FOR THESE REASONS, THE COURT

1. Holds by fourteen votes to ten that there was no violation of Article 10 (art. 10) of the Convention during the period from 11 July 1986 to 30 July 1987;

2. Holds unanimously that there was a violation of Article 10 (art. 10) during the period from 30 July 1987 to 13 October 1988;

3. Holds unanimously that there has been no violation of Article 13 (art. 13) or of Article 14 taken in conjunction with Article 10 (art. 14+10);

4. Holds unanimously that the United Kingdom is to pay, within three months, to the applicants jointly the sum of £100,000 (one hundred thousand pounds), together with any value-added tax that may be chargeable, for costs and expenses;

5. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 November 1991.

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Pettiti, joined by Mr Pinheiro Farinha;

(b) partly dissenting opinion of Mr Walsh;

(c) partly dissenting opinion of Mr De Meyer (concerning prior restraint), joined by Mr Pettiti, Mr Russo, Mr Foighel and Mr Bigi;

(d) separate opinion of Mr De Meyer (concerning domestic remedies), joined by Mr Pettiti;

(e) separate opinion of Mr Valticos;

(f) partly dissenting opinion of Mr Martens;

(g) partly dissenting opinion of Mr Pekkanen;

(h) partly dissenting opinion of Mr Morenilla.

Initialled : R.R.

Initialled: M.-A.E.

PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY

JUDGE PINHEIRO FARINHA

(Translation)

I voted for a violation of Article 10 (art. 10) also in respect of the first period, unlike the majority. In my view there was a violation as much for the first period concerning the Observer and The Guardian as for the second which also concerned The Sunday Times. Indeed I consider it to be contradictory to adopt a different position on these two periods while reaffirming the fundamental value in a democracy of the freedom of expression.

The injunction originated in the proposal to publish in Australia in 1985 Mr Wright's memoirs which included material already revealed by the books of Mr Pincher and by the Granada television programmes in the United Kingdom. "Secret agents" often publish their memoirs after their retirement and this does not in general give cause for concern to the States in question. The pretext for the proceedings instituted in Australia was not a betrayal of State secrets but a breach of confidentiality. The articles in the Observer and The Guardian of June 1986 concerned similar facts.

The courts concluded that the source of the material was Spycatcher's publishers. The proceedings instituted by the Attorney General were founded on the breach of confidentiality.

The interlocutory injunction issued by Mr Justice Millett in July 1986, based on a failure to comply with the duty of discretion, already constituted in my view an infringement of the freedom of expression. That freedom cannot be made subject to the criterion of confidentiality, otherwise there would no longer be any literature.

In any event the extension of the injunction beyond a few days or weeks (until October 1988) constituted an additional infringement of the freedom of expression, because where the press is concerned a delay in relation to items of current affairs deprives a journalist's article of a large part of its interest. The publication in America and in Europe of more significant memoirs by the heads of secret services has never given rise to a similar prohibition (see in France the books of Mr de Maranches and Mr Marion).

One gets the impression that the extreme severity of Mr Justice Millett's injunction and of the course adopted by the Attorney General was less a question of the duty of confidentiality than the fear of disclosure of certain irregularities carried out by the security service in the pursuit of political rather than intelligence aims.

In this respect there was a violation of the right to receive information, which is the second component of Article 10 (art. 10).

To deprive the public of information on the functioning of State organs is to violate a fundamental democratic right. However, the majority of the Court concerned itself with the first aspect rather than the second.

If the State believes that a publication puts at risk State secrets or national security, there are other procedural means at its disposal. If the State contests a failure to comply with the duty of discretion on the part of a retired civil servant, appropriate procedures are available. In the present case the State did not prosecute Mr Wright.

However, the United Kingdom should, by virtue of the positive obligation imposed by the European Convention, have secured the public's right to be informed. At the hearing the Government did not enlarge upon this issue.

An interim injunction, not subsequently lifted after a short period, is in effect a disguised means of instituting censure or restraint on the freedom of the press (other disguised means used in other countries include prosecution for alleged tax offences).

The violation is in my view all the more patent in that it is confirmed by the decision finding a violation as regards the second period. The majority's reasoning is indeed based on interference with the freedom of expression; but to explain the contrary decision concerning the first period the Court confines itself to stating as follows:
"What they also omit is the fact that in July 1986 Spycatcher existed only in manuscript form. It was not then known precisely what the book would contain and, even if the previously-published material furnished some clues in this respect, it might have been expected that the author would seek to say something new. And it was not unreasonable to suppose that where a former senior employee of a security service - an 'insider', such as Mr Wright - proposed to publish, without authorisation, his memoirs, there was at least a risk that they would comprise material the disclosure of which might be detrimental to that service; it has to be borne in mind that in such a context damaging information may be gleaned from an accumulation of what appear at first sight to be unimportant details. What is more, it was improbable in any event that all the contents of the book would raise questions of public concern outweighing the interests of national security." (see paragraph 61 of the judgment)

The contradiction in the way the two periods were viewed is in my opinion the following: on the one hand, a decision imposing a restriction based on mere suppositions or assumptions by the  Attorney General and the competent court is regarded as justified; on the other, the publication of the book in the United States and then its partial circulation are said to have rendered the continuation of the injunction unjustified.

But freedom of expression in one country cannot be made subject to whether or not the material in question has been published in another country. In the era of satellite television it is impossible to partition territorially thought and its expression or to restrict the right to information of the inhabitants of a country whose newspapers are subject to a prohibition.

The publication abroad was not truly material to the pretext invoked initially, namely confidentiality, because that had already been breached by Mr Pincher's books and the Granada programmes before Mr Justice Millett's order and because it was in any case very relative. It is possible, with hindsight, to measure the weakness of the Attorney General's argument, although he persisted with the proceedings in 1987 and in 1988. This requirement of confidentiality, which according to him was of major importance, was as it turned out regarded as insignificant by the courts as soon as the information had become known abroad and the book Spycatcher reached the United Kingdom clandestinely in the luggage of a few citizens and tourists.

It is true that in the decision on the merits Mr Justice Scott, in keeping with the great liberal and judicial tradition of the United Kingdom, found that the Observer and The Guardian had not infringed the duty of discretion, but he did so belatedly, not until 21 December 1987.

On 13 October 1988 the House of Lords rightly decided that it was not necessary to restrain the Observer and The Guardian from disseminating the contents of the book.

These contradictory decisions of eminent judges show the lack of clarity of the position adopted by the Attorney General. The first decision of the United Kingdom courts remains a surprising one. If the majority of the Court had reasoned on the basis of the "right to receive information" aspect, it would undoubtedly have found a violation for both periods.

It may be recalled that in the Elliniki Radiophonia Tiléorassi - Anonini Etairia case (Case no. 260/89), Mr Lenz, Advocate General at the Court of Justice of the European Communities, made the following observations in his Opinion: (unofficial translation)

"49. The Rules of the Convention must be regarded as an integral part of the Community legal system. Television Directive ... indicates in this connection that the first paragraph of Article 10 (art. 10) of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by all the Member States, applied to the broadcasting and distribution of television services, is likewise a specific manifestation in Community law of a more general principle, namely the freedom of expression. This right must therefore be observed by the Community organs.

50. However, it is also clear that the Court of Justice is not required to rule in the first instance on alleged or real violations by the Member States of the human rights secured under that Convention (that is the role of the organs so designated by the European Convention on Human Rights); ..."

The judgment of the Court of Justice of the European Communities, delivered on 18 June 1991, contains the following passage:

(unofficial translation)

"41. As regards Article 10 (art. 10) of the European Convention on Human Rights ..., it should be noted in the first place that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In so doing, the Court draws inspiration from constitutional traditions common to the Member States and from indications provided by the international treaties for the protection of human rights on which the member States have collaborated or of which they are signatories (see, inter alia, the judgment of 14 May 1974, Nold, Case no. 4/73 ECR [1974] 491, at paragraph 13). In this connection the European Convention on Human Rights is of particular significance (see, inter alia, the judgment of 15 May 1986, Johnston Case no. 222/84, ECR [1986] 1651, paragraph 18). It follows that, as the Court affirmed in the judgment of 13 July 1989, Wachauf (Case no. 5/88, ECR [1989] 2609, at paragraph 19), measures incompatible with the respect for the human rights therein recognised and secured are not permissible in the Community."

The eminent judge Lord Bridge appositely observed in the House of Lords in his dissenting opinion:
"Freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road. The maintenance of the ban, as more and more copies of the book Spycatcher enter this country and circulate here, will seem more and more ridiculous. If the Government are determined to fight to maintain the ban to the end, they will face inevitable condemnation and humiliation by the European Court of Human Rights in Strasbourg. Long before that they will have been condemned at the bar of public opinion in the free world." ([1987] 1 Weekly Law Reports 1286F)

The same line of thought is reflected in the words of Mr Redwood, a United Kingdom Secretary of State, when he gave vent to his anxiety concerning the "current flood of restrictive directives from the EEC which threatens the freedom of expression" (Le Monde, 3 November 1991).

The protection afforded by Article 10 (art. 10) is therefore essential; this has always been the approach of the European Court in its judgments: Sunday Times I, Barthold, Lingens.

The defence of democracy cannot be achieved without the freedom of the press. The countries of Eastern Europe which have thrown off the shackles of totalitarian rule have well understood this. The European Court through all its earlier judgments has shown its attachment to the protection of freedom of expression and the priority which this is acknowledged to have.

To remain consistent with its case-law it should, in my view, have found a violation for both periods. The Council of Europe has together with the organs of the European Convention a crucial task: this is to introduce true freedom of expression in all its forms and at the same time guarantee the public's right to receive information. This acquired democratic right must be preserved if we wish to protect freedom of thought!

PARTLY DISSENTING OPINION OF JUDGE WALSH

1. I agree with the majority of the Court that in respect of the period 30 July 1987 to 13 October 1988 there was a violation of Article 10 (art. 10) of the Convention by reason of the injunctions imposed on the applicants in respect of that period.

2. Unlike the majority of the Court I am of opinion that there was also a breach of Article 10 (art. 10) in respect of the period 11 July 1986 to 30 July 1987.

3. Freedom of the press is not totally unrestricted. The press in its pursuit of news is not free to counsel or to procure the commission of acts which are illegal, and may be restrained in appropriate cases from publishing material so gained, or may be liable in damages or may suffer both restraint and damages. In so far as breach of confidentiality amounts to an illegality either on the criminal side or on the civil side the newspapers will be so liable in respect of matters the revelation of which they have counselled or procured.

4. Their liability is not necessarily the same when their news gathering has benefited from windfall revelations which may have resulted from some breach of confidence for which they have no responsibility. It is a legitimate activity of the press to follow up such news and to publish the results of their inquiries provided in so doing they do not come in conflict with, say, national security. However that cannot be invoked to gain a restriction simply by an expression of opinion on the part of the authorities as was the case here. The issues of breach of confidence and national security were joined by the Government in the present case to the extent that the lines between them were blurred in the initial application for an injunction. The truth or falsity of the "revelations" was not put in issue. It appears to me that for the purposes of Article 10 (art. 10) of the Convention the publication of "revelations" cannot be restrained without at least an allegation of their truth by the moving party. If, as was done in the Australian hearing, the Government simply "admits the truth" for the purposes of the case the application to restrain becomes moot. Sufficient of the allegations by Mr Wright had already become public to enable the truth or otherwise of them to be ascertained. The identification of Mr Wright as the source did not affect that issue.

Even if the truth of the principal allegations is to be assumed, namely that the Security Service agents had indulged in illegal activities, that had already been publicly aired in a manner which left no doubt that Mr Wright, by his writings, conversations and television interview, was at least one source of the allegations.

The applicant newspapers campaigned for an investigation of the allegations and their subsequent conduct was in furtherance of that campaign. They were not engaged directly or indirectly in debriefing Mr Wright on other knowledge he had gained as a secret service agent. There was no indication that the newspapers were intent on publishing any material other than what was directly related to information already published and which it had not been sought to restrain. The "revelation" that Mr Wright was personally involved in the commission of the alleged illegal activities could scarcely be regarded as a restrainable piece of information in the light of all that was already known.

5. In view of the fact that the claim of confidentiality made in support of the initial application for a restraining order never made clear that a true breach of confidentiality was imminent, namely that true facts were threatened with disclosure, the Attorney General's position, which it was sought to protect, was never really made known at that stage. In my opinion the circumstances were insufficient to bring the case within the area of restrictions permitted by Article 10 para. 2 (art. 10-2) of the Convention.

It is clear that the matters the applicants had wished to deal with were of great interest to the public and perhaps even of concern. The public interest invoked by the Government appears to be equated with Government policy. That policy may very well justify, in the Government's view, making every effort to stem leakages from the Security Service or indeed in the interests of that service to take no action at all to deal with the allegations or indeed to pursue

Mr Wright in any way available. These are policy matters and are not grounds for invoking the restrictions permitted by Article 10 para. 2 (art. 10-2) . Equally it may be understandable that, as was evident, the main objective of the proceedings was to act as a deterrent to those who in the future might be tempted to reveal secrets gained from their work as agents or members of the Security Service. That, however, is not a consideration which can justify the application of the restrictions on the press permitted by Article 10 para. 2 (art. 10-2). The relief sought against the applicants, as distinct from Mr Wright, has not been shown to have been, in all the circumstances, necessary in the democratic society which is the United Kingdom.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(concerning prior restraint), JOINED BY JUDGES PETTITI, RUSSO, FOIGHEL AND BIGI

I cannot endorse the Court's reasoning concerning prior restraint upon publications. Nor can I agree with its finding that, in the present case, the applicants' right to freedom of expression was not violated before the end of July 1987.

In my view, it was violated not only after that date and until the case was concluded in October 1988, but already from the very beginning of the proceedings in June 1986, when the Attorney General set about seeking injunctions against them.

My reasons for so finding are simple. I firmly believe that "the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraint"*: in a free and democratic society there can be no room, in time of peace, for restrictions of that kind, and particularly not if these are resorted to, as they were in the present case, for "governmental suppression of embarrassing information"** or ideas.

_______________

* Justice Black, joined by Justice Douglas, in the case, very similar to the present one, of the Pentagon Papers, New York Times v. U.S. and U.S. v. Washington Post (1971), 403 U.S. 713, at 717.

Although they were there used in the context of the Constitution of the United States of America, these words perfectly express the general principle to be applied in this field.

** Justice Douglas, joined by Justice Black, in the same case, at 723-724.

_______________

Of course, those who publish any material which a pressing social need required should remain unpublished may subsequently be held liable in court, as may those acting in breach of a duty of confidentiality. They may be prosecuted if and in so far as this is prescribed by penal law, and they may in any case be sued for compensation if damage has been caused. They may also be subject to other sanctions provided for by law, including, as the case may be, confiscation and destruction of the material in question and forfeiture of the profit obtained.

Under no circumstances, however, can prior restraint, even in the form of judicial injunctions, either temporary or permanent, be accepted, except in what the Convention describes as a "time of war or other public emergency threatening the life of the nation" and, even then, only "to the extent strictly required by the exigencies of the situation"*.

_______________

* Article 15 (art. 15) of the Convention.

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SEPARATE OPINION OF JUDGE DE MEYER

(concerning domestic remedies), JOINED BY JUDGE PETTITI

I cannot subscribe to the third sub-paragraph of paragraph 76 of this judgment. The reasons given in the second sub-paragraph suffice to conclude that there was, in the present case, no violation of the right of the applicants to an "effective remedy before a national authority".

The question whether a certain treaty is, or is not, "incorporated into domestic law" may be of some interest as regards other kinds of treaties. It has no relevance when fundamental rights are concerned: these are of such a nature that it cannot be necessary to have them formally "incorporated into domestic law".

As I stated already on another occasion, the object and purpose of the European Convention on Human Rights was not to create, but to recognise rights which must be respected and protected even in the absence of any instrument of positive law*. It has to be accepted that, everywhere in Europe, these rights "bind the legislature, the executive and the judiciary, as directly applicable law"** and as "supreme law of the land, ... anything in the constitution or laws of any State to the contrary notwithstanding"***.

_______________

* See my opinion concerning the Belilos case, Series A no. 132, p. 36. See also Article 1 (art. 1) of the Convention, particularly in the French text.

** See Article 1, section 3, of the Basic Law of the Federal Republic of Germany.

*** See Article VI, section 2, of the Constitution of the United States of America.

_______________

SEPARATE OPINION OF JUDGE VALTICOS

(Translation)

While in full agreement with the foregoing judgment, I wish to comment on a passage which appears at paragraph 76 of the text. It is recalled therein, at the third sub-paragraph, that "the Court has held on several occasions that there is no obligation to incorporate the Convention into domestic law". This statement is correct, but remains somewhat over-succinct.

It cannot of course be disputed that under international law the strict obligation incumbent on States which ratify a convention concerning their legislation and their practice is to give effect to the convention at national level and that this does not necessarily mean that the actual terms of the convention must as such be transposed into the domestic legal system. What is essential is that the convention is, in one way or another, complied with. All this is beyond question and indeed elementary.

There is however in this connection a tendency towards over-simplification which leads to confusion. The starting point is that the formal effects which the ratification of a convention entails at domestic level naturally depend on the national constitutional system or practice and that, in this respect, under the said system (or practice) in several countries (moreover an increasing number of them) that ratification entails the incorporation of the ratified text into domestic law, while in others the two orders (international and municipal) remain distinct, even though sometimes the ratifying statute expressly enacts this incorporation. It is also worth noting that such incorporation is moreover effective, at least directly, only if the convention provisions are - according to the generally accepted expression - self-executing, in other words capable of execution without implementation by more specific (national) rules. All this is well-known and calls to mind old academic quarrels, happily mostly forgotten, and I trust that I shall be forgiven for recalling these self-evident truths.

I consider nevertheless that it is necessary to return, at least indirectly, to this question here because I wish to draw the following conclusion: yes, the Court is right when it affirms once again that States are not bound to incorporate the actual terms of the Convention into their national legal system. This statement should however be supplemented by adding: "but they are of course under a duty to give it effect". Some will say that this is only to state the obvious. Indeed it is, but the affirmation should be further qualified by: "and the obligation to give it effect is often best fulfilled where the terms of the Convention are transposed into the domestic legal system". This has nothing to do with national constitutional systems or with the old "monist" v. "dualist" quarrels. What is suggested is that the States whose  constitutional system does not automatically effect such incorporation should carry it out by an express measure, whether legislative or otherwise, following the ratification, accompanying it, if necessary, by provisions intended either to implement the provisions of a general nature or to adapt the national system to the new standards. Who would dispute that the national courts, whose attention would thus be drawn to the very terms of the Convention, which will have become national law, would find in the provisions, even the general ones, of the Convention, elements and criteria rendering their full application easier, and this may be the case even where the Government concerned consider that the existing legislation or case-law already gives effect to the Convention standards?

Although such a measure is not obligatory, it is nevertheless highly desirable with a view to ensuring not only better knowledge of the Convention but certainly also a more complete implementation thereof. This is the general conclusion which I have arrived at after more than thirty years of practice in the sphere of application of international conventions concerning human rights.

It is, in the instant case, the necessary addition to the principle briefly set out by the Court.

PARTLY DISSENTING OPINION OF JUDGE MARTENS

A. Introduction

1. Like the majority of the Court, I consider that the interim injunctions, as maintained by Mr Justice Millett in his judgment of 11 July 1986, constituted an interference with O.G.'s exercise of their freedom of expression, within the meaning of paragraph 1 of Article 10 (art. 10-1). Unlike the majority, however, I find myself unable to accept that this interference was justified under paragraph 2 of that Article (art. 10-2) even during the period from 11 July 1986 to 30 July 1987.

More specifically, I am not satisfied that the requirement of necessity was met.

B. Particular features of the present case

2. The interim injunctions sought by the Attorney General against O.G. formed part of the legal campaign on which the British Government embarked when they learned that Mr Wright intended to publish his memoirs. This campaign started with the Attorney General's claim in the Australian courts for an injunction to restrain publication of the book. It continued when, after publishing short articles giving details of some of the contents of the book, O.G. refused to give undertakings that were acceptable to the Attorney General: he then sought permanent injunctions against any publication by O.G. of Spycatcher material and, within the ambit of these proceedings, interim injunctions to the same effect.

Such interim injunctions were granted ex parte on 27 June 1986 and then continued, with some modifications, by Mr Justice Millett in his aforementioned judgment.

3. In legal terms, this campaign was based on the proposition that the disclosure by Mr Wright of information derived by him from his work for the Security Service would constitute a breach of a duty of confidentiality, as would disclosure by O.G., since they had obtained the information knowing that it originated from that breach. However, the Government's principal concern was - as Mr Justice Millett put it - "not with what Mr Wright says, but with the fact that it is a former senior officer of the Security Service who says it". Accordingly, their campaign was mainly designed to secure implementation of the idea that members of the Security Service - to quote the same judge - "simply cannot be allowed to write their memoirs". The appearance of confidentiality being essential to the effective operation of the Security Service, the damage caused by the news that one of its former senior members was contemplating publishing his memoirs could - to borrow again from Mr Justice Millett's judgment - "be undone only if he was swiftly and effectively stopped, and seen to be stopped" (emphasis added). This applied to all indirect publication as well.

4. O.G., however, wished to be free to publish information which might come into their possession, even if it derived directly or indirectly from Mr Wright, in so far as it disclosed misconduct or unlawful activities on the part of members of the Security Service.

Like Mr Wright in the Australian proceedings, they claimed that it was in the public interest that evidence of such misconduct should be published, part of such evidence being that the allegations thereof were made by a former senior officer of the service on the basis of information acquired by him whilst employed by it.

5.1 It follows from paragraph 4 that the impugned interim injunctions do constitute what is commonly called a "prior restraint".

5.2 When giving judgment on the appeal from Mr Justice Millett's decision, the Master of the Rolls started by saying, somewhat deprecatingly: "'Prior Restraint' are two of the most emotive words in the media vocabulary." There is, however, no ground for deprecating the emotion these words tend to generate, because they designate, especially with regard to the media, what undoubtedly is, after censorship, the most serious form of interference with a freedom which, as this Court has rightly emphasised time and again, constitutes one of the essential foundations of a democratic society (see, as the most recent example, the Oberschlick judgment of 23 May 1991, Series A no. 204, paras. 57 et seq.). In the present case the prior restraint concerned, moreover, possible comment by two "responsible newspapers" (I quote again from the Master of the Rolls) "in the context of public debate on a political question of general interest" (borrowed from paragraph 60 of the Oberschlick judgment). Its consequences were all the more dramatic since, under the doctrine of contempt of court as understood (apparently for the first time) by the Court of Appeal in the Independent case, it gagged not only O.G. but all media within the jurisdiction of the English courts.

C. The Court's task when reviewing necessity

6. In its Handyside judgment of 7 December 1976 (Series A no. 24, pp. 23-24, para. 50) the Court had already made it clear that when reviewing the "necessity" of an interference it had to decide, on the basis of the different data available, "whether the reasons given by the national authorities to justify the actual measures of 'interference' they take are relevant and sufficient under Article 10 para. 2 (art. 10-2)" (idem: the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 38, para. 62, and the Barthold judgment of 25 March 1985, Series A no. 90, p. 25, para. 55).

Recently, in paragraph 60 of its aforementioned Oberschlick judgment, the Court specified that this test implies that it has to satisfy itself that the national authorities "did apply standards which were in conformity with these principles" - i.e. the principles to be derived from Article 10 (art. 10) - "and, moreover, that in doing so they based themselves on an acceptable assessment of the relevant facts".

D. Application of this test

7. Accordingly, in order to determine whether the prior restraint can be held justified it is necessary to examine very carefully:
(a) whether, in deciding to impose this exceptional measure, the national authorities did apply standards which were in conformity with the principles to be derived from Article 10 (art. 10); and
(b) whether, in doing so, they based themselves on an acceptable assessment of the relevant facts. In my opinion, such examination cannot but lead to the conclusion that both limbs of this question must be answered in the negative.

I will explain why.

E. The standards used

8. I start with the first limb: what standards were applied (paragraphs 9 and 10) and are they in conformity with the principles to be derived from Article 10 (art. 10) (paragraph 11)?

I note that, in addressing these two questions, it is sufficient to analyse the judgment of Mr Justice Millett, because in the subsequent stages of the interlocutory proceedings not only was his decision held to be justified, but also no fundamental criticism was levelled as to the legal principles on which he had based it.

9.1 Mr Justice Millett started from the assumption that there was at best a conflict of two legitimate public interests: on the one hand, the (incontestable) interest the public has in the maintenance of confidentiality within any organisation as a condition for its efficiency and, on the other, the (possible) interest of the public in being informed of unlawful acts or other misconduct. He held that the applications to discharge the ex parte injunctions could be granted only if O.G. had satisfied him that the latter interest existed and outweighed the former.

9.2 Leaving aside (as immaterial for the present purposes) the complication that interim injunctions had already been granted ex parte so that it was O.G. who had to apply for their discharge, the conclusion must be that the standard used by the national judge for deciding whether or not to impose a prior restraint was: an interim injunction sought for the purpose of preserving confidentiality should be granted unless the defendant satisfies the court that
(a) disclosure is in the public interest and
(b) this interest outweighs the interest in preserving confidentiality.

10.1 Mr Justice Millett left open the question whether the standard he used was an exception to or an application of the American Cyanamid principles (see, for these principles, paragraph 10 of the Court's judgment), but held that he was satisfied that pecuniary compensation to either party would be wholly inappropriate. He continued by saying that, "in resolving the conflict" of interests, one of the particular facts he had to take into account was that "a refusal of injunctive relief may cause irreparable harm and effectively deprive the plaintiff of his right".

10.2 In my opinion, one can only infer from these and similar passages that the judge did apply the American Cyanamid principles, at least to the extent of tacitly assuming that the material before him did not disclose that the Attorney General did not have any real prospect of succeeding in his claim for a permanent injunction.

11.1 Are these standards in conformity with the principles to be derived from Article 10 (art. 10)? I do not think so.

11.2 I take first Mr Justice Millett's starting-point, namely that there was at best a conflict between two legitimate public interests, one in the maintenance of confidentiality, the other in receiving information about misconduct or impropriety. Evidently, for him these two interests had, in principle, the same weight.

This is, however, incompatible with Article 10 (art. 10). Under that provision the interest in freely receiving information clearly in principle outweighs the interest in "preventing the disclosure of information received in confidence": the latter interest is not in itself sufficient to justify an interference with the right to freedom of expression, but does so only if and in so far as the interference is "necessary in a democratic society". Similarly, under Article 10 (art. 10) it is not for the press, if threatened by a prior restraint, to ward off the interference by satisfying the court that (a) there is a public interest in imparting and receiving the information with regard to which the injunction is sought, and (b) this interest outweighs the interest in preserving the confidentiality of that information. That is to turn things topsy-turvy: under Article 10 (art. 10), freedom of the press is the rule and this implies that what has to be justified is the interference; therefore it is for the party seeking the restraint - in this case the Attorney General - to satisfy the court that the requirements of paragraph 2 are met, i.e. that the restraint can be said to be "necessary in a democratic society" (in the rather strict meaning these words have according to this Court's settled case-law) for the preservation of confidentiality.

11.3 Thus, the standard used unduly tipped the balance in advance in favour of the Attorney General, the party who was seeking to restrict freedom of expression. This is all the more serious because, when applying that standard, Mr Justice Millett - following the American Cyanamid principles as he did (see paragraph 10.2 above) - again favoured the Attorney General in a way which is incompatible with the principles to be derived from Article 10 (art. 10).

11.4 When applying the above standard, Mr Justice Millett was, as he pointed out, taking into account "that this is an interlocutory application and not the trial". Yet, without more ado, he also took into account that refusal of injunctive relief might "deprive the plaintiff of his right". In particular, he did so without going explicitly into the question whether the plaintiff in fact had any right and without inquiring what the Attorney General's chances were of obtaining permanent injunctions at the trial. As I have already said in paragraph 10.2 above, it must be inferred that the judge confined himself to ascertaining that, on the material before him, it could not be said that on the face of it the Attorney General's claim did not have any real chance of success.

11.5 When assessing whether this approach is in conformity with the principles to be derived from Article 10 (art. 10), it is important to realise that the interim injunction sought by the Attorney General in the interlocutory proceedings was merely a derivative from the permanent injunction sought by him in the main proceedings. I say "merely a derivative" because the interim injunction did not serve an independent purpose, but was intended solely to prevent (further) indirect publication until the court had had the opportunity to take a final decision as to whether indirect publication would be allowed or not.

11.6 It is also to be noted that under Article 10 (art. 10) both the interim and the permanent injunction could be granted only if they could be said to be "necessary in a democratic society". Just as the interim injunction is merely a derivative from the permanent one, so the necessity requirement for granting the former is but a derivative from that for granting the latter. Accordingly, the application for the interlocutory prior restraint could be granted only if the court were satisfied at that stage that the Attorney General's claim in the main proceedings would probably meet the requirement of necessity. It could hold the interlocutory injunction to be "necessary", within the meaning of Article 10 para. 2 (art. 10-2), only if it were satisfied that the claim for a permanent injunction would probably be accepted. If that was open to serious doubts or even merely uncertain, the interference could hardly be qualified as necessary: this, as the Court has repeatedly and rightly stressed, is a rather strict requirement, especially where the freedom of expression of the press in matters of public interest is at stake.

11.7 It follows that: (a) to comply with the principles to be

derived from Article 10 (art. 10), Mr Justice Millett should have imposed the interim prior restraint only if the Attorney General had satisfied him that the claim for a permanent injunction would probably succeed; and (b) by confining himself to examining whether it was evident that that claim did not have any real chance of success, the judge in fact applied a standard which was at variance with those principles.

F. The assessment of the facts

12.1 I now turn to the second limb of the question outlined in paragraph 7 above: was Mr Justice Millett's decision based on an acceptable assessment of the relevant facts? And I note that the expression "the relevant facts" implies (inter alia) reviewing whether facts that should have been taken into account under Article 10 (art. 10) were indeed duly considered. In this respect, I recall that the injunctions sought by the Attorney General against O.G. formed part of the legal campaign on which the British Government embarked when they learned that Mr Wright intended to publish his memoirs. Within the ambit of this campaign the relationship between the English and the Australian proceedings was similar to that which existed between the interlocutory and the main proceedings in England, as outlined in paragraphs 11.5 and 11.6 above: just as the Attorney General started the interim proceedings in order to preserve his position in his claim for a permanent injunction restraining all indirect publication of Spycatcher material, so he made that claim in order to preserve his position in the Australian case, where he asked for an injunction restraining publication of the book itself.

It follows that the probable outcome of the English proceedings (the relevance of which has been discussed in paragraphs 11.4 - 11.7 above) would depend to a large extent on that of the Australian proceedings: would the Attorney General's endeavours to stop the imminent publication of the memoirs be likely to succeed?

If their success would have been open to serious doubts, the same would have applied to the prospects of his claim for a permanent injunction against O.G. If, at the moment when the English courts would have to decide whether or not to grant that claim, his action concerning direct publication had already failed or was likely to do so shortly, those courts would hardly be in a position to hold that a permanent injunction against indirect publication should nevertheless be regarded as necessary.

12.2 These considerations show that Mr Justice Millett should have asked himself whether it was likely that the Government would attain what he - after a judicious analysis of the allegations made and the evidence submitted by the Attorney General - rightly considered as their goal, namely to stop swiftly and effectively Mr Wright's attempts to publish memoirs which should not even have been written (see paragraph 3 above). The learned judge failed, however, to do so and therefore cannot be said to have based his decision on an acceptable assessment of the relevant facts (see paragraph 6 above).

12.3 There is a second and, to my mind, still more important ground for so holding, namely that, if the question whether the Government would succeed in effectively keeping Spycatcher from the public had been considered, it should have been answered in the negative.

As the Government had been advised, proceedings to restrain publication of the book in the United States of America would fail (see paragraph 28 of the judgment). It was likely (and the events in 1987 clearly confirmed this) that Mr Wright had been similarly advised. It does not appear that Mr Justice Millett considered the repercussions of these facts and yet, within the context of the relationship between the English and the Australian proceedings, they are of decisive importance. The impossibility of preventing publication in the United States highlights that in this "age of information" information and ideas just cannot be stopped at frontiers any longer. Article 10 para. 1 (art. 10-1) has explicitly drawn the legal consequences of this situation.

Accordingly, under Article 10 (art. 10) the impossibility of restraining publication in the United States perforce implied that restraint in Australia could not be held to be "necessary", within the meaning of paragraph 2. It is immaterial whether the Australian courts would have drawn this conclusion when confronted with that impossibility. For it is the conclusion which a court in a member State should have drawn and that is what should have been deemed decisive in the context of the dispute between O.G. and the United Kingdom.

These considerations suggest that one of the respects in which I differ from the majority of the Court comes down to this: whereas for them the fact that the book had been published in the United States in the meantime is the sole decisive reason for holding that prior restraint on indirect publication in England was thenceforth no longer justified, for me the fact that the book could be legally published in the United States made it, even at the time when the Attorney General introduced his breach of confidence actions, so unlikely that Mr Wright could effectively be stopped that the interim injunction should never have been granted. But Mr Justice Millett did not take this factor into account, just as he did not consider what chances the Attorney General had of winning the Australian case.

G. Conclusion

13. To sum up: in my opinion, Mr Justice Millett's decision was based on standards that were not in conformity with the principles to be derived from Article 10 (art. 10) and also on a factual assessment which, in the light of this provision, is incomplete to a decisive degree. I therefore find myself unable to accept that, even during the period from 11 July 1986 to 30 July 1987, the interference was "necessary" under paragraph 2 of that Article (art. 10-2).

PARTLY DISSENTING OPINION OF JUDGE PEKKANEN

I regret that I am unable to agree with the majority of the Court that there was no violation of Article 10 (art. 10) of the Convention on account of the temporary injunctions binding on the applicants in the period from 11 July 1986 to 30 July 1987.

I agree with the majority that Article 10 (art. 10) does not prohibit the imposition on the press of prior restraints, as such, on the publication of certain news or information. However, taking into account the vital importance in a democratic society of freedom of expression and freedom of the press, the State's margin of appreciation in these cases is very narrow indeed. The use of prior restraints must be based, in my opinion, on exceptionally relevant and weighty reasons which clearly outweigh the public's legitimate interest in receiving news and information without hindrance. This leads me to the general conclusion that prior restraints can be imposed on the press only in very rare and exceptional circumstances and usually only for very short periods of time.

The aim of the temporary injunctions in this instance was to preserve the status quo during judicial proceedings. As such, this is a legitimate aim. But was there a pressing social need for these measures in a democratic society and were they proportionate to the aims pursued?

First of all, I would stress that in today's world news and information travel very quickly and easily from country to country and that it is practically impossible to stop this. As the present case shows, temporary injunctions imposed on the Observer and Guardian applicants - which were binding on all the British media through the operation of the doctrine of the contempt of court - could not prevent the flow of the information in question from abroad. Prior restraint was, therefore, not an effective means of achieving the aim of preserving the status quo. Furthermore, before the temporary injunctions were granted, the confidentiality of the material concerned had to a large extent already been destroyed by previous publications and television interviews.

Accordingly, there was no need for the restrictions on this occasion. These considerations alone show, in my opinion, that in the instant case there was no pressing social need for so drastic a measure as prohibiting the press from disseminating information.

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

1. I agree with the majority of the Court that the interlocutory injunctions imposed on the Observer and Guardian applicants ("O.G.") by Mr Justice Millett on 11 July 1986 ("the Millett injunctions") forbidding the publication of information obtained by Mr Peter Wright in his capacity as a member of the British Security Service - which injunctions extended to all the British media, including The Sunday Times, by virtue of the law of contempt of court and remained in force until 13 October 1988 - constituted an interference with O.G.'s freedom of expression and their right to hold opinions and to receive and impart information and ideas, guaranteed by Article 10 para. 1 (art. 10-1) of the Convention.

I also agree, but not without some hesitation, that this interference was "prescribed by law", as this expression is understood in the case-law of our Court (see the Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 30-31, paras. 47-49): in accordance with the common-law system, it was based on judicial precedents and they were adequately accessible and the result of their application sufficiently foreseeable.

Again, I share the majority's view that the injunctions were designed to protect the position of the Attorney General as a litigant pending the trial of his breach of confidence actions against O.G. and also served the purpose of protecting national security by preventing further dissemination of confidential information on the operation of the Security Service. Both of these aims are legitimate under paragraph 2 of Article 10 (art. 10-2).

I must, however, record my disagreement on the key issue, namely the necessity of such restrictions in a democratic society. At no time, in my opinion, were these temporary injunctions justified by a "pressing social need" or proportionate to any legitimate aims pursued. I must, therefore, dissent from the majority's conclusion regarding the period from 11 July 1986 to 30 July 1987.

2. In my view, this central issue should not have been separated into two periods, as was done by the Commission, "for the sake of clarity", and the majority of the Court. All the decisions, from that of Mr Justice Millett to that of the House of Lords in 1987, were part of the same interlocutory proceedings and O.G. were subject to essentially the same restrictions throughout the period from July 1986 to October 1988. Separating it into two has led to the somewhat inconsistent outcome of finding those restrictions to be partly in accordance with and partly in violation of the Convention.

On 29 April 1987 O.G. applied for the discharge of the Millett injunctions, notably because of reports that had appeared in three other English newspapers (see paragraphs 22-23 of the judgment).

On 12 July 1987, a date intended to coincide with that of the publication of Spycatcher in the United States of America, The Sunday Times published a first extract from the book (see paragraphs 27-28 of the judgment). Nevertheless, the House of Lords decided to maintain the injunctions and, as a result of the law of contempt of court, they bound all the British media, including The Sunday Times.

The publication of Spycatcher in the United States and the world-wide diffusion of Mr Wright's disclosures on the activities of MI5 are not "relevant", in my opinion, either to O.G.'s claim under Article 10 (art. 10) or to the breach of confidentiality that the Government imputed to them: they merely confirmed that to attempt to prevent the dissemination in English-speaking countries of information of general interest by imposing a judicial restraint on the British media was neither realistic nor effective.

3. The major principles emerging from the Court's case-law on Article 10 (art. 10) - with which principles I fully agree - are conveniently summarised in paragraph 59 of the present judgment and I do not need to elaborate on that summary here.

The Government have recalled the Court's observation, in its Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989 (Series A no. 165, p. 21, para. 37), that it should not substitute its own evaluation for that of the national courts where the latter, on reasonable grounds, have considered restrictions to be necessary. They have also submitted that the margin of appreciation to be afforded to the national authorities, in assessing whether the protection of national security demands the imposition of temporary restraints on publications, is a wide one.

The Court's observations in the markt intern case, which related to the publication in a specialised sector of the press of information of a commercial nature, do not in any way establish an exception to its supervisory jurisdiction, which is described in paragraph 59
(d) of the present judgment.

In the Convention system, the Court has been empowered to draw the line between the competence of the national courts and its own competence, while at the same time maintaining their respective responsibilities to secure the guaranteed rights and freedoms, according to Articles 1 and 19 (art. 1, art. 19). It is true that the State's margin of appreciation is wider when it is a question of protecting national security than when it is a question of maintaining the authority of the judiciary by safeguarding the rights of the litigants (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 36, para. 59, and the Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 59).

However, the margin of appreciation concept must always be applied, taking into account the circumstances of each case, on the basis of a coherent interpretation of Article 10 (art. 10) in accordance with the European case-law and certainly not in a manner that could destroy the substance of freedom of expression.

4. The overriding importance of freedom of expression, the vital role of the press in a democratic society and the right of the public to receive information on matters of general concern, all of which factors have been repeatedly emphasized in the case-law of this Court, required in the present case the application of a very strict test of necessity. When seeking to justify the restrictions imposed on O.G. on the grounds of the interests of national security and of preserving the Attorney General's rights until the trial, the Government have, in my opinion, failed to "establish convincingly" (see paragraph 59 (a) of the present judgment) that such a test was satisfied.

A. The interests-of-national-security issue

5. Like the members of the majority of the Commission, Mr Frowein, Mr Busuttil and Mr Weitzel, I am of the opinion that the primary concern of the English courts in the present case was not the protection of national security but the protection of confidentiality. The danger for national security was alleged indirectly, as resulting from the loss of confidentiality and the impairment of the efficiency and reliability of the Security Service. Thus, Mr Justice Millett said in his judgment (transcript, p. 11E-F): "It is obvious that a Security Service must be seen to be leak-proof. The appearance of confidentiality is essential for its proper functioning. Its members simply cannot be allowed to write their memoirs."

The interlocutory injunctions had the consequences that
(1) a restraint was imposed without a full hearing of the plaintiff's arguments;
and
(2) the ban extended to all the media by operation of the common-law doctrine of criminal contempt of court. And, in fact, contempt of court proceedings were instituted against The Independent, The London Evening Standard, the London Daily News and The Sunday Times (see paragraphs 22 and 27 of the judgment).

The national judges were well aware of the gravity of the measure. Mr Justice Millett said in his judgment (transcript, p. 6B-C) that "prior restraint of publication is a serious interference with the freedom of the Press and the important constitutional right to freedom of speech". In the Court of Appeal on 25 July 1986, Sir John Donaldson began his judgment (transcript, p. 3A) by stating that "'Prior Restraint' are two of the most emotive words in the media vocabulary. Accordingly The Guardian and the Observer reacted swiftly and forcefully to news that Mr Justice MacPherson had granted an ex parte injunction on 27 June 1986 ...".

6. In fact, distrust for these provisional restraints on the press is long-established in the common-law tradition. Blackstone wrote in 1765 in his "Commentaries on the Law of England" a sentence which it has become obligatory to quote: "The liberty of the Press is indeed essential to the nature of a free State: but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published."

The United States case-law cited by "Article 19", the International Centre against Censorship (see paragraph 6 of the present judgment), has consistently held that the principal purpose of the First Amendment's guarantee is to prevent prior restraints. With regard to the national-security aim the United States Supreme Court declared in Near v. Minnesota (283 U.S./718) that: "The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right."

The other leading decisions of that Court, such as those in New York Times Co. Ltd v. the U.S., 403 U.S./713 (1971) (the Pentagon Papers case), Landmark Communications Inc. v. Virginia, 425 U.S./829 (1978) (the Landmark case), Nebraska Association v. Stuart, 427 U.S./ 593 (1976) and U.S. v. The Progressive, 486 F. supp. 990 (1979) (the Hydrogen Bomb case), have consistently required that very strict conditions ("all but totally absolute") must be satisfied before prior restraints can be imposed on the publication of information on matters related to national security.

In the words of the Nebraska judgment, "the thread running through all these cases is that prior restraints on speech or publication are the most serious and least tolerable infringement on the First Amendment rights ... A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraints 'freeze' it, at least for a time." Justice Brennan, concurring with the judgment, stated "although variously expressed it was evident that even the exception was to be construed very, very narrowly: when disclosure 'will surely result in direct, immediate and irreparable damage to our nation or its people'".

7. While sharing the view of the majority expressed in paragraph 60 of the present judgment, I believe that restrictions on freedom of expression such as those imposed on O.G. allegedly to protect national security are very far from fulfilling these standards. The Government have not shown the "direct, immediate and irreparable damage" to the security of the United Kingdom that was or would have been occasioned by the articles published by O.G. or from the disclosures which it was feared at the time that Mr Wright might make. Mr Justice Millett said in his judgment (transcript, p. 10F): "It is clear from those passages [in Sir Robert Armstrong's affidavits] that the true nature of the Attorney General's objection is not to the fresh dissemination of allegations about past activities of the Security Service of the kind outlined in the recent articles published by the defendants.

They are ancient history and have been the subject of widespread previous publicity."

The "appearance of confidentiality" may be "essential to the effective operation of the Security Service" - as it is to other public services - but, for the purposes of Article 10 para. 2 (art. 10-2) of the Convention, it does not, in my opinion, of itself justify the imposition, on the grounds of protecting national security, of a prior restraint that impairs freedom of the press and the right of the public to be properly informed.

Dissemination of the information in question could be restricted "only if it appeared absolutely certain" that its diffusion would have the adverse consequence legitimately feared by the State (see, mutatis mutandis, the above-mentioned Sunday Times judgment, Series A no. 30, pp. 41-42, para. 66). The two Law Lords who dissented from the decision of the House of Lords of 30 July 1987 expressed their views on this point.

Lord Bridge of Harwich said that "freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1286F). Lord Oliver of Aylmerton stated that "to attempt, even temporarily, to create a sort of judicial cordon sanitaire against the infection from abroad of public comment and discussion is not only, as I believe, certain to be ineffective but involves taking the first steps upon a very perilous path" (ibid., 1321D).

8. When considering whether the injunctions imposed on O.G. by the national authorities were necessary for and proportionate to the aim of protecting national security, I see the following circumstances as militating against the necessity of so serious a restriction.

(a) The Government had neither indicated precisely what information in the articles published by O.G. imperilled British security operations nor demonstrated the imminent or substantial danger for national security they created.

(b) The articles, which appeared on the inside pages of the newspapers, were short and fair reports on the issues in the Australian proceedings. The allegations about the activities of MI5 had, according to Mr Justice Scott (Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 Appeal Cases 128-138), been divulged before in twelve books and three television programmes, and especially in two books written by Mr Chapman Pincher in 1981 and 1984 and in a television interview with Mr Wright himself that had been publicly announced in advance.

And, as the Vice-Chancellor, Sir Nicolas Browne-Wilkinson, stated (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1264C), "in the present case, it is not suggested, nor could it be, that The Guardian and the Observer have in any sense been involved in any activity with Mr Wright leading to the publication of his book ... . They have not aided and abetted Mr Wright in his breach of duty." He concluded that if "a third party who is not a participator in the confidant's breach of duty receives information which at the time of receipt is in the public domain - that is to say, he gets it from the public domain - in my judgment he would not, as at present advised, come under any duty of confidence" (ibid., 1265E).

(c) The Government had neither taken any steps to prosecute Mr Wright or the authors or editors of the earlier publications under the Official Secrets Act 1911 nor brought civil actions for breach of confidence seeking a declaration, damages or an account of profits.

(d) The claim for permanent injunctions against the newspapers was based on rather hypothetical grounds, for example:
(1) their information was obtained directly or indirectly from Mr Wright;
(2) they wished to publish further disclosures about the activities of the Security Service; (3) this would endanger the efficient operation of the Service and its "appearance of confidentiality"; and
(4) this would also encourage other members or former members of the Service to publish confidential information.

(e) The evidence adduced by the Attorney General at the interlocutory stage was the two affidavits sworn by Sir Robert Armstrong in the Australian proceedings, which emphasized that the preservation of the appearance of confidentiality was essential to the effective operation of the Security Service. It deserves to be stressed that, in fact, as the Commission pointed out in its report (paragraph 89), "the evidence upon which the House of Lords based its decision on the merits in October 1988 was substantially available at the outset in July 1986 and fully available by July 1987".

B. The maintenance-of-the-authority-of-the-judiciary issue

9. As stated before, one aim of the temporary injunctions was the preservation of the rights of the Attorney General pending the substantive trial. The Government contended that the imposition of an interlocutory injunction to restrain publication of material which is the subject-matter of an action might, if publication in advance of the trial would destroy the substance of the action, in principle be considered necessary in a democratic society for maintaining the authority of the judiciary, in terms of the Court's above-mentioned Sunday Times judgment (Series A no. 30, p. 42, para. 66). While accepting in abstracto such a proposition, I consider, nevertheless, that in the circumstances of the present case the Government have failed to show that the grant of an injunction on this ground responded to any "pressing social need" or that the measure was proportionate to the aim pursued.

10. Interlocutory injunctions provisionally restrain the parties to a civil suit from taking any action that could endanger the final decision of the court. They are thus designed to preserve the status quo until the trial in order to ensure, in a case where an award of damages would not compensate for the injury caused by the defendant, that the judgment will be effective.

The general principles governing the grant of interlocutory injunctions were enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396; see paragraph 10 of the present judgment), a case relating to the alleged infringement of a patent. On that occasion the House modified the former criteria by directing that, instead of examining whether the evidence disclosed a prima facie case of infringement, the court should only check whether the plaintiff's claim for a permanent injunction had any real prospect of success, that is whether he had an arguable case. If the claim was not "frivolous or vexatious", the question whether an injunction should be granted was to be determined in the light of the "balance of convenience" between the conflicting interests of the litigants.

It was on the basis of these American Cyanamid rules that the Millett injunctions were granted and subsequently upheld in the interlocutory proceedings.

11. The application of these revised criteria clearly favours a plaintiff who seeks a temporary injunction because, without having a full trial on the main issue of whether or not the alleged confidential information may be published, he can succeed merely by showing that his case is "arguable".

Indeed, in the present case the rigid application of the American Cyanamid principles led to the "inevitable" imposition of a prior restraint on the media, which directly impaired O.G.'s freedom of expression and the right of the public to be informed quickly about matters of legitimate general concern, such as allegedly unlawful activities on the part of the Security Service.

Consequently, the legal strategy of the Attorney General turned out to be in conflict with the "necessity" test under Article 10 para. 2 (art. 10-2) of the Convention and the national courts, when balancing the conflicting interests at issue, did not give sufficient weight to the fundamental importance in a democratic society of freedom of expression.

The particular circumstances of the case, to which I have already referred in section A above, and the following factors, which were all clearly apparent when the claims for interlocutory injunctions were determined, meant that the restrictions on the media sought by the Government were not justified under Article 10 para. 2 (art. 10-2) for the aim of maintaining the authority of the judiciary.

(a) For the first time the Attorney General was instituting private-law proceedings relating to a breach by a former employee of the Security Service of his duty of confidence and, relying on a commercial-law precedent, was seeking an interlocutory injunction to preserve his claim for a permanent injunction as the sole means of protecting that duty of confidence. Lord Oliver of Aylmerton said, "I have not been able to find nor have your Lordships been referred to any previously reported decision which could be said to be even remotely parallel to the instant case" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1315G).

(b) In June 1986 Mr Wright's disclosures were already in the public domain and the information was no longer confidential because, as stated above, they had been published in several books and divulged by him in a television interview, with no reaction on the part of the Government. Mr Justice Millett was very explicit on this point when saying in his judgment, "the allegations themselves may be compiled from a number of published sources by anyone who takes the trouble to go to them" and "the objection is not to the allegations themselves, but to Mr Wright's input. It is true that Mr Wright has provided information on previous occasions, once in a television interview and, if footnotes to certain published works are to be believed, by collaborating with their author" (transcript, pp. 5C and 13B).

(c) As a consequence, the aim of preserving the status quo could not be attained because of the leakage of the confidential information and the absence of any previous reaction by the Government.

(d) The application of the American Cyanamid principles to a case of breach of confidence involving matters of legitimate public concern had the consequence of imposing on the media - without a full hearing on the issue of whether or not the information might be published - a prior restraint implying, because of the threat of contempt of court proceedings, a partial self-censorship.

In fact, the rationale of the Millett injunctions was to maintain the "appearance of confidentiality" of the Security Service by forbidding - through the imposition on the media, albeit temporarily, of an immediate restraint - the publication of anticipated further disclosures or "leakages" in the Service.

The English courts arrived at this decision after applying the "balance of convenience" test and this resulted in a serious limitation on freedom of expression. Mr Justice Millett said on this point (transcript, p. 8D) that "it makes no difference that the claim to suppress publication is made by the Government and not by a private litigant; the principles remain the same". However, while that test may be correct under English law, it is not acceptable when it comes to deciding whether a limitation of freedom of expression of the kind involved in this case is justified under Article 10 para. 2 (art. 10-2) of the Convention.

I agree with the majority of the Commission that, when it is the Government which seek to restrict the dissemination of information that is of considerable public interest, the need for a temporary injunction "should be established with particular clarity and certainty" because of the predominant place occupied by freedom of expression and the international obligation incumbent on the public authorities not to interfere with it.

(e) The fact that, as noted in the interlocutory decisions, O.G. were in no way involved in Mr Wright's proposed publication was overshadowed by their admission that they wished to publish credible information, of legitimate public concern, relating to the unlawful operation of the Security Service or the misconduct of its members. Mr Justice Millett's opinion that "disclosures to the proper authorities may be sufficient in some cases" also seems inconsistent with the right to receive and impart information and ideas enshrined in Article 10 (art. 10). The public has a right to be promptly informed on such matters, irrespective of whether a report is made to the proper authorities with a view to prosecution and punishment. Since a limitation on freedom of the press was involved, greater weight should have been given to the "iniquity defence" (the right to report misconduct) relied on by O.G.

The dangers of so rigid an application of this precedent were pointed out by Lord Oliver of Aylmerton when he said: "The guidelines laid down by this House in American Cyanamid Co. v. Ethicon Ltd ... have come to be treated as carved on tablets of stone, so that a plaintiff seeking interlocutory relief has never to do more than show that he has a fairly arguable case. Thus the effect in a contest between a would-be publisher and one seeking to restrain the publication of allegedly confidential information is that the latter, by presenting an arguable case, can effectively through the invocation of the law of contempt, restrain until the trial of the action, which may be two or more years ahead, publication not only by the defendant but by anyone else within the jurisdiction and thus stifle what may, in the end, turn out to be perfectly legitimate comment until it no longer has any importance or commands any public interest" (Attorney General v. Times Newspapers Ltd [1991] 2 Weekly Law Reports 1022B).

(f) The discretionary grant of an interlocutory injunction should not prejudice the final determination of the action, but the court, under the American Cyanamid principles, has to consider if the plaintiff has shown an "arguable case" or if he has a "good cause".

The fumus boni iuris of the main action is thus an important element in the exercise of the discretion.

The circumstances of the present case did not show, or at least did not show with sufficient clarity, that the Attorney General had an arguable case for a permanent injunction. All the interlocutory decisions nevertheless reached the opposite conclusion and consequently the temporary injunctions were granted to preserve his rights pending trial.

Today, however, with the benefit of hindsight and after the judgments on the merits delivered at three levels, it is easy to affirm that such a "good cause" did not exist. The terms used
by the judges leave no doubt on this issue. In his very thorough judgment of 21 December 1987 Mr Justice Scott said: "It is equally unacceptable that the government's assertion of what national security requires should suffice to decide the limitations that must be imposed on freedom of speech or of the press"; "In my view the articles represented the legitimate and fair reporting of a matter that the newspapers were entitled to place before the public, namely the court action in Australia"; and he concluded categorically: "The Guardian and the Observer were not in breach of confidence in publishing the articles about the Australian Spycatcher case in their respective editions of 23 June 1986 and 22 June 1986." (Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 Appeal Cases 144B, 167H and 172H).

Likewise, when the House of Lords gave judgment on 13 October 1988, Lord Keith of Kinkel said (ibid., 264A): "I consider that on balance the prospects are that the Crown would not have been held entitled to a permanent injunction. Scott J. and the majority of the Court of Appeal took that view, and I would not be disposed to differ from them." Lord Brightman affirmed (ibid., 266E): "I agree with the majority of your Lordships that, despite the reprehensible leakage of information which was the source of these articles about the then forthcoming Australian proceedings, the articles were not in fact damaging to the public interest and are not therefore a proper foundation for any case by the Crown against these newspapers." And Lord Goff of Chieveley expressed himself in similar terms (ibid., 290C): "the articles were very short: they give little detail of the allegations: a number of the allegations had been made before: and in so far as the articles went beyond what had previously been published, I do not consider that the judge erred in holding that, in the circumstance, the claim to an injunction was not proportionate to the legitimate aim pursued."

(g) The "temporary" and "provisional" nature of the interlocutory measures cannot justify under the Convention the restriction imposed on O.G.. As they asserted, "in many media cases, an interlocutory injunction is effectively a final injunction, because news is perishable ; a delay of weeks, months or more is equivalent to no publication". To "postpone" - the word used in the domestic judgments - information for more than two years could result in finding that the content had volatilised because of the transient character of the news.

(h) Finally, it was also obvious that the injunctions did not correspond to a "pressing social need" because, as the facts of this case have demonstrated, they were useless and unreal. It was plainly unreal to seek, by a judicial order, to restrain dissemination of news of general interest, or to seek, by an injunction against the media, to discourage members of State authorities who have access to secret, classified or simply confidential information of general interest from publishing it.

And this unreality is even more evident when the news is written or broadcast in English: information is diffused universally in this language, notably by American or foreign publications or broadcasts that are sold or received in the United Kingdom. In today's circumstances such an injunction is an illusory measure since many of these media are outside the jurisdiction of the English courts.

Like the Vice-Chancellor in his judgment of 22 July 1987 (see paragraph 33 of the present judgment), I think that "there is a limit to what can be achieved by orders of the court. If the courts were to make orders manifestly incapable of achieving their avowed purpose, such as to prevent the dissemination of information which is already disseminated, the law would to my mind indeed be an ass ... 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" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1269F and H).

This pragmatic reasoning is, in my opinion, sufficient to demonstrate that what is clearly impracticable cannot be considered "necessary". Likewise, the very limited effect of the ban on the British media shows that the restraints imposed on O.G. were manifestly disproportionate.

12. Consequently, taking all these factors separately and as a whole, I must depart from the majority's conclusion (see paragraph 65 of the judgment) that the national authorities were entitled to think that the interference complained of was necessary in a democratic society. Furthermore, I believe that the reasons expressed in paragraphs 68 and 69 of the judgment for finding a violation in the period after 30 July 1987 were also valid as regards the earlier period, when such of the information published in Spycatcher as was relevant was already known to the public (see paragraph 12 of the judgment).

I therefore conclude that there was a violation of Article 10 (art. 10) of the Convention in the period from 11 July 1986 to 30 July 1987, as well as in that from 30 July 1987 to 13 October 1988.