Factual and Procedural Background
“Third Party,” a former member of the Security Service, left that employment in 1996 and took with him confidential material. In August 1997 several newspapers carried articles based on that information. The “Appellant” (then acting for the Crown) obtained interlocutory non-disclosure injunctions against Third Party and “Company B” in September 1997.
Despite knowing of those injunctions, “Respondent Editor,” on behalf of “Company A,” commissioned and published an article in the Magazine on 26 July 2000 containing three items of information covered by the injunctions. The Appellant initiated contempt proceedings against Company A and Respondent Editor.
At first instance, Judge Silber held both defendants in contempt and imposed fines (£20,000 on Company A; £5,000 on Respondent Editor). Company A accepted the ruling; Respondent Editor appealed. A majority of the Court of Appeal (Judge Phillips MR and Judge Longmore) allowed the appeal, holding that mens rea had not been established; Judge Simon Brown dissented. The Appellant obtained leave to appeal to the House of Lords.
Legal Issues Presented
- Whether a third party who knowingly publishes information covered by an interlocutory injunction—without being a party to the underlying action—commits contempt of court by frustrating the purpose of the order.
- What constitutes the requisite mens rea for such third-party contempt: must the publisher intend to harm national security, or is it enough that the publisher intends to do the act that thwarts the court’s purpose?
- Whether the breadth of the interlocutory injunctions, and their proviso allowing the Appellant to consent to publication, impermissibly restrict freedom of expression under Article 10 of the European Convention on Human Rights.
Arguments of the Parties
Appellant's Arguments
- The purpose of the injunctions was evident on their face: to keep specified information confidential until trial. By publishing that information, Respondent Editor intentionally interfered with the administration of justice, satisfying both actus reus and mens rea for contempt.
- Mens rea does not require proof that Respondent Editor believed publication would harm national security; it is sufficient that he knowingly performed the act the court had forbidden the subject of the injunction to do.
- The proviso permitting the Appellant to give clearance is a proportionate mechanism, not censorship, because any affected party could apply to the court for variation.
Respondent Editor's Arguments
- He believed the injunctions were aimed solely at preventing damage to national security; he honestly thought the article revealed nothing harmful and therefore lacked the intent necessary for contempt.
- The injunctions were drafted too widely and, coupled with the clearance proviso, imposed a disproportionate restraint on freedom of expression contrary to Article 10.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney General v Times Newspapers Ltd [1992] 1 AC 191 |
Established that a deliberate act by a third party which frustrates the purpose of a court order may constitute contempt. |
Primary authority confirming liability of Respondent Editor even though not party to the original injunction. |
| Attorney General v Newspaper Publishing plc [1997] 1 WLR 927 & [1988] Ch 333 |
Outlined the “Spycatcher” principles on third-party contempt and the need for intent. |
Relied upon to define both actus reus (frustration of purpose) and mens rea (intentional interference). |
| American Cyanamid Co v Ethicon Ltd [1975] AC 396 |
Set the test (“serious question to be tried” and balance of convenience) for granting interlocutory injunctions. |
Used to explain why wide interim orders may be granted pending trial without deciding final merits. |
| NWL Ltd v Woods [1979] 1 WLR 1294 |
Noted that interlocutory injunctions can be decisive when matters never reach a substantive hearing. |
Cited to illustrate why interim protection must sometimes be broad. |
| Jennison v Baker [1972] 2 QB 52 |
Public has an interest in effective administration of justice; intent may be inferred from circumstances. |
Supported drawing inference of Respondent Editor’s intent to interfere with the court’s process. |
| R v Inland Revenue Commissioners, ex p Kingston Smith [1996] STC 1210 |
Publication in breach of an order is contempt even if the claimant would, in fact, have consented. |
Justified inclusion of the clearance proviso in the injunctions. |
| Kelso School Board v Hunter (1874) 2 R 228 |
An injunction must be drafted in clear and certain terms. |
Supported the need for clarity when formulating injunctions that might bind third parties. |
| R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532; R (Pretty) v DPP [2001] 3 WLR 1598; R v Shayler [2002] 2 WLR 754 |
Set proportionality tests relevant to interferences with Article 10 rights. |
Applied to assess whether the breadth of the injunction and its proviso were proportionate. |
Court's Reasoning and Analysis
The House of Lords held that the injunctions’ purpose was apparent from their text: to preserve confidentiality of the specified information until trial so the court could adjudicate effectively. That purpose was distinct from the Appellant’s underlying motive of protecting national security.
On actus reus, Respondent Editor conceded that publication breached the injunctions and frustrated that purpose by putting new information irretrievably into the public domain.
On mens rea, the Law Lords found that:
- Respondent Editor was an experienced journalist who knew the injunctions’ scope and that publication would defeat their aim.
- His asserted belief that the article was harmless to national security was irrelevant; the relevant intent was the decision to do the prohibited act despite knowing the court had reserved the question for trial.
- Knowledge that the specific items had not previously entered the public domain could properly be inferred from his dealings with the Government Solicitor and his failure to claim otherwise at the time.
The Court of Appeal’s narrower view—that contempt required knowledge that publication was arguably harmful to national security—was rejected as inconsistent with authority and destructive of effective interim relief.
Addressing freedom-of-expression concerns, the House ruled that the clearance proviso did not amount to governmental censorship; rather, it offered a swift, inexpensive avenue for relaxation of the order, always subject to the court’s ultimate control. Nonetheless, the Court encouraged future drafters to avoid the appearance of delegation and to explore narrower, clearer wording where feasible.
Holding and Implications
HELD: The appeal is allowed; the order of Judge Silber finding Respondent Editor in contempt and imposing penalties is restored.
Immediate consequence: Respondent Editor’s fines stand, reaffirming liability of third parties who knowingly frustrate court injunctions. Broader implications: the judgment re-asserts the power of the courts to protect the efficacy of their orders, clarifies the mens rea test for third-party contempt, and offers guidance on drafting interlocutory orders that balance national security with freedom of expression.