Attorney General v Guardian Newspapers Ltd and Others (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DILLON,LORD JUSTICE BINGHAM |
| Judgment Date | 10 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0210-4 |
| Docket Number | 88/0103 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 1988 |
[1988] EWCA Civ J0210-4
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Dillon
Lord Justice Bingham
88/0103
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE SCOTT
Royal Courts of Justice
MR ROBERT ALEXANDER Q.C., MR JOHN LAWS and MR PHILIP HAVERS, instructed by the Treasury Solicitor, appeared for the Appellant (Plaintiff in all three appeals).
MR CHARLES GRAY Q.C., MR DESMOND BROWNE and MISS HEATHER ROGERS, instructed by Messrs Lovell White & King, appeared for the First Respondents (Defendants in the first and second appeals).
MR ANTHONY LESTER Q.C. and MR DAVID PANNICK, instructed by Messrs Theodore Goddard, appeared for the Second Respondents (Defendants in the third appeal).
This appeal from a judgment of Scott J. constitutes the latest, but assuredly not the last, episode in the "Spycatcher" saga. Previously the courts have been concerned with two quite different aspects of the problem. The first was how to preserve the status quo or "hold the ring" pending a full investigation of the legal rights and duties of all those concerned—"the interlocutory proceedings". These ended in the House of Lords in July 1987 and are reported in [1987] 1 W.L.R. 1248. The second concerned the effect of injunctive orders upon third parties and took the form of contempt proceedings against "The Independent" and two other newspapers, which are reported in [1987] 1 W.L.R. 942. These proceedings—"the contempt proceedings"—have not yet reached a final conclusion. Contempt proceedings have also been brought against "The Sunday Times", but are temporarily in abeyance. The judgment of Scott J. and this appeal, by contrast, are concerned with the final determination of the rights and duties of the parties.
I mention this at the outset lest it be thought that this court is not free to reach decisions which might be thought to be inconsistent with its earlier decisions or inconsistent with those of the House of Lords in the interlocutory proceedings. This would be a profound misconception. The earlier decisions were concerned with different situations and different principles applied. The only exception to this general proposition is that this court is bound by its earlier decision in the contempt proceedings that an injunction addressed to one defendant newspaper may bind all the media of communication. This is only relevant to this appeal to the extent that it requires the court to take account of this potentially wider effect, if it contemplates imposing any injunction.
Scott J., in section 2 of a judgment of conspicuous clarity, has reviewed the history of "Spycatcher". I could not begin to improve upon it and gratefully adopt it. My only comment is that, as I understand the position, the Government's decision not to apply the statutory powers available to prohibit specific imports of "Spycatcher" probably stems from doubts whether the use of such powers in the unique situation which has arisen was within the intendment of the legislation and a consideration of whether the resources of the customs service should be diverted from other essential duties for the purpose of enforcing such a prohibition. Nevertheless the fact that there is no such prohibition is an important factor of which full account should be taken.
This is the subject of an exhaustive report by the Law Commission (Cmnd. 8388 of 1981; Law Com. No. 110), but for present purposes I think that it can be summarised as follows:
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(1) A right to have the confidentiality of information maintained is well recognised in the domestic law of this country.
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(2) The right can arise out of a contract whereby one part ("the confidant") undertakes that he will maintain the confidentiality of information directly or indirectly made available to him by the other party ("the confider") or acquired by him in a situation, e.g. his employment, created by the confider. But it can also arise as a necessary or traditional incident of a relationship between the confidant and the confider, e.g. priest and penitent, doctor and patient, lawyer and client, husband and wife. Finally, I would agree with Lord Widgery C.J. in Attorney General v. Jonathan Cape Ltd. [1976] 1 Q.B. 752, 769 that "the courts must have power to deal with publication which threatens national security". In other words, the Crown, as the embodiment of the nation as a whole, has an enforceable right to the maintenance of confidentiality arising out of the very nature of such information and the consequences of its disclosure without regard to any contract binding the confidant to any relationship between him and the Crown or to the Official Secrets Act or any other legislative provision. This special right in the Crown is not relied upon in the present proceedings, but it is right that it should be noted and affirmed.
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(3) As a general proposition, that which has no character of confidentiality because it has already been communicated to the world, i.e. made generally available to the relevant public, cannot thereafter be subjected to a right of confidentiality (O . Mustad & Son v. Dosen [1964] 1 W.L.R. 109.) However, this will not necessarily be the case if the information has previously only been disclosed to a limited part of that public. It is a question of degree ( Franchi v. Franchi [1967] R.P.C. 149, 152–3, per Cross J.). Furthermore, if the confidant could by great exertion have acquired the information for himself, but the confider is in fact the source of the confidant's knowledge, the law may confer a right of confidentiality unless and until the information is acquired by the confidant from other sources ( Schering Chemicals Ltd. v. Falkman Ltd. [1982] 1 Q.B. 1.
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(4) Since the right to have confidentiality maintained is an equitable right, it will (in legal theory and practical effect if the aid of the court is invoked) "bind the conscience" of third parties, unless they are bona fide purchasers for value without notice (per Nourse L.J. on 25th July 1986 in the interlocutory proceedings).
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(5) The right will be lost or, at all events, the courts will not uphold and enforce it, if there is just cause or excuse for communicating the information in circumstances which would otherwise constitute a breach of the right. However the nature and degree of the communication must be proportionate to the cause or excuse. Thus communication to those who have a duty to receive and act upon the information may be justified in circumstances in which indiscriminate communication would not ( Francome v. Mirror Group Newspapers Ltd. [1984] 1 W.L.R. 892).
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(6) The right will also be lost if the information, which is subject to a right of confidentiality, is published to the world by or with the consent of the confider, but it will not necessarily be lost if such publication is by or with the consent of the confidant ( Speed Seal Ltd. v. Paddington [1985] 1 W.L.R. 1327).
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(7) There is an inherent public interest in individual citizens and the State having an enforceable right to the maintenance of confidence. Life would be intolerable in personal and commercial terms, if information could not be given or received in confidence and the right to have that confidence respected supported by the force of law. In the context of state confidentiality, the safety of the realm would be threatened if the confidentiality of secret security information could never be safeguarded. Equally, the processes of government would become impossible if, for example, the confidentiality of advice could never be safeguarded. But the weight to be attached to this factor will vary greatly according to the circumstances of the confidant and the nature of the case. However, there will be just cause or excuse for breaking confidence when there are countervailing public interests supporting publication which outweigh those supporting the right to confidentiality.
The United Kingdom has ratified this Convention, Article 10 of which provides as follows:
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law, including the law of contract, or by statute. If, therefore, someone wishes to assert a right to confidentiality, the initial burden of establishing circumstances giving rise to this right lies upon him. The substantive right to freedom of expression contained in Article 10 is subsumed in our domestic law in this universal basic freedom of action. Thereafter, both under our domestic law and under the...
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