The Gazette 1975

English Cases

Save in the exceptional case of public interest, Cabinet

documents may normally be published and are not

confidential.

Queen's Bench Division; Lord Widgery CJ; 1 Octóber

1975.

Crossman (hereinafter called C) was a Cabinet

Minister from 1964 until 1970. Throughout that period

C kept diaries which contained details of discussions

held in Cabinet and in Cabinet Committees and dis-

closed the differences between Cabinet Ministers on

particular issues. The diaries also contained details of

communications made between C and senior Civil Ser-

vants together with criticisms of certain Civil Servants.

The diaries were kept with the express intention of

publication at some future date. The fact that C was

keeping such a diary intended for publication was

known to C's colleagues in the Cabinet. C died in 1974.

After C's death a firm of book publishers proposed to

publish C's diaries in a series of volumes entitled "The

Diaries of a Cabinet Minister". At that time the existing

Cabinet contained a number of individuals who had

been C's Cabinet colleagues between 1964 and 1970.

A newspaper, acting with the consent of C's literary

executors, published serialised extracts from what the

book publishers intended to be the first volume of C's

diaries. The Attorney-General brought two actions (i)

against the book publishers and G's literary executors

and (ii) against the newspaper, seeking permanent

injunctions restraining them from publishing the diaries

or extracts therefrom. In support of his claim the

Attorney-General contended that all Cabinet Papers

and discussions and proceedings were prima facie con-

fidential and that the Court should restrain any dis-

closure thereof, if the public interest in concealment

outweighed' the public interest in the right to free

publication. The basis of that contention was that the

confidential character of those materials derived from

the convention of Joint Cabinet Responsibility whereby

any policy decision reached by the Cabinet had to be

supported thereafter by all Members of the Cabinet

whether they ápproved of it or not, unless they felt

compelled to resign; and that accordingly Cabinet

Proceedings could not be referred to outside the Cabinet

in such a way as to disclose the attitude of individuals

in the argument which had preceded the decision,

thereby inhibiting free and open discussion in the

Cabinet in future. The Attorney-General also contended

that advice tendered to Ministers by Civil Servants and

personal observations made by Ministers regarding their

capacity and suitability were also confidential and could

equally be restrained by the Court.

Held by Lord Widgery, C.J. :

(i) The equitable doctrine that a person should not

profit fr^m the wrongful publication of information

received in confidence was not confined to commercial

or domestic secrets but extended also to public secrets.

It followed that where a Cabinet Minister received

information in confidence, the improper publication of

such information could be restrained by the Court when

it was necessary to do so in the public interest.

(ii) The doctrine of joint responsibility was an estab-

lished feature of the British form of government and

therefore matters leading to a Cabinet decision were to

be regarded as confidential. The maintenance of that

doctrine might be prejudiced by the premature dis-

closure of the way in which individual Ministers had

voted in the Cabinet on particular issues. Accordingly,

the Courts had power to restrain the publication of

Cabinet material when it could be shown (a) that such

publication would be ^ breach of confidence; (b) that

publication would be against the public interest in that

it would prejudice the maintenance of the doctrine of

Collective Cabinet Responsibility; and (c) that there

was no other facet of the public interest in conflict with

and more compelling than that relied on.

(iii) In all cases, however, there would come a time

when the confidential character of the material, and the

duty of the Court to restrain its publication, would

lapse on the ground that publication would no longer

prejudice the maintenance of the doctrine of Joint

Cabinet Responsibility. When that time came would

depend on the particular circumstances of each case.

The Courts would, however, intervene to restrain publi-

cation of confidential Cabinet material only in the

clearest of cases, in which it could be demonstrated that

the overriding public interest in non-disclosure was

still continuing.

(iv) The contents of the first volume of C's diaries

were such that their publication, after the lapse of

nearly ten years, could not inhibit free discussion in the

existing Cabinet and would not, therefore, prejudice

the maintenance of the doctrine of Joint Cabinet

Responsibility.

(v) Likewise there were no grounds for prohibiting

the disclosure in the diaries of advice tendered to

Ministers by Civil Servants or of observations made by

Ministers concerning the capacity and suitability of

individual Civil Servants for neither the Crown nor

any individual Civil Servant had an enforceable right

to have such advice treated as confidential for all time.

(vi) It followed that there were no grounds for

restraining publication of the first volume of C's diaries

and the injunctions would therefore be refused.

(Attorney-General

Jonathan Cape Ltd. and others;

Attorney-General

Times Newspapers Ltd.

— 1975 —

3 All E.R. 484.)

Bomb Trial Defence Lawyers'

Fees Cut

Lawyers whom a judge accused of conducting a

"mud-slinging defence" during the Old Bailey Bomb

Conspiracy Trial earlier this year have had their fees cut

by a third.

A recommendation that the legal aid fees of lawyers

representing three of the accused should be reduced

was ifriade by Mr. Justice Melford Stevenson after he

had imposed 20-year sentences on all eight defendants

in the Uxbridge trial last March. The accused were

all Irish.

At the time the judge's scathing criticism of three

defending Queen's Counsel caused deep concern among

many members of the Bar and that has now intensified

considerably.

Yesterday, Mr. Stuart Goodman, a principal in the

London firm of solicitors, Bowling and Co., said the

firm would be appealing against the cut and the judge's

"unprecedented" recommendation. "We are determined

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