CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1992

.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. 18897/91                       by TIMES NEWSPAPERS Ltd and Andrew NEIL                       against the United Kingdom           The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    S. TRECHSEL, Acting President                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            M.     F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    K. ROGGE, Deputy to the Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 September 1992 by TIMES NEWSPAPERS Ltd and Andrew NEIL against the United Kingdom and registered on 3 0ctober 1991 under file No. 18897/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are   1.     Times Newspapers Ltd., publishers of The Sunday Times, a national Sunday newspaper published in the United Kingdom ;   2.     Andrew Ferguson Neil, editor of The Sunday Times, a British citizen.         They are represented before the Commission by Messrs. Theodore Goddard, Solicitors, London.         This is the third application which the applicants have brought in relation to the litigation arising out of the intended publication of the memoirs of Peter Wright, a former member of the British Security Service MI5, in a book entitled "Spycatcher".   The full facts concerning that litigation are set out in the judgment of the European Court of Human Rights in the case of The Sunday Times v. the United Kingdom (No. 2) (Eur. Court H.R., judgment of 26 November 1991, Series A No. 217).   The first application (No. 13166/87, Comm. Report 12.7.90) concerned injunctions imposed on the Observer and Guardian newspapers, and subsequently, The Sunday Times itself, preventing the applicants publishing further extracts from "Spycatcher".   The Court held in its aforementioned judgment that the imposition of injunctions as of 30 July 1987 by the House of Lords was in violation of the applicants' rights under Article 10 of the Convention, but not of their rights under Articles 13 and 14 of the Convention.   The second application (No. 14644/89, Comm. Report 8.10.91) concerned the ultimate order of the House of Lords on 13 October 1988 requiring the applicants to account for the extra profit made from their publication of the extracts from "Spycatcher" on 12 July 1987.   The Committee of Ministers, agreeing with the Commission, held on 15 May 1992 that the applicants' rights under Articles 10, 13 and 14 of the Convention had not been violated (Resolution DH(92)15).   In the present case the applicants complain of the findings of the domestic courts that they were in contempt of court in publishing the first "Spycatcher" extracts and obliging them to pay the Attorney General's costs in bringing the contempt proceedings.         The facts of the present case, as submitted by the applicants and which may be deduced from documents lodged with the application, may be summarised as follows:         "Peter Wright, a former member of the British Security Service       MI5, sought to publish his memoirs in a book entitled       'Spycatcher'.   The book contained several allegations of       misconduct on the part of MI5.   Much of the material in the book       had already been disclosed by other authors or in television       programmes, including a Granada Television interview with Mr.       Wright in 1984.   'Spycatcher' was first to be published in       Australia in 1985 but the United Kingdom Government, represented       by the Attorney General, instituted proceedings in the Australian       courts to prevent publication.   In June 1986 the Observer and       Guardian newspapers published short reports about some of the       allegations in the book.   The Attorney General instituted       proceedings against these newspapers for breach of confidence in       the Chancery Division of the High Court of Justice of England and       Wales.   Temporary injunctions restraining further such reports       were granted from 11 July 1986 until the matter was finally       decided on the merits by the House of Lords on 13 October 1988"       (No. 14644/89, Comm. Report 8.10.91, para. 17).           In the meantime, on 27 April 1987, a major summary of certain of the allegations in "Spycatcher", allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent.   Later the same day reports of that summary were published in The London Evening Standard and the London Daily News.   The next day the Attorney General applied to the Queen's Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court, that is conduct intended to interfere with or prejudice the administration of justice.   Leave was granted on 29 April.   In this application the Attorney General was acting independently in his capacity as "the guardian of the public interest in the due administration of justice".         The Vice-Chancellor, Sir Nicolas Browne Wilkinson, decided to hold a hearing on the preliminary issue of law "whether a publication made in the knowledge of an outstanding injunction against another party (ie the injunctions against the Observer and Guardian newspapers) and which if made by that other party, would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction".   The Vice-Chancellor held on 2 June 1987 "that since the respondents were neither parties to the actions nor subject to the injunctions, their conduct in publishing the memoirs with the knowledge of the outstanding injunctions did not constitute a criminal contempt of court".   The Attorney General immediately lodged an appeal against this preliminary ruling.         On 12 July 1987 The Sunday Times, which had purchased the British newspaper serialisation rights from Mr. Wright's Australian publishers and had obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed in its later editions, in order to avoid the risk of proceedings for an injunction, the first instalment of extracts from "Spycatcher".   It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July.   On 13 July the Attorney General also commenced proceedings against the applicants for contempt of court on the ground that the publication frustrated the purpose of the original injunctions in July 1986.         On 14 July 1987 Viking Penguin Incorporated published "Spycatcher" in the United States of America ; some copies had, in fact, been put on sale on the previous day.   It was an immediate best-seller.   The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller.         A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops.   The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country.   No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers it was likely to be ineffective. They did, however, take steps to prevent the book being available at United Kingdom booksellers or public libraries.           On 15 July 1987 the Court of Appeal announced that it would reverse the preliminary ruling of the Vice-Chancellor in the Independent case.   Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the original injunctions was to preserve the confidentiality of the "Spycatcher" material until the substantive trial of the actions against the Observer and Guardian ; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject matter of those actions, and therefore interfere with the administration of justice.         The Master of the Rolls, Sir John Donaldson, in one of the judgments given by the Court of Appeal, commented on the fragile nature of the subject matter of the litigation:         "Confidential information is like an ice cube.   Give it to the       party who undertakes to keep it in his refrigerator and you still       have an ice cube by the time the matter comes to trial.   Either       party may then succeed in obtaining possession of the cube.   Give       it to a party who has no refrigerator or will not agree to keep       it in one, and by the time of the trial you just have a pool of       water which neither party wants.   It is the inherently perishable       nature of confidential information which gives rise to unique       problems."         There was no doubt that the information held by Mr. Wright was confidential and that until the litigation over the injunctions against the Observer and Guardian had been determined on the merits other publishers were not free to print "Spycatcher" material, for to do so would deprive the Attorney General of a part of the rights which he was asserting in those actions and to that extent the publications by The Independent, The London Evening Standard and the London Daily News made it impossible for the courts to do justice between the parties.   The Master of the Rolls rejected the idea that the Attorney General was seeking to widen the law of criminal contempt, albeit in accordance with established principles.   He held as follows:         "The law of contempt is based upon the broadest of principles,       namely, that courts cannot and will not permit interference with       the due administration of justice.   Its application is universal.       The fact that it is applied in novel circumstances ...   is not       a widening of its application.   It is merely a new example of its       application."         He made the following summary:         "(1) Confidential information, whatever its nature - personal,       financial, technical or security - has one essential common       characteristic.   It is irremediably damaged in its confidential       character by every publication and the more widespread the       publication, the greater the damage.   (2) If a prima facie claim       to confidentiality can be established, but this is opposed by a       claim of a right to publish, whether on grounds of the public       interest or otherwise, these opposing and wholly inconsistent       claims   must be evaluated and balanced the one against the other.       (3) The public interest in ensuring that disputes are resolved       justly and by due process of law may require a different balance       to be struck at different stages.   Thus, pending the trial of the       action, the balance will normally come down in favour of       preserving confidentiality, for the very obvious reason that,       this is not done and publication is permitted, there will be       nothing left to have a trial about.   (4) It is for the courts,       and not for either of the opposing parties, to decide where, in       the public interest, that balance lies.   (5) Third parties -       strangers to the action - who know that the court has made orders       or accepted undertakings designed to protect the confidentiality       of the information pending the trial, commit a serious offence       against justice itself if they take action which will damage or       destroy the confidentiality which the court is seeking to protect       and so render the due process of law ineffectual.   (6) If such       third parties, having a legitimate interest in so doing, wish to       contest the court's decision to protect the confidentiality of       the information on any grounds, including in particular that they       have special rights or interests of which account has not been       taken, they should apply to the court which will hear them and       make any modification of its orders which may be appropriate.       This is a well-established procedure which works speedily and       well in the context of ex parte orders, such as those made in the       exercise of the Mareva and Anton Piller jurisdictions.   Similarly       they should apply to the court if they have doubts whether the       action which they contemplate taking is lawful.   (7) It is for       the courts, and not for third parties, to decide whether,       balancing competing public and private interests including those       of the third parties, confidentiality should continue to be       preserved at any particular time."         The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering.         By the time the case came before Mr. Justice Morritt in the High Court in April 1989 The Sunday Times had been joined as a defendant together with two other newspapers, The Sunday Telegraph and News on Sunday for "Spycatcher" articles they had published on 26 July and 2 August 1987 respectively.   On 8 May 1989 Mr. Justice Morritt found The Independent, The Sunday Times and News on Sunday to be in contempt of court and imposed a fine of £50,000, plus costs, in each case ; the motions against the other newspapers were dismissed.   He held that the actus reus of the criminal contempt had to be considered as at the time it was committed in the light of the purpose of the original injunctions against the Observer and Guardian newspapers.   It could not be examined with the knowledge of hindsight after the worldwide publication of "Spycatcher".   At the material time, therefore, the purpose of the original injunctions had been to preserve the confidentiality of the material in the possession of Mr. Wright.   That confidentiality was partially destroyed with each publication from "Spycatcher", notwithstanding that it was also partially destroyed by other publications.   Moreover such partial destruction constituted an interference with the administration of justice despite the fact that it had no effect on the eventual outcome of the trial on the merits when it was decided not to grant permanent injunctions against publication of the "Spycatcher" material.         As regards the mens rea, or intention to commit the offence, Mr. Justice Morritt was satisfied that The Sunday Times had knowingly perpetrated contempt of court in publishing the "Spycatcher" extracts on 12 July 1987.   He noted that on 2 March 1987 the Treasury Solicitor, having heard about The Sunday Times' plans to serialise "Spycatcher", had by letter advised the newspaper that it was subject to the same obligations as the Observer and Guardian newspapers.   He had enclosed a copy of the injunctions against those newspapers.   The following day the legal adviser to The Sunday Times had replied to the Tre Solicitor stating that it was the newspaper's intention to serialise the Australian lawyer's account of the trial so that their article would be more about the Australian litigation rather than the book. Moreover he had contended that the newspaper was not bound by the Observer and Guardian injunctions.   After the institution of contempt proceedings against The Independent, The Evening Standard and the London Daily News the Treasury Solicitor had again warned The Sunday Times.         The Sunday Times' editor, Mr. Neil, went about obtaining the serialisation rights over the book and an advance copy of it in order to publish before his competitors did so.   The Vice-Chancellor decided the preliminary contempt of law issue on 2 June 1987.   On 7 July 1987 Mr. Neil flew to New York and obtained a copy of "Spycatcher".   On 9 July 1987 he received legal advice from senior counsel that neither he nor his newspaper would be liable for contempt of court if they published information covered by the Observer and Guardian injunctions. On 10 July 1987 the Treasury Solicitor again sent a warning letter in view of the contempt proceedings against the other newspapers and the Attorney General's pending appeal against the Vice-Chancellor's preliminary ruling.   The Sunday Times nevertheless went ahead with the publication of the "Spycatcher" extracts on 12 July 1987, but did not include them in the first edition of the day in order to avoid giving advance warning to the Attorney General which would no doubt have prompted him to seek an interlocutory injunction against the newspaper. The applicants refused to undertake not to publish any further extracts from "Spycatcher" and on 16 July 1987 the Attorney General obtained an interlocutory injunction restraining further publication.         The applicant, Mr. Neil, acknowledged in the contempt proceedings that he knew of the Observer and Guardian injunctions and that he regarded "Spycatcher" as "banned in Britain", but he was satisfied with the legal advice which he had received.   He had, therefore, intended putting "Spycatcher" into the public domain regardless of the consequences.   Mr. Justice Morritt held that Mr. Neil realised that the inevitable consequence of publishing the extracts was to damage or destroy the confidentiality of the material possessed by Mr. Wright and he thereby interfered with the administration of justice in the proceedings between the Attorney General and the Observer and Guardian even if he genuinely, but wrongly, believed he would not be in contempt of court.   The judge, therefore, concluded that the Attorney General had established beyond reasonable doubt that the publication of the "Spycatcher" extracts by The Sunday Times was a contempt of court.   The applicants appealed against this judgment.         On 27 February 1990 the Court of Appeal, consisting of three judges, unanimously dismissed the applicants' appeal against the finding that they had been in contempt, agreeing with the judgment of Mr. Justice Morritt, but it concluded that no fines should be imposed. This was because, firstly, the Vice-Chancellor had given his preliminary ruling that the other newspapers were not in contempt of court, even though the applicants knew that his ruling was subject to an appeal ; secondly the applicants had received legal advice that they would not be in contempt if they published the "Spycatcher" extracts and, thirdly, the publication of the whole book in the United States of America was imminent, thus largely destroying any confidentiality in Mr. Wright's material.   The circumstances were, therefore, exceptional and did not justify a fine.           Whilst Article 10 of the Convention does not form part of English law it was accepted by at least one appellate judge that it was relevant to the interpretation of principles of law which might be unclear and where there is no binding authority.   It was assumed that the English law of contempt was in conformity with Article 10 of the Convention and accepted that the burden of proof was upon the Attorney General, in order to restrain disclosure of Government secrets, to show that the information was confidential and that it was necessary in the public interest not to publish it (pp. 40, 47-49 of the judgment of Lord Justice Ralph Gibson).         It was emphasised that on the critical date of 17 July 1987, when The Sunday Times published the "Spycatcher" extracts, the object of the original injunctions against the Observer and Guardian had not yet been thwarted by the publication of the book in the United States of America.   The fact that the book was published there two days later was relevant to the assessment of the sanction which was to be imposed, but not to the determination of the contempt itself committed by The Sunday Times.   The imminent publication on 14 July did not justify The Sunday Times' action.   Lord Justice Nicholls commented: "There is about The Sunday Times case a large element of hindsight.   On 12 July the pressing social need that there should be no publication of 'Wright material' still existed".         On 11 April 1991 the Appellate Committee of the House of Lords unanimously dismissed the appeal by the applicants against the Court of Appeal's decision on the issue of contempt of court.   It was held that the purpose of the original injunctions granted by Mr. Justice Millett in 1986 against the Observer and Guardian was the prevention of publication of material from "Spycatcher" pending the trial of the actions for breach of confidence; that the consequence of such publication by the applicants was to nullify, at least in part, the purpose of that trial because it placed in the public domain material which it was claimed by the Attorney General in those actions should remain confidential; and that, accordingly, the conduct of the applicants constituted the actus reus of impeding or interfering with the administration of justice in the confidentiality actions, and since mens rea in respect of such conduct had been conceded by the applicants, the necessary elements to constitute contempt of court had been established.         Lord Brandon of Oakbrook confirmed the lower court's ruling that the aim and purpose of the law of contempt is to prevent interference with the due administration of justice.   He held that the Attorney General was not seeking to widen the law of criminal contempt.   The Attorney General's submissions were deemed to be based upon long established common law principles and in applying those principles to the novel facts of the present case the offence of contempt had been established.         Lord Oliver of Aylmerton emphasised the inherent jurisdiction of the courts to ensure the effective administration of justice by punishing contempt of court, a notion which has been "developed by the common law over centuries.   It is as essential as it is ancient, for, unless litigants can be assured that the rights which it is the duty of the courts to protect can be fairly determined and effectively protected and enforced, the system of justice necessarily ceases to command confidence and an essential foundation of the structure of civilised society is undermined".   He held, as regards Article 10 of the Convention, that the contempt proceedings were "clearly necessary for maintaining the authority of the judiciary" in view of the need to uphold the temporary injunctions against the Observer and Guardian newspapers pending the determination of the merits of the Attorney General's claim on the merits against these newspapers.         Lord Jauncey of Tullichettle concluded in a similar vein as follows:         "It only remains to consider whether the public interest in the       freedom of the press should in this case override the interests       of the administration of justice.   The importance in a democracy       of a free press cannot be overstated.   Nevertheless, there are       occasions where that importance must give way to other       considerations.   National security is one such consideration.       The importance of affording to an accused a fair trial is       another.   In my view the public interest in enabling justice to       be done unimpeded between party and party is another.   As I have       already remarked, it is only in a limited type of case that       freedom of the press is likely to be affected by possible       interference with the course of justice and I consider that in       these cases the public interest in having justice done unimpeded       between parties must prevail over that interest in the freedom       of the press.         For all the foregoing reasons I have no doubt that the appeal       should be dismissed."         Whilst the applicants were no longer liable to pay a fine for their contempt of court they remained liable to pay the Attorney General's legal costs, as they were the losing party in the proceedings.   To date the Attorney General's costs claim amounts to £27,744.80.   The costs bill has not yet been finalised or settled.     COMPLAINTS         The applicants complain of a violation of Article 10 of the Convention, read on its own and together with Article 7 of the Convention.   They submit, inter alia, that the finding that they were in contempt of court was neither prescribed by law, within the meaning of Article 10 para. 2 of the Convention, nor an offence for the purposes of Article 7 of the Convention as of 12 July 1987, when they published the "Spycatcher" extracts, because at that time there was no judicial precedent to establish "that the performance by a third party of an act which other named persons had been enjoined from performing could amount to contempt of court by the third party unless that third party was aiding and abetting the person so enjoined or was privy or party to a breach of the order by the party so enjoined".   They rely for this proposition on the decision of the Vice-Chancellor in the present case on 2 June 1987 and claim that it was reflected in the Court of Appeal's decision of 17 July 1987 not to impose a fine upon them.     THE LAW         The applicants complain of a violation of Article 10 (Art. 10) of the Convention, read on its own and in conjunction with Article 7 (Art. 7) (Art. 10+7) of the Convention, in respect of the House of Lords' judgment against them on 11 April 1991.   1.     As regards Article 10 (Art. 10) of the Convention         Article 10 (Art. 10) of the Convention provides as follows:         "1.   Everyone has the right to freedom of expression.   This       right shall include freedom to hold opinions and to receive and       impart information and ideas without interference by public       authority and regardless of frontiers ...           2.    The exercise of these freedoms, since it carries with it       duties and responsibilities, may be subject to such formalities,       conditions, restrictions or penalties as are prescribed by law       and are necessary in a democratic society, in the interests of       national security, territorial integrity or public safety, for       the prevention of disorder or crime, for the protection of health       or morals, for the protection of the reputation or rights of       others, for preventing the disclosure of information received in       confidence, or for maintaining the authority and impartiality of       the judiciary."         a) Interference with freedom of expression         The applicants claim that the House of Lords' decision on 11 April 1991, upholding the finding of contempt of court, was an interference with their freedom of expression, ensured by Article 10 para. 1 (Art. 10-1) of the Convention, by the very finding itself, by virtue of the imposition of the Attorney General's bill of costs and by the binding nature of the decision with its repercussions and inhibiting effect on freedom of expression in the future in analogous cases.         The Commission agrees with the applicants that there has been an interference with their freedom of expression in the present case.         b) Prescribed by law         One of the applicants' main contentions is that the interference with their freedom of expression was not prescribed by law within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         According to the case-law of the European Court of Human Rights two requirements flow from the expression "prescribed by law": that the law be both adequately accessible and foreseeable (Eur. Court H.R., The Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31, para. 49).         On the question of accessibility, the Commission has examined the various domestic court judgments in the present case and notes that, apart from the preliminary ruling of the Vice-Chancellor on 2 June 1987, these courts have unanimously concluded that the principles of criminal contempt of court have been long established in common law. As Sir John Donaldson, Master of the Rolls, held in the Court of Appeal on 17 July 1987: "The law of contempt is based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice.   Its application is universal.   The fact that it is applied in novel circumstances ... is not a widening of its application.   It is merely a new example of its application" (p. 5 above).   The domestic courts reviewed a wealth of previous legal authorities and, in the absence of any evidence of arbitrariness in the judgments in the present case, the Commission is satisfied that the law concerning the offence of criminal contempt of court was adequately accessible at the material time.         On the question of foreseeability, the Commission notes that the applicants had warning of the risks they were running from an early stage in the "Spycatcher" proceedings.   They were aware from the day of the imposition of the temporary injunctions against the Observer and Guardian newspapers in July 1986 that the key issue in the "Spycatcher" litigation with the Attorney General was to preserve the confidentiality of the material held by Peter Wright, a former member of the British Security Service, MI5.   As of 2 March 1987 they had been   advised by the Treasury Solicitor that they were under the same obligations as the Observer and Guardian newspapers to preserve that confidence until the courts had determined the merits of the Attorney General's claim.   After the institution of proceedings against The Independent, The London Evening Standard and the London Daily News for contempt of court in April 1987 by the Attorney General, the Treasury Solicitor repeatedly warned the applicants that in the Government's view they would risk similar proceedings if they sought to publish any "Spycatcher" material.   Although the applicants were advised that the Government's view of the law of contempt was wrong, the Commission finds nevertheless that the applicants were fully aware of the risks involved in publishing such material and chose deliberately to do so in circumstances intended to escape prior Government detection.   The Commission concludes from the applicants' awareness of these risks that the relevant law was sufficiently accessible.   The interference in the present case was accordingly "prescribed by law", within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         c) Legitimate aim         Interference with freedom of expression may only be justified if it pursues a legitimate aim such as protecting the interests of national security, preventing the disclosure of information received in confidence or maintaining the authority of the judiciary.         The applicants have not suggested that the contempt of court proceedings against them did not pursue a legitimate aim.         The Commission refers to the judgment of Lord Oliver of Aylmerton in the House of Lords on 11 April 1991 in the present case that the contempt proceedings were "clearly necessary for maintaining the authority of the judiciary", an essential part of which being the protection of the rights of litigants until the dispute between them has been fairly determined by the courts (p. 8 above ; cf. also Eur. Court H.R., The Sunday Times judgment of 26 April 1979, Series A No. 30, pp. 33-35, paras. 54-57).   Moreover, the Commission does not lose sight of the fact that there were important background elements to the present case, namely the protection of information received in confidence and the protection of national security (see No. 14644/89, Times Newspapers Ltd and Neil v. the United Kingdom, Comm. Report 8.10.91, paras. 42-43).         The Commission finds, therefore, that the contempt of court proceedings against the applicants pursued the legitimate aim of maintaining the authority of the judiciary.         d) Necessary in a democratic society         The key issue in the present case is whether it was necessary in the circumstances for the House of Lords to find the applicants in contempt of court for publishing the "Spycatcher" extracts on 12 July 1987.         The Commission refers to the general principles of necessity in the domain of press freedom and the State's margin of appreciation under Article 10 (Art. 10) of the Convention as set out in the previous applications brought by the present applicants concerning the "Spycatcher" litigation (Eur. Court H.R., The Sunday Times (No. 2) judgment of 26 November 1991, Series A No. 217, pp. 28-30, paras. 50-51; No. 14644/89, Comm. Report 8.10.91, paras. 44-49 ; cf. also Eur. Court H.R., The Sunday Times judgment of 26 April 1979, Series A No. 30, pp. 35-38, paras. 58-62).           The applicants submit that the interference with their freedom of expression by the contempt of court finding met no pressing social need and was disproportionate to any legitimate aim pursued for three reasons :   -      the imminent publication of "Spycatcher" in the United States of       America,   -      the lack of proportionality in imposing liability upon them for       contempt of court by reference to the purpose of an injunction       granted against third persons, and   -      the absence of any effect of their publication of the       "Spycatcher" extracts on the ultimate outcome of the Attorney       General's claim on the merits for permanent injunctions against       the Observer and Guardian, to which proceedings they were       subsequently joined as defendants.         However, the Commission agrees with the remark of Lord Justice Nicholls in the Court of Appeal's judgment of 27 February 1990 in the present case that "there is about The Sunday Times case a large element of hindsight" (p. 8 above).   As in application No. 14644/89 brought by the applicants, the Commission finds that the crucial date in the "Spycatcher" proceedings which materially changed the circumstances of the litigation was 14 July 1987, when the book went on sale in the United States and became an instant best-seller (Comm. Report 8.10.91, paras. 55-56).   Up to that time the confidentiality of the "Spycatcher" material was, arguably, worth preserving ; after that date there was nothing confidential left to protect.   So two days before, on 12 July 1987, the day when the applicants achieved their scoop in publishing extracts from the book, there was an arguable case that they had contributed to the partial destruction of the confidentiality of material which was still the subject of pending litigation in the courts.   The Commission considers therefore that subsequent events, including the ultimate failure of the Attorney General's claim against the Observer, Guardian and Sunday Times for permanent injunctions, are irrelevant to the issue before the Commission.   The question remains whether it was proportionate in the circumstances to impose obligations on the applicants which flowed from injunctions imposed on other newspapers, to which proceedings the applicants had not been a party until they themselves became involved in publishing "Spycatcher" material.         The Commission has had regard to the special perishable nature of the subject matter of the "Spycatcher" litigation : confidential information.   The Master of the Rolls aptly likened such information to an ice cube in need of refrigeration until such time as the matter comes to trial (p. 5 above).   The applicants were aware of this but deliberately sought to break that confidentiality regardless of the consequences, albeit believing that it was in the public interest (p. 7 above, Mr. Justice Morritt's judgment of 8 May 1989).   Given the State's margin of appreciation in this area, the Commission finds nothing unreasonable or arbitrary in the conclusion of the domestic courts that the applicants thereby interfered with the administration of justice in the proceedings between the Attorney General and the Observer and Guardian newspapers, of which proceedings the applicants had full knowledge.   The Commission again refers to the findings of the Master of the Rolls:           "Third parties - strangers to the action - who know that the       court has made orders or accepted undertakings designed to       protect the confidentiality of the information pending the trial,       commit a serious offence against justice itself if they take       action which will damage or destroy the confidentiality which the       court is seeking to protect and so render the due process of law       ineffectual.   If such third parties, having a legitimate interest       in so doing, wish to contest the court's decision to protect the       confidentiality of the information on any grounds, including in       particular that they have special rights or interests of which       account has not been taken, they should apply to the court which       will hear them and make any modification of its orders which may       be appropriate.   This is a well-established procedure which works       speedily and well in the context of ex parte orders, such as       those made in the exercise of the Mareva and Anton Piller       jurisdictions.   Similarly they should apply to the court if they       have doubts whether the action which they contemplate taking is       lawful.   It is for the courts, and not for third parties, to       decide whether, balancing competing public and private interests       including those of the third parties, confidentiality should       continue to be preserved at any particular time" (p. 6 above).         Similarly the Commission considers that there was nothing unreasonable or arbitrary in the House of Lords' conclusion in the present case that "the public interest in having justice done unimpeded between parties must prevail over that interest in the freedom of the press" (p. 9 above, the judgment of Lord Jauncey of Tullichettle).   The Commission also notes that there was no prior restraint on the publication of the "Spycatcher" extracts by the applicants and that the sanction of finding them in contempt of court, with liability for costs, was of a minor nature.         The Commission concludes that the decision of the House of Lords of 11 April 1991, finding the applicants in contempt of court, was proportionate to the legitimate aim of maintaining the authority of the judiciary in order to protect the rights of other parties in pending "Spycatcher" litigation in England.   The House of Lords' judgment could therefore be regarded as necessary within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     As regards Article 7 (Art. 7) of the Convention         The relevant part of Article 7 (Art. 7) of the Convention provides as follows:         "No one shall be held guilty of any criminal offence on account       of any act or omission which did not constitute a criminal       offence under national or international law at the time when it       was committed."         The applicants contend that they could not have been guilty of an offence of contempt of court when publishing the "Spycatcher" extracts on 12 July 1987 because at that time third parties could not be bound by an injunction imposed on a person unless they were aiding and abetting that person to break it.   However the Commission has held above (p. 11) that the offence of criminal contempt for which the applicants were found guilty was prescribed by law within the meaning       of Article 10 para. 2 (Art. 10-2) of the Convention.   For the reasons described above in reaching that conclusion, the Commission considers that the constituent elements of the common law offence of contempt of court were sufficiently clear as of 12 July 1987.   The fact that the established legal principles involved were applied to novel circumstances does not render the offence retroactive in any way:         "... it is not objectionable that the existing elements of the       offence are clarified and adapted to new circumstances which can       reasonably be brought under the original concept of the offence"       (No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77, at pp. 79-82, paras.       4-10).         The Commission finds, therefore, that the offence of contempt of court existed at the time it was committed by the applicants and that the present case discloses no appearance of a violation of Article 7 (Art. 7) of the Convention.   It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.           Deputy to the Secretary                Acting President          to the Commission                   of the Commission                  (K. ROGGE)                        (S. TRECHSEL)