Her Majesty's Attorney General (Appellant) v. Punch Limited and another (Respondents)

A third party may commit contempt by deliberately frustrating an interlocutory injunction made against another person. Liability requires an intention to impede or prejudice the administration of justice and conduct having a significant and adverse effect on the proceedings.

The court’s purpose is normally the effect which the injunction’s terms show it was intended to have between the parties. A publisher who knowingly pre-empts a decision reserved to the court cannot avoid liability by asserting that no underlying substantive harm was intended. Publication of information already fully and clearly in the public domain will not normally satisfy the test.

Restrictions on press freedom require rigorous scrutiny and must be proportionate. A broad confidentiality injunction remains subject to judicial variation; a procedure allowing quicker clearance by a litigant does not transfer control from the court.

David Shayler, a former Security Service officer, was subject to an interlocutory injunction restraining disclosure of information obtained through his employment. Punch Ltd published an article written by him containing three previously unpublished items within the injunction’s terms. Its editor, James Steen, knew of the order and published after the Treasury Solicitor had warned that the proposed article would breach it and damage national security.

Silber J found the company and editor in contempt. The company did not appeal. By a majority, the Court of Appeal allowed the editor’s appeal: [2001] EWCA Civ 403; [2001] QB 1028. It held that the Attorney General had not proved that the editor intended to defeat what the majority regarded as the injunction’s national-security purpose.

The Attorney General appealed. The editor accepted that publication constituted the actus reus of contempt. The sole disputed issue was whether he possessed the requisite intention.

1. Appeal allowed unanimously. The House set aside the Court of Appeal’s order and restored Silber J’s order. Lord Nicholls delivered the leading speech. Lord Steyn agreed with his reasons; Lord Hope agreed with Lord Nicholls and Lord Hoffmann; and Lord Walker agreed with all three substantive speeches.

2. Per Lord Nicholls and Lord Hoffmann, applying Attorney General v Times Newspapers Ltd [1992] 1 AC 191, an injunction does not bind a stranger as an order directed to that person. A stranger nevertheless commits contempt by intentionally interfering with the administration of justice. In this context that occurs when the stranger deliberately does an act restrained by the injunction and thereby significantly and adversely frustrates the court’s purpose in the proceedings.

3. Per Lord Nicholls, Lord Hoffmann and Lord Hope, the relevant purpose is the court’s purpose, not the claimant’s underlying objective. For a negative interlocutory injunction, that purpose is ordinarily co-extensive with the order’s terms: preservation of the position until the court determines the merits. The purpose here was to keep the specified information confidential so that the confidentiality and national-security issues could be determined at trial. The Court of Appeal erred by treating prevention of arguably harmful disclosure as the relevant purpose.

4. Per Lord Nicholls, the editor knew that publication fell within the injunction and appreciated that the court had reserved the confidentiality decision to itself. By publishing nevertheless, he intentionally pre-empted that decision. His asserted belief that publication would not damage national security did not negate the required intention. The facts established both actus reus and mens rea to the requisite high standard.

5. Per Lord Nicholls, publication of information already fully and clearly in the public domain will not normally constitute this form of contempt because confidentiality has already been lost and republication causes no significant and adverse effect on the proceedings. The House left open whether the Attorney General must prove knowledge that information was not public where there is no evidence of a mistaken belief. On the facts, the judge could infer that the editor held no such belief.

6. Per Lord Nicholls, Lord Hoffmann and Lord Hope, freedom of expression under article 10 of the European Convention on Human Rights required rigorous scrutiny and proportionality. The clearance proviso did not subject the press to executive censorship because the court retained control and any affected person could seek variation. The order’s breadth did not excuse deliberate frustration. Future orders should, however, state expressly the right to seek variation and should be drafted as narrowly as certainty and effective protection permit.

• House of Lords: In Her Majesty's Attorney General v Punch Limited and another [2002] UKHL 50, the House unanimously allowed the Attorney General’s appeal, set aside the Court of Appeal’s order and restored Silber J’s order.
• Court of Appeal: By a majority, the court allowed James Steen’s appeal and set aside the finding of contempt against him: [2001] EWCA Civ 403; [2001] QB 1028.
• High Court: Silber J found Punch Ltd and James Steen in contempt, fining the company £20,000 and the editor £5,000. The company did not appeal.