Secretary of State for Defence v Guardian Newspapers Ltd

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Roskill,Lord Bridge of Harwich
Judgment Date25 October 1984
Judgment citation (vLex)[1984] UKHL J1025-1
Date25 October 1984
CourtHouse of Lords
Secretary of State for Defence and Another
(Respondents)
and
Guardian Newspapers Limited
(Appellants)

[1984] UKHL J1025-1

Lord Diplock

Lord Fraser of Tullybelton

Lord Scarman

Lord Roskill

Lord Bridge of Harwich

House of Lords

Lord Diplock

My Lords,

1

The real importance of this appeal is that it provides the occasion for this House to settle a question of construction of section 10 of the Contempt of Court Act 1981, upon which somewhat divergent views had been expressed by Scott J. at first instance and individual members of the Court of Appeal (Sir John, Donaldson M.R., Griffiths and Slade L.JJ.), although each of those divergent views had led the holder to the same conclusion in its application to the instant case.

2

Section 10 of the Contempt of Court Act 1981 is in the following terms:

"10. No court may require a person to disclose, nor is any person guilty of contempt of court for refusing 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."

3

It is to be observed that the statutory protection created by the section from being compelled by order of a court which is enforceable by legal sanctions to disclose sources of information contained in a publication in what for convenience I may call the "media" does not differentiate between disclosure in interlocutory proceedings for discovery prior to the trial and disclosure at the actual trial itself.

4

In this respect and also in the respect that it eliminates any discretion on the part of the judge at the trial as to whether or not the non-disclosure rule should be applied, the section alters what had been the previous practice of the courts under the so-called newspaper rule of which detailed discussion and analysis can be found in the speeches in this House in British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096, and in particular that of my noble and learned friend, Lord Fraser of Tullybelton (pp. 1197-1199). The section is so drafted as to make it a question of fact not of discretion as to whether in the particular case a requirement for disclosure of sources of information falls within one of the express exceptions introduced by the word "unless". If it does not, the statutory right to refuse disclosure of sources of information in the media is absolute. With all respect to Mr. Kentridge I do not think that the process of ascertaining the true construction of the section is advanced by dubbing this a "constitutional right". For my part I would repudiate this evocative phrase if it is intended to mean anything more than that in ascertaining the extent of the rights which it confers the section should be given a purposive construction and, that being done, the right, like other rights conferred on persons by statute, effect must be given to it in the courts.

5

The instant case comes before your Lordships, as I think unfortunately, in the form of an appeal against an interlocutory order made in an action which technically is still a pending action. The claim in the action is for delivery up to the Secretary of State for Defence and the Attorney-General of a document alleged to be Crown property that had been "handed in" anonymously to "The Guardian" newspaper on 22 October 1983 and published verbatim in that newspaper on 31 October. The only reason why the Crown wanted delivery up of the document was to assist it in identifying the civil servant by whom it had been "leaked" to the press. The interlocutory order against which appeal is brought is one made by Scott J. on 15 December 1983 and affirmed by the Court of Appeal on the following day, for the delivery up of the document to the Treasury Solicitor forthwith. It was complied with on the same day. Examination of the document aided by forensic tests enabled the civil servant responsible for the anonymous delivery of it to "The Guardian" to be identified as a clerk employed in the private office of the Secretary of State for Foreign and Commonwealth Affairs, Miss Sarah Tisdall.

6

My Lords, I have said that I think it is unfortunate that this question of the true construction of section 10 of the Contempt of Court Act of 1981 which is of great general importance primarily to the "media" (but having regard to the wide definition of "publication" in section 2(1) of the Act of 1981, not exclusively to them) should have come before your Lordships in the form of an interlocutory appeal. As I have pointed out section 10 applies to interlocutory proceedings and to actual trial alike. I understand that all your Lordships are agreed not only upon the true construction of the section but also that if the action had proceeded to a speedy trial and the facts as they were known to the Government at the date of the application for the interlocutory order had been the subject of explicit oral evidence the Crown would have succeeded in establishing that disclosure of the source of the document was necessary in the interests of national security and thus that it was entitled to final judgment for delivery up of the document as a means of discovering that source. So all that divides us is whether the facts stated in the affidavit evidence of Mr. Hastie-Smith, the principal establishment officer of the Ministry of Defence, to establish that identification of the civil servant who had been responsible for the leak was necessary in the interests of national security, were sufficiently explicit to justify the inference that such necessity had been sufficiently shown. In common with all three members of the Court of Appeal, two of your Lordships with whom I align myself, are of opinion that those facts, when read in conjunction with those stated in the affidavit evidence of the editor of "The Guardian" and in the light of matters of public notoriety of which judicial notice might legitimately be taken were just enough, although there was material available to him at the date of his affidavit, 23 November 1983, which if Mr. Hastie-Smith had included it, as he would certainly have been wise to do, could have put beyond all doubt, without requiring any resort to the doctrine of judicial notice, that it was necessary in the interest of national security to identify the "leaker" as soon as possible. Two of your Lordships are of opinion that what was actually stated in the affidavit was not enough to compel the inference that identification of the civil servant who was responsible for the anonymous "leak" to which it was hoped examination of the document would lead, was necessary in the interests of national security. Scott J. if he had not decided the interlocutory application upon another ground, which involved a misconstruction of section 10 to which it will be necessary to advert later, indicated obiter that he would have shared the same view on this point as the minority of your Lordships.

7

So this point is a close-run thing upon which judicial opinion may well vary: but it is highly special to this particular case. It has no general application save to serve as a warning to those who draft affidavits for use on interlocutory applications for disclosure of sources of classified information affecting national security "leaked" to the media by someone with access to such information, that the affidavits should be as specific as possible as to the reasons why speedy disclosure is necessary in the interests of national security. I therefore propose to deal first with the question of general application: the true construction of section 10 of the Contempt of Court Act 1981.

8

The construction of section 10

9

My Lords, save that the subject matter of the Act of 1981 is limited to contempt of court, as its long title shows, there is no consistent theme that can be identified as being common to all its sections. It consists of a number of miscellaneous amendments to the previous law of contempt of court both criminal and civil; and all that can be predicated as an aid in giving a purposive construction to a particular section is that it presupposes the existence of what in section 1(1) are referred to as "particular legal proceedings." (For present purposes the species of contempt of court which consists of "scandalising the judges" and is virtually obsolescent in England may be ignored; it is not dealt with by the Act.)

10

Section 10 is concerned solely with the power of a court of justice (or by virtue of the extended definition in section 19, any other tribunal or body exercising the judicial power of the State) to order a person to disclose the source of information contained in a publication for which he is responsible; a power which is exercisable only where the identity or nature of such sources is relevant to some issue that falls to be determined by the court in the particular proceedings. The section confers no powers upon a court additional to those powers, whether discretionary or not, which already existed at common law or under rules of court, to order disclosure of sources of information; its effect is restrictive only. As I have pointed out, the disclosure of sources of information with which the section deals is not, like the old "newspaper rule" at common law, limited to disclosure upon discovery where disobedience to the order for discovery would fall into the category of a civil contempt; it applies also to disclosure in response to a question put to a witness at the trial, where a refusal to answer the question if ordered to by the judge to do so would constitute a contempt committed in the face of the court and thus a criminal contempt.

11

Under the common law as it had developed by the time of the passing of the Act of 1981, the judge already had a discretion to decline to order disclosure of...

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