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United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Attorney General v Guardian Newspapers Ltd (No.1) [1987] UKHL 13 (13 August 1987)
URL: http://www.bailii.org/uk/cases/UKHL/1987/13.html
Cite as: [1987] UKHL 13, [1987] 3 All ER 316, [1987] 1 WLR 1248, [1987] WLR 1248

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/247

    Her Majesty's Attorney General (Original Respondent and Cross-
    Appellant)

    v.

    Guardian Newspapers Limited and others (Original Appellants

    and Cross-Respondents)

    JUDGMENT

    Die Jovis 30° Julii 1987

    Upon Report from the Appellate Committee to whom was
    referred the Cause Her Majesty's Attorney General against
    Guardian Newspapers Limited and others et e contra, That the
    Committee had heard Counsel on Monday the 27th, Tuesday the
    28th and Wednesday the 29th days of this instant July, upon
    the Petition and Appeal of Guardian Newspapers Limited, of
    164, Deansgate, Manchester, and of Peter Preston and Richard
    Norton-Taylor of 119, Farringdon Road, London EC1, praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal of
    24th July 1987, might be reviewed before Her Majesty the Queen
    in Her Court of Parliament and that the said Order might be
    reversed, varied or altered or that the Petitioners might have
    such other relief in the premises as to Her Majesty the Queen
    in Her Court of Parliament might seem meet; as upon the
    Petition and Appeal of Her Majesty's Attorney General of the
    Royal Courts of Justice, Strand, London WC2, praying that the
    matter of the Order set forth in the Schedule thereto, namely
    an Order of Her Majesty's Court of Appeal of 24th July 1987
    might be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioners might have such other
    relief in the premises as to Her Majesty the Queen in Her
    Court of Parliament might seem meet; as also upon the Case of
    Guardian Newspapers Limited, Peter Preston and Richard Norton-
    Taylor lodged in answer to the said Cross-Appeal; and due
    consideration had this day of what was offered on either side
    in this Cause:

    Oral Judgment: 30.7.87
    13.8.87

    HOUSE OF LORDS

    HER MAJESTY'S ATTORNEY GENERAL
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    v.

    GUARDIAN NEWSPAPERS LIMITED AND OTHERS
    (ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)

    HER MAJESTY'S ATTORNEY GENERAL
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    v.

    THE OBSERVER LIMITED AND OTHERS
    (ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)

    HER MAJESTY'S ATTORNEY GENERAL
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    v.

    TIMES NEWSPAPERS LIMITED AND ANOTHER
    (ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)


    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord Templeman
    Lord Ackner
    Lord Oliver of Aylmerton


    LORD BRIDGE OF HARWICH

    My Lords,

    I write this opinion in wholly exceptional circumstances. On
    30 July your Lordships announced in the House your decision by a
    majority of three to two to maintain in full force the injunctions
    granted by Millett J. and affirmed by the Court of Appeal last
    year ("the Millett injunctions") against publication of what I shall
    refer to for brevity as Mr. Wright's Spycatcher allegations and to
    extend the scope of the injunctions to cover reports on the
    proceedings now current in Australia against Mr. Wright and his
    publishers there. Because I am about to leave the country and
    shall not be back until September I thought it would not be
    possible to publish the reasons for the decision before September
    and I so indicated to the House. I had in mind that, in the usual
    way, each member of the House participating in the decision would
    wish to have the opportunity, before publication, of reading the
    considered opinions of the others. I have since been persuaded
    that the urgency of informing the public of the reasons which

    - 1 -

    underlie the conclusions reached by the majority and the minority
    alike is such that delay until September would be unacceptable. I
    understand that your Lordships all share this view. This means,
    however, that I must accept the disadvantage of expressing my
    dissent before I have had a chance of reading and at least trying
    to understand the reasons which your Lordships in the majority are
    going to give in support of your decision.

    The proceedings arise from an application to discharge the
    Millett injunctions. I have no doubt that the Millett injunctions
    were properly granted in the first place. As the law now stands,
    under a decision of the Court of Appeal in contempt proceedings
    which for present purposes I assume to be correct, the Millett
    injunctions operate as a universal ban on any publication within the
    jurisdiction of anything which would contravene the injunctions. I
    attach little importance, as relevant changes of circumstance, to
    the partial disclosures of the Spycatcher allegations which some
    newspapers have succeeded in making. The watershed, to my
    mind, came with the publication of Spycatcher in the United
    States of America. Her Majesty's Government did not attempt to
    stop this, because they knew they would fail. They have also
    announced that they will not attempt to prevent the importation
    of Spycatcher into this country. These two vital facts set the
    scene for the present controversy.

    I shall excuse myself from giving any extended account of
    the proceedings in the courts below. I note however that no judge
    considering the matter so far has thought it appropriate to
    maintain the Millett injunctions without qualification. The Vice-
    Chancellor favoured their total discharge for the reasons which he
    gave. The Court of Appeal favoured a variation of the injunctions
    with the introduction of a new proviso to permit publication of "a
    summary in very general terms" of the Spycatcher allegations. Sir
    John Donaldson M.R. thought that the existing injunctions were
    "clearly much too wide" to achieve the strictly limited purpose
    which he believed still to be capable of achievement and that was
    why he added the new proviso. Ralph Gibson L.J. said:

    "If the choice were between discharging the injunctions
    entirely and maintaining the injunctions in the form in which
    they were made, notwithstanding the alterations in the
    circumstances already described by my Lord and in the
    judgment of the learned Vice-Chancellor, I would, I think,
    with regret at the impotence of the law as the Vice-
    Chancellor expressed it, but having had the benefit of the
    Vice-Chancellor's judgment without the hesitation which he
    experienced, have upheld his conclusion that the injunctions
    must be discharged. ... I accept that it is not reasonable
    to try to maintain the injunctions in their original form
    because so to do causes public inconvenience and impairment
    of public discussion and information for no sufficient benefit
    in maintenance of the rights which the Attorney General is
    seeking to enforce."

    Russell L.J. said:

    "In the amended form of injunctions proposed by my Lord
    the Master of the Rolls there is built in a measure of
    protection for the legitimate interests of the press, which it
    is no part of the function of this court to stultify."

    - 2 -

    Before your Lordships all parties accepted that the
    compromise solution favoured by the Court of Appeal could not be
    supported in law and would be unworkable in practice. There was
    and is no escape by way of any compromise from the need to
    resolve the issue. The injunctions must either be maintained or
    discharged.

    I appreciate that the decision of your Lordships' House is in
    form merely interlocutory. But it was quite rightly accepted by
    Mr. Mummery, for the Attorney General, that the case in favour
    of maintaining the injunctions cannot be any stronger at the trial
    than it is today. It must follow from this, in my view, that the
    real question raised by the newspapers' appeals and the cross-
    appeal of the Attorney General is whether the Attorney General,
    on the relevant and undisputed facts, can sustain a claim for
    permanent injunctions. If no case for permanent injunctions can
    be made out, it must be absurd to keep the interim injunctions in
    force. Conversely, although a trial of the action would, at least
    theoretically, leave the door open for the newspapers to canvass
    afresh every issue canvassed before your Lordships in these appeals
    and, of course, to adduce fresh evidence and argument on issues
    not already canvassed, I fear that, in practice, your Lordships'
    decision of the present appeals will effectively foreclose the
    options open to the trial judge.

    The basis of the claim for the Millett injunctions was to
    prevent disclosure of the Spycatcher allegations in breach of the
    life-long obligation of confidence which Mr. Wright, as a former
    officer of the Security Service, owed to Her Majesty's
    Government. So long as any of the Spycatcher allegations
    remained undisclosed, I should have been wholeheartedly in favour
    of maintaining the injunctions in the interests of national security
    for all the reasons so cogently deployed in the affidavit of Sir
    Robert Armstrong. But it is perfectly obvious and elementary
    that, once information is freely available to the general public, it
    is nonsensical to talk about preventing its "disclosure." Whether
    the Spycatcher allegations are true or false is beside the point.
    What is to the point is that they are now freely available to the
    public or, perhaps more accurately, to any member of the public
    who wants to read them. I deliberately refrain from using
    expressions such as "the public domain" which may have technical
    overtones. The fact is that the intelligence and security services
    of any country in the world can buy the book Spycatcher and read
    what is in it. The fact is that any citizen of this country can
    buy the book in America and bring it home with him or order the
    book from America and receive a copy by post. Some enterprising
    small traders have apparently found it worth their while to import
    copies of the book and sell them by the roadside. It remains to
    be seen whether the Attorney General will institute proceedings
    for contempt of court against any public library which imports
    copies of Spycatcher and makes it available to borrowers. Mr.
    Mummery had no instructions which enabled him to answer the
    question I asked about that.

    If, as I have always thought, the interest of national
    security in protecting sensitive and classified information is to
    conceal it from those who might make improper use of it, it is
    manifestly now too late for the Millett injunctions to serve that

    - 3 -

    interest. If the confidence of friendly countries in the ability of
    this country to protect its secrets has been undermined by the
    publication in the United States of America of Spycatcher, the
    maintenance of the Millett injunctions can do nothing to restore
    that confidence. So much, I believe, is obvious and

    incontrovertible.

    I well understand the sense of indignation which all of us
    must feel that Mr. Wright, to use the colloquialism, should have
    got away with it, worse still that he should make a profit from
    his breach of confidence. Perhaps his publishers come under the
    same condemnation. But the remedy for that wrong lies not in a
    futile injunction but in an action for an account of profits.

    The legal basis for the Attorney General's claim to enjoin
    the newspapers is that any third party who comes into possession
    of information knowing that it originated from a breach of
    confidence owes the same duty to the original confider as that
    owed by the original confidant. If this proposition is held to be of
    universal application, no matter how widely the original
    confidential information has been disseminated before reaching the
    third party, it would seem to me to lead to absurd and
    unacceptable consequences. But I am prepared to assume for
    present purposes that the Attorney General is still in a position to
    assert a bare duty binding on the conscience of newspaper editors
    which is capable of surviving the publication of Spycatcher in
    America.

    The key question in the case, to my mind, is whether there
    is any remaining interest of national security which the Millett
    injunctions are capable of protecting and, if so, whether it is of
    sufficient weight to justify the massive encroachment on freedom
    of speech which the continuance of the Millett injunctions in
    present circumstances necessarily involves.

    There is no fresh evidence from Sir Robert Armstrong or
    anyone else who can speak for the Security Service about the
    security implications following the American publication of
    Spycatcher. Sir Robert's original affidavit was made in the
    radically different circumstances obtaining before that publication.
    So, in effect, the hapless Mr. Mummery was left to make bricks
    without straw (which of course he did with his usual skill) in
    seeking to persuade your Lordships that, despite the free
    availability of the book Spycatcher itself and despite the citations
    from it and discussion of its contents which have been and will
    continue to be available in foreign newspapers freely circulating in
    this country, a blanket ban on any repetition, citation or discussion
    of its contents in the British press was necessary in the interests
    of national security. If I have understood the argument, stripped
    of rhetorical embellishment, it amounts to this. First, unless
    enjoined Mr. Wright may make yet further disclosures about the
    Security Service not already contained in Spycatcher. This may be
    true, but is entirely beside the point. If the Attorney General
    were prepared to modify the Millett injunctions so as to exclude
    from their ambit the Spycatcher allegations, in the same way that
    anything in Mr. Chapman Pincher's book Their Trade is Treachery
    is excluded, there would be nothing left to argue about. What the
    newspapers seek is liberty to repeat and discuss the Spycatcher
    allegations - no more, no less. Secondly, Mr. Mummery takes

    - 4 -

    material from Sir Robert's affidavit out of the context in which it
    was made and seeks to rely on it for the proposition that the
    Millett injunctions should be maintained in their full rigour to
    deter other officers of the intelligence or security services from
    following Mr. Wright's deplorable example. The suggestion must
    be, I take it, that a future Mr. Wright contemplating going into
    exile and publishing his memoirs in the United States and who
    would not be deterred by the prospect of having to account to Her
    Majesty's Government for his profits, would nevertheless be
    deterred by the knowledge he would be denied by injunction any
    more than a limited access for his story to the general reading
    public in this country. This seems to me a rather fanciful
    suggestion, but if there is anything in it, now that the original aim
    of preventing disclosure of secret material can no longer be
    attained, the deterrent argument can only carry minimal weight.

    What of the other side of the coin and the encroachment on
    freedom of speech? Having no written constitution, we have no
    equivalent in our law to the First Amendment to the Constitution
    of the United States of America. Some think that puts freedom
    of speech on too lofty a pedestal. Perhaps they are right. We
    have not adopted as part of our law the European Convention on
    Human Rights to which this country is a signatory. Many think
    that we should. I have hitherto not been of that persuasion, in
    large part because I have had confidence in the capacity of the
    common law to safeguard the fundamental freedoms essential to a
    free society including the right to freedom of speech which is
    specifically safeguarded by Article 10 of the Convention. My
    confidence is seriously undermined by your Lordships' decision. Ail
    the judges in the courts below in this case have been concerned
    not to impose any unnecessary fetter on freedom of speech. I
    suspect that what the Court of Appeal would have liked to
    achieve, and perhaps set out to achieve by their compromise
    solution, was to inhibit The Sunday Times from continuing the
    serialisation of Spycatcher, but to leave the press at large at
    liberty to discuss and comment on the Spycatcher allegations. If
    there were a method of achieving these results which could be
    sustained in law, I can see much to be said for it on the merits.
    But I can see nothing whatever, either in law or on the merits, to
    be said for the maintenance of a total ban on discussion in the
    press of this country of matters of undoubted public interest and
    concern which the rest of the world now knows all about and can
    discuss freely. Still less can I approve your Lordships' decision to
    throw in for good measure a restriction on reporting court
    proceedings in Australia which the Attorney General had never
    even asked for.

    Freedom of speech is always the first casualty under a
    totalitarian regime. Such a regime cannot afford to allow the
    free circulation of information and ideas among its citizens.
    Censorship is the indispensable tool to regulate what the public
    may and what they may not know. The present attempt to
    insulate the public in this country from information which is freely
    available elsewhere is a significant step down that very dangerous
    road. The maintenance of the ban, as more and more copies of
    the book Spycatcher enter this country and circulate here, will
    seem more and more ridiculous. If the Government are
    determined to fight to maintain the ban to the end, they will face
    inevitable condemnation and humiliation by the European Court of

    - 5 -

    Human Rights in Strasbourg. Long before that they will have been
    condemned at the bar of public opinion in the free world.

    But there is another alternative, The Government will
    surely want to reappraise the whole Spycatcher situation in the
    light of the views expressed in the courts below and in this House.
    I dare to hope that they will bring to that reappraisal qualities of
    vision and of statesmanship sufficient to recognise that their wafer
    thin victory in this litigation has been gained at a price which no
    Government committed to upholding the values of a free society
    can afford to pay.

    I add a postscript to record that I have now had the
    opportunity to read first drafts of the opinions of my noble and
    learned friends, Lord Templeman and Lord Ackner. I remain in
    profound disagreement with them.

    LORD BRANDON OF OAKBROOK

    My Lords,

    The facts and circumstances leading up to these appeals and
    cross-appeals have been fully set out in the opinions of my noble
    and learned friends, Lord Templeman and Lord Oliver of
    Aylmerton. I adopt gratefully their accounts of these matters and
    do not think it necessary for me to give a separate account of
    them of my own.

    I was a party to the majority decision of this House given
    on 30 3uly 1987 that the injunctions in issue should not be
    discharged but should be continued until trial. My reasons for
    being a party to that decision can be summarised in nine
    propositions as follows:

    1. The action brought by the Attorney General against The
      Guardian
      and The Observer has as its object the protection
      of an important public interest, namely, the maintenance so
      far as possible of the secrecy of the British Security
      Service.

    2. The injunctions in issue are interlocutory, that is to say,
      temporary injunctions, having effect until the trial of the
      action only.

    3. Before the publication of Spycatcher in America the
      Attorney General had a strong arguable case for obtaining
      at trial final injunctions in terms similar to those of the
      temporary injunctions.

    (4) While the publication of Spycatcher in America has much
    weakened that case, it remains an arguable one.

    (5) The only way in which it can justly be decided whether the
    Attorney General's case, being still arguable, should succeed
    or fail is by having the action tried.

    - 6 -

    1. On the hypothesis that the Attorney General's claim, if
      tried, will succeed, the effect of discharging the temporary
      injunctions now will be to deprive him, summarily and
      without a trial, of all opportunity of achieving that success.

    2. On the alternative hypothesis that the Attorney General's
      claim, if tried, will fail, the effect of continuing the
      temporary injunctions until trial will be only to postpone,
      not to prevent, the exercise by The Guardian and The
      Observer
      of the rights to publish which it will in that event
      have been established that they have.

    3. Having regard to (6) and (7) above, the discharge of the
      temporary injunctions now is capable of causing much
      greater injustice to the Attorney General than the
      continuation of them until trial is capable of causing to The
      Guardian
      and The Observer.

    4. Continuation of the injunctions until trial is therefore
      preferable to their discharge.

    I have not dealt separately with the injunction against The

    Sunday Times because it is common ground that the fate of that

    injunction must follow the fate of the injunctions against The
    Guardian
    and The Observer.

    The nine propositions which I have set out in summary form
    above require amplification and comment.

    (1) The public interest character of the Attorney General's
    claim

    It has been suggested that the right sought to be enforced
    by the Attorney General is a private right only, and that, as such,
    it must necessarily be overridden by the public right of citizens of
    a democratic country such as the United Kingdom to freedom of
    expression in the press. In my view this is not correct. The
    Attorney General is suing, as the representative of the Crown, in
    order to protect the public interest in the maintenance of the
    secrecy of the British Security Service. The public right to
    freedom of expression cannot, even in a democratic country such
    as the United Kingdom, be absolute. It is necessarily subject to
    certain exceptions, of which the protection of national security is
    one. This is expressly recognised in Article 10(2) of the
    Convention for the Protection of Human Rights and Fundamental
    Freedoms, to which the United Kingdom has adhered although its
    provisions have not been incorporated into our domestic law.

    (2) The temporary nature of the injunctions in issue

    The fact that the injunctions in issue are temporary only is,
    in my view, of the utmost importance. Continuation of them until
    trial does not in any way prejudge the decision which has to be
    made at trial on the validity of the Attorney General's claim to
    final injunctions. The purpose of such continuation is only to hold
    the ring until a just decision on the validity of that claim can be
    made.

    - 7 -

    (3) The arguability of the Attorney General's case before
    publication of Spycatcher in America

    The Attorney General's case is and always has been (i) that
    Mr. Wright, as a former member of the British Security Service,
    owed to the Crown a life long duty of confidence and non-
    disclosure extending to every aspect of his work in the Service; (ii)
    that the publication by Mr. Wright of Spycatcher would be a plain
    breach of that duty; (iii) that The Guardian and The Observer,
    having obtained access to the matters contained in Spycatcher with
    knowledge of Mr. Wright's breach of duty in disclosing them came
    under the same duty of confidence and non-disclosure as he was;
    (iv) that publication by The Guardian and The Observer of the
    matters contained in Spycatcher, whether true or false, would be a
    breach of their duty; (v) that publication by them of the matters
    contained in Spycatcher would do great harm to the British
    Security Service; (vi) that damages would not be an adequate or
    appropriate remedy for the breach of duty so committed; and (vii)
    that injunctions restraining The Guardian and The Observer from
    publishing the matters disclosed by Mr. Wright in Spycatcher or
    elsewhere were therefore necessary in order to prevent the great
    harm to the British Security Service which would otherwise be
    done.

    It is evident that Millett J. who granted the temporary
    injunctions originally, and the Court of Appeal which upheld them
    with minor modifications, had no doubt that the Attorney General
    had a strong arguable case for obtaining at trial final injunctions
    in terms similar to those of the temporary injunctions. Although a
    further appeal by The Guardian and The Observer to this House
    against the decision of Millett J., as affirmed by the Court of
    Appeal, is still pending, its prosecution appears to have been
    overtaken by events. In any case, it seems to me that the view
    taken by Millett J. and the Court of Appeal with regard to the
    strong arguability of the Attorney General's case at that stage is
    not really open to challenge.

    (4) The arguability of the Attorney General's case following the
    publication of Spycatcher in America

    This is to my mind the key issue. Since the temporary
    injunctions were first granted, Spycatcher has been published in
    America, has been widely sold there and is likely to be even more
    widely sold there in the future. Under American law the British
    Government could not have hoped to prevent such publication and
    sale, and so did not attempt to do so. A substantial number of
    copies of Spycatcher as published in America have found their way
    into the United Kingdom and have been available for reading to
    those having access to them. More copies are likely to find their
    way here and to be similarly available for reading in the future.
    The British Government, although it has power in theory to
    prohibit the importation of copies of the book, accepts that it
    cannot in practice effectively exercise that power. It has
    therefore not attempted, nor does it intend to attempt, to impose
    any such prohibition.

    The three newspapers rely on these supervening events as
    constituting decisive grounds for discharging the temporary
    injunctions now. They put their case in two ways. First, they say

    - 8 -

    that once the matters contained in Spycatcher have, by whatever
    means, become public knowledge in the United Kingdom, any duty
    of non-disclosure under which they may previously have been lapses
    and ceases to be binding on them. Secondly, they say that, in any
    case, in these new circumstances, continuation of the temporary
    injunctions any longer would be futile: all the damage to the
    British Security Service capable of resulting from Mr. Wright's
    breach of duty has already been done and there is no further
    damage which continuation of the injunctions can prevent.

    In relation to both arguments it is, I think, putting the case
    too high to say that the matters contained in Spycatcher have
    become public knowledge in the United Kingdom. A limited
    section of the public, who feel a strong motivation to acquire
    knowledge of the matters concerned, can no doubt obtain access to
    a copy of the book published in America and not prohibited from
    being imported here. But this does not mean that the matters
    concerned are already within the knowledge of the public as a
    whole. If they were, it is difficult to see why the newspapers
    should be so bent on publishing them, and so incensed at being
    restrained even temporarily from doing so.

    The first argument raises a question of law, on which there
    is inconclusive guidance in existing authorities. It was further
    apparent that counsel had not come prepared to deal with that
    question of law as fully as would be necessary for your Lordships
    to reach a final conclusion upon it. If the argument is correct in
    relation to the newspapers, it appears that it must also be correct
    in relation to Mr. Wright himself, with the consequence that his
    duty of non-disclosure has also lapsed and ceased to be binding on
    him, and he could return to the United Kingdom and publish his
    memoirs there without legal restraint. I am not willing, on what
    is only an interlocutory appeal, and assisted only by incomplete
    argument, to reach such a startling, and indeed anarchic,
    conclusion.

    The second argument seems to me to raise what is, in
    substance, a question of fact rather than of law. That is whether
    the publication of Spycatcher in America and its importation on a
    limited scale into the United Kingdom has exhausted the damage
    to the British Security Service which Mr. Wright's breach of duty
    is capable of causing, so that there is no further damage left to
    be done which continuation of the temporary injunctions could help
    to prevent.

    In paragraph 10 of his affidavit in the Australian
    proceedings, Sir Robert Armstrong deposed as follows:

    "10. The publication of any narrative prepared or
    contributed to by [Mr. Wright] which was based upon
    information available to him as a senior member of the
    British Security Services would be likely to cause
    unquantifiable damage by reason of the disclosure involved.
    Additionally, it will clearly damage the work of the British
    Security Service in the following further respects:

    (a) the intelligence and security services of friendly
    foreign countries with which the British Security
    service is in liaison would be likely to lose confidence
    in its ability to protect classified information.

    - 9 -

    (b) the British Security Service depends upon the
    confidence and co-operation of other organisations and
    persons. That confidence would suffer serious damage
    should [Mr. Wright] reveal information of the nature
    described above.

    (c) there would be a risk that other persons who are or
    have been employed in the British Security Services
    who have had access to similar information might
    seek to publish it."

    There is no doubt that the major part of the damage which
    Sir Robert Armstrong said would be caused by the publication of
    Spycatcher has, in the events which have now occurred, already
    been done, and that nothing which the courts can do, by way of
    injunctions or otherwise, can undo it. It remains for consideration,
    however, whether the risk referred to in paragraph 10(c) of Sir
    Robert Armstrong's affidavit, namely future repetitions by other
    members of the British Secret Service of Mr. Wright's breach of
    duty, is so serious that the courts should do all that they can,
    including granting at trial final injunctions in terms similar to
    those of the temporary injunctions, in order not to eliminate this
    risk (for I do not see how it can be eliminated) but to minimise it
    as much as possible.

    The Vice-Chancellor discussed this consideration in his
    judgment. He said at p. 25 of the transcript:

    "There remains what Mr. Mummery argues is the
    remaining public interest, namely, to prevent general
    dissemination of the contents of this book through the press
    within the United Kingdom so that by discouraging general
    dissemination those who are tempted to follow Mr. Wright's
    example in the future and write their memoirs hot from the
    Security Service will not find it such a satisfactory or
    profitable business. I think there is force in that. I think
    that the ability to restrain the unauthorised use of
    confidential memoirs by those who do not mind abusing their
    confidence, so as to discourage others from doing it, is a
    real point. I do not think it can be just swept aside.

    The United Kingdom is likely to be the best market
    for anybody writing these memoirs, and to discourage the
    use of that market by such people would be, I think, a
    discouragement."

    I agree with the Vice-Chancellor that this consideration is a
    real one which cannot be swept aside. It involves questions of the
    effect in the future on the morale and discipline of members of
    the British Security Service of the courts allowing the disclosure
    of confidential matters in breach of duty abroad to lead inevitably
    to general dissemination of such matters to the public as a whole
    by the press in the United Kingdom. Once it is accepted that the
    risk concerned is a real one and not such as to be swept aside, it
    follows, I think, that although the Attorney General's case for
    obtaining final injunctions at trial which he had earlier had been
    much weakened, it remains nevertheless an arguable case. The
    Vice-Chancellor so held and I agree with him. The damage to the

    - 10 -

    British Security Service which has already been done cannot be
    undone. But it may be that the courts can still take useful steps
    to reduce materially the risk of similar damage being done again
    in the future.

    (5) The only way to decide justly whether the Attorney
    General's case should succeed or fail is by having the action tried

    The Vice-Chancellor considered that the need to discourage
    repetitions of Mr. Wright's breach of duty in the future did not
    justify the continuation of restrictions on the public right of
    freedom of expression in the press. As I indicated earlier,
    however, the public right to freedom of expression in the press is
    not the only public interest involved. Protection of the secrecy of
    the British Security Service is also a public interest and is also
    involved. Want of secrecy in the past has cost lives: that cannot
    now be remedied. Want of secrecy in the future may cost more
    lives: the risk of that can possibly be reduced. So there are two
    public interests involved: they have to be weighed against each
    other and a balance struck between them.

    In order to enable a court to carry out properly this
    exercise of weighing and balancing, it is in my view, essential that
    it should have adduced before it the best possible evidence on
    these crucial questions: in what way, for what reasons and to what
    extent, having regard to the publication of Spycatcher in America
    and its so far limited importation into the United Kingdom,
    general dissemination of its contents to the public by the press
    here would increase the risk of other members of the British
    Security Service acting in the same manner as Mr. Wright in the
    future. These are not matters with regard to which a court can
    take judicial notice or rely on its own instincts. They are matters
    for oral evidence from persons such as Sir Robert Armstrong, or
    others with comparable expertise. That evidence will, of course,
    like any other oral evidence given at a trial, be subject to
    challenge by cross-examination. It is for these reasons that I
    consider that the only way in which it can be justly decided
    whether the Attorney General's claim for final injunctions should
    succeed or fail is by having the action tried.

    (6) The effect of discharging the temporary injunctions now

    If the temporary injunctions are discharged now, so that the
    newspapers are left free, subject to any questions of copyright, to
    disseminate generally the disclosures made by Mr. Wright in
    Spycatcher, there will be no point in the Attorney General
    proceeding to trial. All possible damage to the British Security
    Service will indeed then have been done. His arguable case will
    have been completely destroyed, by summary process at an
    interlocutory stage and without his ever having had the opportunity
    of having it fairly tried on appropriate evidence.

    (7) The effect of continuing the temporary injunctions until trial

    If the temporary injunctions are continued until trial, and
    the Attorney General's claim to final injunctions then fails, the
    newspapers will be free to publish Mr. Wright's disclosures as they
    please. They will certainly have been delayed in exercising rights
    which will, in that event, have been vindicated. Mr. Wright's

    - 11 -

    disclosures, however, relate not to recent events but to events
    many years in the past. That being so, a further delay in the
    exercise of the newspapers' rights will in no way be equivalent to
    a complete denial of those which the Attorney General may have.

    (8) and (9) The potential injustice of the two available courses to
    either party and the choice between them

    For the reasons which I have given the choice lies between
    one course which may result in permanent and irrevocable damage
    to the cause of the Attorney General and another course which
    can only result in temporary and in no way irrevocable damage to
    the cause of the newspapers. In that situation it seems to me
    clear that the second of the two courses should, in the overall
    interests of justice, to be preferred to the first.

    It was urged upon your Lordships that the Vice-Chancellor's
    decision, being a discretionary one, should not be interfered with
    by an appellate tribunal unless it was shown that he had erred in
    some way. With great respect to him I think that he did err in
    that he did not sufficiently regard the radical difference which I
    have stressed above between the kinds of injustice capable of
    being caused to the Attorney General if the temporary injunctions
    are discharged now and to the newspapers if they are continued
    until trial.

    Once a decision is taken in principle to continue the
    temporary injunctions until trial, it is essential that any loopholes
    in their present formulation, which might enable the purpose of
    that decision to be circumvented, should be eliminated. It was on
    that ground that I agreed with the alteration of proviso (2) of the
    injunctions proposed by my noble and learned friends, Lord
    Templeman and Lord Ackner.

    I would end my opinion with certain firm disclaimers. My
    decision in this case is not based on my thinking that, when the
    action comes to be tried, the Attorney General's claim is in any
    way sure of succeeding. It may succeed or it may fail. The
    decision on that will be for the trial judge and, in the first place
    at any rate, for him alone. Nor did I reach my decision in this
    case because I do not strongly support, subject to well-recognised
    exceptions, the general principle of freedom of expression in the
    press. I do. I reached my decision solely on the ground that the
    Attorney General has an arguable case for the protection of an
    important public interest, and that it would be unjust, by
    discharging the temporary injunctions now, to deprive him
    irrevocably of the opportunity of having that case fairly
    adjudicated upon at a proper trial.

    For obvious reasons that trial should take place as soon as
    possible: it has already been delayed much too long.

    - 12 -

    LORD TEMPLEMAN

    My Lords,

    On the 30 July this year your Lordships by a majority
    decided to continue injunctions restraining the appellant newspapers
    from disclosing or publishing any information obtained by Peter
    Maurice Wright in his capacity as a member of the British
    Security Service. The principle affirmed by that decision was that
    the law will prevent the mass circulation in this country of
    confidential information which prejudices the public interest in the
    maintenance of an efficient and effective secret Security Service.
    Three defences were put forward by the appellant newspapers,
    first, that Mr. Wright intended his treachery to be helpful to the
    British public, secondly, that damage to the Security Service
    arising from Mr. Wright's treachery had already been fully
    inflicted, and thirdly, that the public interest in receiving
    information entitled the press to publish treachery at home
    provided it had been published abroad. A majority of your
    Lordships rejected these defences.

    The Secretary to the Cabinet, Sir Robert Armstrong, in an
    affidavit sworn in these proceedings, deposed as follows:

    "The main function of the British Security Service is the
    defence of the realm as a whole, from external and internal
    dangers arising from attempts at espionage and sabotage, or
    from actions from persons and organisations whether
    directed from within or without the United Kingdom, which
    may be judged to be subversive at this date."

    Mr. Wright was employed by the British Security Service.
    On 1 September 1955 he signed a declaration that he understood
    the effect of section 2 of the Official Secrets Act 1911 which was
    set out in the declaration and renders liable to prosecution any
    person in possession of information

    "... which he has obtained or to which he has had access
    owing to his position as a person who holds or who has held
    office under His Majesty . . . and communicates the
    information to any person, other than a person to whom he
    is authorised to communicate it, or a person to whom it is
    in the interests of the State his duty to communicate it."

    When Mr. Wright left the Security Service he signed a
    further declaration, dated 30 January 1976, acknowledging, inter
    alia, that the provisions of the Official Secrets Acts applied to
    him after his appointment had ceased, that he was fully aware
    that serious consequences might follow any breach of the
    provisions of those Acts, and that he understood

    "that I am liable to be prosecuted if either in the United
    Kingdom or abroad I communicate, either orally or in
    writing, including publication in a speech, lecture, radio or
    television broadcast, or in the press or in book form or
    otherwise, to any unauthorised person any information
    acquired by me as a result of my appointment (save such as
    has already officially been made public) unless I have
    previously obtained the official sanction in writing of the
    department by which I was appointed."

    - 13 -

    In addition to the obligations of secrecy expressly
    acknowledged by Mr. Wright, he was also under an obligation
    arising out of his employment by the Security Service and
    enforceable in equity not to divulge any information which he
    obtained in the course of his employment. The obligation arises
    because of

    "the broad principle of equity that he who has received
    information in confidence shall not take unfair advantage of
    it. He must not use it to the prejudice of he who gave it:"
    per Lord Denning M.R. in Seager v. Copydex [1967] 1
    W.L.R. 923 at 931.

    The same obligation attaches to the press and anyone else who
    receives confidential information knowing that it is confidential.
    It is unlawful to make further disclosure.

    The Cabinet Secretary further deposed that the work of Mr.
    Wright for the Security Service:

    "Involved him in frequent and close liaison with the
    Intelligence and Security Services of friendly foreign
    countries and the exchange of information with those
    Services. It was, and continues to be, essential to the
    effectiveness of all such liaison and exchanges that they are
    conducted upon a basis of mutual trust and confidence."

    The Cabinet Secretary also said that the effective

    functioning of the British Security Service requires that its affairs

    be kept secret. The Attorney General who represents the public

    and who has brought these proceedings in their interest, could not,
    in the view of the Cabinet Secretary:

    "particularise the damage that would be caused by specific
    disclosures of fact by Mr. Wright without, himself, making
    further disclosures of material which is confidential, and
    undermining the efficacy of the duty of confidentiality
    which is also sought to be in force."

    He continued:

    "It is likely that any disclosures of facts relating to the
    Security Service by Mr. Wright would not only be a breach
    of his contract and of his duty of confidence owed to the
    Service but would be likely to endanger the effective
    discharge by the Service of its current and future
    responsibilities, and as a consequence be of value for a
    foreign power and highly detrimental to the public interest
    of the United Kingdom as well as causing harm to individual
    officers, former officers, their families and other persons
    who might be identified by or as a consequence of such
    disclosures. The dangers could arise notwithstanding that
    the information disclosed was unclassified and is on its face
    and in isolation apparently innocuous. Such information may
    take on a wider significance if put together with other
    information in possession of other persons and thereby, for
    example, enable them to check the veracity of their sources
    of information. Furthermore, information which appears to

    - 14 -

    be innocuous at a particular date or to a particular officer
    may at a later date become significant."

    It follows that Mr. Wright could not publish his memoirs as
    an employee of the Security Service without committing flagrant
    breaches of the duty of secrecy and confidentiality which he owed
    to the public in the national interest. No publisher or newspaper
    in this country may lawfully publish Mr. Wright's memoirs or
    disclose information obtained by Mr. Wright in the course of his
    service concerning any aspect of the work of the Security Service.
    Mr. Wright, apart from making money out of his memoirs, protests
    that his memoirs will be helpful to the British public. The press
    and others consider that his memoirs will be helpful in achieving
    the objects of an enquiry into the working of the Security Service,
    an amendment of the Official Secrets Acts, and the enactment of
    freedom of information legislation. But these objects are unlikely
    to be attained so long as the British press is prepared to publish
    confidential information relating to the British Security Service
    without investigation or corroboration and in disregard of orders of
    the court designed to preserve the Security Service from harm.

    Mr. Wright could not, of course, hope to be allowed to
    publish his memoirs in England. He accordingly entered into
    arrangements with an Australian company in New South Wales,
    Heinemann Publishers Australia Pty. Ltd., which is a subsidiary of
    the English Heinemann Publishers. In September 1985 the Crown
    began proceedings in New South Wales to restrain such publication.
    Interim relief obtained in New South Wales apparently did not
    prevent Mr. Wright and the Australian Heinemanns from publishing
    outside Australia. Seizing upon this loophole the Australian
    Heinemann company granted the American rights in Mr. Wright's
    memoirs to Viking Penguin Incorporated. This is an American
    subsidiary of the English Pearson Group. In the United States of
    America an injunction might have been obtained against Mr. Wright
    if he had been within the jurisdiction but under the law of the
    United States could not be obtained against Viking Penguin
    Incorporated or anyone else in the United States. Mr. Wright's
    memoirs were written by him or written for him either in
    Australia or in the United States and were given the name
    Spycatcher. On 22 June 1986 and 23 June 1986 respectively, The
    Observer
    and The Guardian published in their newspapers in this
    country, an outline of Mr. Wright's allegations. The Observer
    stated that it:

    "... has obtained details of what is disclosed in the
    manuscript written by retired senior MI5 officer, Peter
    Wright, who lives in Tasmania."

    The Observer subsequently explained that The Observer had
    not seen the manuscript or extracts from it.

    The publication of The Observer and The Guardian articles
    was unlawful and on 11 July 1986 Millett J. granted injunctions
    ("the Millett injunctions") against The Observer and The Guardian
    restraining them from disclosing or publishing any information
    obtained by Mr. 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 directly or indirectly
    from Mr. Wright. The order had two provisos. The first proviso

    - 15 -

    allowed the newspapers to reproduce attributions to Mr. Wright
    already made by Mr. Chapman Pincher's published works or in a
    television programme or programmes broadcast by Granada
    Television. The second proviso allowed disclosure of any material
    disclosed in open court in the Supreme Court of New South Wales
    unless prohibited by the judge there sitting or which, after the
    trial there in action No. 4382 of 1985 is not prohibited from
    publication. Millett J. delivered a lucid and convincing judgment
    explaining his reasons for coming to the conclusion that it would
    be against the public interest for newspapers in this country to
    publish information derived from Mr. Wright. On the 25 July 1986
    the Court of Appeal dismissed an appeal from the judgment of
    Millett J. subject to certain minor modifications.

    Between 27 April 1987 and 14 July 1987 the following
    events took place:

    1. On 27 April 1987 The Independent stated that a copy
      of the manuscript of Spycatcher had been "passed
      unsolicited" to The Independent. The newspaper quoted
      extracts from the book but added that "The Independent has
      destroyed all copies of the manuscript in its possession."
      On the same day the London Evening Standard and the
      London Daily News followed suit and published information
      which could only have been derived from Mr. Wright in the
      final analysis. The Attorney General applied to commit the
      three newspapers for contempt since they were clearly
      acting in breach of the object of the Millett injunctions.

    2. Shortly after 27 April 1987 The Guardian and The
      Observer
      applied to the court to discharge the Millett
      injunctions on the grounds of changed circumstances
      including the articles in The Independent and the other two
      London evening papers on 27 April.

    3. On 28 April 1987 Australian newspapers published
      articles about Spycatcher.

    4. On 3 May 1987 the Washington Post announced that it
      had "obtained" a manuscript copy of Spycatcher and
      published extracts and comments.

    5. On 12 July 1987 The Sunday Times published "major
      extracts from the book Spycatcher by Peter Wright the
      former MI5 officer. Its serialisation has been timed to
      coincide with the publication of the book in the United
      States."

    6. On 14 July 1987 the Court of Appeal which heard
      argument before and after 12 July, declared that The
      Independent,
      the London Daily News and the London Evening
      Standard
      "could indeed have been in contempt of court and
      so could The Sunday Times and any other newspaper which
      published information attributed to Mr. Wright. It could not
      be said that they were in contempt of court because none
      had yet had an opportunity of putting forward a defence."
      Contempt proceedings had been or were then instituted
      against The Sunday Times.

    - 16 -

    All the newspaper articles were bound to put pressure on the court
    to allow publication of Spycatcher in this country regardless of any
    damage to the Security Service and despite the reasoned judgment
    of Millett J. that the disclosure of any relevant information
    derived from Mr. Wright would be contrary to the public interest
    and ought to be restrained. On 22 July 1987 the Vice-Chancellor
    discharged the orders made by Millett J. but his decision was
    reversed by the Court of Appeal on 24 July 1987, hence the
    appeal to this House.

    My Lords, this appeal involves a conflict between the right
    of the public to be protected by the Security Service and the right
    of the public to be supplied with full information by the press.
    This appeal therefore involves consideration of the Convention for
    the Protection of Human Rights and Fundamental Freedoms ("the
    Convention") to which the British Government adheres. Article 10
    of the Convention is in these terms:

    "1. Everyone has the right to freedom of expression.
    This right shall include freedom to hold opinions and
    to receive and impart information and ideas without
    interference by public authority and regardless of
    frontiers . . . .

    2. The exercise of these freedoms, since it carries with
    it duties and responsibilities, may be subject to such
    formalities, conditions, restrictions or penalties as are
    prescribed by law and are necessary in a democratic
    society, in the interests of national security,
    territorial integrity or public safety, for the
    prevention of disorder or crime, for the protection of
    health or morals, for the protection of the reputation
    or rights of others, for preventing the disclosure of
    information received in confidence, or for maintaining
    the authority and impartiality of the judiciary."

    In The Sunday Times' case (Eur. Court H.R. The Sunday
    Times
    case, decision of 27 October 1978, series A 30), the
    European Court of Human Rights decided by a majority of 11 to 9
    that there had been a violation of the Convention by reason of the
    judgment of this House which restrained The Sunday Times from
    publishing:

    "Any article which prejudges the issues of negligence, breach
    of contract or breach of duty or deals with the evidence
    relating to any of the said issues arising in any actions
    pending or imminent against Distillers ... in respect of the
    development, distribution or use of the drug Thalidomide."

    The European Court pointed out that this House applying domestic
    law had balanced the public interest in freedom of expression and
    the public interest in the due of administration of justice. But
    the European Court:

    " ... is faced not with the choice between two conflicting
    principles but with a principle of freedom of expression
    which is subject to a number of exceptions which must be
    narrowly interpreted .... It is not sufficient that the
    interference involved belongs to that class of exceptions

    - 17 -

    listed in Article 10 which has been invoked; neither is it
    sufficient that the interference was imposed because its
    subject-matter fell within a particular category or was
    caught by a legal rule formulated in general or absolute
    terms; the Court has to be satisfied that the interference
    was necessary having regard to the facts and circumstances
    prevailing in the specific case before it."

    The question is therefore whether the interference with
    freedom of expression constituted by the Millett injunctions was,
    on 30 3uly 1987 when they were continued by this House,
    necessary in a democratic society in the interests of national
    security, for protecting the reputation or rights of others, for
    preventing the disclosure of information received in confidence or
    for maintaining the authority and impartiality of the judiciary
    having regard to the facts and circumstances prevailing on the 30
    July 1987 and in the light of the events which had happened. The
    continuance of the Millett injunctions appears to me to be
    necessary for all these purposes.

    My Lords, in my opinion a democracy is entitled to take the
    view that a public servant who is employed in the Security Service
    must be restrained from making any disclosures concerning the
    Security Service and that similar restraints must be imposed on
    anybody who receives those disclosures knowing that they are
    confidential.

    There are safeguards. No member of the Secret Service is
    immune from criminal prosecution or civil suit in respect of his
    actions. Instructions from superior officers are no defence. In
    addition, anyone, whether public servant, newspaper editor or
    journalist who is aware that a crime has been committed or is
    dissatisfied with the activities of the Secret Service is free to
    report to the police in relation to crime and in other matters is
    free to report to the Prime Minister who is charged with the
    responsibility of the security services and to the Security
    Commission which advises the Prime Minister. The Security
    Services are not above the law. In the present case there is not
    the slightest evidence that these safeguards have failed.
    Furthermore there is nothing to prevent the press investigating all
    the allegations made by Mr. Wright and reporting the results of
    their investigations to the public. It is only unlawful for the press
    to publish information unlawfully disclosed by Mr. Wright and
    which may or may not be true.

    In terms of the Convention there are three reasons why in
    the present case restraints are necessary to prevent the press
    publishing information disclosed by Mr. Wright.

    Any person who joins the Security Service accepts that he
    cannot defend himself or the Security Service against false
    accusations and cannot give any explanation for his actions or for
    the activities of the Security Service without himself thereby
    endangering the secrecy of the Security Service which is of
    paramount importance. Any person who joins the Security Service
    knows that no official defence or explanation can be given. He
    accepts that accusations may be made and circulated abroad and
    that rumours may reach individuals in this country. But he relies
    on the Attorney General, acting in the public interest, to seek to

    - 18 -

    prevent the mass circulation of accusations and attributions and
    insinuations in this country and to prevent so far as possible the
    revelation of Security Service activities. And he relies on the
    courts acting within their jurisdiction to prevent mass circulation
    of secret and confidential information in this country if the courts
    consider that such protection is necessary. The hundreds of pages
    of Spycatcher which embellish but cannot improve the general
    allegations already known to have been made by Mr. Wright may
    include accusations, purported conversations, and unfair criticisms
    which no individual member of the Secret Service can wish to be
    made the subject of sensational newspaper headlines or delivered
    up to the newspaper reading public. So long as there are in this
    country only odd copies of Spycatcher, members of the Security
    Service are substantially free from harrassment. But once mass
    circulation takes place in newspapers and particularly once The
    Sunday Times
    publishes Spycatcher in serial form, then members of
    the Security Service will be liable to be harrassed with accusations
    to which they cannot respond. The publication in this country of
    Spycatcher will thus cause grievous harm to individuals and deal a
    blow to the morale of the Security Service. The British public
    will lose confidence in the Security Service. Our friends will be
    dismayed and our enemies will rejoice at the failure of the British
    to protect the Security Service from calumny reported in the
    British press. Whatever may happen abroad it must be harmful to
    the Security Service and contrary to the public interest for Mr.
    Wright to be allowed to attack the Security Service in this country
    by revealing or pretending to reveal information which he is
    forbidden to reveal by law and loyalty. There is a great
    difference between the power of the press operating through mass
    circulation and the power of Mr. Wright confined to the export to
    this country of individual copies of Spycatcher.

    I reject the argument that the law will appear ridiculous if
    it imposes a restriction on mass circulation when any individual
    member of the public may obtain a copy of Spycatcher from
    abroad. The court cannot exceed its territorial jurisdiction but the
    court can prevent the harm which will result from mass circulation
    within its own jurisdiction and can prevent Mr. Wright and British
    newspapers from profiting from the unlawfal conduct of Mr.
    Wright. It is said that the same result could be achieved by an
    order on Mr. Wright and the newspapers to account to the
    Attorney General for any profits they will make from Spycatcher.
    The public interest does not lie in making profits but in preventing
    profits being made in this country from treachery to this country.

    In my opinion, therefore, the injunctions are necessary in
    terms of the Convention because harm will be caused to the
    Security Service if the press insist on disclosing to their readers
    not the general nature of Mr. Wright's uncorroborated allegations
    but the mass circumstantial hearsay contained in Spycatcher
    relating to the Security Service and its activities.

    The second reason which makes it necessary to continue
    restrictions on the press lies in the fact that if the injunctions are
    discharged in the present case an immutable precedent will have
    been created. If the injunctions are discharged it must follow that
    any disgruntled public servant or holder of secret or confidential
    information relating to the Security Service can achieve mass
    circulation in this country of damaging truths and falsehoods by

    - 19 -

    the device of prior publication anywhere else abroad. Nothing will
    ever again be confidential save the identity of a source whom a
    newspaper wishes to conceal. If the Millett injunctions were
    discharged, Mr. Wright could write to the Washington Post making
    a serious new allegation or bolstering up old allegations citing
    names and actions and purporting to give chapter and verse. Once
    the Washington Post had entertained an American audience with
    these revelations, then the products of Mr. Wright's recollections
    and imaginations could be plastered across the British press. I
    reject the allegation that the press are being gagged or censored
    or submitted to Soviet discipline. The Millett injunctions were not
    imposed by the Government, the injunctions were imposed and are
    being continued by independent and impartial judges because they
    consider that despite the importance of the right of freedom of
    expression it is necessary in the national interest to prevent the
    Security Service being harmed now and in the future. The
    imposition of restraints on the press in the exercise of a judicial
    discretion in conformity with the Convention is an expression and
    not a negation of democracy in action.

    There is a third and final reason why the restraints imposed
    in the present case satisfy the tests of the Convention. All the
    newspaper reports between the 27 April and 14 July 1987 were
    contrary to the object and purpose of the Millett injunctions.
    Those reports originated with Mr. Wright and his publishers abroad
    and were intended to bring pressure on the English courts to allow
    Spycatcher to be published here. The Millett injunctions cannot
    now be discharged without surrendering to the press an
    untrammelled, arbitrary and irresponsible power to evade an order
    of the court designed for the safety of the realm to protect the
    confidentiality of information obtained by a member of the Secret
    Service.

    Finally, I must refer to one proviso to the Millett
    injunctions which was deleted by the order of your Lordships'
    House on 30 July. The proviso was in these terms:

    "(2) No breach of this order shall be constituted by the
    disclosure or publication of any material disclosed in open
    court in the Supreme Court of New South Wales unless
    prohibited by the judge there sitting or which after the trial
    in action No. 4382 of 1985 is not prohibited from
    publication."

    When Millett J. made that proviso in the interests of The
    Guardian
    and The Observer it would not have occurred to him that
    other newspapers would subsequently publish extracts from
    Spycatcher. It is very likely that in the course of the proceedings
    in New South Wales long extracts from Spycatcher have been read
    in open court. The Sunday Times has demonstrated that it is
    prepared to go to any lengths to publish extracts from Spycatcher.
    The order of this House prohibiting inter alia the publication of
    extracts from Spycatcher in this country was made on Thursday,
    30 July. It was quite possible that if the proviso had not been
    deleted then on Sunday, 2 August, The Sunday Times would have
    published long extracts from Spycatcher explaining that these had
    been read in open court in New South Wales. Indeed, when
    deletion of the proviso was discussed, counsel for The Sunday
    Times
    very properly and prudently asked whether, if the proviso

    - 20 -

    were deleted, The Sunday Times would be forbidden from
    publishing extracts from Spycatcher which had been read out in
    open court, and he was informed that such was the object and
    intent of the order proposed and made by this House.

    At the conclusion of the hearing of this appeal I was
    satisfied that it was the duty of this House in its judicial capacity
    to stand firm in order to prevent harm to the Security Service, to
    preserve the right and duty of the court to uphold within the
    jurisdiction the secrecy of the Security Service when necessary and
    to ensure that the object and intent of orders made by the court
    are not flouted.

    Since writing this speech I have read in draft the speeches
    to be delivered by my colleagues. I agree with the observations
    of Lord Brandon of Oakbrook and Lord Ackner. I agree with Lord
    Oliver of Aylmerton that this is a uniquely difficult case but for
    the reasons I have set out I am unable to agree with the
    conclusions reached by my noble and learned friends, Lord Bridge
    of Harwich and Lord Oliver of Aylmerton.

    LORD ACKNER

    My Lords,

    At the conclusion of his able address on behalf of The
    Sunday Times,
    Mr. Anthony Lester Q.C. said "this case cries out
    for a sense of proportion." It became sadly apparent immediately
    after the announcement of the decision of your Lordships' House
    on 30 July that this most sensible crie de coeur went totally
    unheeded by the entire media. This, despite the fact, that it was
    clearly announced that the reasons for the decision would be given,
    but not immediately, because some of your Lordships have long
    standing commitments overseas.

    The first step towards a balanced appreciation of the
    problem which your Lordships are asked to solve, is to set out
    those facts and propositions which either are not in dispute, or are
    indisputable, so that there may be built on common ground a firm
    foundation upon which valid contentions and arguments can be
    constructed. I hope that but a tithe of the publicity given to the
    ill-informed criticisms of the majority decision of your Lordships'
    House is now accorded to the basis and the reasons given for that
    decision. If so, I believe that it will then be readily appreciated
    by the public that the temporary, and I stress temporary, remedy
    given to safeguard the efficiency of our National Security Service
    was, after paying all proper regard to safeguarding freedom of
    speech, rightly preferred to satisfying immediately the desire of
    the newspaper appellants to increase their circulation by publishing
    on a massive scale, material emanating from Mr. Wright, in
    flagrant breach of his obligations as a former senior officer in the
    British Security Service.

    First I shall state under appropriate headings that which for
    all practical purposes is not in dispute. I apologise for the
    frequent underlining but emphasis sometimes helps to clear up
    misunderstandings. Significantly, the most important of the factors

    - 21 -

    to which I will refer are to be found recorded with characteristic
    clarity in the transcript of the judgment of Sir Nicolas Browne-
    Wilkinson, the learned Vice-Chancellor, given on 15 July 1987. For
    it is upon this very judgment that the appellant newspapers place
    such a total and uncritical reliance.

    1. Mr. Wright's employment and his fundamental obligation
    owed to the Crown not to disclose confidential information

    Mr. Wright was employed for many years in a senior
    capacity by the British Security Services. During the course of his
    employment he had access to highly classified information. That
    employment imposed an absolutely crucial obligation upon Mr.
    Wright to keep that information confidential and not to publish it
    in any manner without the authority of the Crown. This is beyond
    dispute. The proceedings brought by the Crown in Australia, to
    which I will make but brief reference hereafter, were based on
    breaches of this duty of confidentiality. That such a duty of
    confidentiality existed has been admitted at all times by all
    concerned (per the Vice-Chancellor at p. 1G to H).

    2. Mr. Wright's breach of duty

    Mr. Wright retired on 31 January 1976. After his
    retirement he publicly announced that he had submitted a
    memorandum to the Chairman of a Select Committee of the House
    of Commons alleging penetration of the Security Service by foreign
    agents and calling for an inquiry. Being dissatisfied that no
    inquiry was held he decided, so he alleges, to disclose the relevant
    material in his memoirs, together with allegations of unlawful
    conduct on the part of members of the Security Service over the
    years. It was accepted by the Vice-Chancellor, and at no stage
    has the contrary been suggested to your Lordships, that Mr. Wright
    has committed a most serious breach of his duty of confidentiality
    (see p. IF of the transcript of the Vice-Chancellor's judgment). It
    has, therefore, at all times been conceded that if Mr. Wright,
    instead of emigrating to Australia, had sought to publish his book
    in this country, both he and his publishers would immediately have
    been restrained by injunctions. Furthermore, Mr. Wright would,
    prima facie, have committed serious breaches of the Official
    Secrets Acts and the reasonable assumption is that he would have
    been prosecuted.

    3. The Australian Proceedings

    The British courts do not have jurisdiction beyond their
    shores. Every sovereign nation jealously guards its own

    jurisdiction. The inability of the English courts to supply a
    remedy by granting an injunction or other relief against Mr. Wright
    is not a weakness for which the courts can be blamed.
    Accordingly, when Mr. Wright emigrated to Australia and sought to
    publish his book, all that the Crown could do was to seek an
    injunction in the courts of Australia, in particular in the courts of
    New South Wales. As the Vice-Chancellor pointed out at p. 24C,
    it was no fault of the Crown that Mr. Wright's book came into
    the public domain (I would prefer the phrase "received the
    publicity") in Australia to the extent it has. The Vice-Chancellor
    accepted that the Crown had done everything that it thought itself
    able to do to stop publication worldwide of the memoirs (p. 24C).
    Indeed, at the conclusion of his judgment the Vice-Chancellor said:

    - 22 -

    "I do not in any sense criticise, even if it were my job, the
    seriousness with which the Government has pursued this
    case."

    4. The arguable point of law

    The Vice-Chancellor, having considered at some length the
    authorities, concluded that there was an arguable point of law
    available to the Attorney General, "a novel and difficult point of
    law" as he described it, to justify a claim for a permanent
    injunction at trial, notwithstanding the publication of Spycatcher in
    America. The Attorney General had submitted to the Vice-
    Chancellor that where information has been impressed with a duty
    of confidentiality, and somebody acquires such information knowing
    that it was so communicated originally, then the person acquiring
    that information with that knowledge, himself comes under a duty
    not to disclose it further. That duty exists whether or not the
    information is otherwise in the public sphere. This view had the
    clear support of the Court of Appeal including in particular that
    of Nourse L.J. with his special knowledge of the courts' equitable
    jurisdiction. Significantly, the Law Commission in their Report on
    the Law of Breach of Confidence in 1981 (Cmnd. Paper 8388), in
    stating their understanding of the existing law, said in paragraph
    4.11:

    "The third party is liable to be restrained from disclosing or
    using information which he knows, or it would seem, he
    ought to know, was subject to an obligation of confidence."

    It is, of course, incontrovertible that the entire media, including in
    particular the appellant newspapers, well know that Mr. Wright's
    information, which they are so anxious to publish, is confidential
    information and that his publication of it has been a flagrant
    breach of his obligation of confidentiality. Mr. Gray Q.C., to
    whose excellent address I would wish to pay tribute, without in
    any way conceding that the Attorney General would ultimately
    succeed in establishing a good cause of action, accepted that the
    Attorney General had a good arguable point of law in his favour
    and indeed this had been accepted in the Court of Appeal. I
    understood and still understand all your Lordships are prepared to
    accept the Vice-Chancellor's conclusion on this point. It would, in
    my opinion, be quite wrong to seek finally to decide the validity
    of this point on a 48-hour notice emergency interlocutory appeal
    to your Lordships' House, where it was never contemplated that
    the contrary would be argued and where we have not had the
    benefit of the opinions of the Court of Appeal.

    5. The remedy available to the Crown

    It has throughout these proceedings been accepted, and the
    Vice-Chancellor so stated in terms, that an award of damages
    would be an ineffective and inappropriate remedy for the Attorney
    General. An injunction is the only thing that is any good to him
    (see p. 22G). This is so crystal clear, that the proposition requires
    no further exposition. However, as I will shortly seek to show,
    this agreed fact is of such fundamental importance and the public
    has been subjected to such confused reporting, that I feel obliged
    to stress it. If the mass publication which is now sought is

    - 23 -

    permitted before the trial of the action in which the validity of
    the Attorney General's case is to be put to the test, then there
    would be no point or purpose in such a trial. The Attorney
    General would have lost his remedy before the court was able to
    hear his case.

    6. The Crown's claim is for an interlocutory injunction

    While it is accepted that the refusal now to grant to the
    Crown an injunction pending trial will render it totally futile for
    the Crown thereafter to seek to establish that it has a claim in
    law for a permanent injunction, the grant to the Crown of an
    injunction pending the trial will not render futile the newspapers'
    continued claim to publish. This was accepted by the Vice-
    Chancellor who said:

    " . . . It is right to bear in mind that the allegations made
    by Mr. Wright in Spycatcher are in a number of respects
    'old hat.' They have been bandied around, some would think
    ad nauseam, in Mr. Chapman Pincher's book and in
    subsequent articles. There is nothing very new apparently
    about them. There is nothing urgent about them, in the
    sense that they are of recent events." (See p. 24B).

    Whether the Crown has valid cause of action, raises essentially a
    question of law, which can be (and indeed could have been)
    determined by a speedy trial at first instance, and then in the
    appellate courts, if the initial decision is not accepted. If the
    Crown fails to establish a good cause of action, the time thus
    spent will add little to the existing staleness which by now
    characterises Mr. Wright's assertions. The right of the press to
    publish and the public to know, on that hypothesis, will not have
    been totally frustrated, but only delayed. The cause of free
    speech will not have suffered. It will, on this assumption, have
    triumphed.

    7. The public interest factor

    This case involves an entirely new and highly significant
    factor which is of the greatest relevance to the exercise of the
    courts discretion in considering whether to grant or refuse an
    injunction pending trial. Both Millett J., in granting the original
    injunction, and the Vice-Chancellor, in discharging it, preceded on
    the same principle which I understand your Lordships accept, that
    when there is a conflict between the public interest of preserving
    confidentiality and some other public interest, then the court
    should favour the preservation of confidentiality, unless that other
    public interest outweighs it. But in this case there is more than
    the public interest of preserving confidentiality. Here, unlike the
    not infrequent case where a company wishes to prevent, to its
    financial detriment, the publication of its trade secrets, there is
    the following additional public interest factor accepted by the
    Vice-Chancellor and stated in these words:

    "There remains what Mr. Mummery urges is the remaining
    public interest, namely, to prevent general dissemination of
    the contents of this book through the press within the
    United Kingdom so that by discouraging general
    dissemination those who are tempted to follow Mr. Wright's

    - 24 -

    example in the future and write their memoirs hot from the
    Security Service will not find it such a satisfactory or
    profitable business." (see p. 25E to F).

    The Vice-Chancellor then gave his assessment of the significance
    of this public interest. He said:

    "I think there is force in that. I think that the ability to
    restrain the unauthorised use of confidential memoirs by
    those who do not mind abusing their confidence, so as to
    discourage others from doing it, is a real point. I do not
    think it can be just swept aside.
    " (see p. 24H to 25A).
    (emphasis added)

    The Vice-Chancellor then accepted that the United Kingdom is
    likely to be the best market for anybody writing these memoirs
    and to discourage the use of that market would be a
    discouragement indeed.

    Again, I must emphasise, that the existence of this public
    interest factor, as accepted by the Vice-Chancellor and which I
    shall further particularise, is not challenged by the newspapers and
    its existence is, I understand, fully accepted by all your Lordships.

    8. The basis of the Vice-Chancellor's decision

    The Vice-Chancellor accepted in terms that to permit
    publication would be to admit that our courts were unable to
    safeguard secrets of great public importance. He added:

    "And let nobody underestimate how important these secrets
    are. There seems to have been a temptation to treat this
    case as an unreasonable pursuit by the Government of
    unreasonable ends. This is not a view I share. The
    revelation of secrets of a security agent, it seems to me,
    are highly important and highly undesirable. I, therefore,
    think it is most regrettable, if it proves to be the case,
    that there is no way in which the court can preserve that
    confidentiality." (see p. 25A to B).

    This, no doubt, accounted for the Vice-Chancellor reaching his
    decision with "considerable hesitation," adding that he believed "the
    matter to be quite nicely weighted and in no sense obvious."

    The basis of the Vice-Chancellor's reluctant decision can be
    simply stated. He accepted and the contrary has not been argued
    before us, that Millett J.'s order granting the original injunction in
    July 1986 later upheld by the Court of Appeal was correct, but he
    considered that there had been a material change in the
    circumstances and that this change rendered it futile to continue
    the injunction. In his opinion to continue the restraint on
    publication would serve no useful purpose and make the law look
    ridiculous. In a sentence, as a result of the publication of the
    book in America, and the accepted impracticability of preventing
    the importation of the book into this country, Mr. Wright had
    "got away with it" altogether, with the result that the courts are
    now impotent, even to limit the damage which he has done.

    - 25 -

    Having set out in some detail what is or must be treated as
    common ground, I can, on the conventional approach to this
    appeal, state my reasons quite shortly, since, as I understand it,
    all your Lordships accept:

    1. That the Attorney General has an arguable case for a
      permanent injunction.

    2. That damages are a worthless remedy for the Crown
      and, if the interlocutory injunction is not continued,
      the Crown loses here, now and forever the prospect
      of achieving a permanent injunction, which it might
      well obtain if a trial were to take place.

    3. That by contrast to 2 above, the continuance of the
      interlocutory injunction is not, as the Vice-Chancellor
      accepted, "a final locking out of the press". If
      successful in the action, the press will then be able
      to publish the material which has no present urgency.

    4. That there is, as described by the Vice-Chancellor a
    real public interest concerned with the efficient
    functioning of the Security Service and that interest
    requires protection.

    It must then follow that it would be a denial of justice to
    refuse to allow the injunction to be continued until the action is
    heard.
    To refuse to continue the interlocutory injunction would
    bring about the very result that the Vice-Chancellor said should be
    avoided, namely the "sweeping aside" of the public interest factor
    without any trial. The Attorney General would thus have been
    prematurely and permanently denied any protection from the
    courts. It would be established without trial and for all time, that
    by the simple expedient of going abroad, arranging for publication
    in the press, in a country, such as the United States, where there
    is no remedy by way of injunction, the courts in this country then
    become incapable of exercising their well established jurisdiction.
    Your Lordships would have established a "Charter for Traitors" to
    publish on the most massive scale in England whatever they have
    managed to publish abroad.

    Accordingly, with every respect to the Vice-Chancellor, his
    conclusion, after carrying out the so-called "balancing operation,"
    cannot be justified. Mr. Mummery for the Crown was fully
    entitled to submit that there was a fatal inconsistency in the
    manner in which he weighed the scales.

    That is the short and simple answer to these appeals.
    However, it is so short and so simple that it has been suppressed
    by and submerged in the press hysteria which has greeted the
    announcement of your Lordships' orders. Although the press have
    transcripts of the judgment of the Vice-Chancellor, the very
    foundation upon which these appeals were based, there has been
    virtually no reference to it. The press do not wish the public to
    exercise a sense of proportion. The case has therefore to be
    presented as open and shut, admitting of no possible argument, and
    of only one decision - that favourable to the press. This one-sided
    reporting is an abuse of power and a depressing reflection of
    falling standards and values.

    - 26 -

    I do not share the Vice-Chancellor's "considerable hesitation"
    nor do I consider the case "nicely weighted." If the Vice-
    Chancellor had appreciated that the public interest factor which he
    accepted had force, was a "real point" and "cannot be swept
    aside," went much further than he realised, I do not believe he
    would have reached his reluctant decision. The so-called
    "deterrent effect," of preventing mass publication, is by no means
    as limited as he describes. Firstly, what of Mr. Wright, if your
    Lordships refused to continue these injunctions pending trial? Mr.
    Lester, with characteristic frankness, suggested that if Mr. Wright,
    whom he aptly described as an "information thief," now attempted
    to publish his book here, no injunction would lie against him or his
    English publishers since, so he submitted, it could after the
    publication in America serve no useful purpose. But "the appetite
    grows with what it feeds on." Mr. Wright's appetite may not be
    the exception. For all your Lordships know, Mr. Wright may have
    produced to date only Spycatcher Mk. I, and there may be further
    instalments still to come. Secondly, quite apart from deterring
    Mr. Wright and other members of the Security Service, who may
    in the future suffer from the same lack of loyalty, what of the
    loyal members of the Service whom they leave behind? Are they,
    or their families, to be totally unprotected by the Crown and left,
    in so far as they still survive the attack, to the highly expensive
    (there is no legal aid available) and uncertain remedy of a libel
    action, which the media not only can but may positively welcome
    defending? What material, if any, can they legitimately use in
    their own defence, without further undermining the efficiency of
    the very Service to which they wish to remain loyal?

    The function of the British Secret Service is the defence of
    the realm from dangers arising from acts of or attempts at
    espionage, sabotage or subversion. It is axiomatic that the
    efficiency of that Service is crucial. If your Lordships were to
    permit, without there being any trial of this important matter, the
    widest possible publication of the contents of this book within your
    jurisdiction, where the best market is to be found, the prejudical
    effect on the morale of the Service is bound to be considerable.
    But there is yet a further and important additional prejudicial
    consequence. It would be utterly unrealistic not to accept that
    this would cause yet further loss of confidence of friendly
    countries in the efficiency of our Service. All this is fully
    supported by the affidavits of Sir Robert Armstrong and is indeed
    obvious. To quote Millett J. in his judgment last year:

    "It is difficult to believe that a Security Service whose
    senior members were free to write their memoirs would be
    taken seriously by other secret services or that Security
    Services of friendly countries would willingly co-operate or
    share sensitive information with such a Service."

    And I would add "and the more so if the courts of the disloyal

    member stand idly by, wringing their hands, and doing nothing

    within their own jurisdiction to stop mass circulation, even pending
    trial."

    My Lords, English Justice will have come to a pretty pass,
    if our inability to control what happens beyond our shores is to
    result in total incapacity to control what happens within our very
    own jurisdiction. Some 60 years ago, the then Lord Chancellor,
    Lord Sankey, said:

    - 27 -

    "Amid the cross-currents and shifting sands of public life
    the Law is like a great rock upon which a man may set his
    feet and be safe ..."

    For the word "rock" the appellants would have your
    Lordships now read "jellyfish"!

    If the publication of this book in America is to have, for all
    practical purposes, the effect of nullifying the jurisdiction of the
    English courts to enforce compliance with the duty of confidence
    both by interlocutory and by permanent injunction, then, as Mr.
    Mummery ruefully observed, English law would have surrendered to
    the American Constitution. There the courts, by virtue of the
    First Amendment, are, I understand, powerless to control the press.
    Fortunately, the press in this country is, as yet, not above the
    Law, although like some other powerful organisations, they would
    like that to be so, that is, until they require the Law's protection.

    My noble and learned friend, Lord Bridge, in the course of
    argument asked the question which he considered to be crucial, "Is
    there any irreparable harm that Mr. Wright has not done yet?" I
    would answer that question with an emphatic "Yes." The
    appellants' arguments proceed upon the basis of an obvious fallacy.
    They submit that as a result of the publication of the book in
    America, the existing injunctions can no longer serve any useful
    purpose. It is, of course, abundantly clear that the injunctions are
    no longer effective to safeguard any national secrets that the book
    might contain. They are indeed "out of the bag" but from that it
    does not follow that the function of the injunctions is spent. The
    recent crescendo of protestations in the press proves that there is
    all the difference in the world between tolerating the importation
    of casual copies, as opposed to the mass circulation of the
    material contained in the book, which the newspapers and the
    media are so bent upon achieving.

    There remain three other points with which I should deal.
    These are:

    (1) The European Convention of Human Rights

    Mr. Lester laid great emphasis upon the provisions of
    Article 10 of the European Convention dealing with the freedom of
    expression. Article 10(2) provides qualifications and exceptions to
    which the exercise of free expression may be made subject. They
    include such conditions:

    "as are prescribed by Law and are necessary in a
    democratic society in the interests of National Security . . .
    for the protection of the . . . rights of others, for
    preventing the disclosure of information received in
    confidence. . . "

    Given that it is accepted that the Crown has an arguable
    case for a permanent injunction, that damages are a useless
    remedy; that there exists a significant public interest factor and
    that your Lordships are concerned only with a pre-trial restraint
    on publication, I see no prospect of the Convention availing the
    appellants. Indeed I adopt all my learned and noble friend, Lord

    - 28 -

    Templeman, has said in his closely reasoned judgment as to the
    relevance and applicablity of Article 10, and I fully support the
    conclusion at which he, unlike my noble and learned friend, Lord
    Bridge of Harwich, arrives.

    (2) The Financial Remedy

    The suggestion has been made that the only true remedy in
    a situation such as Mr. Wright's is, to quote a phrase used in the
    judgment of the American case of Snepp v. United States [1980]
    444 U.S. 507, that Mr. Wright (and I assume also his publishers),
    should be required "to disgorge the benefits of his faithlessness."
    Translated into more conventional forensic language, I understand
    this to mean that there should be an action for an account of the
    profits which he and his publishers have made, payment thereof to
    the Crown, together with exemplary damages on some undefined
    basis. There are at least three answers to the suggestion that this
    would be an adequate remedy. Firstly, your Lordships know not
    whether such a remedy can be obtained in Australia or Canada or
    elsewhere where this book may be published, with the possible
    exception of America. Secondly, the practical problems of
    enforceability may indeed be very great, particularly in cases
    where the author has spent his profits and the publishers have
    disposed of them in some way or another. However, most
    important of all, profit may not have been the motivation for the
    publication. An ex-employee of the Service may be embittered or
    unbalanced, may publish his memoirs out of spite to embarrass his
    superiors; to mount some eccentric campaign or publish for any
    number of other reasons. With all respect to the ingenuity behind
    the argument of a financial remedy, I must confess that it left me
    quite unimpressed.

    (3) The removal of the proviso in Millett J.'s order relative to
    material disclosed in the Australian Courts

    This proviso read as follows:

    "No breach of this order shall be constituted by the
    disclosure or publication of any material disclosed in open
    court in the Supreme Court of New South Wales unless
    prohibited by the judge there sitting or which after the trial
    therein in action No. 4382 of 1935 is not prohibited by
    publication."

    When the matter came before the Court of Appeal last
    month as a result of the Vice-Chancellor discharging the injuctions,
    the Court of Appeal, of its own motion, deleted the second half of
    that proviso, that is to say, the words "or which after the trial
    there in action No. 4382 of 1985 is not prohibited from
    publication."

    The Master of the Rolls, in giving his judgment said:

    "If it be held that the law of Australia does not prevent
    publication by or on behalf of Mr. Wright in that
    Commonwealth, the position there will be the same as it
    appears to be in the United States and it is not clear to me
    why such a conclusion should be treated as decisive of quite
    a different issue, namely whether as a matter of English

    - 29 -

    Law Mr. Wright, or anyone else within the jurisdiction,
    should be permitted to profit from the exploitation of the
    United Kingdom market for Wright material. Certainly this
    should not be an automatic consequence and the newspapers
    and anybody else affected by the injunction should be free
    to apply to the court for a modification of the injunction
    after the Australian proceedings are concluded, if they
    consider the result of those proceedings to be material."

    I entirely agree with those observations. Mr. Mummery,
    initially in the course of the hearing of the appeals did not seek
    to support that part of the order of the Court of Appeal.
    However, when it was pointed out to him that if your Lordships
    were minded to approve the continuation of the injunctions pending
    trial, such orders could be automatically frustrated if the Crown
    failed before the Court of Appeal of New South Wales, and failed
    to obtain any prohibition on publication in Australia pending appeal
    to the High Court, Mr. Mummery then sought to support its
    deletion. Mr. Gray and Mr. Lester fairly conceded the logic of
    the Master of the Rolls and I need spend no further time on that
    part of the proviso.

    However, when your Lordships were considering the orders
    which should be made in the event of the appeals being dismissed,
    it occurred to the majority of your Lordships that the first half of
    the proviso should also be deleted. As my noble and learned
    friend, Lord Templeman, has demonstrated by his detailed
    references to the dates of the relevant events, there has been an
    orchestrated and sustained attempt to achieve a situation from
    which the courts would be powerless to excercise their undoubted
    jurisdiction to prevent or even limit these serious breaches of
    confidentiality and the resultant prejudice to the efficiency of the
    British Security Service.

    It has required no imagination to anticipate the resentment
    which the newspapers and, indeed, the entire media, would feel
    and vociferously express, if we ultimately imposed a restraint on
    publication, albeit a temporary restraint. Moreover, it is a fact of
    life, however regrettable, that there are elements in the press as
    a whole which not only lack responsibility, but integrity. A very
    recent civil action has provided a glaring example. It would have
    been absurd and naive of your Lordships not to have appreciated
    that every attempt would inevitably have been made to frustrate
    your Lordships' orders. The "antic disposition" of the press and
    the media following the announcement of the orders, establishes
    this fully. The first part of the proviso supplied a potential
    loophole which might somehow, by hook or by crook, have been
    used by such elements to nullify the temporary damage limitation
    operation which the majority of us thought essential. This risk
    fully justified our taking this most unusual course in this wholly
    unique situation

    Conclusion

    1. Your Lordships indisputably have the power to continue
      these temporary restraining orders.

    2. The public interest in maintaining the efficiency of the
      National Security Service, upon which the safety of this realm is
      dependent, requires your Lordships to exercise that jurisdiction.

    - 30 -

    (3) To abdicate that responsibility in the face of pressure
    from the press and media would be a serious defeat both for the
    independence of the judiciary and for the Rule of Law.

    LORD OLIVER OF AYLMERTON

    My Lords,

    Prior to his finally leaving the service of the Crown in 1976
    Mr. Peter Wright occupied a number of senior positions in the
    counter-espionage branch of the British Security Service. His
    appointment to those positions involved, beyond argument, an
    obligation to preserve the secrecy and confidentiality of
    information coming to his knowledge in the course of his duties.
    For motives which have not been explored and which are, in any
    event, immaterial, Mr. Wright, having retired and taken up
    residence in Australia, set about writing and arranging for the
    publication of his memoirs. He has written a book in which he
    deploys a great deal of information about the operation of the
    Service to which he formerly belonged. It may be that some or
    all of it is speculative or imaginary. I do not know. But we
    must, for present purposes, accept his own assessment of it and
    the book purports to be his truthful recollection of events in which
    he participated in the course of his duties or which came to his
    knowledge by virtue of his confidential position. There could
    hardly be a clearer or more flagrant breach of Mr. Wright's
    obligation of confidentiality.

    In September 1985 Her Majesty's Attorney General caused
    proceedings to be instituted in the Supreme Court of New South
    Wales against both Mr. Wright and the company, Heinemann
    Publishers Australia Pty. Ltd., which was proposing to publish his
    manuscript, claiming an injunction against the disclosure and
    publication of confidential material. Those proceedings, which
    culminated in a trial at which the Attorney General's claim was
    dismissed, received considerable publicity both in Australia and in
    the United Kingdom. An appeal against the decision of the trial
    judge is currently being heard and undertakings by the defendants
    not to publish the memoirs in Australia have been given to
    preserve the position pending the hearing of the appeal.

    In June 1986 The Observer and Guardian newspapers
    published an outline of some allegations contained in the memoirs
    which, so it was said, were going to be canvassed in the
    Australian proceedings. On the 27 June 1986 the Attorney General
    commenced proceedings against both newspapers and obtained ex
    parte injunctions against further publication of information derived
    from Mr. Wright in his capacity as a member of the Security
    Service or information in or excerpts from his as yet unpublished
    memoirs. Applications to vary or discharge those injunctions were
    heard by Millett J. on 11 July 1986 when the injunctions were
    continued until trial or further order in a modified form. The
    newspapers appealed to the Court of Appeal which, on 25 July
    1986, affirmed the order of Millett J. with the addition of a
    proviso preserving the right of the defendants to publish fair and
    accurate reports of proceedings in Parliament or in a court in the
    United Kingdom sitting in public.

    - 31 -

    Millett J.'s order was, so far as material, in the following
    terms: it restrained the defendants until judgment in the action or
    further order in the meantime from:

    "(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 have been obtained whether directly or
    indirectly from the said Peter Maurice Wright.

    (2) Attributing in any disclosure or publication made by
    them to any person any information concerning the
    British Security Service to the said Peter Maurice
    Wright whether by name or otherwise provided that
    (1) this Order shall not prohibit direct quotation of
    attributions to Peter Maurice Wright already made by
    Mr. Chapman Pincher in published works or in a
    television programme or programmes broadcast by
    Granada Television; (2) no breach of this Order shall
    be constituted by the disclosure or publication of any
    material disclosed in Open Court in the Supreme
    Court of New South Wales unless prohibited by the
    Judge there sitting or which, after the trial there in
    action no. 3582 of 1985, is not prohibited from
    publication."

    The order reserved liberty to apply to vary or discharge on 24
    hours notice.

    The issues and the circumstances in which they arose were
    fully analysed by Millett J. in the course of a careful and
    admirable judgment. At that time, although many of the
    allegations which, it was understood, Mr. Wright was making had
    been publicly ventilated before in the press, on television and in
    books published by others (in one of which Mr. Wright was said to
    have collaborated), the full part played or said to have been
    played by him had not been publicly proclaimed. It was known
    that he had been a member of the Security Service and it was
    known that he was, regrettably, seeking to publish his memoirs in
    breach of his duty. What was not publicly known was the extent
    to which Mr. Wright was proposing to flesh out the skeleton of
    what was already public knowledge or to corroborate previously
    canvassed allegations from his own personal experience and
    knowledge. As Millett J. expressed it: "The objection is not to
    the allegations themselves, but to Mr. Wright's input." "The
    concern is not with what Mr. Wright says, but with the fact that
    it is a former senior officer of the Security Service who says it."
    What was new about Mr. Wright was, first, that here was a former
    member of the Security Service seeking to publish his memoirs
    without prior authority and, secondly, that the insight which that
    publication would give into the working of the Service would,
    because of his position, carry a spurious stamp of authenticity.
    Although it was said that Mr. Wright had had access to classified
    information of the highest sensitivity it was not suggested that
    such information was disclosed by the proposed book. But, as was
    pointed out by Sir Robert Armstrong in his second affidavit sworn

    - 32 -

    in the Australian action, even unclassified and, on its face,
    innocuous information may take on a wider significance when
    combined with other information in the possession of those whose
    interests are inimical to those of this country. The damage likely
    to flow from the publication of the memoirs was summarised by
    Sir Robert in paragraph 10 of his first affidavit sworn in those
    proceedings as follows:

    "The publication of any narrative prepared or contributed to
    by [Mr. Wright] which is based upon information available to
    him as a senior member of the British Security Service
    would be likely to cause unquantifiable damage by reason of
    the disclosures involved. Additionally, it will clearly damage
    the work of the British Security Service and thereby the
    national security of the United Kingdom in the following
    further respects:

    "(a) The Intelligence and Security Services of
    friendly foreign countries with which the British
    Security Service is in liaison would be likely to
    lose confidence in its ability to protect
    classified information;

    (b) The British Security Service depends upon the
    confidence and co-operation of other
    organisations and persons. That confidence
    would suffer serious damage should [Mr. Wright]
    reveal information of the nature described
    above;

    (c) There would be a risk that other persons who
    are or have been employed in the British
    Security Service who have had access to similar
    information might seek to publish it."

    It was substantially upon this evidence that Millett J. relied
    in reaching the conclusion that he ought to continue the ex parte
    injunction granted against the defendants albeit in a somewhat
    modified form. It was a conclusion which he reached after a most
    careful balancing of the interests both of the plaintiff and of the
    public in preserving confidentiality and those of the defendants in
    the free dissemination of information and comment upon matters
    which were, quite clearly, of grave public concern. One
    consideration which clearly weighed heavily in the Attorney
    General's favour was, to quote the judge's words, that:

    "The refusal of injunctive relief would permit indirect
    publication and effectively and permanently deprive the
    Attorney General of his rights in advance of trial."

    At the same time, Millett J. was careful to ensure that the
    injunction should not go beyond the strict requirements of the
    interests which they were designed to safeguard; in particular he
    added the proviso as regards publication in Australia which has
    formed the subject-matter of debate before your Lordships. He
    did so in these terms:

    "I should also add a proviso so that the defendants may be
    at liberty to publish matters disclosed in open court in the

    - 33 -

    proceedings in Australia, or which after the trial there are
    not prohibited from publication. This is not because I
    consider that the court should simply follow what is decided
    in Australia, but because I see no reason why these
    defendants should be discriminated against by being denied
    the right to publish information which in the circumstances
    every other newspaper in the world will be free to publish,
    including English newspapers and foreign newspapers
    circulating in England. Mr. Laws submitted that this was a
    future matter which could properly be dealt with under the
    liberty to apply. I disagree. In the newspaper world time
    is of the essence, and should the Crown's attempts to
    safeguard what it conceives to be the legitimate interests of
    the Security Service fail, the court should not uselessly put
    the defendants at a disadvantage when compared with their
    competitors."

    My Lords, in common with all your Lordships, I entertain no
    doubt whatever that Millett J.'s order, in the circumstances which
    existed at that time, was entirely correct. But it is, in the light
    of the arguments ventilated before your Lordships on this appeal,
    essential to bear in mind the circumstances in which it was made,
    the purpose for which it was made and the limitations which the
    judge thought it right to impose upon its operation. Mr. Wright's
    allegations had not then been published in any part of the world
    and their publication was inhibited pending trial in the only
    country in which publication was then threatened. The damage
    apprehended by the Attorney General was, therefore, capable of
    being contained, at least temporarily, so long as general
    publication could be prevented.

    A little over a year has passed since those injunctions were
    granted. During that time, the action in Australia has been tried
    and has received wide and perfectly proper publicity both in this
    country and elsewhere. Such of the allegations of Mr. Wright as
    have emerged in the course of proceedings in open court in New
    South Wales and the fact that at least some of the material dealt
    with in the memoirs has already been permitted to be published
    without objection or hindrance and the reason why that has
    occurred, have been, again quite properly, the subject-matter of
    public interest and debate. In April 1987 an English newspaper,
    The Independent, which was not directly inhibited by any order of
    the court, published a summary of the allegations made by Mr.
    Wright including a number of what purported at any rate to be the
    verbatim quotations from the manuscript text of the proposed book
    (by that time referred to the name Spycatcher under which it has
    subsequently been published.) Parts of The Independent report
    were, on the same day, published by the London Evening Standard
    and the London Daily News and were referred to in television and
    radio news bulletins. Almost immediately afterwards further
    disclosure of the material in Spycatcher was displayed in articles
    in the Melbourne Age and The Canberra Times in Australia. On 3
    May 1987 the Washington Post, which enjoys no doubt a very
    limited circulation in the United Kingdom but which is obtainable
    at some newsagents in London and, I imagine, in other major cities
    and airports, published a major article regarding the contents of
    Spycatcher.

    - 34 -

    In the light of the fact that many, if not all, of Mr.
    Wright's allegations had, for good or ill, achieved a notoriety far
    beyond anything that existed at the date of the original injunctions
    against the appellants, they moved the court for an order to vary
    or discharge the injunctions and that came before the Vice-
    Chancellor on 7 May 1987. In the meantime, however, the
    Attorney General had moved to commit the editor of The
    Independent
    and to sequestrate that newspaper's assets for
    contempt of court in publishing the summary of the contents of
    Spycatcher in its article on 27 April. Accordingly the hearing of
    the appellant's application to discharge was stood over until after
    the hearing of the contempt motion. Judgment on that motion
    was given by the Vice-Chancellor on 2 June when he dismissed the
    motion. The Attorney General immediately appealed to the Court
    of Appeal and the appellants' restored application for discharge
    was further stood over until after the hearing of that appeal. In
    the meantime, three events occurred. First, on 14 May an
    American publisher, Viking Penguin Incorporated, a subsidiary of an
    English company, announced that it was proposing to publish
    Spycatcher in the United States. It is and was clear that any
    proceedings by the Attorney General to prevent publication in the
    courts of the United States were foredoomed to failure as a
    matter of law and the English parent company was resistant to
    suggestions that it should seek to prevent its United States
    subsidiary from proceeding with the publication. Secondly, on 12
    July, The Sunday Times, which was, like The Independent, not then
    directly enjoined from publication, published the first of what were
    intended to be several instalments of the serialisation of extensive
    extracts from the book itself. That publication was timed to
    coincide with the third event, that is to say, the first publication
    of the book in the United States, which took place on 14 July.
    On that day, with extensive publicity, the book was put on sale in
    major bookshops throughout the United States, including, perhaps
    not surprisingly, bookstalls at Kennedy Airport. The evidence is
    that it has moved into the bestseller class and is being reprinted.
    It is now notorious that not wholly insubstantial quantities have
    been and are being imported into the United Kingdom and are on
    sale here, though not, I think, through the normal book distribution
    network. It has been announced that the Government has decided
    not to take steps to prevent such imports, on the ground that to
    do so would be unworkable and ineffective. The books can thus be
    freely obtained here or can be ordered by telephone from the
    United States by any member of the public sufficiently interested
    to do so.

    On 15 July the Court of Appeal allowed the appeal against
    the Vice-Chancellor's dismissal of the contempt motion against The
    Independent,
    holding (in reasons given two days later) that, without
    deciding that the publication complained of actually constituted a
    contempt, it was capable of doing so if the necessary intent could
    be proved. On 16 July the Vice-Chancellor granted an injunction
    restraining The Sunday Times from publishing the remaining
    instalments of its threatened serialisation.

    It was against this background that the substantive hearing
    of the appellants' application for the discharge of the original
    injunctions against them took place on 15 July. In a long and
    careful extemporary judgment, the Vice-Chancellor, having
    reviewed the facts and the authorities, concluded that there had

    - 35 -

    been a most material change of circumstances since the grant of
    the original injunctions but that he ought still to assume that
    there remained an arguable case in favour of the grant of
    permanent injunctions at trial. Accordingly, he approached the
    case as one to which the ordinary American Cyanamid principles
    applied. Having most carefully balanced the factors for and
    against continuing the injunctions he reached the conclusion that
    the balance lay in favour of the appellants and accordingly ordered
    that the injunctions be discharged. From that decision the
    Attorney General appealed to the Court of Appeal which, on 24
    July, reversed the Vice-Chancellor but substituted for the original
    injunctions new injunctions prohibiting the publication of any
    extract from Spycatcher or of any statement by Mr. Wright
    concerning the British or any other Security Service but with a
    proviso that the order should not prevent "the publication of a
    summary in very general terms of the allegations made by Mr.
    Wright." This was something for which neither side had asked and
    neither side has sought to support it before your Lordships. It is,
    if I may say so with respect to the Court of Appeal, manifestly
    unsatisfactory. What the Attorney General seeks to restrain are
    not the ipsissima verba of Mr. Wright, as if these were actions for
    infringement of copyright, but the substance of the allegations
    which he has made in breach of his duty of confidence and against
    which the substituted injunctions provide substantially no
    protection. What the appellants wish to be free to do is to
    publicise and comment upon those allegations and a liberty to do
    so only in "very general terms" would be calculated to leave any
    newspaper editor in a state of bewilderment with no certain guide
    as to what are "general terms" and how general is "very general."
    It is clear that the Court of Appeal, faced with the stark choice
    of all or nothing - a choice which has been reiterated before your
    Lordships - conceived this formula as a via media and that they
    regarded the Vice-Chancellor as having erred in perceiving that all
    or nothing was the only choice with which he was faced. Lord
    Justice Gibson indeed indicated that, faced with that choice, he
    would have upheld the conclusion that the injunctions must be
    discharged. I mention this because it seems to be to dispose of
    any suggestion that in reaching the conclusion that he did, the
    Vice-Chancellor was so plainly wrong that an appellate court is at
    liberty without more to substitute its own discretion. There must
    be borne in mind always the limited function of an appellate
    tribunal in an appeal against the exercise of a judicial discretion
    and I remind myself of the cautionary words of Lord Diplock in
    Hadmore Productions v. Hamilton [1983] 1 A.C. 191 at p. 220:

    "An interlocutory injunction is a discretionary relief and the
    discretion whether or not to grant it is vested in the High
    Court judge by whom the application for it is heard. Upon
    a appeal from the judge's grant or refusal of an
    interlocutory injunction the function of an appellate court,
    whether it be the Court of Appeal or your Lordships' House,
    is not to exercise an independent discretion of its own. It
    must defer to the judge's exercise of his discretion and
    must not interfere with it merely upon the ground that the
    members of the appellate court would have exercised the
    discretion differently. The function of the appellate court
    is initially one of review only. It may set aside the judge's
    exercise of his discretion on the ground that it was based
    upon a misunderstanding of the law or of evidence before

    - 36 -

    him or upon an inference that particular facts existed or did
    not exist, which, although it was one which might
    legitimately have been drawn upon the evidence that was
    before the judge, can be demonstrated to be wrong by
    further evidence that has become available by the time of
    the appeal; or upon the ground that there has been a change
    of circumstances after the judge made his order that would
    have justified his acceding to an application to vary it.
    Since reasons given by judges for granting or refusing
    interlocutory injunctions may sometimes be sketchy there
    may also be occasions where even though no erroneous
    assumption of law or fact can be identified the judge's
    decision to grant or refuse the injunction is so aberrant that
    it must be set aside upon the ground that no reasonable
    judge regardful of his duty to act judicially could have
    reached it. It is only if and after the appellate court has
    reached the conclusion that the judge's exercise of his
    discretion must be set aside for one or other of these
    reasons, that it becomes entitled to exercise an original
    discretion of its own."

    It was said in the Court of Appeal that the Vice-Chancellor
    had erred in principle in two respects. First it was said that he
    approached the case on the footing that he had to consider not
    whether the altered circumstances warranted the discharge of the
    injunctions but whether, in the altered circumstances, injunctions
    should be granted de novo. For my part, I think this is a
    distinction without a difference. Essentially the questions posed
    are the same and I can see no error in the Vice-Chancellor's
    approach. Then it was said that he erred in principle in not
    perceiving and considering the via media which the Court
    propounded. Neither side seeks now to suggest that he was in
    error in that respect. What is now said is that he erred in not
    seeing an inconsistency between his assumption that the Attorney
    General still had an arguable case for an injunction at trial and an
    order discharging the existing injunction which would, in effect,
    decide the issue by rendering futile the further prosecution of the
    claim. But that is a choice which sometimes the court is
    compelled to make. The mere fact of an arguable case - and it
    is clear that the Vice-Chancellor considered it less than strongly
    arguable - does not automatically entitle the plaintiff to an
    injunction pending trial, particularly in a case where it is common
    ground that damages would not be an adequate or appropriate
    compensation for an injunction subsequently vacated. It was a
    matter which the Vice-Chancellor had clearly in mind and which
    he took into consideration in the careful balancing exercise in
    which he engaged. The majority of your Lordships take the view
    that he got the balance wrong but, for my part, I detect no error
    in his approach and I would be content to decide this appeal on
    the simple ground that the conclusion at which he arrived was a
    proper exercise of the discretion with which he, as the judge of
    first instance, was invested and one with which an appellate court
    ought not to interfere. But this is an unique case - unique, as I
    very much hope, in its facts and unique in its importance. It is
    right, therefore, that I should state the reasons which have led me
    to agree with the Vice-Chancellor, more particularly because the
    majority of your Lordships consider not only that his decision was
    wrong in principle but, indeed, that the injunctions should be
    strengthened even beyond the terms in which they were originally

    - 37 -

    granted by Millett J. and beyond the terms for which the Attorney
    General has asked. At the outset, there has to be borne in mind
    a factor which is, in my judgment, of critical importance. The
    appellants before your Lordships are The Observer and The
    Guardian
    newspapers. The Sunday Times, which is affected by the
    injunctions as a result of contempt proceedings, has appeared and
    argued in support of their appeals. It may - I do not know - be
    in some special position as a result of the purchase, in
    circumstances of which we know nothing, of some rights in Mr.
    Wright's or his publishers' copyright in the book. But the
    injunctions, whilst they no doubt, as matters stand, affect other
    newspapers and other organs of the news media, are injunctions
    against the appellants and it is with their position that your
    Lordships are primarily concerned. It must therefore be kept
    clearly in mind that the appellants have done and are proposing to
    do nothing which is not normally involved in the proper conduct of
    their legitimate business of collecting, disseminating and
    commenting upon news which they regard as of interest to their
    reading public. It so happens that, most regrettably, a former
    servant of the Crown has chosen to publicise that which was
    confided to him under an obligation of secrecy but the appellants
    have not themselves been party to the revelation of the
    confidential information to the public. I quote from the judgment
    of the Vice-Chancellor:

    "So, in the present case, it is not suggested, nor could it be
    suggested, that The Guardian and The Observer had in any
    sense been involved in any activity with Mr. Wright leading
    to the publication of his book. Anything they would wish to
    publish in the future would be obtainable from the public
    domain from Spycatcher itself. They have not aided and
    abetted Mr. Wright in his breach of duty. That seems to
    me to be a new case not covered by authority."

    I echo that, for I have not been able to find nor have your
    Lordships been referred to any previously reported decision which
    could be said to be even remotely parallel to the instant case.

    My Lords, a visitor to this jurisdiction (carrying, perhaps,
    copies of Spycatcher and the Washington Post in his hand) might, I
    think pardonably, be surprised at the situation with which he is
    confronted on his arrival in the land which many regard as the
    cradle of democratic liberty. Outside these shores he and every
    other member of the public can read newspaper reports of and
    comments on Mr. Wright's memoirs. He can listen to them -
    perhaps listen to them ad nauseam - on radio and television.
    Those reports and comments can be acquired and read throughout
    Europe. They can be acquired and read from newspapers published
    from Trodheim to Taranto and from newspapers freely imported
    from the United States, Canada, the Antipodes and the Irish
    Republic. They can even - or could at the date of the hearing
    before your Lordships - be published and broadcast as close to
    home as Scotland, Northern Ireland and the Channel Islands. It is
    a no doubt regrettable but inescapable fact of life that Mr.
    Wright's allegations are available to the news media for public
    ventilation everywhere except in England. Even in Australia,
    where the principal action is proceeding, the only parties enjoined
    from publication so far as I am aware are Mr. Wright and his
    publishers. Yet The Guardian and The Observer newspapers, and

    - 38 -

    effectively the entire English press and other news media, remain
    prohibited from reproducing or commenting upon matter contained
    in a book which can be and is being obtained freely by members
    of the public here and which can on occasions be seen being read,
    with what attention or enjoyment I know not, by travellers on the
    London Underground.

    This is a situation which, I venture to think, none of your
    Lordships regards as anything but extremely regrettable. Where I
    differ from the majority of your Lordships is in the assessment of
    whether the continuation of the injunctions, perfectly rational and
    explicable in their origins, can now any longer be justified and
    whether, constitutionally and in the public interest in a free
    society, they ought to be permitted to continue even temporarily
    pending a full trial, possibly a year or more hence, of the issues
    raised on the pleadings in this case. In saying this I do not
    underestimate the obvious importance of the public interest in
    protecting the Security Service. What I question is both the
    effectiveness and the appropriateness, in the circumstances as they
    now exist, of seeking to do so by continuing against these
    appellants a fetter on disclosure of information which, for good or
    ill, is now freely obtainable and disclosable by other members of
    the public.

    In substance, the arguments in favour of the continuation of
    interlocutory injunctive relief, notwithstanding the existing and
    almost certainly increasing availability of the information upon
    which comment is restrained, are threefold. First, it is said that
    the continuation of the injunctions will serve the purpose of
    sustaining the morale of the Security Service. I put it that way
    although it has been negatively expressed by Mr. Mummery in his
    able and persuasive argument. As he has put it, the discharge of
    the injunction will be damaging to morale, and it will be so in two
    ways. First - and this arises rather from argument than from any
    evidence which has been filed in the proceedings - it may be
    disconcerting to existing members of the Service if they feel that
    they may, in the future, figure in the memoirs of some fellow
    member without effective interference by the court. Equally,
    existing members of the Service who may be disgruntled or
    avaricious may be encouraged to write their memoirs if Mr. Wright
    is seen to "get away with it" by gaining even wider currency for
    his allegations than exists already. Secondly, it is said that
    although the information publication of which is sought to be
    restrained has become public, publicised, notorious and available
    virtually everywhere in the world outside England, and although it
    is available here to anyone sufficiently interested to seek it by
    buying or borrowing a copy of Spycatcher, that situation has been
    brought about by the machinations of the wrongdoers whom it is
    sought to restrain in the Australian action. An English court, it is
    submitted, ought to be reluctant to permit its orders to be set at
    naught by the very people whose wrongful action gave rise to the
    action in which the orders were made. Thirdly, it is argued, the
    injunctions sought by the Attorney General are interlocutory only.
    None of the information the publication of which it is sought to
    restrain can be said to be of vital immediate moment. All of it
    relates to events which occurred - if they did occur - 12 or more
    years ago. What real harm, it is argued, when the public has been
    deprived of this information for 12 years, can there be in holding
    up further distribution of it for a further year or two years until

    - 39 -

    the action has been brought to trial and it can be determined
    definitively whether the Attorney General is or is not entitled to
    an injunction to restrain its dissemination for all time? The Vice-
    Chancellor having accepted, so it is argued, that the Attorney-
    General has still an arguable case for an injunction at trial, to
    determine the present application against him would, in effect, be
    to render a trial otiose, for even total victory would be certain to
    be barren. On the other hand, to continue the restraint against
    the appellants, even if they are totally in the right, would merely
    be to postpone for a period the publication of what is pretty stale
    news anyway.

    My Lords, this case is, as I have said, an unique case. For
    my part, I have found it also uniquely difficult because of the
    cogency of the arguments on both sides and of the very finely
    balanced considerations which, partly as a matter of convenience
    and partly as a matter of policy, require to be taken into account.
    There was a point during the argument when the skill of Mr.
    Mummery's advocacy almost persuaded me to take the same view
    as the majority of your Lordships. Further reflection impelled me
    to an opposite conclusion, but I mention it lest, in the predictable
    clamour aroused when your Lordships' decision was announced, it
    should be thought that the solution of the very difficult problems
    posed came easily or obviously to any member of your Lordships'
    House. In the end I have been persuaded to a conclusion opposed
    to that of the majority of your Lordships but, like the Vice-
    Chancellor whose decision I would uphold, with a degree of
    hesitation.

    Taking the arguments which have been deployed in turn,
    that which seeks to justify the continuation of the injunctions on
    what I may call the Admiral Byng principle, "pour encourager les
    autres," I find less than persuasive as a matter of fact, but more
    importantly, it involves, I believe, a misuse of the injunctive
    remedy against these appellants. The morale effect within the
    Service is, as I see it, the only aspect of the damage to the
    Service envisaged in the evidence before Millett J. which can still
    have any relevance. In so far as the publication of Mr. Wright's
    memoirs involves disclosure of material of interest to an inimical
    foreign power or decreases the confidence of other friendly
    security services in the secrecy of the United Kingdom's Service,
    that damage must already have been irrevocably done whether or
    not the appellants are permitted to give further currency to the
    memoirs or to comments upon them. The only remaining question
    is how far the continuation of the injunctions serves to maintain
    the efficiency of the Service. So far as an injunction against the
    English press, whether permanent or temporary, might act as a
    deterrent to other members of the Service, it seems to me that
    its frailty is demonstrable and has already been demonstrated by
    the obvious ease with which publication may be brought about in
    other parts of the world. It is accepted that it cannot be
    restrained in the United States and that route remains open
    whether or not publication is permitted here. It is at least
    questionable how far, if publication took place within the Common
    Market, importation could be effectively restricted in the absence
    of compelling reasons of national security. Moreover, the
    deterrent effect of proceedings for an account of profits remains
    and the determination with which the present claim has been and
    is being pursued against Mr. Wright should be ample demonstration

    - 40 -

    that the path of the would-be publisher of confidences would not
    be easy. As to the insecurity which may be felt by existing
    members of the Service, the fact is that, whether or not the news
    media here can be restrained from publishing allegations by their
    fellow members, the free availability of the book in this country
    demonstrates the continued existence of that risk. The suggestion
    is that the fears of members of the Service will be allayed by the
    knowledge that the readiest market for news of this sort and the
    section of the world public most likely to be interested will be cut
    off from publication. I could see the force of this if the
    information had indeed been effectively cut off, but when one
    considers the degree of publicity that has already occurred - and
    occurred without any impropriety on the part of the appellant -
    the contention loses much, if not all, of its impact. When
    allegations, however unfair and possibly untrue have already been
    made the subject-matter of extensive public discussion and are
    freely current worldwide in book form and in foreign newspapers
    circulating both here and abroad, further restraint on public
    discussion can, I should have thought, provide little reassurance.
    But even allowing that there remains any substance in this
    argument, I question whether the imposition of an injunction on A
    simply in order to punish B and to provide an example to C is a
    correct or permissible use of an injunctive remedy. The injunction
    was originally imposed in order to preserve the confidentiality of
    the then unpublished allegations. That confidentiality has now,
    without fault on the part of the appellants, been irrevocably
    destroyed and, no doubt, destroyed as a result of a calculated
    policy adopted by Mr. Wright and those associated with him. I am
    as reluctant as any of your Lordships to acknowledge that the
    intention of the court has been effectively flouted by a public
    dissemination which the courts in this jurisdiction are powerless to
    prevent. But once that has occurred and the proscribed material
    is available for public ventilation and discussion by everybody
    except those subject to the existing restraint, I question whether it
    can be right to continue that restraint against parties in no way
    concerned with flouting the court's orders and to interfere with
    their legitimate business of publishing and commenting upon
    matters already in the public domain for the purpose, not of
    preventing that which can no longer be prevented, but of punishing
    Mr. Wright and providing an example to others. I can well see -
    and this equally applies to the second argument to which I have
    referred - that the denial to Mr. Wright of the audience that he
    most desires to reach may provide a cogent reason why the
    Attorney General may wish to maintain the injunctions, but I am
    not persuaded that, as against these appellants, it constitutes a
    proper justification for them. It does so only if, in seeking
    further to publish what is already public, they can properly be said
    to be threatening some invasion of private law right of the Crown.

    It is the third argument on behalf of the Attorney General
    which has given me the greatest concern, for although it results in
    a situation which cannot, as I think, do anything but engender
    disrespect for the law, it has an appealing logic given the major
    premise upon which it is based, that is to say, that there remains
    an arguable case for the grant of permanent injunctions against
    these appellants at the trial. In the events which have happened I
    question that premise, although the appellants have - I sense
    somewhat reluctantly - presented their arguments on that footing.
    The judgment of the Vice-Chancellor contains a penetrating

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    analysis of the applicable principles of law and of the process of
    reasoning which led him to the conclusion that the appellants, in
    acquiring information from the book which is now on public sale,
    albeit in limited numbers, could not properly be restrained from
    republication of facts or allegations which are already public
    property. No useful purpose would be served in repeating that
    analysis and I am content to accept and adopt it. I accept, of
    course, that it is no necessary impediment to the claim of a
    plaintiff in an action for breach of confidence that the information
    the publication of which is complained of is capable of being
    discovered or assembled from sources available to the public. I
    accept too, for present purposes, that even where the very
    information sought to be used has previously been made public,
    there may be circumstances in which the recipient, by contract or
    conduct, comes under a fiduciary obligation to refrain from
    unauthorised republication. The case of Schering Chemicals Ltd. v.
    Falkman
    [1982] Q.B. 1 was such a case, although it has not been
    without its critics (see Report of the Law Commission (No. 110)
    paragraph 6.67). That case is, however, in my judgment, clearly
    distinguishable from the instant case, for there the defendants
    were the original recipient of the information (who was, arguably,
    himself bound by contract to keep the information confidential and
    certainly had accepted the obligation to do so as one of the terms
    upon which he was afforded facilities by the plaintiffs) and a
    television company which was directly involved in assisting him,
    with knowledge of the circumstances, in breaching his obligation.
    In so far as the majority judgments suggest that, apart from direct
    obligation or complicity in the breach of a direct obligation,
    information in the public domain can be the subject-matter of a
    claim for breach of confidence, I would, for my part, prefer the
    powerful dissenting judgment of Lord Denning M.R. Again, I
    accept that the confidant who has himself made public the
    information confided to him cannot rely upon the publicity which
    he himself has generated so as to destroy the confidentiality.
    That equally must apply to anyone who knowingly aids and abets
    him in his unauthorised disclosure. But, as was pointed out by the
    Vice-Chancellor, the salient feature of the instant case and one
    which distinguishes all previous authorities, is that the persons
    against whom relief is sought are persons who have come upon the
    information sought to be protected without having been involved in
    any way in its wrongful publication. The justification for the
    imposition of a restraint upon republication by such a person must,
    in my judgment, rest upon the premise that once he knows that
    the information was confidential and has been disclosed in breach
    of confidence, it would be unconscionable for him to make use of
    it. Once, however, that information has been so widely
    disseminated that it can properly be said to be in the public
    domain then it ceases to be any longer confidential information.
    There cannot be an injunction against use or republication by the
    general public and it cannot, in my judgment, any longer be said
    to be unconscionable for a person untainted with complicity in its
    original publication to make use of that which is available to be
    made use of by everyone else, save possibly the original confidant
    and those who have aided and abetted him. So far as they are
    concerned, I do not for my part accept that continued availability
    of injunctive relief against them stands or falls with the
    continuation of the injunctions against these appeallants. The case
    of Schering Chemicals Ltd. v. Falkman indicate quite otherwise.
    The Vice-Chancellor was led to assume that there still remained

    - 42 -

    an arguable case because the point of law involved was a difficult
    and novel one. So it is, but, as was pointed out in the course of
    the argument, the case of the Attorney General is unlikely to
    improve between now and the trial and your Lordships have, as it
    seems to me, all the material required to determine the point. I
    fully appreciate the point which is forcefully made in the speeches
    of the majority of your Lordships that the question should not now
    be determined without a further argument for which the trial
    would provide an occasion, but for my part, I find it difficult to
    see how, once the information has achieved such a degree of
    public availability and notoriety that any member of the public
    may legitimately possess himself of it, read it, discuss it and pass
    it on to others, it can be right to regard it as otherwise than in
    the public domain. If that is right then I find it even more
    difficult to see how it could be successfully argued that the
    appellants should be permanently enjoined from "disclosing to any
    person" (including presumably their own employees) information
    which has been and is being freely disclosed by members of the
    public to one another by selling or lending a book which is in free
    and open circulation.

    All other considerations apart, I find difficulty in seeing how
    a permanent injunction at trial would be other than brutum
    fulmen. In the action the appellants raise the defences of public
    interest and iniquity, issues which, I should have thought, cannot
    possibly be tried without an investigation of the very allegations
    which it is sought to restrain. Are we to be presented with the
    unedifying spectacle of a court trying the action or a substantial
    part of it in camera, not for the purpose of preserving secrets of
    the State or anything of that nature, but simply in order to
    prevent the public from learning and commenting upon allegations
    which are contained in a book which any member of the public is
    at liberty to go out and buy in the market place? If the
    injunction sought at trial is not to be rendered otiose in the very
    process of obtaining it, that would seem to be a necessary
    consequence, but it involves making a serious and entirely novel
    intrusion upon the principle that legal proceedings should be
    conducted in public and it cannot, I should have thought, do
    otherwise than bring the law into disrespect.

    It is said that there is a public interest in ensuring that
    confidentiality of information should be preserved and that, even
    though it may be available generally, the appellants, in
    contradistinction to others not concerned in the business of
    disseminating news, ought to be restrained because of the width of
    their potential circulation. But that, as the Vice-Chancellor
    remarked, is the negation of freedom of the press. "If," he said
    "the press is precluded from saying things that other people are
    not precluded from, that seems to be not a freedom of the press
    but an additional fetter on it." We do not have a First
    Amendment but, as Blackstone observed, the liberty of press is
    essential to the nature of a free state. The price that we pay is
    that that liberty may be and sometimes is harnessed to the
    carriage of liars or charlatans, but that cannot be avoided if the
    liberty is to be preserved. No one contends that the liberty is
    absolute and there are occasions when it must yield to national
    emergency, to considerations of national security, and, on occasion,
    to private law rights of confidentiality where they are not
    overborne by some countervailing public interest. I do not for a

    - 43 -

    moment dispute that there are occasions when the strength of the
    public interest in the preservation of confidentiality outweighs even
    the importance of the free exercise of the essential privileges
    which lie at the roots of our society. But if those privileges are
    to be overborne, then they must be overborne to some purpose.
    The argument is not perhaps much assisted by homely metaphors
    about empty stables or escaping cats, but I cannot help but feel
    that your Lordships are being asked in the light of what has now
    occurred to beat the air and to interfere with an essential
    freedom for the preservation of a confidentiality that has already
    been lost beyond recall. It was recognised by Millett J. when the
    injunctions were granted by him that indirect publication elsewhere
    would largely stultify the Attorney General's claim. The same
    recognition of reality is to be found in the judgment of the Court
    of Appeal in the contempt motion against The Sunday Times.
    That indeed, was the raison d'etre of the injunctions. It is a
    matter for regret that that has now in fact occurred, but the
    reality has to be faced. Once information has travelled into the
    public domain by whatever means and is the subject-matter of
    public discussion in the press and other public media abroad - I
    emphasise again without fault on the part of the appellants - I
    find it unacceptable that publication and discussion in the press in
    this country should be further restrained. In practical terms I
    cannot see how the appellants can, at the trial, properly be
    restrained by permanent injunction for making use of information
    of which every other newspaper and the news media generally
    throughout the western hemisphere are free to make use. Ideas,
    however unpopular or unpalatable, once released and however
    released into the open air of free discussion and circulation,
    cannot for ever be effectively proscribed as if they were a
    virulent disease. "Facilis descensus Averni" and to attempt, even
    temporarily, to create a sort of judicial cordon sanitaire against
    the infection from abroad of public comment and discussion is not
    only, as I believe, certain to be ineffective but involves taking the
    first steps upon a very perilous path.

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Bridge of Harwich,
    and I share the concern which he there expresses. However
    regrettable it may be, I do not think that any arguable case for a
    permanent injunction at the trial now remains and I would
    accordingly allow the appeal and restore the order of the Vice-
    Chancellor.

    - 44 -


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