8 March 2001: Link to court order dismissing appeal.
3 February 2001
Date: Sat, 03 Feb 2001 10:48:40 +0000
To: ukcrypto@chiark.greenend.org.uk
From: Donald ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: Tomlinson- AG v Times
Been away for a few days, I do not recall seeing this the Tomlinson case,
if it's been put up before, sorry for repitition. As ever with Cases, ignore
if not interested. It is from the Times Law report.
Attorney-General v Times Newspapers Ltd and Others Before Lord Phillips, Master of the Rolls, Lord Justice Tuckey and Lord Justice LongmoreJudgment
January 25, 2001
Where a newspaper was subject to an undertaking not to publish information disclosed by a former employee of the British Secret Intelligence Service except to the extent that the information was in the public domain, it was not appropriate for the court to insert into the undertaking a requirement that the newspaper seek the confirmation of the Attorney-General or the court that facts which it intended to publish had been sufficiently brought into the public domain.
The Court of Appeal so held, dismissing an appeal by the Attorney-General against the order of Mr Justice Eady on January 19, 2001, whereby he varied an undertaking given to the court on November 14, 1996 by the defendants, Times Newspapers Ltd and two journalists of The Sunday Times, Mr Tim Kelsey and Mr David Leppard, not to publish information about the SIS disclosed to them by Mr Richard Tomlinson.
In 1996 the defendants published a series of articles in The Sunday Times containing information about the SIS which had been divulged to them by Mr Tomlinson, a former SIS employee.
On November 14, 1996, in the course of proceedings brought against them by the Attorney-General, the defendants, inter alia, undertook not to publish any information obtained by them from Mr Tomlinson in relation to security or intelligence, that is, in relation to the work of or in support of the SIS, such information having been received by Mr Tomlinson in the course of or as a result of his employment in the SIS.
A proviso to the undertaking provided, inter alia, that “nothing in this undertaking prevents the defendants from re-publishing anything which has previously been published in The Sunday Times or in any other national newspaper...”
On January 11, 2001 the defendants applied to vary the proviso to permit them to publish extracts of a book about the SIS, written by Mr Tomlinson and published in Russia, once the book had become generally available to the public and had thus entered the public domain.
On January 19, 2001, Mr Justice Eady permitted a variation to the proviso in the following terms: ”Nothing in this undertaking prevents the defendants from re-publishing anything which at the date of publication by (them): (i) has previously been published in The Sunday Times or in any other national newspaper; or (ii) has previously been published in any newspaper, magazine or other publication generally accessible to the public at large whether within or outside the jurisdiction of the court (other than in a case where the only such publication was made by or was caused by the defendants) ... or (iii) has previously been published or made generally accessible to the public at large on, by or through the Internet or other electronic medium (other than a case where the only such publication was made or was caused by the defendants...).”
The Attorney-General appealed on the ground, inter alia, that the words “generally accessible to the public at large” were too wide and should read “in circumstances where the defendants can demonstrate that the publication has come to the widespread attention of the public at large...”
Mr Jonathan Crow and Mr Nicholas Caddick for the Attorney-General; Mr Michael Tugendhat, QC and Mr Iain Christie for the defendants.
THE MASTER OF THE ROLLS said that happily, in the course of argument, it had become apparent that there was a formula that was satisfactory to the parties. Subject to one important matter the agreed variation allowed publication “to such an extent that the information is in the public domain”.
But the bone of contention remained whether the relevant formula in the proviso should be preceded by the phrase “where the defendants can demonstrate that...”
Mr Tugendhat, inter alia, invited the court’s attention to article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and submitted that the clause proposed by the Attorney-General would constitute an unjustified fetter on the right to freedom of expression on the part of the newspaper which had a right to impart information and the public which had a right to receive it. He also relied on section 12 of the Human Rights Act 1998.
Mr Tugendhat recognised that article 10.2 permitted, in the circumstances there specified, a restriction on the right to freedom of expression. But he submitted that the restriction proposed by the Attorney-General was disproportionate and could not be justified in the public interest in a democratic society.
It was desirable that there should normally be consultation between a newspaper and representatives of the SIS before the newspaper published information that might include matters capable of damaging the service or endangering those who served it.
However, his Lordship did not think it right to impose on the defendants the requirement that they should seek confirmation from the Attorney-General or the court that facts that they intended to re-publish had been sufficiently brought into the public domain by prior publication so as to remove from them the cloak of confidentiality. That was a matter on which an editor would be in a position to form his own judgment.
That was consonant with article 10 of the Convention and section 12 of the 1998 Act.
The terms of the agreed restriction, excluding the additional condition that the Attorney-General had sought to insert, would impose on the defendants a duty to the court to comply with the law of confidentiality, with the sanctions that existed for contempt of court should they not do so.
His Lordship agreed with Mr Justice Eady that it was not appropriate that the defendants should be subject to a fetter on the freedom of expression that went beyond that.
Lord Justice Tuckey and Lord Justice Longmore agreed.
Donald Ramsbottom BA LLb (Hons) PGdip
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