Attorney General v Leveller Magazine Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Viscount Dilhorne,Lord Edmund-Davies,Lord Russell of Killowen,Lord Scarman
Judgment Date01 Feb 1979
Judgment citation (vLex)[1979] UKHL J0201-1

[1979] UKHL J0201-1

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Edmund-Davies

Lord Russell of Killowen

Lord Scarman

Her Majesty's Attorney General
(Respondent)
and
Leveller Magazine Ltd. and Others
(Appellants)
Her Majesty's Attorney General
(Respondent)
and
The National Union of Journalists
(Appellants)
Her Majesty's Attorney General
(Respondent)
and
Peace News Limited and Others
(Appellants)

Upon Report from the Appellate Committee to whom was referred the Cause Her Majesty's Attorney General against The National Union of Journalists, That the Committee had heard Counsel as well on Tuesday the 28th as on Wednesday the 29th and Thursday the 30th days of November last upon the Petition and Appeal of The National Union of Journalists of Acorn House, 314 Grays Inn Road, London WC1X 8DQ praying that the matter of the Order set forth in the Schedule thereto, namely an Order of the Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 19th day of May 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of Her Majesty's Attorney General the Respondent 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 the Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 19th day of May 1978 complained of in the said Appeal be, and the same is hereby, Reversed and that the Appellants be found not guilty of contempt of court: And it is further Ordered, That the Respondent do pay or cause to be paid to the said Appellants the Costs incurred by them in the Courts below and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Divisional Court of the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Diplock

My Lords,

1

In November 1977 three defendants, two of whom were journalists, had been charged with offences under the Official Secrets Act. Committal proceedings against them were being heard before the Tottenham magistrates court acting as examining justices. The proceedings extended over a considerable number of days. On the first day, on the application of counsel for the prosecution, some of the evidence was heard in camera pursuant to section 8(4) of the Official Secrets Act 1920. On the third day, November 10th, counsel for the prosecution made an application that the next witness whom he proposed to call should, for his own security and for reasons of national safety, be referred to as "Colonel A" and that his name should not be disclosed to anyone. The magistrates, upon the advice of their clerk, ruled, correctly but with expressed reluctance, that this would not be possible and that although the witness should be referred to as "Colonel A", his name would have to be written down and disclosed to the court and to the defendants and their counsel. The prosecution decided not to call that witness and the proceedings were adjourned.

2

The hearing was resumed four days later on November 14th. The prosecution called, instead of "Colonel A", another witness. Counsel for the prosecution applied for him to be referred to as "Colonel B", and that his name be written down and shown only to the court, the defendants and their counsel. This was said to be necessary for reasons of national safety; risk to "Colonel B's" own security was not relied on. Counsel for the defendants raised no objection to the course proposed; the magistrates assented to it and the witness then gave evidence in open court. He was throughout referred to as "Colonel B"; his real name was never mentioned. For the purposes of the proceedings for contempt of court with which the Divisional Court and now your Lordships have been concerned, it must be taken, although initially there was conflicting evidence as to this, that the magistrates gave no express ruling or direction other than that the witness was to be referred to in court as "Colonel B" and not by his real name and that his real name was to be written down and disclosed only to the court, the defendants and their counsel.

3

In the course of the cross-examination of "Colonel B" questions were put the effect of which was to elicit from him (1) the official name and number of the army unit to which he belonged and (2) the fact that his posting to it was recorded in a particular issue of "Wire" the magazine of the Royal Corps of Signals which is obtainable by the public. These answers enabled his identity to be discovered by anyone who cared to follow up this simple clue. The line of questioning which elicited this information was pursued without objection from counsel for the prosecution, the witness or the magistrates; and the answers which made his identity so easy to discover were included in the Colonel's deposition read out to him in open court before he signed it.

4

In the issue of "Peace News" for November 18th these two pieces of information about "Colonel B" elicited in open court were published; and in the issue for December 16th, the name of "Colonel B" was disclosed and an account was given of his military career. In the January and March 1978 issues of another magazine "The Leveller", the name of "Colonel B" was published. Finally in the issues of the "Journalist" for March and April 1978 published by the National Union of Journalists, "Colonel B" was again identified by name.

5

All this occurred before the trial of the defendants at the Central Criminal Court began.

6

On March 22nd 1978 the Attorney General brought in the Divisional Court proceedings for contempt of court against Peace Magazine Ltd. and the Leveller Magazine Ltd. and persons responsible for the publication in those periodicals of the articles which published the real name of "Colonel B"; and on April 18th 1978 he brought similar proceedings against the National Union of Journalists in respect of the articles appearing in the "Journalist". In each of these proceedings the statement filed pursuant to Order 52 rule 2 contained an allegation that at the committal proceedings in Tottenham magistrates court on November 14th 1978 not only had the magistrates permitted "Colonel B" not to disclose his identity but their chairman had also given an express direction in open court that no attempt should be made to disclose the identity of "Colonel B". Before the three motions, which were heard together, came on for hearing, an affidavit by the clerk to the Tottenham magistrates court was filed, denying that any such explicit direction had been given by the chairman of the magistrates and stating that the reason why such a direction was not given was because he had advised the magistrates that they had no power to do so. In view of this evidence the hearing of the motions proceeded on the basis that no explicit direction had been given to those present at the hearing that no attempt should be made to disclose the identity of "Colonel B"; and that what had happened at the committal proceedings in relation to the witness being referred to only as "Colonel B" was as I have already stated it.

7

My Lords, it is not disputed that the disclosure of "Colonel B's" identity by the appellants was part of a campaign of protest against the Official Secrets Act. It was designed, no doubt, to ridicule the notion that national safety needed to be protected by suppression of the Colonel's name: The only question for your Lordships is whether in doing what they did, the appellants were guilty of contempt of court.

8

The Divisional Court found contempt of court established against all appellants but made orders only against the National Union of Journalists and the two companies. The National Union of Journalists was fined ?200, Peace Magazine Ltd. and the Leveller Magazine Ltd. were each fined ?500. Against these orders these appeals are now brought to this House.

9

In the judgment of the Divisional Court delivered by Lord Widgery C.J. it is pointed out that contempt of court can take many forms. The publication by the appellants of the witness's identity after the magistrates had ruled that he should be referred to in their court only as "Colonel B" was held by the Divisional Court to fall into a class said to be exemplified in Attorney General v. Butterworth [1963] 1Q.B. 696 and Reg. v. Socialist Worker [1975] Q.B. 637 and variously described in the course of the judgment as "a deliberate flouting of the Court's authority", "a flouting (or deliberate disregard) outside the Court of the Court's ruling", a "deliberate intention of frustrating the arrangement which the Court had made to preserve Colonel B's anonymity" and finally a "deliberate flouting of the Court's intention": I do not think that any of these ways of describing what the appellants did is sufficiently precise to lead inexorably to the conclusion that what they did amounted to contempt of court. Closer analysis is needed.

10

The only "ruling" that the magistrates had in fact given was that the witness should be referred to at the hearing in their court as "Colonel B" and that his name must be written down and shown to the court, the defendants and their counsel but to no one else. That it was also the only ruling that they intended to give is apparent from the fact...

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