Her Majesty's Attorney General (Appellant) v. Punch Limited and another (Respondents)
109. Lord Phillips of Worth Matravers MR had already expressed his concern on these points at p 1044E-H, paras 47 and 48 when he was considering the implications of Silber J's judgment. The trial judge recognised that the injunctions probably covered matters other than those affecting national security. The Master of the Rolls said it followed from this that the injunctions extended beyond the categories of information that the Crown was entitled to require should remain confidential and that, 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. He saw this as imposing a significant fetter on the press.
110. These objections, if well founded, would indeed be formidable. They would justify the conclusion which Lord Phillips of Worth Matravers MR then reached at p 1059H, para 110, that the law of contempt was being extended in this case beyond the principle that it is an offence intentionally to interfere with the course of justice. Mr Price for the respondent did not address these objections, but they were addressed by Mr Sumption and I think that they are so important that they require to be dealt with. I am, not persuaded that they are based on a correct analysis of the purpose and effect of the proviso in the context of injunctions which are not final but interlocutory.
111. I take as my starting point for an examination of this issue the principle that an injunction must always be expressed with precision and with clarity. As Lord Deas put it in a Scottish case, if an injunction is to be granted at all, it must be in terms so plain that he who runs may read: Kelso School Board v Hunter (1874) 2 R 228, 230. This is because of the penal consequences that will follow if it is breached. Then there is another important principle. The prohibition must extend no further than is necessary to serve the purpose for which the order is to be made.
112. The background to the injunctions which were granted by Hooper J is to be found in section 1(1) of the Official Secrets Act 1989. It provides that it is an offence for a person who is or has been a member of the security and intelligence services without lawful authority to disclose to any person any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services. As against that, Mr Shayler has asserted the right of the public to be provided with information which will enable it to assess whether the powers given to the security and intelligence services are being abused and whether these services are being run properly. He maintains that any disclosures by him were made in the public interest and in the exercise of his right of freedom of expression as guaranteed by the common law, the Human Rights Act 1998 and article 10 of the Convention.
113. Of course, any prohibition on the publication of information is a restraint on free speech. The right to freedom of expression which is guaranteed by article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is engaged. This is not an absolute right, as the broad language of article 10(1) which protects the right to impart information and ideas without interference by public authorities is qualified by article 10(2). It provides:
114. The word "necessary" in article 10(2) raises the question of proportionality. But in my opinion there can be no objection to an interim injunction against the publication of information on the ground of proportionality if three requirements are satisfied. The general principles which are to be applied where questions are raised about proportionality are now well established: see R (Daly) v Secretary of State for the Home Department  2 AC 532, 547A-B, per Lord Steyn; R (Pretty) v Director of Public Prosecutions  3 WLR 1598, 1637A-B; R v Shayler [2002 ] 2 WLR 754, 783F-H, 786A-B. In this context the requirements that must be met are: (one) that there is a genuine dispute as to whether the information is confidential because its publication might be a threat to national security, (two) that there are reasonable grounds for thinking that publication of the information before trial would impede or interfere with the administration of justice and (three) that the interference with the right of free speech is no greater than is necessary. Close attention to the facts is needed when consideration is given to the question whether the protection is necessary. The purpose of the order provides the context, and it is crucial to the whole exercise that this is correctly identified. Its purpose is to ensure that the other party to the dispute does not assume the responsibility of deciding for himself whether the material is of such a nature that the Attorney General is entitled in law to protection against its publication.
115. The question whether the statutory interference with the right to freedom of expression was greater than was required in order to achieve the legitimate object of acting in the interests of national security was examined by your Lordships in R v Shayler  2 WLR 754. It was held that sufficient safeguards were built into the Act, that the prohibition in section 1(1) came within the qualification in article 10(2) of the Convention and that it was a justified interference with the right to freedom of expression guaranteed by that article.
116. Any formalities, conditions, restrictions or penalties, to be permitted by article 10(2), must satisfy the principle of proportionality. In summary, they must be sensitive to the facts of the case, they must be rational, fair and not arbitrary, and they must impair the fundamental right no more than is necessary. In my opinion these tests must be satisfied at every stage in the judicial process that is liable to affect the exercise of the fundamental right. This includes the stage when the court is deciding whether or not to make an interlocutory injunction, and if so in what terms. It also includes the stage when the court is considering whether the order should be varied following an application for that purpose by any third party before the trial. The need to have regard to these tests at each stage is reinforced by section 12(4) of the 1998 Act, which provides that the court must have regard to the importance of the Convention right if the court is considering whether to grant any relief which, if granted, may affect the exercise of the Convention right.
117. Lord Phillips of Worth Matravers MR said that he did not agree with the judge that the purpose of the injunctions extended to the restraint of publication of material which could not possibly be detrimental to the national interest and to material which had previously been published. This was because of the mechanism which was provided to avoid that result in the first proviso: p 1058E-H, paras 101-102. He recognised the attraction of this arrangement between the parties to the action. But he said that a critical issue was raised as to its effect on third parties who were not subject to the order. In his view it subjected the press to the censorship of the Attorney General.
118. Similar observations are to be found in Attorney General v Times Newspapers Ltd  EWCA Civ 97;  1 WLR 885, although the context of that case was different as the order in question was not an interlocutory one made before trial. The judge ordered that no order be made in the action upon the defendants giving an undertaking. An application was later made for the undertaking to be varied to permit certain information to be published. The Master of the Rolls observed that it was desirable that there should usually be consultation between a newspaper and representatives of the British Secret Intelligence Service before the newspaper published information that might include matters capable of damaging the service or endangering those who serve in it. He then said at p 896C-D, para 34:
119. I agree with Lord Phillips of Worth Matravers MR that the way in which the orders in this case were framed can be regarded as satisfactory as between the parties to the action. Indeed, as I mentioned in para 3, solicitors for Associated Newspapers wrote a letter indicating their consent to the order which was to be pronounced against them. Any attempt to lessen the breadth of the opening words by identifying in advance items of information which were not to be covered by them would almost certainly have been too cumbersome. Some other way of providing relief had to be devised. The method which was devised, and which was plainly regarded by Associated Newspapers as acceptable as they did not object to it, was to allow for decisions to be made as to the need for this protection to be taken ad hoc by the Attorney General subject to the overall supervision of the court. This is the method described in the first proviso.
120. Leaving aside for the moment the question of interference with the Convention right to freedom of expression, I do not think that there can be any objection in principle to this method of relief. It is normal practice in claims for infringement of copyright for injunctions to be pronounced against the defendant which permit infringing acts done with the licence of the holder of the copyright. The same cannot be said of actions for breach of confidence between private individuals, where particulars are normally given of the information for which the claimant seeks protection. But section 1(1) of the Official Secrets Act 1989 sets the scene for the wording that was needed in this case. It casts its net widely across the entire range of information which is or has been in the person's possession as a member of the security and intelligence services. It then creates an exception in favour of the disclosure of information where this is done with lawful authority. The opening words of the injunctions which Hooper J pronounced in this case are in keeping with those of section 1(1) of the 1989 Act. The system for providing relief, which is in equally broad terms, reflects the fact that the guardian of the public interest in these matters is the Attorney General.
121. The question is whether Lord Phillips of Worth Matrvavers MR's criticism of the injunctions, and of the terms of the first proviso in particular, as an interference with the Convention right to freedom of expression is justified. I recognise the force of his criticisms, but I do not think that they are justified. The system which allows for a statement in writing to be obtained from the Attorney General or the Treasury Solicitor is not an exercise in censorship. It is a mechanism for relaxing the scope of the injunction. It provides a cheap, simple and convenient way of obtaining clearance before the trial for the publication of material to whose publication no objection can properly be taken on the grounds of confidentiality or national security. The whole process is then subject to the further order of the court. A refusal of clearance by the Attorney General or the Treasury Solicitor is not the last word on the matter.
122. Above all, full weight must be given to the purpose of these injunctions. They were interlocutory injunctions. It was not the intention when they were granted that they should be permanent. Their purpose was to serve the interests of the administration of justice by preserving the confidentiality of the information until trial. As Simon Brown LJ observed at p 1065A-B, para 131, the court's intention would be thwarted if a third party to the action were to take upon himself the responsibility for determining whether or not the information risked national security. That is the context in which the necessity for a restriction on the Convention right must be judged. The court remains available to give its own judgment before the trial as to whether publication of the material in the meantime would be objectionable, having regard to the purpose of the order and the requirements of the principle of proportionality.
123. So I do not think that the terms of the injunctions can be regarded as disproportionate in view of this safeguard. Nor do I think that there is any incompatibility with the respondent's right under article 10(1) of the Convention, to which particular regard must be had under section 12(4) of the Human Rights Act 1998. The restriction on the publication of the information before trial can be justified as being in the public interest in a democratic society. The requirement of proportionality is satisfied (one) because the opening words of the order are qualified by the first proviso, (two) because the extent of the injunction remains subject to the further order of the court and (three) because the court itself must observe the principle of proportionality when it deals with any application before the trial for relaxation of the scope of the injunction. It was not suggested that the orders made by Hooper J, which were made before the coming into force of the 1998 Act, were in conflict with section 12(3) of that Act. But the fact that this subsection is now in force, and that it will apply in the event of an application being made to the court for a further order before trial, supports the view which I favour that the interlocutory injunctions which were pronounced in this case are not incompatible with the article 10 Convention right.
124. That all having been said, I agree with my noble and learned friend Lord Nicholls of Birkenhead that it would be better to avoid the appearance of delegating control of what may be published to the Attorney General by making it plain on the face of the order that anyone whose conduct is affected by the order has the right to apply to the court for a variation of its terms. That could be done by inserting a further proviso. As for the width of the language, I have already mentioned the fact that the context for the words which were chosen in this case is provided by the width of the words used in section 1(1) of the Official Secrets Act 1989. But I agree that it would be wise not to regard the formula that was used in this case as the last word on the subject, and that it would be preferable to use a more precise formula if this can be devised.
125. For these reasons, and for those given by Lord Nicholls and Lord Hoffmann whose speeches I have had the opportunity of reading in draft and with which I agree, I too would allow the appeal and restore the order of the trial judge.
LORD WALKER OF GESTINGTHORPE
126. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Hope of Craighead. For the reasons given in their opinions, with which I am in full agreement, I would allow this appeal and restore the order of Silber J.
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