Attorney General v Times Newspapers Ltd

JurisdictionUK Non-devolved
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
Judgment Date11 April 1991
Judgment citation (vLex)[1991] UKHL J0411-3
Date11 April 1991
CourtHouse of Lords
Times Newspapers Limited and Another
Her Majesty's Attorney General

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Ackner

Lord Oliver of Aylemerton

Lord Jauncey of Tullichettle

House of Lords

Lord Keith of Kinkel

My Lords,


I have had the opportunity of reading in draft the speeches of my noble and learned friends who are to speak after me. They have all concluded, for essentially the same reasons, that this appeal should be dismissed. That is also my own conclusion, and no useful purpose would be served by my attempting to restate these reasons, with which I agree, in different language.


My Lords, I would accordingly dismiss the appeal.

Lord Brandon of Oakbrook

My Lords,


This appeal is part of yet another chapter in the Spycatcher story. As is well known, that story concerns the efforts of Mr. Peter Wright, a former officer of the British Secret Service to have published a book of his memoirs entitled Spycatcher in breach of his duty of confidentiality to the Crown, and the sustained but ultimately unsuccessful efforts of the Attorney-General to prevent such publication. It is not necessary, however, for the purpose of explaining the question which your Lordships have to decide in this appeal, to set out anything like the whole of the Spycatcher story. I shall accordingly in what follows confine myself to setting out only those episodes of the story which it is necessary to set out for that purpose.


At about the end of June 1986 the Attorney-General brought actions in the Chancery Division of the High Court against the publishers and editors of the newspapers, the "Observer" and the "Guardian," for permanent injunctions restricting them from publishing material from Mr. Wright's memoirs ("the confidentiality actions"). On 11 July 1986 injunctions were granted to the Attorney-General by Millett J. restraining such publication pending the trial of those actions. There was an appeal to the Court of Appeal which upheld the injunctions subject to minor and immaterial modifications.


In April 1987, while those injunctions ("the Millett injunctions") were still in force, extensive extracts from and summaries of Mr. Wright's memoirs were published in the newspaper, "The Independent", and referred to in two other newspapers, the "The Evening Standard" and the "London Daily News." Following such publication the Attorney-General on 1 May 1987 began proceedings in the Chancery Division of the High Court to have the publishers and editors of those three newspapers punished for contempt of court ("the first contempt proceedings").


On 11 May 1987 Sir Nicolas Browne-Wilkinson V.-C. made an agreed order for the trial of the following preliminary issue in the first comtempt proceedings:

"Whether a publication made in the knowledge of an outstanding injunction against another party, and if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction."


On 2 June 1987 the Vice-Chancellor gave judgment on the preliminary issue. He held that, since the publishers and editors of the three newspapers were neither parties to the confidentiality actions nor subject to the injunctions granted in them, their conduct in publishing material from Mr. Wright's memoirs did not constitute a criminal contempt of court. He accordingly dismissed the Attorney-General's application. The Attorney-General then gave notice of appeal to the Court of Appeal against the decision of the Vice-Chancellor.


On 4 June 1987 the publishers of yet another newspaper, the "Sunday Times," acquired the right to serialise Spycatcher in the United Kingdom. On 9 July 1987 leading counsel advised them in writing that publication by them of material from Spycatcher in their newspaper would not be a contempt of court. On Friday 10 July 1987 Viking Penguin Inc., which had earlier announced its intention of publishing Spycatcher in the United States of America, sent out thousands of copies of it to bookshops across the United States of America to be put on sale on arrival.


On Sunday 12 July 1987 Times Newspapers Ltd., the publishers of the "Sunday Times," and Mr. Andrew Neil, its editor, caused to be published in that newspaper the first instalment of their serialisation of Spycatcher. On Monday 13 July 1987 the Attorney-General began proceedings against Times Newspapers Ltd. and Mr. Andrew Neil for contempt of court ("the second contempt proceedings"). On the same day copies of Spycatcher began to be sold in large numbers in the United States of America.


On 15 July 1987, the Court of Appeal (Sir John Donaldson M.R., Lloyd and Balcombe L.JJ.), having completed its hearing of the Attorney-General's appeal against the Vice-Chancellor's decision on the preliminary point in the first contempt proceedings, announced that it was allowing the appeal and reversing that decision. On 17 July 1987 the Court of Appeal handed down the reasons for its decision. Those reasons can be summarised as follows. First, the purpose of the court in granting the Millett injunctions was to preserve the confidential nature of material in or derived from Mr. Wright's memoirs pending the trial of the confidentiality actions in circumstances where any prior publication would destroy the subject matter of those actions. Secondly, destruction of the subject matter of a pending action impeded or prejudiced the administration of justice in that action. Thirdly, a third party who published material alleged to be confidential, knowing that it was the subject matter of a pending action and the subject of a court order prohibiting its publication, committed the actus reus of contempt of court. The publishers and editors of the three newspapers concerned applied for leave to appeal to your Lordships' House. The Court of Appeal, however, refused such leave on the ground it was appropriate for all the relevant facts to be found first. It therefore remitted the case to the High Court for that to be done, and for the first contempt proceedings to be decided by reference to the facts as found.


The first contempt proceedings, having been so remitted by the Court of Appeal, came for hearing before Morritt J. in April 1989. At the same time he had before him the second contempt proceedings, and also further contempt proceedings on similar grounds against the publishers of and editors of two more newspapers, the "Sunday Telegraph" and the "News on Sunday."


In the event, for reasons given by the Attorney-General and accepted by the court, the Attorney-General did not press for substantive relief against the publishers and editors of the "Evening Standard", the "London Daily News," the "Sunday Telegraph" or the "News on Sunday". However, he maintained his claims for substantive relief against the publishers and editors of the "Independent" and the "Sunday Times". In a reserved judgment delivered on 8 May 1989 Morritt J. held that the publishers and editors of the "Independent" and the "Sunday Times" had, by publishing extracts from or summaries of Spycatcher, committed contempt of court. He went on to impose fines of £50,000 on the publishers of the the "Independent" and the "Sunday Times" and to order that the publishers and editors of both those newspapers should pay the Attorney-General's costs. There were appeals against the judgment of Morritt J. to the Court of Appeal (Fox, Ralph Gibson and Nicholls L.JJ.). On 27 February 1990 that Court affirmed the judgment of Morritt J. on the issue of contempt of court, but discharged the fines imposed by him on the publishers of the "Independent" and the "Sunday Times." The court further ordered the publishers and editors of those two newspapers to pay the Attorney-General's costs of the appeals. The publishers and the editor of the "Sunday Times," by leave of the Court of Appeal, now bring this further appeal to your Lordships' House.


Certain matters are common ground between the parties. First, the strict liability rule dealt with in sections 1 to 7 of the Contempt of Court Act 1981 does not apply in this case. That is because the confidentiality proceedings in which the Millett injunctions were granted were not, at the time of the relevant publication, active proceedings within the meaning of section 3 and Schedule 1 of the Act. Secondly, if there was any contempt of court it could only have been common law contempt as expressly preserved by section 6( c) of the Act of 1981, which provides that nothing in the previous provisions of the Act restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice. Thirdly, contempt of court of the kind described in section 6(c) comprises two elements, an actus reus and mens rea.


Before Morritt J. and the Court of Appeal it was contended for the publishers and editors of, among other newspapers, "The Sunday Times" that they had not committed any actus reus and in any case did not have any mens rea. Before your Lordships, however, Mr. Lester, who represented the publishers and editor of "The Sunday Times," conducted his case on the basis that mens rea was no longer disputed and that the sole question in issue was whether any actus reus had been committed.


It is, in my opinion, of the utmost importance to formulate with precision the question which falls to be decided in this appeal. For the purpose of such formulation it is necessary to assume a situation in which one person, B, is a party to an action brought against him by another person, A, and the court grants A an injunction restraining B from doing certain acts. Despite the rhetoric employed at times by Mr. Lester the question for decision is not whether such an injunction is binding on a third...

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