The Court of Appeal (Lord Justices Phillips and Longmore) has just given judgment in favour of Punch and its former editor James Steen in their appeal against a High Court finding that they were in contempt of court in publishing allegations made by former MI5 officer David Shayler (Attorney General v Punch Ltd and Another).
The Attorney General contended
that Punch, in failing to make all the amendments he had requested to an article by Shayler, had knowingly published in breach of injunctions obtained in 1997. The purpose of those injunctions was to prevent the publication of any information from Shayler which might be damaging to national security. By publishing Shayler’s article, it was argued that Punch and its editor had interfered with the administration of justice.
The Court of Appeal held, however, that the proposition that it was open to the courts to render it a criminal offence (through a finding of contempt) for a newspaper to fail to obtain clearance from the Attorney General before publishing material to which there might not be the slightest grounds for objection, would constitute a restriction on the freedom of the press which was disproportionate to the public interest.
Such a restriction would be in breach of Article 10 and an unwarranted extension of the law of contempt beyond the principle that it was an offence intentionally to interfere with the administration of justice.
Otherwise there would have been censorship of the press by the Attorney General, a principle with which the Court of Appeal recently disagreed in Attorney General v Times Newspapers Ltd.
In that case it was held that it would have been inappropriate to have required The Sunday Times to obtain clearance from the Attorney General before publishing extracts from Richard Tomlinson’s book. It was sufficient if the editor believed that the information was already available to the public.
In the Punch case, the Court of Appeal held that the Attorney General had failed to prove that there was intentional interference with the course of justice in aiding and abetting a breach of the injunction by Shayler. The evidence did not show that the editor knew that the information had not been published before and might be a threat to national security. Lord Justice Simon Brown dissented.
Jennifer McDermott is a media partner at Lovell White Durrant
By Jennifer McDermott