Lord Advocate v Scotsman Publications

At advising, on 23rd February 1988, the Lord Ordinary (Coulsfield) refused the application for interim interdict.

LORD COULSFIELD'S OPINION.—I originally granted interim interdict in this case after a hearing on 5th January 1988. The nature of the proceedings and of the interdict then sought, and the arguments of parties at that hearing and at a subsequent motion for recall, which I refused, are set out in my opinion dated 12th January 1988, to which I refer. Thereafter, as I understand the position, the respondents reclaimed, and, after a hearing, the First Division recalled the interim interdict, on certain undertakings given on behalf of the respondents, and remitted the case to allow a fresh application for interim interdict to be made. That application came before me on 16th February 1988 and the three following days. Since the case was originally presented, the prayer of the petition has been amended and adjustments have been made to the statements therein. The narrative concerning the writing and circulation of Mr Cavendish's book Inside Intelligence has been supplemented by averments that authorisation to publish the book was sought but was refused; that although Mr Cavendish privately published 500 copies of the book and distributed them to individuals on about 25th December 1987, disclosure of the contents of the book was not widespread; and that Mr Cavendish has given an undertaking to the Crown not to distribute further copies of the book without first giving 14 days' notice thereof. Averments have been added to the effect that on 14th January 1988 Her Majesty's Attorney General stated to the court in the English action that, by concession, he would offer to permit publication of part of the material contained in the book; that a copy of the book showing the permitted material was lodged and that the English order was modified accordingly. Further, averments have been added to supplement the original averment that disclosure or publication of material contained in the book is prejudicial to the interests of the Crown. It is now averred that it is prejudicial to national security. Six respects in which publication is said to be prejudicial to the interests of the Crown and to national security are set out and will be considered in more detail below. It remains the case, however, that it is not stated that publication of any of the information in the book, or indeed any information in the possession of Mr Cavendish, would directly endanger national security. Further, it is not stated that any of the information in the book is likely to be unknown to any foreign power which may happen to be interested. Indeed it is not said that there is any information in the book or in the possession of Mr Cavendish which has not already been published in other earlier books and publications.

[His Lordship quoted the terms of the interdict sought as amended as set out supra, and continued.]

It should be explained that…