V. Evans (1985)). In Spycatcher, serious iniquity was not established

and it remains to be seen whether ‘iniquity’ overrides national security.

The method of disclosure must be reasonable and the discloser must

probably complain internally before going public (Francombe v.

Mirror Group Newspapers (1984)). This suggests that a high standard

of evidence is required given that Spycatcher involved allegations of

criminal activity against security service members including a plot to

destabilise the Labour government.

The Public Interest Disclosure Act 1998 protects employees against

unfair dismissal who disclose information to a minister or to a person

prescribed by a minister relating to criminal offences, breaches of legal

duties, miscarriages of justice, danger to health and safety or danger to

the environment. However, there is no protection where the disclosure

is an offence, for example under the Official Secrets Act 1989 (see

above), and employees working in national security areas can be

excluded (s. 11). Exceptionally an employee can make a disclosure to

560 General Principles of Constitutional and Administrative Law

another person or even to the press. However, this must be reasonable

and applies only where either the matter is exceptionally serious or the

discloser reasonably believes either that s/he will be victimised or that

evidence will be concealed, or there is no prescribed person or the

matter has already been disclosed to the employer.

22.4.3 The press and breach of confidence

It was held in Spycatcher (see above) that a third party such as a

newspaper is bound by an obligation of confidence where it obtained

the information knowing of its confidential source. However, Lord

Keith distinguished between disclosure by the Crown Servant himself

and disclosure by the press. His Lordship emphasised the importance

of press freedom and took the view that, against the press, the Crown

must show a positive public interest in secrecy based on the contents

of the documents (see also Lord Advocate v. Scotsman Publications

(1990)). Against a Crown Servant, on the other hand, ‘the general

public interest in confidentiality and in encouraging other crown

servants to preserve it may be enough’. Moreover, in order to maintain

its right of freedom of expression under Art. 10 of the ECHR, a

newspaper is not required to obtain advance clearance from the gov-

ernment (A-G v. Times Newspapers (2001)).

Third parties are not directly bound by an injunction even if they are

aware that the material falls within it. A third party will be liable only if

it reveals information in such a way as knowingly to destroy the purpose

of the injunction (see A-G v. Punch Ltd (2001); A-G v. Times Newspapers

Ltd (1991)). However, a third party who has obtained the informa-

tion from a person bound by an injunction might be guilty of aiding

and abetting disobedience to an injunction (ibid.). In A-G v. Punch Ltd

(para. 121 ), the Court of Appeal left it open whether in a national

security case an injunction might be made binding on the whole world.

Under the common law the courts have been reluctant to protect

press sources on the Dicean ground that the press have no special

status in law. However, s. 10 of the Contempt of Court Act 1981 pro-

tects the anonymity of a publisher’s sources of information except

where the court thinks that disclosure is necessary on the grounds of

the interests of justice, national security or the prevention of crime and

disorder. Section 10 does not automatically require disclosure on these

grounds but permits the court to exercise a discretion between the

competing concerns.

On the whole the English courts have interpreted the exceptions

broadly against the press. In X Ltd v. Morgan Grampian Publishers Ltd

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(1991) the House of Lords held that a commercial interest in dis-

covering the source of a leak outweighed press freedom. This was

condemned by the European Court in Goodwin v. UK (1996) on the

ground that limitations on the confidentiality of journalistic sources

call for ‘the most careful scrutiny’. Moreover the interference was not

proportionate given that further dissemination of the leaked informa-

tion had been stopped. It has also been held that ‘necessary’ does not

mean essential but only ‘important’ (Re an Inquiry under the Companies

Securities (Insider Dealings) Act 1985 (1988)) and that, where national

security or wrongdoing are involved the court will usually order

disclosure (X Ltd v. Morgan Grampian Publishers Ltd (1991); Ashworth

Hospital v. MGN Ltd (2001)). However, in John v. Express Newpapers

Ltd (2000) which concerned the leaking of draft advice from a barrister,

it was held that a confidential source should be publicly disclosed

only as a last resort.

Section 10 cases provide a characteristic example of the subjective

accommodation inherent in human rights problems. It is not clear

what the overall criterion should be. Proportionality seems to be of

little help since, as Palmer (1992) points out, freedom of expression is

general and abstract whereas harm tends to be specific and immediate

thus favouring disclosure. It is not therefore surprising that judicial

attitudes differ.

22.5 Public Interest Immunity

An important aspect of government secrecy concerns the doctrine once

called ‘Crown privilege’ and now known as ‘public interest immunity’.

A party to a legal action is normally required to disclose relevant docu-

ments and other evidence in his possession, but where public interest

immunity applies, documents and the information in them must not be

disclosed. In deciding whether to accept a claim of public interest

immunity the court is required to ‘balance’ the public interest in the

administration of justice against the public interest, in confidentiality.

At one time the courts would always accept the government’s word

that disclosure should be prohibited. However, as a result of Conway

v. Rimmer (1968) the court itself now does the balancing exercise.

Public interest immunity applies both to civil and criminal pro-

ceedings. However, in criminal cases the claim is likely to succeed only

in exceptional circumstances (see R. v. Brixton Prison Governor ex parte

Osman (1992); R. v. Keane (1994); cf R. v. Horseferry Road Magistrates

562 General Principles of Constitutional and Administrative Law

Court (1993), Scott, 1996b). Any person can raise a claim of public

interest immunity. Claims are often made by ministers following a well-

established procedure involving advice from the Attorney-General

ostensibly acting independently of the government. PII is not a right

that can be voluntarily exercised but a duty that must be exercised even

against the interests of the person claiming it (see Makenjuda v.

Metropolitan Police Commissioner (1992)). However a minister is not

under a duty to make a claim whenever he believes that there is a public

interest at stake but must personally do an initial balancing exercise.

In R. v. Brown (1994) the court emphasised that it was objectionable

for a minister merely to be guided by the Attorney. Other persons are

probably required to put forward the claim to the court or to hand the

matter to a minister (see R. v. West Midlands Chief Constable ex parte

Wiley (1994)).

The person seeking disclosure must first satisfy the court that the

document is likely to be necessary for fairly disposing of the case, or in

a criminal case, of assisting the defence, a less difficult burden (see Air

Canada v. Secretary of State for Trade (1983); Goodridge v. Hampshire

Chief Constable (1999), Criminal Procedure and Investigations Act

1996 s. 3). The court can inspect the documents at this stage but is

reluctant to do so in order to discourage ‘fishing expeditions’ (see

Burmah Oil Co. Ltd v. Bank of England (1980)).

The court itself will then ‘balance’ the competing public interests

involved, at this stage inspecting the documents. In a criminal case, if

the government objects to the court looking at the documents, it must

normally abandon the prosecution (R. v. Ward [1993] 1 WLR 619,

681). A successful public interest immunity claim means that there is

unfairness to the individual which is outweighed by other more

important concerns. Moreover, before the Human Rights Act, at least

in civil cases, the court did not give special weight to the interests of

justice but applied a balance of probabilities test.

In both respects, therefore, public interest immunity seems to violate

the right to a fair trial in Art. 6 of the ECHR, particularly in criminal

cases (see Borgers v. Belgium (1991)). Article 6 contains no overrides

except to the extent that the press or public may in certain circum-

stances be excluded from a trial. Indeed in R. v. DPP ex parte Kebilene

(1999), Lord Bingham, remarked that ‘I can conceive of no circum-

stances in which, having concluded that that feature rendered the

trial unfair, the court would not go on to find a violation of Art. 6’.

In Kostovski v. The Netherlands, (1989), the European Court of

Human Rights refused to allow the state to protect the anonymity of

witnesses. It applied a test of whether the exclusion placed the accused

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State Secrecy

at a substantial disadvantage. The court emphasised that the right to a

fair trial ‘cannot be sacrificed to expediency’.

On the other hand, as long as the trial as a whole is fair with

‘equality of arms’ between the parties, particular aspects of it need not

be fair (Brown v. Stott (2001), Soering v. UK (1989)). The safeguards in

UK law, particularly the fact that the balancing must be carried out by

an independent court, create substantial protection for the individual

(see C v. S (1999)). Moreover the proportionality test now applies

which requires the government to show a pressing social need which

cannot be met by less intrusive means. This might well exclude claims

based for example on frankness and administrative efficiency (see

below). Any difficulties to the defence must also be counterbalanced

by other procedural measures (see Rowe v. United Kingdom (2000);

refusal to disclose evidence from police informers held unlawful).

Grounds for refusing disclosure include national security, the pro-

tection of anonymous informers (Rogers v. Home Secretary (1973);

D v. NSPCC (1978); cf. Alfred Crompton v. Customs and Excise (1974)