Attorney General v Punch Ltd

A third party is not bound by an injunction merely because it knows its terms. It may nevertheless commit contempt by knowingly and intentionally frustrating the court’s purpose in the proceedings. In a confidentiality case, publication must destroy confidentiality which the order was intended to preserve. Republication of information already sufficiently in the public domain does not suffice. The prosecution must prove knowledge of the court’s purpose and an intention to defeat it. Knowledge that publication would contravene the order is insufficient. An ambiguous or overbroad order does not create automatic criminal liability for every unapproved publication. The appeal was allowed because mens rea was not proved.

James Steen, editor of Punch, and its publishers were found in contempt by Silber J and fined after Punch published an article by former Security Service officer David Shayler. The Attorney-General alleged that publication frustrated interlocutory injunctions restraining Shayler and Associated Newspapers from publishing information obtained through Shayler’s employment.

Some of the published material had previously appeared publicly, while three significant areas had not. The appeal concerned the proper purpose of the injunctions, the actus reus and mens rea of the common-law contempt alleged against a third party, and the effect of freedom of expression principles. The central issue was whether knowledge that publication fell within the wording of the injunction was sufficient, or whether intentional frustration of the court’s purpose had to be proved.

Majority. Lord Phillips MR and Longmore LJ allowed the appeal. The finding of contempt and the relevant paragraphs of Silber J’s order were set aside.

1. A third party is not directly bound by an injunction made in proceedings between other parties. Nevertheless, under the principle derived from Spycatcher, a third party may commit contempt by knowingly and intentionally frustrating the purpose for which the order was made, thereby interfering with the administration of justice. The relevant authority was Attorney-General v Times Newspapers Ltd [1992] 1 AC 191.
2. The contempt requires both actus reus and mens rea. The conduct must actually defeat or interfere with the court’s purpose. The third party must know that purpose and intend the defeating consequence. Mere knowledge that the act would breach the order is insufficient.
3. For an interlocutory confidentiality injunction, the relevant purpose is to preserve confidentiality pending trial of material whose disclosure arguably risks harm to the national interest. Publication by a third party may constitute the actus reus where it destroys that confidentiality. Republication of material already sufficiently in the public domain does not, because it does not defeat the purpose of the order.
4. The wide wording of the Associated Newspapers injunction, together with its clearance proviso, did not make every unapproved publication criminal contempt. A blanket requirement to obtain the Attorney-General’s clearance would be disproportionate and inconsistent with Article 10 and section 12(3) of the Human Rights Act 1988.
5. The Attorney-General proved that the three unpublished areas were covered by the injunction and that their publication constituted the actus reus. However, he did not prove that Steen knew those matters were unpublished and arguably threatened national security, or that Steen intended to defeat the court’s purpose. The necessary mens rea therefore failed.

Dissent. Simon Brown LJ would have dismissed the appeal. He considered that the clearance proviso made the temporary publication bar sufficiently clear and that Steen had deliberately assumed responsibility for deciding whether national security was endangered.

The appeal was allowed. The finding of contempt was set aside. The Attorney-General was ordered to pay the specified costs. Leave to appeal was refused, although a point of law of general public importance was certified.

• Court of Appeal: In Attorney General v Punch Ltd [2001] EWCA Civ 403, the majority allowed the appeal and set aside the finding of contempt.
• High Court, Queen’s Bench Division: Silber J found Steen and the publishers in contempt and imposed fines of £5,000 and £20,000 respectively.