Tomlinson- AG v Times
Donald ramsbottom
donald at ramsbottom.co.uk
Sat, 03 Feb 2001 10:48:40 +0000
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 Longmore
Judgment 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
Ramsbottom & Co Solicitors
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