Secretary of State for Defence v Guardian Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GRIFFITHS,LORD JUSTICE SLADE |
| Judgment Date | 16 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1216-1 |
| Docket Number | 83/0486 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 1983 |
[1983] EWCA Civ J1216-1
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Griffiths
and
Lord Justice Slade
83/0486
1983 D. No. 5298
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE SCOTT)
Royal Courts of Justice.
MR. SIMON BROWN (instructed by the Treasury Solicitor) appeared on behalf of the (Plaintiffs) Respondents.
LORD RAWLINSON, Q.C. and MR. PETER PRESCOTT (instructed by Messrs. Lovell White & King) appeared on behalf of the (Defendants) Appellants.
This case raises once again the extent to which journalists should be allowed to protect their sources of information. It comes to us on appeal from an order, made yesterday by Mr. Justice Scott, which requires The Guardian newspaper to deliver to the Secretary of State for Defence or the Attorney General a document entitled "Deliveries of Cruise Missiles to RAF Greenham Common—Parliamentary and Public Statements".
This document was prepared in the Ministry of Defence on or about the 20th October, 1983. It was classified "Secret", and only seven copies left that ministry. It appears that the author was the Secretary of State for Defence and the primary addressee was the Prime Minister, but copies were also sent to the Home Secretary, the Foreign Secretary, the Lord President of the Council, the Lord Privy Seal, the Chief Whip and the Secretary of the Cabinet.
Next day The Guardian received a photocopy of one of these copies. No one on The Guardian staff knows whence it came or who delivered it. It simply arrived at the news desk with other material. The editor made various inquiries designed to establish whether or not it was authentic and was satisfied that it was. He also gave considerable thought to whether the national interest would be damaged by its publication. His conclusion was that it would not be, and on the 31st October he published it. Next day the Prime Minister was questioned about the document in the House of Commons, but nothing further occurred until the 11th November when the Treasury Solicitor wrote to the editor asking him to deliver up the document forthwith.
On the 17th November solicitors for The Guardian replied in the following terms:
"Our clients have a document as described in your letter. In the top and bottom right-hand corner of the first page there are certain markings, an attempt to obliterate some of which had been made before the document was delivered anonymously to our clients' offices. On the top left-hand corner of the blank side of the fourth page there appears some faint markings which may reflect those on the front page.
The Editor takes the view that these various markings might disclose, or assist in the identification of, the source of the information to The Guardian, although he is unable to decipher them himself and does not know the source. In accordance with the well established convention of journalism, which now has statutory force by virtue of section 10 of the Contempt of Court Act 1981, he is not prepared to take any step which might lead to the disclosure of the source of information published in his newspaper.
As the Editor is concerned only to protect his source, I am, without prejudice to any argument as to the property in the document, authorised to hand it to you, with the three areas of marking excised from it. This would provide you with the whole of the text. If that course is not acceptable and you are minded to seek an injunction from the court on the lines mentioned in our telephone conversation on 14th November, will you please note that my firm has instructions to accept service of proceedings. No doubt, if you decide to take that course, you will co-operate with us in arranging a time for the hearing of the application which would be convenient to Counsel on both sides.
In the meantime, you may take it that the document will be preserved intact."
On the 21st November the Treasury Solicitor replied that the proposal to deliver up the document with certain parts excised was unacceptable and that proceedings would be begun. This in fact happened on the following day.
In an affidavit filed on behalf of the Secretary of State for the Defence, Mr. Richard Hastie-Smith, the principal establishment officer of the Ministry, referred to the article in The Guardian for the 31st October entitled "Heseltine's briefing to Thatcher on cruise timing". He continued as follows:
"Beneath the title of the said article is a description of a document, stated to be marked 'Secret' and dated 20th October 1983, which is alleged to have come into the possession of the Defendant. That document is said to be headed 'Deliveries of Cruise Missiles to RAF Greenham Common—Parliamentary and Public Statements'. If such document is authentic it is the property of the Crown and no authority has been given to pass it to or to disclose it to the Defendant. The copyright in such unpublished document is vested in the Crown and no consent has been given by or on behalf of the Crown to its reproduction or publicatiion by the Defendant. Such document can only have been passed to the Defendant or have come into its possession in breach of a duty of confidentiality owed to the Crown.
Only seven copies of the said document were despatched from the Ministry of Defence"—and he Sets out the addressees.
"The fact that a document marked 'Secret' addressed by the Secretary of State for Defence to the Prime Minister on the 20th October 1983 which was concerned with a matter of great significance in relation to the defence of the United Kingdom and the North Atlantic Treaty Organisation had, by the 31st October 1983, found its way into the possession of a national newspaper, is of the gravest importance to the continued maintenance of national security. It also represents a threat to the United Kingdom's relations with her allies, who cannot be expected to continue to entrust Her Majesty's Government with secret information which may be liable to unauthorised disclosure, even though its circulation is restricted to the innermost circles of Government. Thus the identity of the person or persons who disclosed or assisted in the disclosure of the above mentioned document to the Defendant must be established in order that national security should be preserved."
He also in a following paragraph said that "the Plaintiffs are entitled to receive the document in the state in which it came into the hands of the Defendant and it should not be defaced in any way".
Mr. Peter Preston, the editor of The Guardian, filed an affidavit in reply setting out how the document had come into the possession of the newspaper, what he had done to check its authenticity and the thought which he had given to whether it was proper to publish the document. The affidavit goes on to say that The Guardian would never publish anything which in the editor's opinion would damage national security and to argue that publication in this case did not do so.
Lord Rawlinson, Q.C. has elaborated this theme, but it is clear to me that Mr. Preston has misunderstood the gravamen of the Secretary of State's complaint. Whether or not the editor acted in the public interest in publishing this document is not the issue. The Secretary of State's concern is quite different. It is that a servant of the Crown who handles classified documents has decided for himself whether classified information should be disseminated to the public. If he can do it on this occasion, he may do it on others when the safety of the state will truly be imperilled. The editor will no doubt retort that in such circumstances he would not publish, but the responsibility for deciding what should and should not be published is that of the government of the day and not that of individual civil servants or editors. Furthermore—and this is the Secretary of State's case—friendly foreign. states may well be prepared to entrust the government of the day with sensitive information if its security is in the hands of ministers, but will not be prepared to do so if it is in the hands of individual civil servants or editors. It is not the publication of the article which forms the basis of the Secretary of State's complaint, but the fact that a copy got into unauthorised hands.
The case for the Crown before the learned judge can be stated very simply. The original document was, they said, Crown property and Crown copyright. Any copy of that document was an infringing copy and by the combined effect of sections 2, 4, 18 and 39 of the Copyright Act 1956, the Crown had the same rights in respect of the copy in the possession of The Guardian as it would have in respect of the original. That being so, it was entitled to an order requiring The Guardian to deliver up the copy.
The Guardian did not challenge these assertions up to the point at which the Crown claimed an order for delivery up. However, it contended that it was entitled to resist such an order in reliance upon section 10 of the Contempt of Court Act 1981. This provides, so far as material, that:
"No court may require a person to disclose…the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
For The Guardian it was submitted that an order to deliver up the copy document would infringe this section,...
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