"(1) Were the 'Observer' and 'The Guardian' in breach of their duty of confidentiality when, on 22 and23 June 1986 , they respectively published articles on the forthcoming hearing in Australia? If so, would they have been restrained from publishing if the Attorney- General had been able to seek the assistance of the court? . . .
"In these actions we are concerned with the publication of diaries at a time when 11 years have expired since the first recorded events. The Attorney-General must show (a) that such publication would be in breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. However, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need."
"However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be 'an unauthorised use of that information to the detriment of the party communicating it' (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at p. 47). The question then, when the executive government seeks the protection given by equity, is: What detriment does it need to show?
"The national security factors were expounded by Sir Robert Armstrong in his evidence. They were these. (1) The unauthorised disclosure of information is likely to damage the trust which members of the service have in each other. This damage must already have occurred.
"(2) Other members of the Security Services may break faith and follow suit. But unless they depart from the jurisdiction of these courts they will be unable to follow Mr. Wright's example. And if they do leave the country, Mr. Wright's example is already in place as a lamentable beacon.
"(3) Unless permanent injunctions are granted pressure will be exerted by the media on other members or ex-members of the Security Services to tell their side of the Spycatcher allegations. This is speculation but, on the evidence I heard, is likely to happen. Whether the pressure will be resisted is impossible to tell. Whether, if anyone were to succumb to the pressure, publication would follow, would depend on several other imponderables. The point does, however, deserve weight in the scales.
"(4) Intelligence and Security Services of friendly foreign countries may; if permanent injunctions are not granted, lose confidence in the British Security Services. This loss of confidence may already have taken place as a result of the publication of Spycatcher. But the notion that the grant or withholding of permanent injunctions will make any difference seems to me somewhat unreal.
"(5) The confidence of informers, who rely on their identity and activities being kept confidential, will be damaged. Here, too, the loss of confidence may already have happened. If it has, it is a regrettable fait accompli. Sir Robert did, I should record, give evidence that individuals who had assisted M.I.5 in the past, had, since the publication of Spycatcher, expressed anxiety about the risk of exposure. Ail this evidence was given by Sir Robert third-hand but I found it inherently believable. Sir Robert's evidence did not, however, suggest that if permanent injunctions were granted, the individuals would feel any safer.
"(6) Detriment will flow from the publication of information about methodology, and personnel and organisation of M.I.5. This is a point of real substance and justifies the conclusion that M.I.5 officers cannot be allowed to publish their service memoirs. But it does not bear upon the position today. The detriment is a fait accompli and I do not follow how
"(7) Publication of Spycatcher has damaged the morale of members of M.I.5. A permanent injunction, depriving Mr. Wright of the profits to be made on the home market, would go some way to restoring morale.
"I find this point made by Sir Robert difficult to weigh. I did not understand Sir Robert to be repeating views that had been actually expressed by members of M.I.5. Rather he was expressing his own belief as to the likely effect on morale of permanent injunctions. There may well, I think, be resentment felt by loyal M.I.5 members at the spectacle of Mr. Wright reaping very substantial financial rewards from his disloyalty. And the removal of any impediment on dissemination in this country of the book or its contents might well add fuel to that balance as between the Attorney-General and the newspapers. The purpose of the duty of confidence owed by officers of M.I.5 is to protect information about the affairs of M.I.5. If unauthorised disclosures are made to newspapers, the 'obligation of conscience' owed by the newspapers is owed for the same reason, namely, to protect the confidentiality of information that, for national security reasons, must be kept confidential. The duty of confidence is not, in my opinion, imposed on newspapers in order to maintain the morale of members of M.I.5. If in relation to particular information, the maintenance of secrecy or confidence is not needed or has become impossible, a duty of confidence cannot, in my opinion, be imposed on newspapers on the ground that disclosure would adversely affect the morale of M.I.5.
"The factors I have referred- to were those advanced by Sir Robert justifying permanent injunctions. The maintenance of the secrecy or confidentiality of the information contained in the book was, for obvious reasons, not among them. Sir Robert accepted that damage must already have been caused by the publication of the book. But he described that damage as 'limited' and as likely to be greatly increased if permanent injunctions were not granted. In particular, Sir Robert stressed that Spycatcher was the first unauthorised book of memoirs written by an insider. I have found it difficult to follow Sir Robert's point that greatly increased damage would follow publication of Spycatcher in this country and unrestricted press comment on its contents and I do not think that proposition stands much examination. The damage to national security interests must, in my view, have already been inflicted. The spectacle of Mr. Wright making money out of the unrestricted sale of his book in this country would, I accept, be offensive and an affront to most decent people. But I am not satisfied that it will cause any additional damage to national security interests."
"We are now agreed on the following re Spycatcher. We will pay£150,000 for U.K. serial rights that includes a payment of£25,000 toward Heinemann Publishers Australia's legal expenses. (i) We pay£25,000 now to secure U.K. serial rights.
"this order shall not prohibit direct quotation of attributes to Peter Morris Wright already made by Mr. Chapman Pincher in published works, or in a television programme or programmes broadcast by 'Granada Television'."
"27. In so far as there are suggestions in the judgments so far that Mr. Wright's position is different because he cannot profit from his own wrong, this cannot provide the basis of an independent entitlement running against Mr. Wright but not against the other defendants. It can only mean that since dissemination of Spycatcher is entirely the result of Mr. Wright's wrongdoing, the duty of confidence has not been destroyed and the Crown is entitled to enforce it. If a good claim runs against Mr. Wright, it does so because of the surviving duty of confidentiality in respect of the contents of Spycatcher and this continues to attach in conscience to third parties.
"28. Publication of the book in other countries by or on behalf of Mr. Wright does not therefore affect the obligation of confidence owed by Mr. Wright and his agents or by third parties. In relation to Mr. Wright it is submitted that his duty is not affected by publication abroad. 'The Sunday Times' being agents of Mr. Wright remain similarly bound. In relation to the 'Observer' and 'The Guardian' it is submitted that the proper view is that as the obligation of confidence is still attached to Mr. Wright and his agents, it also continued to attach in conscience to third parties. . . . ."
"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."
"No man is entitled to obtain the aid of the law to protect him in carrying on a fraudulent trade, but the cases quoted at the debate by the Lord Ordinary establish, as I think, very clearly that the courts have in the past given effect to the principle which allows nothing to the man who comes before the seat of justice with a turpis causa."