Her Majesty's Attorney General v Punch Limited and another

The House of Lords held that an interlocutory injunction restraining publication of information obtained by a security service member was intended to preserve the confidentiality of the information specified in the order pending trial, so as to enable the court to adjudicate on confidentiality issues. A third party who knowingly publishes material covered by such an order commits the actus reus of contempt where that publication has some significant and adverse effect on the administration of justice, and is guilty if the necessary mens rea can be inferred from the circumstances (for example, where the publisher appreciates that by publishing he is pre-empting the court's decision). The court rejected the narrower test that a third party must be shown to have known that publication would be damaging to national security; it suffices that the third party knowingly defeated the court's purpose in making the interlocutory order. The Court also emphasised the need to protect freedom of expression and proportionality (including article 10 ECHR and the Human Rights Act 1998), and warned against over‑wide wording of interlocutory orders and the appearance of delegated censorship by the Attorney General.

This appeal arose from contempt proceedings brought by the Attorney General against Punch Ltd and its editor, Mr James Steen, after publication in Punch of an article by David Shayler, a former Security Service officer subject to interlocutory non‑disclosure orders. Silber J at first instance found both actus reus and mens rea proved and imposed fines; the company did not appeal but Mr Steen did. The Court of Appeal by majority set aside Silber J's decision. The Attorney General appealed to the House of Lords.

The claim: punishment for contempt of court for publication by third parties of material falling within an interlocutory injunction against Shayler (i.e. relief sought: penalties for contempt, vindication of the injunction's purpose).

Issues framed by the House of Lords:

• What is the "purpose" of an interlocutory non‑disclosure order for the purposes of third‑party contempt? (court's purpose v litigant's purpose);
• Whether publication by a third party which defeats that purpose constitutes the actus reus of contempt (significant and adverse effect on administration of justice);
• What mens rea is required of a third party — must the third party know publication would damage national security (as the Court of Appeal majority held), or is it sufficient that he knowingly undermined the court's purpose in making the order?
• How should freedom of expression, national security and proportionality (including article 10 ECHR and section 12 of the Human Rights Act 1998) inform the analysis and drafting of such orders?

Reasoning and outcome: the House of Lords unanimously held that the purpose of Hooper J's order was to preserve confidentiality of the information specified pending trial so the court could adjudicate the confidentiality issue. Publication of previously unpublished parts of the Punch article had a significant and adverse effect on the administration of justice in the action against Shayler (actus reus). On mens rea, the court inferred from Mr Steen's knowledge of the injunction, his seeking of the Treasury Solicitor's views, and his admission that he was unqualified to assess national security risk that he appreciated he was taking upon himself the decision reserved to the court; on that basis the necessary intention to impede or prejudice the administration of justice was established. The Lords restored Silber J's decision. The court also addressed the need to frame interlocutory injunctions with clarity, cautioned against the chilling effect of over‑broad wording, and explained the purpose and acceptable operation of the proviso permitting written clearance from the Attorney General while preserving the court's supervisory role.

Appeal allowed. The House of Lords concluded that Hooper J's interlocutory injunction was intended to preserve the confidentiality of the information specified pending trial; publication by the magazine had a significant adverse effect on the administration of justice and, on the evidence, Mr Steen possessed the requisite mens rea because he knowingly took upon himself the decision reserved to the court and thereby pre‑empted the court's purpose. Silber J's finding of contempt was therefore restored.

First instance: Silber J found Punch Ltd and Mr James Steen in contempt and imposed fines (company £20,000; Mr Steen £5,000). Court of Appeal (majority) allowed Mr Steen's appeal and set aside Silber J's decision: [2001] EWCA Civ 403, [2001] QB 1028. Appeal to the House of Lords allowed: [2002] UKHL 50.