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.

The effluent so leaked was calculated to discredit the British Security Services. But what were these services? They were secret. Had there ever been any authorised statement that they existed? If there had been, then they would cease to be secret. That fact illustrated their unique character. They did not exist.

His Lordship was willing to allow that there might be highly confidential organs which safeguarded the security of the British public. It was very probable. Indeed, the constituted authorities would be lamentably neglectful of their duties if there were not. Yet this did not affect the case before Their Lordships one jot. For the Security Services remained, in the eyes of the Law, invisible. The fiction of invisibility was of their essence and it had ever been the function of the courts to uphold the fictions of State.

Counsel for the defendant had made sundry audacious claims as to the suppositious privileges enjoyed, over several hundred years, by his client. Nay, he had sought to place his client above the Law in the name of ‘the freedom of the press’. Their Lordships could find no such ‘freedom’ in their books. At the most, they could find certain episodes of inconvenience during exercises in damage limitation.

The precedents cited by counsel were all beside the point. These were cases of licence and not of Law. They arose from a mistaken laxity in the administration of justice: that is, the jury system. He was glad to say that the legislature and the judiciary were taking urgent measures to remedy this inconvenience.

In all the cases cited the suppositious ‘freedom of the press’ rested not upon Law but on the perversity of juries, which had persisted in acquittals against the clearest instructions from the judge. Indeed, in Rex v. William Hone (1818) the jurors had been intimidated by a rabble laughing aloud in court! The Lord Chief Justice, Ellenborough, had himself given the jury an exemplary charge: ‘in obedience to his conscience and his God, he pronounced this to be a most impious and profane libel.’ When the jurors persisted three times with their perversity, Lord Ellenborough retired to his sick-bed. How could a verdict which ruined the constitution of a Lord Chief Justice be cited as ‘constitutional’? (Snuffling in court.)

Counsel had also argued that since this unofficial effluent was now running all over the place it could be said to be in the ‘public domain’. But if that argument were upheld, it would utterly destroy the distinction between Official Information and unauthorised effluent. Lord Normanbrook, a predecessor in the Highest Office of State now held by Sir Robert Strongarm, long ago decided this point: ‘any information arising in a government department is officially secret until it is officially released’ (Filchbag Peeper, The Law of Official Leaking, 1978, p. 209). Information was only in the ‘public domain’ when some duly-authorised authority authorised its issue as an unsecret.

Counsel had further claimed that the effluent in question indicated that the Security Services had been guilty of ‘iniquities’ against the public. What an extraordinary allegation! How could these services, which are the duly-constituted guardian of the public interest, be said to act in contradiction to this interest?

A more serious allegation was that these services had ‘set themselves above the Law’. This merited the attention of the Court. That the services were subject to the Law was not in doubt. But Their Lordships were not content to inhabit a world of musty, bookish precedents. They meant to look about and bring the Law to bear in this workaday wo d. It was not to be supposed that a secret service could go about its business like nuns in a convent. It could not protect the public without murdering the odd baby in a pram.

The Court should set aside taradiddle about ‘iniquities’ and consider the hypothesis of ‘wrongdoing’. What were the wrongdoings alleged against the Service? That it had formed plans to assassinate the head of a state noxious to the constituted authorities of that time. Well, what of that? That was an extraterritorial exercise which could not concern the Court. That it had conspired to enforce the resignation of an elected Prime Minister. What of that? Election was an uncertain and disorderly procedure, not yet brought under a Rule. It may have happened that a person unfit to serve the public interest could have been elected to that office, and it might so happen again. Were these salutary safeguards to be overthrown so that any voyeur in Tunbridge Wells could poke and pry into them?

His Lordship concluded that these ‘wrongdoings’ – if there were such – were mere peccadilloes: bugging embassies and offices, planting informers, picking pockets and the like. Counsel had, indeed, alleged a more serious matter, casting aspersions on the efficiency of the Service. But what was the worst that was alleged? Only that the Service was penetrated from top to bottom by foreign agents and that it had at one time been directed by the KGB.

This might appear improper to the uninitiated. But anyone acquainted with Security knew that a great part of its functions consisted in penetrating the services of other nations, both friendly and hostile, with double-agents, narks and the like. This was for the purpose of obtaining more fluent exchanges of information between them. These other services were also acting in the public interest. It was in the interests of all to facilitate communication between each other. What better way could be found than by planting agents in each other’s most secret organs, so that secrets could be exchanged with the least possible danger of being exposed in transit to public view? Doubtless such arrangements were entered into by agreement. So far from casting aspersions, the Service was to be congratulated upon its efficiency and on its economy of public revenue.

His Lordship agreed that it might be thought improper if the Director of MI5 was always an agent of the KGB. No doubt there was some rota system. No doubt the CIA was given a turn. No doubt there was an exchange agreement under which our public servants did a turn on the other side. What possible public interest could be served by opening this to public view?

But His Lordship confessed that he had been led a little out of the way. In a strict view the Law had no business with these matters. The Law in this point had been decided once and for all in the judgment of Lord Parker (Obiter Dicta, 1916) that ‘those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be discussed in public.’ Lest there be the least scintilla of doubt, his learned colleague, Lord Lane, LCJ, giving judgment in this Court in 1984, had explicitly disqualified the courts from any pretension to the power of review of ‘any action taken under the Royal Prerogative which could be truly said to have been taken in the interests of national security to protect this country from its enemies or potential enemies’. Such actions might override statute and common law. But they could be no concern of the courts.

It had been argued that some difficulty remained, in that those responsible were invisible – and, indeed, did not exist – and could not be examined as to what was ‘truly said’ nor what was truly said by whom to whom. His Lordship would allow the difficulty. But the Lord Chief Justice had anticipated the objection: ‘the ministers are the sole judges of what the national security requires’ (Regina v. Secretary of State for the Foreign Office, Ex parte the Council of Civil Servants, ‘Times’ Law Report, 7 August 1984).

Since the public mind had recently become confused on the point, His Lordship stressed that the Royal Prerogative had nothing to do with the tedious person now occupying Buckingham Palace. By the Royal Prerogative was now understood the arbitrary authority of the Prime Minister and her ministers in all matters touching on national security, and a great many other matters besides. Of recent months it had become accepted usage to vest the Royal Prerogative in a person who held even higher office – that of Cabinet Usher. This office, indeed, like the Trinity, combined three persons into one, as Usher, as Head of All Services, and as Adviser on Security. When any enquiry into the public interest was involved, these three heads assumed their distinct functions and consulted with each other. They then reassembled into the Awful Office of the Three-in-One, the Royal Prerogative made Flesh, and enunciated the Public Interest.

Sir Robert Strongarm, who now held this exalted office, had condescended to serve this Court with an affidavit. In this affidavit he declared that any publication of this unofficial effluent would cause hideous and unquantifiable dangers to the Free World, would discompose the Royal Prerogative (i.e. Himself), and would open the floodgates upon anarchy. In a second affidavit he said that it would bring the British Service into disrepute with the Services of Other Nations. The KGB would lose confidence in our Service, since it has more summary methods of despatching such matters. The CIA would regard our Service as a laughing-stock owing to the paltry and ineffectual level of iniquities disclosed. Indeed, so great might be the loss of confidence in us on the part of our Great Ally (the Court here rose and did obeisance) that she might find it necessary (see Foreign Office v. Turks and Caicos Islands, 1986) to dissolve our government and courts and institute direct rule. (Moaning at the bar.)

His Lordship would return for a moment to the matter of inquities. The submissions of counsel for the Public Interest (Mr Claws) on this point had been incontrovertible. But since these had been argued in camera, it fell to His Lordship to rehearse once again the points of law. It was government policy never to confirm or to deny that iniquities had taken place. The 1985 Interception of Communications Act laid down that it was against the public interest for such iniquities to be discussed in public.

Guidelines had been made public outlining the principles which govern the official commission of iniquity. Such commission was essential for the due invigilation of subversives and wrongdoers. The Court had received an affidavit from the Permanent Under-Secretary at the Office of Public Interest that no iniquities had been committed which did not comply with the guidelines. Counsel for the Fourth Estate had failed to establish any breach, and it might well be – although this could not be confirmed or denied – that the Fourth Estate had itself been designated by authority as a wrongdoer. In that event, it had called these iniquities (which could not be confirmed or denied) upon its own head.

Mr Claws had also submitted that, just because the Government had published guidelines about the way in which iniquities were committed, this did not give the public any right to insist that these guidelines should be kept to. They could be changed and chopped about without any prior announcement, to suit the Government’s occasions, and usually they were. All that was necessary was that government should exercise all and every power available to it to commit iniquity in good faith. His Lordship commended the learned counsel’s argument, although he reserved his opinion on the matter of good faith. He could not find ‘good faith’ in his books.

The Magus of the Scrolls concluded by asking whether it had been the intention of the Fourth Estate to confine the issue of their publications to authorised readers, such as the Prime Minister, the Treasury Solicitor and the Cabinet Usher? If it had been so, the Court might have taken a lenient view. But its clear intention had been promiscuous and indiscriminate publication to the general public!

The question before the Court was not whether the public was interested in publication but whether the public interest could be served by serving the interest of the public? It would be an intolerable levity to suppose that the public could be a judge of its own interests. The very notion constituted an abhorrent contempt of court. What indeed was the public? It was a promiscuous rabble made up of numerous persons pursuing their own private interests. How could such wrongdoers be in any position to determine in good faith what the public interest might truly be said to be when they were debarred by salutary provisions, guidelines and injunctions from the means of forming an opinion?

His Lordship could not conceal his agitation. He asked the Court to consider who might be ‘potential enemies’? Might not the public itself be considered in that light? They were publicans all, and no doubt for the most part sinners. He would injunct the lot of them.

Lord Justice Clam concurred. It was against the public interest that the case had been heard. An application should have been made at the beginning of the hearing for it to be stopped. He could not believe his ears. Speaking of ears, he advised the Fourth Estate to watch out lest they should lose their own. The long and short of the case was that the cat had been let out of the bag. Yet the cat might still be bagged again. Their Lordships had plenty of bags to meet the purpose.

Lord Justice Null, in a concurring judgment, said it was certainly high time to put a cork in it. But as for the cat, surely no sportsman would bag it? He had never heard that cats were considered fair game. He felt obliged to enter a dissenting opinion on that point.

The Court awarded costs against the Fourth Estate and confiscated all its assets. The offender was taken below in chains.