6 Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6 (13 October 1988)

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URL: http://www.bailii.org/uk/cases/UKHL/1988/6.html
Cite as: [1987] WLR 776, [1990] AC 109, [1988] UKHL 6, [1987] 1 WLR 776, [1990] 1 AC 109, [1988] 3 All ER 545

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/248

    Her Majesty's Attorney General (Appellant)

    v.
    The Observer Limited and others (Respondents)

    JUDGMENT

    Die Jovis 13° Octobris 1988

    Upon Report from the Appellate Committee to whom was
    referred the Cause Her Majesty's Attorney General against The
    Observer Limited and others, That the Committee had heard
    Counsel on Tuesday the 14th, Wednesday the 15th, Thursday the
    16th, Monday the 20th, Wednesday the 22nd and Thursday the
    23rd days of June last, upon the Petition and Appeal of Her
    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 the 10th day of February
    1988, as amended on the 14th and 31st days of March 1988,
    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 Petitioner 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 case of The Observer
    Limited, Donald Trelford, David Leigh, Paul Lashmar, Guardian
    Newspapers Limited, Peter Preston and Richard Norton Taylor,
    lodged in answer to the said appeal; and due consideration had
    this day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 10th day of February 1988, as amended on the
    14th and 31st days of March 1988, complained of in the said
    Appeal be, and the same is hereby, Affirmed and that the said
    Petition and Appeal be, and the same is hereby, dismissed this
    House: And it is further Ordered, That the Appellant do pay
    or cause to be paid to the said Respondents the Costs incurred
    by them in respect of the said Appeal, the amount thereof to
    be certified by the Clerk of the Parliaments if not agreed
    between the parties.

    Cler: Parliamentor:

    Judgment: 13.10.88

    HOUSE OF LORDS


    HER MAJESTY'S ATTORNEY GENERAL
    (APPELLANT)


    v.

    THE OBSERVER LIMITED AND OTHERS
    (RESPONDENTS)

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

    v.

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

    (CONJOINED APPEALS)

    Lord Keith of Kinkel
    Lord Brightman
    Lord Griffiths
    Lord Goff of Chieveley
    Lord Jauncey

    of Tullichettle

    LORD KEITH OF KINKEL
    My Lords,

    From 1955 to 1976 Peter Wright was employed in a senior
    capacity by the counter-espionage branch of the British Security
    Service known as M.I.5. In that capacity he acquired knowledge of
    a great many matters of prime importance to the security of the
    country. Following his retirement from the service he went to
    live in Australia and later formed the intention of writing and
    publishing a book of memoirs describing his experiences in the
    service. He wrote the book in association with a man named Paul
    Greengrass, and it was accepted for publication by Heinemann
    Publishers Pty. Ltd., the Australian subsidiary of a well known
    English publishing company. The Attorney-General in right of the
    Crown, learning of the intended publication of the book, instituted
    in 1985 proceedings in New South Wales against Mr. Wright and
    Heinemann Publishers claiming an injunction to restrain the
    publication in Australia or alternatively an account of profits.
    Pending trial, Mr. Wright, the publishers and their solicitors gave
    undertakings not to reveal the contents of the book. The
    Attorney-General's action failed before Powell J. and again before
    the Court of Appeal of New South Wales. Special leave to appeal
    was granted by the High Court of Australia, but the respondents
    were released from their undertakings. So the book was published
    in Australia on 13 October 1987, under the title of Spycatcher.
    On 2 June 1988 the High Court dismissed the Attorney-General's
    appeal upon the sole ground that an Australian court should not
    accept jurisdiction to enforce an obligation of confidence owed to
    a foreign government so as to protect that government's
    intelligence secrets and confidential political information. In the

    - 1 -
    meantime Spycatcher had on 14 July 1987 been published in the
    United States of America by Viking Penguin Inc., a subsidiary of
    an English publishing company. Her Majesty's Government had
    been advised that, in view of the terms of the First Amendment
    to the United States Constitution, any attempt to restrain
    publication there would be certain to fail. Publication also took
    place in Canada, the Republic of Ireland, and a number of other
    countries. Her Majesty's Government decided that it was
    impracticable and undesirable to take any steps to prevent the
    importation into the United Kingdom of copies of the book, and a
    very substantial number of copies have in fact been imported. So
    the contents of the book have been disseminated world wide and
    anyone in this country who is interested can obtain a copy without
    undue difficulty.

    The earlier history of the litigation in England of which the
    present appeals are the culmination, is set out in the judgment of
    Scott J. [1988] 2 W.L.R. 805, 814-819. There is no need to
    recapitulate it. The issues raised in the litigation are thus
    summarised in the judgment of Sir John Donaldson M.R. in the
    Court of Appeal [1988] 2 W.L.R. 805, 871;

    "(1) Were the 'Observer' and 'The Guardian' in breach of
    their duty of confidentiality when, on 22 and 23 June
    1986, they respectively published articles on the
    forthcoming hearing in Australia? If so, would they
    have been restrained from publishing if the Attorney-
    General had been able to seek the assistance of the
    court? . . .

    1. Was 'The Sunday Times' in breach of its duty of
      confidentiality when, on 12 July 1987 it published the
      first extract of an intended serialisation of
      Spycatcher? . . .

    2. Is the Attorney-General now entitled to an injunction
      (a) in relation to the 'Observer' and 'The Guardian'
      and (b) in relation to 'The Sunday Times' with special
      consideration to further serialisation? . . .

    3. Is the Attorney-General entitled to an account of the
      profits accruing to 'The Sunday Times' as a result of
      the serialisation of Spycatcher? . . .

    4. Is the Attorney-General entitled to some general
      injunction restraining future publication of information
      derived from Mr. Wright or other members or ex-
      members of the Security Service? ..."

    As regards issue (1) Scott J. and the majority of the Court
    of Appeal (Dillon and Bingham LL.J., Sir John Donaldson M.R.
    dissenting) held that the publication of the articles in question was
    not in breach of an obligation of confidence.

    On issue (2) Scott J. and the majority of the Court of
    Appeal (Bingham L.J, dissenting) held that the publication of the
    first extract from Spycatcher was in breach of an obligation of
    confidence.

    - 2 -

    Upon issue (3) Scott J. and the Court of Appeal held that
    the Attorney-General was not entitled to an injunction against the
    "Observer" and "The Guardian" nor (Sir John Donaldson M.R.
    dissenting) against further serialisation of Spycatcher by 'The
    Sunday Times."

    As to issue (4) Scott J. and the majority of the Court of
    Appeal (Bingham L.J. dissenting) decided this in favour of the
    Attorney-General.

    Issue (5) was decided against the Attorney-General both by
    Scott J. and by the Court of Appeal.

    The Attorney-General now appeals to your Lordships' House
    upon all the issues on which he failed below. "The Sunday Times"
    cross-appeals against the decision on account of profits.

    The Crown's case upon all the issues which arise invokes the
    law about confidentiality. So it is convenient to start by
    considering the nature and scope of that law. The law has long
    recognised that an obligation of confidence can arise out of
    particular relationships. Examples are the relationships of doctor
    and patient, priest and penitent, solicitor and client, banker and
    customer. The obligation may be imposed by an express or
    implied term in a contract but it may also exist independently of
    any contract on the basis of an independent equitable principle of
    confidence: Saltman Engineering Co. Ltd, v. Campbell Engineering
    Co. Ltd.
    (1948) 65 R.P.G. 203. It is worthy of some examination
    whether or not detriment to the confider of confidential
    information is an essential ingredient of his cause of action in
    seeking to restrain by injunction a breach of confidence.
    Presumably that may be so as regards an action for damages in
    respect of a past breach of confidence. If the confider has
    suffered no detriment thereby he can hardly be in a position to
    recover compensatory damages. However, the true view may be
    that he would be entitled to nominal damages. Most of the cases
    have arisen in circumstances where there has been a threatened or
    actual breach of confidence by an employee or ex-employee of the
    plaintiff, or where information about the plaintiff's business affairs
    has been given in confidence to someone who has proceeded to
    exploit it for his own benefit: an example of the latter type of
    case is Seager v. Copydex Ltd. [1967] 1 W.L.R. 923. In such cases
    the detriment to the confider is clear. In other cases there may
    be no financial detriment to the confider, since the breach of
    confidence involves no more than an invasion of personal privacy.
    Thus in Duchess of Argyll v. Duke of Argyll [1967] Ch. 302 an
    injunction was granted against the revelation of marital
    confidences. The right to personal privacy is clearly one which
    the law should in this field seek to protect. If a profit has been
    made through the revelation in breach of confidence of details of
    a person's private life it is appropriate that the profit should be
    accounted for to that person. Further as a general rule it is in
    the public interest that confidences should be respected, and the
    encouragement of such respect may in itself constitute a sufficient
    ground for recognising and enforcing the obligation of confidence
    even where the confider can point to no specific detriment to
    himself. Information about a person's private and personal affairs
    may be of a nature which shows him up in a favourable light and
    would by no means expose him to criticism. The anonymous donor

    - 3 -

    of a very large sum to a very worthy cause has his own reasons
    for wishing to remain anonymous, which are unlikely to be
    discreditable. He should surely be in a position to restrain
    disclosure in breach of confidence of his identity in connection
    with the donation. So I would think it a sufficient detriment to
    the confider that information given in confidence is to be disclosed
    to persons whom he would prefer not to know of it, even though
    the disclosure would not be harmful to him in any positive way.

    The position of the Crown, as representing the continuing
    government of the country may, however, be regarded as being
    special. In some instances disclosure of confidential information
    entrusted to a servant of the Crown may result in a financial loss
    to the public. In other instances such disclosure may tend to
    harm the public interest by impeding the efficient attainment of
    proper governmental ends, and the revelation of defence or
    intelligence secrets certainly falls into that category. The Crown,
    however, as representing the nation as a whole, has no private life
    or personal feelings capable of being hurt by the disclosure of
    confidential information. In so far as the Crown acts to prevent
    such disclosure or to seek redress for it on confidentiality grounds,
    it must necessarily, in my opinion, be in a position to show that
    the disclosure is likely to damage or has damaged the public
    interest. How far the Crown has to go in order to show this must
    depend on the circumstances of each case. In a question with a
    Crown servant himself, or others acting as his agents, the general
    public interest in the preservation of confidentiality, and in
    encouraging other Crown servants to preserve it, may suffice. But
    where the publication is proposed to be made by third parties
    unconnected with the particular confidant, the position may be
    different. The Crown's argument in the present case would go the
    length that in all circumstances where the original disclosure has
    been made by a Crown servant in breach of his obligation of
    confidence any person to whose knowledge the information comes
    and who is aware of the breach comes under an equitable duty
    binding his conscience not to communicate the information to
    anyone else irrespective of the circumstances under which he
    acquired the knowledge. In my opinion that general proposition is
    untenable and impracticable, in addition to being unsupported by
    any authority. The general rule is that anyone is entitled to
    communicate anything he pleases to anyone else, by speech or in
    writing or in any other way. That rule is limited by the law of
    defamation and other restrictions similar to these mentioned in
    article 10 of the Convention for the Protection of Human Rights
    and Fundamental Freedoms (1953) (Cmd. 8969). All those
    restrictions are imposed in the light of considerations of public
    interest such as to countervail the public interest in freedom of
    expression. A communication about some aspect of government
    activity which does no harm to the interests of the nation cannot,
    even where the original disclosure has been made in breach of
    confidence, be restrained on the ground of a nebulous equitable
    duty of conscience serving no useful practical purpose.

    There are two important cases in which the special position
    of a government in relation to the preservation of confidence has
    been considered. The first of them is Attorney-General v.
    Jonathan Cape Ltd.
    [1976] Q.B. 752. That was an action for
    injunctions to restrain publication of the political diaries of the
    late Richard Grossman, which contained details of Cabinet

    - 4 -

    discussions held some ten years previously, and also of advice
    given to Ministers by civil servants. Lord Widgery C.J. said at pp.
    770-771:

    "In these actions we are concerned with the publication of
    diaries at a time when 11 years have expired since the first
    recorded events. The Attorney-General must show (a) that
    such publication would be in breach of confidence; (b) that
    the public interest requires that the publication be
    restrained, and (c) that there are no other facts of the
    public interest contradictory of and more compelling than
    that relied upon. However, the court, when asked to
    restrain such a publication, must closely examine the extent
    to which relief is necessary to ensure that restrictions are
    not imposed beyond the strict requirement of public need."

    Lord Widgery went on to say that while the expression of
    individual opinions by Cabinet Ministers in the course of Cabinet
    discussions were matters of confidence, the publication of which
    could be restrained by the court when clearly necessary in the
    public interest, there must be a limit in time after which the
    confidential character of the information would lapse. Having read
    the whole of volume one of the diaries he did not consider that
    publication of anything in them, ten years after the event, would
    inhibit full discussion in the Cabinet at the present time or
    thereafter, or damage the doctrine of joint Cabinet responsibility.
    He also dismissed the argument that publication of advice given by
    senior civil servants would be likely to inhibit the frankness of
    advice given by such civil servants in the future. So in the result
    Lord Widgery's decision turned on his view that it had not been
    shown that publication of the diaries would do any harm to the
    public interest.

    The second case is Commonwealth of Australia v. John
    Fairfax & Sons Ltd.
    (1980) 147 C.L.R. 39. That was a decision of
    Mason J. in the High Court of Australia, dealing with an
    application by the Commonwealth for an interlocutory injunction to
    restrain publication of a book containing the texts of government
    documents concerned with its relations with other countries, in
    particular the government of Indonesia in connection with the
    "East Timor Crisis." The documents appeared to have been leaked
    by a civil servant. Restraint of publication was claimed on the
    ground of breach of confidence and also on that of infringement of
    copyright. Mason J. granted an injunction on the latter ground but
    not on the former. Having mentioned at p. 51 an argument for
    the Commonwealth that the government was entitled to protect
    information which was not public property, even if no public
    interest is served by maintaining confidentiality, he continued at
    pp. 51-52:

    "However, the plaintiff must show, not only that the
    information is confidential in quality and that it was
    imparted so as to import an obligation of confidence, but
    also that there will be 'an unauthorised use of that
    information to the detriment of the party communicating it'
    (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at p.
    47). The question then, when the executive government
    seeks the protection given by equity, is: What detriment
    does it need to show?

    - 5 -

    The equitable principle has been fashioned to protect
    the personal, private and proprietary interests of the citizen,
    not to protect the very different interests of the executive
    government. It acts, or is supposed to act, not according to
    standards of private interest, but in the public interest.
    This is not to say that equity will not protect information
    in the hands of the government, but it is to say that when
    equity protects government information it will look at the
    matter through different spectacles.

    It may be a sufficient detriment to the citizen that
    disclosure of information relating to his affairs will expose
    his actions to public discussion and criticism. But it can
    scarcely be a relevant detriment to the government that
    publication of material concerning its actions will merely
    expose it to public discussion and criticism. It is
    unacceptable in our democratic society that there should be
    a restraint on the publication of information relating to
    government when the only vice of that information is that
    it enables the public to discuss, review and criticize
    government action.

    Accordingly, the court will determine the

    government's claim to confidentiality by reference to the

    public interest. Unless disclosure is likely to injure the
    public interest, it will not be protected.

    The court will not prevent the publication of
    information which merely throws light on the past workings
    of government, even if it be not public property, so long as
    it does not prejudice the community in other respects.
    Then disclosure will itself serve the public interest in
    keeping the community informed and in promoting discussion
    of public affairs. If, however, it appears that disclosure
    will be inimical to the public interest because national
    security, relations with foreign countries or the ordinary
    business of government will be prejudiced, disclosure will be
    restrained. There will be cases in which the conflicting
    considerations will be finely balanced, where it is difficult
    to decide whether the public's interest in knowing and in
    expressing its opinion, outweighs the need to protect
    confidentiality."

    I find myself is broad agreement with this statement by
    Mason J. In particular I agree that a government is not in a
    position to win the assistance of the court in restraining the
    publication of information imparted in confidence by it or its
    predecessors unless it can show that publication would be harmful
    to the public interest.

    In relation to Mr. Wright, there can be no doubt whatever
    that had he sought to bring about the first publication of his book
    in this country, the Crown would have been entitled to an
    injunction restraining him. The work of a member of M.I.5. and
    the information which he acquires in the course of that work must
    necessarily be secret and confidential and be kept secret and
    confidential by him. There is no room for discrimination between
    secrets of greater or lesser importance, nor any room for close
    examination of the precise manner in which revelation of any

    - 6 -

    particular matter may prejudice the national interest. Any
    attempt to do so would lead to further damage. All this has been
    accepted from beginning to end by each of the judges in this
    country who has had occasion to consider the case and also by
    counsel for the respondents. It is common ground that neither the
    defence of prior publication nor the so called "iniquity" defence
    would have availed Mr. Wright had he sought to publish his book in
    England. The sporadic and low key prior publication of certain
    specific allegations of wrongdoing could not conceivably weigh in
    favour of allowing publication of this whole book of detailed
    memoirs describing the operations of the security service over a
    lengthy period and naming and describing many members of if not
    previously known to be such. The damage to the public interest
    involved in a publication of that character, in which the
    allegations in question occupy a fairly small space, vastly outweigh
    all other considerations. The question whether Mr. Wright or those
    acting for him would be at liberty to publish Spycatcher in
    England under existing circumstances does not arise for immediate
    consideration. These circumstances include the worldwide
    dissemination of the contents of the book which has been brought
    about by Mr. Wright's wrongdoing. In my opinion general
    publication in this country would not bring about any significant
    damage to the public interest beyond what has already been done.
    All such secrets as the book may contain have been revealed to
    any intelligence services whose interests are opposed to those of
    the United Kingdom. Any damage to the confidence imposed in
    the British Intelligence Services by those of friendly countries
    brought about by Mr. Wright's actions would not be materially
    increased by publication here. It is, however, urged on behalf of
    the Crown that such publication might prompt Mr. Wright into
    making further disclosures, would expose existing and past members
    of the British Intelligence Services to harassment by the media and
    might result in their disclosing other secret material with a view,
    perhaps, to refuting. Mr. Wright's account and would damage the
    morale of such members by the spectacle of Mr. Wright having got
    away with his treachery. While giving due weight to the evidence
    of Sir Robert Armstrong on these matters, I have not been
    persuaded that the effect of publication in England would be to
    bring about greater damage in the respects founded upon than has
    already been caused by the widespread publication elsewhere in the
    world. In the result, the case for an injunction now against
    publication by or on behalf of Mr. Wright would in my opinion rest
    upon the principle that he should not be permitted to take
    advantage of his own wrongdoing.

    The newspapers which are the respondents in this appeal
    were not responsible for the worldwide dissemination of the
    contents of Spycatcher which has taken place. It is a general rule
    of law that a third party who comes into possession of confidential
    information which he knows to be such, may come under a duty
    not to pass it on to anyone else. Thus in Duchess of Argyll v.
    Duke of Argyll
    [1967] Ch. 302 the newspaper to which the Duke
    had communicated the information about the Duchess was
    restrained by injunction from publishing it. However, in that case
    there was no doubt but that the publication would cause detriment
    to the Duchess in the sense I have considered above. In the
    present case the third parties are "The Guardian" and the
    "Observer" on the one hand and "The Sunday Times" on the other
    hand. The first two of these newspapers wish to report and

    -7-

    comment upon the substance of the allegations made in
    Spycatcher. They say that they have no intention of serialising it.
    By virtue of section 6 of the Copyright Act 1956 they might,
    without infringing copyright, quote passages from the book for
    purposes of "criticism or review." "The Sunday Times" for their
    part, wish to complete their serialisation of Spycatcher. The
    question is whether the Crown is entitled to an injunction
    restraining the three newspapers from doing what they wish to do.
    This is the third of the issues identified by Sir John Donaldson
    M.R. in the court below. For the reasons which I have indicated
    in dealing with the position of Mr. Wright, I am of the opinion
    that the reports and comments proposed by 'The Guardian" and the
    "Observer" would not be harmful to the public interest, nor would
    the continued serialisation by 'The Sunday Times." I would
    therefore refuse an injunction against any of the newspapers. I
    would stress that I do not base this upon any balancing of public
    interest nor upon any considerations of freedom of the press, nor
    upon any possible defences of prior publication or just cause or
    excuse, but simply upon the view that ail possible damage to the
    interest of the Crown has already been done by the publication of
    Spycatcher abroad and the ready availability of copies in this
    country.

    It is possible, I think, to envisage cases where, even in the
    light of widespread publication abroad of certain information, a
    person whom that information concerned might be entitled to
    restrain publication by a third party in this country. For example,
    if in the Argyll case the Duke had secured the revelation of the
    marital secrets in an American newspaper, the Duchess could
    reasonably claim that publication of the same material in England
    would bring it to the attention of people who would otherwise be
    unlikely to learn of it and who were more closely interested in her
    activities than American readers. The publication in England
    would be more harmful to her - than publication in America.
    Similar considerations would apply to, say, a publication in
    America by the medical adviser to an English pop group about
    diseases for which he had treated them. But it cannot reasonably
    be held in the present case that publication in England now of the
    contents of Spycatcher would do any more harm to the public
    interest than has already been done.

    In relation to future serialisations by "The Sunday Times,"
    the Master of the Rolls took the view that this newspaper stood in
    the shoes of Mr. Wright by virtue of the licence which it had been
    granted by the publishers. The cost of this licence was A$150,000
    of which A$25,000 was to be paid at once and the balance after
    the serialisation. So Mr. Wright and his publishers will benefit
    from future instalments of it. The Master of the Rolls considered
    that there was a strong public interest in preventing Mr. Wright
    and his publishers from profiting from their wrongdoing. There
    can be no doubt that the prospect of Mr. Wright receiving further
    sums of money from "The Sunday Times" as a reward for his
    treachery is a revolting one. But a natural desire to deprive Mr.
    Wright of profit does not appear to me to constitute a legally
    valid ground for enjoining the newspaper from a publication which
    would not in itself damage the interests of the Crown. Indeed, it
    appears that Mr. Wright would have no legally enforceable claim
    against "The Sunday Times" for payment, upon the principle of ex
    turpi causa non oritur actio. Whether "The Sunday Times" is

    - 8 -

    bound to account for the profits of serialisation I shall consider
    later.

    The next issue for examination is conveniently the one as to
    whether 'The Sunday Times" was in breach of an obligation of
    confidentiality when it published the first serialised extract from
    Spycatcher on 12 July 1987. I have no hesitation in holding that it
    was. Those responsible for the publication well know that the
    material was confidential in character and had not as a whole
    been previously published anywhere. Justification for the
    publication is sought to be found in the circumstance that
    publication in the United States of America was known to be
    imminent. That will not hold water for a moment. It was Mr.
    Wright and those acting for him who were about to bring about
    the American publication in breach of confidence. The fact that a
    primary confidant, having communicated the confidential
    information to a third party in breach of obligation, is about to
    reveal it similarly to someone else, does not entitle that third
    party to do the same. The third party to whom the information
    has been wrongfully revealed himself comes under a duty of
    confidence to the original confider. The fact that his informant is
    about to commit further breaches of his obligation cannot
    conceivably relieve the third party of his own. If it were
    otherwise an agreement between two confidants each to publish
    the confidential information would relieve each of them of his
    obligation, which would be absurd and deprive the law about
    confidentiality of all content. The purpose of "The Sunday Times"
    was of course to steal a march on the American publication so as
    to be the first to reveal, for its own profit, the confidential
    material. The evidence of Mr. Neil, editor of "The Sunday Times,"
    makes it clear that his intention was to publish his instalment of
    Spycatcher at least a full week before the American publication
    and this was in the event reduced to two days only because
    circumstances caused that publication to be brought forward a
    week. There can be no question but that the Crown, had it
    learned of the intended publication in "The Sunday Times", would
    have been entitled to an injunction to restrain it. Mr. Neil
    employed peculiarly sneaky methods to avoid this. Neither the
    defence of prior publication nor that of just cause or excuse would
    in my opinion have been available to 'The Sunday Times," As
    regards the former, the circumstance that certain allegations had
    been previously made and published was not capable of justifying
    publication in the newspaper of lengthy extracts from Spycatcher
    which went into details about the working of the security service.
    As to just cause or excuse it is not sufficient to set up the
    defence merely to show that allegations of wrongdoing have been
    made. There must be at least a prima facie case that the
    allegations have substance. The mere fact that it was Mr. Wright,
    a former member of M.I.5. who, with the assistance of a
    collaborator, had made the allegations, was not in itself enough to
    establish such a prima facie case. In any event the publication
    went far beyond the mere reporting of allegations, in so far as it
    set out substantial parts of the text of Spycatcher. For example,
    the alleged plot to assassinate Colonel Nasser occupies but one
    page of a book, in paperback, of 387 pages, and the alleged plot
    to destabilise Mr. Wilson's government about 5 pages. In this
    connection it is to be noted that counsel for "The Sunday Times"
    accepted that neither of the two defences would have availed Mr.
    Wright had he sought to publish the text of Spycatcher in England.

    - 9 -

    There is no reason of logic or principle why "The Sunday Times"
    should have been in any better position acting as it was under his
    licence.

    This leads on to consideration of the question whether "The
    Sunday Times" should be held liable to account to the Crown for
    profits made from past and future serialisation of Spycatcher. An
    account of profits made through breach of confidence is a
    recognised form of remedy available to a claimant: Peter Pan
    Manufacturing Corporation v. Corsets Silhouette Ltd.
    [1969] 1
    W.L.R. 96; cf. Reading v. Attorney-General [1951] AC 507. In
    cases where the information disclosed is of a commercial character
    an account of profits may provide some compensation to the
    claimant for loss which he has suffered through the disclosure, but
    damages are the main remedy for such loss. The remedy is, in
    my opinion, more satisfactorily to be attributed to the principle
    that no one should be permitted to gain from his own wrongdoing.
    Its availability may also, in general, serve a useful purpose in
    lessening the temptation for recipients of confidential information
    to misuse it for financial gain. In the present case "The Sunday
    Times" did misuse confidential information and it would be naive
    to suppose that the prospect of financial gain was not one of the
    reasons why it did so. I can perceive no good ground why the
    remedy should not be made available to the Crown in the
    circumstances of this case, and I would therefore hold the Crown
    entitled to an account of profits in respect of the publication on
    12 July 1987. I would add that in my opinion 'The Sunday Times,"
    in the taking of the account, is not entitled to deduct in
    computing any gain the sums paid to Mr. Wright's publishers as
    consideration for the licence granted by the latter, since neither
    Mr. Wright nor his publishers were or would in the future be in a
    position to maintain an action in England for recovery of such
    payments. Nor would the Courts of this country enforce a claim
    by them to the copyright in a work the publication of which they
    had brought about contrary to the public interest: cf. Glyn v.
    Western Feature Film Co.
    1916 1 Ch. 261 at p. 269. Mr Wright is
    powerless to prevent anyone who chooses to do so from publishing
    "Spycatcher" in whole or in part in this country, or to obtain any
    other remedy against them. There remains of course, the question
    whether the Crown might successfully maintain a claim that it is
    in equity the owner of the copyright in the book. Such a claim
    has not yet been advanced, but might well succeed if it were to
    be.

    In relation to future serialisation of further parts of the
    book, however, it must be kept in mind that the proposed subject
    matter of it has now become generally available and that 'The
    Sunday Times" is not responsible for this having happened. In the
    circumstances 'The Sunday Times" will not be committing any
    wrong against the Crown by publishing that subject matter and
    should not therefore be liable to account for any resultant profits.
    It is in no different position from anyone else who now might
    choose to publish the book by serialisation or otherwise.

    The next matter for consideration, though the point is not
    now of any practical importance is whether the "Observer" and
    'The Guardian" were in breach of an obligation of confidence by
    the publication of their articles on 22 and 23 June 1986. The
    circumstances were that Mr. Wright and Heinemann and their

    - 10 -

    solicitors had given to the New South Wales court, pending trial of
    the action there, undertakings not to disclose any information
    gained by Mr. Wright in the course of his service with M.I.5.
    Scott J. found, and it has never been disputed by counsel for the
    two newspapers, that information about the allegations described in
    the two articles must have been obtained from someone in the
    office of the publishers or in that of their solicitors. Scott J.
    also inferred that the newspapers must have known of the
    undertakings that had been given. There can be no question of
    the articles having been a fair and accurate report of proceedings
    in the New South Wales court. Such a report could only cover
    matters which had actually been divulged in open court. The
    newspapers knew that the information in question was of a
    confidential nature, deriving as it did from Mr. Wright and relating
    to his experiences in M.I.5. Some of the allegations, albeit of
    minor significance, had never previously been published at all. The
    allegations about Sir Roger Hollis had received quite widespred
    publicity in various books and newspapers and had been made by
    Mr. Wright himself on a Granada television programme in July
    1984. Allegations about the Nasser plot and the Wilson plot and
    the bugging of embassies and other places had been made in a
    number of published books, but had been attributed to Mr. Wright
    only in an "Observer" article of 15 March 1985 and another of 9
    February 1986, and then only in a somewhat oblique fashion. I do
    not consider that an injunction would have been granted against
    publication of the fact that Mr. Wright was repeating in his
    memoirs the allegation about Sir Roger Hollis, because it was
    quite well known that he had been making that allegation for a
    considerable time. The specific attribution to Mr. Wright of the
    other allegations is perhaps a different matter. But I would
    regard it as highly doubtful that the publication of that attribution
    could reasonably be regarded as damaging to the public interest of
    the United Kingdom in the direct sense that the information might
    be of value to - unfriendly foreign intelligence services, or as
    calculated to damage that interest indirectly in any of the ways
    spoken of in evidence by Sir Robert Armstrong. I consider that on
    balance the prospects are that the Crown would not have been
    held entitled to a permanent injunction. Scott J. and the majority
    of the Court of Appeal took that view, and I would not be
    disposed to differ from them.

    The final issue is whether the Crown is entitled to a
    general injunction against all three newspapers restraining them
    from publishing any information concerned with the Spycatcher
    allegations obtained by any member or former member of the
    Security Service which they know or have reasonable grounds for
    believing to have come from any such member or former member,
    including Mr. Wright, and also from attributing any such
    information in any publication to any member or former member
    of the Security Service. The object of an injunction on these lines
    is to set up a second line of defence, so to speak, for the
    confidentiality of the operations of the Security Service. The first
    and most important line of defence is obviously to take steps to
    secure that members and ex-members of the service do not speak
    about their experiences to the press or anyone else to whom they
    are not authorised to speak. Obviously the Director-General of
    the Service is in a position to impose a degree of discipline upon
    the existing members of the service so as to prevent unauthorised
    disclosures, and it is reasonable to suppose that in any event the

    - 11 -

    vast majority of these members are conscientious and would never
    consider making such disclosures. In so far as unconscientious ex-
    members are concerned, in particular Mr. Wright, the position
    under existing circumstances is more difficult, although measures
    may now be introduced which are apt to discourage breaches of
    confidence by such people. There are a number of problems
    involved in the general width of the injunction sought. Injunctions
    are normally aimed at the prevention of some specific wrong, not
    at the prevention of wrongdoing in general. It would hardly be
    appropriate to subject a person to an injunction on the ground that
    he is the sort of person who is likely to commit some kind of
    wrong, or that he has an interest in doing so. Then the injunction
    sought would not leave room for the possibility that a defence
    might be available in a particular case. If Mr. Wright were to
    publish a second book in America or Australia or both and it were
    to become readily available in this country, as has happened in
    regard to his first book, newspapers which published its contents
    would have as good a defence as the respondents in the present
    case. It would not be satisfactory to have the availability of any
    defence tested in contempt proceedings. In my opinion an
    injunction on the lines sought should not be granted.

    A few concluding reflections may be appropriate. In the
    first place I regard this case as having established that members
    and former members of the Security Service do have a lifelong
    obligation of confidence owed to the Crown. Those who breach it,
    such as Mr. Wright, are guilty of treachery just as heinous as that
    of some of the spies he excoriates in his book. The case has also
    served a useful purpose in bringing to light the problems which
    arise when the obligation of confidence is breached by publication
    abroad. The judgment of the High Court of Australia reveals that
    even the most sensitive defence secrets of this country may not
    expect protection in the courts even of friendly foreign countries,
    although a less extreme view was taken by Sir Robert Cooke in
    the New Zealand Court of Appeal (Attorney-General v. Wellington
    Newspapers Ltd.
    28 April 1988). The secrets revealed by Mr.

    Wright refer to matters of some antiquity, but there is no reason
    to expect that secrets concerned with matters of great current
    importance would receive any different treatment. Consideration
    should be given to the possibility of some international agreement
    aimed at reducing the risks to collective security involved in the
    present state of affairs. The First Amendment clearly poses
    problems in relation to publication in the United States of
    America, but even there there is the prospect of defence and
    intelligence secrets receiving some protection in the civil courts,
    as is shown by the decision of the Supreme Court in Snepp v.
    United States
    (1980) 444 U.S. 507. Some degree of comity and
    reciprocity in this respect would seem desirable in order to
    promote the common interests of allied nations.

    My Lords, upon the whole matter and for the reasons I have
    expressed, I would dismiss both appeals and also the cross-appeal
    by "The Sunday Times."

    - 12 -

    LORD BRIGHTMAN

    My Lords,

    I am in agreement with the majority of your Lordships that
    the two appeals and the cross appeal fail on all issues. The
    ground is so comprehensively covered by the speeches of your
    Lordships that I intend that my contribution to the debate shall be
    brief.

    It is clear beyond argument that Mr. Peter Wright, by
    making "Spycatcher" available for serialisation and publication in
    July 1987, flagrantly breached the duty of confidence which, as a
    former member of the British Security Service, he owed to the
    Crown. It is equally clear that as a result of that publication and
    the ensuing worldwide dissemination of the facts and surmises
    therein contained, the initial confidential quality of the contents of
    the book has been totally destroyed. Against that background, the
    question which arises is, what are the duties and liabilities of the
    three newspapers in relation to their past and intended future
    publication and discussion of matter to be found in "Spycatcher."

    A member of the Security Service is under a lifelong duty
    of confidence towards the Crown. The purpose of that duty is to
    preserve intact the secrets of the service which it would be
    against the public interest to disclose. If the member departs
    abroad and publishes his memoires there, he breaches his lifelong
    duty of confidence. Thereafter such duty is incapable of existing
    quoad the matter disclosed. The reason why the duty of
    confidence is extinguished is that the matter is no longer secret
    and there is therefore no secrecy in relation to such matter
    remaining to be preserved by the duty of confidence. It is
    meaningless to talk of a continuing duty of confidence in relation
    to matter disclosed world-wide. It is meaningful only to discuss
    the remedies available to deprive the delinquent confidant or his
    successors in title of benefits flowing from the breach, or in an
    appropriate case to compensate the confider.

    In nay opinion the reason why the court would, or
    might, grant an injunction against Wright if he now brought
    himself within the jurisdiction and sought to publish "Spycatcher"
    here, is not that such an order would recognise a subsisting duty
    of confidence, but that it would impede the unjust enrichment of
    Wright, or preclude him from benefiting, tangibly or intangibly,
    from his own wrongdoing; or perhaps that the copyright of the
    work would in equity be vested in the Crown, as suggested by
    three of your Lordships.

    The Crown is bound to face the uncomfortable fact that a
    disloyal intelligence officer is free to emigrate to a safe haven
    overseas, and from there to give world-wide publicity, in pursuit of
    money or activated by malice, to the closest secrets of the
    organisation which he once purported to serve. After that has
    been done, secrecy is lost and the Crown is inevitably left with,
    at best, the highly unsatisfactory and totally inadequate remedies
    of the nature sought in the present case, or, at worst, with no
    remedy at all. This situation is inescapable. Fortunately,
    exceedingly few intelligence officers are cast in the same mould
    as Wright.

    - 13 -

    I turn to the five issues identified by Sir John Donaldson
    M.R. [1987] 2 W.L.R. 805, 871:-

    (1) Articles in the "Observer" and "The Guardian" issues
    of 22 and 23 June 1986

    I agree with the majority of your Lordships that, despite the
    reprehensible leakage of information which was the source
    of these articles about the then forthcoming Australian
    proceedings, the articles were not in fact damaging to the
    public interest and are not therefore a proper foundation for
    any case by the Crown against these newspapers. There are
    concurrent findings of fact to this effect by the High Court
    and the Court of Appeal, which for my part I would be
    unwilling to disturb.

    (2) and (4) First Instalment (12 July 1987) of the intended
    serialisation by "The Sunday Times".

    I am in complete agreement with your Lordships, as with
    the Courts below, that this serialisation, which shortly
    preceded the entry of the contents of "Spycatcher" into the
    public domain, constituted a breach of confidence on the
    part of 'The Sunday Times". The only remedy available to
    the Crown is the inadequate remedy of an account of
    profits, on the basis that "The Sunday Times" unjustly
    enriched itself and should therefore be stripped of the riches
    wrongfully acquired; cf. Reading v. Attorney-General

    [1951] AC 507. I see no reason why 'The Sunday Times"
    should not account for a due proportion of the entirety of
    the total net profits of the issue of 12 July 1987, with
    possibly an allowance for those copies of the paper which
    omitted the offending instalment as part of a deceit to
    hoodwink the Government. • -

    (3) Future serialisation by "The Sunday Times."

    This aspect of the case raises the most controversial of the
    questions with which your Lordships are concerned. One
    starts with the knowledge that the first instalment of
    "Spycatcher" published by "The Sunday Times" on 12 July
    1987 was a breach of confidence by "The Sunday Times" and
    that a second instalment, if one is ever published, will in a
    broad sense stem from the same tainted source as the first
    instalment, namely, the purchase of serialisation rights from
    Heinemann Publishers Australia Pty. Ltd. in June 1987. If,
    as all your Lordships agree, the first instalment would have
    been restrained by the court on the application of the
    Crown had "The Sunday Times" not successfully hoodwinked
    the Government, my first impression was that any future
    instalment should be similarly restrained.

    However, on second thoughts I do not think this
    conclusion is correct, attractive though it may be on moral
    grounds. The Crown is only entitled to restrain the
    publication of intelligence information if such publication
    would be against the public interest, as it normally will be
    if theretofore undisclosed. But if the matter sought to be
    published is no longer secret, there is unlikely to be any

    - 14 -

    damage to the public interest by re-printing what all the
    world has already had the opportunity to read. There is no
    possible damage to the public interest if Tom, Dick or
    Harry, or "The Sunday Times" reprints in whole or part what
    is already printed and available within the covers of
    "Spycatcher". Therefore it seems to me that no injunction
    should be granted to restrain further serialisation. I think it
    would be particularly inappropriate to prohibit "The Sunday
    Times" from serialising a book which every other newspaper
    proprietor in the land is at liberty to serialise or publish,
    and may furthermore so do without reference to Wright or
    Heinemann; for it is certain that neither of the latter has
    any copyright in "Spycatcher" which would be recognised by
    the courts of this country. I do not see how the public
    interest would be realistically served by a selective ban on
    the re-printing of non-confidential matter in these
    circumstances.

    (5) General Injunction against 'The Sunday Times"


    I confess that at one time I felt disposed in favour of
    granting an injunction to restrain 'The Sunday Times", as a
    proven wrongdoer, from seeking or publishing confidential
    information concerning the work of the British Security
    Service, or inviting "The Sunday Times" to give an
    undertaking to the like effect. However, this course does
    not appeal to your Lordships, and the point it not one which
    I wish to waste your Lordships' time pursuing.

    As indicated, I would dismiss the appeals and the cross
    appeal.

    LORD GRIFFITHS

    My Lords,

    In this appeal we are concerned to discover the
    circumstances in which the Government can invoke the civil
    law to prevent the publication of the contents of the
    memoirs of a member of the Security Services.

    In the course of the argument we have been taken over the
    whole of the law of confidence as it has developed over the
    last century. It is judge-made law and reflects the
    willingness of the judges to give a remedy to protect people
    from being taken advantage of by those they have trusted
    with confidential information. With two exceptions the
    cases have been concerned with the protection of individual
    rights and provide no sure guide to the approach that should
    be adopted when it is the Government that seeks the
    protection of the law. It is nevertheless helpful to see in
    which way the authorities point.

    Although the terms of a contract may impose a duty of
    confidence the remedy is not dependent on contract and

    - 15 -

    exists as an equitable remedy. Megarry J. identified the
    three essentials to found the duty in Coco v. A. N. Clark
    (Engineers) Ltd.
    [1969] R.P.C. 41, 47:

    'Three elements are normally required if, apart from
    contract, a case of breach of confidence is to succeed.
    First, the information itself, in the words of Lord Greene,
    M.R. in the Saltman case [(1948) 65 R.P.C. 203] on page
    215 must 'have the necessary quality of confidence about
    it.' Secondly, that information must have been imparted in
    circumstances importing an obligation of confidence.
    Thirdly, there must be an unauthorised use of that
    information to the detriment of the party communicating
    it."

    The first of these elements will not normally be present if
    the information is in the public domain - "it must not be
    something that is public property and public knowledge" per Lord
    Greene M.R. in Saltman Engineering Co. v. Campbell Engineering
    Co. Ltd.
    (1948) 65 R.P.C. 203, 215. Furthermore, information may
    lose its original confidential character if it subsequently enters the
    public domain. If the confider publishes the information this
    releases the confidant from his duty of confidence. See O. Mustad
    and Son v. Dosen
    [1964] 1 W.L.R. 109. The courts have, however,
    so far refused to extend this principle where the confidential
    information is published by a third party: see Cranleigh Precision
    Engineering Ltd, v. Bryant
    [1965] 1 W.L.R. 1293, or to the case of
    publication of the information by the confidant: see Speed Seal
    Products Ltd, v. Paddington [1985] 1 W.L.R. 1327.

    The duty of confidence is, as a general rule, also imposed
    on a third party who is in possession of information which he
    knows is subject to an obligation of confidence: see Prince Albert
    v. Strange (1849) 1 Mac. & G. 25. and Duchess of Argyll v. Duke
    of Argyll [1967] Ch. 302. If this was not the law the right would
    be of little practical value: there would be no point in imposing a
    duty of confidence in respect of the secrets of the marital bed if
    newspapers were free to publish those secrets when betrayed to
    them by the unfaithful partner in the marriage. When trade
    secrets are betrayed by a confidant to a third party it is usually
    the third party who is to exploit the information and it is the
    activity of the third party that must be stopped in order to
    protect the owner of the trade secret.

    The courts have, however, always refused to uphold the
    right to confidence when to do so would be to cover up
    wrongdoing. In Gartside v. Outram (1857) 26 L.J. Ch. 113, it was
    said that there could be no confidence in iniquity. This approach
    has been developed in the modern authorities to include cases in
    which it is in the public interest that the confidential information
    should be disclosed. See Initial Services Ltd, v. Puttrill [1968] 1
    Q.B. 396, Beloff v. Pressdram Ltd.. [1973] 1 A.E.R. 241 and Lion
    Laboratories Ltd, v. Evans
    [1985] Q.B. 526. This involves the
    judge in balancing the public interest in upholding the right to
    confidence, which is based on the moral principles of loyalty and
    fair dealing, against some other public interest that will be served
    by the publication of the confidential material Even if the
    balance comes down in favour of publication, it does not follow
    that publication should be to the world through the media. In


    - 16 -

    certain circumstances the public interest may be better served by
    a limited form of publication perhaps to the police or some other
    authority who can follow up a suspicion that wrongdoing may lurk
    beneath the cloak of confidence. Those authorities will be under a
    duty not to abuse the confidential information and to use it only
    for the purpose of their inquiry. If it turns out that the
    suspicions are without foundation, the confidence can then still be
    protected, see Franco me v. Mirror Group Newspapers Ltd. [1984] 1
    W.L.R. 892. On the other hand, the circumstances may be such
    that the balance will come down in favour of allowing publication
    by the media, see Lion Laboratories Ltd, v. Evans [1985] Q.B. 526.
    Judges are used to carrying out this type of balancing exercise and
    I doubt if it is wise to try to formulate rules to guide the use of
    this discretion that will have to be exercised in widely differing
    and as yet unforeseen circumstances. I have no doubt, however,
    that in the case of a private claim to confidence, if the three
    elements of quality of confidence, obligation of confidence and
    detriment or potential detriment are established, the burden will
    lie upon the defendant to establish that some other overriding
    public interest should displace the plaintiff's right to have his
    confidential information protected.

    With these features of the private law of confidence in
    mind, I now turn to examine the Attorney-General's submissions.
    The starting point of his argument is that a member of the
    Security Services owes a lifelong duty to the Crown not to
    disclose any secret or confidential information he acquired during
    his service. This obligation has been accepted by every judge who
    has considered this case and is clearly right. The Security and
    Intelligence Services are necessary for our national security. They
    are, and must remain, secret services if they are to operate
    efficiently. The only practical way to achieve this objective is a
    brightline rule that forbids any member or ex-member of the
    Service to publish any -material relating to his service experience
    unless he has had the material cleared by his employers. There is,
    in my view, no room for an exception to this rule dealing with
    trivia that should not be regarded as confidential. What may
    appear to the writer to be trivial may in fact be the one missing
    piece in the jigsaw sought by some hostile intelligence agency.
    The only possible exception that I would countenance would be the
    public interest defence. Frankly, I find it very difficult to
    envisage the circumstances in which the facts would justify such a
    defence. But, theoretically, if a member of the service discovered
    that some iniquitous course of action was being pursued that was
    clearly detrimental to our national interest, and he was unable to
    persuade any senior members of his service or any member of the
    establishment, or the police, to do anything about it, then he
    should be relieved of his duty of confidence so that he could alert
    his fellow citizens to the impending danger. However, no such
    considerations arise in the case of Spycatcher. It is true that
    grave accusations are made against both M.I.5 and M.I.6, but they
    occupy only a few pages of the book and cannot possibly justify
    publishing in great detail the operational organisation, the methods
    and the personnel of M.I.5, with which this book is mostly
    concerned. If Peter Wright had intended to publish the book in
    this country before it was published abroad, the Attorney-General
    would have been entitled to an injunction to restrain him and
    would also have been entitled to an injunction to restrain any
    newspaper or other person who wished to publish it.

    - 17 -

    The next step in this argument is to assert that if Peter
    Wright wished to publish Spycatcher in this country today, the
    Government would still be entitled to an injunction to stop him
    doing so. I agree that the Government would be entitled to such
    an injunction but at this stage the argument becomes more difficult
    and the reason for granting the injunction must be carefully
    examined. The Attorney-General accepts that so far as betraying
    secret confidential information to our enemies is concerned, the
    damage has been done, and no further damage of that kind will
    result from publishing Spycatcher in this country. Nevertheless,
    the Attorney-General, as I understand the case, advances three
    separate arguments each of which, it is submitted, would justify
    the grant of an injunction against Peter Wright.

    Firstly, it is submitted that detriment to the confider is not
    an essential element that has to be proved in support of the
    action for breach of confidence. Mr. Alexander gave as an
    example a marital confidence which showed some friend of the
    husband in a very bad light and suggested that a court would, at
    the suit of the husband, restrain a wife from publishing such
    information even though it did not harm the husband. I daresay
    the court would protect such a confidence but I do not accept
    that the husband would suffer no detriment if the confidence was
    breached. The husband would be likely to lose a friend and
    friends can be precious. I am of opinion that detriment, or
    potential detriment to the confider, is an element that must be
    established before a private individual is entitled to the remedy.
    The remedy has been fashioned to protect the confider not to
    punish the confidant, and there seems little point in extending it
    to a confider who has no need of the protection. But whatever
    may be the position between private litigants, we have in this
    litigation to consider the position when it is the Government that
    seeks the remedy. In my view, for reasons so cogently stated by
    Mason J. in Commonwealth of Australia v. John Fairfax & Sons
    Ltd
    [1980] 147 C.L.R. 39, which I will not repeat because they are
    fully cited in the speech of Lord Keith of Kinkel, a government
    that wishes to enforce silence through an action for breach of
    confidence must establish that it is in the public interest to do so.
    This is but another way of saying that the government must
    establish, as an essential element of the right to the remedy, that
    the public interest will suffer detriment if an injunction is not
    granted. This approach also has the support of Lord Widgery in
    the Grossman diaries case, which is the only reported decision of
    the Government seeking this remedy in our courts, see Attorney-
    General v. Jonathan Cape Ltd.
    [1976] Q.B. 752. I therefore do not
    accept the first line of argument.

    The second line of argument is that if it is necessary to
    show detriment, this is demonstrated by the evidence of Sir Robert
    Armstrong which gives details of a number of respects in which it
    is alleged that the efficient future operation of the Security
    Services would be adversely affected if publication of Spycatcher
    were permitted in this country. I shall have to deal with these
    matters in more detail when I consider the position of the
    newspapers, but so far as Mr. Wright is concerned, I would accept
    that they have sufficient weight to justify the grant of an
    injunction to restrain him from publishing Spycatcher in this
    country for I can see no countervailing public interest that he
    could legitimately put in the scales against such detriment.

    - 18 -

    The third argument is that even if publication of Spycatcher
    in this country would cause no further harm to the Security
    Service, Mr. Wright nevertheless remains bound by his duty of
    confidence because he cannot free himself from this duty by
    breaking it, or to put the matter in more colourful language, he
    cannot be permitted to profit from his own wrongdoing. All the
    judges who have so far considered this case have accepted this
    argument. The Law Commission after an exhaustive study of the
    law of confidence came to the opposite conclusion; they
    recommended that once confidential information has come into the
    public domain (and there can be no doubt that Spycatcher is in the
    public domain) the obligation of confidence should come to an end
    even if the confidant is responsible for the publication, see Law
    Commission Report on Breach of Confidence (1981) (Cmnd. 8288.
    The Law Commission were, however, considering the problem in
    terms of breaches of commercial confidences and the "springboard
    doctrine" which prevents a confidant responsible for commercial
    information becoming public knowledge reaping any financial
    benefit from his breach. There may be sound reasons for not
    granting an injunction after a breach of a commercial confidence
    when it may be possible to provide recompense by way of
    damages, and some of the difficulties that arise in such
    circumstances are discussed in the judgment of Megarry J. in Coco
    v. A. N. Clark (Engineers) Ltd.
    [1969] R.P.C. 41, but they do not
    fall for consideration now. So far as members of the Security
    Services are concerned, damages would be a wholly inappropriate
    remedy for their breach of faith and although it would provide
    some disincentive to make them account for any profits they
    might make, we have the example of Mr. Cavendish who published
    a private memoir, at his own expense, to show that liability to
    account for profits is not the answer. It would make a mockery
    of the duty of confidence owed by members of the Security and
    Intelligence Services if they could discharge it by breaching it. I
    would therefore hold' that whatever publication may have been
    achieved abroad, Peter Wright remains bound by his duty of
    secrecy and confidence and will not be allowed to publish
    Spycatcher in any form in this country.

    Having established that Peter Wright remains bound by his
    duty of confidence, the Attorney-General then submits that any
    third party who receives the confidential information, knowing of
    his breach of confidence, is likewise bound by the same duty not
    to disclose the contents of Spycatcher. The Attorney-General
    therefore submits that despite the fact that Spycatcher has
    received worldwide publication and is in fact available in this
    country for anyone who wants to read it, the law forbids the
    press, the media and indeed anyone, else from publishing or
    commenting upon any part of it, saving only that which has
    already been referred to in the judgments of the courts. If such
    was the law then the law would indeed be an ass, for it would
    seek to deny to our own citizens the right to be informed of
    matters which are freely available throughout the rest of the
    world and would in fact be seeking in vain because anyone who
    really wishes to read Spycatcher can lay his hands on a copy in
    this country.

    The position of a third party who receives information that
    has been published in breach of confidence will vary widely
    according to the circumstances of the case. In a case of

    - 19 -

    commercial secrets with which the development of the law of
    confidence has been mostly concerned, a third party who knowingly
    receives the confidential information directly from the confidant,
    which is the usual case, is tainted and identified with the
    confidant's breach of duty and will be restrained from making use
    of the information. If, however, before the confider can act, his
    confidential information has spread far and wide and is read in,
    say, some trade magazine by a rival manufacturer, that
    manufacturer is in no way tainted or associated with the original
    breach of confidence and he will not be restrained from making
    use of information that is now public knowledge even though he
    may realise that the information must have been leaked in breach
    of confidence. The courts have to evolve practical rules and once
    the confidential information has escaped into the public domain it
    is not practical to attempt to restrain everyone with access to the
    knowledge from making use of it. That is not, however, to say
    that the original confidant may not be restrained or even a third
    party in the direct chain from the confidant. Each case will
    depend upon its own facts and the decision of the judge as to
    whether or not it is practical to give injunctive protection and
    whether the third party should, as a matter of fair dealing, be
    restrained or, to use the language of the equity lawyer, whether
    the conscience of the third party is affected by the confidant's
    breach of duty. There is certainly no absolute rule even in the
    case of a breach of a private confidence that a third party who
    receives the confidential information will be restrained from using
    it.

    The "Observer" and "The Guardian" wish to publish so much
    of Spycatcher as they are permitted to do under the fair dealing
    exception in copyright law and to comment on the contents of the
    book. These newspapers have played no part in the publication of
    Spycatcher and will draw solely upon the contents of a book now
    firmly in the public domain. They- assert that the information in
    Spycatcher has lost the quality of confidentiality and, this having
    occurred without their assistance, they are in no way tainted by
    Peter Wright's breach of confidence and must be free to publish.
    In the context of a claim to protect a private confidence, this
    would be a conclusive answer to the claim. But we are not here
    dealing with a claim to protect a private confidence. We are
    dealing with an undoubted breach of confidence by a member of
    the Security Services and a claim that to continue that breach by
    further publication of Spycatcher in this country would damage the
    future operation of our Security and Intelligence Services and thus
    imperil national security. The court cannot brush aside such a
    claim supported as it is by the evidence of the Secretary to the
    Cabinet. This is the detriment to the public interest that the
    Attorney-General identifies as justifying a continuing ban on
    Spycatcher. It must be examined and weighed against the other
    countervailing public interest of freedom of speech and the right
    of the people in a democracy to be informed by a free press.

    Article 10 of the Convention for the Protection of Human
    Rights and Fundamental Freedoms identifies "the interests of
    national security" and "preventing the disclosure of information
    received in confidence" as separate grounds upon which the right
    to freedom of expression may, in some circumstances, have to be
    restricted. I see no reason why our law should take a different
    approach and so, quite apart from the law of confidence, I turn

    - 20 -

    now to the question of whether the ban can be justified in the
    "interests of national security."

    The reasons given in the evidence of Sir Robert Armstrong
    for fearing that the future efficiency of the Security and
    Intelligence Services would be damaged by publication of
    Spycatcher in this country were summarized and dealt with in the
    following passage of the judgment of Scott J. [1988] 2 W.L.R. 805,
    860-862:

    "The national security factors were expounded by Sir Robert
    Armstrong in his evidence. They were these. (1) The
    unauthorised disclosure of information is likely to damage
    the trust which members of the service have in each other.
    This damage must already have occurred.

    "(2) Other members of the Security Services may break faith
    and follow suit. But unless they depart from the
    jurisdiction of these courts they will be unable to follow Mr.
    Wright's example. And if they do leave the country, Mr.
    Wright's example is already in place as a lamentable beacon.

    "(3) Unless permanent injunctions are granted pressure will
    be exerted by the media on other members or ex-members
    of the Security Services to tell their side of the Spycatcher
    allegations. This is speculation but, on the evidence I
    heard, is likely to happen. Whether the pressure will be
    resisted is impossible to tell. Whether, if anyone were to
    succumb to the pressure, publication would follow, would
    depend on several other imponderables. The point does,
    however, deserve weight in the scales.

    "(4) Intelligence and Security Services of friendly foreign
    countries may; if permanent injunctions are not granted, lose
    confidence in the British Security Services. This loss of
    confidence may already have taken place as a result of the
    publication of Spycatcher. But the notion that the grant or
    withholding of permanent injunctions will make any
    difference seems to me somewhat unreal.

    "(5) The confidence of informers, who rely on their identity
    and activities being kept confidential, will be damaged.
    Here, too, the loss of confidence may already have
    happened. If it has, it is a regrettable fait accompli. Sir
    Robert did, I should record, give evidence that individuals
    who had assisted M.I.5 in the past, had, since the
    publication of Spycatcher, expressed anxiety about the risk
    of exposure. Ail this evidence was given by Sir Robert
    third-hand but I found it inherently believable. Sir Robert's
    evidence did not, however, suggest that if permanent
    injunctions were granted, the individuals would feel any
    safer.

    "(6) Detriment will flow from the publication of information
    about methodology, and personnel and organisation of M.I.5.
    This is a point of real substance and justifies the conclusion
    that M.I.5 officers cannot be allowed to publish their service
    memoirs. But it does not bear upon the position today.
    The detriment is a fait accompli and I do not follow how

    - 21 -

    the granting or withholding of permanent injunctions can
    make any difference.

    "(7) Publication of Spycatcher has damaged the morale of
    members of M.I.5. A permanent injunction, depriving Mr.
    Wright of the profits to be made on the home market,
    would go some way to restoring morale.

    "I find this point made by Sir Robert difficult to weigh. I
    did not understand Sir Robert to be repeating views that
    had been actually expressed by members of M.I.5. Rather
    he was expressing his own belief as to the likely effect on
    morale of permanent injunctions. There may well, I think,
    be resentment felt by loyal M.I.5 members at the spectacle
    of Mr. Wright reaping very substantial financial rewards
    from his disloyalty. And the removal of any impediment on
    dissemination in this country of the book or its contents
    might well add fuel to that balance as between the
    Attorney-General and the newspapers. The purpose of the
    duty of confidence owed by officers of M.I.5 is to protect
    information about the affairs of M.I.5. If unauthorised
    disclosures are made to newspapers, the 'obligation of
    conscience' owed by the newspapers is owed for the same
    reason, namely, to protect the confidentiality of information
    that, for national security reasons, must be kept
    confidential. The duty of confidence is not, in my opinion,
    imposed on newspapers in order to maintain the morale of
    members of M.I.5. If in relation to particular information,
    the maintenance of secrecy or confidence is not needed or
    has become impossible, a duty of confidence cannot, in my
    opinion, be imposed on newspapers on the ground that
    disclosure would adversely affect the morale of M.I.5.

    "The factors I have referred- to were those advanced by Sir
    Robert justifying permanent injunctions. The maintenance of
    the secrecy or confidentiality of the information contained
    in the book was, for obvious reasons, not among them. Sir
    Robert accepted that damage must already have been caused
    by the publication of the book. But he described that
    damage as 'limited' and as likely to be greatly increased if
    permanent injunctions were not granted. In particular, Sir
    Robert stressed that Spycatcher was the first unauthorised
    book of memoirs written by an insider. I have found it
    difficult to follow Sir Robert's point that greatly increased
    damage would follow publication of Spycatcher in this
    country and unrestricted press comment on its contents and
    I do not think that proposition stands much examination.
    The damage to national security interests must, in my view,
    have already been inflicted. The spectacle of Mr. Wright
    making money out of the unrestricted sale of his book in
    this country would, I accept, be offensive and an affront to
    most decent people. But I am not satisfied that it will
    cause any additional damage to national security interests."

    I am broadly in agreement with the assessment of the judge.
    The one point at which I adopt a slightly different approach is in
    his appraisement of the suggestion that the morale of the Security
    Services would be damaged by permitting publication in this
    country. The judge obviously thinks little of the suggestion but

    - 22 -

    ultimately he rejects it on the grounds that "the duty of
    confidence is not, in my opinion, imposed on newspapers in order to
    maintain the morale of members of M.I.5." The worldwide
    publication of Spycatcher disposes of the Attorney-General's claim
    based upon the protection of confidential information but the claim
    based upon national security remains to be examined. If I had
    thought that further publication would so damage the morale of
    the Security Service that they could not operate efficiently I
    would have been prepared to grant the injunction in the interests
    of national security. Of course, I think no such thing.

    Whatever may have been the position in the past when the
    likes of Philby, Burgess, Maclean and Blunt were recruited things
    are very different today. The most rigorous positive vetting
    procedures are applied before any man or woman is accepted as a
    member of the Security and Intelligence Services and their security
    status is reviewed regularly throughout their service. These
    procedures are designed to ensure, so far as is humanly possible,
    that only those of the highest integrity and emotional stability
    serve in our Security and Intelligence Services. I have no doubt
    that all loyal members of the Security Services past and present
    were outraged by Peter Wright's betrayal of trust which was all
    the more offensive because of the money that he and others made
    out of it. But I reject as quite unrealistic the suggestion that the
    morale of this close knit and dedicated group of men and women
    will collapse or indeed be in any way affected by a further
    publication that they know can do no further damage to the
    operation of their service. In so far as the possibility of Peter
    Wright making any more money out of publication in this country
    is concerned I can offer them a little comfort. Neither Peter
    Wright nor any agent of his will be permitted to publish
    Spycatcher in this country. If Peter Wright owns the copyright in
    Spycatcher, which I doubt, it seems to me extremely unlikely that
    any court in this -country would uphold his claim to copyright if
    any newspaper or other third party chose to publish Spycatcher and
    keep such profits as they might make to themselves. would
    expect a judge to say that the disgraceful circumstances in which
    he wrote and published Spycatcher disentitled him to seek the
    assistance of the court to obtain any redress: see Glyn v. Weston
    Feature Film Co.
    [1916] 1 Ch. 261. I say I doubt if Peter Wright
    owns the copyright because as at present advised I accept the
    view of Scott J. and Dillon L.J. that the copyright in Spycatcher
    is probably vested in the Crown.

    In my judgment the balance in this case comes down firmly
    in favour of the public interest in freedom of speech and a free
    press. The interlocutory injunction must be lifted leaving the
    "Observer" and "The Guardian" free to publish and comment upon
    Spycatcher.

    The position of 'The Sunday Times" is different and presents
    a more difficult problem. 'The Sunday Times" is more closely
    identified with Peter Wright's attempts to publish Spycatcher
    abroad than any other newspaper. On 4 June 1987 'The Sunday
    Times" bought the serialization rights in Spycatcher from Peter
    Wright's Australian publishers, Heinemann. Although judgment had
    by that date been given in Australia in favour of publication an
    appeal was pending and Spycatcher could not yet be published in
    Australia. 'The Sunday Times," however, knew that Viking Penguin

    - 23 -

    Inc. intended to publish the book in the United States and it was
    their intention to publish the first instalment of Spycatcher more
    or less contemporaneously with the American publication.
    Presumably "The Sunday Times" thought that the American
    publication would put the book so firmly in the public domain that
    all confidentiality would be destroyed. In fact, however, 'The
    Sunday Times" did not wait for the American publication and
    published the first serialization on 12 July 1987 a few days before
    the book was published in the United States. I agree with Lord
    Keith of Kinkel that for the reasons he gives "The Sunday Times"
    was in breach of its duty of confidence to the Crown in publishing
    the extracts from Spycatcher on 12 July 1987 and that it was not
    protected by either the defence of prior publication or disclosure
    of iniquity. I also agree that it is liable to account to the Crown
    for any profits it may have made from that publication.

    But should "The Sunday Times" be permitted to continue
    the serialisation of Spycatcher. For reasons that I have already
    given further serialization will cause no significant damage to
    national security and the confidential information in Spycatcher is
    now public knowledge. If there is to be a further restraint on
    'The Sunday Times" it can only be by extending to 'The Sunday
    Times" the principle that a member of the Security Service cannot
    discharge himself from his duty of confidence by breaking it. The
    question is whether "The Sunday Times" has so closely associated
    itself with Wright's attempts to publish abroad that it now stands
    in the shoes of Wright for the purpose of publication in this
    country and should be similarly restrained. As Sir John Donaldson
    M.R. put it [1988] 2 W.L.R. 805, 887 "in serializing Spycatcher
    The Sunday Times' becomes 'Mr. Wright in newsprint."' It seems
    to me that "The Sunday Times" by entering into negotiations to
    serialise Spycatcher in this country actively encouraged Wright and
    his publishers to get the book published abroad. The negotiations
    started in April 1987 when the book was still under embargo in
    Australia. They ended in a letter of 4 June written by Mr.
    Andrew Neil the editor of "The Sunday Times" from which I quote
    the opening paragraphs:

    "We are now agreed on the following re Spycatcher. We
    will pay £150,000 for U.K. serial rights that includes a
    payment of £25,000 toward Heinemann Publishers Australia's
    legal expenses.

    (i) We pay £25,000 now to secure U.K. serial rights.

    (ii) We pay the balance of £125,000 if we serialise within
    one month of first publication of Spycatcher anywhere
    in the world."

    It was publication abroad that did the real damage to our Security
    Services. "The Sunday Times" encouraged that publication and in
    my view its conscience is affected by its action in so doing. The
    High Court of Australia have by their judgment in this litigation
    made it plain that we cannot look to the law in Australia for any
    assistance when a member of our Security Services wishes to
    betray the secrets of his service. The Court of Appeal in New
    Zealand has not followed this decision of the High Court of
    Australia. Sir Robin Cooke in his judgment has made it plain that
    in an appropriate case New Zealand law would protect the secrets

    - 24 -

    of our security services. It will come as little surprise that I
    emphatically prefer the reasoning of Sir Robin Cooke. Whether
    other friendly states would follow the Australian decision I do not
    know, but there must at least be a risk that they would take the
    same view. It therefore seems to me that our own law should do
    what it can to discourage such publication. One obvious way to
    discourage publication is to render it unprofitable to those who
    actively encourage the publication. If 'The Sunday Times" is
    restrained from further serialisation of Spycatcher it will be placed
    at a unique disadvantage compared with the rest of the press but
    that is the price it will pay for being prepared to encourage
    Wright in his attempts to publish abroad. The public will not
    suffer. If they have any interest left in Spycatcher. they will be
    able to turn to a host of other papers for information. An
    alternative might be to allow "The Sunday Times" to complete the
    serialisation but make it liable to account to the Crown for any
    profits that it makes. I reject this alternative because it would
    be unseemly for the law to permit a course of action which it
    deemed to be wrong on condition that the wrongdoer paid a price
    for his wrongdoing. It is one thing to say you have done wrong
    therefore you must be deprived of any profit you have made - it
    is quite another to say we will let you go on doing wrong provided
    you hand over any profit you make out of the wrongdoing.

    For "The Sunday Times" it is said that to prevent the
    completion of the serialisation would be a futile exercise when
    Spycatcher is freely available and will be commented upon by the
    media as a whole. It is not the function of the law of confidence
    to punish the confidant but to protect the confider, and in the the
    present circumstances, no effective protection will be given to the
    Crown by stopping the remainder of the serialisation.

    Although I have not found this to be an easy decision I have
    come to the conclusion, that 'The Sunday Times" should not be
    permitted to continue this serialisation. Peter Wright will not be
    permitted to publish Spycatcher in this country nor will any
    publisher on his behalf. If Peter Wright approached a newspaper
    today to sell serial rights to publish Spycatcher he would be
    restrained and so would the newspaper. It cannot in principle
    make any difference that the rights were sold by Peter Wright's
    publisher rather than by Peter Wright. If Heinemann today is to
    be restrained so must anyone in the direct contractual chain with
    Heinemann. "The Sunday Times" deliberately placed itself in that
    contractual chain and in doing so gave encouragement to the
    publication of Spycatcher abroad and thereby associated itself with
    Peter Wright's breach of duty. If 'The Sunday Times," who is
    tainted with Peter Wright's breach of confidence, is to be free to
    serialise, upon what possible ground can the court restrain Peter
    Wright from selling Spycatcher to any other newspaper - yet all
    the judges who have previously considered this case are agreed
    that Peter Wright should not be entitled to do so. This is, in my
    opinion a case in which the 'The Sunday Times" is so closely
    associated with Peter Wright's breach of duty that equity should
    place the same restraint upon 'The Sunday Times" as it does upon
    Peter Wright. In coming to this decision I have, of course,
    balanced the loss to freedom of expression but that seems to me
    to be of relatively little weight when the media as a whole will
    be free to publish and comment and thus inform the public of the
    contents of the book.

    - 25 -

    We are next asked to consider the stale question of whether
    the "Observer" and "The Guardian" were justified in publishing the
    accounts of the Australian proceedings on the 22 and 23 June
    1986. I use the word "justified" because at that date Spycatcher
    had not yet been published anywhere in the world and the two
    newspapers had received information of the contents of the book
    either from Wright's publishers or lawyers which they knew
    constituted both a breach of the duty of secrecy and confidence
    owed by Wright to the Crown and a breach of the undertaking
    given to the court in New South Wales not to reveal the contents
    of the book pending trial of the action. In these circumstances
    the newspapers were bound by the same duty of confidence as
    Wright unless publication could be justified either on the grounds
    that previous publication had destroyed the confidentiality of the
    material they published, or that it was in the public interest that
    they should publish and this overrode their duty of confidence and
    any other considerations of national security.

    My starting point is to consider what would have been the
    position if Heinemann had been attempting to publish the book in
    this country. The court would be faced with the first attempt by
    a member of the Security Services to publish his memoirs and an
    interlocutory injunction would undoubtedly have been granted to
    restrain publication on the grounds that it would be damaging to
    the public interest. Indeed we have the example of the
    interlocutory injunctions granted by Millet J. The judge expressly
    provided in his order

    "this order shall not prohibit direct quotation of attributes
    to Peter Morris Wright already made by Mr. Chapman
    Pincher in published works, or in a television programme or
    programmes broadcast by 'Granada Television'."

    The judge excepted publication of these matters on the ground
    that they had already been published without any attempt by the
    Government to stop them and therefore would be neither a breach
    of confidence by the newspapers nor do any further damage to
    national security. However, Millet J. made it quite clear that this
    proviso did not entitle either newspaper to re-publish the two
    articles. The articles went far beyond mere repetition of what
    had previously appeared in the press or on television as direct
    attribution to Peter Wright. I have no doubt that the judge made
    the right decision.

    If that decision was right, I can see no reason why the
    newspapers were justified in publishing the articles because the
    attempt was being made to publish Spycatcher abroad rather than
    in this country. Of course the public had a legitimate interest in
    knowing that the Government were attempting to stop the
    publication of the memoirs of a member of M.I.5 in Australia but
    that could be reported without setting out the contents of the
    memoirs. The public would have had an even greater interest if
    the attempt had been made to publish in this country but it would
    not have been permissible to report the contents of the book
    before the action had been tried. I therefore cannot agree that
    the articles could be justified as a report of the Australian
    proceedings. I would add that although our courts were not bound
    by the Australian court's decision that the contents of Spycatcher
    should not be disclosed pending trial of the action it was a factor

    - 26 -

    that a judge would be entitled to take into account when weighing
    the balance between upholding confidentiality and allowing
    publication. Comity requires that we should give weight to the
    desirability of upholding the decisions of the courts in other
    countries.

    Finally on this aspect to the case, I of course agree that if
    Sir Roger Hollis was a spy or if M.I.6 plotted to kill President
    Nasser or if a cabal in M.I.5 had plotted the overthrow of the
    Wilson Government it reveals a very serious state of affairs
    requiring immediate and effective action to identify and deal with
    all those concerned with such activities. I do not, however, agree
    that if a member of the service made such an allegation to a
    journalist that it would necessarily be in the public interest that it
    should immediately be published in a newspaper. I have tried to
    see if I could evolve some suggested course of action that an
    editor should follow before taking a decision to publish in his
    newspaper. I have to confess that, save in the most general
    terms, I have been unable to formulate any such guidance because
    circumstances will vary so infinitely from case to case. Ideally,
    of course, an editor would inform the Treasury Solicitor that he
    was in the possession of such information and intended to publish
    it. This would enable the Government to apply for an injunction
    so that a judge could decide whether the balance came down in
    favour of preserving secrecy or publication. If this is too much to
    hope for, and I suspect it is, then at least I would hope that an
    editor would first consider very closely the motive of his
    informant in making what was on the face of it a disloyal
    disclosure. If the motive was apparently financial the disclosure
    would obviously be suspect. Even if satisfied that the motive was
    not financial the possibility that the information was untrue and a
    deliberate attempt to discredit the service would still remain to be
    considered. And even if the editor concluded that there were
    serious reasons for believing that the information might be true he
    should pause long before publishing it rather than taking it to the
    responsible minister so that it could be investigated and dealt
    without causing unnecessary public disquiet and possibly unjustified
    loss of confidence in the Security Services. As has been said time
    and again in this litigation, there are no absolutes and I recognise
    that in very exceptional circumstances publication may be justified.
    But not, I assert again, on the mere fact that the allegation has
    been made by a member of the Security Services for that, it
    seems to me, would be to adopt the philosophy of Dr. Goebbles
    that the bigger the lie the more likely it is to be believed. If the
    allegations about Sir Roger Hollis, the Nasser plot and the Wilson
    plot had been revealed for the first time to a journalist by Peter
    Wright I have no doubt that it would have been the duty of an
    editor in the first instance to report the allegations immediately
    to the appropriate minister and only to consider publication in his
    newspaper if convinced that no effective action had been taken.
    On this aspect of the case I am in agreement with the views
    expressed by Sir John Donaldson M.R. in his judgment in the Court
    of Appeal.

    Finally, what of the future? The editors said in their
    evidence that they might try to persuade other members of the
    Security Services to draw upon their Service experience and
    comment upon the allegations in Spycatcher. The Government
    therefore asks for an injunction in wide terms that will restrain

    - 27 -

    the publication of any material that the media may obtain from
    such sources. The object of this injunction is to stop the media
    from tempting other members of the Security Services from
    breaking their obligation of secrecy. The editors were, however,
    giving evidence at the trial of this action and not in the light of
    the judgments that have now been delivered. It has now been
    made clear beyond peradventure that members of the Security
    Services owe a lifelong duty not to discuss their service experience
    with the media. I would not be prepared to grant an injunction on
    the premise that both the media and members of the Security
    Service are likely to disregard this obligation. If a journalist
    should try to tempt a member of the Security Services to follow
    Wright's example I would expect that journalist to be seen off in
    peremptory terms. If unhappily a journalist should find another
    weak link then I would trust the journalist's editor not to publish
    unless he was convinced that it was in the public interest to do
    so. Ultimately, if we are to have an efficient Security Service we
    have to trust its members and if we are to have a free press we
    have to trust the editors.

    I would therefore dismiss this appeal save for the two issues
    relating to future serialization by "The Sunday Times" and the
    propriety of the articles in the "Observer" and "The Guardian" in
    June 1986.

    LORD GOFF OF CHIEVELEY

    My Lords,

    It is tempting in this case to embark upon an exegesis of
    the law relating to breach of confidence. That temptation must
    however, in my opinion, be resisted - if only because, as I see the
    case, subject to one important and difficult point (which, to my
    mind unfortunately, does not seem to have been the subject of
    argument in the courts below), the applicable principles of law
    appear to me to be relatively straightforward and non-
    controversial. This may well be because I have derived so much
    assistance from the judgments in the courts below; though that
    provides yet another reason why I should not attempt to do more
    than state the applicable principles of law in broad terms.

    I start with the broad general principle (which I do not
    intend in any way to be definitive) that a duty of confidence
    arises when confidential information comes to the knowledge of a
    person (the confidant) in circumstances where he has notice, or is
    held to have agreed, that the information is confidential, with the
    effect that it would be just in all the circumstances that he
    should be precluded from disclosing the information to others. I
    have used the word "notice" advisedly, in order to avoid the (here
    unnecessary) question of the extent to which actual knowledge is
    necessary; though I of course understand knowledge to include
    circumstances where the confidant has deliberately closed his eyes
    to the obvious. The existence of this broad general principle
    reflects the fact that there is such a public interest in the
    maintenance of confidences, that the law will provide remedies for
    their protection.

    - 28 -

    I realise that, in the vast majority of cases, in particular
    those concerned with trade secrets, the duty of confidence will
    arise from a transaction or relationship between the parties -
    often a contract, in which event the duty may arise by reason of
    either an express or an implied term of that contract. It is in
    such cases as these that the expressions "confider" and "confidant"
    are perhaps most aptly employed. But it is well settled that a
    duty of confidence may arise in equity independently of such
    cases; and I have expressed the circumstances in which the duty
    arises in broad terms, not merely to embrace those cases where a
    third party receives information from a person who is under a duty
    of confidence in respect of it, knowing that it has been disclosed
    by that person to him in breach of his duty of confidence, but
    also to include certain situations, beloved of law teachers - where
    an obviously confidential document is wafted by an electric fan
    out of a window into a crowded street, or when an obviously
    confidential document, such as a private diary, is dropped in a
    public place, and is then picked up by a passer-by. I also have in
    mind the situations where secrets of importance to national
    security come into the possession of members of the public - a
    point to which I shall refer in a moment. I have however
    deliberately avoided the fundamental question whether, contract
    apart, the duty lies simply "in the notion of an obligation of
    conscience arising from the circumstances in or through which the
    information was communicated or obtained" (see Moorgate Tobacco
    Co. Ltd, v. Philip Morris Ltd. (No. 2)
    [1984] 156 C.L.R. 414, 437
    per Deane J., and see also Seager v. Copydex Ltd. [1967] 1 W.L.R.
    923, 931 per Lord Denning M.R.), or whether confidential
    information may also be regarded as property (as to which see Dr.
    Francis Gurry's valuable monograph on Breach of Confidence at pp.
    46-56 and Professor Birks' Introduction to the Law of Restitution
    at pp. 343-44). I would also, like Megarry J. in Coco v. A.N.
    Clark (Engineers) Ltd.
    [1969] R.P.C. 41 at p. 48, wish to keep
    open the question whether detriment to the plaintiff is an essential
    ingredient of an action for breach of confidence. Obviously,
    detriment or potential detriment to the plaintiff will nearly always
    form part of his case; but this may not always be necessary.
    Some possible cases where there need be no detriment are
    mentioned in the judgment of Megarry J. to which I have just
    referred (at p. 48), and in Gurry on Breach of Confidence (1984)
    at pp. 407-8. In the present case, the point is immaterial, since
    it is established that in cases of Government secrets the Crown
    has to establish not only that the information is confidential, but
    also to its "detriment" in the sense that the public interest
    requires that it should not be published. That the word
    "detriment" should be extended so far as to include such a case
    perhaps indicates that everything depends upon how wide a
    meaning can be given to the word "detriment" in this context.

    To this broad general principle, there are three limiting
    principles to which I wish to refer. The first limiting principle
    (which is rather an expression of the scope of the duty) is highly
    relevant to this appeal. It is that the principle of confidentiality
    only applies to information to the extent that it is confidential.
    In particular, once it has entered what is usually called the public
    domain (which means no more than that the information in
    question is so generally accessible that, in all the circumstances, it
    cannot be regarded as confidential) then, as a general rule, the
    principle of confidentiality can have no application to it. I shall
    be reverting to this limiting principle at a later stage.

    - 29 -

    The second limiting principle is that the duty of confidence
    applies neither to useless information, nor to trivia. There is no
    need for me to develop this point.

    The third limiting principle is of far greater importance. It
    is that, although the basis of the law's protection of confidence is
    that there is a public interest that confidences should be preserved
    and protected by the law, nevertheless that public interest may be
    outweighed by some other countervailing public interest which
    favours disclosure. This limitation may apply, as the learned judge
    pointed out, to all types of confidential information. It is this
    limiting principle which may require a court to carry out a
    balancing operation, weighing the public interest in maintaining
    confidence against a countervailing public interest favouring
    disclosure.

    Embraced within this limiting principle is, of course, the so
    called defence of iniquity. In origin, this principle was narrowly
    stated, on the basis that a man cannot be made the "confidant of
    a crime or a fraud" (see Gartside v. Outram (1857) 26 L.J.Ch. 113
    at p. 114, per Sir William Page Wood V.-C.). But it is now clear
    that the principle extends to matters of which disclosure is
    required in the public interest (see Beloff v. Pressdram Ltd. [1973]
    1 All E.R. 241, 260 per Ungoed-Thomas J., and Lion Laboratories
    Ltd, v. Evans
    [1985] 1 Q.B. 526, 550, per Griffiths L.J. (as he then
    was)). It does not however follow that the public interest will in
    such cases require disclosure to the media, or to the public by the
    media. There are cases in which a more limited disclosure is all
    that is required (see Francome v. Mirror Group Newspapers Ltd.
    [1984] 1 W.L.R. 892). A classic example of a case where limited
    disclosure is required is a case of alleged iniquity in the Security
    Services. Here there are a number of avenues for proper
    complaint; these are set out in the -judgment of Sir John Donaldson
    M.R. (see [1988] 2 W.L.R. 805, 877-78). Like my noble and learned
    friend, Lord Griffiths, I find it very difficult to envisage a case of
    this kind in which it will be in the public interest for allegations
    of such iniquity to be published in the media. In any event, a
    mere allegation of iniquity is not of itself sufficient to justify
    disclosure in the public interest. Such an allegation will only do
    so if, following such investigations as are reasonably open to the
    recipient, and having regard to all the circumstances of the case,
    the allegation in question can reasonably be regarded as being a
    credible allegation from an apparently reliable source.

    In cases concerned with Government secrets, as appears
    from the judgments of two Chief Justices - of Lord Widgery C.J.
    in Attorney General v. Jonathan Cape Ltd. [1976] 1 Q.B. 752, 770,
    and of Mason C.J. (then Mason J.) in Commonwealth of Australia
    v. John Fairfax & Sons Ltd.
    (1980) 147 C.L.R. 39, 51-53 - it is
    incumbent upon the Crown, in order to restrain disclosure of
    Government secrets, not only to show that the information is
    confidential, but also to show that it is in the public interest that
    it should not be published. The relevant passages in the above
    judgments are set out in the speech of my noble and learned
    friend, Lord Keith of Kinkel, and I need not repeat them. The
    reason for this additional requirement in cases concerned with
    Government secrets appears to be that, although in the case of
    private citizens there is a public interest that confidential

    - 30 -

    information should as such be protected, in the case of
    Government secrets the mere fact of confidentiality does not alone
    support such a conclusion, because in a free society there is a
    continuing public interest that the workings of government should
    be open to scrutiny and criticism. From this it follows that, in
    such cases, there must be demonstrated some other public interest
    which requires that publication should be restrained.

    Finally, I wish to observe that I can see no inconsistency
    between English law on this subject and article 10 of the European
    Convention on Human Rights. This is scarcely surprising, since we
    may pride ourselves on the fact that freedom of speech has
    existed in this country perhaps as long as, if not longer than, it
    has existed in any other country in the world. The only difference
    is that, whereas article 10 of the Convention, in accordance with
    its avowed purpose, proceeds to state a fundamental right and then
    to qualify it, we in this country (where everybody is free to do
    anything, subject only to the provisions of the law) proceed rather
    upon an assumption of freedom of speech, and turn to our law to
    discover the established exceptions to it. In any event I conceive
    it to be my duty, when I am free to do so, to interpret the law
    in accordance with the obligations of the Crown under this treaty.
    The exercise of the right to freedom of expression under article 10
    may be subject to restrictions (as are prescribed by law and are
    necessary in a democratic society) in relation to certain prescribed
    matters, which include "the interests of national security" and
    "preventing the disclosure of information received in confidence."
    It is established in the jurisprudence of the European Court of
    Human Rights that the word "necessary" in this context implies
    the existence of a pressing social need, and that interference with
    freedom of expression should be no more than is proportionate to
    the legitimate aim pursued. I have no reason to believe that
    English law, as applied in the courts, leads to any different
    conclusion.

    In the present case, it is possible to start with two simple
    propositions. First, Peter Wright, as a member of the Security
    Service, owed to the Crown a lifelong duty not to disclose
    confidential information which came into his possession in the
    course of his period of service with the Security Service. Second,
    as appears to have been common ground in these proceedings,
    whether or not he may have been justified in disclosing certain
    matters to an appropriate person on the ground of iniquity,
    nevertheless by publishing the book as a whole he committed a
    clear and flagrant breach of his duty. So far as this lifelong duty
    of confidence is concerned, I am in respectful agreement with the
    observations made upon it in the speech of my noble and learned
    friend, Lord Griffiths, subject only to this, that I suspect that,
    although there may be a theoretical exception relating to trivia of
    the most humdrum kind, nevertheless in practice any such
    exception is of no importance and can be ignored. Be that as it
    may, these two propositions provided the starting point for the
    argument for the Crown so powerfully expressed by Mr. Alexander
    on behalf of the Attorney-General. His basic submission was as
    follows. Although the effect of Peter Wright's breach of
    confidence was that the confidential information in Spycatcher has
    been widely disseminated throughout the world, nevertheless he
    remains to this day, and apparently for ever, under a duty of
    confidence in respect of that information, because he cannot by

    - 31 -

    his own wrongful act destroy his own obligation of confidentiality.
    Anybody who has put the book in circulation knowing that the
    information in it derived from Peter Wright who had disclosed it
    in breach of confidence, must likewise have committed a breach of
    confidence; and since Peter Wright's duty of confidence still exists,
    the same must be true to this day. The pith of Mr. Alexander's
    argument can be extracted from the following paragraphs in the
    Crown's printed case:

    "27. In so far as there are suggestions in the judgments so
    far that Mr. Wright's position is different because he cannot
    profit from his own wrong, this cannot provide the basis of
    an independent entitlement running against Mr. Wright but
    not against the other defendants. It can only mean that
    since dissemination of Spycatcher is entirely the result of
    Mr. Wright's wrongdoing, the duty of confidence has not
    been destroyed and the Crown is entitled to enforce it. If
    a good claim runs against Mr. Wright, it does so because of
    the surviving duty of confidentiality in respect of the
    contents of Spycatcher and this continues to attach in
    conscience to third parties.

    "28. Publication of the book in other countries by or on
    behalf of Mr. Wright does not therefore affect the
    obligation of confidence owed by Mr. Wright and his agents
    or by third parties. In relation to Mr. Wright it is
    submitted that his duty is not affected by publication
    abroad. 'The Sunday Times' being agents of Mr. Wright
    remain similarly bound. In relation to the 'Observer' and
    'The Guardian' it is submitted that the proper view is that
    as the obligation of confidence is still attached to Mr.
    Wright and his agents, it also continued to attach in
    conscience to third parties. . . . ."

    This appeared to me at the time of the hearing, and still appears
    to me, to be a formidable argument, which requires to be
    addressed. It has caused me therefore to consider the basic
    premise upon which it rests, viz. the continuing duty of confidence
    said to be owed by Peter Wright.

    As I have already indicated, it is well established that a
    duty of confidence can only apply in respect of information which
    is confidential: see Saltman Engineering Co. Ltd, v. Campbell
    Engineering Co. Ltd.
    [1948] 65 R.P.C. 203, 215 per Lord Greene
    M.R.. From this it should logically follow that, if confidential
    information which is the subject of a duty of confidence ceases to
    be confidential, then the duty of confidence should cease to bind
    the confidant. This was held to be so in O. Mustad & Son v.
    Dosen
    (1928) [1964] 1 W.L.R. 109 (Note). That was however a case
    in which the confidential information was disclosed by the confider
    himself; and stress was placed on this point in a later case where
    the disclosure was not by the confider but by a third party and in
    which Mustad v. Dosen was distinguished (see Cranleigh Precision
    Engineering Ltd, v. Bryant
    [1965] 1 W.L.R. 1293). It was later held,
    on the basis of the Cranleigh Precision Engineering case, that, if
    the confidant is not released when the publication is by a third
    party, then he cannot be released when it is he himself who has
    published the information (see Speed Seal Products Ltd, v.
    Paddington
    [1985] 1 W.L.R. 1327). I have to say however that,


    - 32 -

    having studied the judgment of Roskill J. in the Cranleigh
    Precision Engineering
    case [1965] 1 W.L.R. 1293, it seems to me
    that the true basis of the decision was that, in reliance on the
    well known judgment of Roxburgh J. in the "springboard" case
    Terrapin Ltd, v. Builders' Supply Co. (Hayes) Ltd, (now reported in
    [1967] R.P.C. 375), the defendant was in breach of confidence in
    taking advantage of his own confidential relationship with the
    plaintiff company to discover what a third party had published and
    in making use, as soon as he left the employment of the plaintiff
    company, of information regarding the third party's patent which
    he had acquired in confidence (see [1965] 1 W.L.R. at p. 1319). The
    reasoning of Roskill J. in this case has itself been the subject of
    criticism (see e.g. Gurry on Breach of Confidence at pp. 246-7);
    but in any event it should be regarded as no more than an
    extension of the springboard doctrine, and I do not consider that it
    can support any general principle that, if it is a third party who
    puts the confidential information into the public domain, as
    opposed to the confider, the confidant will not be released from
    his duty of confidence. It follows that, so far as concerns
    publication by the confidant himself, the reasoning in the Speed
    Seal
    case [1985] 1 W.L.R. 1327 (founded as it is upon the
    Cranleigh Precision Engineering case) [1965] 1 W.L.R. 1293 cannot,
    in my mind, be supported. I recognise that a case where the
    confider himself publishes the information might be distinguished
    from other cases on the basis that the confider, by publishing the
    information, may have implicitly released the confidant from his
    obligation. But that was not how it was put in Mustad v. Dosen
    [1964] 1 W.L.R. 109, 111, in which Lord Buckmaster stated that,
    once the disclosure had been made by the confider to the world,
    "the secret, as a secret, had ceased to exist". For my part, I
    cannot see how the secret can continue to exist when the
    publication has been made not by the confider but by a third

    party.


    Even so, it has been held by the learned judge, and by all
    members of the Court of Appeal in the present case, that Peter
    Wright cannot be released from his duty of confidence by his own
    publication of the confidential information, apparently on the basis
    that he cannot be allowed to profit from his own wrong. I feel
    bound to say that, in my opinion, this proposition calls for careful
    examination.

    The statement that a man shall not be allowed to profit
    from his own wrong is in very general terms, and does not of
    itself provide any sure guidance to the solution of a problem in
    any particular case. That there are groups of cases in which a
    man is not allowed to profit from his own wrong, is certainly true.
    An important section of the law of restitution is concerned with
    cases in which a defendant is required to make restitution in
    respect of benefits acquired through his own wrongful act -
    notably cases of waiver of tort; of benefits acquired by certain
    criminal acts; of benefits acquired in breach of a fiduciary
    relationship; and, of course, of benefits acquired in breach of
    confidence. The plaintiff's claim to restitution is usually enforced
    by an account of profits made by the defendant through his wrong
    at the plaintiff's expense. This remedy of an account is
    alternative to the remedy of damages, which in cases of breach of
    confidence is now available, despite the equitable nature of the
    wrong, through a beneficent interpretation of the Chancery

    -33-

    Amendment Act 1858 (Lord Cairns' Act), and which by reason of
    the difficulties attending the taking of an account is often
    regarded as a more satisfactory remedy, at least in cases where
    the confidential information is of a commercial nature, and
    quantifiable damage may therefore have been suffered.

    I have to say, however, that I know of no case (apart from
    the present) in which the maxim has been invoked in order to hold
    that a person under an obligation is not released from that
    obligation by the destruction of the subject matter of the
    obligation, on the ground that that destruction was the result of
    his own wrongful act. To take an obvious case, a bailee who by
    his own wrongful, even deliberately wrongful, act destroys the
    goods entrusted to him, is obviously relieved of his obligation as
    bailee, though he is of course liable in damages for his tort.
    Likewise a nightwatchman who deliberately sets fire to and
    destroys the building he is employed to watch; and likewise also
    the keeper at a zoo who turns out to be an animal rights
    campaigner and releases rare birds or animals which escape
    irretrievably into the countryside. On this approach, it is difficult
    to see how a confidant who publishes the relevant confidential
    information to the whole world can be under any further obligation
    not to disclose the information, simply because it was he who
    wrongfully destroyed its confidentiality. The information has, after
    all, already been so fully disclosed that it is in the public domain:
    how, therefore, can he thereafter be sensibly restrained from
    disclosing it? Is he not even to be permitted to mention in public
    what is now common knowledge? For his wrongful act, he may be
    held liable in damages, or may be required to make restitution;
    but, to adapt the words of Lord Buck master, the confidential
    information, as confidential information, has ceased to exist, and
    with it should go, as a matter of principle, the obligation of
    confidence. In truth, when a person entrusts something to another
    - whether that thing be a physical' thing such as a chattel, or
    some intangible thing such as confidential information - he relies
    upon that other to fulfil his obligation. If he discovers that the
    other is about to commit a breach, he may be able to impose an
    added sanction against his doing so by persuading the court to
    grant an injunction; but if the other simply commits a breach and
    destroys the thing, then the injured party is left with his remedy
    in damages or in restitution. The subject matter is gone: the
    obligation is therefore also gone: all that is left is the remedy or
    remedies for breach of the obligation. This approach appears to
    be consistent with the view expressed by the Law Commission in
    their Report on Breach of Confidence (Cmnd. 8388), paragraph 4.30
    (see also the Law Commission's Working Paper No. 58 at
    paragraphs 100-101). It is right to say, however, that they may
    have had commercial cases in mind, rather than a case such as
    the present. It is however also of interest that, in the Fairfax
    case (1980) 147 C.L.R. 39, 54, Mason J. (as he then was) was not
    prepared to grant an injunction to restrain further publication of a
    book by the defendants on the ground of breach of confidence,
    because the limited publication which had taken place was
    sufficient to cause the detriment which the plaintiffs, the
    Commonwealth of Australia, apprehended. If however the
    defendants had published the book in breach of confidence, it is
    difficult to see why, on the approach so far accepted in the
    present case, the defendants should not have remained under a
    duty of confidence despite the publication and so liable to be
    restrained by injunction.

    - 34 -

    It is not to be forgotten that wrongful acts can be
    inadvertent, as well as deliberate; and yet it is apparently
    suggested that, irrespective of the character of his wrongdoing, the
    confidant will be held not to be released from his obligation of
    confidence. Furthermore, the artificial perpetuation of the
    obligation, despite the destruction of the subject matter, leads to
    unacceptable consequences. Take the case of confidential
    information with which we are here concerned. If the confidant
    who has wrongfully published the information so that it has
    entered the public domain remains under a duty of confidence, so
    logically must also be anybody who, deriving the information from
    him, publishes the information with knowledge that it was made
    available to him in breach of a duty of confidence. If Peter
    Wright is not released from his obligation of confidence neither, in
    my opinion, are Heinemann Publishers Pty. Ltd., nor Viking Penguin
    Inc., nor anybody who may hereafter publish or sell the book in
    this country in the knowledge that it derived from Peter Wright -
    even booksellers who have in the past, or may hereafter, put the
    book on sale in their shops, would likewise be in breach of duty.
    If it is suggested that this is carrying the point to absurd lengths,
    then some principle has to be enunciated which explains why the
    continuing duty of confidence applies to some, but not others, who
    have wrongfully put the book in circulation. Such a distinction
    cannot however be explained by reliance upon the general
    statement that a man may not profit from his own wrong.

    I have naturally been concerned by the fact that so far in
    this case it appears to have been accepted on all sides that Peter
    Wright should not be released from his obligation of confidence. I
    cannot help thinking that this assumption may have been induced,
    in part at least, by three factors - first, the fact that Peter
    Wright himself is not a party to the litigation, with the result that
    no representations - have been made on his behalf; second, the
    wholly unacceptable nature of his conduct; and third, the fact that
    he appears now to be able, with impunity, to reap vast sums from
    his disloyalty. Certainly, the prospect of Peter Wright, safe in his
    Australian haven, reaping further profits from the sale of his book
    in this country is most unattractive. The purpose of perpetuating
    Peter Wright's duty of confidence appears to be, in part to deter
    others, and in part to ensure that a man who has committed so
    flagrant a breach of his duty should not be enabled freely to
    exploit the formerly confidential information, placed by him in the
    public domain, with impunity. Yet the real reason why he is able
    to exploit it is because he has found a safe place to do so. If
    within the jurisdiction of the English courts, he would be held
    liable to account for any profits made by him from his wrongful
    disclosure, which might properly include profits accruing to him
    from any subsequent exploitation of the confidential information
    after its disclosure: and, in cases where damages were regarded as
    the appropriate remedy, the confidant would be liable to
    compensate the confider for any damage, present or future,
    suffered by him by reason of his wrong. So far as I can see, the
    confider must be content with remedies such as these.

    I have considered whether the confidant who, in breach of
    duty, places confidential information in the public domain, might
    remain at least under a duty thereafter not to exploit the
    information, so disclosed, for his own benefit. Suppose that the

    - 35 -

    confidant in question was a man who, unwisely, has remained in
    this country, and has written a book containing confidential
    information and has disposed of the rights to publication to an
    American publishing house, whose publication results in the
    information in the book entering the public domain. The question
    might at least arise whether he is free thereafter to dispose of
    the film rights to the book. To me, however, it is doubtful
    whether the answer to this question lies in artificially prolonging
    the duty of confidence in information which is no longer
    confidential. Indeed, there is some ground for saying that the true
    answer is that the copyright in the book, including the film rights,
    are held by him on constructive trust for the confider - so that
    the remedy lies not in breach of confidence, but in restitution or
    in property, whichever way you care to look at it (see, in this
    connection, [1988] 2 W.L.R.805, 899, per Dillon L.J.).

    At all events, since the point was not argued before us, I
    wish to reserve the question whether, in a case such as the
    present, some limited obligation (analogous to the springboard
    doctrine) may continue to rest upon a confidant who, in breach of
    confidence, destroys the confidential nature of the information
    entrusted to him. It must not however be forgotten that cases of
    breach of confidence may well involve questions of property (in
    particular, copyright) as well as questions of personal liability; and
    that, in a case involving national security rather than a personal
    or commercial secret, where disclosure in breach of confidence
    may be damaging to the whole community rather than to an
    individual or a corporation, the guilty confidant may be liable to
    criminal prosecution. It is only if we take all these matters into
    account that we can see such a case in the round. Even so, let
    us not forget that we have in the past seen convicted criminals,
    on release from prison, being invited by newspapers to give an
    account of their experiences, no doubt for substantial sums. This
    is highly offensive to many people? but I doubt whether the mere
    fact that such activities are offensive provides of itself an
    appropriate basis for defining the scope of a confidant's civil
    obligations at common law. And let us not forget that, in the
    present case, it is Peter Wright's absence from this country which
    renders him immune from prosecution, and, in Australia, it now
    appears, also immune from a claim to restitution, founded upon his
    unjust enrichment from his undoubted wrong at the expense of the
    whole community. It is perhaps this immunity from process which
    prompts a temptation to continue his duty of confidence, despite
    the destruction of the subject matter of that duty.

    I fear that I have dealt at too great length with this point,
    which has troubled me very much. I need not, however, decide it
    in the present case (and I stress that, in the absence of argument,
    I am most reluctant to do so) for a very simple reason. Even if
    my provisional view on the point is wrong, and Peter Wright
    remains under a continuing duty of confidence, so that those who
    derive the information in the book from him would prima facie
    also be under a duty of confidence, I nevertheless take the view in
    the present case that to prevent the publication of the book in
    this country would, in the present circumstances, not be in the
    public interest. It seems to me to be an absurd state of affairs
    that copies of the book, all of course originating from Peter
    Wright - imported perhaps from the United States - should now be
    widely circulating in this country, and that at the same time other

    - 36 -

    sales of the book should be restrained. To me, this simply does
    not make sense. I do not see why those who succeed in obtaining
    a copy of the book in the present circumstances should be able to
    read it, while others should not be able to do so simply by
    obtaining a copy from their local bookshop or library. In my
    opinion, artificially to restrict the readership of a widely
    accessible book in this way is unacceptable: if the information in
    the book is in the public domain and many people in this country
    are already able to read it, I do not see why anybody else in this
    country who wants to read it should be prevented from doing so.

    For these reasons, I would reject Mr. Alexander's main

    argument; and I therefore feel able to consider the specific issues

    in this case unfettered by its otherwise considerable force. Those
    issues are as follows:

    (1) Publication by the "Observer" and "The Guardian"

    (a) Publication on 22 and 23 June 1986

    This issue has justly been described as stale by my noble
    and learned friend Lord Griffiths: and the extent of the disclosure
    of information on this occasion appears to be slight in comparison
    with what has since taken place. Indeed the point appears now to
    be, at most, of only marginal relevance. In these circumstances, I
    trust that I will be forgiven if I deal with it comparatively briefly.

    On a point such as this I am reluctant to hold that the
    learned judge, whose decision was upheld by a majority of the
    Court of Appeal, erred in concluding that, on balance, there was
    no breach of confidence, and that the publications should not be
    restrained by injunction. He said at p. 856:

    'The public interest in freedom of the press to report the
    court action outweighs, in my view, the damage, if any, to
    national security interests that the articles might, arguably,
    cause. I can see no 'pressing social need' that is offended
    by these articles. The claim for an injunction against these
    two newspapers in June 1986 was not, in my opinion,
    'proportionate to the legitimate aim pursued.'"

    Like Dillon and Bingham L.JJ., I agree that the learned judge, as
    a result of his having performed the balancing exercise which he
    was bound to perform, was entitled to reach that conclusion. I
    confess that I, like Bingham L.J., have not found the point easy;
    and I have of course taken into account the strong dissent of Sir
    John Donaldson M.R. on this point. But the articles were very
    short: they gave little detail of the allegations: a number of the
    allegations had been made before: and in so far as the articles
    went beyond what had previously been published, I do not consider
    that the judge erred in holding that, in the circumstances, the
    claim to an injunction was not proportionate to the legitimate aim
    pursued.

    (b) Further Publication

    The most important, and yet to me the most
    straightforward, issue in the case is whether the "Observer" and
    "The Guardian" should now be free to comment on the book, and

    - 37 -

    to publish as much of Spycatcher as they are permitted to do,
    under the fair dealing exception in the law of copyright. The
    learned judge, and all three members of the Court of Appeal, have
    held that both should be free to do so. I have no doubt that they
    were right to reach this conclusion. The extent of the publication
    of Spycatcher which had taken place at the date of trial is set
    out in the judgment of the learned judge (see [1988] 2 W.L.R. 805,
    820-822). No doubt its publication has continued unabated since
    that date. On any sensible view the information contained in the
    book was, at the date of trial, in the public domain. For this
    reason alone, in my opinion, the injunctions against the "Observer"
    and "The Guardian" should now be discharged.

    For the Crown it was submitted, on the basis of the
    evidence of Sir Robert Armstrong, that, despite the worldwide
    circulation of Spycatcher, nevertheless the injunction should be
    continued having regard to certain matters, which can broadly be
    described as matters of national security. The learned judge
    rejected this argument on the facts, and his conclusion was
    accepted by the Court of Appeal; I, too, agree with his conclusion
    on the facts, subject to the rider contained in the speech of my
    noble and learned friend, Lord Griffiths. In my opinion, however,
    these matters are all in any event irrelevant, having regard to the
    facts that the information is now in the public domain and
    therefore no longer confidential.

    I need not set out these various matters again: they are all
    listed in the judgment of the learned judge (see [1988] 2 W.L.R.
    805, 860-861), and repeated in the speech of my noble and learned
    friend, Lord Griffiths. What is striking about the comments of the
    judge upon them, is that they reflect the fact that such damage
    as can be done to the national security by Peter Wright's breach
    of confidence, or indeed by others who have published or may
    hereafter publish Spycatcher, has already been done. We read such
    comments as "This damage has already occurred;" or "The
    detriment is a fait accompli;" and so on. These comments reflect,
    to my mind, the irrelevancy of these matters to the issue before
    your Lordships' House, once the information had entered the public
    domain.

    In our civil law there is, so far as I am aware, no ground
    for restraining publication of information relating to national
    security other than breach of confidence. Information relating to
    national security is, of its very nature, prima facie confidential
    If a person into whose possession it comes publishes it, and is (as
    he usually will be) aware of its confidential nature, he will prima
    facie be guilty of a breach of confidence; any such publication, if
    threatened, can therefore be restrained by injunction as a
    threatened breach of confidence, subject of course to the usual
    limitations upon the duty of confidence. One of these limitations
    is that information is no longer confidential once it has entered
    the public domain; once information relating to national security
    has entered the public domain, I find it difficult to see upon what
    basis further disclosure of such information can be restrained.

    I realise that article 10 of the European Convention of
    Human Rights draws a distinction between national security and
    matters of confidence. It is very understandable that it should do
    so, since national systems may draw the same distinction,

    - 38 -

    especially in their criminal laws, and in any event national security
    is one of the most important areas in which secrecy is justified.
    But, as I have said, so far as I am aware English civil law draws
    no such distinction of this kind, all confidential matters (including
    matters of national security) being protected as such.

    It follows that I find myself to be in agreement with the
    opinion expressed by my noble and learned friend Lord Oliver of
    Aylmerton in the interlocutory proceedings (see [1987] 1 W.L.R.
    1248, 1317), that the injunction against these two newspapers
    involved a misuse of the injunctive remedy against them. Later in
    his speech, my noble and learned friend said (at p. 1318) with
    reference to publication by these two newspapers:

    "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."

    I respectfully agree. The point does not, in my opinion, require
    further comment or elaboration.

    (2) "The Sunday Times"

    (a) Publication on 12 July 1987

    All the relevant facts are set out in the judgment of the
    learned judge. He, and a majority of the Court of Appeal, have
    held this publication to have constituted a breach of confidence.
    Only Bingham L.J. formed a different view, on the basis that it
    was then a virtual certainty that widespread publication of the
    book in the United States would almost immediately take place. I
    am, with all respect, unable to accept Bingham L.J.'s generous
    approach. In my opinion, he has promoted a plea in mitigation to

    - 39 -

    the status of a substantive defence. The simple fact is that, on
    12 July, publication in the United States had not taken place;
    certainly, on 12 July, the information in Spycatcher was not yet in
    the public domain. The substantial extract from Spycatcher
    published in "The Sunday Times" included, as the learned judge
    held, a good deal of material in respect of which the public
    interest to be served by disclosure would not be thought to
    outweigh the interests of national security. I have no doubt that
    it was in this sense that the judge described the extract as
    "indiscriminate," whatever exercise the editor may himself have
    undertaken in making his choice. In my opinion, therefore, the
    publication in "The Sunday Times" was plainly in breach of
    confidence; so, if discovered in time, it could have been restrained
    by injunction. I can see no reason why 'The Sunday Times" should
    not be liable to account for profits flowing from their wrong,
    subject however to all the difficulties attendant on this remedy
    and its (perhaps excessively) technical nature.

    (b) Subsequent Serialisation

    If it were correct that Peter Wright owed the Crown a
    continuing duty of confidence in respect of the information
    contained in Spycatcher, I do not know how it would be possible to
    escape the conclusion that "The Sunday Times," deriving as it does
    its right to publish from Peter Wright, and having by its own
    breach of confidence contributed significantly to putting Spycatcher
    into the public domain in this country, should not likewise be
    subject to such a continuing duty. I echo the observation of
    Bingham L.J. (see [1988] 2 W.L.R. 805, 914 that it would be "to
    some extent anomalous that 'The Sunday Times' should be free to
    do what Mr. Wright and his Australian publishers could not."
    However, for the reasons I have already given, even if (subject to
    my doubts) Peter Wright remains under a continuing duty of
    confidentiality, the public interest does not now require that 'The
    Sunday Times," despite the fact that its right to publish in the
    past and today derives from Peter Wright, and despite its previous
    breach of confidence, should be restrained from serialising further
    extracts from the book.

    (3) Injunction as to the future

    For the reasons given by my noble and learned friends, Lord
    Keith of Kinkel and Lord Griffiths, I too would refuse to grant
    such an injunction.

    For these reasons, I find myself to be in agreement on all
    issues with the conclusions reached by the learned judge and by
    differing majorities of the Court of Appeal I would therefore
    dismiss the appeal by the Attorney General and the cross-appeals
    by 'The Sunday Times."

    - 40 -

    LORD JAUNCEY OF TULICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech of
    my noble and learned friend, Lord Keith of Kinkel, and I agree
    that both appeals and also the cross appeal of 'The Sunday Times"
    should be dismissed. I further agree with the reasons which my
    noble and learned friend has given for this result subject only to
    the one qualification herein after mentioned.

    I should like to add a few words about the position of "The
    Sunday Times" in relation to the future serialisation of Spycatcher.
    In the absence of full argument I find it very difficult to accept
    the proposition that Peter Wright can, by his own breach of duly,
    discharge himself from any further restraint on publication of the
    information confided to him during and in the course of his
    service. I agree therefore with my noble and learned friend Lord
    Griffiths that the question of future serialisation should be
    approached upon the basis that neither he nor any publisher on his
    behalf would be permitted to publish Spycatcher in this country.
    Like my noble and learned friend I find the question a difficult
    one but if I had been of opinion that 'The Sunday Times" alone
    had the present ability in the United Kingdom to serialise
    Spycatcher without let or hindrance from Peter Wright or his
    publishers and that such ability derived solely from the licence
    which that newspaper had obtained from one or other of those
    persons, I would have been in favour of restraining the "The
    Sunday Times" from further serialisation for the reasons which he
    has given. However I do not consider that such is the position.

    The courts of the United Kingdom will not enforce copyright
    claims in relation to every original literary work. Equitable relief
    has been refused -where the work contained false statements
    calculated to deceive the public (Slingsby v. Bradford Patent Truck
    and Trolley Co.
    [1905] W.N. 122 [1906] W.N. 51) and where the work
    was of a grossly immoral tendency (Glyn v. Weston Feature Film
    Co.
    [1916] 1 Ch. 261). In a passing off action, Bile Bean
    Manufacturing Co. v. Davidson
    (1906) 23 R.P.C. 725 the Second
    Division of the Court of Session refused relief to a company which
    had perpetrated a deliberate fraud on the public by a series of
    false factual statements about its product. Lord Justice-Clerk
    Macdonald at p. 734 said:

    "No man is entitled to obtain the aid of the law to protect
    him in carrying on a fraudulent trade, but the cases quoted
    at the debate by the Lord Ordinary establish, as I think,
    very clearly that the courts have in the past given effect to
    the principle which allows nothing to the man who comes
    before the seat of justice with a turpis causa."

    The publication of Spycatcher was against the public interest and
    was in breach of the duty of confidence which Peter Wright owed
    to the Crown. His action reeked of turpitude. It is in these
    circumstances inconceivable that a United Kingdom court would
    afford to him or his publishers any protection in relation to any
    copyright which either of them may possess in the book. That
    being so anyone can copy Spycatcher in whole or in part without
    fear of effective restraint by Peter Wright or those claiming to

    - 41 -

    derive title from him. It follows that the future ability of 'The
    Sunday Times" to serialise Spycatcher does not derive solely from
    their licence. They are free to publish without reference thereto
    and are thus for practical purposes in no better position than any
    other newspaper.


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