26 July 1987, Court of Appeal: the Public Interest v. the Interested Public, Ex parte the Fourth Estate

E.P. Thompson

Before Sir John Deodoran, Magus of the Scrolls, Lord Justice Clam and Lord Justice Null.

Law Reporter: E.P. Thompson

The Court of Appeal enforced circumlocutory injunctions restraining the Fourth Estate from publishing whatever any judge had injuncted, whether it had already been universally published or no. The greater part of the submissions were heard in camera and the Court injuncted publication of the terms of the injunctions. Mr Janus Claws QC, for the Public Interest, regretted that formalities prescribed that any part of this hearing should be held in public. It was in the interest of the public that all information coming before it should be duly injuncted, but it was not in the public interest that the public should know.

The mode of proceeding by injunction was a great convenience for the prompt administration of the Law. By registering the public interest before a judge in chambers, in the absence of the offenders to be injuncted, such offenders could be instantly silenced. If the offence continued, their assets could be seized and they could be imprisoned for contempt of court without the inconvenience and uncertainty of a trial. The case was thereby removed at once to an elevated level at which it was certain that it would be heard before judges with a proper sense of the public interest, and the costs of any such appeal were so exalted that this discouraged any but the most hardened offenders from seeking redress.

Indeed, he would go so far as to say that we stood today on the threshold of a new legal edifice, a glorious and soaring structure of Public Injunction, ready to take its place alongside its elder brethren, Equity and Tort. In this future, which he saw already inscribed in Their Lordships’ demeanour, all the needs of Law would be fulfilled if a duly-accredited Officer of the Public Interest, such as the Treasury Solicitor, the Director of Public Prosecutions or the Cabinet Usher, were to sign a warrant to register that any fact merited suppression in the public interest: this fact would thereby be publicly injuncted.

Excellent as the Law now was, yet there was room for improvement. Public Injunction Boxes with cameras, like passport-photo kiosks or other public conveniences, might be installed in the lobbies of all government offices for instant access if any person in authority found himself caught short. Injuncting would then operate as a benign but invisible function of government, supplemented by the salutary operation of the Provision of Official Information Act (1987). Under Section IV (ii) (d) of this Act it had already been provided that no matter of public interest may be published unless first issued to a duly-accredited lobby correspondent (or registered serf) on the authority of the Office of the Auditors of Official Leaks.

Had this provision been enforced, then the Court would not have been troubled by the case now before it. There remained, however, the business of caulking unofficial leaks which concerned the Court today ...

Lord Justice Null interposed to enquire what was the point of corking it if it was already leaking? If it was leaky, surely the stuff was already corked? And if the stuff was corked, surely any gentleman would send it back? (Cries of assent from the bar.)

Mr Claws deferred to His Lordship and proceeded to outline his case. It might be possible to caulk – or, indeed, to cork – all public information in this country but unfortunately the jurisdiction of our courts did not extend to Certain Other Countries so unrestrained by deference as to make them into what he would call Cork (or Caulk)-Free Zones. He would mention such a country ...

At this point Their Lordships whispered together, a dense curtain was drawn around their proceedings, and the public was evicted.

When the public was readmitted, Mr Peter Treadwater QC was concluding his submission on behalf of the Fourth Estate. Your reporter was only able to catch the words ‘the ancient and inviolable rights of the free press’, drowned by the hissing of court ushers. Their Lordships then adjourned for lunch.

When the Court resumed Their Lordships delivered judgment.

The Magus of the Scrolls said that no two opinions were possible in this case. What were the facts? A disaffected fellow had withdrawn himself from the jurisdiction of the courts and, lurking behind the protections afforded by a parvenu and ill-instructed extraterritorial judiciary, was leaking torrents of unauthorised information into any conduits disloyal enough to accept it.

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