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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HM Attorney General v Times Newspaper & Ors  EWCA Civ 97 (25 January 2001)
Cite as:  EMLR 19,  WLR 885,  EWCA Civ 97,  1 WLR 885
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
London WC2A 2LL
Thursday 25 January 2001
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE LONGMORE
|HER MAJESTY'S ATTORNEY GENERAL|
|- v -|
|1. TIMES NEWSPAPER|
|2. TIM KELSEY|
|3. DAVID LEPPARD|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
appeared on behalf of the Applicant
MR M TUGENDHAT QC an MR IAN CHRISTIE (Instructed by Messrs Theodore Goddard, London, EC1A 4EJ)
appeared on behalf of the Respondent
Crown Copyright ©
"ZAO 'Narodny Variant' is publishing in Russia a book written by Mr Richard Tomlinson entitled 'The Big Breach: From Top Secret to Maximum Security' ('the Book'). The initial print run of the Book which is in English is ten thousand copies. The Book is to be sold in Moscow bookshops and in other major cities in Russia. Copies of the Book will also be sent to United States of America, Germany and other European countries where they will be put on sale to the public. It will also be available for purchase through a dedicated website. The book will be available to the general public from Friday, 19 January 2001."
"In order to protect their identities, the names of all serving MI6 officers have been changed except those of the chiefs, who have been publicly declared by MI6. The names of other private individuals have also been changed, except where they have been widely reported in the press or have specifically given permission for their real names to be used. Details of the MI6 operations described here have also been altered."
"in The Sunday Times or in any other organ of the media or disclose otherwise howsoever: 1. (a) any information relating to the identity of a former employee of the Secret Intelligence Service ('SIS') referred to in the affidavit of Roland John Phillips herein as 'T' or to his former employment in the SIS; or
(b) any information obtained by the Defendants or any of them directly or indirectly from T in relation to security or intelligence, that is in relation to the work of, or in support of, the security and intelligence services, such information having been received by T in the course of or as a result of his employment in the SIS ...
A.nothing in this undertaking prevents the Defendants or any of them from republishing anything which has previously been published in The Sunday Times or in any other national newspaper ...
C.in addition, nothing in the above undertaking shall prevent the Defendants from publishing that ...
(ii) the Defendants believe that T proposes or has proposed to publish a book about his former work with the SIS (the Defendants not being at liberty to suggest that the SIS or any other official source have confirmed the accuracy of this belief)."
A.Nothing in this undertaking prevents the Defendants or any of them from republishing anything which at the date of publication or intended publication by the Defendant or Defendants:(i) has previously been published in The Sunday Times or in any other national newspaper; or
(ii) has previous been published in any newspaper, magazine or other publication generally accessible to the public at large whether within or outside the jurisdiction of the Court (other than in a case where the only such publication was made by or was caused by the defendants or any of them);
(iii) has previously been published or made generally accessible to the public at large on, by or through the internet or other electronic medium (other than a case where the only such publication was made or was caused by the defendants or any of them)."
"As will be seen from the correspondence exhibited to this Witness Statement, the Claimant's principal concern has been that the Defendants will obtain a copy of a book written by Richard Tomlinson which deals, inter alia, with his employment in the Secret Intelligence Service. Once Mr Tomlinson's book becomes generally available, the Defendants believe that it will have entered the public domain as described by Lord Goff in Spycatcher (Attorney-General v Guardian Newspapers Ltd (No 2)  AC 109 at 282C-D). If the book does come into the public domain, the First Defendant will wish to publish extracts from it relating to Mr Tomlinson's previous employment. At present, such information is caught by the Order of Toulson J, the proviso to which is too narrowly drawn."
"My clients would be content to vary the Order to permit publication of material put into the public domain by others without the involvement of your clients. Your proposed variation is not, however, acceptable.
It is quite possible that, even if unauthorised disclosure of damaging material occurs abroad, the material may be disclosed to a 'section of the public' so small or obscure that no, or limited, damage may have been done until the story is picked up by a national newspaper, such as those of your clients.
Your paragraph (ii) is therefore not acceptable, particularly since there have been instances of information being 'trailed' in obscure publications abroad, and then picked up by national newspapers, in circumstances where there must be a strong suspicion that the trailer has been contrived for the purpose.
In order to guard against this possibility, my clients would be content with a variation which makes it clear that publication is permitted only where the relevant information has previously come to the widespread attention of the public at large. I attach some suggested wording which I trust you will find acceptable.
In circumstances where there was any doubt about whether the publication had been on such a scale that confidentiality had been lost, I would suggest your clients consult with my clients, as they did about Mr Tomlinson's photograph. Should your clients decide to publish material in absence of such consultation, and this resulted in a breach of the injunction, it would be for them to explain to the court what steps they had taken to ensure no such breach occurred."
"Provided that:A.Nothing in this undertaking prevents the defendants or any of them from republishing anything which at the date of publication or intended publication by the defendant or defendants:(i) has previously been published in The Sunday Times or in any other national newspaper; or
(ii) has previously been published in any newspaper, magazine or other publication, whether within or outside the jurisdiction of the court, in circumstances where the Defendants can demonstrate that the publication has come to the widespread attention of the public at large (other than in a case where such publication was made by or was caused by or on behalf of the Defendants or any of them): or
(iii) has previously been published on or through the Internet, or other electronic medium, in circumstances where the Defendants can demonstrate that the publication has come to the widespread attention of the public at large (other than in a case where such publication was made or was caused by or on behalf of the Defendants or any of them)."
"I am unable to come to any conclusion as to whether Mr Crow's submissions are in fact well founded. I must, therefore, take the Sunday Times application at face value."
"I cannot assume, as Mr Crow invites me to do, that what the Sunday Times are actually trying to do is to steal a march on their rivals so as to be first in the field."
"....has previously been published in any newspaper, publication, magazine or other publication generally accessible to the public at large, whether within or without the jurisdiction of the court."
"A. Nothing in this undertaking prevents the Defendants or any of them from republishing anything which at the date of publication or intended publication by the Defendant or Defendants: ....(ii) has previously been published in any other newspaper, magazine or other publication, whether within or outside the jurisdiction of the Court, to such an extent that the information is in the public domain (other than in a case where the only such publication was made by or was caused by the Defendants or any of them).
(iii) has previously been published by or through the internet or other electronic media to such an extent that the information is in the public domain (other than in a case where the only such publication was made by or was caused by the Defendants or any of them)."
".... where the Defendants can demonstrate that..."
1. He said he was taken by surprise by the Attorney General's change of stance which had come very late.
2. He submitted that the proposed fetter on TNL's right to publish was without precedence.
3. He submitted that the usual position, where there is an injunction or undertaking subject to a proviso affecting the press, is that it is for the editor to ensure that any condition in the proviso is satisfied. An editor who gets it wrong will be in contempt of Court and this will have serious implications. Editors should be trusted to be scrupulous in observing conditions to which they are subject under an order of the Court.
4. The requirement that the Attorney General sought to impose was impractical. How was the duty Judge to decide, when telephoned on Saturday on the eve of publication of The Sunday Times, whether a proposed publication had or had not come into the public domain as a result of prior publication?
5. Finally, Mr Tugendhat invoked Article 10 of the European Convention on Human Rights. He submitted that the clause proposed by the Attorney General would constitute an unjustified fetter on the right to freedom of expression to the detriment both of the newspaper, which had the right to impart information, and the public which had the right to receive it. He also relied upon section 12 of the Human Rights Act 1998, the material parts of which provide as follows:
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.....(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-(a) the extent to which-(i) the material has, or is about to, become available to the public; or(ii) it is, or would be, in the public interest for the material to be published."
"It should further be recalled that Article 10 is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population (see Handyside v The United Kingdom judgment of 7 December 1976). Moreover, whilst the mass media must not overstep the bounds imposed in the interests of the protection of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it 'necessary', regard must be had to the public-interest aspect of the case."
"I wish to make one thing very clear about the decision I am about to make. It is not at all based on any argument to the effect that what the Sunday Times wishes to do is in the public interest. I see no evidence of that whatever. The situation is simply the other way about. It is in practical terms for the Attorney General to demonstrate, particularly perhaps in the light of the European Convention, that any restriction on freedom of expression sought to be imposed, or continued, can itself by justified by some countervailing and substantial public interest. In the light of what is today going to be readily available in the public domain in Russia, the United States and elsewhere in the world, I am afraid I am not persuaded that the public interest requires the Sunday Times to be restricted, for reasons based on a duty of confidence, to any greater extent than any other organ of the media. In any event, the original provisos of the 1996 order were aimed at excluding from the undertaking any information in the public domain. It is just that the wording was not, as both parties seem at some stages to have recognised, entirely satisfactory. It seems to be arbitrarily narrow by being confined to what other newspapers publish."
"....it might appear to the casual observer that the Sunday Times is keen to jump the gun for commercial reasons, on the footing that the material is about to enter the public domain, and to publish on Sunday, however widespread or not the publication of the book may by then have become. I am assured by Mr Tugendhat in clear terms that this is not their intention. He has made it clear that the editor wishes to make his judgment in the light of the circumstances prevailing tomorrow, and under no greater inhibition than any other editor in a similar position."
"....all that is in issue here before me today, important though it is, is the question of whether or not the Sunday Times should be placed on the same footing as other media organisations or continue in the somewhat artificial position in which they now find themselves for purely historical reasons."
"....it is necessary for me to bear in mind, as was mentioned in argument, that an important part of freedom of expression is not only the freedom to publish what one wishes but the ability to publish it when one wishes to do so.
Once the information does enter the public domain, it seems to me to be artificial for the law to treat the Sunday Times on any different basis from any other paper and I will, therefore, make the variation in the proviso sought in the Sunday Times' application."