A-G v Punch Ltd and Another
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 12 December 2002 |
| Neutral Citation | [2002] UKHL 50 |
| Date | 12 December 2002 |
| Court | House of Lords |
and another
[2002] UKHL 50
HOUSE OF LORDS
My Lords,
This appeal concerns the interaction of two principles of fundamental importance in this country: freedom of expression, and the rule of law. On 26 July 2000 the magazine 'Punch' published an article written by Mr David Shayler, a former member of the Security Service, under the heading 'MI5 could have stopped the bomb going off'. The Attorney General brought contempt of court proceedings against the magazine's publisher, Punch Ltd, and its editor, Mr James Steen. Silber J held that publication of this article was a contempt of court. He fined the company £20,000 and Mr Steen £5,000. The company did not appeal, but Mr Steen did. The majority of the Court of Appeal, Lord Phillips of Worth Matravers MR and Longmore LJ, considered there had been no contempt. In the minority, Simon Brown LJ, would have upheld the judgment of Silber J. So, by a majority of two to one, the decision of Silber J was set aside. The Attorney General has now appealed to your Lordships' House.
Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him. That is not the form of contempt in question in this case. In 1997 the court made an order against Mr Shayler, restraining him from disclosing information about the Security Service. But neither Punch Ltd nor Mr Steen was a party to those proceedings. No order was made against either of them.
The form of contempt asserted by the Attorney General in the present case is different, although closely related. Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order. That also is not the case presented by the Attorney General against Mr Steen, although the case could have been framed in this way. Punch Ltd and Mr Steen furthered Mr Shayler's breaches of the order made against him by publishing an article he wrote specially for them. However, the Attorney General has not advanced a case against Mr Steen or the company on this footing.
Aiding and abetting a breach of the order by the person specifically restrained by the order is not always an essential ingredient of 'third party' contempt. The purpose of a court in making an order may be deliberately frustrated by a third party even though he is acting independently of the party against whom the order was made. An interlocutory order for the non-disclosure of information is the paradigm example of the type of order where this principle is in point. The Spycatcher litigation is the best known recent instance of this. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse affect on the administration of justice in that action: see Lord Brandon of Oakbrook in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 203D, 206G-H, and, for the latter part, Lord Bingham of Cornhill CJ in Attorney General v Newspaper Publishing plc [1997] 1 WLR 927, 936. Lord Phillips MR neatly identified the rationale of this form of contempt, at [2001] QB 1028, 1055, paragraph 87:
"The contempt is committed not because the third party is in breach of the order - the order does not bind the third party. The contempt is committed because the purpose of the judge in making the order is intentionally frustrated with the consequence that the conduct of the trial is disrupted."
I shall have to consider later what is meant by 'the purpose of the judge in making the order' and like expressions. In the Court of Appeal Lord Phillips MR's approach on this point resulted in his giving contempt of court in this context a narrower scope than Lord Brandon.
The Attorney General's claim in the present case is of this character. The Attorney General's case against Punch Ltd and Mr Steen is presented solely on the basis that they deliberately impeded or prejudiced the purpose the court sought to achieve in making its non-disclosure order against Mr Shayler.
The history
I must first summarise the events leading up to these contempt proceedings. A fuller narrative can be found in the judgment of Lord Phillips MR, at [2001] EWCA Civ 403, [2001] QB 1028, 1033-1036, paragraphs 2-19. David Shayler served as an officer with the Security Service, colloquially known as MI5, from November 1991 until he resigned in October 1996. His terms of service included extensive prohibitions on publishing information about the Security Service. When Mr Shayler left he took with him copies of many confidential documents containing sensitive information relating to intelligence activities of MI5. According to the Attorney General, Mr Shayler then disclosed some of this material to a newspaper publisher, Associated Newspapers Ltd. Articles written by Mr Shayler, or based on information provided by him, were published in the 'Mail on Sunday' and the 'Evening Standard' in August 1997.
In expectation of publication of a further article the Attorney General intervened and brought civil proceedings against Mr Shayler and Associated Newspapers. On 4 September 1997 Hooper J granted an interlocutory injunction against Mr Shayler. By this order, expressed to continue until the trial of the action or further order meanwhile, Mr Shayler was restrained from disclosing to any newspaper or anyone else:
"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."
Two provisos were attached to the order. First, the order did not apply to any information in respect of which the Attorney General stated in writing that the information is not information whose publication the Crown seeks to restrain. Second, the order did not preclude repetition of information disclosed in the 'Mail on Sunday' on 24 August 1997.
A similar order, although not in precisely identical terms, was made against Associated Newspapers. Neither Mr Shayler nor Associated Newspapers objected to the making of these orders.
Mr Shayler and Punch
Mr Shayler first wrote for 'Punch' in February 1999. Mr Steen was aware of the terms of the interlocutory non-disclosure orders made against Mr Shayler. Indeed, he had obtained copies of the injunctions from the Treasury Solicitor. This did not deter him. He still wished to employ Mr Shayler to write about the Security Service. He considered Mr Shayler would be capable of writing an interesting column in a journalistic style. Mr Steen intended that the column would criticise the performance of the security services, expose their alleged errors and inefficiencies, and show that their alleged incompetence has led to serious and sometimes tragic results. Mr Steen considered that Mr Shayler's standing, in the eyes of readers, was that he had been 'on the inside', that he knew what he was talking about, and that he was able to comment on security and related matters.
Mr Shayler started writing a regular fortnightly column in September 1999. Following his eighth piece in the magazine, the Treasury Solicitor, acting on behalf of the Attorney General, wrote to Mr Steen in December 1999. He reminded Mr Steen of the existence of the orders. He said he had been instructed that some of the material in the articles was damaging to national security.
A lively correspondence ensued. The Treasury Solicitor urged Mr Steen 'to take advantage of the proviso to the injunction allowing for the Crown to confirm that it does not object to publication of certain material'. Mr Steen responded that editorial steps were taken to ensure the injunctions were not breached. No material published could remotely be considered to threaten national security. He accused the Treasury Solicitor of attempting to force 'Punch' to submit to government censorship. The correspondence ended in January 2000 with a letter from the Treasury Solicitor stating that the purpose of the injunctions was not to prevent criticism of the Security Service but to prevent damage to national security.
The offending magazine article
On Friday 21 July 2000 Mr Steen received from Mr Shayler a draft article, with a view to publication on Wednesday of the following week. The draft dealt with the Bishopsgate bomb in 1993 and the death of WPC Yvonne Fletcher outside the Libyan Embassy in 1984. It was the published version of this article which led to these contempt proceedings.
The draft article identified the sources of two pieces of intelligence. This was a matter of concern to Mr Steen. So he got in touch with the Treasury Solicitor. At about 1 pm on Friday 21 July...
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