Attorney General v Guardian Newspapers Ltd (No.1) [1987] UKHL 13

House of Lords
Between
Attorney GeneralAppellantGuardian Newspapers Ltd (No.1)Respondent
Before
Lord Bridge of HarwichDate 24 July 1987
[1]Mr. Wright's employment and his fundamental obligation owed to the Crown not to disclose confidential information Mr. Wright was employed for many years in a senior capacity by the British Security Services. During the course of his employment he had access to highly classified information. That employment imposed an absolutely crucial obligation upon Mr. Wright to keep that information confidential and not to publish it in any manner without the authority of the Crown. This is beyond dispute. The proceedings brought by the Crown in Australia, to which I will make but brief reference hereafter, were based on breaches of this duty of confidentiality. That such a duty of confidentiality existed has been admitted at all times by all concerned (per the Vice-Chancellor at p. 1G to H).[2]Mr. Wright's breach of duty Mr. Wright retired on 31 January 1976. After his retirement he publicly announced that he had submitted a memorandum to the Chairman of a Select Committee of the House of Commons alleging penetration of the Security Service by foreign agents and calling for an inquiry. Being dissatisfied that no inquiry was held he decided, so he alleges, to disclose the relevant material in his memoirs, together with allegations of unlawful conduct on the part of members of the Security Service over the years. It was accepted by the Vice-Chancellor, and at no stage has the contrary been suggested to your Lordships, that Mr. Wright has committed a most serious breach of his duty of confidentiality (see p. IF of the transcript of the Vice-Chancellor's judgment). It has, therefore, at all times been conceded that if Mr. Wright, instead of emigrating to Australia, had sought to publish his book in this country, both he and his publishers would immediately have been restrained by injunctions. Furthermore, Mr. Wright would, prima facie, have committed serious breaches of the Official Secrets Acts and the reasonable assumption is that he would have been prosecuted.[3]The Australian Proceedings The British courts do not have jurisdiction beyond their shores. Every sovereign nation jealously guards its own jurisdiction. The inability of the English courts to supply a remedy by granting an injunction or other relief against Mr. Wright is not a weakness for which the courts can be blamed. Accordingly, when Mr. Wright emigrated to Australia and sought to publish his book, all that the Crown could do was to seek an injunction in the courts of Australia, in particular in the courts of New South Wales. As the Vice-Chancellor pointed out at p. 24C, it was no fault of the Crown that Mr. Wright's book came into the public domain (I would prefer the phrase "received the publicity") in Australia to the extent it has. The Vice-Chancellor accepted that the Crown had done everything that it thought itself able to do to stop publication worldwide of the memoirs (p. 24C). Indeed, at the conclusion of his judgment the Vice-Chancellor said: - 22 - "I do not in any sense criticise, even if it were my job, the seriousness with which the Government has pursued this case."[4]The arguable point of law The Vice-Chancellor, having considered at some length the authorities, concluded that there was an arguable point of law available to the Attorney General, "a novel and difficult point of law" as he described it, to justify a claim for a permanent injunction at trial, notwithstanding the publication of Spycatcher in America. The Attorney General had submitted to the Vice- Chancellor that where information has been impressed with a duty of confidentiality, and somebody acquires such information knowing that it was so communicated originally, then the person acquiring that information with that knowledge, himself comes under a duty not to disclose it further. That duty exists whether or not the information is otherwise in the public sphere. This view had the clear support of the Court of Appeal including in particular that of Nourse L.J. with his special knowledge of the courts' equitable jurisdiction. Significantly, the Law Commission in their Report on the Law of Breach of Confidence in 1981 (Cmnd. Paper 8388), in stating their understanding of the existing law, said in paragraph 4.11:
"The third party is liable to be restrained from disclosing or using information which he knows, or it would seem, he ought to know, was subject to an obligation of confidence."
It is, of course, incontrovertible that the entire media, including in particular the appellant newspapers, well know that Mr. Wright's information, which they are so anxious to publish, is confidential information and that his publication of it has been a flagrant breach of his obligation of confidentiality. Mr. Gray Q.C., to whose excellent address I would wish to pay tribute, without in any way conceding that the Attorney General would ultimately succeed in establishing a good cause of action, accepted that the Attorney General had a good arguable point of law in his favour and indeed this had been accepted in the Court of Appeal. I understood and still understand all your Lordships are prepared to accept the Vice-Chancellor's conclusion on this point. It would, in my opinion, be quite wrong to seek finally to decide the validity of this point on a 48-hour notice emergency interlocutory appeal to your Lordships' House, where it was never contemplated that the contrary would be argued and where we have not had the benefit of the opinions of the Court of Appeal.[5]The remedy available to the Crown It has throughout these proceedings been accepted, and the Vice-Chancellor so stated in terms, that an award of damages would be an ineffective and inappropriate remedy for the Attorney General. An injunction is the only thing that is any good to him (see p. 22G). This is so crystal clear, that the proposition requires no further exposition. However, as I will shortly seek to show, this agreed fact is of such fundamental importance and the public has been subjected to such confused reporting, that I feel obliged to stress it. If the mass publication which is now sought is - 23 - permitted before the trial of the action in which the validity of the Attorney General's case is to be put to the test, then there would be no point or purpose in such a trial. The Attorney General would have lost his remedy before the court was able to hear his case.[6]The Crown's claim is for an interlocutory injunction While it is accepted that the refusal now to grant to the Crown an injunction pending trial will render it totally futile for the Crown thereafter to seek to establish that it has a claim in law for a permanent injunction, the grant to the Crown of an injunction pending the trial will not render futile the newspapers' continued claim to publish. This was accepted by the Vice- Chancellor who said: " . . . It is right to bear in mind that the allegations made by Mr. Wright in Spycatcher are in a number of respects 'old hat.' They have been bandied around, some would think ad nauseam, in Mr. Chapman Pincher's book and in subsequent articles. There is nothing very new apparently about them. There is nothing urgent about them, in the sense that they are of recent events." (See p. 24B). Whether the Crown has valid cause of action, raises essentially a question of law, which can be (and indeed could have been) determined by a speedy trial at first instance, and then in the appellate courts, if the initial decision is not accepted. If the Crown fails to establish a good cause of action, the time thus spent will add little to the existing staleness which by now characterises Mr. Wright's assertions. The right of the press to publish and the public to know, on that hypothesis, will not have been totally frustrated, but only delayed. The cause of free speech will not have suffered. It will, on this assumption, have triumphed.[7]The public interest factor This case involves an entirely new and highly significant factor which is of the greatest relevance to the exercise of the courts discretion in considering whether to grant or refuse an injunction pending trial. Both Millett J., in granting the original injunction, and the Vice-Chancellor, in discharging it, preceded on the same principle which I understand your Lordships accept, that when there is a conflict between the public interest of preserving confidentiality and some other public interest, then the court should favour the preservation of confidentiality, unless that other public interest outweighs it. But in this case there is more than the public interest of preserving confidentiality. Here, unlike the not infrequent case where a company wishes to prevent, to its financial detriment, the publication of its trade secrets, there is the following additional public interest factor accepted by the Vice-Chancellor and stated in these words:
"There remains what Mr. Mummery urges is the remaining public interest, namely, to prevent general dissemination of the contents of this book through the press within the United Kingdom so that by discouraging general dissemination those who are tempted to follow Mr. Wright's - 24 - example in the future and write their memoirs hot from the Security Service will not find it such a satisfactory or profitable business." (see p. 25E to F). The Vice-Chancellor then gave his assessment of the significance of this public interest. He said: "
I think there is force in that. I think that the ability to restrain the unauthorised use of confidential memoirs by those who do not mind abusing their confidence, so as to discourage others from doing it, is a real point. I do not think it can be just swept aside. " (see p. 24H to 25A). (emphasis added) The Vice-Chancellor then accepted that the United Kingdom is likely to be the best market for anybody writing these memoirs and to discourage the use of that market would be a discouragement indeed. Again, I must emphasise, that the existence of this public interest factor, as accepted by the Vice-Chancellor and which I shall further particularise, is not challenged by the newspapers and its existence is, I understand, fully accepted by all your Lordships.[8]The basis of the Vice-Chancellor's decision The Vice-Chancellor accepted in terms that to permit publication would be to admit that our courts were unable to safeguard secrets of great public importance. He added:
"And let nobody underestimate how important these secrets are. There seems to have been a temptation to treat this case as an unreasonable pursuit by the Government of unreasonable ends. This is not a view I share. The revelation of secrets of a security agent, it seems to me, are highly important and highly undesirable. I, therefore, think it is most regrettable, if it proves to be the case, that there is no way in which the court can preserve that confidentiality." (see p. 25A to B). This, no doubt, accounted for the Vice-Chancellor reaching his decision with "considerable hesitation," adding that he believed "the matter to be quite nicely weighted and in no sense obvious."
The basis of the Vice-Chancellor's reluctant decision can be simply stated. He accepted and the contrary has not been argued before us, that Millett J.'s order granting the original injunction in July 1986 later upheld by the Court of Appeal was correct, but he considered that there had been a material change in the circumstances and that this change rendered it futile to continue the injunction. In his opinion to continue the restraint on publication would serve no useful purpose and make the law look ridiculous. In a sentence, as a result of the publication of the book in America, and the accepted impracticability of preventing the importation of the book into this country, Mr. Wright had "got away with it" altogether, with the result that the courts are now impotent, even to limit the damage which he has done. - 25 - Having set out in some detail what is or must be treated as common ground, I can, on the conventional approach to this appeal, state my reasons quite shortly, since, as I understand it, all your Lordships accept: That the Attorney General has an arguable case for a permanent injunction. That damages are a worthless remedy for the Crown and, if the interlocutory injunction is not continued, the Crown loses here, now and forever the prospect of achieving a permanent injunction, which it might well obtain if a trial were to take place. That by contrast to 2 above, the continuance of the interlocutory injunction is not, as the Vice-Chancellor accepted, "a final locking out of the press". If successful in the action, the press will then be able to publish the material which has no present urgency. 4 . That there is, as described by the Vice-Chancellor a real public interest concerned with the efficient functioning of the Security Service and that interest requires protection. It must then follow that it would be a denial of justice to refuse to allow the injunction to be continued until the action is heard. To refuse to continue the interlocutory injunction would bring about the very result that the Vice-Chancellor said should be avoided, namely the "sweeping aside" of the public interest factor without any trial. The Attorney General would thus have been prematurely and permanently denied any protection from the courts. It would be established without trial and for all time, that by the simple expedient of going abroad, arranging for publication in the press, in a country, such as the United States, where there is no remedy by way of injunction, the courts in this country then become incapable of exercising their well established jurisdiction. Your Lordships would have established a "Charter for Traitors" to publish on the most massive scale in England whatever they have managed to publish abroad. Accordingly, with every respect to the Vice-Chancellor, his conclusion, after carrying out the so-called "balancing operation," cannot be justified. Mr. Mummery for the Crown was fully entitled to submit that there was a fatal inconsistency in the manner in which he weighed the scales. That is the short and simple answer to these appeals. However, it is so short and so simple that it has been suppressed by and submerged in the press hysteria which has greeted the announcement of your Lordships' orders. Although the press have transcripts of the judgment of the Vice-Chancellor, the very foundation upon which these appeals were based, there has been virtually no reference to it. The press do not wish the public to exercise a sense of proportion. The case has therefore to be presented as open and shut, admitting of no possible argument, and of only one decision - that favourable to the press. This one-sided reporting is an abuse of power and a depressing reflection of falling standards and values. - 26 - I do not share the Vice-Chancellor's "considerable hesitation" nor do I consider the case "nicely weighted." If the Vice- Chancellor had appreciated that the public interest factor which he accepted had force, was a "real point" and "cannot be swept aside," went much further than he realised, I do not believe he would have reached his reluctant decision. The so-called "deterrent effect," of preventing mass publication, is by no means as limited as he describes. Firstly, what of Mr. Wright, if your Lordships refused to continue these injunctions pending trial? Mr. Lester, with characteristic frankness, suggested that if Mr. Wright, whom he aptly described as an "information thief," now attempted to publish his book here, no injunction would lie against him or his English publishers since, so he submitted, it could after the publication in America serve no useful purpose. But "the appetite grows with what it feeds on." Mr. Wright's appetite may not be the exception. For all your Lordships know, Mr. Wright may have produced to date only Spycatcher Mk. I, and there may be further instalments still to come. Secondly, quite apart from deterring Mr. Wright and other members of the Security Service, who may in the future suffer from the same lack of loyalty, what of the loyal members of the Service whom they leave behind? Are they, or their families, to be totally unprotected by the Crown and left, in so far as they still survive the attack, to the highly expensive (there is no legal aid available) and uncertain remedy of a libel action, which the media not only can but may positively welcome defending? What material, if any, can they legitimately use in their own defence, without further undermining the efficiency of the very Service to which they wish to remain loyal? The function of the British Secret Service is the defence of the realm from dangers arising from acts of or attempts at espionage, sabotage or subversion. It is axiomatic that the efficiency of that Service is crucial. If your Lordships were to permit, without there being any trial of this important matter, the widest possible publication of the contents of this book within your jurisdiction, where the best market is to be found, the prejudical effect on the morale of the Service is bound to be considerable. But there is yet a further and important additional prejudicial consequence. It would be utterly unrealistic not to accept that this would cause yet further loss of confidence of friendly countries in the efficiency of our Service. All this is fully supported by the affidavits of Sir Robert Armstrong and is indeed obvious. To quote Millett J. in his judgment last year:
"It is difficult to believe that a Security Service whose senior members were free to write their memoirs would be taken seriously by other secret services or that Security Services of friendly countries would willingly co-operate or share sensitive information with such a Service."
And I would add "and the more so if the courts of the disloyal member stand idly by, wringing their hands, and doing nothing within their own jurisdiction to stop mass circulation, even pending trial." My Lords, English Justice will have come to a pretty pass, if our inability to control what happens beyond our shores is to result in total incapacity to control what happens within our very own jurisdiction. Some 60 years ago, the then Lord Chancellor, Lord Sankey, said: - 27 - "Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe ..." For the word "rock" the appellants would have your Lordships now read "jellyfish"! If the publication of this book in America is to have, for all practical purposes, the effect of nullifying the jurisdiction of the English courts to enforce compliance with the duty of confidence both by interlocutory and by permanent injunction, then, as Mr. Mummery ruefully observed, English law would have surrendered to the American Constitution. There the courts, by virtue of the First Amendment, are, I understand, powerless to control the press. Fortunately, the press in this country is, as yet, not above the Law, although like some other powerful organisations, they would like that to be so, that is, until they require the Law's protection. My noble and learned friend, Lord Bridge, in the course of argument asked the question which he considered to be crucial, "Is there any irreparable harm that Mr. Wright has not done yet?" I would answer that question with an emphatic "Yes." The appellants' arguments proceed upon the basis of an obvious fallacy. They submit that as a result of the publication of the book in America, the existing injunctions can no longer serve any useful purpose. It is, of course, abundantly clear that the injunctions are no longer effective to safeguard any national secrets that the book might contain. They are indeed "out of the bag" but from that it does not follow that the function of the injunctions is spent. The recent crescendo of protestations in the press proves that there is all the difference in the world between tolerating the importation of casual copies, as opposed to the mass circulation of the material contained in the book, which the newspapers and the media are so bent upon achieving. There remain three other points with which I should deal. These are: (1) The European Convention of Human Rights Mr. Lester laid great emphasis upon the provisions of Article 10 of the European Convention dealing with the freedom of expression. Article 10(2) provides qualifications and exceptions to which the exercise of free expression may be made subject. They include such conditions:
"as are prescribed by Law and are necessary in a democratic society in the interests of National Security . . . for the protection of the . . . rights of others, for preventing the disclosure of information received in confidence. . . "
Given that it is accepted that the Crown has an arguable case for a permanent injunction, that damages are a useless remedy; that there exists a significant public interest factor and that your Lordships are concerned only with a pre-trial restraint on publication, I see no prospect of the Convention availing the appellants. Indeed I adopt all my learned and noble friend, Lord - 28 - Templeman, has said in his closely reasoned judgment as to the relevance and applicablity of Article 10, and I fully support the conclusion at which he, unlike my noble and learned friend, Lord Bridge of Harwich, arrives. (2) The Financial Remedy The suggestion has been made that the only true remedy in a situation such as Mr. Wright's is, to quote a phrase used in the judgment of the American case of Snepp v. United States [1980] 444 U.S. 507, that Mr. Wright (and I assume also his publishers), should be required "to disgorge the benefits of his faithlessness." Translated into more conventional forensic language, I understand this to mean that there should be an action for an account of the profits which he and his publishers have made, payment thereof to the Crown, together with exemplary damages on some undefined basis. There are at least three answers to the suggestion that this would be an adequate remedy. Firstly, your Lordships know not whether such a remedy can be obtained in Australia or Canada or elsewhere where this book may be published, with the possible exception of America. Secondly, the practical problems of enforceability may indeed be very great, particularly in cases where the author has spent his profits and the publishers have disposed of them in some way or another. However, most important of all, profit may not have been the motivation for the publication. An ex-employee of the Service may be embittered or unbalanced, may publish his memoirs out of spite to embarrass his superiors; to mount some eccentric campaign or publish for any number of other reasons. With all respect to the ingenuity behind the argument of a financial remedy, I must confess that it left me quite unimpressed. (3) The removal of the proviso in Millett J.'s order relative to material disclosed in the Australian Courts This proviso read as follows:
"No breach of this order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the judge there sitting or which after the trial therein in action No. 4382 of 1935 is not prohibited by publication."
When the matter came before the Court of Appeal last month as a result of the Vice-Chancellor discharging the injuctions, the Court of Appeal, of its own motion, deleted the second half of that proviso, that is to say, the words "or which after the trial there in action No. 4382 of 1985 is not prohibited from publication." The Master of the Rolls, in giving his judgment said:
"If it be held that the law of Australia does not prevent publication by or on behalf of Mr. Wright in that Commonwealth, the position there will be the same as it appears to be in the United States and it is not clear to me why such a conclusion should be treated as decisive of quite a different issue, namely whether as a matter of English - 29 - Law Mr. Wright, or anyone else within the jurisdiction, should be permitted to profit from the exploitation of the United Kingdom market for Wright material. Certainly this should not be an automatic consequence and the newspapers and anybody else affected by the injunction should be free to apply to the court for a modification of the injunction after the Australian proceedings are concluded, if they consider the result of those proceedings to be material."
I entirely agree with those observations. Mr. Mummery, initially in the course of the hearing of the appeals did not seek to support that part of the order of the Court of Appeal. However, when it was pointed out to him that if your Lordships were minded to approve the continuation of the injunctions pending trial, such orders could be automatically frustrated if the Crown failed before the Court of Appeal of New South Wales, and failed to obtain any prohibition on publication in Australia pending appeal to the High Court, Mr. Mummery then sought to support its deletion. Mr. Gray and Mr. Lester fairly conceded the logic of the Master of the Rolls and I need spend no further time on that part of the proviso. However, when your Lordships were considering the orders which should be made in the event of the appeals being dismissed, it occurred to the majority of your Lordships that the first half of the proviso should also be deleted. As my noble and learned friend, Lord Templeman, has demonstrated by his detailed references to the dates of the relevant events, there has been an orchestrated and sustained attempt to achieve a situation from which the courts would be powerless to excercise their undoubted jurisdiction to prevent or even limit these serious breaches of confidentiality and the resultant prejudice to the efficiency of the British Security Service. It has required no imagination to anticipate the resentment which the newspapers and, indeed, the entire media, would feel and vociferously express, if we ultimately imposed a restraint on publication, albeit a temporary restraint. Moreover, it is a fact of life, however regrettable, that there are elements in the press as a whole which not only lack responsibility, but integrity. A very recent civil action has provided a glaring example. It would have been absurd and naive of your Lordships not to have appreciated that every attempt would inevitably have been made to frustrate your Lordships' orders. The "antic disposition" of the press and the media following the announcement of the orders, establishes this fully. The first part of the proviso supplied a potential loophole which might somehow, by hook or by crook, have been used by such elements to nullify the temporary damage limitation operation which the majority of us thought essential. This risk fully justified our taking this most unusual course in this wholly unique situation Conclusion Your Lordships indisputably have the power to continue these temporary restraining orders. The public interest in maintaining the efficiency of the National Security Service, upon which the safety of this realm is dependent, requires your Lordships to exercise that jurisdiction. - 30 - (3) To abdicate that responsibility in the face of pressure from the press and media would be a serious defeat both for the independence of the judiciary and for the Rule of Law. LORD OLIVER OF AYLMERTON My Lords, Prior to his finally leaving the service of the Crown in 1976 Mr. Peter Wright occupied a number of senior positions in the counter-espionage branch of the British Security Service. His appointment to those positions involved, beyond argument, an obligation to preserve the secrecy and confidentiality of information coming to his knowledge in the course of his duties. For motives which have not been explored and which are, in any event, immaterial, Mr. Wright, having retired and taken up residence in Australia, set about writing and arranging for the publication of his memoirs. He has written a book in which he deploys a great deal of information about the operation of the Service to which he formerly belonged. It may be that some or all of it is speculative or imaginary. I do not know. But we must, for present purposes, accept his own assessment of it and the book purports to be his truthful recollection of events in which he participated in the course of his duties or which came to his knowledge by virtue of his confidential position. There could hardly be a clearer or more flagrant breach of Mr. Wright's obligation of confidentiality. In September 1985 Her Majesty's Attorney General caused proceedings to be instituted in the Supreme Court of New South Wales against both Mr. Wright and the company, Heinemann Publishers Australia Pty. Ltd., which was proposing to publish his manuscript, claiming an injunction against the disclosure and publication of confidential material. Those proceedings, which culminated in a trial at which the Attorney General's claim was dismissed, received considerable publicity both in Australia and in the United Kingdom. An appeal against the decision of the trial judge is currently being heard and undertakings by the defendants not to publish the memoirs in Australia have been given to preserve the position pending the hearing of the appeal. In June 1986 The Observer and Guardian newspapers published an outline of some allegations contained in the memoirs which, so it was said, were going to be canvassed in the Australian proceedings. On the 27 June 1986 the Attorney General commenced proceedings against both newspapers and obtained ex parte injunctions against further publication of information derived from Mr. Wright in his capacity as a member of the Security Service or information in or excerpts from his as yet unpublished memoirs. Applications to vary or discharge those injunctions were heard by Millett J. on 11 July 1986 when the injunctions were continued until trial or further order in a modified form. The newspapers appealed to the Court of Appeal which, on 25 July 1986, affirmed the order of Millett J. with the addition of a proviso preserving the right of the defendants to publish fair and accurate reports of proceedings in Parliament or in a court in the United Kingdom sitting in public. - 31 - Millett J.'s order was, so far as material, in the following terms: it restrained the defendants until judgment in the action or further order in the meantime from:
"(1) Disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe to have come or have been obtained whether directly or indirectly from the said Peter Maurice Wright. (2) Attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise provided that (1) this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr. Chapman Pincher in published works or in a television programme or programmes broadcast by Granada Television; (2) no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in Open Court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 3582 of 1985, is not prohibited from publication."
The order reserved liberty to apply to vary or discharge on 24 hours notice. The issues and the circumstances in which they arose were fully analysed by Millett J . in the course of a careful and admirable judgment. At that time, although many of the allegations which, it was understood, Mr. Wright was making had been publicly ventilated before in the press, on television and in books published by others (in one of which Mr. Wright was said to have collaborated), the full part played or said to have been played by him had not been publicly proclaimed. It was known that he had been a member of the Security Service and it was known that he was, regrettably, seeking to publish his memoirs in breach of his duty. What was not publicly known was the extent to which Mr. Wright was proposing to flesh out the skeleton of what was already public knowledge or to corroborate previously canvassed allegations from his own personal experience and knowledge. As Millett J. expressed it:
"The objection is not to the allegations themselves, but to Mr. Wright's input." "
The concern is not with what Mr. Wright says, but with the fact that it is a former senior officer of the Security Service who says it." What was new about Mr. Wright was, first, that here was a former member of the Security Service seeking to publish his memoirs without prior authority and, secondly, that the insight which that publication would give into the working of the Service would, because of his position, carry a spurious stamp of authenticity. Although it was said that Mr. Wright had had access to classified information of the highest sensitivity it was not suggested that such information was disclosed by the proposed book. But, as was pointed out by Sir Robert Armstrong in his second affidavit sworn - 32 - in the Australian action, even unclassified and, on its face, innocuous information may take on a wider significance when combined with other information in the possession of those whose interests are inimical to those of this country. The damage likely to flow from the publication of the memoirs was summarised by Sir Robert in paragraph 10 of his first affidavit sworn in those proceedings as follows:
"The publication of any narrative prepared or contributed to by [Mr. Wright] which is based upon information available to him as a senior member of the British Security Service would be likely to cause unquantifiable damage by reason of the disclosures involved. Additionally, it will clearly damage the work of the British Security Service and thereby the national security of the United Kingdom in the following further respects: "(a) The Intelligence and Security Services of friendly foreign countries with which the British Security Service is in liaison would be likely to lose confidence in its ability to protect classified information; (b) The British Security Service depends upon the confidence and co-operation of other organisations and persons. That confidence would suffer serious damage should [Mr. Wright] reveal information of the nature described above; (c) There would be a risk that other persons who are or have been employed in the British Security Service who have had access to similar information might seek to publish it."
It was substantially upon this evidence that Millett J. relied in reaching the conclusion that he ought to continue the ex parte injunction granted against the defendants albeit in a somewhat modified form. It was a conclusion which he reached after a most careful balancing of the interests both of the plaintiff and of the public in preserving confidentiality and those of the defendants in the free dissemination of information and comment upon matters which were, quite clearly, of grave public concern. One consideration which clearly weighed heavily in the Attorney General's favour was, to quote the judge's words, that:
"The refusal of injunctive relief would permit indirect publication and effectively and permanently deprive the Attorney General of his rights in advance of trial."
At the same time, Millett J. was careful to ensure that the injunction should not go beyond the strict requirements of the interests which they were designed to safeguard; in particular he added the proviso as regards publication in Australia which has formed the subject-matter of debate before your Lordships. He did so in these terms:
"I should also add a proviso so that the defendants may be at liberty to publish matters disclosed in open court in the - 33 - proceedings in Australia, or which after the trial there are not prohibited from publication. This is not because I consider that the court should simply follow what is decided in Australia, but because I see no reason why these defendants should be discriminated against by being denied the right to publish information which in the circumstances every other newspaper in the world will be free to publish, including English newspapers and foreign newspapers circulating in England. Mr. Laws submitted that this was a future matter which could properly be dealt with under the liberty to apply. I disagree. In the newspaper world time is of the essence, and should the Crown's attempts to safeguard what it conceives to be the legitimate interests of the Security Service fail, the court should not uselessly put the defendants at a disadvantage when compared with their competitors."
My Lords, in common with all your Lordships, I entertain no doubt whatever that Millett J.'s order, in the circumstances which existed at that time, was entirely correct. But it is, in the light of the arguments ventilated before your Lordships on this appeal, essential to bear in mind the circumstances in which it was made, the purpose for which it was made and the limitations which the judge thought it right to impose upon its operation. Mr. Wright's allegations had not then been published in any part of the world and their publication was inhibited pending trial in the only country in which publication was then threatened. The damage apprehended by the Attorney General was, therefore, capable of being contained, at least temporarily, so long as general publication could be prevented. A little over a year has passed since those injunctions were granted. During that time, the action in Australia has been tried and has received wide and perfectly proper publicity both in this country and elsewhere. Such of the allegations of Mr. Wright as have emerged in the course of proceedings in open court in New South Wales and the fact that at least some of the material dealt with in the memoirs has already been permitted to be published without objection or hindrance and the reason why that has occurred, have been, again quite properly, the subject-matter of public interest and debate. In April 1987 an English newspaper, The Independent, which was not directly inhibited by any order of the court, published a summary of the allegations made by Mr. Wright including a number of what purported at any rate to be the verbatim quotations from the manuscript text of the proposed book (by that time referred to the name Spycatcher under which it has subsequently been published.) Parts of The Independent report were, on the same day, published by the London Evening Standard and the London Daily News and were referred to in television and radio news bulletins. Almost immediately afterwards further disclosure of the material in Spycatcher was displayed in articles in the Melbourne Age and The Canberra Times in Australia. On 3 May 1987 the Washington Post, which enjoys no doubt a very limited circulation in the United Kingdom but which is obtainable at some newsagents in London and, I imagine, in other major cities and airports, published a major article regarding the contents of Spycatcher. - 34 - In the light of the fact that many, if not all, of Mr. Wright's allegations had, for good or ill, achieved a notoriety far beyond anything that existed at the date of the original injunctions against the appellants, they moved the court for an order to vary or discharge the injunctions and that came before the Vice- Chancellor on 7 May 1987. In the meantime, however, the Attorney General had moved to commit the editor of The Independent and to sequestrate that newspaper's assets for contempt of court in publishing the summary of the contents of Spycatcher in its article on 27 April. Accordingly the hearing of the appellant's application to discharge was stood over until after the hearing of the contempt motion. Judgment on that motion was given by the Vice-Chancellor on 2 June when he dismissed the motion. The Attorney General immediately appealed to the Court of Appeal and the appellants' restored application for discharge was further stood over until after the hearing of that appeal. In the meantime, three events occurred. First, on 14 May an American publisher, Viking Penguin Incorporated, a subsidiary of an English company, announced that it was proposing to publish Spycatcher in the United States. It is and was clear that any proceedings by the Attorney General to prevent publication in the courts of the United States were foredoomed to failure as a matter of law and the English parent company was resistant to suggestions that it should seek to prevent its United States subsidiary from proceeding with the publication. Secondly, on 12 July, The Sunday Times, which was, like The Independent, not then directly enjoined from publication, published the first of what were intended to be several instalments of the serialisation of extensive extracts from the book itself. That publication was timed to coincide with the third event, that is to say, the first publication of the book in the United States, which took place on 14 July. On that day, with extensive publicity, the book was put on sale in major bookshops throughout the United States, including, perhaps not surprisingly, bookstalls at Kennedy Airport. The evidence is that it has moved into the bestseller class and is being reprinted. It is now notorious that not wholly insubstantial quantities have been and are being imported into the United Kingdom and are on sale here, though not, I think, through the normal book distribution network. It has been announced that the Government has decided not to take steps to prevent such imports, on the ground that to do so would be unworkable and ineffective. The books can thus be freely obtained here or can be ordered by telephone from the United States by any member of the public sufficiently interested to do so. On 15 July the Court of Appeal allowed the appeal against the Vice-Chancellor's dismissal of the contempt motion against The Independent, holding (in reasons given two days later) that, without deciding that the publication complained of actually constituted a contempt, it was capable of doing so if the necessary intent could be proved. On 16 July the Vice-Chancellor granted an injunction restraining The Sunday Times from publishing the remaining instalments of its threatened serialisation. It was against this background that the substantive hearing of the appellants' application for the discharge of the original injunctions against them took place on 15 July. In a long and careful extemporary judgment, the Vice-Chancellor, having reviewed the facts and the authorities, concluded that there had - 35 - been a most material change of circumstances since the grant of the original injunctions but that he ought still to assume that there remained an arguable case in favour of the grant of permanent injunctions at trial. Accordingly, he approached the case as one to which the ordinary American Cyanamid principles applied. Having most carefully balanced the factors for and against continuing the injunctions he reached the conclusion that the balance lay in favour of the appellants and accordingly ordered that the injunctions be discharged. From that decision the Attorney General appealed to the Court of Appeal which, on 24 July, reversed the Vice-Chancellor but substituted for the original injunctions new injunctions prohibiting the publication of any extract from Spycatcher or of any statement by Mr. Wright concerning the British or any other Security Service but with a proviso that the order should not prevent "the publication of a summary in very general terms of the allegations made by Mr. Wright." This was something for which neither side had asked and neither side has sought to support it before your Lordships. It is, if I may say so with respect to the Court of Appeal, manifestly unsatisfactory. What the Attorney General seeks to restrain are not the ipsissima verba of Mr. Wright, as if these were actions for infringement of copyright, but the substance of the allegations which he has made in breach of his duty of confidence and against which the substituted injunctions provide substantially no protection. What the appellants wish to be free to do is to publicise and comment upon those allegations and a liberty to do so only in "very general terms" would be calculated to leave any newspaper editor in a state of bewilderment with no certain guide as to what are "general terms" and how general is "very general." It is clear that the Court of Appeal, faced with the stark choice of all or nothing - a choice which has been reiterated before your Lordships - conceived this formula as a via media and that they regarded the Vice-Chancellor as having erred in perceiving that all or nothing was the only choice with which he was faced. Lord Justice Gibson indeed indicated that, faced with that choice, he would have upheld the conclusion that the injunctions must be discharged. I mention this because it seems to be to dispose of any suggestion that in reaching the conclusion that he did, the Vice-Chancellor was so plainly wrong that an appellate court is at liberty without more to substitute its own discretion. There must be borne in mind always the limited function of an appellate tribunal in an appeal against the exercise of a judicial discretion and I remind myself of the cautionary words of Lord Diplock in Hadmore Productions v. Hamilton [1983] 1 A.C. 191 at p. 220:
"An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon a appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of evidence before - 36 - him or upon an inference that particular facts existed or did not exist, which, although it was one which might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy there may also be occasions where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own."
It was said in the Court of Appeal that the Vice-Chancellor had erred in principle in two respects. First it was said that he approached the case on the footing that he had to consider not whether the altered circumstances warranted the discharge of the injunctions but whether, in the altered circumstances, injunctions should be granted de novo. For my part, I think this is a distinction without a difference. Essentially the questions posed are the same and I can see no error in the Vice-Chancellor's approach. Then it was said that he erred in principle in not perceiving and considering the via media which the Court propounded. Neither side seeks now to suggest that he was in error in that respect. What is now said is that he erred in not seeing an inconsistency between his assumption that the Attorney General still had an arguable case for an injunction at trial and an order discharging the existing injunction which would, in effect, decide the issue by rendering futile the further prosecution of the claim. But that is a choice which sometimes the court is compelled to make. The mere fact of an arguable case - and it is clear that the Vice-Chancellor considered it less than strongly arguable - does not automatically entitle the plaintiff to an injunction pending trial, particularly in a case where it is common ground that damages would not be an adequate or appropriate compensation for an injunction subsequently vacated. It was a matter which the Vice-Chancellor had clearly in mind and which he took into consideration in the careful balancing exercise in which he engaged. The majority of your Lordships take the view that he got the balance wrong but, for my part, I detect no error in his approach and I would be content to decide this appeal on the simple ground that the conclusion at which he arrived was a proper exercise of the discretion with which he, as the judge of first instance, was invested and one with which an appellate court ought not to interfere. But this is an unique case - unique, as I very much hope, in its facts and unique in its importance. It is right, therefore, that I should state the reasons which have led me to agree with the Vice-Chancellor, more particularly because the majority of your Lordships consider not only that his decision was wrong in principle but, indeed, that the injunctions should be strengthened even beyond the terms in which they were originally - 37 - granted by Millett J. and beyond the terms for which the Attorney General has asked. At the outset, there has to be borne in mind a factor which is, in my judgment, of critical importance. The appellants before your Lordships are The Observer and The Guardian newspapers. The Sunday Times, which is affected by the injunctions as a result of contempt proceedings, has appeared and argued in support of their appeals. It may - I do not know - be in some special position as a result of the purchase, in circumstances of which we know nothing, of some rights in Mr. Wright's or his publishers' copyright in the book. But the injunctions, whilst they no doubt, as matters stand, affect other newspapers and other organs of the news media, are injunctions against the appellants and it is with their position that your Lordships are primarily concerned. It must therefore be kept clearly in mind that the appellants have done and are proposing to do nothing which is not normally involved in the proper conduct of their legitimate business of collecting, disseminating and commenting upon news which they regard as of interest to their reading public. It so happens that, most regrettably, a former servant of the Crown has chosen to publicise that which was confided to him under an obligation of secrecy but the appellants have not themselves been party to the revelation of the confidential information to the public. I quote from the judgment of the Vice-Chancellor:
"So, in the present case, it is not suggested, nor could it be suggested, that The Guardian and The Observer had in any sense been involved in any activity with Mr. Wright leading to the publication of his book. Anything they would wish to publish in the future would be obtainable from the public domain from Spycatcher itself. They have not aided and abetted Mr. Wright in his breach of duty. That seems to me to be a new case not covered by authority."
I echo that, for I have not been able to find nor have your Lordships been referred to any previously reported decision which could be said to be even remotely parallel to the instant case. My Lords, a visitor to this jurisdiction (carrying, perhaps, copies of Spycatcher and the Washington Post in his hand) might, I think pardonably, be surprised at the situation with which he is confronted on his arrival in the land which many regard as the cradle of democratic liberty. Outside these shores he and every other member of the public can read newspaper reports of and comments on Mr. Wright's memoirs. He can listen to them - perhaps listen to them ad nauseam - on radio and television. Those reports and comments can be acquired and read throughout Europe. They can be acquired and read from newspapers published from Trodheim to Taranto and from newspapers freely imported from the United States, Canada, the Antipodes and the Irish Republic. They can even - or could at the date of the hearing before your Lordships - be published and broadcast as close to home as Scotland, Northern Ireland and the Channel Islands. It is a no doubt regrettable but inescapable fact of life that Mr. Wright's allegations are available to the news media for public ventilation everywhere except in England. Even in Australia, where the principal action is proceeding, the only parties enjoined from publication so far as I am aware are Mr. Wright and his publishers. Yet The Guardian and The Observer newspapers, and - 38 - effectively the entire English press and other news media, remain prohibited from reproducing or commenting upon matter contained in a book which can be and is being obtained freely by members of the public here and which can on occasions be seen being read, with what attention or enjoyment I know not, by travellers on the London Underground. This is a situation which, I venture to think, none of your Lordships regards as anything but extremely regrettable. Where I differ from the majority of your Lordships is in the assessment of whether the continuation of the injunctions, perfectly rational and explicable in their origins, can now any longer be justified and whether, constitutionally and in the public interest in a free society, they ought to be permitted to continue even temporarily pending a full trial, possibly a year or more hence, of the issues raised on the pleadings in this case. In saying this I do not underestimate the obvious importance of the public interest in protecting the Security Service. What I question is both the effectiveness and the appropriateness, in the circumstances as they now exist, of seeking to do so by continuing against these appellants a fetter on disclosure of information which, for good or ill, is now freely obtainable and disclosable by other members of the public. In substance, the arguments in favour of the continuation of interlocutory injunctive relief, notwithstanding the existing and almost certainly increasing availability of the information upon which comment is restrained, are threefold. First, it is said that the continuation of the injunctions will serve the purpose of sustaining the morale of the Security Service. I put it that way although it has been negatively expressed by Mr. Mummery in his able and persuasive argument. As he has put it, the discharge of the injunction will be damaging to morale, and it will be so in two ways. First - and this arises rather from argument than from any evidence which has been filed in the proceedings - it may be disconcerting to existing members of the Service if they feel that they may, in the future, figure in the memoirs of some fellow member without effective interference by the court. Equally, existing members of the Service who may be disgruntled or avaricious may be encouraged to write their memoirs if Mr. Wright is seen to "get away with it" by gaining even wider currency for his allegations than exists already. Secondly, it is said that although the information publication of which is sought to be restrained has become public, publicised, notorious and available virtually everywhere in the world outside England, and although it is available here to anyone sufficiently interested to seek it by buying or borrowing a copy of Spycatcher, that situation has been brought about by the machinations of the wrongdoers whom it is sought to restrain in the Australian action. An English court, it is submitted, ought to be reluctant to permit its orders to be set at naught by the very people whose wrongful action gave rise to the action in which the orders were made. Thirdly, it is argued, the injunctions sought by the Attorney General are interlocutory only. None of the information the publication of which it is sought to restrain can be said to be of vital immediate moment. All of it relates to events which occurred - if they did occur - 12 or more years ago. What real harm, it is argued, when the public has been deprived of this information for 12 years, can there be in holding up further distribution of it for a further year or two years until - 39 - the action has been brought to trial and it can be determined definitively whether the Attorney General is or is not entitled to an injunction to restrain its dissemination for all time? The Vice- Chancellor having accepted, so it is argued, that the Attorney- General has still an arguable case for an injunction at trial, to determine the present application against him would, in effect, be to render a trial otiose, for even total victory would be certain to be barren. On the other hand, to continue the restraint against the appellants, even if they are totally in the right, would merely be to postpone for a period the publication of what is pretty stale news anyway. My Lords, this case is, as I have said, an unique case. For my part, I have found it also uniquely difficult because of the cogency of the arguments on both sides and of the very finely balanced considerations which, partly as a matter of convenience and partly as a matter of policy, require to be taken into account. There was a point during the argument when the skill of Mr. Mummery's advocacy almost persuaded me to take the same view as the majority of your Lordships. Further reflection impelled me to an opposite conclusion, but I mention it lest, in the predictable clamour aroused when your Lordships' decision was announced, it should be thought that the solution of the very difficult problems posed came easily or obviously to any member of your Lordships' House. In the end I have been persuaded to a conclusion opposed to that of the majority of your Lordships but, like the Vice- Chancellor whose decision I would uphold, with a degree of hesitation. Taking the arguments which have been deployed in turn, that which seeks to justify the continuation of the injunctions on what I may call the Admiral Byng principle, "pour encourager les autres," I find less than persuasive as a matter of fact, but more importantly, it involves, I believe, a misuse of the injunctive remedy against these appellants. The morale effect within the Service is, as I see it, the only aspect of the damage to the Service envisaged in the evidence before Millett J. which can still have any relevance. In so far as the publication of Mr. Wright's memoirs involves disclosure of material of interest to an inimical foreign power or decreases the confidence of other friendly security services in the secrecy of the United Kingdom's Service, that damage must already have been irrevocably done whether or not the appellants are permitted to give further currency to the memoirs or to comments upon them. The only remaining question is how far the continuation of the injunctions serves to maintain the efficiency of the Service. So far as an injunction against the English press, whether permanent or temporary, might act as a deterrent to other members of the Service, it seems to me that its frailty is demonstrable and has already been demonstrated by the obvious ease with which publication may be brought about in other parts of the world. It is accepted that it cannot be restrained in the United States and that route remains open whether or not publication is permitted here. It is at least questionable how far, if publication took place within the Common Market, importation could be effectively restricted in the absence of compelling reasons of national security. Moreover, the deterrent effect of proceedings for an account of profits remains and the determination with which the present claim has been and is being pursued against Mr. Wright should be ample demonstration - 40 - that the path of the would-be publisher of confidences would not be easy. As to the insecurity which may be felt by existing members of the Service, the fact is that, whether or not the news media here can be restrained from publishing allegations by their fellow members, the free availability of the book in this country demonstrates the continued existence of that risk. The suggestion is that the fears of members of the Service will be allayed by the knowledge that the readiest market for news of this sort and the section of the world public most likely to be interested will be cut off from publication. I could see the force of this if the information had indeed been effectively cut off, but when one considers the degree of publicity that has already occurred - and occurred without any impropriety on the part of the appellant - the contention loses much, if not all, of its impact. When allegations, however unfair and possibly untrue have already been made the subject-matter of extensive public discussion and are freely current worldwide in book form and in foreign newspapers circulating both here and abroad, further restraint on public discussion can, I should have thought, provide little reassurance. But even allowing that there remains any substance in this argument, I question whether the imposition of an injunction on A simply in order to punish B and to provide an example to C is a correct or permissible use of an injunctive remedy. The injunction was originally imposed in order to preserve the confidentiality of the then unpublished allegations. That confidentiality has now, without fault on the part of the appellants, been irrevocably destroyed and, no doubt, destroyed as a result of a calculated policy adopted by Mr. Wright and those associated with him. I am as reluctant as any of your Lordships to acknowledge that the intention of the court has been effectively flouted by a public dissemination which the courts in this jurisdiction are powerless to prevent. But once that has occurred and the proscribed material is available for public ventilation and discussion by everybody except those subject to the existing restraint, I question whether it can be right to continue that restraint against parties in no way concerned with flouting the court's orders and to interfere with their legitimate business of publishing and commenting upon matters already in the public domain for the purpose, not of preventing that which can no longer be prevented, but of punishing Mr. Wright and providing an example to others. I can well see - and this equally applies to the second argument to which I have referred - that the denial to Mr. Wright of the audience that he most desires to reach may provide a cogent reason why the Attorney General may wish to maintain the injunctions, but I am not persuaded that, as against these appellants, it constitutes a proper justification for them. It does so only if, in seeking further to publish what is already public, they can properly be said to be threatening some invasion of private law right of the Crown. It is the third argument on behalf of the Attorney General which has given me the greatest concern, for although it results in a situation which cannot, as I think, do anything but engender disrespect for the law, it has an appealing logic given the major premise upon which it is based, that is to say, that there remains an arguable case for the grant of permanent injunctions against these appellants at the trial. In the events which have happened I question that premise, although the appellants have - I sense somewhat reluctantly - presented their arguments on that footing. The judgment of the Vice-Chancellor contains a penetrating - 41 - analysis of the applicable principles of law and of the process of reasoning which led him to the conclusion that the appellants, in acquiring information from the book which is now on public sale, albeit in limited numbers, could not properly be restrained from republication of facts or allegations which are already public property. No useful purpose would be served in repeating that analysis and I am content to accept and adopt it. I accept, of course, that it is no necessary impediment to the claim of a plaintiff in an action for breach of confidence that the information the publication of which is complained of is capable of being discovered or assembled from sources available to the public. I accept too, for present purposes, that even where the very information sought to be used has previously been made public, there may be circumstances in which the recipient, by contract or conduct, comes under a fiduciary obligation to refrain from unauthorised republication. The case of Schering Chemicals Ltd. v. Falkman [1982] Q.B. 1 was such a case, although it has not been without its critics (see Report of the Law Commission (No. 110) paragraph 6.67). That case is, however, in my judgment, clearly distinguishable from the instant case, for there the defendants were the original recipient of the information (who was, arguably, himself bound by contract to keep the information confidential and certainly had accepted the obligation to do so as one of the terms upon which he was afforded facilities by the plaintiffs) and a television company which was directly involved in assisting him, with knowledge of the circumstances, in breaching his obligation. In so far as the majority judgments suggest that, apart from direct obligation or complicity in the breach of a direct obligation, information in the public domain can be the subject-matter of a claim for breach of confidence, I would, for my part, prefer the powerful dissenting judgment of Lord Denning M.R. Again, I accept that the confidant who has himself made public the information confided to him cannot rely upon the publicity which he himself has generated so as to destroy the confidentiality. That equally must apply to anyone who knowingly aids and abets him in his unauthorised disclosure. But, as was pointed out by the Vice-Chancellor, the salient feature of the instant case and one which distinguishes all previous authorities, is that the persons against whom relief is sought are persons who have come upon the information sought to be protected without having been involved in any way in its wrongful publication. The justification for the imposition of a restraint upon republication by such a person must, in my judgment, rest upon the premise that once he knows that the information was confidential and has been disclosed in breach of confidence, it would be unconscionable for him to make use of it. Once, however, that information has been so widely disseminated that it can properly be said to be in the public domain then it ceases to be any longer confidential information. There cannot be an injunction against use or republication by the general public and it cannot, in my judgment, any longer be said to be unconscionable for a person untainted with complicity in its original publication to make use of that which is available to be made use of by everyone else, save possibly the original confidant and those who have aided and abetted him. So far as they are concerned, I do not for my part accept that continued availability of injunctive relief against them stands or falls with the continuation of the injunctions against these appeallants. The case of Schering Chemicals Ltd. v. Falkman indicate quite otherwise. The Vice-Chancellor was led to assume that there still remained - 42 - an arguable case because the point of law involved was a difficult and novel one. So it is, but, as was pointed out in the course of the argument, the case of the Attorney General is unlikely to improve between now and the trial and your Lordships have, as it seems to me, all the material required to determine the point. I fully appreciate the point which is forcefully made in the speeches of the majority of your Lordships that the question should not now be determined without a further argument for which the trial would provide an occasion, but for my part, I find it difficult to see how, once the information has achieved such a degree of public availability and notoriety that any member of the public may legitimately possess himself of it, read it, discuss it and pass it on to others, it can be right to regard it as otherwise than in the public domain. If that is right then I find it even more difficult to see how it could be successfully argued that the appellants should be permanently enjoined from "disclosing to any person" (including presumably their own employees) information which has been and is being freely disclosed by members of the public to one another by selling or lending a book which is in free and open circulation. All other considerations apart, I find difficulty in seeing how a permanent injunction at trial would be other than brutum fulmen. In the action the appellants raise the defences of public interest and iniquity, issues which, I should have thought, cannot possibly be tried without an investigation of the very allegations which it is sought to restrain. Are we to be presented with the unedifying spectacle of a court trying the action or a substantial part of it in camera, not for the purpose of preserving secrets of the State or anything of that nature, but simply in order to prevent the public from learning and commenting upon allegations which are contained in a book which any member of the public is at liberty to go out and buy in the market place? If the injunction sought at trial is not to be rendered otiose in the very process of obtaining it, that would seem to be a necessary consequence, but it involves making a serious and entirely novel intrusion upon the principle that legal proceedings should be conducted in public and it cannot, I should have thought, do otherwise than bring the law into disrespect. It is said that there is a public interest in ensuring that confidentiality of information should be preserved and that, even though it may be available generally, the appellants, in contradistinction to others not concerned in the business of disseminating news, ought to be restrained because of the width of their potential circulation. But that, as the Vice-Chancellor remarked, is the negation of freedom of the press. "If," he said "the press is precluded from saying things that other people are not precluded from, that seems to be not a freedom of the press but an additional fetter on it." We do not have a First Amendment but, as Blackstone observed, the liberty of press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars or charlatans, but that cannot be avoided if the liberty is to be preserved. No one contends that the liberty is absolute and there are occasions when it must yield to national emergency, to considerations of national security, and, on occasion, to private law rights of confidentiality where they are not overborne by some countervailing public interest. I do not for a - 43 - moment dispute that there are occasions when the strength of the public interest in the preservation of confidentiality outweighs even the importance of the free exercise of the essential privileges which lie at the roots of our society. But if those privileges are to be overborne, then they must be overborne to some purpose. The argument is not perhaps much assisted by homely metaphors about empty stables or escaping cats, but I cannot help but feel that your Lordships are being asked in the light of what has now occurred to beat the air and to interfere with an essential freedom for the preservation of a confidentiality that has already been lost beyond recall. It was recognised by Millett J. when the injunctions were granted by him that indirect publication elsewhere would largely stultify the Attorney General's claim. The same recognition of reality is to be found in the judgment of the Court of Appeal in the contempt motion against The Sunday Times. That indeed, was the raison d'etre of the injunctions. It is a matter for regret that that has now in fact occurred, but the reality has to be faced. Once information has travelled into the public domain by whatever means and is the subject-matter of public discussion in the press and other public media abroad - I emphasise again without fault on the part of the appellants - I find it unacceptable that publication and discussion in the press in this country should be further restrained. In practical terms I cannot see how the appellants can, at the trial, properly be restrained by permanent injunction for making use of information of which every other newspaper and the news media generally throughout the western hemisphere are free to make use. Ideas, however unpopular or unpalatable, once released and however released into the open air of free discussion and circulation, cannot for ever be effectively proscribed as if they were a virulent disease. "Facilis descensus Averni" and to attempt, even temporarily, to create a sort of judicial cordon sanitaire against the infection from abroad of public comment and discussion is not only, as I believe, certain to be ineffective but involves taking the first steps upon a very perilous path. I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich, and I share the concern which he there expresses. However regrettable it may be, I do not think that any arguable case for a permanent injunction at the trial now remains and I would accordingly allow the appeal and restore the order of the Vice- Chancellor. - 44 -