6
![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6 (13 October 1988) URL: http://www.bailii.org/uk/cases/UKHL/1988/6.html Cite as: [1988] UKHL 6, [1990] 1 AC 109, [1987] 1 WLR 776, [1988] 3 All ER 545 |
||
[New search] [Help]
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? . . .
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? . . .
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? . . .
Is the Attorney-General entitled
to an account of the
profits accruing to 'The Sunday Times' as a
result of
the serialisation of Spycatcher? . . .
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] A.C. 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] A.C. 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 inves