Lord Advocate v The Scotsman Publications

The Crown may restrain a present or former security-service member from disclosing information acquired through that service. A third party outside the direct chain of disclosure stands differently. Restraint of that party requires a public interest sufficient to outweigh freedom of expression, ordinarily because further publication would cause material damage.

Where the information is conceded to be harmless, the third party neither procured nor participated in the breach of confidence, and the alleged indirect harm arose when the original disclosure became known, the Crown has no arguable case for restraint. Mere knowledge that information originated in an unauthorised disclosure does not create an enforceable duty serving no useful public purpose.

A former member of the British intelligence service distributed privately printed copies of his memoirs after the Government had refused permission for publication. A copy reached the Scotsman, which published an article containing material from the book. The Lord Advocate sought interim interdict against the newspaper, its editor and others having notice of the order.

The Lord Ordinary refused interim interdict. The Second Division refused the Lord Advocate's reclaiming motion: 1989 SC (HL) 122. Before that court, and in the House, the Crown conceded that the book contained nothing whose publication would itself endanger national security. The alleged harm consisted instead of discouragement to discipline, morale and confidence in the security services.

The central issue was whether that indirect public-interest detriment justified restraining third parties who had neither solicited the information nor participated in the former officer's breach of confidence.

1. Appeal dismissed unanimously. Lord Keith of Kinkel delivered the principal speech, with which Lord Griffiths and Lord Goff of Chieveley agreed. Lord Templeman and Lord Jauncey of Tullichettle also dismissed the appeal.

2. Per Lord Keith, the grant or refusal of interim interdict was discretionary. Appellate intervention therefore required a material error of law or an unreasonable exercise of discretion. The Second Division had committed neither.

3. Per Lord Keith, the substance of Scots and English law was the same regarding the circumstances in which a recipient who knows information to have been communicated in confidence may incur an obligation of confidence. The Crown must nevertheless show that restraint of an independent third party serves the public interest. The principle established in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] AC 109 did not support a general prohibition on communicating harmless governmental information merely because its original disclosure breached confidence.

4. The combination of two circumstances defeated the Crown's prima facie case: the Crown conceded that the book contained no material damaging to national security, and the former officer had already distributed 279 copies. The indirect consequences alleged—loss of confidence, impaired morale and encouragement of other disclosures—arose from the known fact of the original publication. Further publication by respondents unconnected with that breach would not materially add to them.

5. Per Lord Jauncey, an officer, an agent publishing for the officer, a person in the direct chain of disclosure, or a recipient proposing to publish information damaging to national security may be restrained. These categories did not include the respondents, who became involved only after the former officer's completed breach.

6. Per Lord Templeman, article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms protects freedom of expression subject to restrictions necessary in a democratic society. The subsequently enacted Official Secrets Act 1989 likewise distinguished the strict liability of security personnel for unauthorised disclosure from third-party liability, which required damaging disclosure and the requisite knowledge. Although the Act was not yet in force, its structure supported rejection of the broader restraint sought.

1. House of Lords: The Lord Advocate's appeal was dismissed unanimously. The refusal of interim interdict was affirmed: [1990] 1 AC 812.

2. Second Division of the Court of Session: On 8 April 1988 the court refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor: 1989 SC (HL) 122.

3. Lord Ordinary: On 23 February 1988 Lord Coulsfield refused the renewed application for interim interdict.