Attorney General v Punch Ltd
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS MR,Master of the Rolls |
| Judgment Date | 23 March 2001 |
| Neutral Citation | [2001] EWCA Civ 403 |
| Docket Number | Case No: A2/2000/3522 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2001 |
[2001] EWCA Civ 403
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Silber
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
(lord Phillips)
Lord Justice Simon Brown and
Lord Justice Longmore
Case No: A2/2000/3522
David Price (instructed by Henry Hepworth) for the Appellant
Jonathan Crow (instructed by The Treasury Solicitor) for the Respondent
Mr Steen, the appellant, used to be the editor of Punch. Both he and the publishers of that magazine have been held to have been guilty of contempt of court. This was because of an article published in an issue of Punch at the end of July last year. Silber J., who made the finding of contempt, fined Mr Steen £5,000 and Punch £20,000. Mr Steen now appeals to us against the finding of contempt. He is funding his own appeal and, in the interests of economy, originally instructed Mr David Price, the Solicitor, who has ably presented his appeal, to confine himself to a single ground of appeal which it was estimated would occupy the court for two hours. With the encouragement of the court and without objection from Mr Jonathan Crow, who appeared for the Attorney-General, he added a second ground of appeal in the course of argument. The appeal requires consideration of the basis of the findings of contempt made by the House of Lords in Attorney-General v. Times Newspapers Ltd [1992] 1 A.C. 191, the " Spycatcher" case.
The facts
The primary facts are not in dispute and the following summary of these draws largely from the judgment below.
From November 1991 until he resigned in October 1996, Mr David Shayler served as an officer in the Security Service ("the Service"). His engagement was subject to express terms prohibiting him from publishing information which related to or might be construed as relating to the Service or its membership or activities or to security or intelligence activities generally without prior written approval.
It is alleged by the respondent that sometime before his resignation, Mr. Shayler removed from the offices of the Service approximately 30 documents or copies taken by him ('the confidential documents') which contained confidential information belonging to the Crown and included details of or reference to secret intelligence, intelligence sources, the assessment of secret intelligence from intelligence sources, intelligence targets, investigative techniques and operational matters, the identity and telegraphic address of a number of foreign intelligence and security agencies and to diplomatic exchanges between Her Majesty's Government and a foreign government.
The respondent contends that subsequently Mr. Shayler provided to Associated Newspapers material derived from the confidential documents relating to the Service, including confidential information belonging to the Crown that had come into his possession in the course of his employment with the Service. This material was incorporated in articles that were published in late August 1997 in the 'Mail on Sunday' and the 'Evening Standard'. He further provided to Associated Newspapers information which was incorporated into articles that it was intended to publish in the Mail on Sunday on 31 August 1997.
At this point, however, the respondent intervened. He commenced an action against Mr Shayler as First Defendant and Associated Newspapers Ltd as Second Defendant and, on 30 August 1997, obtained from Keene J. interlocutory injunctions restraining publication. On 4 th September the action came before Hooper J. Neither Mr Shayler nor Associated Newspapers appeared, but Solicitors for Associated Newspapers wrote a letter giving undertakings and consenting to the Order that Hooper J. subsequently made against them.
Hooper J. made the following Order against Mr Shayler:
"The First Defendant be restrained until trial or further order whether by himself his servants or agents or otherwise howsoever from disclosing, whether to any newspaper or other organ of the media or any other person otherwise howsoever any information obtained by him in the course of or by virtue of his employment in and position as a member of the Security Service (whether presented as fact or fiction) which relates to or which may be construed as relating to the Security Service or its membership or activities or to security or intelligence activities generally, provided that this order does not apply to:
(1) any information in respect of which the Plaintiff (whether at the request of the Defendants or any of them, or any third party, or of his own motion) makes a statement in writing (either personally or by the Treasury Solicitor) that such information is not information in respect of which the Crown seeks to restrain publication;
(2) the repetition of information disclosed in The Mail on Sunday on 24th August 1997."
The first paragraph of the Order made against Associated Newspapers read as follows:
"The second Defendant be restrained until further order whether by itself, its servants or agents or otherwise howsoever from publishing, to any person any information obtained by it from the first Defendant and obtained by the first Defendant in the course of or as a result of his employment in and position as a member of the Security Service, whether in relation to the work of, or in support of, security or intelligence services or otherwise…."
In June or July 1998, the appellant in his capacity as editor of Punch met Mr Shayler in Paris and prior to that meeting, his office had requested and received copies of the injunctions from the Treasury Solicitor. The appellant wished to know what was covered by the injunctions. Mr Shayler subsequently started writing a regular column in Punch commencing with issue 89 (September 11/September 24 1999) and, from issue 90 onwards, the column carried his name on a by-line. By that time, Mr Shayler was well known as a warrant for his arrest had been issued and he had been arrested in Paris pending extradition proceedings, which were ultimately unsuccessful. In addition the book "Defending the Realm – M15 and the Shayler Affair" by journalists Mark Hollingsworth and Nick Fielding had been published which gave details of Mr Shayler's experiences at M15 as well as his gradual disenchantment with the Service and the reasons for that disenchantment.
Mr Steen explained to the court in an affidavit that he thought that Mr Shayler had important comments to make, which readers of Punch were entitled to know about and would find interesting, namely "the error and incompetence of M15, and its direct and often tragic consequences." He also felt that Mr Shayler should have a platform from which to speak out and "not be pushed to the literal and figurative margins by the Security Services". Mr Shayler had worked on student newspapers at university and had had a rudimentary journalistic training at The Sunday Times; therefore he was, according to Mr Steen, quite capable of writing an interesting column in journalistic style.
According to Mr Steen:
"Mr Shayler's column was intended to criticise the performance of the security services, to expose its errors and inefficiencies and to show that its past incompetence had had serious and sometimes tragic results. Mr Shayler's status, his locus standi, so far as Punch's readers were concerned, was that he had been on the inside, that he knew what he was talking about, that he was able to comment about security and related matters."
By a letter of the 23 December 1999, following Mr Shayler's eighth piece in the magazine, Mr Martin for the Treasury Solicitor wrote to the appellant reminding him of the existence of the orders and stating that he had been instructed that "some of the material in the articles is damaging to national security".
Vigorous correspondence ensued between the appellant and Mr Martin, in the course of which Mr Martin urged the Appellant to "take advantage of the proviso to the injunction allowing the Crown to confirm that it does not object to the publication of certain material." To this the appellant responded that editorial steps were taken to ensure that the injunction was not breached nor reference made to material which might remotely be considered to be damaging to the national interest. He accused Mr Martin of attempting to force Punch to submit to Government censorship. The correspondence ended on 21 January 2000 with a letter from Mr Martin which included a statement that "the purpose of an injunction is not to prevent criticism of the Security Service but is to prevent damage to national security".
There the matter rested until Friday, 21 July 2000 when Mr Martin received a telephone call from the appellant who said that he intended to publish an article by Mr Shayler in the following week's edition relating to the Bishopsgate bombing while much of the article was not new and would not come as a surprise, it contained, in his words, "a lot of M15 jargon".
This letter led to a flurry of urgent communications between Mr Martin and the appellant. Mr Martin's clients needed time in order to comment on the proposed article, while the appellant was concerned about his printing deadline. Mr Martin stated in a telephone conversation that the article appeared to fall within the terms of the injunction as the article set out information obtained by Mr Shayler in the course of his employment. He followed this up with a letter on 24 July in which he stated "my clients are satisfied that the publication of the...
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