CEDH · CASELAW;REPORTS;ENG — 12 juillet 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 13166/87   TIMES NEWSPAPERS Ltd and Andrew NEIL   against   the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 12 July 1990)                           TABLE OF CONTENTS                                                                 Page     I.       INTRODUCTION (paras. 1-13)                            1-3           A.   The application (paras. 2-4)                       1           B.   The proceedings (paras. 5-8)                      1-2           C.   The present Report (paras. 9-13)                  2-3   II.      ESTABLISHMENT OF THE FACTS (paras. 14-54)             4-17   III.     OPINION OF THE COMMISSION (paras. 55-89)             18-25           A.   Points at issue (para. 55)                         18           B.   As regards Article 10 of the Convention          18-23             (paras. 56-77)               a)   Interference with freedom of expression      18-19                 (para. 58)               b)   Prescribed by law                            19-20                 (paras. 59-63)               c)   Legitimate aim                                 20                 (paras. 64-65)               d)   Necessary in a democratic society            20-23                 (paras. 66-77)               Conclusion (para. 77)                              23           C.   As regards Article 13 of the Convention            23             (paras. 78-81)               Conclusion (para. 81)                              23           D.   As regards Article 14 of the Convention           23-24             (paras. 82-86)               Conclusion (para. 86)                               24           E.   Recapitulation (paras. 87-89)                       25   Concurring opinion of Sir Basil Hall                            26   APPENDIX I       History of the proceedings                    27-28   APPENDIX II      Decision on the admissibility                 29-46                 of the application     I.       INTRODUCTION     1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The application is brought by Times Newspapers Ltd and Andrew Ferguson Neil.   Times Newspapers Ltd publish "The Sunday Times", a national Sunday newspaper published in the United Kingdom (hereafter abbreviated to UK).   The Sunday Times' current circulation is about 1.3 million and it has a readership of several million in the UK and abroad.   Mr.   Neil is editor of The Sunday Times and a British citizen.   Before the Commission the applicants were represented by Messrs.   Theodore Goddard, Solicitors, London, in particular Mr.   M. Kramer, Solicitor, together with Mr.   A. Lester, QC, Counsel, Mr.   D. Pannick, Counsel, and Mr.   A. Whitaker, Legal Manager of Times Newspapers Ltd.   3.       The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr.   M. Wood of the Foreign and Commonwealth Office, Sir Patrick Mayhew, QC, MP, Attorney General, Counsel, Mr.   N. Bratza QC, Counsel, Mr.   P. Havers, Counsel, Mrs.   S. Evans, Home Office, and Mrs.   S. Marsh, Legal Secretariat to the Law Officers.   4.       The application concerns temporary injunctions preventing newspaper publication of details of the contents of the book "Spycatcher" by Peter Wright, a retired member of the British Security Service.   It raises issues under Articles 10, 13 and 14 of the Convention.   B.       The proceedings   5.       The application was introduced on 31 July 1987 and registered on 24 August 1987.   After a preliminary examination of the case by the Rapporteur, the Commission decided on 7 October 1987 to give notice of the application to the respondent Government, pursuant to Rule 42(2)(b) of its Rules of Procedure, and to invite the parties to submit their written observations on the admissibility and merits of the application.   On 4 February 1988 the respondent Government lodged their observations, after an extension of the time-limit for their submission.   The applicants replied on 21 March 1988.   6.       On 9 July 1988 the Commission decided to adjourn the examination of the case pending the final judgment of the House of Lords on the substantive issues raised by the application.   It also decided to invite the parties to submit any further comments they might have on the application in the light of that decision, which was expected, and was given, on 30 July 1988.   On 17 October 1988 the Commission confirmed this invitation to the parties.   The applicants submitted their further observations on 2 February 1989, followed by the Government on 10 February 1989.   7.       On 9 May 1989 the Commission decided to hold a hearing on the admissibility and merits of the application, to be joined with that of The Observer Ltd and Others and Guardian Newspapers Ltd and Others v. UK, Application No. 13585/88.   The hearing was held on 5 October 1989 with the parties represented as above (paras. 2 and 3).   Following the hearing and deliberations, the Commission declared the two applications admissible and disjoined them.   On 8 November 1989 the parties were sent the text of the Commission's decision on admissibility and they were invited to submit any further observations they might have on the merits of the case.   The Government submitted observations on 8 January 1990 to which the applicants replied on 15 March 1990.   The Government submitted further observations on 2 July 1990.   8.       After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reactions the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   9.       The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 M.    C.L. ROZAKIS                 Mr.   L. LOUCAIDES   10.      The text of this Report was adopted by the Commission on 12 July 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   11.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)   to establish the facts, and           2)   to state an opinion as to whether the facts found             disclose a breach by the State concerned of its             obligations under the Convention.   12.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   13.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   14.      The application concerns restrictions imposed on the publication of details about the book "Spycatcher" by Peter Wright.   15.      Mr.   Wright was for many years employed by the British Government as a member of MI5, a branch of the British Security Service.   He retired in 1976.   He now lives in Australia.   He decided to write his memoirs, including an account of what he claimed were illegal activities by the British Security Service in particular MI5. In those memoirs entitled "Spycatcher" (hereafter referred to as the book), Mr.   Wright alleged, inter alia, that MI5 conducted unlawful actitivies calculated to undermine the Labour Government of 1974-79, burgled and bugged the embassies of allied and hostile countries, planned and participated in other unlawful and covert activities at home and abroad and that Sir Roger Hollis, who led MI5 during the latter part of Mr.   Wright's employment, was a Soviet agent.   Mr Wright unsuccessfully sought to persuade the British Government to institute an independent inquiry into these allegations.   Such an inquiry was also sought by, amongst others, James Callaghan (Prime Minister 1976-79 and a senior member of the Cabinet of Harold Wilson 1974-76) and other prominent members of the Labour Government of 1974-79 including two former Home Secretaries, Roy Jenkins and Merlyn Rees. Part of the material in "Spycatcher" had already been published in a number of books about the British Security Service written by Chapman Pincher.   Moreover, on 16 July 1984 Mr.   Wright had given a lengthy interview to Granada Television in its "World in Action" programme about the work of the British Security Service.   The programme was shown again in December 1986.   Other books and another television programme on the workings and secrets of the Service were produced around the same time, but little Government action was taken against these authors or the media.   16.      In September 1985 the Attorney General of England and Wales (the Attorney General), on behalf of the UK Government, began proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Mr.   Wright's memoirs and of any information contained therein derived from his work for the British Security Service.   The evidential basis for the claim by the Attorney General was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, on 9 and 27 September 1985.   On 17 September 1985 Mr.   Wright and his Australian publishers, Heinemann Publishers Australia Pty Ltd. (Heinemann Australia), gave an undertaking not to publish pending the hearing of the British Government's claim for an injunction.   The British Government refused to indicate to Mr.   Wright and Heinemann Australia which parts of the book, if any, they wished to have "blue pencilled" as containing information damaging to national security.   17.      On Sunday 22 June 1986 whilst the Australian proceedings were still pending the Observer, and on Monday 23 June 1986 The Guardian, published short articles on inside-pages, giving details of some of the contents of Mr.   Wright's book.   These details included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers:           (i)    MI5 "bugged" all diplomatic conferences at Lancaster House in London throughout the 1950s and 1960s, as well as the Zimbabwe Independence negotiations in 1979.           (ii)   MI5 "bugged" diplomats from France, Germany, Greece and Indonesia, as well as the hotel suite of Mr.   Kruschev during his visit to Britain in the 1950s, and were guilty of routine burglary and bugging (including the entering of Russian consulates abroad).           (iii) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis.           (iv)   MI5 plotted against Harold Wilson during his premiership from 1974 to 1976.           (v)    MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain.   18.      The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against the Observer and The Guardian, as well as their editors and the two journalists who had written the articles, and on 27 June 1986 obtained ex parte interim injunctions to restrain further such publication by either newspaper pending the trial of the actions.   (Hereafter reference will only be made to the two newspapers and not all the individuals who were party to the proceedings.)   After an inter partes hearing on 11 July 1986, Mr.   Justice Millett (sitting in the Chancery Division of the High Court of Justice) varied these injunctions restraining publication.   The evidential basis for the claim by the Attorney General was the two affidavits sworn by Sir Robert Armstrong in the Australian proceedings.   19.      The Observer and The Guardian appealed the Order of Mr.   Justice Millett and, on 25 July 1986, the Court of Appeal dismissed their appeal and upheld the injunctions, with minor modifications.   Under the terms of the Orders The Guardian and the Observer were restrained from:           "1.      disclosing or publishing or causing or permitting to be         disclosed or published to any person any information obtained by         Peter Maurice Wright in his capacity as a member of the British         Security Service and which they know, or have reasonable grounds         to believe, to have come or been obtained, whether directly or         indirectly, from the said Peter Maurice Wright;           2.       attributing in any disclosure or publication made by         them to any person any information concerning the British         Security Service to the said Peter Maurice Wright whether by         name or otherwise."   20.      The Orders contained the following provisos:           "1.      this Order shall not prohibit direct quotation of         attributions to Peter Maurice Wright already made by         Mr.   Chapman Pincher in published works, or in a television         programme or programmes broadcast by Granada Television;           2.       no breach of this Order shall be constituted by the         disclosure or publication of any material disclosed in open         court in the Supreme Court of New South Wales unless prohibited         by the Judge there sitting or which, after the trial there in         action No. 4382 of 1985, is not prohibited from publication;           3.       no breach of this Order shall be constituted by a         fair and accurate report of proceedings in           (A)      either House of Parliament in the United Kingdom         whose publication is permitted by that House; or           (B)      a court in the United Kingdom sitting in public."   21.      In the judgment of the Court of Appeal interim injunctions restraining publication were granted because Mr.   Wright's book contained secret information which, in the view of the Court, might well cause damage to national security if disclosed.   The Appellate Committee of the House of Lords granted leave to appeal on 6 November 1986.   A hearing was eventually scheduled for November 1987, but the appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paras. 39-44 below).   22.      The trial of the British Government's action in Australia took place before Mr.   Justice Powell in the Equity Division of the New South Wales Supreme Court in November and December 1986.   Judgment was delivered on 13 March 1987.   Mr.   Justice Powell rejected the claim by the Attorney General against both Mr.   Wright and Heinemann Australia. Pending an appeal before the New South Wales Court of Appeal, Mr. Wright and his publishers gave undertakings not to publish.   The appeal was heard by the New South Wales Court of Appeal in the week commencing Monday, 27 July 1987.   Judgment was reserved.   23.      On 27 April 1987, The Independent newspaper published a major summary of certain of the allegations made in Mr.   Wright's book. Later the same day, The London Evening Standard and The London Daily News published reports of what had appeared in The Independent.   The next day the Attorney General applied for leave to move against the publishers and editors of those three newspapers for contempt of court (hereafter referred to as the Independent case).   Leave was granted on 29 April 1987.   In this application the Attorney General was acting independently of the Government in his capacity as "the guardian of the public interest in the due administration of justice" (judgment of the Master of the Rolls in Attorney General v.   Newspaper Publishing Plc and Others (1987) 3WLR 942 at p. 965H).   This is to be distinguished from his capacity as Government representative in the breach of confidence proceedings against the Observer and Guardian newspapers.   24.      Similar reports appeared in Australian and American newspapers: on 29 April 1987 in The Melbourne Age and Canberra Times, and on 3 May 1987 in the Washington Post.   25.      Following these British newspaper publications The Guardian and the Observer applied on 29 April 1987 to discharge the injunctions against them on the ground that there had been a significant change in circumstances since the injunctions had been granted against them in 1986.   26.      The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear those applications on 7 May 1987, but adjourned them pending the determination of a preliminary issue of contempt law raised in the Independent case.   He invited the Attorney General to pursue these latter proceedings in the same court as the former proceedings, the Chancery Division of the High Court.   This the Attorney General did on 11 May 1988.   On the same day, the Vice-Chancellor ordered the trial of the preliminary issue whether a publication made in the knowledge of an outstanding injunction against another party, and which, if made by that other party would amount to a breach of that injunction, constituted a criminal contempt of court for interfering with the process of justice concerning that injunction.   27.      Viking Penguin Incorporated purchased from Heinemann Australia the United States (hereafter abbreviated to USA) publication rights to the book and on 14 May 1987 Viking Penguin announced its intention of publishing the book in the USA.   28.      On 2 June 1987, the Vice-Chancellor decided the preliminary issue of law in the contempt proceedings.   He held that publication by The Independent and the two London newspapers could not amount to contempt of court because such publication was not a breach of the express terms of the injunctions against The Guardian and the Observer and to which injunctions the former had anyway not been a party.   The Attorney General lodged an appeal against the Vice-Chancellor's judgment.   On 15 June 1987 the Observer and The Guardian applied to have the hearing of their discharge application restored. Consideration of the discharge of the injunctions was, however, further adjourned pending the outcome of the Attorney General's appeal on the contempt issue in The Independent case, the hearing of which began on 22 June 1987.   29.      The Sunday Times purchased the British newspaper serialisation rights to the book from Heinemann Australia.   On 12 July 1987, The Sunday Times published the first instalment of extracts from the book. The newspaper explained that publication of the extracts was being timed to coincide with publication of the book in the USA, which was due to take place on 14 July 1987.   On 13 July 1987, the Attorney General commenced proceedings against the applicants, Times Newspapers Limited and Andrew Neil, for contempt of court.   On 14 July 1987, Viking Penguin published the book in the USA.   It was an immediate bestseller, some 310,000 copies having been printed in the USA, with its fifth print run by the date of the application to the Commission. A substantial number of copies were sold to British citizens visiting the USA or who purchased the book by telephone or post from bookshops in the USA. The British Government took no legal steps to attempt to restrain publication of the book in the USA or Canada, where it also became a bestseller.   Immediately after publication of the book in the USA, people began to bring copies of the book into the UK.   No steps were taken by the Government to prevent such imports.   It took the view that it had the powers to ban import of the book but that any such ban was likely to be ineffective.   Anyone in the UK could purchase a copy of the book by credit card or cash from the USA by post or by telephone.   The telephone number and address of American bookshops willing to deliver the book to the UK were widely advertised in the UK.   30.      In the contempt proceedings in the Independent case the Court of Appeal (Sir John Donaldson MR, Lloyd LJ and Balcombe LJ) announced on 15 July 1987 (for reasons handed down on 17 July 1987) that it would reverse the judgment of the Vice-Chancellor and decided unanimously that such publication could, as a matter of law, amount to a contempt of court.   In his judgment, Sir John Donaldson, Master of the Rolls, stressed that confidentiality, not official secrecy, was the central issue in the case.   He held, inter alia, that if a court had prohibited publication of information pending trial which was said to be confidential, but publication was nevertheless made, there was no point in having a trial since the cloak of confidentiality could never be restored.   The contempt issue in the present case involved an interference with the due administration of justice.   The application of the law of contempt being universal, the fact that it was to be applied in novel circumstances, i.e. to newspapers not party to the injunction against The Guardian and the Observer, was not a widening of its application but a new example of its application.   Third parties with a legitimate interest in the injunction could apply to the court for its modification or apply for clarification if they had doubts whether the action they contemplated was lawful.   31.      In his concurring judgment, Lloyd LJ held, inter alia, as follows:           "...   I would accept that not all acts which are calculated         to interfere with the course of justice will necessarily         ground a charge of contempt.   The act must be sufficiently         serious and sufficiently closely connected with the         particular proceedings.   But in the present case the conduct         relied on by the Attorney General is not marginal.   It is         not a mere prejudging of the issue to be decided in the         particular proceeding.   It is not a mere usurpation of the         court's function.   It is the destruction, in whole or in         part, of the subject matter of the action itself.   The         central issue in the Guardian action is whether The Guardian         should be restrained from publishing confidential information         attributable to Mr.   Wright.   Once the information   has         been published by another newspaper, the confidentiality         evaporates.   The point of the action is gone.   It is         difficult to imagine a more obvious and more serious         interference with the course of justice than to destroy         the thing in dispute."   32.      Balcombe LJ agreed with his colleagues.   The Court of Appeal refused leave to appeal to the House of Lords.   No petition for such an appeal was lodged with the House of Lords itself and no application was made to the High Court by The Independent, The London Evening Standard or The London Daily News to modify the interim injunctions against The Guardian and the Observer.   33.      The applicants made it clear that, unless restrained by law, the second set of extracts from the book would be published on Sunday, 19 July 1987.   On 16 July, the Attorney General applied for an injunction to restrain the applicants from publishing further extracts from the book.   The Attorney General brought his claim to restrain what he said would be a contempt of court by reason of the injunctions against The Guardian and the Observer and by reason of the Court of Appeal's decision in the Independent case.   34.      The Vice-Chancellor granted a temporary injunction restraining publication by the applicants until Tuesday, 21 July 1987.   It was agreed that on Monday, 20 July 1987 the Vice-Chancellor would consider the claim of The Guardian and the Observer to have the injunctions against them discharged and that the applicants would (by reason of being effectively bound by those injunctions because of the Court of Appeal judgment in the Independent case) have a right to be heard in support of that claim.   He was also to hear the Attorney General's application for an injunction against the applicants.   It was agreed that if the injunctions against The Guardian and the Observer were discharged, his claim against the applicants would also fail.   35.      The Vice-Chancellor heard argument from 20 to 22 July 1987. He gave judgment on 22 July as follows:           (i)     If there had been a material change of circumstances         since July 1986, he had to consider whether it was now         appropriate to grant injunctions against The Guardian and         the Observer.           (ii)    There had been "a most substantial change in         circumstances".   He regarded as most significant the fact         that the book had been published in the USA and was         available in and had reached the UK.           (iii)   The Vice-Chancellor was bound by the principles laid         down by the House of Lords in American Cyanamid Co v.         Ethicon Ltd <1975> AC 396 concerning the grant of         interlocutory injunctions, namely, it is not the court's         function at this intermediary stage to determine complex         questions of law and fact which call for detailed argument         and mature consideration.   These matters are for the trial         court to decide.   However, if there is an arguable case         that an injunction may be granted at trial, and if neither         side could be adequately compensated in damages after trial,         then whether an interlocutory injunction should be granted         depends on the balance of convenience.           (iv)    The Vice-Chancellor held that the Attorney General had         an arguable case under the law of confidence (albeit one         that he strongly doubted was correct), that he might obtain         an injunction against the newspapers at trial even though         they were neither confidants nor aiders and abettors of a         confidant, and even though the information, the publication         of which the Attorney General wished to restrain, was now         known or available to the public as a result of publication         in the USA.           (v)     He held that damages would be an inadequate remedy to         compensate the Attorney General if he failed to obtain an         interlocutory injunction but were successful at trial.   He         also held that damages would not be a sufficient remedy to         compensate the newspapers for restraints on publication were         they to succeed at trial.           (vi)    He then proceeded to consider the balance of convenience.         He held that, weighing all the factors, it was inappropriate         to continue the injunctions.   This was because the information         contained in the book was no longer secret and the only public         interest in restraining publication - to deter other members         of the Security Service from seeking to publish their memoirs -         was outweighed by the public interest in freedom of expression         and the freedom of the press in all the circumstances of this         case.   He commented as follows:                   "The truth of the matter is that in the contemporary                 world of electronics and jumbo jets news anywhere is                 news everywhere.   But whilst the news is international,                 the jurisdiction of this court is strictly territorial.                 Once the news is out by publication in the United                 States and the importation of the book into this                 country, the law could, I think, be justifiably accused                 of being an ass and brought into disrepute if it closed                 its eyes to that reality and sought by injunction to                 prevent the press or anyone else from repeating                 information which is now freely available to all."   36.      The Attorney General immediately appealed and pending that appeal the injunctions against The Guardian and the Observer, but not against the applicants, were continued in force.   37.      The Court of Appeal (Sir John Donaldson MR, Ralph Gibson LJ and Russell LJ) heard argument on this matter on 23 and 24 July 1987. In its judgment of 24 July 1987 the Court of Appeal decided as follows:           (i)     The Vice-Chancellor had erred in law in various         respects.           (ii)    Therefore it was appropriate for the Court of Appeal         to exercise its own discretion.           (iii)   In the light of the American publication of the book,         it was inappropriate to continue the injunctions in their         original form.   However, it was appropriate to vary the         original injunctions to restrain publication in the course of         business of all or part of the book or other statements by or         attributed to Peter Wright on security matters, but to permit         a summary in general terms of his allegations.   38.      The Court of Appeal gave leave to all parties to appeal to the Appellate Committee of the House of Lords.   39.      The Appellate Committee of the House of Lords (Lord Bridge, Lord Brandon, Lord Templeman, Lord Ackner and Lord Oliver) heard argument from 27 to 29 July 1987.   They gave judgment on Thursday, 30 July 1987.   They decided, by a majority of 3-2, to continue the temporary injunctions granted by Mr.   Justice Millett and the Court of Appeal in July 1986.   Lord Bridge (the immediate past Chairman of the Security Commission, the Government body responsible for supervising aspects of the work of the British Security Service) and Lord Oliver dissented on the ground that no injunctions should lie against the newspapers because the information was no longer secret.   However, the majority of the Appellate Committee decided that the scope of the injunctions granted in 1986 should be widened to restrict certain reporting of what would take place in open court in the further Australian proceedings, otherwise passages from the book read out in the Australian courts might be reproduced in English newspapers, thus circumventing the injunctions.   Its written reasons for the judgment were given on 13 August 1987 (1987 1WLR 1248).   40.      Lord Brandon (with whose observations Lord Templeman agreed) held, inter alia, as follows:           (i)      it was of the utmost importance that the injunctions         in issue were interlocutory injunctions, that is temporary         injunctions having effect until the trial of the action only;         continuation of the injunction until trial did not in any         way prejudge the validity of the Attorney General's claim         to final injunctions, its purpose being only to hold the         ring until a just decision on the validity of that claim         could be made;           (ii)     before the publication of the book in America the         Attorney General had a strong arguable case for obtaining         at trial final injunctions in terms similar to those of         the temporary injunctions; this was the view taken by         Millett J. and the Court of Appeal and was not really open         to challenge;           (iii)    the key issue was whether the publication of the book         in the USA had the effect that the Attorney General no longer         had an arguable claim to permanent injunctions at trial;         although the Attorney General's case for obtaining final         injunctions at trial had been much weakened by the publication         of the book, it remained nevertheless an arguable case;           (iv)     in order to enable a court to carry out properly the         exercise of weighing and balancing the public right to freedom         of expression in the press and the public interest in the         protection of the secrecy of the British Security Service,         it was essential that it should have adduced before it the         best possible evidence on the crucial questions which arose         in the case in the form of oral evidence from witnesses         subject to cross-examination; the only way in which it         could thus justly be decided whether the Attorney General's         case, being still arguable, should succeed or fail was by         having the action tried;           (v)      if the temporary injunction were discharged now, so         that the newspapers were left free to disseminate generally         the disclosures made in the book, there would be no point         in the Attorney General proceeding to trial; his arguable         case would have been completely destroyed by summary process         at an interlocutory stage and without his ever having had         the opportunity of having it fairly tried on appropriate         evidence;           (vi)     if, on the other hand, the temporary injunctions were         continued until trial, the effect would be only to postpone         and not to prevent the exercise by The Guardian and the         Observer newspapers of the rights to publish; although the         exercise of such rights would certainly have been delayed,         it was a material factor that Mr.   Wright's disclosures         related not to recent events but to events many years in         the past; that being so, a further delay in the exercise of         the newspapers' rights would in no way be equivalent to a         complete denial of those which the Attorney General might have;           (vii)    having regard to the matters in (v) and (vi) above,         the discharge of the temporary injunctions was capable of         causing much greater injustice to the Attorney General than         the continuation of them until trial was capable of causing         to the newspapers; in that situation it was clear that in the         overall interests of justice continuation of the injunctions         until trial was preferable to their discharge.   41.      Lord Ackner, the third majority member of the Appellate Committee, held, inter alia, as follows:           (i)      it was common ground and/or accepted by each member         of the Appellate Committee                   (a)      that the Attorney General had an arguable                 case for a permanent injunction; (this had been                 conceded by the appellant newspapers given the                 domestic law;)                   (b)      that damages were a worthless remedy for the                 Crown and that, if the interlocutory injunctions were                 not continued, the Crown would immediately and                 irrevocably lose the prospect of obtaining a permanent                 injunction which it might obtain if a trial were to     &