Attorney General v Guardian Newspapers Ltd (No 2)

The Crown may restrain disclosure of confidential government information only where publication would harm the public interest. Confidentiality alone is insufficient because government activity remains subject to public scrutiny and criticism.

A member of the Security Service owes a lifelong duty concerning information acquired through service. A knowing third-party recipient may also be bound while the information remains confidential. Once information has become generally accessible through worldwide publication, an unconnected publisher will ordinarily not be restrained unless domestic publication would cause additional harm.

Imminent publication elsewhere does not excuse an earlier breach. A claimant may obtain an account of profits made from that breach. A mere allegation of wrongdoing does not establish the public-interest defence, and an injunction should address a specific threatened wrong rather than prohibit possible future wrongdoing generally.

Peter Wright, a former senior member of the Security Service, wrote Spycatcher, which disclosed information obtained during his service. After proceedings brought by the Crown in Australia failed, the book was published internationally and imported extensively into the United Kingdom.

The Observer and The Guardian had earlier published short reports concerning allegations in the book and the Australian proceedings. The Sunday Times subsequently published an extract shortly before publication in the United States and sought to continue its serialisation.

Scott J and the Court of Appeal, in decisions reported at [1988] 2 W.L.R. 805, reached differing conclusions on the earlier publications but refused continuing and general injunctions. They held The Sunday Times liable to account for profits from its first extract. The Attorney General appealed on the issues decided against the Crown, while The Sunday Times cross-appealed against the account. The central questions concerned the conditions for protecting government confidences, the effect of worldwide publication and the remedies available for an earlier breach.

1. Disposition. The House dismissed both appeals and The Sunday Times's cross-appeal. Lord Keith delivered the principal speech. Lord Brightman and Lord Goff reached the same conclusions, while Lord Jauncey agreed with Lord Keith subject to a qualification concerning future serialisation. Lord Griffiths dissented on the 1986 newspaper articles and future serialisation by The Sunday Times.

2. Government confidences. Per Lord Keith, with the majority taking the same essential position, the Crown must show that publication of confidential government information would damage the public interest. The mere fact that information originated in a breach of confidence does not justify restraining a third party where publication serves no useful protective purpose. Lord Goff added that this approach reflects the public interest in scrutiny and criticism of government and is consistent with article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

3. Security Service duty. All members of the House accepted that members and former members of the Security Service owe the Crown a lifelong duty concerning information acquired through their service. The duty normally admits no distinction between important and supposedly trivial secrets. Any public-interest exception would be exceptional and could not justify publication of a book whose detailed operational disclosures greatly exceeded its allegations of wrongdoing.

4. Public domain and future publication. Lord Keith held that worldwide dissemination had already caused all material damage and that publication by the newspapers would cause no significant additional harm. Lord Brightman and Lord Goff reasoned that generally accessible information had lost its confidential character. The majority therefore refused injunctions against comment, quotation or further serialisation. Lord Goff considered, without deciding, that even a confidant's duty may end when the subject matter has irretrievably entered the public domain, leaving remedies for the completed breach.

5. The first Sunday Times extract. The House unanimously held that the publication of 12 July 1987 was a breach. The information was then confidential, and anticipated American publication did not release a knowing third party from its own duty. The allegations of wrongdoing lacked a sufficient evidential basis and did not justify publication of extensive unrelated material. The Crown was entitled to an account of profits from that extract, but not from future publication that would no longer constitute a wrong.

6. Other claims. By a majority, the 1986 Observer and Guardian articles did not establish an actionable breach because the Crown had not shown sufficient public-interest harm or a proportionate need for restraint. The House unanimously refused the proposed general injunction. Per Lord Keith, it was excessively broad, was not directed to a specific threatened wrong and could require substantive defences to be determined in contempt proceedings.

7. Dissent. Lord Griffiths would have held the 1986 articles unjustified. He would also have restrained future serialisation by The Sunday Times because its contractual association with Wright's publishers and encouragement of publication abroad affected its conscience and placed it in the direct chain of the original breach.

1. House of Lords: The orders of the Court of Appeal were affirmed. Both appeals by the Attorney General and the cross-appeal by The Sunday Times were dismissed, with costs of the principal appeal awarded to the respondents.
2. Court of Appeal: In the decision reported at [1988] 2 W.L.R. 805, differing majorities upheld the refusal of continuing and general injunctions and upheld the account of profits against The Sunday Times.
3. High Court: Scott J's decision, also reported at [1988] 2 W.L.R. 805, refused continuing and general injunctions, found the first Sunday Times extract to be a breach and ordered an account of profits.