Law Report: 'Independent' was not in contempt of court

Attorney General v Newspaper Publishing plc; Court of Appeal (Criminal Division) (Lord Bingham, Lord Chief Justice, Mr Justice Latham and Mr Justice Poole) 25 April 1997

Conduct by a third party which was inconsistent with a court order in only a trivial or technical way did not amount to a contempt of court.

The Court of Appeal (Criminal Division) dismissed an application by the Attorney General for penalties for contempt of court to be imposed on Newspaper Publishing plc, Ian Hargreaves and Christopher Blackhurst.

The application was made as a result of the publication in the Independent on 8 November 1995 of facsimiles of parts of two documents referred to in the judgment of Lord Taylor CJ, delivered on 7 November 1995, in the appeals of William Blackledge, John Grecian, Bryan Mason and Colin Phillips against their convictions of offences in connection with the contravention of certain Export of Goods (Control) Orders by Ordnance Technologies Ltd ("the Ordtech appeal").

Mr Hargreaves and Mr Blackhurst were at the relevant time respectively editor of, and a journalist employed by, the Independent.

Philip Havers QC and Ian Burnett (Treasury Solicitor) for the Attorney General; Charles Gray QC and Justin Rushbrooke (Kingsley Napley) for the respondents.

Lord Bingham CJ said that the Ordtech appeal had concerned the export of arms to Iraq. Following the collapse of a similar prosecution in the Matrix Churchill case, the Ordtech defendants had launched their appeals. On 17 July 1995 the Lord Chief Justice had ordered the disclosure to the defence, for use only in connection with the proceedings, of certain redacted documents in respect of which public interest immunity certificates had been signed. He ordered that the documents be returned after the proceedings.

In giving his judgment in the appeal on 7 November the Lord Chief Justice had quoted from two of the documents. After the judgment he had ordered the return of the documents and observed that orders concerning them had not always been observed to the letter. Any further breach would be referred to the Attorney General.

On 6 November 1995 Mr Blackhurst had obtained, from a source believed to be unconnected with the Ordtech appellants and their advisers, a set of papers relating to the case, some of which were subject to redactions or in summarised form. The report in the following day's newspaper included facsimiles of parts of two of the documents quoted from in the judgment, and they were what founded the present application.

The Attorney General accepted that the order made on 17 July 1995 had not been made against the world at large or the media, and that the respondents were not, therefore, bound by it. He submitted, relying on Attorney General v Newspaper Publishing plc [1988] Ch 333, that if a third party, with the requisite knowledge and intent, so acted as to frustrate or undermine or set at nought the basis upon which a court had determined that justice should be administered, he was guilty of contempt because he thereby interfered with the due administration of justice.

The respondents accepted that in the light of that authority a person might be liable for contempt even though not directly bound by an order of the court. They submitted, correctly, that it was not any conduct inconsistent with a court order which would render a third party guilty of contempt.

Where it was sought to impose indirect liability on a third party, the justification for so doing lay in that party's interference with the administration of justice. It was not necessary to show that the administation of justice in the relevant proceedings had been wholly frustrated or rendered utterly futile, but there must have been some significant and adverse effect thereon.

The breaches committed by the respondents were in truth very minor. Reproduc-tion of the form of the documents did not amount to a significant interference with the administration of justice.

Although the application was a proper one for the Attorney General to have made in performance of his public duty, it must be dismissed.