A Selection of Sample Judgments
| Author | Frederic Reynold |
| Pages | 151-206 |
APPENDIX TWO
A SELECTION OF SAMPLE JUDGMENTS
Reproduced below are six full judgments taken from three of the cases discussed in this book. Two represent the House of Lords era, and the third, the new Supreme Court era.
The judgments of Lord Templeman and Lord Bridge in the Spycatcher case
tell riveting stories from opposing points of view, and were delivered in unusual circumstances: the majority decision to continue the injunction had already been announced before the reasons set out in the judgments were published, and to a uniformly hostile reception from the media. Neither can be characterised as bland or excessively urbane.
The judgments of Lord Lloyd and Lord Nicholls in the “lack of resources” case
Lastly, the judgments of Lord Phillips and Lord Rodger in the “political donations” case
Magistrates Court (Respondent) and The United Kingdom Independence Party (Appellant) [2010] UKSC 40.
152 Disagreement and Dissent in Judicial Decision-making
ATTORNEY GENERAL v GUARDIAN NEWSPAPERS LTD (NO. 1) [1987] UKHL 13
House of Lords
LORD TEMPLEMAN
My Lords,
On the 30 July this year your Lordships by a majority decided to continue injunctions restraining the appellant newspapers from disclosing or publishing any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service. The principle affirmed by that decision was that the law will prevent the mass circulation in this country of confidential information which prejudices the public interest in the maintenance of an efficient and effective secret Security Service. Three defences were put forward by the appellant newspapers, first, that Mr. Wright intended his treachery to be helpful to the British public, secondly, that damage to the Security Service arising from Mr. Wright’s treachery had already been fully inflicted, and thirdly, that the public interest in receiving information entitled the press to publish treachery at home provided it had been published abroad. A majority of your Lordships rejected these defences.
The Secretary to the Cabinet, Sir Robert Armstrong, in an affidavit sworn in these proceedings, deposed as follows:
“The main function of the British Security Service is the defence of the realm as a whole, from external and internal dangers arising from attempts at espionage and sabotage, or from actions from persons and organisations whether directed from within or without the United Kingdom, which may be judged to be subversive at this date.”
Mr. Wright was employed by the British Security Service. On 1 September 1955 he signed a declaration that he understood the effect of section 2 of the Official Secrets Act 1911 which was set out in the declaration and renders liable to prosecution any person in possession of information:
“... which he has obtained or to which he has had access owing to his position as a person who holds or who has held office under His Majesty . . . and
communicates the information to any person, other than a person to whom he is authorised to communicate it, or a person to whom it is in the interests of the State his duty to communicate it.”
When Mr. Wright left the Security Service he signed a further declaration, dated 30 January 1976, acknowledging, inter alia, that the provisions of the Official Secrets Acts applied to him after his appointment had ceased, that he was fully aware that serious consequences might follow any breach of the provisions of those Acts, and that he understood:
“that I am liable to be prosecuted if either in the United Kingdom or abroad I communicate, either orally or in writing, including publication in a speech, lecture, radio or television broadcast, or in the press or in book form or otherwise, to any unauthorised person any information acquired by me as a result of my appointment (save such as has already officially been made public) unless I have previously obtained the official sanction in writing of the department by which I was appointed.”
In addition to the obligations of secrecy expressly acknowledged by Mr. Wright, he was also under an obligation arising out of his employment by the Security Service and enforceable in equity not to divulge any information which he obtained in the course of his employment. The obligation arises because of:
“the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not use it to the prejudice of he who gave it:” per Lord Denning M.R. in Seager v. Copydex [1967] 1 W.L.R. 923 at 931.
The same obligation attaches to the press and anyone else who receives confidential information knowing that it is confidential. It is unlawful to make further disclosure.
The Cabinet Secretary further deposed that the work of Mr. Wright for the Security Service:
“Involved him in frequent and close liaison with the Intelligence and Security Services of friendly foreign countries and the exchange of information with those Services. It was, and continues to be, essential to the effectiveness of all such liaison and exchanges that they are conducted upon a basis of mutual trust and confidence.”
154 Disagreement and Dissent in Judicial Decision-making
The Cabinet Secretary also said that the effective functioning of the British Security Service requires that its affairs be kept secret. The Attorney General who represents the public and who has brought these proceedings in their interest, could not, in the view of the Cabinet Secretary:
“particularise the damage that would be caused by specific disclosures of fact by Mr. Wright without, himself, making further disclosures of material which is confidential, and undermining the efficacy of the duty of confidentiality which is also sought to be in force.”
He continued:
“It is likely that any disclosures of facts relating to the Security Service by Mr. Wright would not only be a breach of his contract and of his duty of confidence owed to the Service but would be likely to endanger the effective discharge by the Service of its current and future responsibilities, and as a consequence be of value for a foreign power and highly detrimental to the public interest of the United Kingdom as well as causing harm to individual officers, former officers, their families and other persons who might be identified by or as a consequence of such disclosures. The dangers could arise notwithstanding that the information disclosed was unclassified and is on its face and in isolation apparently innocuous. Such information may take on a wider significance if put together with other information in possession of other persons and thereby, for example, enable them to check the veracity of their sources of information. Furthermore, information which appears to be innocuous at a particular date or to a particular officer may at a later date become significant.”
It follows that Mr. Wright could not publish his memoirs as an employee of the Security Service without committing flagrant breaches of the duty of secrecy and confidentiality which he owed to the public in the national interest. No publisher or newspaper in this country may lawfully publish Mr. Wright’s memoirs or disclose information obtained by Mr. Wright in the course of his service concerning any aspect of the work of the Security Service. Mr. Wright, apart from making money out of his memoirs, protests that his memoirs will be helpful to the British public. The press and others consider that his memoirs will be helpful in achieving the objects of an enquiry into the working of the Security Service, an amendment of the Official Secrets Acts, and the enactment of freedom of information legislation. But these objects are unlikely to be attained so long as the British press is prepared to publish confidential information relating to the British Security Service without investigation or corroboration and in
disregard of orders of the court designed to preserve the Security Service from harm.
Mr. Wright could not, of course, hope to be allowed to publish his memoirs in England. He accordingly entered into arrangements with an Australian company in New South Wales, Heinemann Publishers Australia Pty. Ltd., which is a subsidiary of the English Heinemann Publishers. In September 1985 the Crown began proceedings in New South Wales to restrain such publication. Interim relief obtained in New South Wales apparently did not prevent Mr. Wright and the Australian Heinemanns from publishing outside Australia. Seizing upon this loophole the Australian Heinemann company granted the American rights in Mr. Wright’s memoirs to Viking Penguin Incorporated. This is an American subsidiary of the English Pearson Group. In the United States of America an injunction might have been obtained against Mr. Wright if he had been within the jurisdiction but under the law of the United States could...
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