Under the Human Rights Act 1998, the laws of confidence and copyright must comply with the European Convention on Human Rights. The courts have to weigh the right to private life, and to the protection of confidential material, against the right of newspapers to publish and the public to read matters of public interest.

Mr Justice Blackburne concluded, and the Court of Appeal agreed, that publication of the Prince’s journal made “at best” a “minimal” contribution to any public debate. They were wrong. First, the journal was not concerned with personal gossip but contained an analysis of a major political event by the person representing the United Kingdom. Secondly, the journal was written by the man who will be King and who makes no secret of his wish to influence political events. Thirdly, the journal throws considerable light on the policy views of the Prince of Wales: he wrote that the Chinese Government consisted of a “group of appalling old waxworks” to whom we had given “the Great Chinese Takeaway”. This helps to explain his decision not to attend state banquets in this country for the Chinese President in 1999 and 2005.

The Court of Appeal also agreed with Mr Justice Blackburne that any public interest in the journal was outweighed by the right of Prince Charles, like anyone else, to enjoy confidentiality for his private thoughts. But the case law of the European Court of Human Rights recognises that the right to freedom of expression of a newspaper and its readers takes priority over the privacy interests of a public figure when the content of the material concerns matters of public interest and not descriptions of their personal life. The more influential the public figure, the more ready will a court be to recognise the public interest in the material.

The price to be paid for the status and privileges of the Heir to the Throne, especially one who wishes to take an active part in the political life of this country, is that he has a weak claim to privacy in respect of a journal that addresses political, and not personal, issues.

The Court of Appeal considered that there was a further factor that weighed strongly in favour of Prince Charles and made his case “overwhelming”: the journal had been obtained by the newspaper, as it well knew, by reason of a plain breach of confidence by one of his employees. But the case law of the European Court of Human Rights gives such a factor little or no weight. That is unsurprising: public access to important information that those in positions of authority wish to conceal depends on breaches of confidence. The question is whether there is sufficient public interest in the content of the information to justify publication.

The Court of Appeal said that the breach of confidence by the source must be highly relevant, otherwise the law would not grant an injunction to stop a newspaper publishing, in advance of delivery, a Budget speech (a matter of considerable public importance) sold to it by a disgruntled typist. But the example is a poor one: the court would grant an injunction because the Budget speech would be made public in a few days or weeks in any event and there is no public interest in its premature disclosure and very substantial public interest detriments to the national economy.

Shakespeare’s Henry V thanks the Lord Chief Justice for ruling against him when he was Prince of Wales. He recalls the words of his father: “Happy am I, that have a man so bold/ That dares do justice on my proper son.” The current Lord Chief Justice is not afraid to be bold. But justice for the Prince of Wales, and everyone else, would have been better achieved by a ruling that public figures who wish to involve themselves in politics should not expect the courts to prevent publication of their views on matters of public interest.

The author is a practising barrister at Blackstone Chambers in Temple and a Fellow of All Souls College, Oxford

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