in the course of a trial a judge makes an order with the purpose of furthering some aspect of the conduct of the trial, a third party who, with knowledge of that purpose, intentionally acts in such a way as to defeat that purpose can be in contempt of court.
c) When a plaintiff brings an action to preserve an alleged right of confidentiality in information and the court makes an order that the information is not to be published pending trial, the purpose of the order is to protect the confidentiality of the information pending trial. A third party who, with knowledge of the order, publishes the information and thereby destroys its confidentiality will commit a contempt of court. The contempt is committed not because the third party is in breach of the order – the order does not bind the third party. The contempt is committed because the purpose of the judge in making the order is intentionally frustrated with the consequence that the conduct of the trial is disrupted.
The speeches of the House of Lords make it plain that the offence lies not simply in the commission of the act prohibited by the Order, but in the effect that the act has of interfering with the conduct of the trial.
The purpose of the Order
In the course of his speech in Spycatcher, Lord Oliver had this to say at pages 222-3 about the need to show interference with the purpose for which the Court makes an order.
"For my part, I doubt the value of cataloguing a series of hypothetical circumstances which can do no more than serve as illustrations of conduct which can or may fall on one side of the line or the other. I think that a more dependable guide is to be found in the way in which the gravamen of the offence is expressed in the respondent's case and which, I think, must be based upon the speeches in this House in the Leveller Magazine case [1979] A.C. 440: "The publication …. frustrates, thwarts, or subverts the purpose of the court's order and thereby interferes with the due administration of justice in the particular action". "Purpose" in this context, refers, of course, not to the litigant's purpose in obtaining the order or in fighting the action but to the purpose which, in seeking to administer justice between the parties in the particular litigation of which it had become seized, the court was intending to fulfil.
Where there is room for genuine doubt about what the court's purpose is, then the party charged with contempt is likely to escape liability, not because of failure to prove the actus reus but for want of the necessary mens rea, for an intention to frustrate the purpose of the court would be difficult to establish if the purpose itself was not either known or obvious."
It was on these passages that Mr Price founded his arguments on the 'actus reus' and 'mens rea' of the offence in the present case. I can summarise his arguments as follows.
The appellant's case on the purpose of the Court's Orders
Mr Price argued that the Crown's right against Mr Shayler and Associated Newspapers was to restrain publication of information which was likely to damage national security. It followed that in seeking interlocutory injunctions the Crown's purpose was to prevent, pending the trial, the publication of information which would be damaging to national security. This purpose must equally have been that of the Court in granting the injunctions. The Attorney General had not established that the publication complained of had damaged national security. This meant that he had failed to prove that the appellant committed the 'actus reus' of the offence. Furthermore, it was the unchallenged evidence of the appellant that he had been anxious to publish nothing that would harm national security and that he had not believed that the publication in question would do so. Thus the 'mens rea' of the offence was not made out. This argument was very similar to that advanced in the Court of Appeal in Spycatcher.
'Actus reus' and 'mens rea' in Spycatcher
In the contempt proceedings in the Court of Appeal the appellants challenged the finding both that they had committed the actus reus of contempt and that they had had the mens rea.
Actus reus
As to the actus reus, it was contended (1) that the actus reus would not be committed unless, at the end of the day, the publications complained of had actually prejudiced the outcome of the trial; (2) (in the case of one appellant), the publication had no adverse effect because the matter published was already in the public domain at the time of publication. Fox L.J. held (transcript p.10) that the purpose of the interlocutory injunctions was "to keep the Wright material out of the public domain pending trial" in order to prevent putting a fair trial at risk. He rejected, on the facts, the appellant's submission that the material had already entered the public domain by the time that the offending publications took place.
Ralph Gibson L.J. agreed. He held at p.57 that the actus reus consisted of the destruction, by publication, of the subject matter of the action, in whole or in part, because this affected the prima facie right of the claimant and interfered with the administration of justice. At p.60 he made this important observation:
"It seems to me that the circumstances existing at the date of a third party's publication might be such that the court would hold that the publication could not have the effect of destroying the subject matter of the pending proceedings, in whole or in part, even though the publication consists of information of which publication was prohibited by the injunction. There might have been for example, such prior widespread publication in this country of the whole of the relevant information that discharge of the injunction by the courts would be inevitable as soon as application to that effect could be got before the court."
Nicholls L.J. at p.76 held that the purpose of the injunctions was that the material to which they related should remain unpublished until trial. He added at p.82:
"I accept that, if the "Spycatcher" book or extracts from it had already been made public by others, not acting in collusion with the "Sunday Times", before 12th July to such an extent that the object of the Millett injunctions had already effectively been frustrated, then the "Sunday Times" publication on 12th July would not have constituted a contempt. The alleged vice of the "Sunday Times" publication was that the extracts from "Spycatcher", set out or summarised in the article, defeated, to that extent, the object of the Millett injunctions. But if the object sought to be achieved by the non-publication orders had already been thwarted by massive publication by others, the "Sunday Times" publication would have been free from that view."
He held, however, that the subject matter of the publication had not entered the public domain at the time of publication, so that the actus reus of contempt was made out.
These passages make it plain that the actus reus of contempt was not the publication of the material covered by the Order, but the destruction of the confidentiality of the material which it had been the purpose of the injunction to preserve.
Mens rea
Similar arguments were advanced on behalf of both appellants. They had not appreciated that they were affected by the orders that had been made. Nor had they appreciated that their conduct might interfere with the administration of justice. Their only intention in making the publications in question had been to inform their readers of what Mr Wright was saying in his book. The Court of appeal rejected these arguments. The appellants had been aware of the terms of the interlocutory injunctions. They must have appreciated that the purpose of those injunctions was to preserve the confidentiality of the Wright material pending trial. They knew that their actions would defeat that purpose. This was enough, according to established principles of criminal law, to constitute the intention to produce that result. The intention to defeat the purpose that the Court had had in granting the injunctions constituted mens rea.
The nature of the contempt alleged against the appellant
The publication that forms the subject matter of the present contempt was of material written specifically for publication in Punch by Mr Shayler. In these circumstances, it seemed to us that it would have been open to the Attorney-General to proceed against Punch and the appellant on the basis that they had aided and abetted a breach by Mr Shayler of the injunction granted against him. The Attorney-General did not, however, adopt this approach. He relied upon the Spycatcher principle and urged that Punch and the appellant had intentionally interfered with the course of justice by defeating the purpose for which the injunctions had been ordered.
The purpose of the Injunctions
It has never been disputed that the purpose of the Attorney General in commencing the substantive proceedings and obtaining the interlocutory injunctions was to prevent the publication of material that might be prejudicial to national security. I consider that it is proper to infer that Hooper J. had the same ultimate purpose in granting the interlocutory injunctions. The basis of the Crown's claim was the right to restrain the publication of material that was confidential and whose disclosure would be prejudicial to the national interest. I consider that one must proceed on the assumption that Hooper J. intended to protect the Crown's legal entitlement. At the interlocutory stage I believe that the correct approach is 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. The terms of the interlocutory injunction that he granted against Mr Shayler himself was appropriate for this purpose in that the restraint was restricted to "information obtained by him in the course of or by virtue of his employment ….which related to, or might be construed as relating to, the Security Service or its membership or activities or to security or intelligence activities generally."
The terms of the injunction against Associated Newspapers, by virtue of the addition of the words "or otherwise", extended the scope of the injunction beyond material that could even arguably be made the subject of a final injunction. I do not agree with Silber J. that the purpose of this injunction extended to the restraint of publication of material which could not possibly be detrimental to the national interest and, in particular, material that had been previously published. That conclusion overlooks the significance of the proviso that the injunction would not apply to:
"Any information in respect of which the [Attorney General] (whether at the request of the Defendants or any of them or any third party, or of his own motion) makes a statement in writing (either personally or by the Treasury Solicitor) that such information is not information in respect of which the Crown seeks to restrain publication."
It seems to me that this proviso to the injunction was intended to provide a mechanism which would distinguish between material disclosure of which would, or might, damage the national interest and material which would not. I can readily appreciate the attraction of such an arrangement as between the parties to an action but a critical issue raised by this appeal is the effect, if any, that such a mechanism has on third parties who are not subject to the order.
It is the Respondent's case that the effect of the injunctions was that no newspaper could knowingly publish any matter that fell within the wide terms of the Associated Newspapers injunction without first obtaining clearance from himself or from the Court. In my judgment there are a number of objections to this contention.
It subjects the press to the censorship of the Attorney General. I would comment at this point that the role of the Attorney General in the present proceedings is far from clear. In the Spycatcher contempt proceedings, Sir John Donaldson M.R. observed at p. 362 that:
"Although it happens to be the case that the conduct complained of here is said to impinge upon the trial of an action in which the Attorney-General, acting as a minister and on behalf of the Crown, is the plaintiff, he brings the present proceedings in a quite different capacity independently of the government of the day, namely in that which I have described as "guardian of the public interest in the due administration of justice".
In the light of the fact that there has been a change in the holder of the office of Attorney-General during the course of the proceedings, it should perhaps also be pointed out that they are brought not by an individual but by "the Attorney-General." Consistently with acting in this capacity, the Attorney-General's complaint is not that the respondent newspapers and their editors have breached or assisted in the breach of the orders which he obtained in the Guardian and Observer actions, but that the conduct complained of "was intended or calculated to impede, obstruct or prejudice the administration of justice"."
In the House of Lords, Lord Ackner, at p 209, remarked that the Attorney General appeared as respondent "in his capacity as guardian of the public interest in the due administration of justice". Yet Lord Oliver, at p.226 remarked:
"The respondent to this appeal is the Attorney-General, but it has to be stressed as was emphasised in both the courts below, that in this case he was in no different position from any other private citizen entitled to preserve the sanctity of confidential information."
I did not ask Mr Crow what hat the Attorney General was wearing in this case, but I suspect that he might have had some difficulty in answering that question.
Whatever hat he was wearing, I have difficulty with the proposition that it was open to the Court to render it a criminal offence for a newspaper to fail to obtain clearance from him before publishing material to which there might manifestly be not be the slightest ground of objection.
Such a proposition results in the imposition of a restriction on freedom of the press that is disproportionate to any public interest and thus in breach of Article 10 of the European Convention on Human Rights.
Such a proposition cannot be reconciled with the duty imposed on the Court by Section 12(3) of the Human Rights Act 1988.
Such a proposition extends the law of contempt beyond the principle that it is an offence intentionally to interfere with the course of justice. Publication of manifestly innocuous material without clearance from the Attorney General would in no way interfere with the future conduct of the action.
For these reasons I have reached the conclusion that Hooper J's orders did not have the effect that any newspaper which knowingly published anything that fell within the terms of the order and that had not been cleared by the Attorney General would be in contempt of court. The appellant and Punch published a number of articles written by Mr Shayler that fell within the terms of the order. No objection was taken to them by the Attorney General. It must be doubted whether they posed any threat to national security or impediment to the future course of the proceedings between the Attorney General and the defendants to the actions. If they did not, I do not see how their publication can have placed Punch and the appellant in contempt of court.
Actus reus
When considering whether the publication complained of amounted to the actus reus of contempt of court, Silber J. broke it down into two components. One consisted of material that had been previously published. As to this Silber J. held that it was the actus reus of contempt of court to publish the material because it was the purpose of the court in granting the injunction that such material should not be published. For the reasons that I have given, I do not agree with this conclusion. Re-publication of material which had already entered the public domain did not offend against the purpose of the court when granting the injunction. Such re-publication was not the actus reus of contempt of court.
The more difficult question relates to :
"…three significant areas in which the claimants contend that there had been no prior publication and this claim does not appear to be disputed. They related first to the identity of the two suspects in relation to the Bishopsgate bombing, second to further information about one of the suspects and third to the way in which the Security Service surveillance operated." (Judgment paragraph 58)
Silber J. found at paragraph 60 that publication of this material caused damage and that the Attorney-General would not have consented to its publication. He also found at paragraph 63 that it was noteworthy that no evidence was adduced which showed that national security was in fact damaged by the publication. In my judgment, having regard to these findings, Silber J. properly found, under the Spycatcher principle, that publication of this material constituted the actus reus of contempt of court. It defeated the purpose of the injunction which was to preserve until trial the confidentiality of material whose disclosure arguably posed a risk of damaging national security.
Mens rea
It was the appellant's evidence that he was anxious not to publish any material which would harm national security and that he did not believe that the material which he published carried the risk of causing such harm. In my judgment this evidence focussed on the correct issue of fact so far as mens rea was concerned. To establish contempt, the Attorney General needed to demonstrate knowledge that the publication would interfere with the course of justice by defeating the purpose underlying the injunctions. The Attorney General did not however set out to establish this. He set out simply to prove that the appellant knew that the publication was one which the defendants to the action were enjoined from making under the terms of the injunctions. For the reasons that I have given, this did not go far enough. When dealing with mens rea, the Judge identified 'six factors' that satisfied him that the appellant 'knew that the publication of the article was a breach of the injunctions and that he intended to act in breach' of them. The fifth of these was as follows:
"Fifth, the second defendant must have appreciated that the disclosure of the three matters, which had not been published before, was a breach of the injunctions. These matters set out in paragraph 58 above and relating to the identity of the two suspects responsible for the Bishopsgate bombing, further information about one of them and the way in which the security service operated were clearly within the injunction and potentially damaging. I cannot accept that that the second defendant did not appreciate and foresee that by publishing this material, he would be in breach of the injunctions."
I have considered the transcript of the cross-examination of the appellant to see whether it lays the ground for a finding that the appellant must have appreciated that these three matters had not been published before and that publication of them might arguably be a threat to national security. In my judgment it did not. The appellant said that he thought that the Treasury Solicitor was delaying his approval of the publication in order to stifle an article that would be embarrassing to the Security Services. He complained that he had not been told that there was objection to the publication of the names of the two suspects. It was not established to what extent the appellant knew that the article contained information not previously published. Indeed, the cross-examination included the following passage:
"Q. But, Mr Steen, if these issues had been canvassed in the press over the previous seven years how can you really have thought that the Treasury Solicitor was trying to stifle the entire article?
A. Because I was submitting an article that would be published within days of embarrassing publicity for the security services and for the Treasury Solicitor.
Q. Re-published is all. The Express had written a very similar article in April of the same year, hadn't it?
A. Yes.
Q. So you were simply rehashing material that had already been out in the public?
A. Well, sorry, I don't see the point.
Q. What I'm asking you, Mr Steen, is why you thought it was necessary to publish on 26^th without having received an answer from the Treasury Solicitor? There was no urgency for you to publish was there?
A. I was led to believe that they would be coming back to me on Monday morning anyway, but if you're asking me if it was a stifling exercise, yes, I did consider it was."
The Judge, in the passage from his judgment quoted above, did not expressly state that the appellant knew that the three matters referred to were unpublished and potentially damaging. Insofar as that finding is implicit in his comments, I do not consider that the evidence justified the finding.
In summary I accept Mr Price's submission that the Attorney General failed to prove the element of mens rea necessary to establish that the appellant was in contempt of court, and for this reason I would allow this appeal.
Where does this leave the law?
The principle applied by the House of Lords when finding that contempt of court was established in the Spycatcher case was a broad one. Yet I am not aware that that principle has been invoked since then in any case other than one involving an injunction restraining a threatened breach of confidence. More particularly the Spycatcher jurisdiction has been invoked where the national security is alleged to be at risk.
In the Spycatcher injunction proceedings Scott J. observed ([1990] 1 A.C. at 144):
"It is, in my judgment, unacceptable that newspapers and their editors should be judges in their own cause of the restraints on freedom of the press that the national security may require. It is equally unacceptable that the government's assertion of what national security requires should suffice to decide the limitations that must be imposed on freedom of speech or of the press. I repeat that, in my judgment, there is a balance to be struck and the courts must strike it."
Sir John Donaldson M.R. added this comment at p.177:
"Finally, I would agree with Lord Widgery C.J. in Attorney-General v. Jonathan Cape Ltd [1976] Q.B. 752, 769 that 'the court must have power to deal with publication which threatens national security.' In other words, the Crown, as the embodiment of the nation as a whole, has an enforceable right to the maintenance of confidentiality arising out of the very nature of such information and the consequences of its disclosure without regard to any contract binding the confidant to any relationship between him and the Crown or to the Official Secrets Act 1911 or any other legislative provision. This special right in the Crown is not relied upon in the present proceedings, but it is right that it should be noted and affirmed."
It may be that where national security is at risk it should be open to the Crown to obtain an injunction binding on all the world. Balcombe L.J. expressed a view to this effect. That is for future debate. It seems to me, however, that the well established liability in contempt for aiding and abetting breach of an injunction by a defendant goes a long way towards meeting the needs of national security in a case such as the present.
Where someone who has served in the Security Service threatens to disclose confidential information that is damaging to national security, an injunction can be obtained against that person restraining the disclosure of such information. If a third party assists the confidant to breach the injunction by publishing information supplied by the confidant, whether directly or indirectly, the third party will be in contempt of court for aiding and abetting the breach of the court order by the confidant. It will not be often that a third party comes into possession of information that has emanated from the confidant and has not yet entered the public domain, but where publication is not one to which the confidant is party.
This appeal demonstrates the limitations of the Spycatcher jurisdiction. It is not easy to draft an interlocutory injunction in terms that go no wider than is necessary to restrain the publication of material in respect of which the claimant has an arguable claim to confidentiality. It is, however, necessary to do this if the terms of the injunction are to equate with the purpose for which the injunction is ordered, namely the preservation of the confidentiality of the material in question. Even then that purpose may be destroyed if, with the passage of time, the information in question is brought within the public domain. Third parties are not directly bound by the terms of such an injunction. If they are to be held liable for the contempt of interfering with the course of justice it must be demonstrated that the disclosure made by them defeated, in whole or in part, the court's purpose in granting the injunction and that they appreciated that it would do so. This will be particularly difficult to demonstrate if the court adopts the approach of ordering injunctions in wide terms, but delegating to the claimant the role of determining what is and what is not to be restrained from publication.
For the reasons that I have given, I would allow this appeal.

SIMON BROWN LJ

I have read and re-read the Master of the Rolls' draft judgment with growing admiration and a recognition of the great contribution it makes to the jurisprudence in this important and difficult area of contempt law. With much of My Lord's analysis I respectfully agree. Alas, however, I have the misfortune to disagree with his final conclusion on the present appeal. As I understand My Lord's judgment, he regards Mr Steen as plainly guilty of contempt for having aided and abetted Mr Shayler's breach of the injunction against him - a contempt not in fact alleged - but not guilty of the Spycatcher form of contempt which was alleged. Whilst I entirely agree that the simpler and better course here would have been to allege contempt on an aiding and abetting basis, I for my part believe that Silber J was correct to hold Mr Steen in contempt on the basis alleged, albeit I would have rested that conclusion on a somewhat narrower basis than did the Judge below.
I gratefully take the facts and arguments as set out in My Lord's judgment and can accordingly indicate the basis of my own limited dissent really very shortly. First let me briefly summarise those of the Master of the Rolls' central conclusions with which I respectfully agree. First, I agree with his analysis (in paragraph 87 of his judgment) of the ratio to be derived from their Lordships' speeches in the House of Lords in Spycatcher of the finding of contempt of court against The Sunday Times: the contemnors' mens rea consisted of their intention to frustrate the court's purpose in making the interlocutory order forbidding publication of the relevant information pending trial, namely the interim protection of its confidentiality. Whether or not the ratio must logically stretch to encompass final orders too (as appears implicit in certain of the speeches) can be left over for decision in another case: the present injunctions were interlocutory.
Secondly, I agree with My Lord's conclusion (in paragraph 112 of his judgment) that re-publication of material in the present case which had already entered the public domain did not offend the court's purpose when granting the injunction and did not, therefore, constitute the actus reus of contempt. I would note only that, for the material to have entered the public domain, it would have had to be subject to extensive and not merely cursory publication - see the judgments of the Court of Appeal in the Spycatcher contempt proceedings, referred to in paragraphs 94 and 95 of My Lord's judgment.
Third, I agree with My Lord's conclusion (in paragraphs 100 and 114 of his judgment) that the publication complained of constituted the actus reus of contempt, namely the defeat of the court's purpose in having granted these injunctions which was to preserve until trial the confidentiality of material whose disclosure "arguably posed a risk of damaging national security".
The critical question, therefore, with regard to mens rea was whether Mr Steen knew that such had been the court's purpose in granting the injunctions and that his publication would defeat it. My Lord concludes that that was something the Attorney General never even set out to establish and that he instead contented himself merely with proving that Mr Steen knew the publication to be one which Associated Newspapers for their part were enjoined from making. This is the narrow but ultimately critical point at which I depart from My Lord's reasoning. As paragraph 23 of My Lord's judgment notes, the Attorney General's case was not only that the purpose of the injunctions was to prevent publication until the court could rule on whether or not publication was lawful (which I take to include preserving until trial the confidentiality of material whose disclosure arguably threatened national security) but that such purpose "appeared clearly from their express terms". The object of the first proviso to these injunctions - the provision for written clearance by the Attorney General in respect of any particular information upon anyone's application - must surely have been obvious. It was a mechanism whereby national security could be safeguarded consistently with the tempering of an otherwise absolute pre-trial ban on publication. I accept that the Attorney General could not properly have withheld consent to the publication of "manifestly innocuous material" (see paragraph 110 of My Lord's judgment) unless perhaps he had sought to justify this on the basis that no one should be permitted to aid and abet a Crown servant breach his personal obligation of confidentiality (see Lord Keith's speech in Spycatcher, cited in paragraph 41 of My Lord's judgment, with regard to the position arising where the third party is not "unconnected with the particular confidant").
I cannot accept, however, that a provision of this character is intrinsically objectionable, nor that the Attorney General could not properly have refused his consent to the three specific aspects of this publication identified in paragraph 113 of My Lord's judgment (citing paragraph 58 of the judgment below) as at the very least putting national security at risk. True it may well be, as Mr Steen protests, that he had no intention of endangering national security and did not think he was doing so. That, however, is not the point. As he himself candidly admitted, he was not qualified to make that kind of judgment. If, as I would hold, he cannot have failed to appreciate that it was for this very reason that, pending a trial at which the court could have ruled on the substantive question, there was a bar on publication unless only the Attorney General consented to it, then he was guilty of the contempt alleged against him: he intended to take upon himself the responsibility for determining whether national security was risked and thereby he thwarted the court's intention.
I would have dismissed the appeal.
LONGMORE LJ
It has long been the law that if an order of the court is made in proceedings between two parties, a third party who aids or assists either party in the breach of such an order will be liable for contempt of court. It is, on the face of it, not so obvious that a person can be in contempt of court if, apart from any aiding and abetting, he intentionally does an act which frustrates, thwarts or subverts the purpose of an order of the court made in proceedings between two other parties. Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 did, however, hold that a third party can be in contempt of court in such a case if he knowingly does an act which subverts the purpose of such an order.
For the Attorney-General to invoke this jurisdiction he must prove not only actual subversion of the purpose of the court's order but an intention to subvert that purpose. That presupposes that the third party must know what the purpose of the court order is. As Lord Oliver of Aylverton observed at page 223E:
"Where there is room for genuine doubt about what the court's purpose is, then the party charged with contempt is likely to escape liability, not because of failure to prove the actus reus but for want of the necessary mens rea, for an intention to frustrate the purpose of the court would be difficult to establish if the purpose itself was not either known or obvious."
In the present case the order made by Hooper J against Associated Newspapers by consent was that they were to be restrained until further order from publishing any information obtained by David Shayler in the course of or as a result of his employment as a member of the Security Service, whether in relation to the work of or in support of security or intelligence services or otherwise.
Both this order and the order made by Hooper J against Mr Shayler had a proviso that it did not apply to any information in respect of which the Attorney-General made a statement in writing that such information was not information in respect of which the Crown sought to restrain publication.
It is not easy to say whether the purpose of the order of Hooper J was to restrain until trial the publication of any information originating from Mr Shayler or only to restrain information which endangered national security. It is agreed that any final order could only restrain the latter information but it is argued that the purpose of the interim order pending trial was to prevent publication of any information derived from Mr Shayler until the trial had taken place. I have come to the conclusion that the purpose of the order was to prevent publication, before trial, of any information derived from Mr Shayler which was not already in the public domain.
In these circumstances I agree with Lord Phillips MR that the actus reus of the contempt of court has been committed by Mr Steen but I am not satisfied he had the necessary mens rea. Mr Steen contended that he thought the purpose of the court order was to restrain publication of material dangerous to national security and that he had no intention to publish any such information. In the light of the inclusion of the proviso in the order made against Mr Shayler, I can well understand that Mr Steen might have thought that the purpose of the order was to restrain material dangerous to national security and I do not consider the Attorney-General has, therefore established the necessary mens rea in this case. I too would allow the appeal.