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 v. Jonathan Cape Ltd. and others; Attorney-General v. 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 . 2 8 0