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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
    1. Brutus v Cozens [1972] 2 All ER 1297
    2. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620
    3. R v Brown and other appeals [1993] 2 All ER 75
    4. R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
    5. Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
    6. Blackshaw v Lord and another [1983] 2 All ER 311
    7. Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
    8. R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Attorney General v Times Newspapers Ltd [1973] 3 All ER 54

LORD REID. My Lords, in 1958 Distillers Co...began to...sell in this country a sedative which contained a drug thalidomide...Germany. This product was available on prescription and was consumed by many pregnant women having been said to be quite safe for them. But soon there were cases of babies being born with terrible deformities. As such deformities do occasionally occur naturally, it took a little time to prove that these deformities were caused by the action of thalidomide in the unborn child..... As soon as this was realised Distillers withdrew their product in 1961.

The...the question arose whether Distillers were legally liable to pay damages in respect of these deformed children. Distillers denied liability and the first action against them was begun in 1962. Further publicity resulted in some 70 actions having been raised before 1968.

Claimants were faced by two difficulties. First there was a highly debatable legal question whether a person can sue for damage done to him before his birth. And secondly, an attempt to prove negligence by Distillers in putting this drug on the market would require long and expensive enquiries. The claimants combined to negotiate with Distillers and early in 1968 a settlement was reached by which Distillers agreed to pay to each claimant 40 per cent of the damages which he or she would recover if successful in establishing liability. Regarded from a purely legal point of view this appears to have been a very reasonable compromise.

Two cases were then tried by agreement to establish the proper measure of damages and ultimately 65 cases were settled, Distillers paying about a million pounds in all. But more cases gradually came to light. Leave to serve writs was now necessary and the first orders granting leave were made in July 1968. By February 1969, 248 writs had been served. A few more followed. And there were many cases where claims had been made but no writs served. It may be that there are still some cases where claims will be made. In all there appear to be more than 400 outstanding claims not covered by the 1968 settlement....

The editor of the Sunday Times took a keen interest in this matter. He collected a great deal of material and on 24 September 1972 that newspaper published a long and powerful article. Two general propositions were argued at some length: first whether those who put such drugs on the market ought to be absolutely liable for damage done by them, and secondly that in such cases the currently accepted method of assessing damages is inadequate. But the sting of the article lay in the following paragraph:

"Thirdly, the thalidomide children shame Distillers. It is appreciated that Distillers have always denied negligence and that if the cases were pursued, the children might end up with nothing. It is appreciated that Distillers' lawyers have a professional duty to secure the best terms for their clients. But at the end of the day what is to be paid in settlement is the decision of Distillers, and they should offer much, much more to every one of the thalidomide victims. It may be argued that Distillers have a duty to their shareholders and that, having taken account of skilled legal advice, the terms are just. But the law is not always the same as justice. There are times when to insist on the letter of the law is as exposed to criticism as infringement of another's legal rights. The figure in the proposed settlement is to be 3. 25m., spread over 10 years. This does not shine as a beacon against pre-tax profits last year of 64. 8 million and company assets worth 421 million. Without in any way surrendering on negligence, Distillers could and should think again".

Distillers immediately brought this to the attention of the Attorney General maintaining that it was in contempt of court. The Attorney General decided to take no action. But this did not in any way prevent Distillers from bringing the matter before the court if they chose to do so. However they took no action.....

The editor of the Sunday Times had in mind to publish a further article of a different character. As a result of communications between him and the Attorney General regarding the article of 24 September, he sent the material for the further article to the learned attorney and this time the Attorney General took the view that he should intervene. By a writ of 12 October 1972 he claimed an injunction against the respondents, who own the Sunday Times, restraining them from publishing the proposed article. The Divisional Court ([1972] 3 All ER 1136) granted an injunction but the Court of Appeal ([1973] 1 All ER 815) on 16 February 1973 discharged the injunction. The Attorney General now appeals to this House.

Before dealing with the arguments submitted to your Lordships I find it necessary to set out some general considerations which must govern the whole subject of contempt of court. It appears never to have come before this House; there is no recent review of the subject in the Court of Appeal; and the circumstances of cases which arise in practice are generally not such as to require any detailed analysis of the law. I cannot disagree with a statement in a recent report of Justice on the Law and the Press that the main objection to the existing law of contempt is its uncertainty. I think that we must try to remove that reproach at least with regard to those parts of the law with which the present case is concerned.

The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should in my judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice......

Discussion of questions of contempt generally begin with the observations of Lord Hardwicke LC in The St James's Evening Post Case. Dealing with a case where there had been gross abuse of litigants he said ((1742) 2 Atk at 469):

"Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there any thing of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard".

And later ((1742) 2 Atk at 471):

"There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be any thing of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters".

.... We are particularly concerned here with 'abusing parties' and 'prejudicing mankind' against them. Of course parties must be protected from scurrilous abuse; otherwise many litigants would fear to bring their cases to court. But the argument of the Attorney General goes far beyond that. His argument was based on a passage in the judgment of Buckley J in Vine Products Ltd v Mackenzie & Co Ltd ([1965] 3 All ER 58 at 61, 62, [1966] 1 Ch 484 at 495, 496):

"It is a contempt of this court for any newspaper to comment on pending legal proceedings in any way which is likely to prejudice the fair trial of the action. That may arise in various ways. It may be that the comment is likely in some way or other to bring pressure to bear on one or other of the parties to the action, so as to prevent that party from prosecuting or from defending the action, or encourage him to submit to terms of compromise which he otherwise might not have been prepared to entertain, or influence him in some other way in his conduct in the action, which he ought to be free to prosecute or to defend, as he is advised, without being subject to such pressure".

I think that this is much too widely stated. It is true that there is some authority for it but it does not in the least follow from the observations of Lord Hardwicke LC and it does not seem to me to be in accord with sound public policy. Why would it be contrary to public policy to seek by fair comment to dissuade Shylock from proceeding with his action? Surely it could not be wrong for the officious bystander to draw his attention to the risk that, if he goes on, decent people will cease to trade with him. Or suppose that his best customer ceased to trade with him when he heard of his lawsuit. That could not be contempt of court. Would it become contempt if, when asked by Shylock why he was sending no more business his way, he told him the reason? Nothing would be more likely to influence Shylock to discontinue his action. It might become widely known that such pressure was being brought to bear. Would that make any difference? And though widely known must the local press keep silent about it? There must be some limitation of this general statement of the law.

And then suppose that there is in the press and elsewhere active discussion of some question of wide public interest, such as the propriety of local authorities or other landlords ejecting squatters from empty premises due for demolition. Then legal proceedings are begun against some squatters, it may be by some authority which had already been criticised in the press. The controversy could hardly be continued without likelihood that it might influence the authority in its conduct of the action. Must there than be silence until that case is decided? And there may be a series of actions by the same or different landlords. Surely public policy does not require that a system of stop and go shall apply to public discussion.

I think that there is a difference between direct interference with the fair trial of an action and words or conduct which may affect the minds of a litigant. Comment likely to affect the minds of witnesses and of the tribunal must be stopped for otherwise the trial may well be unfair. But the fact that a party refrains from seeking to enforce his full legal rights in no way prejudices a fair trial whether the decision is or is not influenced by some third party. There are other weighty reasons for preventing improper influence being brought to bear on litigants, but they have little to do with interference with the fairness of a trial. There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations.....

I would hold that as a general rule where the only matter to be considered is pressure put on a litigant, fair and temperate criticism is legitimate, but anything which goes beyond that may well involve contempt of court. But in a case involving witnesses, jury or magistrates, other considerations are involved: there even fair and temperate criticism might be likely to affect the minds of some of them so as to involve contempt. But it can be assumed that it would not affect the mind of a professional judge.

In some recent cases about influencing litigants the court has accepted the law as stated in the passage from the judgment of Buckley J in the Vine Products case ([1965] 3 All ER at 61, 62, [1966] 1 Ch at 495, 496), but has held that there is no contempt unless there is a serious risk that the litigant will be influenced. Perhaps this was an attempt to mitigate the extreme consequences of that view of the law, but I think this test is most unsatisfactory. First, when considering whether the risk is serious do you consider the particular litigant so that what would be contempt if he is easily influenced would not be contempt if the particular litigant is so strong minded as not to be easily influenced? That would not seem right but if you have to imagine a reasonable man in the shoes of that litigant the test becomes rather unreal. And then are you to take that one comment alone or are you to consider the cumulative effect if others are free to say and probably will say the same kind of thing?

I think that this view of the law caused the court to give wrong reasons for reaching a correct decision in Attorney General v London Weekend Television. The respondent company had produced a television programme about the thalidomide tragedy on 8 October 1972. So far as I can judge from the report it seems to have had much the same object and character as the Sunday Times article of 24 September. If the view which I take about that article is correct then I think that for similar reasons the television programme was not in contempt of court.

But the court, following the judgment of the Divisional Court in the present case, held that the programme 'bore many of the badges of contempt' and only dismissed the application on the ground that they were unable to say that the programme 'would result in the creation of a serious [their italics] risk' that the course of justice would be interfered with. They had said earlier 'We find that the spoken words on this programme did not have that impact which the producer might have hoped that they would have had on the viewers'. So the company only escaped because of their inefficiency. I cannot believe that the law could be left in such an unsatisfactory state....

[T]here must be two questions: first, was there any contempt at all? and, secondly, was it sufficiently serious to require or justify the court in making an order against the respondent? The question whether there was a serious risk of influencing the litigant is certainly a factor to be considered in what course to take by way of punishment, as is the intention with which the comment was made. But it is I think confusing to import this into the question whether there was any contempt at all or into the definition of contempt.

I think the true view is that expressed by Lord Parker CJ in R v Duffy, ex parte Nash, that there must be 'a real risk as opposed to a remote possibility'. That is an application of the ordinary de minimis principle. There is no contempt if the possibility of influence is remote. If there is some but only a small likelihood, that may influence the court to refrain from inflicting any punishment. If there is a serious risk some action may be necessary. And I think that the particular comment cannot be considered in isolation when considering its probable effect. If others are to be free and are likely to make similar comments that must be taken into account.

The crucial question on this point of the case is whether it can ever be permissible to urge a party to litigation to forego his legal rights in whole or in part. The Attorney General argues that it cannot and I think that the Divisional Court ([1972] 3 All ER 1136, [1972] 3 WLR 855) has accepted that view. In my view it is permissible so long as it is done in a fair and temperate way and without any oblique motive. The Sunday Times article of 24 September 1972 affords a good illustration of the difference between the two views. It is plainly intended to bring pressure to bear on Distillers. It was likely to attract support from others and it did so. It was outspoken. It said 'There are times when to insist on the letter of the law is as exposed to criticism as infringement of another's legal rights' and clearly implied that that was such a time. If the view maintained by the Attorney General were right I could hardly imagine a clearer case of contempt of court. It could be no excuse that the passage which I quoted earlier was combined with a great deal of other totally unobjectionable material. And it could not be said that it created no serious risk of causing Distillers to do what they did not want to do. On the facts submitted to your Lordships in argument it seems to me to have played a large part in causing Distillers to offer far more money than they had in mind at that time. But I am quite unable to subscribe to the view that it ought never to have been published because it was in contempt of court. I see no offence against public policy and no pollution of the stream of justice by its publication.

Now I must turn to the material to which the injunction applied. If it is not to be published at this time it would not be proper to refer to it in any detail. But I can say that it consists in the main of detailed evidence and argument intended to show that Distillers did not exercise due care to see that thalidomide was safe before they put it on the market.

If we regard this material solely from the point of view of its likely effect on Distillers I do not think that its publication in 1972 would have added much to the pressure on them created, or at least begun, by the earlier article of 24 September. From Distillers' point of view the damage had already been done. I doubt whether the subsequent course of events would have been very different in their effect on Distillers if the matter had been published.

But to my mind there is another consideration even more important than the effect of publication on the mind of the litigant. The controversy about the tragedy of the thalidomide children has ranged widely but as yet there seems to have been little, if any, detailed discussion of the issues which the court may have to determine if the outstanding claims are not settled. The question whether Distillers were negligent has been frequently referred to but so far as I am aware there has been no attempt to assess the evidence. If this material were released now it appears to me to be almost inevitable that detailed answers would be published and there would be expressed various public prejudgments of this issue. That I would regard as very much against the public interest.

There has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be prevented. I find for example in the report of Lord Salmon's committee dealing with the law of contempt with regard to Tribunals of Inquiry a reference to the 'horror' in such a thing. What I think is regarded as most objectionable is that a newspaper or television programme should seek to persuade the public, by discussing the issues and evidence in a case before the court, whether civil or criminal, that one side is right and the other wrong. If we were to ask the ordinary man or even a lawyer in his leisure moments why he has that feeling, I suspect that the first reply would be(well look at what happens in some other countries where that is permitted. As in so many other matters, strong feelings are based on one's general experience rather than on specific reasons, and it often requires an effort to marshall one's reasons. But public policy is generally the result of strong feelings, commonly held, rather than of cold argument.

If the law is to be developed in accord with public policy we must not be too legalistic in our general approach. No doubt public policy is an unruly horse to ride but in a chapter of the law so intimately associated with public policy as contempt of court we must not be too pedestrian....

There is ample authority for the proposition that issues must not be prejudged in a manner likely to affect the mind of those who may later be witnesses or jurors. But very little has been said about the wider proposition that trial by newspaper is intrinsically objectionable. That may be because if one can find more limited and familiar grounds adequate for the decision of a case it is rash to venture on uncharted seas.

I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. Responsible 'mass media' will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth disrespect for the processes of the law could follow and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly. Most cases of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases.....

Now I must deal with the reasons which induced the Court of Appeal to discharge the injunction. It was said that the actions had been dormant or asleep for several years. Nothing appears to have been done in court but active negotiations for a settlement were going on all the time. No one denies that it would be contempt of court to use improper pressure to induce a litigant to settle a case on terms to which he did not wish to agree. So if there is no undue procrastination in the negotiations for a settlement I do not see how in this context action can be said to be dormant.

Then it was said that there is here a public interest which counterbalances the private interests of the litigants. But contempt of court has nothing to do with the private interests of the litigants. I have already indicated the way in which I think that a balance must be struck between the public interest in freedom of speech and the public interest in protecting the administration of justice from interference. I do not see why there should be any difference in principle between a case which is thought to have news value and one which is not. Protection of the administration of justice is equally important whether or not the case involves important general issues....

If we were only concerned with the effect which publication of the new material might now have on the mind of Distillers I might be able to agree with the decision of the Court of Appeal though for different reasons. But I have already stated my view that wider considerations are involved. The purpose of the law is not to prevent publication of such material but to postpone it. The information set before us gives us hope that the general lines of a settlement of the whole of this unfortunate controversy may soon emerge. It should then be possible to permit this material to be published. But if things drag on indefinitely so that there is no early prospect either of a settlement or of a trial in court then I think that there will have to be a wakenment of the public interest in a unique situation.

As matters stand at present I think that this appeal must be allowed.

LORD DIPLOCK: My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a 'civil contempt'. The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.

All other contempts of course are classified as 'criminal contempts', whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also(and this more immediately(the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences, such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large.....

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.....

The commonest kind of conduct to come before the courts on applications for committal for contempt of court has been conduct which has been calculated to prejudice the second requirement. This is because trial by jury has been, as it still is, the mode of trial of all serious criminal offences, and until comparatively recently has also been the mode of trial of most civil cases at common law which are likely to attract the attention of the public. Laymen, whether acting as jurymen or witnesses (or, for that matter, as magistrates), were regarded by the judges as being vulnerable to influence or pressure which might impair their impartiality or cause them to form preconceived views as to the facts of the dispute, or, in the case of witnesses, to be unwilling to give evidence with candour at the trial. The conduct most commonly complained of was the publication, generally in a newspaper, of statements or comments about parties to pending litigation or about facts at issue in the litigation; so the discussion in the judgments tends to be directed to consideration of the question whether the publication complained of involved a risk of causing someone who might be called on to serve as a juror to be prejudiced against a party or to form a preconceived view of the facts before the evidence was adduced in court, or a risk of influencing someone who might be called as a witness to alter his evidence or to decline to testify.....