Spycatcher and Reds under the Bed

It is hard to explain to my junior colleagues how seriously we considered the threat to Western Europe from Warsaw Pact invasion in the 1980s. When I was commissioned in the RAF in 1984, its manpower strength was over 93,000 – its strength is currently planned to fall by 2015 to 31,000. A significant proportion of the RAF was located in Germany (as was the British Army), which, together with all air defence stations in the UK, maintained a high degree of readiness. Those of us serving during that period were well used to “no-notice call outs” and alerts, which somehow always seemed to be between 4 – 6 am.

It was in this Cold War environment that spies and spying thrived. This was an age of active mole hunts and speculation over the identities and range of the Cambridge spy ring – “reds under the bed” being the ultimate McCarthyist fear. So any threat to national security that a former spy’s autobiography could present was a critical matter. This was exactly the problem of Peter Wright, a former member of MI5 and Assistant Director who had retired to Tasmania, whose autobiography “Spycatcher: The Candid Autobiography of a Senior Intelligence Officer” (Spycatcher) was to be published first in Australia. It was also published in the United States of America. Disclosure of state secrets by Wright was, not surprisingly, in breach of the Official Secrets Act 1911.

The Government first attempted to bring an action in Australia to restrain publication of Spycatcher, but this ultimately failed (the book was eventually published in Australia in October 1987). Articles on the Australian legal proceedings were published in The Observer and The Guardian. These newspapers were then subject to an interlocutory injunction in June 1986 to restrain them from publishing information obtained by Wright. The Sunday Times also began to serialise Spycatcher, before and in anticipation of its publication in the US in July 1987. The Attorney General obtained further injunctions. These injunctions were discharged on application by the newspapers – the Court of Appeal dismissed that Attorney General’s appeals, so the joined cases reached the House of Lords (Attorney General v Observer Ltd [1990] 1 AC 109). The issue for the House of Lords was the question of publication in breach of a duty of confidence – was the duty of confidence outweighed by a countervailing public interest?

This is where the Spycatcher case has immediate relevance. Whilst The Sunday Times was ordered to account for profits it made as a result of its first serialisation of an extract from the book, which was in breach of a duty of confidence. it was recognised by their Lordships that once the book was published in the US and its contents became widely known, so that the information in the book was no longer confidential, injunctions no longer became necessary.

It should also be remembered that although the Attorney General sought injunctions in England (& Wales), the Lord Advocate failed to seek an interdict in Scotland, so that distribution of Spycatcher and reporting on it was at all times legal in Scotland.  Even if an interdict had been obtained, there is a more recent Scots Law case that follows the Spycatcher precedent (Lord Advocate v Scotsman Publications [1989] UKHL 7).

Does this sound familiar, given CTB v News Group Newspapers Limited and Imogen Thomas?  Will the courts continue to support injunctions against The Sun and Imogen Thomas when as a result of publication abroad, on Twitter or elsewhere, the private information being protected from publication is in the public domain (assuming that there has been no breach of the original anonymised injunction by The Sun or Imogen Thomas)?

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