Judgments - Her Majesty's Attorney General (Appellant) v. Punch Limited and another (Respondents)

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    83. I am bound to say that I think that this overstates the case by a very considerable margin. The control of publication is always in the hands of the court. Restraint of publication by the court on grounds of national security is a well established exception to the freedom conferred by article 10. If Mr Shayler or Mr Steen thought that the Attorney-General was withholding his consent to the publication of "manifestly innocuous material" it would have been open to them to apply to the judge under the procedure described by Sir John Donaldson MR in Attorney-General v Newspaper Publishing plc [1988] Ch. 333, 375, which, as he said, "works speedily and well", for a variation of the order.

    84. The reason for the inclusion of the second proviso was in my opinion no more than to assist the defendant and any third parties by providing a quick and inexpensive way of excluding "innocuous material" from the order without requiring them to apply to the court for a variation. It was necessary because, without it, a publication falling within the terms of the order would have been a contempt even if innocuous and even if the Attorney-General had in fact given his consent: see R v Inland Revenue Commissioners, Ex p Kingston Smith [1996] STC 1210, 1217. Without the second proviso, the order would have been more onerous. Obviously it would have been still better if one could have devised a form of injunction which prohibited only the publication of harmful material, allowed the publication of innocuous material and left no room for dispute about the category into which any item of information fell. But I can quite understand that Hooper J felt unable to produce a form of words which would have this effect when applied to a mass of information of which he had no knowledge. In those circumstances it seems to me that the form of order which he made was well within the ambit of his discretion.

    85. I would allow the appeal and restore the decision of Silber J.

LORD HOPE OF CRAIGHEAD

My Lords,

    86. In this case the Attorney General invokes the inherent jurisdiction of the court to ensure the effective administration of justice. The relief which he seeks is punishment of the publisher ("the company") and the editor of "Punch" magazine ("the respondent") for contempt of court. The contempt which they are alleged to have committed was causing an article to be published containing material which the court had by means of interlocutory injunctions made clear that it intended was not to be published. The injunctions were pronounced in proceedings to which neither the company nor the respondent were a party. But that is not an obstacle to a finding that they were in contempt. The Attorney General's contention is that their actions impeded or interfered with the administration of justice by the court in the proceedings in which the orders were made. He says that their actions did so by thwarting or undermining the intended effect of the injunctions.

    87. The essential distinction between the liability of a party to the litigation for contempt of court and that of a third party was explained by Lord Oliver of Aylmerton in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 217F-218B. Where the alleged contemnor is a party to the litigation and bound by the order or is someone acting for him or at his direction, all that has to be proved is that the order was served on that person and that he has done that which the order has prohibited. But where it is alleged that a stranger to the litigation is in contempt the position is different. As Salmon LJ said in Jennison v Baker [1972] 2 QB 52, 61, the public at large no less than the individual litigant have a very real interest in justice being effectively administered. The power to commit for contempt ensures that acts and words tending to obstruct the administration of justice are prohibited. So a stranger is liable for contempt if his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. It has also to be shown there was an intention on his part to interfere with or impede the administration of justice. This is an essential ingredient, and it has to be established to the criminal standard of proof. But the intent need not be stated expressly or admitted by the defendant. As is the case where the question of intention, or mens rea, arises in criminal cases, it can be inferred from all the circumstances including the forseeability of the consequences of the defendant's conduct: Attorney General v Newspaper Publishing plc [1988] Ch 333, 374-375, per Sir John Donaldson MR.

    88. The interlocutory injunctions were pronounced on by Hooper J on 4 September 1997 in proceedings by the Attorney General against, first, David Michael Shayler and, second, Associated Newspapers Limited. Their effect was to continue interlocutory injunctions which had been obtained from Keene J on 30 August 1997. Neither Mr Shayler nor Associated Newspapers appeared when the action came before Hooper J, but solicitors for Associated Newspapers had written a letter consenting to the order which Hooper J subsequently made against them. The two orders were in similar terms, but the order which is most directly in point in this case is that which was pronounced against Associated Newspapers. Hooper J ordered that it 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, the security and intelligence services or otherwise; 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 24 August 1997."

    89. The respondent was the editor of "Punch" when an article containing the relevant material was published in issue 111 of the magazine on 26 July 2000. Neither he nor the company disputed the fact that they were aware of the terms of the interlocutory injunctions. The principal issues at the trial were whether it had been proved to the criminal standard of proof that the actus reus of contempt had been committed by them and, as to mens rea, that the conduct complained of was specifically intended to impede or prejudice the administration of justice.

    90. The trial judge, Silber J, held that both points that had to be established had been proved. He set out his reasons for doing so in a commendably clear and careful judgment. As to the actus reus, he held that it had been proved that the defendants frustrated or thwarted the purpose of the court's order. He said that the purpose of the order was to prevent disclosure of the material covered by the injunctions without the consent of the Attorney-General until after the trial, and that the defendants' conduct had a significant and adverse effect on the administration of justice: para 57. As to mens rea, he observed that the purpose of the court in granting the injunctions was to prevent publication or disclosure of information falling within paragraph 1 of the order but not covered by the provisos: para 76. He said that he was satisfied that the defendants intended to impede or prejudice the administration of justice by thwarting or undermining the intended effect of the injunctions by publishing material which the court had intended by means of the injunctions not to be published pending trial of the action against Mr Shayler and Associated Newspapers: para 78. The company did not appeal against this judgment. But the respondent did so, and his appeal was allowed by the Court of Appeal: [2001] EWCA Civ 403, [2001] QB 1028.

    91. The facts are not now in dispute. But the case has raised two important issues of principle. The first is whether the judge was right to describe the purpose of the injunctions as being to prevent disclosure of the information until after the trial. The second is whether the terms of the injunctions went beyond what was necessary and appropriate, having regard to the purpose for which the orders were made.

The purpose of the injunctions

    92. The respondent's challenge to the judge's decision in the Court of Appeal concentrated on the issue of mens rea. The essence of his defence was that he did not wish to do anything that might damage national security and that he did not believe that the article which he published contained any such information. This defence was rejected by the judge as irrelevant, in view of his finding as to the purpose of the injunctions. The judge held that it was sufficient that his conduct was intended to impede and prejudice the administration of justice by disclosing material which the court intended should not be published until after the trial. The respondent's primary argument in the appeal was that that the judge should have accepted his evidence that he believed that the purpose of the injunctions was to prevent the publication of matter that might be damaging to national security, and that his mistake as to their true purpose meant that he did not have the necessary mens rea when he acted in a way that defeated that purpose.

    93. The Court of Appeal expressed unease about his proceeding on this narrow basis. As Lord Phillips of Worth Matravers MR explained, [2001] QB 1028, 1040H-1041C, para 38:

    "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 the Spycatcher cases: Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109; Attorney General v Newspaper Publishing plc [1988] Ch 333 and Attorney General v Times Newspapers Ltd [1992] 1 AC 191."

At the suggestion of the court a further ground of appeal was added, to the effect that the judge should have held that the purpose of the court in granting the injunctions was 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.

    94. The scope of the appeal having been thus enlarged, Lord Phillips of Worth Matravers MR conducted a detailed examination of the jurisprudence which is to be found in the Spycatcher cases. He then sought to define the issues in the case. He said that 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: [2001] QB 1028, 1044C-D, para 46. He said that the question that lay at the heart of the appeal was whether a third party who, with knowledge of an order that specific material is not to be published, publishes the material automatically commits a contempt of court, or whether he commits a contempt of court only if he thereby knowingly defeats the purpose for which the order was made: p 1051C-D, para 73. I do not think that anything that he said in the course of this part of his judgment is controversial.

    95. I have more difficulty with the conclusion Lord Phillips of Worth Matravers MR reached as to the purpose of the injunctions in the present case. Having examined the speeches in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, he indicated at p 1054E-G, para 84 that he saw no difference in the application of the principle of contempt between material which was subject to an interlocutory injunction and the situation where the court had granted a final injunction against publication. At p 1054F-G he said:

    "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."

He then examined the Spycatcher contempt case, Attorney General v Newspaper Publishing plc, The Times, 28 February 1990, in which Nicholls LJ had held that the purpose of the injunctions was that the material to which they related should remain unpublished until trial. Having done so, he concluded 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: p 1057E, para 97.

    96. At p 1058B-C, para 100 Lord Phillips of Worth Matravers MR said:

    "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."

At p 1060F-G, para 114 he again said that the purpose of the injunction was to preserve until trial the confidentiality of material whose disclosure arguably posed a risk of damaging national security [his emphasis]. At p 1064B-C, para 129 Simon Brown LJ said that he agreed with the conclusion of the Master of the Rolls in paras 100 and 114 of his judgment that the purpose of the injunctions was to preserve until trial the confidentiality of material whose disclosure "arguably posed a risk of damaging national security." At p 1065H, para 137 Longmore LJ said that that the purpose of the order was to prevent publication, before trial, of any information that was not already in the public domain.

    97. Although Simon Brown LJ said that he agreed with Lord Phillips of Worth Matravers MR about the purpose of the injunctions, it is clear that in his dissenting judgment he reached a quite different conclusion on the question of mens rea. The Master of the Rolls said at p 1060H, para 115 that 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 had set out simply to prove that the respondent knew that the publication was one which the defendants to the action were enjoined from making under the terms of the injunctions. This, he said, did not go far enough. There was no basis in the evidence for a finding that the respondent must have appreciated that publication might be a threat to national security, nor was it established that he knew that the article continued information not previously published. Longmore LJ agreed with the Master of the Rolls: p 1066A-B, para 138. Simon Brown LJ, on the other hand, expressed his conclusion as to mens rea in these words at p 1064H-1065B, para 131:

    "True it may 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."

    98. I respectfully agree with everything that Simon Brown LJ said in that paragraph, and on this ground I would allow the appeal. But the fact that he was able to reach that conclusion while agreeing with Lord Phillips of Worth Matravers MR's statements as to the purpose of the injunctions suggests there was in reality no common understanding on this vital point. I think that the point requires further examination. For this purpose it is necessary to go back to first principles.

    99. The purpose for which the court grants an interlocutory injunction can be stated quite simply. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 405D Lord Diplock described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and where possible to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court. That purpose should not be confused with the court's reasons for deciding that it would be appropriate to grant an interlocutory injunction. The court must of course have a good reason for granting an order of this kind. It must be satisfied in the first place that a sufficient ground has been stated to show that there is a real dispute between the parties. As Lord Diplock put it in American Cynamid Co v Ethicon Ltd at p 407, the court must be satisfied that there is a serious question to be tried. It must then consider whether the balance of convenience lies in favour of granting or refusing an interlocutory injunction. But it is in no position to reach a final decision at the interlocutory stage on the matters which are in dispute between the parties. It is no part of the court's function at that stage to resolve conflicts of evidence or questions of law that require detailed argument. All it can do is preserve the status quo in the meantime until these matters can be determined at the trial.

    100. It is true, as Lord Phillips of Worth Matravers MR said at p 1054E-F, para 84, that in many cases the claimant's objective is achieved when an interlocutory injunction is granted and that the stage of a substantive hearing is never reached. This may be because the parties are content to settle their dispute at that stage or because the need for a final order has been overtaken by events. The grant or refusal of an interlocutory injunction is almost always decisive in industrial dispute cases because the dispute is usually settled one way or the other before there is time for the action to proceed to trial, as Lord Fraser of Tullybelton observed in N W L Ltd v Woods [1979] 1 WLR 1294, 1308F. But this does not alter the fact that the court's purpose, when it grants the order, is to preserve the rights of the parties pending a final determination of the issues between them by the court. Furthermore, as Lord Oliver said in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 223A-B, "purpose" in this context refers not to the litigant's purpose in obtaining the order or in fighting the action, but to the court's purpose. That is the purpose which the court was intending to fulfil in seeking to administer justice between the parties in the particular litigation of which it has become seized.

    101. Confidential information is, as Mr Sumption QC for the Attorney General said in the course of his speech, particularly fragile. It is not hard to see that litigation as to whether information is entitled to be protected on the ground that it is confidential would be rendered pointless if the information were to be published before trial. The purpose of an interim injunction in a case of this kind, where the Attorney General sues in the public interest, is not therefore difficult to identify. It is to protect the public interest against an injury for which it could not be adequately compensated if the issue of confidentiality were to be resolved in favour of the Attorney at the trial.

    102. Lord Phillips of Worth Matravers MR sought to identify the immediate, ulterior and ultimate purposes of an interlocutory injunction: p 1040H-1041B, para 38. I doubt very much however, whether this is helpful. In my opinion the only purpose that is relevant to the question whether a contempt has been committed is the purpose which the court was seeking to serve in the interests of justice. The Master of the Rolls described this as the ulterior purpose of the injunction. He said that the ulterior purpose of the injunctions which were granted in this case was to ensure that the material remained confidential until its status was determined at trial. He then said that their immediate purpose was to restrain the defendants from publishing the material. I think that it would be more accurate to regard this as the means which were chosen by the court to ensure that the material remained confidential. He said that the ultimate purpose of the injunctions was to ensure that any parts of the material that were likely to damage the national interest remained permanently confidential.

    103. The theme of Lord Phillips of Worth Matravers MR's judgment is that the primary purpose of the 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 was designed to prevent: see p 1054G, para 84 [his emphasis]. But I think, that this tends to confuse the issue as to the purpose of the injunctions. It also overlooks a crucial distinction between injunctions which are final and those which are interlocutory. The question whether there was a need for a permanent order cannot be answered until the issues between the parties have been determined at the trial. Interlocutory injunctions are designed to ensure the effective administration of justice, so that the rights which it is the duty of the courts to protect can be fairly determined and effectively protected and enforced by the courts: Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 216A-B, per Lord Oliver.

    104. In my opinion the position can be stated more simply. The purpose of the interlocutory injunctions which were pronounced in this case was to ensure that the material as a whole remained confidential until its status had been determined by the court. The reason why they were granted was because there was a serious question for the court to resolve as to the status of that information, and because the balance of convenience favoured this course. The method which was chosen was to prohibit publication of that information until further order of the court except to the extent which was permitted by the provisos.

    105. It seems to me that this analysis, which separates purpose from reason and purpose from method, is more in keeping with the way the matter has been approached in the authorities. As Lord Oliver explained in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 223F, there can never be any doubt in anyone's mind what the court's purpose was in making an order prohibiting the publication of confidential information such as that obtained by a person in the course of his employment as a member of the security services. It was to preserve the claimant's right to keep the information confidential until the action had been tried. It was to ensure that the issues were determined by the court, without the claimant's rights being prejudiced in the meantime by the doing of the very act which the action sought to prevent. Moreover, if there is room for genuine doubt about what the court's purpose is, the party charged with contempt is likely to escape liability for want of the necessary mens rea. That is why it is so important to define the purpose of the interlocutory injunction correctly. In my opinion that must be done by examining the purpose which the court was intending to fulfil. That is the criterion. The court's purpose must not be confused with the issue between the parties. This is a matter which can ultimately only be resolved at the trial.

    106. Lord Phillips of Worth Matravers MR said at p 1058C-D, para 100 that the court's purpose in granting the injunctions was "to prevent the disclosure of any matter that arguably risked harming the national interest." This was in keeping with his description of the primary purpose of the third party contempt jurisdiction at p 1054F-G, para 84. But it is plain that the effect of describing the court's purpose in this way was to deprive the claimant of the protection of the injunctions. The introduction of the word "arguably" may have been intended to recognise that the resolution of the issue lay in the future. But its effect was to remove the judgment as to whether or not to publish from the court and transfer it to the third party. It enabled the respondent to avoid a finding of contempt by showing that he had an honest belief that the material which he published was not of that character. This then enabled the Court of Appeal to conclude that he had an honest belief that the purpose for which the injunctions were granted did not apply to that material. It enabled the Master of the Rolls to say, at p 1060G-H, para 115, that the respondent'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 focused on the correct issue of fact so far as mens rea was concerned. All of this led directly to the Court of Appeal's finding that he was not in contempt.

    107. In my opinion the correct issue of fact was that identified by Simon Brown LJ at p 1065A-B, para 131. This was whether the respondent, who admitted that he was not qualified to judge whether publication of the material endangered national security, appreciated that there was a bar on publication unless the Attorney General consented to it. The respondent cannot have failed to have understood this point, for the reasons given by judge which were not challenged in the appeal. He admitted that the article offended against the wording of the injunctions. As Silber J said in paragraph 74 of his judgment, the fact that he sought the approval of the Treasury Solicitor before publication shows that he knew that the material which the article contained fell within their terms when he published the article. I would respectfully disagree with majority in the Court of Appeal. I would hold that the necessary mens rea for a finding that the respondent was in contempt of court was established.

The wording of the injunctions

    108. Lord Phillips of Worth Matravers MR said at p 1058H, para 103, that there were a number of objections to the Attorney General's contention that no newspaper could knowingly publish any matter that fell within the wide terms of the injunction against Associated Newspapers without first obtaining clearance from himself. At p 1059A-G, paras 104-109 he said that this was to subject the press to the censorship of the Attorney General, that it resulted in the imposition of a restriction on freedom of the press that was disproportionate to any public interest in breach of article 10 of the Convention and that the proposition could not be reconciled with the duty imposed on the court by section 12(3) of the Human Rights Act 1998, which applies if a court is considering whether to grant any relief which, if it were to be granted, might affect the exercise of the Convention right to freedom of expression. Section 12(3) provides:

    "No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."

 
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