England and Wales Court of Appeal (Criminal Division) Decisions

Case No. 96/7418/S2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

 

Royal Courts of Justice

The Strand

London WC2

 

Date: Friday 25 April 1997

 

 

B e f o r e:

 

THE LORD CHIEF JUSTICE OF ENGLAND

( Lord Bingham of Cornhill)

 

MR JUSTICE LATHAM

 

and

 

MR JUSTICE POOLE

 

_______________

 

 

IN THE MATTER OF

 

AN APPLICATION BY HER MAJESTY'S ATTORNEY GENERAL

UNDER THE INHERENT JURISDICTION OF THE COURT

 

 

and

 

 

IN THE MATTER OF :

 

R v WILLIAM STUART BLACKLEDGE,

JOHN PAUL GRECIAN, BRYAN ALBERT MASON

and COLIN WILLIAM PHILLIPS

 

____________________

 

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A

Telephone No: 0171-831 3183

(Official Shorthand Writers to the Court)

____________________

 

B E T W E E N :

 

 

HER MAJESTY'S ATTORNEY GENERAL

 

Applicant

 

 

and

 

 

(1) NEWSPAPER PUBLISHING PLC

 

(2) IAN HARGREAVES

 

(3) CHRISTOPHER BLACKHURST

 

(4) DAVID HELLIER

 

Respondents

__________________

 

MR PHILIP HAVERS QC and MR IAN BURNETT appeared on behalf of

THE APPLICANT

 

MR CHARLES GRAY QC and MR JUSTIN RUSHBROOKE appeared on behalf of

THE RESPONDENTS

__________________

 

J U D G M E N T ( As Approved by the Court)

THE LORD CHIEF JUSTICE : In these proceedings the Attorney General asks the court to impose penalties on three respondents for contempt of court. The first respondent is the owner and publisher of the Independent newspaper. The second respondent was at the relevant time the editor of that newspaper. The third respondent is a journalist employed by the newspaper. The application against the fourth respondent has been withdrawn.

The application is made as a result of the publication of certain material in the newspaper on 8 November 1995. By causing that material to be published the editor (Mr Hargreaves) and the journalist (Mr Blackhurst), and the newspaper itself, are said by the Attorney General to have acted

 

"in such a way ....... as to set at nought the basis upon which the Court of Appeal had made available the documents in question to the parties in the course of the Appeal and thereby interfer[ed] with the manner in which the Court of Appeal had decided that justice should be administered. (For the avoidance of doubt it is hereby alleged that the due administration of justice was interfered with in those proceedings)."

 

 

 

The appeal referred to was by Messrs Blackledge, Grecian, Mason and Phillips. They had all, in different capacities, been connected with Ordnance Technologies (Ordtech) Limited and had in February 1992 been convicted of conspiracy to export goods with intent to evade the prohibition on their export imposed by the Export of Goods (Control) Orders 1987 and 1989, which forbade the export of certain armaments to Iraq. The case for the prosecution was, in brief, that although applications had been made for licences to export the armaments in question to Jordan, the armaments had in fact (to the knowledge of the defendants) been intended for Iraq. When their trial was pending, these defendants had sought to obtain disclosure by the Crown of documents which would, as they contended, show that the British authorities had been well aware of what the defendants had been doing and had been content to turn a blind eye to their activities. It was, however, asserted on behalf of the Crown that there were no documents which supported this defence, and that there would have been no prosecution if there were. Having failed to obtain disclosure of documents essential to the running of this defence, and in the light of an indication by the trial judge that any prison sentence would be suspended, the Ordtech defendants decided to plead guilty to the counts against them, which they duly did.

In November 1992 a rather similar prosecution brought against defendants associated with a company known as Matrix Churchill collapsed when it became apparent that the British authorities had over a period failed to enforce restrictions on the export of military equipment to Iraq and had known that such material was being exported to Iraq via Jordan. The collapse of this trial was attended by intense publicity, fuelled by the revelation that ministers had signed public interest immunity certificates which, if accepted by the trial court, would have prevented disclosure of the equivocal role which the authorities had played. Such was the public anxiety aroused by these events that Sir Richard Scott was appointed to conduct an inquiry into the detailed history of the matter.

 

Spurred on by the collapse of the Matrix Churchill prosecution, the Ordtech defendants lodged notices of appeal in January 1993. In the first instance, counsel advising the Crown advised that certain documents were not relevant to the issues on the appeal but that they should be sent to the Court of Appeal Criminal Division in order that the court might itself determine whether the documents were relevant. In March 1993 a preliminary hearing was held before the court (Lord Taylor LCJ, Henry and Blofeld JJ) and the court ruled that all the papers in the case should be placed before it for private examination. There was a long delay before this was done, largely because the appeal was adjourned pending the outcome of the Scott Inquiry. In April 1995 fresh counsel now instructed for the prosecution advised that certain documents should be served on the appellants, and as a result disclosure of some non-sensitive documents was made. There were, however, other documents of greater sensitivity, and public interest immunity certificates were signed in relation to them. In July 1995 a bundle was prepared containing these documents so certified, and copies were sent to the members of the Court of Appeal. The documents were highlighted in such a way as to indicate those parts of the documents which the Crown suggested should be redacted (or edited) before the documents were disclosed to the appellants. On 17 July 1995 the court sat in camera to consider the disclosure issue. Giving judgment in open court, the Lord Chief Justice indicated that most of the documents in the PII bundle were to be disclosed, subject to the redactions sought by the Crown and to the disclosure of summaries of certain of the security documents. The Lord Chief Justice added:

 

"I think that is all I need to say, subject to this, that the documents will be provided, but it is on the basis that they must not be retained, and no copies retained, after the proceedings. Subject to that, that disclosure will be ordered."

 

 

 

Prosecuting counsel then invited the Lord Chief Justice to state that the documents were only for use in connection with the appeal, and in response the Lord Chief Justice said:

 

"Yes, I am sorry, I should have said that. Only for use in connection with the proceedings and to be returned. ........."

 

 

 

The outcome of this hearing was reported in the Independent on the following day, in a news story not written by Mr Hargreaves or Mr Blackhurst. The Court of Appeal was said to have quashed the Government's "gagging orders" in the Ordtech case. Some of the observations of the Lord Chief Justice were quoted, and (with reference to him) the article said:

 

"He added that the material was for use in connection with the proceedings and, apparently referring to the prospect of leaks to the media, warned appellants that the papers could not be retained after the appeal had been concluded".

 

 

 

The appeal was heard on 30 and 31 October 1995 by Lord Taylor LCJ, Macpherson and Maurice Kay JJ. For purposes of this hearing the parties and the members of the court were supplied with a bundle of PII documents, many of them in redacted or summarised form. The hearing was in open court and no order was made under section 11 of the Contempt of Court Act 1981.

On 7 November 1995 the court gave judgment, allowing the defendants' appeals and quashing the convictions. The court held that the documents disclosed to the court on the hearing of the appeal should have been made available to the defendants before the trial, and that the failure to disclose them amounted to a material irregularity which rendered the convictions unsafe. It is quite plain that these documents, and their contents, lay at the heart of the appeal. In the course of its judgment the court referred to documents in the files of the Ministry of Defence, the Foreign & Commonwealth Office and the Security Services and said:

 

"A large number of documents from those sources as well as from the DTI files, from the Matrix Churchill case and from the Scott Inquiry are now before the court. Many have, since the trial, been voluntarily disclosed in full. Others were the subject of public interest immunity certificates signed by ministers but only for the purpose of excising sensitive references and names which do not affect the issues in this case. With minor adjustments, we approved the disclosure of the documents as proposed in the PII Certificates. What the documents revealed in broad terms can be summarised without extensive citation."

 

 

 

In summarising the facts, the court made reference to a telegram (described as "most striking") from the British Embassy in Amman to the FCO. It quoted the following passage from paragraph 7:

 

"Are we trying to ensure that the problem does not arise again by putting a stop to further Jordanian involvement in Iraqi procurement? Have we not turned a blind eye to Jordanian involvement in the past? (The Ambassador thinks that this has been the case)."

 

 

 

The court also quoted part of a summary of an intelligence report in these terms:

 

"The main report said that the firm later identified as Ordtech had been seeking proximity fuses from Iraq for an unidentified client, sponsoring Iraqi visits to the UK for assembly line evaluation and training, and sending items to Iraq probably for an exhibition. It also referred to the planned shipment of an assembly line on 3 November 1989 for which Ordtech was to be paid and an inability by Iraq to supply Ordtech with an End-User Certificate for fuses".

 

 

 

After the judgment had been read, an exchange took place between prosecution counsel and the Lord Chief Justice on which the present application largely turns:

 

"MR LAWSON:My Lord, may I simply remind the parties that your Lordship directed on 17 July that documents which were disclosed were disclosed for the purposes of the appeal only and were to be returned, together with any copies, at the completion of the appeal proceedings. This being the completion, and there being no prospect whatsoever of any attempt by the Crown to appeal against your Lordships' judgment, I ask that those documents be returned?

 

LORD CHIEF JUSTICE: Yes, we make that order and wish stress that on a couple of occasions during the somewhat chequered history of this case orders to that effect have not been observed to the letter. If that were to happen again now, the matter would be referred to the Attorney General, so I hope that we will not see any more of the documents appearing on television or in the newspapers."

 

 

 

Copies of the written judgment were made available after it had been delivered, and Mr Hellier, who attended on behalf of the newspaper, obtained one. He heard the exchange between counsel and the Lord Chief Justice which we have quoted, but he made no note of it and he was not a court reporter. He telephoned the newspaper to report the outcome of the appeal, and mentioned when doing so that the Lord Chief Justice had made an observation about the documents in the case.

When Mr Hellier returned to the office of the newspaper, he was questioned by Mr Blackhurst and Mr Hargreaves about the Lord Chief Justice's observation. They wanted to know what exactly the Lord Chief Justice had said, and whether his observation was directed only to the parties or to the media also. It does not appear that they found Mr Hellier's answers at all clear, although he may well have indicated that the observation was addressed to counsel for the appellants and that no order addressed to the media had been made. It does not appear that he mentioned the order of 17 July, to which counsel had referred, or the remarks of counsel to which the Lord Chief Justice had responded.

The newspaper was of course free to report the judgment delivered in open court, and to comment as it thought fit. In the ordinary way the precise effect of what the Lord Chief Justice had said might not have been of great significance to the newspaper. It so happened, however, that on the day before judgment was delivered Mr Blackhurst had obtained, from a source known to him and believed by him to be independent of the Ordtech appellants and their legal advisers, a set of papers relating to the Ordtech case. It was apparent to Mr Blackhurst when he read these papers at home on the evening of 6 November 1995 that some of the documents were subject to redactions and some were in summarised form. It is now evident that these documents came from the PII bundle, directly or indirectly, although not necessarily from any of the Ordtech appellants or their legal advisers. Mr Blackhurst appreciated that these documents were of potential interest to those following the Ordtech appeal, and the arms to Iraq controversy more generally, and accordingly took them to the office with him on the morning of 7 November and showed them to the news editor and later to Mr Hargreaves. It is plain from the evidence that Mr Blackhurst, and the news editor and Mr Hargreaves, were anxious to consider publishing some of these documents or parts of them as part of the coverage of the Ordtech appeal, if they could properly do so. But both Mr Blackhurst and Mr Hargreaves were unclear, as a result of what Mr Hellier had reported, whether the newspaper was free to publish or not. Mr Blackhurst was accordingly anxious to clarify exactly what the Lord Chief Justice had said, and to that end telephoned the appointed court shorthand writers to obtain a transcript; he was told that this could not be provided that day. He therefore telephoned the office of the Lord Chief Justice, and was put through to Ms Hilary Adams, who was then acting as Deputy Registrar of Criminal Appeals and was the case lawyer dealing with the Ordtech appeal. According to her evidence on affidavit, Mr Blackhurst posed a hypothetical question whether, if the newspaper had possession of documents in the Ordtech case, it could print a document from which the Lord Chief Justice had quoted during the course of the judgment of the court. He said (on her account) that he was seeking to print the part of the document containing the words quoted. According to her, she informed him that the Lord Chief Justice had made comments at the end of the judgment which, whilst appearing to be directed to counsel, would have been heard by the journalists present. Mr Blackhurst's recollection is that Ms Adams indicated that the Lord Chief Justice had been directing his remarks to the parties to the appeal and had warned them that the documents had only been disclosed for purposes of the appeal, and if they breached the order, he would be writing to the Attorney General. She indicated that there had been no order but that a wise reporter would only use material referred to in the judgment. Ms Adams did not mention the order of 17 July. The conversation left Mr Blackhurst unclear what the effect of the Lord Chief Justice's observations had been, and he asked her to make further inquiries. Ms Adams' impression was that Mr Blackhurst wished her to consult the Lord Chief Justice, but this was not something which she considered it appropriate to do. Later that afternoon, between about 2.30 p.m. and 3 o'clock, Mr Blackhurst and Ms Adams spoke again; she added nothing of substance to what she had said before.

In the course of the afternoon Mr Hargreaves and Mr Blackhurst read the material circulated by the Press Association relating to the Ordtech appeal judgment. They found no reference to the observations of the Lord Chief Justice and an oral enquiry to the Press Association (if made) yielded nothing. Shortly after 5 p.m., the newspaper made a further call to the office of the Lord Chief Justice. This time the caller (who was neither Mr Blackhurst nor Mr Hargreaves) spoke to Mr Edward Adams, the private secretary to the Lord Chief Justice. He was asked if he could clarify remarks made earlier that day in the Ordtech case by the Lord Chief Justice. He said that he could not, for reasons which he gave. He added that if the caller wanted confirmation of any order that had been made, he should speak to the Registrar of Criminal Appeals and that, if he wanted advice on the effect of an order, he should consult a lawyer. Mr Adams deposes that the caller was persistent in his questions, but that he himself did not elaborate.

The report of the appeal judgment published by the newspaper on 8 November 1995 was very largely written by Mr Blackhurst, but the publishing decisions were taken by the editor and he accepts full responsibility for them. There were two parts of this report which found the present application:

 

(1) The report included a facsimile of part of the summary of the intelligence report from which the Lord Chief Justice had quoted in the judgment of the court. The following additional material appeared:

 

"CONFIDENTIAL

 

SUMMARY OF INTELLIGENCE REPORT (folios 25 - 26)

 

The fourth intelligence report distributed on 2 January 1990 went to various UK Departments and Agencies, but not to HM Customs and Excise until July 1990, or to DTI at all, provided information about Iraq's procurement of an assembly line for fuses through an international consortium including British companies who by convention were not specifically identified. However they were named in a separate follow-up report; one was ORDTECH. The main".

 

 

 

The facsimile as published ended with the two opening words of the quotation included in the judgment. It was only because the newspaper was in possession of the documents obtained by Mr Blackhurst that it was able to publish this facsimile.

 

(2) The second publication was of a facsimile of part of the Amman telegram from which the court had quoted in its judgment. In addition to the words quoted in the judgment the newspaper included the immediately following passage which read:

 

"ARE WE ABSOLUTELY SURE THAT THE FUSES IN QUESTION HAVE BEEN FOR IRAQI USE (THE AMBASSADOR'S PARA. 6)? ARE WE SURE THAT THE SECRETARY OF STATE'S MENTIONING THIS MATTER DURING HIS VISIT THIS WEEK WILL NOT BE ENOUGH?"

 

 

 

The summary of the intelligence report was not reproduced in the newspaper in its redacted form, but the Amman telegram was. The Attorney General complains of the inclusion in the report of words not included in the judgment, because these were derived from the documents held by the newspaper, but in particular the Attorney General complains of the publication of facsimiles of parts of these two documents.

 

 

The actus reus of contempt

 

The Attorney General accepted that the order made by the court on 17 July 1995 had not been made against the world at large or against the media. He accordingly accepted that the respondents were not directly bound by it. He did not suggest that the Ordtech appellants or their legal advisers had broken the order made against them, and accordingly accepted that there was no suggestion of the respondents aiding and abetting a breach by the parties directly bound. The submission made by Mr Philip Havers QC on his behalf was that if a third party, with the requisite knowledge and intent, so acts as to frustrate or undermine or set at nought the basis upon which a court has determined that justice should be administered, such third party is guilty of contempt because he thereby interferes with the due administration of justice. That, it was submitted, was what these respondents had done.

In support of his submission Mr Havers relied on the judgments of the Court of Appeal in Attorney General v Newspaper Publishing plc [1988] Ch.333. In that case, at page 369H, Sir John Donaldson MR said:

 

"The court is entitled to administer justice in whatever way it considers appropriate, although this is, of course, governed by precedent and principle. ..... Having once determined how justice was to be administered, any interference with that course of action would be unlawful and punishable as a contempt."

 

 

 

At page 372C, he added:

 

 

 

"The test of contempt or no contempt in that category is not inconsistency with the purpose of the court's order; it is in every case, and whether or not there is an order, simply whether the alleged contemnor knowingly interfered with the due administration of justice by the court."

 

 

Our attention was also drawn to the approval, at page 380F, by Lloyd LJ of a statement of the law in Arlidge and Eady, The Law of Contempt (1982) in these terms:

 

"Since the test of contempt is not breach of the order but interference with the administration of justice, it follows that at common law a contempt may be committed even if no specific order has been made by the court affecting anyone other than those involved in the proceedings. At common law, if the court makes an order regulating its own procedure and the purpose of the order is plainly to protect the administration of justice, then anyone who subverts that order will be guilty of contempt."

 

 

 

Balcombe LJ shared the view that conduct which interfered with the administration of justice was capable of constituting a criminal contempt of court: see page 387G. In Attorney General v Times Newspapers Limited [1992] 1 AC 191, the House of Lords supported this decision of the Court of Appeal. At page 206G, Lord Brandon said:

 

"It seems to me, as a matter of principle that, if C's conduct in knowingly doing acts which would, if done by B, be a breach of the injunction against him, results in impedance to or interference with the administration of justice by the court in the action between A and B, then, so far as the question of C's conduct being a contempt of court is concerned, it cannot make any difference whether such conduct takes the form of aiding and abetting B on the one hand or acting solely of his own volition on the other."

 

 

 

In the light of this authority Mr Charles Gray QC for the respondents inevitably accepted that a person may be liable for contempt even though he is not directly bound by an order of the court and has not aided or abetted the party primarily so bound. He did however submit that this authority represented an extension of the law as it had previously been understood, and he urged the court to be slow in extending the law still further, since any such extension encroached on fundamental rights of free expression and tended to inhibit the exercise by the media of their proper function of informing the public.

More specifically, Mr Gray submitted that a third party should not be held liable for contempt in acting inconsistently with an order of the court unless the order is clear and precise both in its effect and its scope. He relied on statements of principle in Re L (a minor) (wardship: freedom of publication) [1988] 1 All ER 418; Thomas v Mould [1968] 2 QB 913; and Sunday Times v The United Kingdom (1979) 2 EHRR 245. We find it unnecessary to cite from these authorities. It seems to us clear that no one should be in peril of suffering a criminal penalty for contempt unless the order which he is said to have infringed is clear.

Mr Gray went on to submit that it was not any conduct inconsistent with an order of the court which would support a finding of contempt against a third party, as the Attorney General had argued. To be criminally contemptuous, he submitted, conduct had in a substantial way to defeat, frustrate, undermine, nullify or set at nought the object which the court had sought to achieve by making its order. He drew attention to the language used in Attorney General v Leveller Magazine Limited [1979] AC 440 by Lord Diplock at 452A, Lord Dilhorne at 456F, Lord Edmund-Davies at 465C, and Lord Scarman at 469E and 473G. He placed further reliance on the expressions used in Attorney General v Newspaper Publishing plc, above, by Sir John Donaldson MR at 372D and Lloyd LJ at 378D and 380B, and on the agreement of Balcombe LJ at 387E. Lastly, he relied on the speeches in Attorney General v Times Newspapers Limited, above, by Lord Brandon at 205F and 207A, Lord Ackner at 214G and 215H, and Lord Oliver at 218E. The true principle, Mr Gray submitted, was perhaps best stated by Lord Oliver at page 222B where he said:

 

"Once the conclusion is reached that the fact that the alleged contemnor is not party to or personally bound by the court's order then, given the intention on his part to interfere with or obstruct the course of justice, the sole remaining question is whether what he has done has that effect in the particular circumstances of the case. .......

 

For my part, I doubt the value of cataloguing a series of hypothetical circumstances which can do no more than serve as illustrations of conduct which can or may fall on one side of the line or the other. I think that a more dependable guide is to be found in the way in which the gravamen of the offence is expressed in the respondent's case and which, I think, must be based upon the speeches in this House in the Leveller Magazine case [1979] AC 440: "The publication ..... frustrates, thwarts, or subverts the purpose of the court's order and thereby interferes with the due administration of justice in the particular action." "Purpose", in this context, refers, of course, not to the litigant's purpose in obtaining the order or in fighting the action but to the purpose which, in seeking to administer justice between the parties in the particular litigation of which it had become seized, the court was intending to fulfil."

 

 

 

When the court ordered the Crown to disclose the PII documents to the Ordtech appellants on 17 July 1995, it expressly ordered those appellants to return the documents at the conclusion of the appeal without keeping copies, and to use the documents only in connection with the appeal. In attaching those conditions we do not think that the court was primarily concerned with protection of national security, since it seems to have been thought that in their redacted and summarised form the documents contained no disclosure which presented a threat to national security. The court was, we infer, concerned to ensure, as is usual in any case involving the compulsory disclosure of confidential documents, that the disclosure should be no wider than was necessary to promote the just determination of the proceedings. The court may have wished to prevent the issues being fully ventilated, with reference to the documents, in the media before the appeal was heard, but if so this would have been a subsidiary object. The order was, as is accepted, directed to the appellants and their legal advisers and was not in its terms expressed to bind anyone who might succeed in obtaining the documents from any other source.

We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party's interference with the administration of justice. It is not in our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.

Mr Gray submitted that the breaches committed by the respondents in this case were in truth very minor. We agree. Although the newspaper reproduced two sentences from the intelligence summary which the court did not cite in its judgment, it is very hard to conceive how the publication of these two additional sentences caused any harm to any one. The same is true of the additional sentence published from the Amman telegram, which must in all probability have been read in open court during the proceedings. The real complaint of the Attorney General related not to publication of the additional words but to reproduction of the form of the documents over the dissemination of which the court had intended to retain control. We remind ourselves that these are criminal, or quasi-criminal, proceedings. We do not conclude that reproduction of the form of these documents amounted to a significant interference with the administration of justice.

Mr Havers submitted, and Mr Gray accepted, that the administration of justice is to be regarded as a continuing process, and there can be a threat to it even after the final resolution of particular proceedings. This is plainly correct. Where an order is made for the protection of an identifiable interest, it may very well be necessary to continue to protect that interest even after the termination of proceedings. The court may well wish to reassure the public that its orders will be respected. This does not however lead to the conclusion that any conduct inconsistent with a court order must be regarded as contemptuous even where no significant damage of any kind is done by that conduct.

 

 

Mens rea

 

Both parties accepted the test propounded by Sir John Donaldson MR in Attorney General v Newspaper Publishing plc, above, at page 374H. To show contempt, the Attorney General must establish, to the criminal standard of proof, that

 

"the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire: see per Lord Bridge of Harwich in Reg. v Moloney [1985] AC 905, 926."

 

 

 

Mr Havers invited the court to conclude, on the evidence, that even before Mr Hellier reported on the outcome of the appeal, Mr Hargreaves and Mr Blackhurst were aware of and had in mind the terms of the order made by the court on 17 July 1995. They both knew that the court had in July made documents subject to PII Certificates available to the appellants, but denied that they had ever known of the full terms of the order or of any restrictions imposed upon the appellants. Neither of them had in mind the news report published by the newspaper on 18 July 1995, or had occasion to refer back to it. Each of them gave reasons why he would not have had occasion to familiarise himself with the terms of the order. Having studied the written evidence with care, and having heard both Mr Hargreaves and Mr Blackhurst closely but fairly cross-examined, we are in no doubt that their denials are truthful and accurate.

We have had more difficulty in deciding what exactly Mr Hellier communicated on 7 November 1995. According to his affidavit, he reported the exchange which had taken place in court. There is, however, considerable doubt whether he reported what counsel had said at the conclusion of the judgment, including the reference to the order of 17 July, and on balance we are inclined to think that he did not. While the evidence is clear that he alerted Mr Blackhurst and Mr Hargreaves to the making of a statement about the documents by the Lord Chief Justice, we think it likely that he left them uncertain what the effect of the order had been. That, as we think, is why they went to the lengths they did in order to try and obtain an answer to that question. The first, and obvious, step was to obtain a copy of the transcript of what had been said. That proved impracticable in the time available. Their approaches to the office of the Lord Chief Justice, although in the event unfruitful, in our view represented a genuine and bona fide attempt to ascertain whether there was any restriction on publication. If they had suspected that the court had restrained publication, but intended to publish anyway, it seems to us most unlikely that they would have initiated an approach which would in all probability have made publication very much more hazardous. It seems to us significant that Ms Adams, who had also been in court when judgment had been given, did not mention the order of 17 July, or the existence of any previous order. Although Ms Adams appears to have indicated that the documents had been disclosed only for the purposes of the appeal, she stopped short (understandably enough) of telling Mr Blackhurst that there should be no publication of any documents they might possess. In tacitly inviting Ms Adams to seek the instructions of the Lord Chief Justice, it seems to us that Mr Blackhurst was approaching as close to the fountain-head as he felt able. By late afternoon on 7 November, when the final decision to publish was taken, we conclude that Mr Hargreaves was uncertain what the effect of the order had been, but that he did not understand that any order had been made binding on the press. Had he been aware of the full terms of what the Lord Chief Justice had said, he might still have taken the same view, since the order made was primarily directed to ensuring that the appellants and their legal advisers did not leak documents for publication in the press. Be that as it may, we conclude that Mr Hargreaves believed that the newspaper could properly publish extracts from documents quoted in the judgment of the court without infringing any order it had made.

When the court saw what the newspaper had published on 8 November 1995, the natural inference was that the appellants or their advisers had breached the order which the court had made binding upon them, and that the newspaper had aided or abetted that breach. We are not at all surprised that the Lord Chief Justice invited the Attorney General to look into the matter, and we regard this as a proper application for the Attorney General to have made in performance of his public duty. We are indeed grateful to him for bringing this matter before the court. Having, however, had the opportunity to consider the evidence in detail, with the benefit of most helpful submissions on both sides, we conclude that neither the actus reus of contempt nor the requisite mens rea is established. We accordingly dismiss this application.

 

MR RUSHBROOKE: My Lord, I ask for an order that the costs be paid either by the Attorney General or out of central funds and in favour of not just the first three respondents, but the fourth respondent, David Hellier, as well. I am instructed on his behalf today. My Lord, may I, first of all, apologise on behalf of my learned leader, Mr Gray, who is unable to attend.

THE LORD CHIEF JUSTICE: There is no need to apologise, Mr Rushbrooke. We listed this case knowing that Mr Gray was unavailable. He could not possibly be expected to be available with no notice.

MR RUSHBROOKE: My Lord, the position about costs is that I had thought ‑‑ wrongly it seems ‑‑ that there was no jurisdiction for an order that costs be paid out of central funds. I have spoken to my learned friend Mr Burnett, who helpfully tells me that he believes that this is a matter that is covered by the Prosecution of Offences Act and therefore the appropriate order, if your Lordship is minded to make it, is an order that costs be paid out of central funds.

My Lord, as regards the first three respondent, I do not anticipate that there is much scope for contention on the subject of costs. As regards Mr Hellier, the position is that he at, I believe, the beginning of February took the decision to have separate legal representation. It was felt at that time that there was a risk of a possible conflict and on that basis he instructed separate solicitors. This was at about the beginning of February. It was not until, as I understand it, 3 April that the Attorney General notified his intention no longer to continue as against Mr Hellier. There is, therefore, a costs liability.

THE LORD CHIEF JUSTICE: Was Mr Hellier incurring this costs liability out of his own pocket, or was the newspaper standing behind him?

MR RUSHBROOKE: My Lord, in the case of all three individual respondents, it is right that your Lordship should know that the corporate respondent did agree to stand behind all of them as far as costs exposure was concerned. Nevertheless, I am instructed that so far Messrs Bindmans are concerned Mr Hellier would ultimately be liable for their costs. What puts Mr Hellier in a different boat is that he has different solicitors.

THE LORD CHIEF JUSTICE: Presumably the costs are fairly minimal?

MR RUSHBROOKE: My Lord, I am not sure that they are that minimal. There was a conference with Leading Counsel.

THE LORD CHIEF JUSTICE: Different Leading Counsel?

MR RUSHBROOKE: With different Leading Counsel, indeed. It was Lord Williams. And there was the necessity to swear evidence. I do not have an exact figure but, my Lord, I am not sure that it would be fair to say that they are minimal.

THE LORD CHIEF JUSTICE: I am not suggesting that they were £5 or £10.

MR RUSHBROOKE: My Lord, that is my application.

THE LORD CHIEF JUSTICE: Mr Havers, we have had the opportunity of considering this. I think we would all be pleased to hear that we have jurisdiction to order costs out of central funds. On the one hand, we think it right that these respondents, having been successful, should not be out of pocket. On the other hand, as the last paragraph of our judgment, I hope, makes clear, we would not wish to suggest that the Attorney General has not done his public duty by bringing this matter before us. I think my predecessor would have been a little aggravated if he had not brought the matter before the court. Do you resist an order out of central funds?

MR HAVERS: No, my Lord.

THE LORD CHIEF JUSTICE: All four respondents should be indemnified ‑‑ by indemnified I mean that they should receive their costs out of central funds.

Very well, Mr Rushbrooke, we will make an order that all four respondents will have their costs out of central funds, to be taxed if not agreed on the usual basis.

We are very grateful to counsel on both sides.

 

 

 

_______________________________________