Spies,Lies and Whistleblowers: MI5 and the David Shayler Affair

Book_coverMy book about the Shayler affair (the MI6 plot to assas­in­ate Col. Gad­dafi) and my exper­i­ences as an Intel­li­gence Officer in MI5.

I was invited on to “The Richard and Judy Show” in 2005 to talk about my book, and it is fea­tured on the show’s web­site.

Wil­liam Pod­more was kind enough to review my work:

In this remark­able book, Annie Machon makes ser­i­ous alleg­a­tions against the Brit­ish state’s intel­li­gence ser­vices, MI5 and MI6. Ms Machon and her part­ner David Shayler are former high-ranking MI5 officers, both now retired from the ser­vice. The book’s alleg­a­tions derive from their exper­i­ences and deserve at least to be the sub­ject of inquiry.

She asserts that MI5 has illeg­ally invest­ig­ated thou­sands of Brit­ish cit­izens for their polit­ical views; that there was col­lu­sion between the Army Forces Research Unit and loy­al­ist ter­ror­ists; that MI5 failed to stop four major ter­ror­ist attacks in Bri­tain, even though it had reli­able evid­ence; and that MI5 and MI6 let a known Libyan ter­ror­ist into Bri­tain and let him set up a ter­ror­ist net­work here.

She alleges that MI6’s counter-Iranian sec­tion used the Sunday Tele­graph (and the journ­al­ists Con Cough­lin, John Simpson and Dominic Lawson) to try to blame Iran for the 1988 Lock­er­bie bomb­ing, the destruc­tion of flight PA103. MI6 was try­ing to deflect atten­tion from the fact that it was actu­ally a Libyan retali­ation for the US bomb­ing of Tripoli (backed by Thatcher) in 1986.

The book’s most sig­ni­fic­ant alleg­a­tion is that MI6 illeg­ally paid tens of thou­sands of pounds to Al-Qa’ida in 1995–96 to assas­sin­ate Col­onel Gad­dafi and seize power in Libya. In the attemp­ted coup, sev­eral inno­cent civil­ians and secur­ity police were killed. If this is true, MI6, a Brit­ish state agency, sponsored our ter­ror­ist enemies in a con­spir­acy to murder, which res­ul­ted in the killing of inno­cent civilians.

But Blair refuses to hear any evid­ence against the intel­li­gence ser­vices, and pro­sec­utes and har­asses crit­ics and whis­tleblowers. The Intel­li­gence and Secur­ity Com­mit­tee, set up under the 1994 Intel­li­gence Ser­vices Act to over­see the ser­vices, is no use, because it is appoin­ted by and reports only to the Prime Minister.

The intel­li­gence ser­vices should work under the rule of law and respect demo­cratic rights. Ter­ror­ist sus­pects should be arres­ted and brought to trial under crim­inal law, not detained, or executed, without trial, as has happened in North­ern Ire­land and elsewhere.

The intel­li­gence ser­vices are sup­posed to pro­tect us, but it would appear that they have instead con­nived in ter­ror­ism, put­ting us at greater risk of ter­ror­ist attack.

The Cam­paign for Press and Broad­cast­ing Free­dom (CPBF) also high­lighted it.

The book can be ordered through Amazon.

May 2005 — The Times

MI5 kept school­boy on its files

The part­ner of
David Shayler reveals how a let­ter to the Com­mun­ist Party brought its
youth­ful author to the atten­tion of the secur­ity services

A BOY who wrote a let­ter to the Brit­ish Com­mun­ist Party for a school
pro­ject ended up with his own MI5 file, a former Secur­ity Ser­vice
officer claimed yesterday.

The
boy had asked for inform­a­tion for his school topic, but his let­ter was
secretly opened by MI5 in the 1970s when the Com­mun­ist Party was still
regarded as a hot­bed of sub­ver­sion, accord­ing to Annie Machon, who
worked for the domestic intel­li­gence ser­vice from 1991 to 1996.

Ms
Machon is the part­ner of David Shayler, the former MI5 officer jailed
under the Offi­cial Secrets Act for dis­clos­ing inform­a­tion acquired in
the service.

In a book which has been passed for pub­lic­a­tion by
her former employ­ers, Ms Machon says that the schoolboy’s let­ter was
copied, as was all cor­res­pond­ence to the Brit­ish Com­mun­ist Party at
that time, “and used to cre­ate a PF (per­sonal file), where he was
iden­ti­fied as a ‘?com­mun­ist sympathiser’ ”.

180pxspieslieswhistleblowers
On another
occa­sion, a man who was divor­cing his wife wrote to MI5 claim­ing that
she was involved in Com­mun­ism, and she was the sub­ject of a per­sonal
file, Ms Machon claims in her book, Spies, Lies & Whis­tleblowers.

She
saw the two files, among “more than a mil­lion” when work­ing at MI5, and
claimed that they had been in the Secur­ity Ser­vice archives for 20
years. “Why was this inform­a­tion still avail­able to desk officers some
20 years after these indi­vidu­als had first come to atten­tion, in less
than sus­pi­cious cir­cum­stances?” she writes.

Mr Shayler also
made alleg­a­tions about the con­tents of per­sonal Secur­ity Ser­vice files
in 1997, after he left the agency. He said that there were files on
Jack Straw, Peter Man­del­son, Peter Hain, Mo Mow­lam, John Len­non and the
Sex Pis­tols, among oth­ers. Mr Shayler was charged under the Offi­cial
Secrets Act for dis­clos­ing other secret inform­a­tion acquired when he
was a serving intel­li­gence officer, and was sen­tenced at the Old Bailey
to six months in prison in 2002.

Ms Machon, 36, who worked in three depart­ments of MI5
counter-subversion, Irish ter­ror­ism and inter­na­tional ter­ror­ism — joins
a rel­at­ively short list of former Secur­ity Ser­vice officers who have
man­aged to write books without end­ing up in jail.

The last
former MI5 officer to get clear­ance was Dame Stella Rim­ing­ton, who was
Director-General of the ser­vice from 1992 to 1996.

Peter Wright, who made alleg­a­tions of bug­ging and burg­lary by the Secur­ity Ser­vice in Spycatcher, pub­lished in 1987, got away with it by mov­ing to Tasmania.

Ms
Machon repeats alleg­a­tions made by Mr Shayler that MI6 helped to fund
an assas­sin­a­tion attempt against Col­onel Gad­dafi, the Libyan leader, in
1996. It was dis­missed by Robin Cook, the former For­eign Sec­ret­ary, as
“pure fantasy”.

Spies, Lies and Whistleblowers” — the Gaddafi Plot chapters

Excerpts from the book.….

The MI6/Al Qaeda con­spir­acy, Part 1

The MI6-funding of Islamic extrem­ists and Al Qaeda mem­bers to assas­sin­ate Col­onel Gad­dafi, is the main reason why David Shayler finally left MI5.  It is the real ‘case that made [him] quit’.  To quote David:

Although I knew about the plot before mak­ing my decision to leave — I believed at the time that it was more MI6 ‘Boys Own’ stuff — I was nev­er­the­less phys­ic­ally sickened by the fact that MI6 wanted to spon­sor Islamic extrem­ists to carry out ter­ror­ism.  At around the time I was debat­ing whether to leave because of the Vic­toria Brit­tain invest­ig­a­tion, MI6’s David Wat­son told me he had in fact sup­plied his agent with $40,000 to buy weapons to execute the oper­a­tion to assas­sin­ate Gaddafi.

I joined the ser­vices to stop ter­ror­ism and pre­vent the deaths of inno­cent people, not to get involved in these despic­able and cow­ardly acts.  I still can­not believe that the Prime Min­is­ter has refused to take my evid­ence or invest­ig­ate this mat­ter as this decision has sent out a clear mes­sage to the intel­li­gence ser­vices that they can fund ter­ror­ism; con­spire to murder people with impun­ity; and take enorm­ous risks with our security. 

After all, would you give an indi­vidual you hardly know — who has admit­ted to con­nec­tions with Al Qaeda — an enorm­ous sum to carry out a ter­ror­ist attack, when you know the group he is lead­ing is opposed to the val­ues of West­ern soci­ety?  It is dif­fi­cult to ima­gine a greater dis­reg­ard and con­tempt for the lives and secur­ity of the Brit­ish people.”

Key points

  • The fol­low­ing issues arise from David’s whis­tleblow­ing about MI6 sup­port for Al Qaeda:
    Con­trary to mis­in­form­a­tion pub­lished in some news­pa­pers, the fol­low­ing account was not ‘bar-room gos­sip’.  David’s MI6 coun­ter­part, PT16/B David Wat­son, briefed him offi­cially on the plot as it unfol­ded.  As MI5 officers both David and I knew the ser­i­ous threat the fund­ing of Al Qaeda posed at the time. 
  • Des­pite the then For­eign Sec­ret­ary Robin Cook’s deni­als in 1998, I have now found out that intel­li­gence officer,                           , was MI6’s man Tun­worth.  He is a mem­ber of the Islamic Fight­ing Group (IFG) aka the Mil­it­ant Islamic Group, an Al Qaeda affil­i­ate based in Libya.
    French intel­li­gence has also estab­lished that lead­ing mem­bers of the IFG like Tun­worth are also mem­bers of Al Qaeda. 
  • The MI6 agent Tun­worth admit­ted his con­nec­tions with Islamic extrem­ists and Al Qaeda mem­bers dur­ing a debrief with his MI6 hand­ler David Wat­son, in late 19952 so MI6 can­not deny it did not know what it was enter­ing into.
  • At the very least, MI6 failed to real­ise that it had prior intel­li­gence about an Al Qaeda coup in Libya.  If suc­cess­ful, MI6 would have allowed Al Qaeda to take over an oil-rich state in North Africa, put­ting the lives of Brit­ish and US cit­izens, in par­tic­u­lar, at far greater risk.
  • By the time MI6 paid the money, Osama Bin Laden’s organ­isa­tion was already known to be respons­ible for the 1993 World Trade Centre bomb­ing and MI5 had set up G9C, a sec­tion ded­ic­ated to the task of defeat­ing Bin Laden and his affiliates.
  • Under the 1994 Intel­li­gence Ser­vices Act, the real James Bonds do have a licence to kill or immunity for crim­inal acts car­ried out abroad in the course of their work, provided they gain the per­mis­sion of the For­eign Sec­ret­ary.  But without that per­mis­sion they are break­ing the law, should they become involved in a con­spir­acy to murder and to cause ter­ror­ism.  In this case, they did not even seek that permission.
  • MI6 gave money to indi­vidu­als who posed a greater threat to our lives and secur­ity — Al Qaeda — to assas­sin­ate an indi­vidual who posed a lesser threat, Col­onel Gad­dafi.  It just doesn’t make any logical sense.  In fact, it demon­strates that MI6 was motiv­ated by revenge on Gad­dafi, rather than any desire to pro­tect Brit­ish lives and national secur­ity, because he nation­al­ised the Libyan oil industry in 1976 at the expense of BP3

How David was briefed on the conspiracy

In sum­mer 1995, at the height of the illegal invest­ig­a­tion into Vic­toria Brit­tain, David was first briefed on the plot.  David Wat­son, David’s coun­ter­part in MI6, asked to meet to dis­cuss an unusual case which he could not men­tion over the phone.  At the sub­sequent meet­ing, PT16/B told David that:

A senior mem­ber of the Libyan mil­it­ary intel­li­gence ser­vice had walked into the Brit­ish embassy in Tunis and asked to meet the res­id­ent MI6 officer.

The Libyan ‘walk-in’ had asked for funds to lead a group of Islamic extrem­ists in an attemp­ted coup, which would involve the assas­sin­a­tion of Col­onel Gad­dafi, the head of the Libyan state.

Although the Libyan mil­it­ary intel­li­gence officer led the group, he had said he was not an Islamic extrem­ist himself.

The Libyan had a brief MI6 record, which PT16/B thought was enough to con­firm that the Libyan did have the access to the régime that he claimed.

In exchange for MI6’s sup­port, the Libyan offered to hand over the two Lock­er­bie sus­pects after the coup.  Get­ting them to the UK for trial had at the time been one of MI6’s object­ives for about three years but there is no guar­an­tee that the coup plot­ters could have done this.  It is debat­able whether the coup plot­ters would have had either the resources or expert­ise required to track down the sus­pects after their planned coup.  At first, David was scep­tical to the point of ennui.  After all, MI6 officers had often claimed that the Lock­er­bie two were about to be handed over or that Gad­dafi was about to die or be toppled but noth­ing had come of this sup­posedly keen and reli­able intelligence. 

In the fol­low­ing weeks, PT16/B told David that the Libyan was code­named Tun­worth.  At some point in the fol­low­ing weeks David briefly saw the prin­tout of MI6’s record of him.  It con­tained around two or three sep­ar­ate men­tions.  They sup­por­ted his claim to be a senior mem­ber of Libyan mil­it­ary intel­li­gence but were not detailed.  David checked the Libyan’s name against Durbar and Star, MI5’s records, but the ser­vice had no trace of him.  David did not make any effort to remem­ber the name because he believed that the whole thing would come to noth­ing as other MI6 plots had done.  Wat­son also issued at least two CX reports detail­ing intel­li­gence provided by Tun­worth at his meet­ing with the res­id­ent MI6 officer in Tunis4.  David remem­bers it con­cerned changes in per­son­nel in the Libyan régime.  MI5 had col­lat­eral for it so G9 assessed that Tun­worth had some access to the régime.  David takes up the story:

Through­out this pro­cess, I briefed my line man­ager, G9A/1 — Jerry Mahoney until Decem­ber 1995, Paul Slim, after that — about these devel­op­ments.  As the oper­a­tion was in its infancy when Mahoney left, I don’t believe that I told him any­thing other than the bare basics.  When brief­ing his suc­cessor, Paul Slim, I told him that this might be more ‘Boys’ Own stuff’ on the part of MI6 and that we shouldn’t take it too ser­i­ously although we agreed to review this in the light of new information. 

It is incon­ceiv­able that G9A/1 did not think an MI6-funded plot to engin­eer a coup in Libya was worthy of men­tion­ing to his line man­ager, G9/0, Peter Mitchell.  In turn, it is unthink­able that G9/0 did not raise the mat­ter with his line man­age­ment who would have informed his boss until the DG her­self had been made aware.  I won­der if it was included in the first draft of Dame Stella’s book and removed on the orders of the authorities.”

In Decem­ber 1995, James Wor­th­ing, R/ME/C at MI6, cir­cu­lated CX95/ 534526 report to White­hall and other address­ees, warn­ing of a poten­tial coup in Libya.  It con­firmed that a mem­ber of the rebel group gave detailed intel­li­gence to his MI6 hand­ler in anti­cip­a­tion of help from Bri­tain.  The report clearly demon­strated that Wat­son knew that Tun­worth was plan­ning ter­ror­ism and his group had already been involved in attempts on Gaddafi’s life:

In late Novem­ber 1995 [Tunworth’s iden­tity removed]7 described plans, in which he was involved, to over­throw Col­onel Gad­dafi. […]  The coup is sched­uled to start at around the time of the next Gen­eral People’s Con­gress on Feb­ru­ary 14, 1996.  Coup will start with unrest in Tripoli, Mis­ra­tah and Benghazi.” […]
“The coup plot­ters were respons­ible for the death of [blank –Names removed to pro­tect security-————————blank] was about to take up the pos­i­tion as head of Mil­it­ary Intel­li­gence when he was forced off the Tripoli-Sirte road and was killed.  The 2 coup plot­ters involved escaped unhurt.  In August 1995, 3 army cap­tains who were part of the coup plot attemp­ted to kill Col­onel Gaddafi.”

The report then lis­ted Libyan install­a­tions that would be attacked and described sup­port­ers in Libya’s prin­cipal cit­ies and their occu­pa­tions.  The start of the coup was to be sig­nalled through coded mes­sages on tele­vi­sion and radio.  It also said that at least 250 British-made weapons were dis­trib­uted among the plotters.

Tun­worth also told his MI6 hand­ler that:

plot­ters would have cars sim­ilar to those in Gaddafi’s secur­ity entour­age with fake secur­ity num­ber plates. They would infilt­rate them­selves into the entour­age in order to kill or arrest Gaddafi…

One group of mil­it­ary per­son­nel were being trained in the desert area near Kufra for the role of attack­ing Gad­dafi and his entour­age.  The aim was to attack Gad­dafi after the GPC [Gen­eral People’s Con­gress], but before he had returned to Sirte.  One officer and 20 men were being trained for this attack.”

David also remem­bers another MI6 CX report being issued about the plot in early 1996.  It was a shop­ping list of the group’s require­ments to carry out the coup, includ­ing the sup­ply of weapons and basics like jeeps and tents.

Around the same time, Christ­mas 1995, Wat­son told David that he had met Tun­worth, in Geneva and paid him $40,000.  Jackie Barker, who had replaced Sue Thomas as G9A/15, told him that Wat­son had told her the same inform­a­tion ‘in con­fid­ence’.  Dur­ing routine G9/PT16 meet­ings around this time, officers occa­sion­ally men­tioned the plot.  Wat­son then met Tun­worth on two fur­ther occa­sions early in 1996 in Geneva.  David does not know of any fur­ther details except that Wat­son men­tioned that he had paid ‘sim­ilar sums’ to Tun­worth on each occa­sion.  Although PT16/B never spe­cific­ally men­tioned it, it was tacitly under­stood that Wat­son was work­ing with the approval of his dir­ect line man­ager, PT16, Richard Bartlett.

Lack of gov­ern­ment sanction

At some point — David can’t be sure when exactly — Wat­son men­tioned that the ‘sub­mis­sion’, MI6 jar­gon for the let­ter request­ing per­mis­sion from the For­eign Office for oth­er­wise illegal oper­a­tions, was going to go “all the way to the top”.  In about Janu­ary 1996, Wat­son told him that the sub­mis­sion had been suc­cess­ful, indic­at­ing that the For­eign Sec­ret­ary him­self had signed the doc­u­ment per­mit­ting the operation.9  When David briefed Paul Slim on the details of the plot, he spe­cific­ally drew atten­tion to the fact that the ser­vice only had Watson’s word for this.  He urged his boss to task senior MI5 man­age­ment to raise the mat­ter form­ally, to check that the oper­a­tion was legal.

Then, in either Feb­ru­ary or March 1996, David read two, pos­sibly three intel­li­gence reports quot­ing inde­pend­ent sources — the Egyp­tian and Moroc­can intel­li­gence ser­vices.  They all stated that an attack had been made on Col­onel Gad­dafi in Sirte, Libya.  Two of the reports indic­ated that the attack­ers had tried to assas­sin­ate Gad­dafi when he was part of a motor­cade but had failed as they had tar­geted the wrong car.  As a res­ult of the explo­sion and the ensu­ing chaos in which shots were fired, civil­ians and secur­ity police were maimed and killed.

At a meet­ing shortly after, PT16/B ven­tured to me in a note of tri­umph that Tun­worth had been respons­ible for the attack.  “Yes that was our man.  We did it” was how he put it.  He regarded it, curi­ously, as a tri­umph even though the object­ive of the oper­a­tion had not been met and report­ing indic­ated there had been civil­ian cas­u­al­ties.  Des­pite that, I very much got the impres­sion that this was regarded as a coup for MI6 because it was play­ing up to the repu­ta­tion that the real James Bonds wanted to have.  I then promptly passed the inform­a­tion on to my line man­ager, G9A/1.  Although ini­tially reluct­ant, he said he would deal with the mat­ter.  I’ve no idea whether he did.  In later months, I asked Wat­son sev­eral times what had happened to Tun­worth, but was not given answers.”

By this time, David had already decided to leave the ser­vice and was act­ively look­ing for jobs in the private sec­tor.  As a res­ult of MI6 fund­ing Al Qaeda, on top of the gen­eral ineptitude and bungling I had wit­nessed, I also decided I no longer wanted to work for intel­li­gence ser­vices who had ceased to pro­tect demo­cracy and instead fun­ded our ter­ror­ist enemies.  The ser­vices are sup­posed to pro­tect us, not put our lives at greater risk from ter­ror­ist attack.  It was time to leave. 

The MI6/Al Qaeda con­spir­acy, Part 2

David had briefed the MoS with the bare bones of the plot in the sum­mer of 1996 and again when pre­par­ing the dis­clos­ures of 24 August 1997.  How­ever, given the con­tro­ver­sial and sens­it­ive nature of the mater­ial, he had always wanted to sub­mit it to the gov­ern­ment for invest­ig­a­tion.  Since then, min­is­ters and other respons­ible agen­cies like the PM’s ISC and the Cab­inet Office have con­sist­ently refused to take pos­ses­sion of David’s evid­ence con­cern­ing the plot. Des­pite his repeatedly writ­ing to them to inform them that ele­ments of the ser­vices were oper­at­ing out­side the law.

As the author­it­ies had shown no interest in tak­ing his evid­ence, in early Decem­ber 1997 David gave Mark Urban, at the time the BBC’s Defence and Dip­lo­matic Cor­res­pond­ent, a full, recor­ded inter­view about the MI6/Al Qaeda plot.  Then, after he had entered into nego­ti­ations, David again tried to give his evid­ence to the Brit­ish author­it­ies, but they repeatedly refused to take it.  By June 1998, Urban had stood up key aspects of the story.  Although David urged Urban to sub­mit the doc­u­ment­ary to the author­it­ies for imme­di­ate clear­ance under the injunc­tion, BBC man­age­ment appeared reluct­ant to face the gov­ern­ment and the intel­li­gence ser­vices head-on.  They sat on the pro­gramme, while they debated it internally.

By July 1998 the gov­ern­ment had shown no real will to come to a nego­ti­ated set­tle­ment with David.  In frus­tra­tion at the government’s fail­ure to dis­charge its demo­cratic duties by tak­ing his evid­ence and at the same time faced with BBC iner­tia, in July 1997 David told the MoS that he was look­ing into set­ting up an Inter­net site to ensure that the crimes of the intel­li­gence ser­vices could be prop­erly exposed. 

Noth­ing will threaten the secur­ity of MI5 agents or staff,” he said, “or com­prom­ise its work­ing meth­ods.  But there are vital mat­ters that need a pub­lic air­ing and the Inter­net is the way to do it.” 

David hoped the art­icle would prompt min­is­ters to take his evid­ence.  As there was no response after a week, David again told the MoS that he inten­ded to pub­lish his dis­clos­ures  with due care for national secur­ity  on the Inter­net in the US, where it would be pro­tec­ted under the first amendment. 

I don’t see how the Gov­ern­ment can com­plain,” said David, “when I’ve been try­ing to talk to them for months.”

Three days later, his www​.shayler​.com site was hacked, before it was even up and run­ning.  Verio aka Tab­net, the ser­vice pro­vider in the US, said that the hack­ing was done by a pro­fes­sional, after the pass­word to gain access to the site was inter­cep­ted en route to David’s com­puter.  There is no actual evid­ence to indic­ate that the intel­li­gence ser­vices were respons­ible but they are the like­li­est cul­prits.  Hack­ers do not nor­mally attack anti-establishment web­sites, par­tic­u­larly when they are not yet up and running.

On 31 July 1998, David and I met the MoS in Paris, in an effort get the MI6/Al Qaeda con­spir­acy out to a wider audi­ence.  On the strict under­stand­ing that the news­pa­per sub­mit­ted the story to gov­ern­ment, David gave the paper the details of the plot (without men­tion­ing the names of intel­li­gence officers).  Min­is­ters refused the paper per­mis­sion to pub­lish the inform­a­tion in any mean­ing­ful form, while also deny­ing the story.  David also met Nick Rufford and David Lep­pard of The Sunday Times and gave them a brief­ing on the plot, with the same caveat.  David comments:

The denial and cen­sor­ship do not add up12.  Either the dis­clos­ure is untrue, in which case the gov­ern­ment can­not cite national secur­ity reas­ons for sup­press­ing the inform­a­tion.  Or the dis­clos­ure is true, in which case the gov­ern­ment has a duty to invest­ig­ate exactly how Brit­ish intel­li­gence officers came to use tax­pay­ers’ money to fund ter­ror­ism and murder inno­cent civil­ians.  The gov­ern­ment has used the injunc­tion and the 1989 OSA to restrain the free­dom of the press, in order to pro­tect itself from embar­rass­ment rather than pro­tect national security.”

David’s arrest in con­nec­tion with the Plot

Unbe­known to David and me, a couple of hours after he had legally13 sub­mit­ted his very ser­i­ous evid­ence to min­is­ters, those self-same min­is­ters sent an urgent request to extra­dite David for his ori­ginal dis­clos­ures which had appeared almost a year earlier in the MoS.  David says:

In these cir­cum­stances, it is dif­fi­cult to see how any­one could believe that our over­sight arrange­ments work.  Indeed, the act of impris­on­ing an indi­vidual who uses a legal route to report ter­ror­ism on the part of MI6, is hardly likely to encour­age other indi­vidu­als to use the sys­tem.  It has all the hall­marks of des­pot­ism and tyranny.”

The next day, 1 August 1998, the French DST, the equi­val­ent of MI5 and Spe­cial Branch, arres­ted David in the foyer of our hotel when he returned from watch­ing his foot­ball team, Middles­brough, lose 1–0 on Sky to Empoli in a pre-season friendly.  He was held for over 24 hours in the Pal­ais de Justice — most of the time in sol­it­ary — and denied access to a law­yer.  The day after, he was trans­ferred to La Santé prison in Paris’s 14th arron­disse­ment.  At the instig­a­tion of the Brit­ish author­it­ies, he was held under dra­conian secrecy legis­la­tion and first saw a law­yer over two days after he had been arres­ted.  He con­tin­ued to be denied access to all other vis­it­ors for most of his time in prison. 

But for David’s quick think­ing, I would not have known what had happened to him.  He would have van­ished.  The DST asked him for his papers.  Know­ing I was wait­ing for his return in our hotel room, he told them his pass­port was in his bag upstairs (it was not).  I there­fore only knew he had been arres­ted when the DST came knock­ing on my door.  I was not to see him again for over two months.

Two days after David was arres­ted, The Daily Tele­graph splashed on dis­clos­ures he had given to its intel­li­gence cor­res­pond­ent Michael Smith, a few weeks before, about secur­ity blun­ders con­cern­ing the IRA main­land bomb­ing cam­paign.  The Tele­graph included some details of the fail­ures but was blocked by the injunc­tion from reveal­ing how a num­ber of attacks could have been pre­ven­ted.  Rather curi­ously, the paper — then edited by Charles Moore – called for David to be ‘horse­whipped’ in its leader column for provid­ing inform­a­tion about secur­ity fail­ures, which The Tele­graph pub­lished in its news section.

David’s soli­citor John Wadham said:

It’s a strange coin­cid­ence that before this import­ant story about this assas­sin­a­tion attempt was going to break, the Gov­ern­ment ensured that David was arres­ted and incommunicado.”

The New York Times breaks the story

While David lan­guished in a prison cell, and while the dis­clos­ure had been injunc­ted in the Brit­ish press, a public-spirited indi­vidual passed the details of the MI6/Al Qaeda con­spir­acy to The New York Times.  On 5 August 1998, it repor­ted that the Brit­ish media had been banned from report­ing the plot.

Did the Brit­ish gov­ern­ment try to assas­sin­ate Col Mum­mar Gad­dafi, the Libyan leader, in Feb­ru­ary 1996 by plant­ing a bomb under his motor­cade?  And did the plan go awry because agents from MI6, the for­eign intel­li­gence ser­vice, put the bomb under the wrong car, killing sev­eral Libyan bystand­ers?” it asked. […]

A sweep­ing injunc­tion has barred news­pa­pers and tele­vi­sion news pro­grammes from pub­lish­ing the embar­rass­ing alleg­a­tions about the inner work­ings of Britain’s secur­ity ser­vices, brought up by a dis­gruntled former officer.  The media have been forced to dis­cuss the alleg­a­tions without actu­ally say­ing what the alleg­a­tions are.  ‘I’ve known these things for some­thing like 16 months, and I am not allowed to pub­lish any of it,’ said Jonathan Hol­borow, editor of The Mail on Sunday.”

The paper added that the gov­ern­ment had told the press it could report the alleg­a­tions as long as it did not men­tion details, like the pay­ment to Islamic extrem­ists of around £100,000.

The Pan­or­ama programme

The BBC began intense nego­ti­ations with the gov­ern­ment for per­mis­sion to show David’s inter­view with Mark Urban.  Only after threat­en­ing to chal­lenge the tem­por­ary injunc­tion through the courts, did the gov­ern­ment back down.  Two days after the pub­lic­a­tion of The New York Times art­icle, the BBC was per­mit­ted to broad­cast more details of the con­spir­acy in a Pan­or­ama spe­cial presen­ted by Mark Urban.  He con­firmed that the Islamic group involved was the Mil­it­ant (or Fight­ing) Islamic Group, led by Abdul­lah Al-Sadiq.  Cam­ille Tawil, an Arab journ­al­ist based in Lon­don, told the pro­gramme that shortly after the attack in Feb­ru­ary 1996, he received a fax from the group, claim­ing respons­ib­il­ity for the attack and nam­ing the mem­bers of its team who had died in the attack: 

I felt it was cred­ible inform­a­tion given to me but I wanted to verify the story.  I con­tac­ted other Libyan groups and they gave me a sim­ilar account of what had happened.  This is why I decided to pub­lish the story.”

Pan­or­ama also reported:

Libya has pub­licly accused Bri­tain of giv­ing refuge to the leader of the Mil­it­ant Islamic Group.  In response to our enquiry, the For­eign Office said it does not know whether Abdul­lah Al Sadiq is in this country”.

The pro­gramme also con­firmed that MI6 did not get the vital per­mis­sion from its min­is­ters to carry out the attack — which is a legal require­ment so the officers involved have immunity under Eng­lish law.

Two well-placed people have told me that the Tory min­is­ters run­ning the depart­ment at the time gave no such author­isa­tion.  […]  In short, that means Britain’s intel­li­gence ser­vice was oper­at­ing com­pletely out of control.”

Urban con­cluded:

It is true of course that Shayler’s know­ledge of this affair depends entirely on what the SIS man, PT16/B, told him at their meet­ings.  But cer­tain pieces of this Libyan jig­saw can­not eas­ily be argued away by SIS.  There was an assas­sin­a­tion attempt.  Numer­ous Libyan sources con­firm it.  Bri­tain did have a rela­tion­ship with Tun­worth.  Any inquiry into David Shayler’s alleg­a­tion will be able to find the key CX report which detailed the plot against Gad­dafi, so show­ing Tunworth’s inside knowledge. […] 

Only a thor­ough going inquiry would stand a chance of get­ting to the bot­tom of whether some intel­li­gence officers played fast and loose with the rules.  David Shayler has provided Pan­or­ama with other details about the Libyan oper­a­tion and the people con­nec­ted with it.  Com­bined with our own inform­a­tion, it sug­gests that SIS have a very ser­i­ous case to answer”.

The Pan­or­ama pro­gramme estab­lished that MI6 had oper­ated out­side the con­trol of its polit­ical mas­ters.  In other words, unac­count­able intel­li­gence oper­at­ives were decid­ing Brit­ish for­eign policy, not a demo­crat­ic­ally elec­ted gov­ern­ment.  When you think about it, this means that middle rank­ing intel­li­gence officers have the power of life and death over an indi­vidual without being account­able for their actions16.  While that is all very well in a James Bond film, in the real world intel­li­gence officers are now required to oper­ate within the law.

Sep­ar­ate sources con­firm the story

On 9 August 1998, the MoS added still fur­ther con­firm­a­tion of the plot and the pay­ments.  It reported:

David Shayler’s rev­el­a­tions that MI6 tried to blow up Col­onel Gad­dafi were given strong cre­dence by US intel­li­gence sources yes­ter­day.  They insisted that, des­pite claims to the con­trary, the Brit­ish secret ser­vice was fin­an­cing the group behind the attempt on the Libyan leader’s life.  [Accord­ing to the US] the Brit­ish ser­vice [MI6] turned to the Fight­ing Islamic Group [FIG] and its leader, Abu Abdul­lah Sadiq, who was liv­ing in London.” 

A sep­ar­ate source, a former senior ana­lyst with Amer­ican intel­li­gence, told the paper:

I’m sure that Brit­ish intel­li­gence has all the plaus­ible deni­ab­il­ity that it needs.  Cer­tainly there were con­tacts between MI6 and FIG.”

Yet another source in Wash­ing­ton told the paper that MI6 had provided ‘vari­ous kinds of sup­port’ to FIG, includ­ing fin­an­cial help.

The same day, The Sunday Times repor­ted that it had iden­ti­fied one of the per­pet­rat­ors of the attack as Abd Al Muhay­meen.  Accord­ing to the paper, he was a Libyan ‘fun­da­ment­al­ist’ or Islamic extrem­ist, to use MI5 phras­eo­logy, who had trained and fought in Afgh­anistan.  On the day, he also chose the tim­ing of the attack. 

He waited in ambush with a group of feday­deen from a force known as the Islamic Fight­ing Group. […]  The group appeared to be gain­ing in strength and dar­ing, mostly due to the expert­ise of Afghan vet­er­ans such as Al Muhay­meen. […]  As the con­voy approached, Al Muhay­meeen gave the word and the sounds of battle erup­ted.  When it was over, Gad­dafi had sur­vived yet again.  So had Al Muhay­meen.  But sev­eral of their men lay dead on each side.  So did bystanders.”

For­eign Secretary’s comments

On 9 August 1998, Robin Cook, the then For­eign Sec­ret­ary, told the BBC’s Break­fast with Frost programme:

The tale about the MI6 plot to assas­sin­ate Gad­dafi is pure fantasy.  First of all, let’s be clear about this claim that Shayler can bring down the gov­ern­ment, [the claim appeared in The Sunday Times, but David never made it] the alleg­a­tions are about some­thing that is alleged to have happened not under this gov­ern­ment but under our pre­de­cessor.  […] I have pur­sued these alleg­a­tions.  I am abso­lutely sat­is­fied that the pre­vi­ous For­eign Sec­ret­ary did not author­ise any such assas­sin­a­tion attempt.  I am per­fectly sat­is­fied that SIS never put for­ward any such pro­posal for an assas­sin­a­tion attempt, nor have I seen any­thing in the 15 months I have been in the job which would sug­gest that SIS has any interest, any role or any exper­i­ence over the recent dec­ade of any such escapade.  It is pure fantasy.

I have already made my own enquir­ies.  I have sat­is­fied my mind.  I see no basis for the reports in today’s papers about any forth­com­ing enquiry.  There was no SIS pro­posal to do it and I am fairly clear that there has never been any SIS involve­ment.  I do wish people would recog­nise that what is being said here is that there is some­body who has left another ser­vice, not SIS, was never in SIS, is mak­ing alleg­a­tions no doubt for his own reas­ons.  We would like to see him back in Bri­tain in order that we can pur­sue those charges that have been made against him.

I am clear these alleg­a­tions have no basis in fact and secondly I am quite clear that the SIS oper­a­tions that I have author­ised have noth­ing remotely to do with the kind of fantasy that has been pro­duced over the last two days.”

Without ever both­er­ing to take David’s evid­ence, Cook repeated from The Sunday Times an alleg­a­tion that David had never made: that he could ‘bring down the government’17, a tac­tic that Straw had used in the first use of the sub­mis­sion pro­cess in Octo­ber 1997. 

Cook also unequi­voc­ally denied the exist­ence of any MI6 oper­a­tion at all; “The tale about the MI6 plot to assas­sin­ate Col­onel Gad­dafi is pure fantasy.”  There is no men­tion here that Cook is claim­ing that aspects of the story may be fantasy – such as the pay­ments, which the For­eign and Com­mon­wealth Office (FCO) later and wrongly claimed were the sub­ject of the ‘pure fantasy’ jibe.

Without both­er­ing to hold a proper enquiry, he was uncrit­ic­ally put­ting out the MI6 line, adding: “I am clear these alleg­a­tions have no basis in fact.”  Min­is­ters can­not leg­ally ban inform­a­tion that is fantasy.  After all, min­is­ters had already indic­ated in off-the-record brief­ings at the time of the Israeli Embassy dis­clos­ure that dis­clos­ures on the part of former officers, which they accept to be untrue, could not harm national security.

Indeed, when Cook said: “I am abso­lutely sat­is­fied that the pre­vi­ous For­eign Sec­ret­ary did not author­ise any such assas­sin­a­tion attempt”, he merely con­firmed a key aspect of the Pan­or­ama invest­ig­a­tion; that MI6 did not have the per­mis­sion of min­is­ters to carry out the attack, mak­ing any actions by MI6 a crim­inal offence.  Although Cook then claimed he was ‘fairly clear’ that there had never been any MI6 involve­ment and ‘per­fectly clear’ there was no basis in fact, he did not relate how exactly he had estab­lished this or why he was ‘per­fectly clear’ of one pos­i­tion but only ‘fairly clear’ about another. 

Des­pite his claims, he obvi­ously hadn’t had time to organ­ise and carry out a full inquiry, even though there were officers in MI5 who had been briefed about the plot, and who could have been inter­viewed.  In fact, it appears that Cook – in the same way that Straw had done before him — went to the head of the agency con­cerned (in this case, MI6) and asked if it had been involved in ter­ror­ist fund­ing and murder.  Not sur­pris­ingly, the lat­ter appears to have denied it.

After the Pan­or­ama pro­gramme was shown, Mark Urban offered his evid­ence to Robin Cook, who refused to take pos­ses­sion of it, inform­ing him that the mat­ter was closed.  As this was an alleg­a­tion of murder and ter­ror­ist fund­ing, Cook should have dis­charged his legal duty and imme­di­ately referred the mat­ter to the police to investigate. 

Libya con­firms plot

On Wed­nes­day 25 Novem­ber 1998, Libyan TV broad­cast foot­age of the assas­sin­a­tion attempt.  It showed Gad­dafi lean­ing out of his open-topped car to greet the crowds, then ming­ling with the crowd, then it showed an object fly­ing through the air, Gad­dafi look­ing down, then sud­denly being sur­roun­ded by body­guards, who hustled him away.  The TV zoomed in on the face of a man in the crowd, and his face was circled in red.  Libyan TV named the assail­ant as Abdul­lah Rad­wan, a part­ner of Abu Abdul­lah Sadiq, the leader of the Islamic Fight­ing Group.  Accord­ing to the report:

Abdul­lah Rad­wan suc­ceeded in reach­ing the front ranks and threw a gren­ade when the brother leader left the car.”

Libyan TV then showed an inter­view with Hasan Al Sadiq Al Shahh, an alleged accom­plice of Radwan:

Ques­tioner: Who entrus­ted you with the mis­sion of enter­ing the Jamahir­iya [the People’s Repub­lic of Libya]?
Al Shahh: Abu Abdul­lah Al Sadiq.
Q: Did he give money?
A: Yes
Q: How much money?
A: $20,000
Q: $20,000?
A: Yes
Q: What is the total amount of money you obtained from Abu Abdul­lah Al Sadiq?
A: Per­haps, $40,000 or $41,000
Q: $41,000?
A: Approx­im­ately, yes
Q: Where did the money you got come from?
A: I do not know.  But there is a group in those coun­tries
Q: What coun­tries are these?
A: Bri­tain
                                                                                                                                                           
Redac­ted text on orders of MI5                                                                                                                                                             
                                                                                                                                                                                                                                   
Our recent enquir­ies with Swal­low Tail, a former intel­li­gence officer who can­not be named for fear of reprisals20, have con­firmed that the man caught by the Liby­ans in the attack, was the agent Tun­worth.  This is fur­ther con­firm­a­tion that an MI6 agent, whom we know was work­ing to Wat­son in Lon­don, was involved in the plot.  The officer also con­firmed that                was either killed dur­ing the attack that Feb­ru­ary or shortly after.  This rather under­mines the claims of min­is­ters that they banned the story in order to pro­tect national secur­ity, since the agent was clearly no longer at risk of reprisal and was not then provid­ing intel­li­gence to the Brit­ish services.

Other than using the sub­mis­sion pro­cess to inform the PM about ser­vice abuses of power, David also wrote to min­is­ters Tony Blair, Jack Straw, Robin Cook, John Prescott and the Attor­ney Gen­eral on sev­eral occa­sions, ask­ing them to invest­ig­ate his dis­clos­ures of MI6’s fund­ing of Al Qaeda.  At no point did any min­is­ter hear his evid­ence.  In June 1999, David sent min­is­ters Secrets and Lies, a doc­u­ment he had pre­pared on his case to counter the mis­in­form­a­tion put out by gov­ern­ment.  It provided details of the con­spir­acy but min­is­ters still refused to call in the police or hold any kind of enquiry.  And that would have been that, if it hadn’t been for the public-spirited former intel­li­gence officer who obtained the CX doc­u­ment issued by MI6 in Decem­ber 1995, and put it on the Inter­net.  That officer said:
“I’ve just about had it up to here with the lies of min­is­ters.  It is dif­fi­cult to ima­gine a more ser­i­ous abuse of power than MI6 fund­ing our ter­ror­ist enemies with the res­ult that inno­cent people are murdered in cold-blood.  If there had been a legal way of present­ing that doc­u­ment to inde­pend­ent invest­ig­at­ors, I would have used it.  As there was not, I had to resort to the Inter­net.  Thank God for mod­ern technology.”

The MI6/Al Qaeda con­spir­acy, Part 3

In Feb­ru­ary 2000, The Sunday Times provided cor­rob­or­a­tion that MI6 had con­spired with an agent in a plan to assas­sin­ate Col­onel Gad­dafi, when it repor­ted that a leaked MI6 doc­u­ment, CX95/ 53452 had appeared on the web­site www​.geo​cit​ies​.com/​b​y​a​n​y​m​e​a​n​s​n​e​c​e​s​s​a​r​y​2​000.  When inter­viewed about the doc­u­ment, the then For­eign Sec­ret­ary Robin Cook refused to con­firm that it was genu­ine.  David can though con­firm that it is the doc­u­ment sent by MI6’s R/ME/C to White­hall depart­ments and the intel­li­gence ser­vices in Decem­ber 1995.  It refuted Cook’s claims, which had caused many to believe that David had simply made the whole thing up:

The tale about the MI6 plot to assas­sin­ate Gad­dafi is pure fantasy.
“It is pure fantasy”
“I am clear these alleg­a­tions have no basis in fact”
The MI6 report clearly demon­strated that an MI6 agent among the coup plot­ters was meet­ing his MI6 hand­ler to dis­cuss the assas­sin­a­tion of Col Gad­dafi ‘in which he was involved’:
“The coup plot­ters would launch a dir­ect attack on Gad­dafi and would either arrest him or kill him.”
“The mil­it­ary officer said that the plot­ters would have cars sim­ilar to those in Gaddafi’s secur­ity entour­age with fake secur­ity num­ber plates.  They would infilt­rate them­selves into the entour­age in order to kill or arrest Gaddafi.”

Remem­ber, Tun­worth had already out­lined his plans and his request for fin­ance to the res­id­ent MI6 officer in Tunis in sum­mer 1995.  David Wat­son, PT16/B, had then met Tun­worth — in the full know­ledge that the lat­ter wanted to assas­sin­ate Gad­dafi — to obtain details of the oper­a­tion, which were pub­lished in the CX report.  If this report had been a record of a meet­ing between a Libyan ter­ror­ist and an IRA mem­ber plan­ning to assas­sin­ate Tony Blair, which had fallen into MI5 or police hands, it would have been accep­ted in a court of law as clear evid­ence of a con­spir­acy between the two to cause terrorism.

The MI6 intel­li­gence report also con­firmed that Sirte was the site of the attack in Feb­ru­ary or March 1996, inform­a­tion David had told Urban who had stood it up for the Pan­or­ama invest­ig­a­tion into the plot.  It also estab­lished that the group of coup plot­ters were at least look­ing for sup­port from the Brit­ish state.  (As a CX report going out to min­is­ters, it could not detail the illegal payments):

The officer was dis­clos­ing this inform­a­tion in the hope that if the coup was suc­cess­ful, the new gov­ern­ment could enlist HMG support.”

Accord­ing to the report, Tun­worth also admit­ted con­tacts between the plot­ters and Islamic extrem­ists, described as ‘Libyan stu­dents’ and ‘Libyan vet­er­ans who served in Afgh­anistan’.  As already dis­cussed, vet­eran Libyan Islamic extrem­ists who served in Afgh­anistan are con­sidered by MI5 to be de facto mem­bers of Al Qaeda.

The CX report oth­er­wise played down the agent’s con­tacts with Islamic extrem­ists, pre­sum­ably because the report went to min­is­ters who would have been appalled at the pro­spect of Islamic ter­ror­ists top­pling Gad­dafi, given that the former posed a greater threat to Brit­ish lives.  As we now know from the sexed-up dossier, it is not unusual for incon­veni­ent pieces of inform­a­tion to be left out of offi­cial reports. 

David is adam­ant that, when Wat­son was brief­ing him, he told David that Tun­worth was lead­ing a ‘rag tag’ group of Islamic extrem­ists.  David also briefed Paul Slim, his boss at the time, with this inform­a­tion and provided it in his sworn state­ment to the police.  He has not been charged with per­jury.  Other media reports already quoted have estab­lished that the Islamic Fight­ing Group were respons­ible.  The Libyan TV broad­cast also indic­ated that a lead­ing mem­ber of the IFG might be Tun­worth, as he led the attack in much the way that Tun­worth out­lined in the CX report.

The report also made it abso­lutely clear that the Per­man­ent Under Secretary’s Depart­ment – Sir Humphrey Appleby’s equi­val­ent in the For­eign Office — GCHQ, MI5; the Min­istry of Defence; and MI6 sta­tions in Tunis, Cairo and Wash­ing­ton knew of the assas­sin­a­tion attempt at least two months in advance.  They would there­fore have had cop­ies on file.  Did none of them bother to brief Cook with this rather per­tin­ent inform­a­tion before he went on the Break­fast with Frost pro­gramme on 9 August 1998?  Were our Sir Humphreys and our George Smi­leys delib­er­ately keep­ing min­is­ters in the dark?  Or did Cook know about Tun­worth but think he could get away with brand­ing the plot ‘pure fantasy’ in the belief that doc­u­ments detail­ing the rela­tion­ship between Tun­worth and MI6 would never see the light of day? 
We also have to ask ourselves what role the PM played in all this, as the fig­ure ulti­mately respons­ible for our ser­vices.  What did he know and when did he know it?

Julie Ann and the bul­lies in government

The gov­ern­ment had always claimed it was not in the busi­ness of pre­vent­ing legit­im­ate dis­cus­sion of the intel­li­gence ser­vices.  But on 6 March 2000, that all changed when Spe­cial Branch officers arres­ted Julie Ann Dav­ies, a stu­dent at King­ston Uni­ver­sity, under the 1911 and 1989 OSAs, dur­ing a lec­ture at the col­lege.  She was held for sev­eral hours at King­ston Police sta­tion but was not charged.  She was later released on police bail.  The uni­ver­sity con­firmed that it had com­plied with a search war­rant, giv­ing police the right to access Davies’s com­puter at the uni­ver­sity.  Dav­ies had recently vis­ited David in France and had begun to rally sup­port for him. 

Dur­ing that meet­ing I became con­vinced that the man was genu­ine and so I felt the need to do some­thing about his situ­ation,” she said at the time. 

The day after the CX doc­u­ment appeared on the Inter­net, Dav­ies cir­cu­lated an e-mail to fel­low cam­paign­ers and journ­al­ists.  In it, she stated:

You have prob­ably heard about the doc­u­ment on the web that appears to back up David Shayler’s alleg­a­tions of an MI6 plot to assas­sin­ate Col­onel Gaddafi.”

It is also clear from the con­text of the ques­tions that police asked her that Spe­cial Branch sus­pec­ted her of put­ting the CX doc­u­ment on the Inter­net.  Under ques­tion­ing, Dav­ies denied hav­ing any­thing to do with this.  After keep­ing her on police bail for a num­ber of months without char­ging her, Spe­cial Branch even­tu­ally dropped the invest­ig­a­tion.  As a res­ult of the police action, she was forced to drop out of her uni­ver­sity course.  She is cur­rently suing police for wrong­ful arrest.  As a res­ult of dis­clos­ure in this case, police have provided her with the ‘evid­ence’ which led to her arrest.  It con­sists only of three anonym­ous let­ters claim­ing that she put the doc­u­ment on the Inter­net.  As they are anonym­ous, they would not be con­sidered admiss­ible evid­ence in a court of law. 

Mr Peter Scott, King­ston Uni­ver­sity vice chan­cel­lor, said:

The uni­ver­sity, as an insti­tu­tion com­mit­ted to free­dom of expres­sion, would be par­tic­u­larly con­cerned if it turned out that a dis­cred­ited piece of legis­la­tion like the OSA was being used to sup­press legit­im­ate journ­al­istic invest­ig­a­tion and the public’s right to know about alleged abuses by the secur­ity services.”

The arrest of Julie Ann Dav­ies proved once again that min­is­ters were rather more con­cerned with intim­id­at­ing David’s sup­port­ers and pro­tect­ing the intel­li­gence ser­vices from proper scru­tiny, includ­ing crim­inal invest­ig­a­tion, than free speech, one of the corner­stones of demo­cracy.  It was also a clear example of bul­ly­ing.  The Sunday Times, which had pub­lished the ori­ginal art­icle about the report and quoted from the doc­u­ment, had not been invest­ig­ated, nor had any of its journ­al­ists been arres­ted in con­nec­tion with the mat­ter. 
This is also clear evid­ence that mater­ial from CX reports can be pub­lished without caus­ing dam­age to national secur­ity, as the gov­ern­ment did not pro­sec­ute the paper or its journ­al­ists under s5 of the 1989 OSA, where the Crown has to prove dam­age, for pub­lish­ing and quot­ing from the report.  But the bul­ly­ing was set to continue. 

The Observer taken to court

Hav­ing used the OSA to intim­id­ate one of David’s sup­port­ers for try­ing to expose ter­ror­ism fun­ded out by MI6, Blair’s gov­ern­ment then turned its sights on the ele­ments of the press who were bravely try­ing to expose the con­spir­acy.  Comedian and journ­al­ist Mark Thomas had agreed to deliver his evid­ence about the conspiracy23 to the Brit­ish Embassy by hand in Novem­ber 1999.  As Straw did not even bother to reply, David briefed Mar­tin Bright of The Observer.  In Feb­ru­ary 2000, he repor­ted that Straw had done noth­ing to ensure that there was a crim­inal invest­ig­a­tion into PT16/B’s activities. 

The art­icle also revealed for the first time in pub­lic that Tun­worth was a senior mem­ber of Libyan intel­li­gence, who had walked into the Brit­ish Embassy in Tunis, and that reports quot­ing Moroc­can and Egyp­tian intel­li­gence sources had con­firmed the assas­sin­a­tion attempt, shortly after it took place in Feb­ru­ary 1996. 

A For­eign Office spokes­man changed the offi­cial pos­i­tion on the con­spir­acy, try­ing to play down Robin Cook’s claim that the tale about the MI6 plot to assas­sin­ate Gad­dafi was ‘pure fantasy’:

We have never denied know­ledge of coup attempts against Col Gad­dafi,” he told the paper.  “We always described alleg­a­tions of involve­ment as fantasy25.  We have noth­ing to add or subtract”.

If the For­eign Office and Cook had been hon­est when the dis­clos­ure was first made, they would have said at the time:

We are aware of a con­spir­acy to assas­sin­ate Col­onel Gad­dafi in early 1996.  We are still mak­ing enquir­ies about any MI6 involvement.”

Tun­worth was after all an MI6 agent who had by the time of the attack met David Wat­son, an MI6 officer, at least twice to dis­cuss his plans.  On that evid­ence alone, we can con­clude that MI6 was involved.  How­ever, Tun­worth could not have gone ahead with the plot without the back­ing of MI6, fin­an­cial or oth­er­wise.  As we have seen, sep­ar­ate sources have con­firmed pay­ments were made to the IFG, the group Tun­worth belonged to. 

On 14 March 2000, both The Observer and The Guard­ian were taken to court by the author­it­ies.  Spe­cial Branch sought a court order to seize any note­books and browse through The Observer’s com­puter for fur­ther evid­ence of breaches of the OSA on David’s part.  It sought from The Guard­ian the ori­ginal of a let­ter David had writ­ten, which was pub­lished in news­pa­per on the 17 Feb­ru­ary 2000.  As Nick Cohen, The Observer’s colum­nist put it:

No one would dream of telling a news­pa­per about offi­cial cor­rup­tion, incom­pet­ence or crime, if they thought the police – or in this case, the secret police – might read every jot­ting and e-mail.” 

A couple of days later, Detect­ive Ser­geant John Flynn, from the fin­an­cial invest­ig­a­tions unit of Spe­cial Branch, told The Guard­ian that there were ‘reas­on­able grounds’ for pro­sec­ut­ing Mar­tin Bright and Roger Alton, the editor of The Observer, under s5 of the OSA

A month later, judge Mar­tin Steph­ens ruled that the papers had to hand over any mater­ial, even though he admit­ted that the let­ter to The Guard­ian con­tained noth­ing that had not already been prin­ted.  David said at the time:

The gov­ern­ment is adopt­ing the tac­tics of a total­it­arian state by attack­ing the press in this way.  If they really believe I have doc­u­ments that could dam­age national secur­ity, why don’t they come and talk to me about them, rather than intim­id­ate journalists.”

Even the then For­eign Sec­ret­ary Robin Cook and the For­eign Office min­is­ter Peter Hain were repor­ted to be hor­ri­fied at such an attack on press free­dom.  But we have to won­der why they chose to speak out at this point.  Did Cook know that if the doc­u­ments were handed over then David might be pro­sec­uted for dis­clos­ing details of the MI6/Al Qaeda con­spir­acy, allow­ing Cook’s ‘pure fantasy’ lies to be examined before a court?

On 19 July 2000, Mr Justice Igor Judge heard the case for Spe­cial Branch to access The Observer’s com­puter.  He over­turned the decision of the lower courts in his ringing defence of press freedom:

The Gad­dafi Plot is either true or it is false, and unless there are reas­ons of com­pel­ling national secur­ity, the pub­lic is entitled to know the facts, and as the eyes and ears of the pub­lic, journ­al­ists are entitled to invest­ig­ate and report the facts, dis­pas­sion­ately and fairly, without pre­judge­ment or selectivity […]

If true, it is dif­fi­cult to over­es­tim­ate its enorm­ity: a con­spir­acy to murder the head of another state, res­ult­ing not in his death, but in the deaths of inno­cent people who were not its inten­ded tar­gets.[…]  Again, if true, the cir­cum­stances in which such a plan was con­ceived and developed, and the iden­tity of those who were informed about and approved it, or turned a blind eye to it, and equally those who were delib­er­ately kept in ignor­ance, raise crit­ical pub­lic issues about the activ­it­ies of the secur­ity ser­vices and those respons­ible for them” 
In the middle of all this, a new devel­op­ment neatly poin­ted to the impot­ence of the ser­vices and the inef­fect­ive­ness of cur­rent legis­la­tion in pro­tect­ing state secrets in the age of the Inter­net.  Por­tuguese intel­li­gence expert Fre­derico Duarte pub­lished the names of David Wat­son and Richard Bart­lett, PT16/B and PT16 respect­ively in Tal & Qual, the Por­tuguese equi­val­ent of Private Eye.  As the names were also avail­able on the Inter­net, they could be accessed from Bri­tain.  As they were now in the pub­lic domain, they could be repeated in the Brit­ish media, although only the Cam­paign for Press and Broad­cast­ing Free­dom dared to actu­ally pub­lish the names of the two MI6 ter­ror­ists involved.

The delayed police investigation

In March 2000, John Wadham and I had hand-delivered a state­ment — which David had pre­pared and indic­ated he was pre­pared to swear to under oath — to the Met­ro­pol­itan Police Spe­cial Branch at New Scot­land Yard.  The police then refused to invest­ig­ate the plot claim­ing that con­spir­acy to murder did not amount to a crime in Bri­tain.  Again, this demon­strates what would have happened if David had viol­ated the 1989 OSA s1 and approached the Met dir­ectly with his dis­clos­ures in 1997. 

Finally in Decem­ber 2000, two and a half years after David had made the ori­ginal dis­clos­ure, he was finally given per­mis­sion by the author­it­ies to give evid­ence to the police.  DS Gerry Mackin­non and Detect­ive Supt Lewis Ben­jamin work­ing for SO1 of the Met, inter­viewed him and pre­pared a sworn state­ment, which he signed in early 2001.  SO1 then under­took the first ever police invest­ig­a­tion into the activ­it­ies of MI6.  You don’t have to be a cynic to point out that by this time, MI6 had had plenty of time to des­troy or tamper with the evid­ence.  David and I have every con­fid­ence that the police in this case did their job thor­oughly and pro­fes­sion­ally but by then, we believe, it was too late.

In Feb­ru­ary 2001, SO1 sent a report to the Crown Pro­sec­u­tion Ser­vice.  Pro­sec­u­tion sources said the author­it­ies had decided there was a prima facie case, mer­it­ing fur­ther investigation29.  In all, the enquir­ies took nine months.  In Novem­ber 2001, the Met­ro­pol­itan Police con­firmed that the MI6/Al Qaeda con­spir­acy was not ‘pure fantasy’:

As you know, the Met­ro­pol­itan Police Ser­vice under­took an assess­ment of the avail­able mater­ial and sub­mit­ted two reports to the Crown Pro­sec­u­tion Ser­vice, an interim report in Feb­ru­ary 2001 and a final report in Septem­ber 2001.  The police enquiry has been extremely thor­ough, examin­ing all rel­ev­ant material.”

This clearly con­firms that the police have gathered evid­ence – ‘rel­ev­ant mater­ial’ — about the MI6 con­spir­acy, which con­firm there is ‘a basis in fact’ for David’s dis­clos­ures refut­ing Robin Cook asser­tion that: “The tale about the MI6 plot to assas­sin­ate Gad­dafi is pure fantasy. [with] no basis in fact”.  At the same time, neither the police nor the CPS sought to arrest David or bring charges for per­jury or wast­ing police time, indic­at­ing that detailed sworn state­ment was hon­est, reli­able and true.  On these avail­able facts, any reas­on­able observer can only con­clude that Cook is lying and David telling the truth.  In fact, we have chal­lenged Cook to sign a sworn state­ment say­ing that the MI6/Al Qaeda plot was ‘pure fantasy [with] no basis in fact’.

The CPS did con­clude that there is not enough evid­ence to secure a con­vic­tion.  But it took them two months to come to this decision after the nine-month invest­ig­a­tion.  Even then, the CPS sought to mis­rep­res­ent the find­ings of the enquiry:

Final advice from the Crown Pro­sec­u­tion Ser­vice has now been received, say­ing that the mater­ial does not sub­stan­ti­ate the alleg­a­tion made by David Shayler.”

The work of the police and the Crown Pro­sec­u­tion Ser­vice is not to ‘sub­stan­ti­ate […] alleg­a­tions’ or oth­er­wise.  (Any­way, David made a num­ber of alleg­a­tions, not just one).  Its job is to judge whether there is enough evid­ence to secure a con­vic­tion in front of a jury bey­ond any reas­on­able doubt.  That is a very high stand­ard of proof.  The usual test of proof for Par­lia­ment­ary or judi­cial enquir­ies is ‘the bal­ance of probabilities’.

At the time, David commented:

This is the first time that the police have invest­ig­ated an alleg­a­tion against MI6, partly because MI6 had a de facto immunity from invest­ig­a­tion into alleg­a­tions of crime on the part of the ser­vice under the Royal Prerog­at­ive.  It demon­strates why MI6 was put on a legal foot­ing in the 1994 Intel­li­gence Ser­vices Act.  The invest­ig­a­tion was not of course ideal.  The police were only look­ing to gather admiss­ible evid­ence, which could be used to secure a con­vic­tion of the two MI6 officers who planned and car­ried out the plot, rather than try­ing to assess all rel­ev­ant mater­ial, includ­ing intelligence.” 

This whole pro­cess once again calls into ques­tion the over­sight arrange­ments for the ser­vices and the abil­ity of min­is­ters and offi­cials to dis­charge their legal duties.  In the future, we will be seek­ing per­mis­sion to have the record­ing — on which David’s sworn testi­mony was based — pub­lished so that the Brit­ish people and, it is hoped, Par­lia­ment can see for them­selves the truth of his words. 

Fur­ther con­firm­a­tion of the plot

That, again, might have been that but for a book pub­lished by two French journ­al­ists, shortly before David went to trial in Octo­ber 2002.  Guil­laume Dasquié, pub­lisher of Intel­li­gence On-line, and Jean-Charles Bris­ard, a former adviser to French Pres­id­ent Jacques Chirac who worked for the French intel­li­gence ser­vices, pub­lished For­bid­den Truth.  The book con­firms that the Islamic Fight­ing group was the Libyan Al Qaeda cell respons­ible for the attempt on Gaddafi’s life.  The book added that the Islamic Fight­ing Group also included Anas al-Liby, a lead­ing Al Qaeda mem­ber who is wanted for his involve­ment in the African embassy bomb­ings and remains on the US government’s most wanted list with a reward of $25 mil­lion for his cap­ture.  Al-Liby was with Osama bin Laden in Sudan before the Al Qaeda leader returned to Afgh­anistan in 199632.  Dasquie said:

Bin Laden wanted to settle in Libya in the early 1990s but was hindered by the gov­ern­ment of Muam­mar Gad­dafi.  Enraged by Libya’s refusal, bin Laden organ­ised attacks inside Libya, includ­ing assas­sin­a­tion attempts against Gaddafi.”.

This provides yet more con­vin­cing evid­ence that Tun­worth was involved with Al Qaeda.  At the very least, MI6 and MI5’s under­stand­ing of Al Qaeda was so lim­ited that neither ser­vice real­ised the implic­a­tions of Tunworth’s pro­posed coup in Libya: by assas­sin­at­ing Gad­dafi the West would have lost a valu­able ally in the battle with Al Qaeda and instead would have had to face the threat of an Al Qaeda in con­trol of Libyan oil.

Given the tim­ing of the MI6 pay­ments– along with the close rela­tion­ship between the IFG and bin Laden – it appears that Brit­ish tax­pay­ers’ money was used to fund Al Qaeda attacks in Libya.  Ashur Sha­mis, a Libyan expert on Islamic extrem­ism, also added sup­port to David’s allegation:

There was a rise in the activ­it­ies of the Islamic Fight­ing Group from 1995 [around the time of the first pay­ment],” he said, “but many in Libya would be shocked if MI6 was involved.”.

Issues raised by the MI6/Al Qaeda conspiracy

Nearly all experts who work in counter-terrorism — as opposed to people on the “out­side” — believe that assas­sin­a­tions, par­tic­u­larly in the case of heads of state only serve to destabil­ise a region.  This was a view held by the US National Secur­ity Coun­cil until George W Bush became pres­id­ent.  Although cer­tain Third World lead­ers do not share our stand­ards of demo­cracy, they do provide a cer­tain amount of sta­bil­ity to their coun­try and region.  Remove such a leader from power by assas­sin­a­tion and you will only cre­ate a vacuum, which will lead to unrest and viol­ence as fac­tions com­pete for power. 

Under inter­na­tional law, assas­sin­a­tion oper­a­tions are illegal.  The only moral argu­ment for assas­sin­at­ing any dic­tator or ter­ror­ist is that such action would lead to con­sid­er­ably fewer deaths, than leav­ing him in power to con­tinue to sup­port viol­ence against the West.  By 1996, Gad­dafi had ceased to sup­port the IRA or indeed any ter­ror­ism.  There were, though, a few uncon­firmed reports that he had provided funds to Palestinian res­ist­ance move­ments in the Gaza Strip and the West Bank, ter­rit­or­ies illeg­ally occu­pied by Israel and sub­ject to UN res­ol­u­tions.  In this con­text, Gad­dafi was fund­ing organ­isa­tions fight­ing for their own free­dom, not terrorists.

In addi­tion, MI6 had given its bless­ing to an indi­vidual who was lead­ing a group of Islamic extrem­ists with links to the Al Qaeda net­work.  If Tun­worth, the indi­vidual the Liby­ans caught in the act, had suc­ceeded in assas­sin­at­ing Col­onel Gad­dafi, his sup­port­ers would in all prob­ab­il­ity have set up an Islamic Extrem­ist state in North Africa, fur­ther destabil­ising a region already sub­ject to viol­ence from Islamic fundamentalists. 

Once Al Qaeda had Libya, it would have been all too easy for the group to take con­trol of neigh­bour­ing states like Sudan, Tunisia, Algeria and Egypt, which already have their own internal prob­lems with Al Qaeda.  In con­trol of a state like Libya or a region like North Africa, Al Qaeda would have had:

  • Ready access to Libyan funds, run­ning into £billions. 
  • Con­trol of the Libyan oil industry, destabil­ising world oil prices.
  • The abil­ity to launch many more attacks like Septem­ber 11th, killing and maim­ing thou­sands of UK and US citizens. 
  • A land bor­der with Israel and there­fore a greatly increased capa­city to attack the state of Israel. 
  • The means to destabil­ise world secur­ity on an enorm­ous scale. 

In fact, we only have to look at the cur­rent prob­lems in Iraq to see what could have happened, had the MI6/Al Qaeda con­spir­acy suc­cess­fully led to Gaddafi’s assas­sin­a­tion.  In the absence of West­ern mil­it­ary and secur­ity forces in a post-coup Libya, Al Qaeda would have had an even freer rein than it now has in post-war Iraq.  At the very least, MI6 failed to real­ise the implic­a­tions of Tunworth’s admit­ted asso­ci­ation with Islamic Extrem­ists or his inten­tions, a coup lead­ing to an Al Qaeda state in Libya.  That in itself would be of enorm­ous con­cern, for which MI6 deserves to roundly be cen­sured.  But, the truth is, the agent duped MI6 officers into fund­ing that poten­tial Al Qaeda takeover.  David explains:

This was an act of ter­ror­ism, in which Bri­tain became a state spon­sor of Islamic extrem­ism.  To put this in con­text, the Pro­vi­sional IRA tries to avoid harm­ing civil­ians on the basis that it pro­duces bad pub­li­city (although inev­it­ably civil­ians are maimed and murdered when bombs go off on our streets).  Islamic extrem­ists and Al Qaeda have no such restraint.  MI6 con­sciously sup­por­ted ter­ror­ists who pose a greater threat to the national secur­ity of the UK than the Pro­vi­sional IRA ever did.

Although my boss, Paul Slim did not seem to want to know, I made it clear to him that it was his respons­ib­il­ity to take it up the man­age­ment chain.  This whole oper­a­tion was clearly a viol­a­tion of the rule of law that my recruiter had told me the ser­vices must observe.

I could also clearly see that the rela­tion­ship between Tun­worth and MI6 was flawed.  MI5 had no secur­ity record of Tun­worth and MI6 had only a couple of traces or brief men­tions.  Yet less than six months later, after a hand­ful of meet­ings, MI6 had given him £100,000 of tax­pay­ers’ money to assas­sin­ate a for­eign head of state.  There was no way that MI6 could in that time have estab­lished a close enough rela­tion­ship with him to make any real­istic assess­ment of his char­ac­ter and reli­ab­il­ity – he really could have been anybody.”

If this sort of MI6 activ­ity only went on abroad and did not affect Brit­ish cit­izens, it might be less fright­en­ing for us.  How­ever, MI6 routinely oper­ates in the UK.  In addi­tion to IOPs35, UKG (now PT16B/OPS) ran agents in the UK and UKZ car­ries out surveillance.

If our elec­ted rep­res­ent­at­ives are not allowed to access MI6 doc­u­ments about the con­spir­acy then per­haps they should try using the US Free­dom of Inform­a­tion Act to obtain final con­firm­a­tion of MI6 fund­ing Tun­worth and the IFG and Al Qaeda.

Con­clu­sions

As David went on the record pre­cisely because of the MI6 fund­ing of Al Qaeda, it is worth look­ing at what he would have said in his defence in court, had he been allowed one:

Cover-up: There is over­whelm­ing evid­ence to indic­ate that the then For­eign Sec­ret­ary Robin Cook was ‘eco­nom­ical with the truth’.  His state­ment pro­tec­ted mur­der­ers in the intel­li­gence ser­vices and ensured that David was thrown in prison with a view to extra­di­tion.  The media has been slow to put this to Cook and the head of Britain’s intel­li­gence ser­vices, Prime Min­is­ter Tony Blair.  Once the MI6 doc­u­ment appeared on the Inter­net and the police recovered rel­ev­ant mater­ial, it must have been clear to the Prime Min­is­ter that his For­eign Sec­ret­ary had not told the whole truth to the Brit­ish people.  In that situ­ation, he had a simple choice under the min­is­terial code: either cor­rect the state­ment of his min­is­ter or enter into the.  This is a cover up of monu­mental pro­por­tions.  Its implic­a­tions for our demo­cracy and the rule of law are enormous.

Justice: Although the deaths of a few Liby­ans may not carry as much weight with news­pa­per edit­ors as the deaths of Brit­ish cit­izens, they are still somebody’s sons and daugh­ters.  They are human beings and not ‘col­lat­eral dam­age’ as some com­ment­at­ors have sug­ges­ted.  Brit­ish min­is­ters have a duty to pro­tect life.

Law and order: Any attempt to assas­sin­ate a for­eign head of state is an act of ter­ror­ism, banned by inter­na­tional law under the Pro­tec­tion of Priv­ileged Per­sons Act 1869.  How can we con­demn Libya for bomb­ing flight PA 103 over Lock­er­bie or assas­sin­at­ing WPC Yvonne Fletcher, if we resort to the same ter­rible tactics?

Ter­ror­ism: Remov­ing Col­onel Gad­dafi would have led to a more extreme des­pot tak­ing over in Libya, which would in all prob­ab­il­ity have led to attacks on Brit­ish, US, European and Israeli cit­izens.  Al Qaeda mem­bers, enemies of the West then and now, car­ried out the attemp­ted coup.  By this time, MI6 knew that Al Qaeda was respons­ible for the attack on the World Trade Centre in 1993.  At the same time, MI5 had set up a sec­tion, G9C, in 1995, spe­cific­ally to invest­ig­ate Islamic extrem­ist groups, par­tic­u­larly Al Qaeda.  It was there­fore the height of neg­li­gence (some might say stu­pid­ity) for MI6 to give up to £100,000 of tax­pay­ers’ money to the leader of such a group.

Fail­ure of account­ab­il­ity and over­sight: Under the 1994 Intel­li­gence Ser­vices Act, MI6 could have sub­mit­ted the plot to the For­eign Sec­ret­ary for per­mis­sion.  With that per­mis­sion, they would have been immune from pro­sec­u­tion.  By not sub­mit­ting, MI6 officers were decid­ing Brit­ish for­eign policy towards Libya, not the demo­crat­ic­ally account­able For­eign Sec­ret­ary.  After David’s return to the UK, we approached the police to invest­ig­ate the plot.  They ini­tially refused to take pos­ses­sion of David’s evid­ence, allow­ing those involved in the mean­time to per­haps doc­tor the evidence. 

Lack of trans­par­ency: If we can only main­tain our repu­ta­tion for demo­cracy through lying, cheat­ing and obsess­ive secrecy then I sug­gest we are not really a lib­eral demo­cracy at all.  If you want to live in the sort of coun­try in which the intel­li­gence ser­vices are allowed to work in abso­lute secrecy and lit­er­ally get away with murder, I sug­gest you go and live in Iran. 
Cor­rup­tion: If you want to live in a func­tion­ing demo­cracy, you have a moral and demo­cratic duty to ensure that the laws of the land are upheld and that they apply equally to every cit­izen of that coun­try.  When the Prime Min­is­ter and the For­eign Sec­ret­ary give MI6 officers a de facto immunity by refus­ing to take evid­ence of their con­spir­ing to murder, they send a very clear mes­sage to MI6.  And that mes­sage is: “You are above the law.  You can get away with it now and can get away with it in the future.  In fact, you enjoy the same rights as KGB officers in the former Soviet Union”.

Waste of money: In the attack, MI6 wasted £100,000 of tax­pay­ers’ money.  These funds could have been bet­ter spent on school­books and medicines. 

The Israeli Embassy Two — a gross miscarriage of justice

Samar_Alami Jawad_Botmeh Over the last few years there have been a num­ber of egre­gious cases of police and state cover-ups in the UK around the deaths and wrong­ful pro­sec­u­tions of inno­cent people.

This brings to my mind the appalling mis­car­riage of justice that occurred in the 1990s when two Palestinian stu­dents, a young woman called Samar Alami and a young man called Jawad Bot­meh, were both wrong­fully con­victed of con­spir­acy to bomb the Israeli embassy in Lon­don in July 1994.

In this case a highly soph­ist­ic­ated car bomb as det­on­ated out­side the embassy.  Thank­fully nobody was killed, but a num­ber of people suffered minor injur­ies.   Alami and Bot­meh had con­nec­tions to Palestinian polit­ical sup­port groups based in Lon­don at the time, many of whom were roun­ded up dur­ing the invest­ig­a­tion.  Bot­meh had naively helped out a shad­owy and never-identified fig­ure called Reda Moghr­abi, who asked for assist­ance in buy­ing a second-hand car at auc­tion.  This was the car that was used in the explosion.

Why is this case an example of estab­lish­ment cover-up?  Well,  this was one of the cases that former MI5 officer David Shayler blew the whistle on dur­ing the 1990s.  He revealed the exist­ence of two rel­ev­ant doc­u­ments that should have been dis­closed to the defence but, for some unac­count­able reason, were not.

The first, an agent report from a cred­ible and trus­ted source, poin­ted to a non-Palestinian group plan­ning the attack before it had even occurred.  This report was not acted upon by the MI5 officer respons­ible, who then tried to cover up her mis­take.  She was caught out, and there was a much-discussed internal inquiry into the mat­ter within MI5’s G Branch (inter­na­tional ter­ror­ism) in late 1994.

But there was another doc­u­ment — one writ­ten by G9/1, the senior MI5 officer who over­saw the post-incident invest­ig­a­tion.  His view was that Mossad, the external Israeli intel­li­gence agency, had car­ried out a con­trolled explo­sion out­side its own embassy (the shad­owy and uniden­ti­fied Reda Moghr­abi being the poten­tially cru­cial miss­ing link) in order to acquire the long-demanded addi­tional secur­ity pro­tec­tion around Israeli interests in the UK, and also to shat­ter the Palestinian sup­port net­works in Lon­don — a long-term object­ive of Mossad.

The gov­ern­ment at the time tried to dis­miss these dis­clos­ures.  How­ever, the much-missed Private Eye invest­ig­at­ive   journ­al­ist, Paul Foot, and the indefatig­able law­yer, Gareth Peirce, fol­lowed them up and pur­sued them tire­lessly through the media and the courts.

And guess what?  It turns out that these two key doc­u­ments had indeed not been dis­closed to the legal defence team dur­ing the trial of Alami and Bot­meh — and not just by the hap­less spooks.  It emerged dur­ing the appeal hear­ing that no fewer than seven people from a vari­ety of police and intel­li­gence organ­isa­tions had failed to dis­close the rel­ev­ant doc­u­ment­a­tion to the defence.  This can­not be explained away as an inno­cent over­sight, a cock-up — it bears all the hall­marks of a delib­er­ate, sys­temic estab­lish­ment cover-up.

All this rep­res­en­ted, at the very least, a need for a retrial but also a pos­sible gross mis­car­riage of justice.  And yet, while acknow­ledging that these doc­u­ments did indeed exist dur­ing the appeal hear­ing and bey­ond, the presid­ing m’luds decided to ignore all case law and European law and let those two inno­cents rot in prison.  After all, it would be ter­ribly embar­rass­ing to vin­dic­ate the actions of an intel­li­gence whis­tleblower, wouldn’t it?

As a res­ult, the poor pawns in this sick estab­lish­ment game, Jawad Bot­meh and Samar Alami, ended up serving their full sen­tences, des­pite the over­whelm­ing body of evid­ence prov­ing their inno­cence, and were finally released in 2008 and 2009 respectively.

For any­one inter­ested in the detailed hor­ror story behind this flag­rant mis­car­riage of justice, here is the rel­ev­ant chapter from my long-defunct book: Down­load The_Israeli_Embassy_Case

Operation Shadower — illegal MI5 bugging of left-wing UK journalist

Back­ground

At the same time that MI5 had to deploy valu­able resources to mon­itor Khal­ifa Bazelya, they were also devot­ing con­sid­er­able funds to invest­ig­at­ing Vic­toria Brit­tain, a Guard­ian journ­al­ist. Code­worded Oper­a­tion Shad­ower, MI5 tapped Brittain’s home phone for over a year, begin­ning in early 1995. Although she was sus­pec­ted of money laun­der­ing and fin­an­cing ter­ror­ism, the ser­vice estab­lished that the funds were being used to fin­ance a libel action on the part of Kojo Tsikata, a former offi­cial of Ghana. Not even MI5 would now argue that Brit­tain had ever posed a recog­nis­able threat to national security.

At one point in the invest­ig­a­tion, Dir­ector G, Inter­na­tional Ter­ror­ism Branch, told officers that this was the most import­ant invest­ig­a­tion on the Libyan desk in ten years. David poin­ted out the incon­gru­ity of this state­ment. The bomb­ing of flight PA103 over Lock­er­bie had taken place only six years pre­vi­ously. At the time, an extens­ive police and MI5 oper­a­tion had led to the indict­ment of two Libyan intel­li­gence officers for the attack. How­ever, to a senior man­ager who had cut his teeth invest­ig­at­ing left-wing “sub­vers­ives”, tar­get­ing a Guard­ian journ­al­ist must have felt like a return to the good old days.

Early prob­lems with the investigation

Vic­toria Brit­tain first came to the atten­tion of G9 in late 1994 when the Ser­vice learned that she had received two pay­ments into her bank account from two sep­ar­ate Libyan accounts based in Lon­don. A junior desk officer, Sue Thomas, G9A/15, had car­ried out the ini­tial invest­ig­a­tion. She had little exper­i­ence of intel­li­gence work as she had entered the GD1 as a GI6, after trans­fer­ring from the sec­ret­arial pool. At the time, Jerry Mahoney, G9A/1 and group leader for G9A, was also an inex­per­i­enced officer, who had been in the ser­vice less than two years. When David took the case over in April 1995, Thomas had warned him that she had tried to raise her reser­va­tions about the invest­ig­a­tion with G9 man­age­ment but had been ignored. I men­tion this because it demon­strates how man­age­ment could push around junior desk officers, par­tic­u­larly if they had not been recruited as part of the ‘officer class’.

In this case, Home Sec­ret­ary Michael Howard had already gran­ted the Home Office War­rant (HOW), which gov­erns tele­phone inter­cept or tap­ping, before David took the case over. I men­tion this as off-the-record brief­ings have claimed that David began the invest­ig­a­tion. It then became his respons­ib­il­ity to renew the HOW every six months2. Again, renewal requires rig­or­ous jus­ti­fic­a­tion in strictly defined circumstances.

When David came to exam­ine the war­rant, he found it was inac­cur­ate. Some of the trans­fers of funds had gone through sev­eral of Brittain’s accounts, although the ori­ginal flow dia­gram did not reflect this. David explains:

As a res­ult, some move­ments of the funds had been coun­ted twice or even three times as fur­ther pay­ments into her account when in fact, they were the same funds mov­ing between Brittain’s dif­fer­ent accounts. One of the first tasks I per­formed was to trace and cla­rify the move­ment of funds through all her accounts. This estab­lished that the amount in ques­tion was rather nearer £200,000 than the fig­ure used to jus­tify the war­rant, around £500,000.”

Reas­ons for invest­ig­at­ing Vic­toria Brittain

MI5 uses ‘record­ing cat­egor­ies’ or defin­i­tions that a tar­get must fall within before MI5 can act­ively invest­ig­ate them. Brit­tain already had a PF or per­sonal file because she had pre­vi­ously come to the atten­tion of the Ser­vice as a ‘con­tact of a hos­tile intel­li­gence agency’ in 1991 after she met a Cuban at an Embassy func­tion as part of her work on the for­eign news sec­tion of The Guard­ian. Although the Cuban was an intel­li­gence officer work­ing under dip­lo­matic cover, there was cer­tainly no indic­a­tion that she knew of the Cuban associate’s intel­li­gence role.

For the pur­poses of the Shad­ower invest­ig­a­tion, Brit­tain was recor­ded as ‘the sus­pec­ted con­tact of a sus­pec­ted con­tact of the Libyan intel­li­gence ser­vice’, although there was no intel­li­gence on her file to indic­ate that she had any con­nec­tions with Libya at all – other than the pay­ments to her bank accounts. Although Tsikata was also recor­ded as a sus­pec­ted con­tact of the Libyan intel­li­gence ser­vices, there was little or no hard intel­li­gence to indic­ate that he was actu­ally work­ing for the Liby­ans. MI5 cer­tainly had no record of him being involved in hos­tile intel­li­gence or ter­ror­ism against UK interests.

In fact, when Kojo Tsikata had stayed in Lon­don in sum­mer 1994, itemised billing inform­a­tion on the tele­phone in his hotel room estab­lished that it had been used to con­tact Brittain’s home phone. Although her sub­scriber details — V Brit­tain, 57 Gib­son Square, Lon­don NW3 — had been checked against ser­vice records, Sue Thomas had failed to match them with Vic­toria Brit­tain, 57 Gib­son Square, Lon­don, NW3, the sub­ject of an MI5 file. It was only when MI5 act­ively began to invest­ig­ate Brit­tain and Tsikata some six months later that this missed con­tact was found on his file. David comments:

When officers came to apply for the Home Office War­rant in late 1994, they jus­ti­fied the invest­ig­a­tion on the grounds that Brit­tain was either:

  • Laun­der­ing money on behalf of the Libyans.

  • Help­ing the fund­ing of ter­ror­ism in the UK.

How­ever, I stress there was no spe­cific intel­li­gence to sup­port either proposition.

Defects in the case and delays in tak­ing action

Some will think that pay­ments from Libyan accounts to Brit­tain would be enough to jus­tify at least begin­ning an invest­ig­a­tion into Brit­tain, even in the absence of spe­cific intel­li­gence stat­ing that she was money laun­der­ing. How­ever, there were a num­ber of fun­da­mental defects in the case, which were not addressed in the War­rant and there­fore not com­mu­nic­ated to the Home Sec­ret­ary who author­ises the tap. The pay­ments into her account clearly came from two offi­cial Libyan accounts, one in the name of Khal­ifa Bazelya, the chargé d’affaires at the Libyan Interests Sec­tion, and the other in the name of the Libyan Interests Sec­tion in Lon­don. Given that the Liby­ans believe that the Brit­ish intel­li­gence ser­vices are as per­vas­ive in Bri­tain as the Libyan intel­li­gence ser­vices are in Libya, it was ris­ible to sug­gest that the overt pas­sage of money from offi­cial accounts was suf­fi­cient reason to sus­pect money laun­der­ing or ter­ror­ist funding.

If I had been the case officer when MPSB had provided the ori­ginal intel­li­gence about the move­ment of funds in sum­mer 1994” David explains, “I would have recom­men­ded that they inter­viewed her. There would have been noth­ing unusual about this.”

Brit­tain had first come to the atten­tion of MPSB after it had received a routine fin­an­cial noti­fic­a­tion under the Pre­ven­tion of Ter­ror­ism Act. This legis­la­tion requires banks to notify the police of any deposit of more than £10,000. Under the PTA, Spe­cial Branch officers could have asked Brit­tain dir­ectly or served her with an Explan­a­tion Order requir­ing her to jus­tify the funds. This overt method of enquiry was never under­taken although senior MI5 officers did con­tem­plate it some months into the invest­ig­a­tion but dis­missed it. It would have saved a lengthy invest­ig­a­tion and unne­ces­sary, expens­ive tele­phone tap­ping and mobile sur­veil­lance on the part of MI5, which drained the service’s resources to the tune of around £750,000.

Where laundered money has to be moved through accounts, at least some of it moves on quickly so that it can get to its des­tin­a­tion before being inter­cep­ted by the law enforce­ment agen­cies. G9A first reacted to the exist­ence of the funds only towards the end of 1994, well over a year after the first pay­ment from Bazelya’s account in Septem­ber 1993 and around five months after the second pay­ment in July 1994. Iron­ic­ally, if the money had been inten­ded for the fund­ing of ter­ror­ism, it would have been long gone before MI5 had even star­ted to invest­ig­ate the matter.

Some will argue that I am bene­fit­ing from hind­sight. I dis­pute this. When David took over the invest­ig­a­tion, he tried to per­suade those involved, includ­ing the City of Lon­don Spe­cial Branch, that the pay­ments were inno­cent. By this time, the tele­phone tap on Brittain’s phone had repor­ted that she was dis­cuss­ing ‘the case’ and ‘the money’ with Kojo Tsikata and the law­yer Geof­frey Bind­man. It was there­fore very clear from very early on that the money in ques­tion was being used to fund a legal action. Although MI5 should never have begun to tap her phone, it was even more inex­cus­able that it con­tin­ued the oper­a­tion, even when all the intel­li­gence indic­ated that the funds in ques­tion were pay­ment for some kind of legal action on Tsikata’s part. It wasn’t as if Brit­tain and Tsikata didn’t have good enough reas­ons for their rela­tion­ship. As she was the deputy for­eign editor of The Guard­ian with a his­tory of writ­ing on Africa, and Tsikata’s nat­ive Ghana in par­tic­u­lar, and he was a former offi­cial of the state, the two had obvi­ous legit­im­ate reas­ons to know each other.

The fail­ure to fol­low procedure

In this case there can be no dis­pute about MI5’s fail­ure to fol­low leg­ally enshrined pro­ced­ure designed to ensure that the ser­vices do not abuse human rights. Intel­li­gence organ­isa­tions must use overt, non-intrusive meth­ods to resolve an enquiry before invad­ing anyone’s pri­vacy as a last resort. It can­not be ‘neces­sary in a demo­cratic soci­ety’3. to invade an individual’s pri­vacy to obtain inform­a­tion that could be obtained openly. The fail­ure on the part of the ser­vices to first check open sources led dir­ectly to a human rights abuse, unne­ces­sary inva­sion of pri­vacy, and an unlaw­ful operation.

In order to main­tain the leg­al­ity of its war­rants, MI5 officers use a ‘tick box’ pro forma to ensure they have com­plied with all pro­ced­ure. One box reminds officers to insert a line to the effect that they have exhausted overt meth­ods of enquiry before apply­ing for a war­rant. There is though no box to tick off the actual enquir­ies car­ried out. In effect, the officer ticks the check­list to indic­ate that he has included in any war­rant the line regard­ing the exhaus­tion of overt enquir­ies – without actu­ally doing any enquir­ies. Although MI5 man­age­ment assert that they play a valid role in the pro­cessing of war­rants, they never ask whether — or which — enquir­ies have been car­ried out to make the war­rants legal.

Fail­ure to access pub­lic databases

Given that Brit­tain was a Guard­ian journ­al­ist, MI5 could have checked pub­lic records such as news­pa­per archives, now held on the Lexis-Nexis data­base, or in the com­pu­ter­ised archives at the Brit­ish museum. This would have shown Brittain’s and Tsikata’s activ­it­ies and interests. David takes up the story:

When I took over the case around Spring 1995, I remarked to my bosses that I was sur­prised that no overt enquiry had taken place, par­tic­u­larly in this sens­it­ive oper­a­tion. I even sug­ges­ted inter­rog­at­ing a news­pa­per data­base to Jerry Mahoney4 and to Peter Mitchell5.

I had also men­tioned this very early on to Sue Thomas, who was respons­ible for the invest­ig­a­tion before I took it over. Given that Ms Brit­tain was a journ­al­ist, any inter­rog­a­tion of a com­mer­cially avail­able news­pa­per data­base might shed light on her actions. I stress, up to this point, the only intel­li­gence against Brit­tain was that she had received money from the Libyan régime through trace­able and routine trans­fer between bank accounts, hardly a secure method of laun­der­ing money.

As the Ser­vice had no access in-house to com­mer­cial data­bases, I spe­cific­ally offered to go to a lib­rary to ‘bot­tom’ – or resolve – the case. Remem­ber at this time, G9 was devot­ing con­sid­er­able resources to fol­low­ing Khal­ifa Bazelya, the Libyan charge. As MI5 only has finite resources, it was clear even at the time that the Shad­ower invest­ig­a­tion was detract­ing from the proper invest­ig­a­tion of an indi­vidual with an estab­lished his­tory of aid­ing terrorism.

But Jerry Mahoney refused to author­ise this. David did think about car­ry­ing out the pub­lic enquir­ies in his own time but he knew that any ini­ti­at­ive would count against him with MI5 bosses, even if he were proved right.

In fact, the ser­vice did even­tu­ally research pub­licly avail­able mater­ial. Jonathan Beaver, a cler­ical officer, spent many days in the MI5 lib­rary look­ing through cop­ies of The Guard­ian to try to find art­icles by Vic­toria Brit­tain. But by this point, the Home Sec­ret­ary had already signed the war­rant, believ­ing that overt enquir­ies had already been exhausted. Details of the true pur­pose of the funds were more likely to have emerged from cov­er­age in The Inde­pend­ent news­pa­per, which was the tar­get of the libel action for which Ms Brit­tain was receiv­ing funds. Either way, por­ing over page after page of The Guard­ian hardly con­sti­tuted an effi­cient use of a cler­ical officer’s time, when Brittain’s name could be checked in seconds using a news­pa­per database.

As a res­ult, David was also pre­ven­ted from using a com­mer­cial data­base to check the names of journ­al­ists which came up once the tele­phone was tapped. David explains:

I can clearly recall that dur­ing one inter­cep­ted con­ver­sa­tion, the name of Richard Dowden was men­tioned. He was no trace in the service’s records but we have since learnt that he worked for The Inde­pend­ent news­pa­per and was involved in oppos­ing Tsikata’s libel action. It is also a prin­ciple of phone tap­ping that it should con­tinue no longer than is neces­sary6. Again, I main­tain that if I had been allowed to research openly avail­able mater­ial, we would have more quickly estab­lished that the money was of no con­cern to MI5. G9 would have there­fore have been obliged to can­cel the war­rant sooner, restor­ing Brittain’s right to privacy.”

Illeg­al­ity upon illegality

How­ever, instead of can­cel­ling the already illegal tele­phone inter­cept, MI5’s internal appet­ite grew. It obtained a Prop­erty War­rant from the Home Sec­ret­ary to leg­ally ‘effect a cov­ert entry’ into Brittain’s home to search and copy her papers or to install an eaves­drop­ping device – or bug. As cov­ert entry is oth­er­wise known as break­ing and enter­ing or burg­lary, it rep­res­en­ted an even greater inva­sion of Brittain’s pri­vacy than tap­ping her phone.

But the Prop­erty War­rant was based on the same flawed case as the Home Office War­rant, so it rep­res­en­ted illeg­al­ity moun­ted on illeg­al­ity7. Under the 1989 Secur­ity Ser­vice Act, MI5 is only sup­posed to break into private homes to pro­tect national secur­ity or pre­vent ser­i­ous crime and then only where there is a strong intel­li­gence case. Secret searches of an individual’s home – ‘sneak and peak’, as it is known in the US legis­la­tion pro­pos­ing this kind of inva­sion of pri­vacy — are banned in the vast major­ity of democracies.

At one point in a formal dis­cus­sion with the Assist­ant Dir­ector, Peter Mitchell, the pos­sib­il­ity of tap­ping the law­yer Geof­frey Bindman’s home phone was raised. The senior MI5 legal adviser, Richard Woods8, rejec­ted the idea on the grounds that there had to be ‘a more dir­ect threat to national secur­ity’ before the phone of a law­yer could be tapped. This was of course a tacit admis­sion from a legal expert that the case against Brit­tain was ill-founded. In a later dis­cus­sion when the Shad­ower invest­ig­a­tion was over, the legal adviser denied that he had made any such claim, even though it had been included in the minutes of the meet­ing and he had not com­plained when he had received a copy of the minutes. Instead, he claimed that he had given advice as to the undesirab­il­ity of tap­ping the phone of a law­yer, given that con­ver­sa­tions between law­yers and cli­ents are privileged.

Yet MI5 showed no eth­ical con­cerns when it recor­ded and tran­scribed con­ver­sa­tions between Bind­man and Brit­tain, even where they spe­cific­ally men­tioned ‘the case’ and might have covered priv­ileged client-counsel dis­cus­sions9. And, if MI5 really believed that the money was destined for ter­ror­ists, why should Bind­man be given some sort of immunity just because he was a law­yer? The legal advisor’s pos­i­tion was illo­gical. But it went from bad to worse.

The unlaw­ful plan to arrest Brit­tains daugh­ter

Once a prop­erty war­rant has been signed, the case officer sends his require­ments to MI5’s A1 sec­tion, which then ‘recces’10 the tar­get address and comes up with an oper­a­tional plan to plant the bug and carry out the search. 11. In this case, A1 hatched a plot to have Thea Shar­rock — Brittain’s daugh­ter and a key holder of the Gib­son Square flat — arres­ted on trumped-up charges, while she was hol­i­day­ing in the US. The fact she was in the US should have coun­ted as secur­ity enough. Even if she had sud­denly decided to return home, her flight would have taken at the very least seven hours, more than enough time for A1 oper­at­ives to with­draw from the tar­get premises.12

David takes up the story:

I com­plained in the most voci­fer­ous terms pos­sible but Jerry asked me to cre­ate a file on Brittain’s daugh­ter. In the file, I recor­ded that I was doing it effect­ively under duress and that the file should be ‘des­troyed’ — removed from the MI5 indices rather than actu­ally phys­ic­ally burnt — as soon as the rel­ev­ant action had been taken to stop the col­lec­tion of even more intrus­ive per­sonal mater­ial in the MI5 archives.”

Evid­ence of the true pur­pose of the money

By spring 1995, MI5 had estab­lished that Brit­tain had received three fur­ther pay­ments made in Decem­ber 1994, Janu­ary 1995 and Feb­ru­ary 1995 of around £35,000 each. As Brit­tain, Bind­man and Tsikata dis­cussed the mat­ter quite openly on her home tele­phone, it became even more ris­ible to sug­gest that the funds were destined for the sup­port of ter­ror­ism. No trained ter­ror­ist in this day and age uses the phone, par­tic­u­larly not their own, to dis­cuss any crim­inal activ­ity. When David took over the invest­ig­a­tion shortly after, he found no ref­er­ences that could in any way be con­strued as relat­ing to money laun­der­ing or sup­port for ter­ror­ism. The tran­scribers of the tap had not noted, for example, that any of the con­ver­sa­tions were guarded or sus­pi­cious or that word ‘case’ could be code for more under­hand activity.

Before David had even taken over Oper­a­tion Shad­ower, fin­an­cial enquir­ies had estab­lished that the funds were being placed in a cli­ent account at the law firm of Bind­man and Part­ners. This appeared to be con­clus­ive proof – if any were still needed — that the funds in ques­tion were being passed through Brittain’s accounts to Geof­frey Bind­man, the senior part­ner of the firm, to pay him for the uniden­ti­fied legal ‘case’ in which he rep­res­en­ted Tsikata. Yet, the invest­ig­a­tion went on for nearly a year more.

It also seemed to be lost on MI5 man­age­ment that no soli­citor with the pro­file and repu­ta­tion of Geof­frey Bind­man would will­ingly allow laundered or ter­ror­ist funds to pass through his cli­ent accounts. Although Bind­man had a per­sonal file, he was recor­ded as a ‘?com­mun­ist sym­path­iser’ – a cat­egory given to almost any­one who had com­mun­ist friends, cli­ents or col­leagues — in the 1960s and had not come to atten­tion in a secur­ity con­text since then. There was cer­tainly no indic­a­tion on his file that he had any dir­ect con­nec­tion with ter­ror­ism, money laun­der­ing or Libya.

The fail­ure of the Commissioner

When one of the Com­mis­sion­ers13 came to the ser­vice in late 1995 or early 1996 to dis­cuss the War­rant against Brit­tain, G9/0 Mitchell refused to allow David to attend the meet­ing. Instead, David had to provide an ano­dyne brief on the invest­ig­a­tion for Mitchell’s meet­ing with the Com­mis­sioner. David was for­bid­den from telling the Com­mis­sioner that:

  • Con­trary to inform­a­tion Mitchell included in the war­rant, MI5 had not researched pub­licly avail­able mater­ial on Brit­tain before tap­ping her phone.

  • Even after David had raised the above with Mitchell, G9/0 still included the line about overt enquir­ies in the six monthly applic­a­tions to renew the war­rant, know­ing them to be untrue.

  • The intel­li­gence was based on inac­cur­ate and illeg­ally obtained fin­an­cial information.

As Mitchell had signed off the war­rant applic­a­tion14, he was hardly likely to raise issues, which might land him in trouble.

David couldn’t leg­ally take his con­cerns dir­ectly to min­is­ters or the Com­mis­sioner about the Brit­tain war­rants15. Even if he had been able to go to min­is­ters, it is highly likely they would have con­sul­ted the Com­mis­sioner who would have told the Home Sec­ret­ary that he had been to MI5 to dis­cuss the war­rant and had been assured that it was legal. Neither the Com­mis­sioner nor the Home Sec­ret­ary could have known that Mitchell’s claims in the war­rant that pro­ced­ures had been fol­lowed were not just false but were made by Mitchell in the full know­ledge they were false.

Unlaw­ful fin­an­cial enquiries

Another mat­ter also troubled David. The police and MI5’s H1 sec­tion, which deals with external liais­ons and “del­ic­ate” enquir­ies, had acquired detailed fin­an­cial inform­a­tion from Brittain’s bank account without a court order16. David takes up the story:

Although I raised the unlaw­ful col­lec­tion of fin­an­cial mater­ial when I took over the case, MI5 did not make an applic­a­tion to a judge to invade Brittain’s pri­vacy in this regard, although a few of the police enquir­ies – car­ried out by City of Lon­don Spe­cial Branch — may have been covered in this way. In fact, the con­duct of the invest­ig­a­tion was hindered because H1 and the police had dif­fi­culties obtain­ing the inform­a­tion from the banks con­cerned without the proper paperwork.

H1 was well aware that his actions were unlaw­ful. He insisted that Brittain’s fin­an­cial details were kept hid­den on a sep­ar­ate file from Brittain’s main PF. Iron­ic­ally, if the money had been destined for the sup­port of ter­ror­ism, illegal and slow pro­ced­ures could have pre­ven­ted us from either inter­cept­ing the money before it got to its inten­ded tar­gets or from bring­ing the cul­prits to justice, as the inform­a­tion was not obtained under evid­en­tial pro­ced­ures17. This is fur­ther proof that the ser­vice itself did not really believe the cent­ral claim of the War­rant; that the funds were destined for the sup­port of terrorism

As far as I am aware, neither the IOCA Com­mis­sioner, who notion­ally over­saw the tele­phone inter­cept and spe­cific­ally came to the ser­vice to dis­cuss the case, nor the Home Sec­ret­ary, ever asked whether the fin­an­cial inform­a­tion was leg­ally col­lec­ted, even though they knew private fin­an­cial inform­a­tion had been gathered to sup­port the warrants.

The indi­vidual in the bank who gave out Brittain’s private fin­an­cial inform­a­tion should be invest­ig­ated by the police for viol­at­ing bank­ing law. Their name will be on one of H1’s files with evid­ence of the inform­a­tion passed.”

The rest of the operation

Hav­ing made his protest where and when he could, like any other MI5 officer, David had to then ‘fol­low orders’ or resign. Although he per­son­ally dis­agreed with the situ­ation, pro­fes­sion­al­ism dic­tated — for the time being at least — that he did the job to the best of his abil­ity by reval­id­at­ing the war­rant and con­tinu­ing to co-ordinate the invest­ig­a­tion. I shud­der to ima­gine what would have happened to him, had he told his bosses that he was refus­ing on eth­ical grounds. At this point — autumn 1995 — des­pite many reser­va­tions, David still saw him­self pur­su­ing a career in MI5. David explains:

If I wanted to con­tinue work­ing in MI5 and effect change from within, I was not able to ques­tion the judg­ment of my bosses without being labelled as someone who ‘rocked the boat’. Yet I des­per­ately wanted to change MI5 so that it per­formed a use­ful job well and law­fully, but I did not then feel that I would have been able to do that either from out­side the organ­isa­tion or from a lower level job. In every poten­tial situ­ation, I there­fore came up against a dead end. To com­plain would mark you out as a trouble­maker18. To leave took you out­side any poten­tial abil­ity to alter things.”

The former DG, Stella Rim­ing­ton, has con­firmed just how little room was given to protest within the ser­vice: “But I soon real­ised that people regarded you with sus­pi­cion if you asked too many ques­tions, so I learned to keep quiet […]”I knew that open protest was not likely to be suc­cess­ful. If one got a repu­ta­tion as a revolu­tion­ary, one would be regarded as sus­pect and writ­ten off.”19 How­ever, unlike Stella Rim­ing­ton, who ‘whiled away the time read­ing Dorn­ford Yates nov­els under the desk’, David did not let ser­i­ous illeg­al­ity on the part of the ser­vice pass unchal­lenged. He did what he could while still in the service.

When it became clear by the end of that year that no one in MI5 man­age­ment was pre­pared to end an invest­ig­a­tion based on flouted pro­ced­ures and inac­cur­ate inform­a­tion, he began to think that he had no option but to resign. As we left Thames House to begin Christ­mas leave, David con­fided to me that he had had enough, not only because of the Brit­tain invest­ig­a­tion but also because, shock­ingly, he had just learnt that MI6 had paid money to Al Qaeda asso­ci­ates to assas­sin­ate Col­onel Gad­dafi of Libya.

MI5 did not remove the tap on Brittain’s home phone until early 1996 when it repor­ted her and Bind­man dis­cuss­ing ‘the money [for the] legal case’.

Con­clu­sions

Given that David’s dis­clos­ure of the Brit­tain case was used to pro­sec­ute him under the Offi­cial Secrets Act, the fol­low­ing are the argu­ments – based on the above evid­ence — he would have put before the jury had he been allowed to argue in his defence that his dis­clos­ures were in the pub­lic interest. Given the strength of the argu­ments, it is hard to see how a jury would have been able to con­vict him, had he been allowed a defence:

  • The tele­phone tap and the fin­an­cial invest­ig­a­tion were illegal: the War­rant was illegal because pro­ced­ure designed to pre­vent illegal or crim­inal inva­sion of pri­vacy had not been fol­lowed. The fin­an­cial invest­ig­a­tion was illegal because MI5 did not obtain a court order under the PTA.

  • Delib­er­ate flout­ing of the law: in the Brit­tain oper­a­tion MI5 man­age­ment know­ingly con­tin­ued to viol­ate the law, even when officers brought this to their attention.

  • Polit­ical expedi­ency over leg­al­ity: the ser­vice simply did not dare inform the Home Sec­ret­ary that it had obtained a War­rant and star­ted an intrus­ive invest­ig­a­tion on the back of a war­rant applic­a­tion based on untruths.

  • MI5 para­noia: senior MI5 officers who had cut their intel­li­gence teeth in an era obsessed with ‘reds under the bed’, were still pre-occupied with Guard­ian journ­al­ists and liber­tarian law­yers. If Vic­toria Brit­tain had been a house­wife liv­ing in East Cheam, I do not believe MI5 would have launched such an extens­ive and intrus­ive invest­ig­a­tion into her and her fam­ily. Her real crime was to be a Guard­ian journ­al­ist with unusual friends.

  • Sexed up and flawed intel­li­gence case: Even if pro­ced­ure had been fol­lowed, there was still no real basis for invest­ig­at­ing Brit­tain. She and the Libyan intel­li­gence ser­vices would hardly have been likely to use offi­cial Libyan accounts in Lon­don to laun­der or move money to fund ter­ror­ist activ­ity in the UK. Even then MI5 got its sums wrong.

  • Oper­a­tional inef­fect­ive­ness: Iron­ic­ally, MI5 was so slow to start the invest­ig­a­tion that, if the funds had been destined for ter­ror­ists, they would have been long gone before the ser­vice began its investigation.

  • Bad judge­ment: Oper­a­tion Shad­ower was a waste of MI5’s time and effort, as resources needed to pre­vent actual ter­ror­ist plan­ning and attacks were taken away from those areas, put­ting the pub­lic at greater but unne­ces­sary risk. MI5’s budget would have been bet­ter spent on other tar­gets which posed a clearer and more dir­ect threat to national security.

  • Lack of on-going jus­ti­fic­a­tion: noth­ing emerged from the year-long tele­phone tap to show that Vic­toria Brit­tain was involved in money laun­der­ing or any other illegal activ­ity. In fact, Brit­tain was exon­er­ated by the tele­phone inter­cept very early in the invest­ig­a­tion when it provided intel­li­gence about ‘the case’ and ‘the money’.

  • Jus­ti­fic­a­tion for whis­tleblow­ing: even MI5 now accepts that her actions were entirely legit­im­ate. If David had not gone on the record, she would never have known that her pri­vacy had been unlaw­fully invaded and her daugh­ter nearly been arres­ted on trumped-up charges so that MI5 could plant a bug in her house.

  • Delib­er­ate mis­rep­res­ent­a­tion of the truth: the invest­ig­a­tion clearly demon­strates that MI5 man­age­ment can quite eas­ily mis­lead min­is­ters and Com­mis­sion­ers. As there is no need for MI5 to swear its case to the Home Sec­ret­ary under oath, it can mis­rep­res­ent or use facts select­ively or simply lie to gov­ern­ment, without sanction.

1 Gen­eral Duties group. The Gen­eral Intel­li­gence Duties group, or the officer class”, and the admin group were merged at around this time. Grade GI6 became GD6 etc

2 In accord­ance with the 1985 Inter­cep­tion of Com­mu­nic­a­tions Act

3 Art­icle 8(2) of the European Con­ven­tion states There shall be no inter­fer­ence by a pub­lic author­ity with the exer­cise of this right except such as in accord­ance with the law and is neces­sary in a demo­cratic soci­ety.

4 G9A/1, his group leader and dir­ect boss

5 G9/0, the head of G9, Counter-Middle East­ern Ter­ror­ism. He also took the stand as wit­ness C in Davids court case but Judge Moses refused to let David cross-examine Mitchell about the leg­al­ity of the intercept.

6 The neces­sary in a demo­cracy test under HRA, Art­icle 8, ECHR

7 The 1989 Secur­ity Ser­vice Act con­tains the same caveat as the 1985 Inter­cep­tion of Com­mu­nic­a­tions Act. Other meth­ods of enquiry must be exhausted before the Ser­vice inter­feres with a tar­gets prop­erty.

8 Name changed on orders of MI5

9 Now pro­tec­ted by the HRA, Art­icle 6, ECtHR, the right to a fair trial

10 Reconnaissance.

11 Inform­a­tion removed on the orders of MI5, although it con­cerns offi­cial policy which hampers the oper­a­tional effect­ive­ness of MI5, not secret intelligence

12 If MI5 had gone ahead with the plan, Ms Shar­rock would have had excel­lent grounds for rem­edy under the HRA, Art­icle 5, the right to liberty and secur­ity: Every­one has the right to liberty and secur­ity of per­son. No one shall be deprived of his liberty save in the fol­low­ing cases and in accord­ance with a pro­ced­ure pre­scribed by law. None of the exhaust­ive list of excep­tions from Art­icle 5(1)(a) to (f) apply in this case

13 Under the Inter­cep­tions of Com­mu­nic­a­tions Act and the Secur­ity Ser­vice Act, Com­mis­sion­ers have a respons­ib­il­ity for ensur­ing that War­rants are leg­ally obtained

14 As War­rant applic­a­tions are not sworn under oath, MI5 officers like Mitchell can lie or mis­rep­res­ent the truth in them without fear of per­jur­ing themselves.

15 A crim­inal offence under sec­tion 1 (and sec­tion 7(1)) of the 1989 Offi­cial Secrets Act (OSA) -

16 The Pre­ven­tion of Ter­ror­ism Act (PTA) allows invest­ig­at­ors to gather private fin­an­cial inform­a­tion to pre­vent ter­ror­ism but a judge must grant a formal court order for the author­it­ies to gather this mater­ial under the Act. Again, this pro­ced­ure is designed to pro­tect the right to a private life, in this case, with regard to the pri­vacy of an hon­est indi­viduals fin­an­cial affairs.

17 In this day and age, MI5 does use evid­en­tial pro­ced­ures in its invest­ig­a­tions into genu­ine terrorism

18 True to form, MI5 did brief against David say­ing just that

19 Open Secret, pp 98 and 121

GMC Determinations about the Steven Lomax case

Here are the three formal rul­ings recently made by the Brit­ish Gen­eral Med­ical Coun­cil about the Steven Lomax, a Brit­ish psy­chi­at­rist recently struck off the register of doc­tors for:

  • con­duct­ing an inap­pro­pri­ate emo­tional and sexual rela­tion­ship with a patient;
  • appar­ently des­troy­ing her med­ical records;
  • bring­ing the med­ical pro­fes­sion into disprepute.

GMC Determ­in­a­tion of Facts: Down­load GMC_Determination_on_facts

GMC Determnin­a­tion of Impair­ment: Down­load Determination_on_impairment

GMC Determ­in­a­tion of Sanc­tion: Down­load Lomax_GMC_sanction

Freedom of Expression in the UK — Article 19 and Liberty

SECRETS, SPIES AND WHISTLEBLOWERS
Free­dom of Expres­sion and National Secur­ity in the United King­dom
by ARTICLE 19 and Liberty
Novem­ber 2000
Prin­ted by The Guard­ian
ACKNOWLEDGEMENTS
This report was researched by Steven Warner, with assist­ance from John Wadham,
Dir­ector of Liberty and Selina Chen, ARTICLE 19 Policy Researcher. It was edited
by Toby Mendel, Head of ARTICLE 19 Law Pro­gramme and Ilana Crav­itz, Head of
Com­mu­nic­a­tions at ARTICLE 19. It was copy­ed­ited by Kath­er­ine Huxtable,
ARTICLE 19 Press Officer and designed by Mark Jordan of The Guard­ian.
Liberty and ARTICLE 19 grate­fully acknow­ledge the gen­er­ous sup­port received from
the Scott Trust and the Joseph Rown­tree Char­it­able Trust for the research, edit­ing and
pub­lic­a­tion of this report. Many thanks also to The Guard­ian pro­duc­tion team.
CONTENTS
Exec­ut­ive Sum­mary
Sum­mary of recom­mend­a­tions
Gloss­ary of abbre­vi­ations
Pre­face
CHAPTER 1 Inter­na­tional law and prin­ciples on free expres­sion
1.1 Strik­ing the bal­ance: the three part test
1.2 The Johan­nes­burg Prin­ciples
1.3 Con­clu­sion
CHAPTER 2 “National secur­ity”: who decides? The lack of effect­ive judi­cial scru­tiny
2.1 National secur­ity exemp­tions
2.2 Encour­aging changes: the Spe­cial Immig­ra­tion Appeals Com­mis­sion
2.3 Con­clu­sion
CHAPTER 3 Legal restric­tions on pub­lic employ­ees’ free­dom of expres­sion:
restrict­ing Primary Dis­clos­ure
3.1 The Offi­cial Secrets Act
3.1.1 Dis­clos­ures by mem­bers of the Secur­ity and Intel­li­gence Ser­vices (SIS)
3.1.2 Dis­clos­ures by other civil ser­vants
3.1.3 Com­ments and con­clu­sions
3.2 Civil rem­ed­ies backed by crim­inal pen­al­ties
3.2.1 Injunc­tions
3.2.2 The law of con­fid­ence
3.3 Recent pro­sec­u­tions of former Secur­ity and Intel­li­gence officers
David Shayler; Richard Tom­lin­son; Nigel Wylde; “Mar­tin Ingrams”
3.4 Con­clud­ing obser­va­tions
CHAPTER 4 Restrict­ing Sec­ond­ary Dis­clos­ure: Gag­ging the media and oth­ers
4.1 Sec­ond­ary dis­clos­ure under s. 5 OSA
4.2 The Defence Advis­ory notice sys­tem (DA-Notice sys­tem)
4.3 Recent pro­sec­u­tions brought under s. 5 OSA
Tony Ger­aghty; Liam Clarke; Julie-Ann Dav­ies
4.4 Use of injunc­tions to pre­vent pub­lic­a­tion
4.5 Con­clu­sion
CHAPTER 5 Pro­tec­tion of sources
5.1 Inter­na­tional stand­ards on pro­tec­tion of journ­al­ists’ sources
5.2 Legal mech­an­isms for com­pel­ling source dis­clos­ure in the UK
5.2.1 Crim­inal pro­ced­ures (PACE, PTA, OSA, RIP)
5.2.2 Civil orders
5.3 Recent his­tory of pro­duc­tion orders
5.3.1 Ex-parte Bright — the use of PACE
5.3.2 Ex-parte Molo­ney — use of the PTA
5.4 Con­clu­sion
CHAPTER 6 Chilling the watch­dogs and silen­cing the whis­tleblowers
6.1 Whis­tleblowers deterred
6.2 Press self-censorship
6.2.1 Slate — a case of Inter­net self-censorship
6.3 Con­clu­sion
CHAPTER 7 A cul­ture of greater open­ness?
7.1 Pub­lic Interest Dis­clos­ure Act 1998
7.2 The Free­dom of Inform­a­tion Bill
7.3 Lack of demo­cratic account­ab­il­ity of the Secur­ity and Intel­li­gence Ser­vices
7.4 Con­clu­sion
CHAPTER 8 The Future of Secrecy under the Human Rights Act 1998
8.1 Free­dom bred in the bone of com­mon law?
8.2 An end to judi­cial defer­ence
8.3 The HRA and injunc­tions
8.4 An ECHR-compliant OSA
8.5 The HRA and civil claims
8.6 Con­clu­sion
CHAPTER 9 Recom­mend­a­tions
Appendix 1 The Johan­nes­burg Prin­ciples: National Secur­ity, Free­dom of Expres­sion
and Access to Inform­a­tion
Appendix 2 Sum­mary of The Public’s Right to Know: Prin­ciples on Free­dom of
Inform­a­tion Legis­la­tion
ENDNOTES
EXECUTIVE SUMMARY
This joint pub­lic­a­tion by ARTICLE 19, the Global Cam­paign for Free Expres­sion and
Liberty is a crit­ical ana­lysis of UK laws and mech­an­isms which ostens­ibly safe­guard
national secur­ity but which have, in prac­tice, been used by suc­cess­ive gov­ern­ments to
sup­press embar­rass­ing or con­tro­ver­sial rev­el­a­tions and to under­mine the public’s right
to know.
Free­dom of expres­sion in the UK has been described by some as “bred in the bone of
com­mon law” and the UK media are said to enjoy envi­able free­dom in most mat­ters.
Yet, at the same time, UK gov­ern­ments have a record on secrecy which few other
west­ern demo­cra­cies can match. Con­sequently the Brit­ish media’s abil­ity to func­tion
as a “watch­dog” of cer­tain areas of offi­cial activ­ity is severely and delib­er­ately
impeded by legis­la­tion and offi­cial prac­tice.
It is widely recog­nised in inter­na­tional law that free­dom of expres­sion is not an
abso­lute right and can legit­im­ately be restric­ted if it harms national secur­ity.
How­ever, all such exemp­tions must be accom­pan­ied by adequate safe­guards to
pro­tect against their mis­use by gov­ern­ments and to ensure that the bal­ance between
national secur­ity and free­dom of expres­sion is prop­erly struck. Such safe­guards are
absent from the UK’s legis­lat­ive frame­work. The pat­tern seen in the courts has been
less a care­ful bal­an­cing of free­dom of expres­sion and national secur­ity than judg­ments
that dam­age free expres­sion and sup­press rev­el­a­tions of incom­pet­ence, illeg­al­ity and
other wrong­do­ing by mem­bers of the secur­ity and intel­li­gence ser­vices and the armed
forces.
The UK Gov­ern­ment has a bat­tery of means at its dis­posal to ensure that a veil of
offi­cial secrecy is main­tained and the activ­it­ies of the Secur­ity and Intel­li­gence
Ser­vices (SIS) remain unex­amined. Chief among these is the dra­conian Offi­cial
Secrets Act (OSA), which pro­hib­its the dis­clos­ure of a huge range of inform­a­tion by
gov­ern­ment employ­ees and the media. Those breach­ing the OSA face impris­on­ment
and fines.
The OSA makes it a crime for cur­rent and ex-members of the Secur­ity and
Intel­li­gence Ser­vices to reveal any security-related inform­a­tion, even if such
inform­a­tion is not dam­aging to national secur­ity, put­ting the UK out of step with
many other demo­cra­cies. Fur­ther, in many other demo­cratic states such as Ger­many
and the Neth­er­lands, pub­lic­a­tion of offi­cial secrets and inform­a­tion harm­ful to
national secur­ity can be excused if it serves the pub­lic interest. No such defences for
whis­tleblowers or the recip­i­ents and pub­lish­ers of their inform­a­tion exist under UK
law.
A raft of other mech­an­isms is also used in the UK to sup­press inform­a­tion, obtain
doc­u­ments, com­pel dis­clos­ure of sources and trace and pun­ish those respons­ible for
dis­clos­ures of national secur­ity related inform­a­tion. Injunc­tions, pro­duc­tion orders,
con­fid­en­ti­al­ity clauses and con­tempt of court laws are just some of the civil and
crim­inal mech­an­isms at the Government’s dis­posal. All have been invoked in recent
years in the executive’s read­i­ness to seek gag­ging orders, fines and prison sen­tences
for pub­lic ser­vants and journ­al­ists who use pro­tec­ted inform­a­tion to pub­li­cise
doc­u­ments and alleg­a­tions relat­ing to offi­cial incom­pet­ence, illeg­al­ity or wrong­do­ing.
Other powers, such as search and seizure by police, are also used to obtain
inform­a­tion. In the use of injunc­tions as a pre­ferred means of sup­press­ing
inform­a­tion, the Brit­ish author­it­ies are unfettered by the con­sti­tu­tional, stat­utory or
judi­cial safe­guards gov­ern­ing prior restraint in coun­tries such as Aus­tria, France,
Sweden and the US. Nor do UK journ­al­ists enjoy the same right as their coun­ter­parts
in many other European coun­tries to pro­tect the con­fid­en­ti­al­ity of their sources.
The report iden­ti­fies the alarm­ing tend­ency of the UK judi­ciary to defer to the
Gov­ern­ment in these mat­ters and its fail­ure to observe the neces­sity to bal­ance
national secur­ity con­sid­er­a­tions against the pub­lic interest and the right to free­dom of
expres­sion.
Among the recom­mend­a­tions we make are:
• that the Gov­ern­ment con­ducts a review of all law and prac­tice relat­ing to
   national secur­ity, includ­ing ongo­ing pro­sec­u­tions;
• intro­duc­tion of mech­an­isms for proper demo­cratic scru­tiny of the activ­it­ies of
   the secur­ity and intel­li­gence ser­vices;
• estab­lish­ment of a nar­row defin­i­tion of national secur­ity;
• spe­cific inclu­sion of a sub­stan­tial harm test for dis­clos­ures relat­ing to national
   secur­ity offences and a pub­lic interest defence for those accused of breach­ing
  offi­cial secrecy; and
• legal pro­tec­tion for Secur­ity and Intel­li­gence Ser­vices “whis­tleblowers”.
This report fur­ther provides an ana­lysis of how the UK Gov­ern­ment uses the law to
pre­vent dis­clos­ures of security-related inform­a­tion by gov­ern­ment employ­ees, the
media and mem­bers of the pub­lic. The legis­lat­ive frame­work is meas­ured against
inter­na­tional legal stand­ards and found want­ing. The report also ana­lyses the role of
the judi­ciary and its fail­ure to sub­ject gov­ern­ment claims about national secur­ity to
close scru­tiny. It sets out the laws and mech­an­isms which restrict dis­clos­ure of
national security-related inform­a­tion, and details the ways in which this mat­rix of
civil and crim­inal legis­la­tion has been used by the Gov­ern­ment in the last three years
against former secur­ity ser­vice employ­ees, mem­bers of the pub­lic, and the media.
The report also con­siders the Human Rights Act 1998, which incor­por­ates the
European Con­ven­tion of Human Rights into domestic law, and its implic­a­tions for
reform­ing the UK régime of free­dom of expres­sion in the con­text of national secur­ity.
The report dis­cusses the options open for reform, and con­cludes with a list of four­teen
recom­mend­a­tions that would ensure that the UK régime gov­ern­ing free­dom of
expres­sion and national secur­ity con­forms to the stand­ards and prac­tices befit­ting a
mod­ern, open and healthy demo­cratic soci­ety.
Sum­mary of Recom­mend­a­tions
Recom­mend­a­tion 1: The gov­ern­ment should imme­di­ately review all national
secur­ity laws for com­pli­ance with these recom­mend­a­tions.
Recom­mend­a­tion 2: All ongo­ing pro­sec­u­tions and other legal meas­ures, as well as
any sanc­tions already imposed, should be reviewed for com­pli­ance with these
recom­mend­a­tions and remedial meas­ures taken where neces­sary.
Recom­mend­a­tion 3: All national secur­ity restric­tions should be sub­ject to a full
appeal on the mer­its by the courts.
Recom­mend­a­tion 4: All national secur­ity legis­la­tion should include a clear and
nar­row stat­utory defin­i­tion of national secur­ity.
Recom­mend­a­tion 5: Those seek­ing to restrict expres­sion should bear the bur­den of
prov­ing that the restric­tion com­plies with these recom­mend­a­tions.
Recom­mend­a­tion 6: No restric­tion on expres­sion or inform­a­tion should be
con­sidered legit­im­ate unless it meets the three-part test under the European
Con­ven­tion.
Recom­mend­a­tion 7: No one should be sub­ject to crim­inal pen­alty for dis­clos­ure of
inform­a­tion unless that dis­clos­ure poses a real risk of sub­stan­tial harm to a legit­im­ate
national secur­ity interest and there was a spe­cific inten­tion to cause harm of that sort.
Recom­mend­a­tion 8: All restric­tions on expres­sion and inform­a­tion should be sub­ject
to a pub­lic interest defence.
Recom­mend­a­tion 9: Any sanc­tions for breach of laws restrict­ing expres­sion or
inform­a­tion should be pro­por­tion­ate to the offence.
Recom­mend­a­tion 10: A series of lim­it­a­tions should be imposed on the grant­ing of
injunc­tions to bring them into line with inter­na­tional stand­ards on free­dom of
expres­sion.
Recom­mend­a­tion 11: Journ­al­ists should not be required to reveal con­fid­en­tial
sources or inform­a­tion unless this is jus­ti­fied by an over­rid­ing pub­lic interest.
Recom­mend­a­tion 12: The DA-Notice sys­tem as presently con­sti­tuted should be
dis­mantled.
Recom­mend­a­tion 13: The pro­tec­tions of the Pub­lic Interest Dis­clos­ure Act 1998
should apply to secur­ity and intel­li­gence per­son­nel.
Recom­mend­a­tion 14: The Intel­li­gence and Secur­ity Com­mit­tee should be given full
Select Com­mit­tee status.
Abbre­vi­ations
DA
ECHR
FOI
GCHQ
ICCPR
MI5
MI6
MoD
OAS
OSA
OSCE
PACE
PIDA
PTA
RIP
SAS
SIAC
Notice Sys­tem Defence Advis­ory notice sys­tem
European Con­ven­tion on Human Rights
Bill Free­dom of Inform­a­tion Bill FRU Force Research Unit
Gov­ern­ment Com­mu­nic­a­tions Headquar­ters
Inter­na­tional Cov­en­ant on Civil and Polit­ical Rights
Intel­li­gence ser­vice gov­ern­ing secur­ity in the UK
Ser­vice gov­ern­ing for­eign secur­ity
Min­istry of Defence
Organ­isa­tion of Amer­ican States
Offi­cial Secrets Act
Organ­isa­tion for Secur­ity and Co-operation in Europe
Police and Crim­inal Evid­ence Act 1984
Pub­lic Interest Dis­clos­ure Act 1998
Pre­ven­tion of Ter­ror­ism Act
Reg­u­la­tion of Invest­ig­at­ory Powers Act 2000
Spe­cial Air Ser­vice
Spe­cial Immig­ra­tion Appeals Com­mis­sion UN United Nations Pre­face
Pre­face
In the last few years, the issues sur­round­ing whis­tleblow­ing, free­dom of expres­sion
and national secur­ity in the UK have been attract­ing high levels of atten­tion. The
Brit­ish government’s sin­gle­minded pur­suit of vari­ous ex-intelligence offi­cials,
journ­al­ists and media out­lets has gen­er­ated much con­tro­versy. Not since Clive
Pont­ing was acquit­ted by a jury act­ing against the instruc­tions of the judge,1 and
Sarah Tis­dall was con­victed and imprisoned in order to deter other civil ser­vants from
leak­ing inform­a­tion to the media,2 have offences under the Offi­cial Secrets Acts been
the sub­ject of such debate. Not since Peter Wright was pur­sued through the civil
courts of sev­eral coun­tries for years on end – at a cost to the tax­payer of some £3
mil­lion – in a failed attempt to pre­vent pub­lic­a­tion of his mem­oirs, have injunc­tions
enjoyed such a high media profile.3
The Brit­ish Gov­ern­ment “has an appalling record of attempt­ing to clas­sify as ‘top
secret’ mere polit­ical embarrassment.“4 Only recently, the Government’s record in
this area attrac­ted cri­ti­cism from the UN Spe­cial Rap­por­teur on Free­dom of Opin­ion
and Expression.5 But if the recent dis­clos­ures have sub­stance, it is not mere
embar­rass­ment that the gov­ern­ment has shown itself keen to avoid through its actions,
but also the expos­ure of, and need to take action on, illegal and dan­ger­ous activ­it­ies
1
R v Pont­ing [1985] Crim. L.R. 318
R v Tis­dall (Sarah) (1984) 6 Cr.App.R.(S.) 155. Court of Appeal, Crim­inal Divi­sion
3
“Troubled his­tory of Offi­cial Secrets Act”, BBC News 18 Novem­ber 1998,
«news​.bbc​.co​.uk/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​2​1​6​0​0​0​/​2​1​6​8​6​8​.​stm»
4
Nigel West, “Lift­ing the veil on [the] Secur­ity Ser­vice”, Let­ters to the Editor, The Times, 5 June 2000
5
Civil and Polit­ical Rights, includ­ing the Ques­tion of Free­dom of Expres­sion, Report sub­mit­ted by Mr.
Abid Hus­sein, Spe­cial Rap­por­teur on his visit to the United King­dom of Great Bri­tain and North­ern
Ire­land to the Com­mis­sion on Human Rights, E/CN.4/2000/63/Add.3, 11 Feb­ru­ary 2000
2
by a branch of the Secret Intel­li­gence Ser­vices (MI6)6 and the Force Research Unit
(FRU), a dis­ban­ded branch of army intelligence.7
This report was com­mis­sioned by Liberty and ARTICLE 19 as a response to the
increased – and increas­ingly oppress­ive – use of national secur­ity laws by the UK
Gov­ern­ment to gag and pun­ish whis­tleblowers and the media. The UK legal régime
cur­rently per­mits no way of pro­tect­ing whis­tleblowers who work within the Secur­ity
and Intel­li­gence Ser­vices, and instead provides a bat­tery of legal mech­an­isms to
pun­ish and deter them. Rather than invest­ig­at­ing whis­tleblowers’ claims and mak­ing
pub­lic any evid­ence it may have that the alleg­a­tions are false, the Gov­ern­ment has
made use of these mech­an­isms to try and limit their dis­sem­in­a­tion. David Shayler,
Richard Tom­lin­son, “Mar­tin Ingrams”, Nigel Wylde, Liam Clarke, Tony Ger­aghty,
Mar­tin Bright, Julie-Ann Dav­ies, Ed Molo­ney and James Steen are cur­rently or have
recently been sub­ject to injunc­tions and/or threats of impris­on­ment.
The UK régime gov­ern­ing national secur­ity and free­dom of expres­sion fails to meet
inter­na­tion­ally accep­ted stand­ards of free­dom of expres­sion and com­pares
unfa­vour­ably in this respect with other estab­lished demo­cra­cies. Whereas many other
coun­tries have long had declas­si­fic­a­tion and dis­clos­ure pro­ced­ures which give
sub­stance to the public’s right to know about their gov­ern­ments’ activ­it­ies, UK
gov­ern­ments have to date res­isted attempts to intro­duce effect­ive free­dom of
inform­a­tion legis­la­tion. The draft law on free­dom of inform­a­tion cur­rently going
through Par­lia­ment is a great deal less pro­gress­ive than those pub­lished by trans­itional
demo­cra­cies such as Bul­garia and Mol­dova, and includes broader exemp­tions than
those felt to be neces­sary in the laws of Aus­tralia, Canada, Ire­land and New Zealand.8
One place from which to begin to under­stand the defi­cien­cies of the UK régime is the
lack of judi­cial scru­tiny. In the US, the Neth­er­lands and Ger­many, the courts exer­cise
the power to exam­ine gov­ern­ment claims that national secur­ity is harmed.9 In France
an inde­pend­ent com­mis­sion which has access to clas­si­fied inform­a­tion decides
whether the courts can have sim­ilar access. By con­trast, the judi­cial stand­ard in
Brit­ish courts appears to be a vir­tu­ally unques­tion­ing accept­ance of the Government’s
claims of national secur­ity, with no body inde­pend­ent of the exec­ut­ive to hold the
Government’s claims to account.
Now is an appos­ite time to recon­sider the UK régime gov­ern­ing free­dom of
expres­sion and offi­cial secrecy. The European Con­ven­tion on Human Rights has been
incor­por­ated into domestic law via the Human Rights Act 1998, which came into
force in Octo­ber 2000. It will fun­da­ment­ally change the legal land­scape. The right to
free­dom of expres­sion will cease to be defined purely by com­mon law rules, as a
resid­ual free­dom occupy­ing the space left by stat­utory restric­tions. It will itself be
estab­lished by stat­ute – a stat­ute, moreover, against which all oth­ers must be assessed
for com­pat­ib­il­ity. This offers a rare oppor­tun­ity for UK law and prac­tice to be
6
David Shayler has alleged that MI6 was involved in a plot to assas­sin­ate Col­onel Muam­mar Gad­dafi,
the Libyan Head of State
7
The pseud­onym­ous “Mar­tin Ingrams” has alleged that the FRU sought to des­troy evid­ence of crimes
com­mit­ted by one of its inform­ers by light­ing a fire in the offices occu­pied by the Stevens Inquiry team
8
Sub­mis­sion to the UK Gov­ern­ment on the Free­dom of Inform­a­tion Bill, July 1999 ARTICLE 19,
Cen­sor­ship News: Issue 53
9
Sandra Coliver (ed), Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and Access to
Inform­a­tion, Kluwer Law, 1999, Free­dom of Inform­a­tion: An Unre­cog­nised Right – The Right to know
and the EU, An EFJ Brief­ing Doc­u­ment <www​.ifj​.org/​r​e​g​i​o​n​s​/​e​u​r​o​p​e​/​e​f​j​/​e​n​/​e​u​s​u​r​v​e​y​.​h​tml>
assessed for their com­pat­ib­il­ity with the require­ments of the European Con­ven­tion
and to be reformed to provide more robust pro­tec­tion of free­dom of expres­sion
against mis­use of national secur­ity exemp­tions. ARTICLE 19 and Liberty present this
report in the hope that its recom­mend­a­tions will provide a use­ful start­ing point for the
dis­cus­sion which must take place, and for the reform pro­cess to begin.
Liberty and ARTICLE 19, Novem­ber 2000
1 Inter­na­tional law and prin­ciples of free expres­sion
The right to free expres­sion is of fun­da­mental value to soci­ety. It is a right that lies at
the heart of demo­cratic soci­ety, because it makes pos­sible the mean­ing­ful exer­cise of
cit­izens’ demo­cratic rights. For this reason, it has been described as “the touch­stone of
all the freedoms to which the United Nations is consecrated”.10 The guar­an­tee of free
expres­sion is a key means of hold­ing gov­ern­ment to account and of pro­tect­ing cit­izens
against abuses of their rights. The press, as the con­duit through which indi­vidu­als can
dis­sem­in­ate and obtain inform­a­tion, has a “pre-eminent role … in a State gov­erned by
the rule of law”.11
The right to free­dom of expres­sion is enshrined in a range of inter­na­tional and
regional treat­ies and instru­ments which bind the United King­dom. These include
Art­icle 19 of the Inter­na­tional Cov­en­ant on Civil and Polit­ical Rights (ICCPR), which
codi­fies the Uni­ver­sal Declar­a­tion of Human Rights, and Art­icle 10 of the European
Con­ven­tion on Human Rights (ECHR). Free­dom of expres­sion also enjoys
recog­ni­tion in the African Charter on Human and Peoples’ Rights and the Amer­ican
Con­ven­tion on Human Rights.
Art­icle 19 of the ICCPR and Art­icle 10 of the ECHR encom­pass the right both to
receive and to impart inform­a­tion. If an indi­vidual or a journ­al­ist is pre­ven­ted from
mak­ing a cer­tain piece of inform­a­tion pub­lic, or report­ing a par­tic­u­lar story, that
infringes the individual’s or journalist’s right to impart inform­a­tion and the reader’s
right to receive inform­a­tion.
ICCPR:
Art­icle 19(2) Every­one shall have the right to free­dom of expres­sion; this right shall
include free­dom to seek, receive and impart inform­a­tion and ideas of all kinds,
regard­less of fron­ti­ers, either orally, in writ­ing or in print?
Art­icle 19(3) [Free­dom of expres­sion] may … be sub­ject to cer­tain restric­tions, but
these shall only be such as are provided by law and are neces­sary:
a) For respect of the rights or repu­ta­tions of oth­ers
b) For the pro­tec­tion of national secur­ity or of pub­lic order, or of pub­lic health or
mor­als
ECHR:
Art­icle 10: Every­one has the right to free­dom of expres­sion. This right shall include
free­dom to hold opin­ions and to receive and impart inform­a­tion and ideas without
inter­fer­ence by pub­lic author­ity and regard­less of fron­ti­ers?
Art­icle 10(2) The exer­cise of these freedoms?may be sub­ject to such form­al­it­ies,
con­di­tions, restric­tions or pen­al­it­ies as are pre­scribed by law and are neces­sary in a
10
UN Gen­eral Assembly Res­ol­u­tion 59(1), 14 Decem­ber 1946, cited in writ­ten com­ments sub­mit­ted by
ARTICLE 19 in the case of Leader Pub­lic­a­tions (Pvt) Lim­ited v Rubas­inghe and Ors, 30 June 2000,
S.C. (F/R) No. 362/2000
11
Thorgeirson v Ice­land, 25 June 1992, 14 EHRR 843, para.63
demo­cratic soci­ety, in the interests of national security?[or] for pre­vent­ing the
dis­clos­ure of inform­a­tion received in con­fid­ence.
1.1 Strik­ing the right bal­ance: the three-part test
Ensur­ing the free flow of inform­a­tion is para­mount in a demo­cratic soci­ety, but at the
same time, it is accep­ted that the right to free expres­sion is not abso­lute and that it
may legit­im­ately be cur­tailed when trumped by com­pet­ing con­sid­er­a­tions of suf­fi­cient
weight. This is recog­nised in both the ICCPR and the ECHR, which allow for lim­ited
restric­tions on free­dom of expres­sion. For example, it is acknow­ledged that
expres­sion may be restric­ted in cer­tain cases where it harms the repu­ta­tion of
indi­vidu­als. Sim­il­arly, national secur­ity con­sid­er­a­tions jus­tify cer­tain restric­tions on
free­dom of expres­sion.
How­ever, any restric­tion must sat­isfy cer­tain strin­gent cri­teria in order that they do
not encroach upon the legit­im­ate scope of free expres­sion. There is a well-founded
danger that gov­ern­ments will mis­use exemp­tions to pre­vent speech for reas­ons other
than that stated, par­tic­u­larly where it involves national secur­ity. It is not suf­fi­cient for
a gov­ern­ment simply to assert that national secur­ity is in issue. Rather, inter­na­tional
and national jur­is­pru­dence, as well as the clear lan­guage of the treat­ies, requires that
any restric­tions meet the fol­low­ing three-part test, as set out by the ECHR and other
courts:
The first require­ment is that the restric­tion be pre­scribed by law. The idea of
law­ful­ness which flows from this encom­passes sev­eral dis­tinct com­pon­ents. It means,
first, that the restric­tion must be set clearly in law, for example, in the stat­utes enacted
by Par­lia­ment, through the com­mon law artic­u­lated by judges, in sec­ond­ary
legis­la­tion, or in pro­fes­sional rules. Second, the restric­tion must be artic­u­lated with
suf­fi­cient pre­ci­sion to meet the tests of legal cer­tainty and fore­see­ab­il­ity; it is
import­ant for cit­izens and the press to be able to under­stand their oblig­a­tions and
pre­dict when a cer­tain dis­clos­ure is likely to be unlaw­ful. Laws which are excess­ively
vague or which allow for excess­ive dis­cre­tion in their applic­a­tion fail to pro­tect
indi­vidu­als against arbit­rary inter­fer­ence and do not con­sti­tute adequate safe­guards
against abuse. They “exert an unac­cept­able chilling effect on free­dom of expres­sion as
cit­izens steer well clear of the poten­tial zone of applic­a­tion to avoid censure.“12
The second cri­terion that a restric­tion on free­dom of expres­sion must meet is that it be
genu­inely dir­ec­ted towards achiev­ing one of the legit­im­ate aims spe­cified in the
treat­ies. If an individual’s free­dom of expres­sion is to be cur­tailed in the interests of
national secur­ity, the restric­tions imposed must actu­ally pro­tect national secur­ity.
Restric­tions that pre­vent the pub­lic from learn­ing of illeg­al­ity and wrong­do­ing from
whis­tleblowers in our state insti­tu­tions fail this part of the test.
Even where a restric­tion can sat­isfy the first and second cri­teria, it will be a legit­im­ate
lim­it­a­tion on the right to free expres­sion only if it is neces­sary in a demo­cratic soci­ety.
This cri­terion will be met only where the restric­tion ful­fils a press­ing social need.13
The notion of neces­sity requires, in addi­tion, the key ele­ment of proportionality.14
12
Writ­ten com­ments sub­mit­ted by ARTICLE 19 in the case of Leader Pub­lic­a­tions (Pvt) Lim­ited v
Rubas­inghe and Ors, 30 June 2000, p.9
13
Sunday Times v United King­dom, 26 April 1979, No 30, 2 EHRR 245
14
Handyside v United King­dom, 7 Decem­ber 1976, No 24, 1 EHRR 737
Where national secur­ity does require that free­dom of expres­sion be cur­tailed, the
restric­tions imposed must impair that right as little as pos­sible, or at least not to an
extent dis­pro­por­tion­ate with the import­ance of the legit­im­ate aim being pur­sued.
These cri­teria estab­lish a gen­eral pre­sump­tion in favour of free expres­sion. Free
expres­sion is the basic default pos­i­tion from which any depar­ture must be jus­ti­fied.
The excep­tions in Art­icle 10(2) must be con­strued narrowly.15 Only where these
cri­teria are ful­filled will it be legit­im­ate to cur­tail the right to free expres­sion in the
name of national secur­ity. The bur­den of demon­strat­ing the valid­ity of the restric­tion
should rest with the author­it­ies. Moreover, claims to have sat­is­fied the cri­teria for a
legit­im­ate restric­tion must be sub­ject to proper inde­pend­ent scrutiny.16 The judi­ciary
has a cru­cial role to play in ensur­ing that free­dom of expres­sion is impeded no more
than is strictly required in the pub­lic interest.
1.2 The Johan­nes­burg Prin­ciples
The aim of the Johan­nes­burg Principles17 (see Appendix 1) is to spell out more clearly
what these stand­ards require of gov­ern­ments in rela­tion to national secur­ity. Draw­ing
on inter­na­tional and regional case law, the Johan­nes­burg Prin­ciples were defined by a
group of experts con­vened by ARTICLE 19 in Octo­ber 1995. Their aim is to cla­rify
the mean­ing of – and the scope of jus­ti­fi­able lim­it­a­tions upon – the right to free
expres­sion as con­tained in vari­ous inter­na­tional con­ven­tions and cov­en­ants, includ­ing
the ECHR. This “flesh­ing out” has received pos­it­ive com­ment from the UN Spe­cial
Rap­por­teur for Free­dom of Expres­sion and the UN Spe­cial Rap­por­teur on the
Inde­pend­ence of Judges and Lawyers.18
The Prin­ciples recog­nise that national secur­ity is a valid reason for impos­ing
restric­tions on the free flow of information.19 How­ever, if the pre­sump­tion in favour
of free­dom of expres­sion and of access to inform­a­tion is to be respec­ted, the scope of
the excep­tion needs to be defined as strictly and as nar­rowly as pos­sible. To this end
the Prin­ciples include a clear defin­i­tion of what con­sti­tutes legit­im­ate national
secur­ity interest. A restric­tion on the right to free expres­sion is jus­ti­fied in the
interests of national secur­ity only if its effect is to “pro­tect a country’s exist­ence or its
ter­rit­orial integ­rity against the use or threat of force, or its capa­city to respond to the
use or threat of force.“20 Moreover, the pre­sump­tion in favour of free­dom of
expres­sion requires gov­ern­ments to demon­strate that the expres­sion will actu­ally harm
national secur­ity; the mere asser­tion of this by the exec­ut­ive will be insuf­fi­cient.
The prin­ciples also state expli­citly that the public’s right to inform­a­tion must be given
due weight. A state may not cat­egor­ic­ally deny access to all inform­a­tion related to
national secur­ity, but des­ig­nate in law only those spe­cific and nar­row cat­egor­ies of
inform­a­tion neces­sary to pro­tect legit­im­ate national secur­ity interests (Prin­ciples 11,
15
Sunday Times v United King­dom, 1979, 2 EHRR 245
Sil­ver and Oth­ers v United King­dom, 25 March 1983, No 61, 5 EHRR 347; Handyside v United
King­dom 7 Decem­ber 1976, No 24, 1 EHRR 737
17
The Johan­nes­burg Principles:National Secur­ity, Free­dom of Expres­sion and Access toIn­form­a­tion,
ARTICLE 19, Media Law and Prac­tice Series, 1996
18
Sandra Coliver, ?Com­ment­ary on the Johan­nes­burg Prin­ciples,’ in Sandra Coliver et al, Secrecy and
Liberty: National Secur­ity, Free­dom of Expres­sion and Access to Inform­a­tion, Kluwer Law, 1999,
pp.80–81
19
Prin­ciple 1©
20
Prin­ciple 2(a)
16
12). As a res­ult, once a piece of inform­a­tion is in the pub­lic domain no threat to
national secur­ity is posed by fur­ther dis­clos­ure, and these can­not legit­im­ately be
pre­ven­ted. Such actions do not meet the legit­im­ate aim of restrict­ing free expres­sion
to pro­tect national secur­ity, as the Spycatcher case established.21
In addi­tion, the Prin­ciples state the widely accep­ted view that there is a fun­da­mental
pub­lic interest in know­ing about wrong­do­ing and illeg­al­it­ies. National secur­ity can­not
be used to pre­vent dis­clos­ures expos­ing illeg­al­it­ies or wrong­do­ing, no mat­ter how
embar­rass­ing to the government.22 There is no jus­ti­fic­a­tion for pun­ish­ing
whis­tleblowers when they reveal inform­a­tion that is embar­rass­ing or that exposes
wrong­do­ing. This aspect of the pub­lic interest remains fun­da­mental even when such
dis­clos­ures harm national secur­ity. No per­son may be pun­ished for mak­ing
dis­clos­ures that dam­age national secur­ity if the pub­lic interest in know­ing the
inform­a­tion out­weighs the harm from disclosure.23 Whis­tleblowers’ free­dom of
expres­sion should there­fore be recog­nised to be worthy of pro­tec­tion, even when
legit­im­ate national secur­ity con­sid­er­a­tions are in play.
1.3 Con­clu­sion
Pre­serving free expres­sion and the interests of national secur­ity is not just a ques­tion
of find­ing the appro­pri­ate bal­ance in situ­ations where the two appear to con­flict. It is
also neces­sary that ulti­mately this bal­ance should be struck by bod­ies, par­tic­u­larly the
courts, that are not open to abuse by gov­ern­ment. Those who wield exec­ut­ive power
may act in their own polit­ical interest, rather than the broader pub­lic interest, and
abuse restric­tions to avoid embar­rass­ing rev­el­a­tions, and the expos­ure of
incom­pet­ence, illeg­al­ity and other forms of wrong­ful action. As we shall see, ensur­ing
that the pro­ced­ures and mech­an­isms work to safe­guard free­dom of expres­sion
requires, among other things, a clear defin­i­tion of national secur­ity that is sub­ject to
crit­ical judi­cial over­sight.
21
The Observer and Guard­ian v. United King­dom, (Spycatcher case), 26 Novem­ber 1991, No 216, 14
EHRR 153
22
Prin­ciple 2(b)
23
Prin­ciple 15 and Prin­ciple 16
2 “National secur­ity”: who decides? The lack of
effect­ive judi­cial scru­tiny
2.1 National secur­ity exemp­tions
It is essen­tial that restric­tions on free­dom of expres­sion, includ­ing for reas­ons of
national secur­ity, be sub­ject to effect­ive over­sight by the courts. To ful­fil this
func­tion, it is neces­sary for the judi­ciary to be able decide whether, in fact, national
secur­ity is threatened. In Bri­tain, the right to effect­ive review is under­mined by the
lim­ited scope of judi­cial over­sight and the lack of any clear stat­utory guidelines for
examin­ing what national secur­ity cov­ers.
The extent of super­vi­sion by the courts of national secur­ity restric­tions is presently
lim­ited to the stand­ard of judi­cial review. This is sat­is­fied if the gov­ern­ment can
per­suade the court that national secur­ity was con­sidered as a rel­ev­ant factor when the
con­tested decision was made. Under this approach, judges do not eval­u­ate whether the
decision-maker came to a cor­rect decision, in other words, whether national secur­ity
actu­ally does jus­tify the restriction.24
The poten­tial for mis­use of national secur­ity exemp­tions is exacer­bated by a tend­ency
towards judi­cial defer­ence in issues involving national secur­ity. For example, Richard
Tom­lin­son, an ex-MI5 officer, was denied recourse to an employ­ment tribunal simply
on the grounds that the gov­ern­ment would have to divulge inform­a­tion relat­ing to
national security.25 Sim­ilar defer­ence tends to pre­vail when the gov­ern­ment seeks
injunc­tions to pre­vent dis­clos­ures of pur­portedly sens­it­ive information.26 It has been
observed that “courts in coun­tries around the world tend to demon­strate the least
inde­pend­ence and greatest defer­ence to the claims of gov­ern­ment when national
secur­ity is invoked.“27 The European Court of Human Rights has ten­ded in the past to
regard a state’s “mar­gin of appre­ci­ation” – its dis­cre­tion to determ­ine for itself the
com­pat­ib­il­ity of restric­tions on rights with the ECHR28 – as being widest where
national secur­ity con­sid­er­a­tions are involved.29 At the very point where domestic
courts become most defer­en­tial and least inquis­it­ive, the European Court appeared to
be more will­ing to take gov­ern­ments’ claims at face value.
Mis­use of the legit­im­ate national secur­ity exemp­tion in the UK to avoid
embar­rass­ment and gag whis­tleblowers has been facil­it­ated by the fact that the
concept of national secur­ity is often left undefined. It is defined neither in the ECHR
nor any­where in UK legis­la­tion. National secur­ity has been described as a pro­tean
24
Coun­cil of Civil Ser­vice Uni­ons v Min­is­ter for the Civil Ser­vice [1985] AC 374. Court of Appeal
Philip Wil­lan, “Reneg­ade spy to give him­self up in return for tribunal hear­ing” The Guard­ian, 3 June,
2000
26
Laurence Lust­garten, “Free­dom of Expres­sion, Dis­sent, and National Secur­ity in the United
King­dom,” in Sandra Coliver et al, Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and
Access to Inform­a­tion, Kluwer Law, 1999, pp.467–468
27
Sandra Coliver, “Com­ment­ary on the Johan­nes­burg Prin­ciples,” in Sandra Coliver et al, Secrecy and
Liberty: National Secur­ity, Free­dom of Expres­sion and Access to Inform­a­tion, Kluwer Law, 1999, p.13
28
A doc­trine first artic­u­lated in Handyside v United King­dom, 7 Decem­ber 1976, No 24, 1 EHRR 737
29
Paul Mahoney and Lawrence Early, “Free­dom of Expres­sion and National Secur­ity,” in Sandra
Coliver et al, Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and Access to
Inform­a­tion, Kluwer Law, 1999, p.123
25
idea,30 and an ambu­lat­ory concept31 to be con­strued in light of the cir­cum­stances of
each case. How­ever the need for flex­ib­il­ity should not pre­clude both reas­on­able
cer­tainty of what it cov­ers and suf­fi­cient scru­tiny by oth­ers of whether in fact it is
harmed.
2.2 Encour­aging changes: the Spe­cial Immig­ra­tion Appeals
Com­mis­sion (SIAC)
The European Court has indic­ated that national decision-makers have a mar­gin of
appre­ci­ation in mat­ters con­cern­ing national secur­ity. The mar­gin of appre­ci­ation is a
highly con­tested doc­trine but in any case, the Court has estab­lished that this mar­gin of
appre­ci­ation is far from infin­ite. In cer­tain rul­ings, it has shown itself to have teeth,
able to tear at the veil of national secur­ity that gov­ern­ments draw around their actions.
In so doing, it has indic­ated that the ECHR requires our domestic judi­ciary to sub­ject
gov­ern­mental claims regard­ing national secur­ity to a deeper and more crit­ical scru­tiny
than is gen­er­ally the case.
As described in sec­tion 1.1, judges too often leave the defin­i­tion of national secur­ity
largely in the hands of the exec­ut­ive, which effect­ively gives those with an interest in
sup­press­ing embar­rass­ing or incon­veni­ent inform­a­tion carte blanche to define national
secur­ity for their own con­veni­ence. This has been recog­nised to be unac­cept­able by
the European Court of Human Rights, which has held that judi­cial review in the UK
fails to provide an effect­ive rem­edy to the applic­ant, as required by Art­icle 13 of the
ECHR.32 In the case of an Egyp­tian cleric’s appeal against deport­a­tion, the Court
found that the UK Government’s invoc­a­tion of national secur­ity con­cerns was
unsat­is­fact­ory grounds for refus­ing to divulge inform­a­tion jus­ti­fy­ing the deport­a­tion
decision. Excess­ive judi­cial defer­ence to the exec­ut­ive on the defin­i­tion of national
secur­ity could, there­fore, sim­il­arly be regarded as con­trary to the ECHR.
In response to the judg­ment in the Chahal case above, the gov­ern­ment estab­lished the
Spe­cial Immig­ra­tion Appeals Com­mis­sion (SIAC) to which immig­ra­tion appeals
could be referred. In a recent hear­ing, SIAC rejec­ted sug­ges­tions that what con­sti­tutes
a danger to national secur­ity is a mat­ter for the gov­ern­ment to determ­ine and not
within the com­pet­ence of the courts to assess, save inso­far as was neces­sary for
judi­cial review pur­poses. Rather, SIAC took the view that the Spe­cial Immig­ra­tion
Appeals Com­mis­sion Act 1997 had con­ferred on it the jur­is­dic­tion to determ­ine for
itself both the mean­ing of a “danger to national secur­ity” and whether that defin­i­tion
was sat­is­fied on the facts in issue. Whilst the views of the exec­ut­ive – based on
priv­ileged access to inform­a­tion and expert­ise – were to be accor­ded con­sid­er­able
weight, the ulti­mate assess­ment of whether national secur­ity was under threat was felt
to be squarely within SIAC’s own remit. The Home Sec­ret­ary was required to prove
to a high civil bal­ance of prob­ab­il­it­ies that, on the facts of the case, the indi­vidual was
a danger to national secur­ity, as defined by SIAC.
30
Sec­ret­ary of State for the Home Depart­ment v Shafiq Ur Reh­man, 23 May 2000, No. 1999/1268/C,
para.35. Court of Appeal, Civil Divi­sion
31
«www​.dnotice​.org​.uk/​f​a​q​s​.​htm»
32
Chahal v United King­dom [1997] 23 EHRR 413
The Court of Appeal has con­firmed that SIAC was entitled to take this approach,33
although in its view the SIAC had erred in fram­ing too nar­row a defin­i­tion of national
secur­ity. Lord Woolf MR sup­plied a wider defin­i­tion for use by SIAC in
recon­sid­er­ing the case. The core of this defin­i­tion is that a danger to national secur­ity
exists where there is at least a “real pos­sib­il­ity” of dir­ect or indir­ect “adverse
reper­cus­sions” on the secur­ity of the UK.34
This is the closest we have yet come to a defin­i­tion of national secur­ity for the
pur­poses of UK law. It is still a wider defin­i­tion than desir­able, and its applic­a­tion is
con­fined to the issues of ter­ror­ism and immig­ra­tion. The import­ant point for present
pur­poses, how­ever, is not so much the con­tent of the defin­i­tions offered by SIAC and
the Court of Appeal, but rather the fact that SIAC has unam­bigu­ously been con­firmed
as the arbiter of national secur­ity for cases within its jur­is­dic­tion. The judi­cial
defer­ence found in judi­cial review pro­ceed­ings was rejec­ted in favour of a full crit­ical
scru­tiny of exec­ut­ive claims regard­ing national secur­ity.
SIAC is not a typ­ical court: its three mem­bers are drawn not only from the judi­ciary,
but also from the Immig­ra­tion Appeal Tribunal and from amongst those with
“exper­i­ence of national secur­ity meas­ures”. 35 In con­firm­ing that SIAC did have
author­ity to “pierce the veil” of national secur­ity, Lord Woolf MR appears to have
been impressed by this unusual com­pos­i­tion. He noted that “[w]ithout stat­utory
inter­ven­tion, this is not a role which a court read­ily adopts. But SIAC’s mem­ber­ship
meant that it was more appro­pri­ate for SIAC to per­form this role.“36
2.3 Con­clu­sion
It is unclear to what extent this approach will be regarded as ?trans­fer­able? from the
con­text of SIAC. The fact that SIAC’s stat­utory author­ity to scru­tin­ise the exec­ut­ive
was con­ferred because the European Court found excess­ive judi­cial defer­ence to be in
breach of the ECHR lends sub­stance to beliefs that such will­ing­ness to sub­ject claims
regard­ing national secur­ity to proper scru­tiny may travel across the court sys­tem more
gen­er­ally. In addi­tion, the Human Rights Act 1998 requires pub­lic author­it­ies,
includ­ing the courts, to com­ply with the ECHR. As such, it is able to provide courts
with the requis­ite author­ity to exam­ine the sub­stance of exec­ut­ive claims to national
secur­ity along the lines of the SIAC.37
The lack of effect­ive and inde­pend­ent judi­cial scru­tiny on national secur­ity issues
under­mines the right to inde­pend­ent review, and makes it impossible to inde­pend­ently
ascer­tain what con­sti­tutes harm in the government’s applic­a­tion of cer­tain laws
gov­ern­ing offi­cial secrecy. Effect­ive scru­tiny is also cru­cial when the Gov­ern­ment is
gran­ted injunc­tions based on a claim that the dis­clos­ure of inform­a­tion would be
pre­ju­di­cial to national secur­ity.
33
Sec­ret­ary of State for the Home Depart­ment v Shafiq Ur Reh­man, 23 May 2000, No. 1999/1268/C,
Court of Appeal, Civil Divi­sion
34
Ibid., para.39
35
Ibid., para.11; and s. 1 Spe­cial Immig­ra­tion Appeals Com­mis­sion Act 1997
36
Ibid., para.42
37
How­ever, it is worth not­ing that Art­icle 13 ? on which the Chahal decision was based ? is not
incor­por­ated by the Human Rights Act 1998. Con­sequently, there must be some danger that the courts
might not recog­nise the Act as sup­ply­ing them with the requis­ite author­ity
3 Legal restric­tions on pub­lic employ­ees? free­dom of
expres­sion: restrict­ing Primary Dis­clos­ure
There are vari­ous legal mech­an­isms in place for poli­cing the bound­ar­ies between free
expres­sion and national secur­ity. The Offi­cial Secrets Act 1989 (OSA) is the most
import­ant of these. It imposes vari­ous crim­inal pen­al­ties for unau­thor­ised dis­clos­ures
by cur­rent and former pub­lic employ­ees as well as for non-employees (see Chapter 4).
Of at least equal import­ance in sup­press­ing cer­tain kinds of dis­clos­ure is the nexus of
civil injunc­tions to restrain dis­clos­ures on the basis of oblig­a­tions of con­fid­ence,
com­bined with the use of con­tempt of court pen­al­ties for any sub­sequent breach of
those injunc­tions. Whichever route is taken, the ulti­mate sanc­tion for mak­ing
dis­clos­ures is the threat of being fined and/or incar­cer­ated by the state.
Moreover, the pen­al­ties imposed on those pub­lic employ­ees or ex-employees who
make unau­thor­ised dis­clos­ures are often expli­citly inten­ded to have deterrent effects
on oth­ers. Sarah Tis­dall, a civil ser­vant, was sen­tenced to six months impris­on­ment
for leak­ing doc­u­ments to the press, a sen­tence which the Court of Appeal held to be
appro­pri­ate in reflect­ing an ele­ment of deterrence.38 The pun­ish­ment meted out to
whis­tleblowers will not neces­sar­ily be pro­por­tion­ate to the crime they com­mit. This
con­flicts with Prin­ciple 24 of the Johan­nes­burg Principles,39 and con­tra­venes the
pro­por­tion­al­ity test inher­ent in the ECHR require­ment that any restric­tion on free
expres­sion be “neces­sary in a demo­cratic soci­ety”, which applies to pen­al­ties as well
as to the nature of the restrictions.40 When breaches are pun­ished in this way, the civil
and crim­inal law relat­ing to national secur­ity can be used inten­tion­ally to seek a
chilling effect that can­not be con­strued merely as the unin­ten­ded unfor­tu­nate by–
product of dili­gently pro­tect­ing the pub­lic interest in national secur­ity.
3.1 The Offi­cial Secrets Act
There has been an Offi­cial Secrets Act (OSA) in force since the first Act was passed
in 1911. Offences of espi­on­age from the ori­ginal Act sur­vive in the 1911 Act but it is
the Offi­cial Secrets Act 1989 which is rel­ev­ant for present pur­poses. The OSA
con­tains a range of offences relat­ing to primary dis­clos­ure – that is, dis­clos­ure by
cur­rent and former mem­bers of the civil ser­vice, secur­ity ser­vices or armed forces – of
vari­ous types of inform­a­tion. It also cre­ates an offence relat­ing to sec­ond­ary
dis­clos­ure – that is, the fur­ther dis­sem­in­a­tion, by journ­al­ists and oth­ers, of inform­a­tion
obtained as a res­ult of a primary dis­clos­ure. All the major offences under the OSA
are pun­ish­able with a max­imum term of two years impris­on­ment and/or an unlim­ited
fine.41
38
R v Tis­dall (Sarah) (1984) 6 Cr.App.R.(S.). Court of Appeal, Crim­inal Divi­sion
“A per­son, media out­let, polit­ical or other organ­iz­a­tion may not be sub­ject to such sanc­tions,
restraints or pen­al­ties for a security-related crime involving free­dom of expres­sion or inform­a­tion that
are dis­pro­por­tion­ate to the ser­i­ous­ness of the actual crime.“
40
See Tol­stoy Miloslavsky v. United King­dom, 13 July 1995, No 323, 20 EHRR 442
41
S. 10(1) OSA 1989
39
3.1.1 Dis­clos­ures by mem­bers of the Secur­ity and Intel­li­gence
Ser­vices
The United King­dom has three intel­li­gence and secur­ity ser­vices, known here
col­lect­ively as the Secur­ity and Intel­li­gence Ser­vices: the Secret Intel­li­gence Ser­vice,
also known as MI6; Gov­ern­ment Com­mu­nic­a­tions Headquar­ters (GCHQ); and the
Secur­ity Ser­vice, more pop­ularly known as MI5. MI6 is respons­ible for secur­ity
intel­li­gence relat­ing to defence, for­eign and eco­nomic policy, while MI5 is
respons­ible for domestic secur­ity intel­li­gence. GCHQ is the Government’s
“eaves­drop­ping” centre and mon­it­ors com­mu­nic­a­tions.
Primary dis­clos­ures are dis­clos­ures of security-related inform­a­tion by cur­rent and
former mem­bers of the secur­ity and intel­li­gence ser­vices. These pub­lic employ­ees are
sub­ject to a much more strin­gent oblig­a­tion of secrecy than are other civil ser­vants or
mem­bers of the armed forces. The lat­ter are liable only where the dis­clos­ures they
make are “dam­aging”, but dis­clos­ures made by the former may be pen­al­ised without
proof of dam­age. Any­one who works or has worked for MI5 or MI6 is guilty of a
crim­inal offence if they dis­close any inform­a­tion relat­ing to secur­ity or intel­li­gence
gleaned as a res­ult of their employment.42 Present and ex-Security and Intel­li­gence
per­son­nel are sub­ject to a blanket ban on reveal­ing any security-related inform­a­tion.
As such, cur­rent and former mem­bers of MI5, MI6 and GCHQ may be imprisoned for
mak­ing harm­less rev­el­a­tions that have no impact on genu­ine national secur­ity
interests.
Moreover, in these cases the OSA does not provide for a pub­lic interest defence.43
That is, the OSA does not allow for the idea that it may be in the pub­lic interest for a
dis­clos­ure to be made. Under the Act, genu­ine whis­tleblowers are not dis­tin­guished
from those who make mali­cious or mis­chiev­ous dis­clos­ures. In Ger­many and the
Neth­er­lands, pub­lic­a­tion of offi­cial secrets and inform­a­tion harm­ful to national
secur­ity can be excused if it serves the pub­lic interest. There is no such defence for
whis­tleblowers under UK law.
No harm test what­so­ever is applied in determ­in­ing whether that person’s actions are
deserving of crim­inal pun­ish­ment. The ban on dis­clos­ures cov­ers not only legit­im­ately
secret mater­ial, but also mater­ial that has entirely ceased to be con­fid­en­tial because it
has already been brought, by whatever means, into the pub­lic domain. It also cov­ers
mater­ial that causes no dam­age and that which is in the pub­lic interest.44
The same offence is com­mit­ted regard­less of the truth or fals­ity of the dis­clos­ure, as
the s. 1(1) offence does not dis­tin­guish between them.45 This is unique to secur­ity–
related inform­a­tion and does not, for example, apply in respect of defence-related
mater­ial. In the White Paper on the OSA of 1989,46 the Con­ser­vat­ive Gov­ern­ment
then in power stated that this “spe­cial treat­ment” – pro­scrib­ing dis­clos­ure by those in
42
S. 1(1) OSA 1989
A point noted and deplored by the Labour Party when oppos­ing the intro­duc­tion of the OSA 1989.
Roy Hat­ters­ley, as Shadow Home Sec­ret­ary, argued that “those who expose wrong­do­ing [should] be
given the right to argue the defence that they did what they did in the pub­lic interest.” Hansard, 21
Decem­ber 1988, 477
44
See the com­ments of Lord Nich­olls of Birken­head, Attorney-General v Blake and Another, 27 July
2000
45
S. 1(2) OSA 1989
46
Reform of Sec­tion 2 of the Offi­cial Secrets Act 1911, Cm 408
43
Secur­ity and Intel­li­gence Ser­vices of all security-related inform­a­tion whether it is true
or false – was jus­ti­fied on the basis that:
(1) as a mat­ter of policy, gov­ern­ments do not com­ment on the vera­city of asser­tions
about secur­ity or intel­li­gence; and
(2) state­ments by cur­rent or former mem­bers of the secur­ity and intel­li­gence ser­vices
have a “par­tic­u­lar cred­ib­il­ity” that allows false dis­clos­ures to cause as much dam­age
as genu­ine revelations.47
These pro­vi­sions can also be applied to civil ser­vants in cer­tain pos­i­tions by
noti­fic­a­tion pro­ced­ure.
3.1.2 Dis­clos­ures by other civil ser­vants
It is also an offence under the OSA for civil servants48 other than those employed in
the Secur­ity and Intel­li­gence Ser­vices to dis­close inform­a­tion relat­ing to secur­ity or
intel­li­gence obtained as a res­ult of their employment.49 How­ever, such dis­clos­ure is
sub­ject to a harm test, so that a civil ser­vant will com­mit an offence only when
mak­ing a “dam­aging dis­clos­ure”. Con­sequently, dis­clos­ure of doc­u­ment X by a
former mem­ber of one of the Secur­ity Ser­vices might be an offence, whilst dis­clos­ure
of the same doc­u­ment by a former civil ser­vant in the Home Office might not.
Nev­er­the­less, the test of “dam­age” is not strict and a dis­clos­ure is con­sidered
dam­aging if it falls within a class or descrip­tion of inform­a­tion the dis­clos­ure of
which is likely to dam­age the work of MI5 or MI6.50 Thus, it is not neces­sary that the
par­tic­u­lar inform­a­tion dis­closed is itself dam­aging.
It is also an offence to dis­close inform­a­tion which is likely to dam­age defence,51 but
in this instance the notion of dam­age is more clearly defined to include, inter alia,
mater­ial likely to dam­age the cap­ab­il­ity of the armed forces to carry out their tasks,
lead to loss of life or injury, or endanger the interests of the United King­dom
abroad.52 In this case, the actual inform­a­tion dis­closed must sat­isfy this test. There is
no repe­ti­tion of the “class or descrip­tion” pro­vi­sion that applies in rela­tion to secur­ity
and intel­li­gence inform­a­tion.
An equi­val­ent offence cov­ers unau­thor­ised dam­aging dis­clos­ures by civil ser­vants of
inform­a­tion relat­ing to inter­na­tional rela­tions. 53 This cat­egory is clearly defined, but
excess­ively broad: a “dam­aging” dis­clos­ure for these pur­poses is one that is likely to
endanger UK interests (or their pro­mo­tion) abroad.54 A dis­clos­ure will be deemed
dam­aging in this way if it con­sists of inform­a­tion received in con­fid­ence from a
for­eign power or inter­na­tional non-governmental organisation.55 It is also an offence
47
Ibid., para.43
Through­out this dis­cus­sion, “civil ser­vants” is used to refer to both Crown ser­vants and gov­ern­ment
con­tract­ors
49
S. 1(3) OSA 1989
50
S. 1(4)(b) OSA 1989
51
S. 2(1) OSA 1989
52
S. 2(2)(a)-(b) OSA 1989
53
S. 3(1) OSA 1989
54
S. 3(2) OSA 1989
55
S. 3(3) OSA 1989
48
for a civil ser­vant to make dis­clos­ures that are likely56 to res­ult in the com­mis­sion of
an offence, facil­it­ate an escape from legal cus­tody or impede crim­inal
investigations.57 This offence also applies where the unau­thor­ised dis­clos­ure is of
inform­a­tion obtained by legal inter­cep­tions and actions per­formed by the Secur­ity
Ser­vice under warrant.58 There is no pub­lic interest defence or con­sid­er­a­tion for any
of these offences.
3.1.3 Com­ments and con­clu­sions
Cur­rent and ex-government employ­ees in the Secur­ity and Intel­li­gence Ser­vices are
pro­hib­ited from reveal­ing any security-related inform­a­tion, regard­less of whether it is
harm­ful and whether it serves the pub­lic interest. The only defence avail­able to
Secur­ity and Intel­li­gence per­son­nel is to prove that they did not know and had no
reason to believe that the inform­a­tion they dis­closed related to secur­ity and
intel­li­gence. It is dif­fi­cult to ima­gine a defend­ant suc­cess­fully invok­ing this defence.
For other pub­lic employ­ees, the OSA does incor­por­ate a harm test but this is often
weak and easy to sat­isfy, requir­ing simply that the dis­clos­ure be likely to fall within
cer­tain cir­cum­stances. As Roy Hat­ters­ley, speak­ing for the Labour Party when the
Offi­cial Secrets Bill was debated in 1989, noted, the “defin­i­tion of harm is so wide
and so weak that it is dif­fi­cult to ima­gine any rev­el­a­tion, which is fol­lowed by a
pro­sec­u­tion, not res­ult­ing in a conviction.“59
The lack of a harm test and the fail­ure to con­sider the pub­lic interest ele­ment in the
dis­clos­ure makes the OSA incom­pat­ible with inter­na­tional stand­ards of pro­tec­tion for
free­dom of expres­sion. Prin­ciple 15 of the Johan­nes­burg Prin­ciples states:
No per­son may be pun­ished on national secur­ity grounds for dis­clos­ure of inform­a­tion
if (1) the dis­clos­ure does not actu­ally harm and is not likely to harm a legit­im­ate
national secur­ity interest, or (2) the pub­lic interest in know­ing the inform­a­tion
out­weighs the harm from disclosure.60
ARTICLE 19 and Liberty recog­nise that gov­ern­ment employ­ees in a pos­i­tion to gain
access to sens­it­ive inform­a­tion can rightly be placed under a duty not to divulge
cer­tain types of inform­a­tion harm­ful to national secur­ity and it is pos­sible that even
false rev­el­a­tions may harm national secur­ity. How­ever, we believe those OSA
pro­vi­sions which fail to incor­por­ate a harm test or pub­lic interest defence for any kind
of inform­a­tion, and regard­less of whether it is true or false, have dele­ter­i­ous
con­sequences for free­dom of expres­sion and the pub­lic interest. Moreover, the act­ive
crim­in­al­isa­tion of whis­tleblowers and the cur­tail­ment of expres­sion which has a claim
to some pro­tec­tion in its ser­vice to the pub­lic interest detracts from the cred­ib­il­ity of
the offi­cial bod­ies offered pro­tec­tion by such meas­ures.
When the Offi­cial Secrets Act was first pro­posed in 1988, Roy Hat­ters­ley, on behalf
of the Labour Party, then in oppos­i­tion, took the view that it was “a bad Bill. Its
applic­a­tion is likely to be worse because ? the Gov­ern­ment will man­age and
56
S. 4(2)(b) OSA 1989
S. 4(2)(a) OSA 1989
58
S. 4(3) OSA 1989
59
Hansard, 21 Decem­ber 1988
60
See Appendix 1
57
manip­u­late it.“61 Frank Dob­son hoped that “[s]urely we as a Par­lia­ment have not sunk
so low that we want to intro­duce new laws to pro­tect offi­cial wrongdoing.“62 The
cur­rent Labour gov­ern­ment has appar­ently found the OSA rather more accept­able
than its pos­i­tion in 1988?89 would have suggested.63
3.2 Civil rem­ed­ies backed by crim­inal pen­al­ties
Pro­sec­u­tions under the OSA have been rel­at­ively rare, not least because they tend to
be embar­rass­ing and incon­veni­ent for the secur­ity and intel­li­gence ser­vices. A rather
more pop­u­lar means of pre­vent­ing both primary and sec­ond­ary dis­clos­ures is the use
of the civil rem­edy of an injunc­tion. Rather than call­ing in the police to invest­ig­ate
what they regard as a crim­inal offence, the gov­ern­ment depart­ment con­cerned lit­ig­ates
the mat­ter dir­ectly using civil law backed by the threat of crim­inal pen­al­ties.
Injunc­tions
The injunc­tion is one of the most power­ful means open to gov­ern­ment for con­trolling
the flow of inform­a­tion. A form of prior restraint, it is also one of the most intrus­ive
instru­ments avail­able to gov­ern­ment for deny­ing free­dom of expres­sion. For this
reason, Liberty and ARTICLE 19 believe there should be a pre­sump­tion against the
use of prior restraint. In their will­ing­ness to use injunc­tions, the UK author­it­ies are
unfettered by con­sti­tu­tional, stat­utory or judi­cial safe­guards gov­ern­ing the issu­ing of
prior restraint orders which exist in coun­tries such as Aus­tria, France, Sweden and the
US.64 For example, in the US, the courts have yet to uphold a single injunc­tion
against free speech on national secur­ity grounds, whereas injunc­tions have been
sought and obtained with alarm­ing ease and fre­quency in the UK. They may be
sought on the basis of breach of con­trac­tual duties, of duties of con­fid­ence, fidu­ciary
duties of con­fid­ence or copy­right, or the need to pre­vent the com­mis­sion of OSA
offences.
Injunc­tions can be interim, per­man­ent or for a spe­cified period of time, and they can
be obtained at a hear­ing where the tar­get of the injunc­tion is rep­res­en­ted, or, through
an ex parte applic­a­tion, where the tar­get is absent.65 Applic­a­tions for injunc­tions to
pre­vent dis­clos­ures of security-related inform­a­tion have sev­eral clear advant­ages for
the Gov­ern­ment over crim­inal pro­sec­u­tion. These include:
Speed. An interim injunc­tion can be obtained via an ex parte applic­a­tion. The tar­get of
an injunc­tion need not be put on notice of the applic­a­tion, and may not even be aware
of the injunc­tion until it is gran­ted and served. Indeed, the gov­ern­ment need not even
61
Hansard, 21 Decem­ber 1988, 478
Hansard, 13 Feb­ru­ary 1989, 79
63
See §§5–6 below
64
Free­dom of Inform­a­tion: An Unre­cog­nised Right—The Right to know and the EU, An EFJ Brief­ing
Doc­u­ment <www​.ifj​.org/​r​e​g​i​o​n​s​/​e​u​r​o​p​e​/​e​f​j​/​e​n​/​e​u​s​u​r​v​e​y​.​h​tml>
65
An ex parte applic­a­tion is one that pro­ceeds in the absence of the respond­ent. The respond­ent, e.g., a
news­pa­per plan­ning to pub­lish a story about the Secur­ity Ser­vice, is given no notice of the applic­a­tion
for an injunc­tion and is not rep­res­en­ted at the hear­ing
62
attend a court to obtain the interim order, but can obtain “pyjama justice” at any time
of the day or night by ask­ing a judge to grant an injunc­tion over the telephone.66
Onus of proof. In order to obtain an interim injunc­tion, the gov­ern­ment needs to
estab­lish simply that it has an argu­able case in law; that dam­ages would be an
inad­equate rem­edy; and that the bal­ance of con­veni­ence tells in favour of grant­ing the
injunction.67 With the tra­di­tional judi­cial defer­ence to exec­ut­ive assess­ments of
national secur­ity, it is not as dif­fi­cult as it should be to per­suade a judge that the
bal­ance of con­veni­ence favours grant­ing the order.
Bur­den of proof. In mak­ing its applic­a­tion, the gov­ern­ment need simply estab­lish
those mat­ters referred to at (ii) to the civil stand­ard of proof; namely, on the bal­ance
of prob­ab­il­it­ies, rather than bey­ond all reas­on­able doubt.
Min­imal con­tro­versy. Invok­ing the Offi­cial Secrets Act against a per­son who has
caught the pub­lic ima­gin­a­tion with rev­el­a­tions of illeg­al­it­ies or incom­pet­ence in the
secur­ity and intel­li­gence com­munity will always gen­er­ate polit­ical con­tro­versy.
Injunc­tions will typ­ic­ally, although not always, be polit­ic­ally less sens­it­ive. Such
orders carry no imme­di­ate threat of impris­on­ment and are obtained via a tech­nical
pro­ced­ure with which few cit­izens are familiar.68 In addi­tion, since injunc­tions are
typ­ic­ally obtained prior to pub­lic­a­tion and, in the absence of full inform­a­tion, the
pub­lic would tend to assume that the injunc­tion serves a legit­im­ate need. Indeed, it is
pos­sible to obtain injunc­tions that pre­vent those to whom they apply from reveal­ing
even the fact that the injunc­tion exists, let alone the pre­cise terms of the order.69
Applic­a­tions for per­man­ent injunc­tions do not share all of these advant­ages. Indeed, it
is not uncom­mon for the gov­ern­ment to fail at the final applic­a­tion hav­ing suc­ceeded
at the interim stage. This was the res­ult in the Spycatcher saga.70 How­ever, the
interim injunc­tion is a crit­ical instru­ment. It can last for months or even years and is
suf­fi­cient to sup­press the inten­ded dis­clos­ure. Even­tual fail­ure at trial to trans­form
interim injunc­tions into per­man­ent injunc­tions need cause no great con­cern to the
gov­ern­ment if the dis­clos­ures in ques­tion are by that time old news, or if a suc­cess­ful
pro­sec­u­tion under the OSA has already occurred. Cur­rent pro­ced­ures for injunc­tion
applic­a­tions how­ever, will be tightened up con­sid­er­ably under the Human Rights Act
1989 (see Chapter 10).
66
Laurence Lust­garten, “Free­dom of Expres­sion, Dis­sent, and National Secur­ity in the United
King­dom,” in Sandra Coliver et al, Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and
Access to Inform­a­tion, Kluwer Law, 1999, p.467
67
Amer­ican Cyan­amid Co. v Ethicon Ltd [1975] AC 396. House of Lords
68
Laurence Lust­garten, “Free­dom of Expres­sion, Dis­sent, and National Secur­ity in the United
King­dom,” in Sandra Coliver et al, Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and
Access to Inform­a­tion, Kluwer Law, 1999, p.469
69
The injunc­tion gran­ted against “Mar­tin Ingrams” and The Sunday Times in Novem­ber 1999 “ini­tially
barred [the paper] from reveal­ing that it had been gagged or repeat­ing what had already been
pub­lished,” although this term of the order was relaxed on appeal. See Liam Clarke, “Gag­ging order
pro­tects army’s dirty tricks unit,” The Sunday Times, 28 Novem­ber 1999
70
Com­pare Attorney-General v Guard­ian News­pa­pers Ltd (No.1) [1987] 1 WLR 1248 House of Lords
(interim injunc­tion upheld des­pite pub­lic­a­tion of the book in Amer­ica) with Attorney-General v
Guard­ian News­pa­pers Ltd (No.2) [1988] 3 WLR 776 House of Lords (applic­a­tion for per­man­ent
injunc­tions refused because wide­spread pub­lic­a­tion had des­troyed the con­fid­en­tial nature of the
inform­a­tion dis­closed in the book)
Injunc­tions are a civil rem­edy. How­ever, they are backed up by the threat of crim­inal
pro­ceed­ings for con­tempt of court in the event that the terms of the injunc­tion are
breached. Pro­sec­u­tions under the OSA are also crim­inal, so the effect­ive out­come is
the same – to crim­in­al­ise the dis­sem­in­a­tion of inform­a­tion, regard­less of whether or
not this is in the over­all pub­lic interest. Indeed, it could be argued that injunc­tions
pose the greater threat to free­dom of expres­sion since tri­als for crim­inal con­tempt are
not con­duc­ted in the pres­ence of a jury. The fact that a judge alone presides at such
hear­ings is of par­tic­u­lar con­cern given the tend­ency of the judi­ciary to defer to the
exec­ut­ive in mat­ters of national secur­ity, as out­lined pre­vi­ously in this report.
The law of con­fid­ence
The usual grounds for injunc­tion applic­a­tions against cur­rent or ex-public employ­ees
is breach of laws, con­ven­tions and reg­u­la­tions regard­ing con­fid­ence. Mem­bers of the
secur­ity and intel­li­gence ser­vices are deemed to owe the state a lifelong duty of
con­fid­ence. 71 Former spies remain under an oblig­a­tion not to dis­close any secur­ity–
related inform­a­tion until the day they die. There are sev­eral sources of this oblig­a­tion
of con­fid­ence. In David Shayler?s case, the Attorney-General based his claim for an
injunc­tion on:
(i) an express con­trac­tual term requir­ing lifelong non-disclosure;
(ii) an implied con­trac­tual term of good faith which would be breached by any
    dis­clos­ure;
(iii) a fidu­ciary duty requir­ing lifelong non-disclosure;
(iv) a fidu­ciary duty of good faith which would be breached by any dis­clos­ure; and
(v) infringe­ment of Crown copy­right in doc­u­ments con­tain­ing con­fid­en­tial
   inform­a­tion.
These alleged terms and duties pur­port to cre­ate an endur­ing oblig­a­tion not to dis­close
any security-related mater­ial what­so­ever and are rein­forced by the blanket terms of s.
1(1) OSA 1989, relat­ing to primary dis­clos­ure by present and former mem­bers of the
secur­ity and intel­li­gence ser­vices (see sec­tion 3.1).
The law of con­fid­ence does require that the gov­ern­ment, in seek­ing to impose an
injunc­tion, estab­lish inter alia that there is a legit­im­ate interest to be pro­tec­ted.
Moreover, where an injunc­tion is sought on these grounds, the pub­lic interest in
know­ing the inform­a­tion must be con­sidered. How­ever, plead­ing “national secur­ity”
as that legit­im­ate interest in this sphere attracts sim­ilar defer­ence by the courts to that
observed dur­ing judi­cial review pro­cesses. Once that legit­im­ate interest has been
iden­ti­fied, it is rel­at­ively easy to show that the bal­ance of con­veni­ence favours an
injunc­tion, since at present the law will find defend­ants in breach of their oblig­a­tions
of con­fid­ence unless those defend­ants can show that dis­clos­ure served a greater pub­lic
interest. Where the applic­a­tion is made ex parte, the defend­ant can have no
oppor­tun­ity even to attempt to make such an argu­ment before the rem­edy is gran­ted.
71
Attorney-General v Guard­ian News­pa­pers Ltd (No.2) [1988] 3 WLR 776. House of Lords
In addi­tion to injunc­tions, a num­ber of rem­ed­ies may be applied for breach of
con­fid­ence and other civil oblig­a­tions relat­ing to the dis­clos­ure of inform­a­tion. These
include:
• Delivery-up. An order may be sought for the delivery-up of doc­u­ments on the
   basis that the Crown holds copy­right in those doc­u­ments.
• Dam­ages. The gov­ern­ment can argue for an award of dam­ages to com­pensate
   it for loss incurred as a res­ult of breach of con­tract, infringe­ment of copy­right
  and/or breach of fidu­ciary duties of con­fid­ence.
• Account of profits. An order requir­ing the defend­ant to account to the Crown
   for all profits made as a res­ult of dis­clos­ures may be avail­able on the basis of
  breach of fidu­ciary duty and breach of copy­right. Moreover, the House of
 Lords has recently decided that account of profits may be avail­able for breach
of con­tract where that breach con­sists in a dis­clos­ure by a former mem­ber of
the secur­ity and intel­li­gence ser­vices that con­tra­venes s. 1(1) OSA 1989.72
3.3 Recent pro­sec­u­tions of former Secur­ity and Intel­li­gence
officers
The OSA 1989 has been deployed fre­quently in the last few years to coun­ter­act
dis­clos­ures of security-related material.73
David Shayler
Per­haps the most well-known recent case under the Offi­cial Secrets Act is that of
David Shayler. An ex-MI5 officer who left the Intel­li­gence Ser­vice in 1997, he is
cur­rently facing three charges of breach of the OSA. In August 1997, the Mail on
Sunday was sup­plied with security-related inform­a­tion, includ­ing the alleg­a­tion that
the gov­ern­ment kept secret files on cer­tain Labour politi­cians. In July 1998, after he
had left the UK for France, David Shayler allegedly accused MI5 of fail­ing to react on
prior know­ledge of a ter­ror­ist attack on the Israeli Embassy, and alleged that MI6
officers had plot­ted to assas­sin­ate the Libyan leader, Col­onel Gad­dafi. A month later
he was arres­ted in France and held without charge for four months while the UK
Gov­ern­ment attemp­ted without suc­cess to extra­dite him. In July 2000, in an art­icle in
Punch magazine, he claimed that MI5, GCHQ and the Met­ro­pol­itan Police could have
pre­ven­ted IRA’s bomb­ing of Bish­opsgate, in Lon­don, but that they failed to do so. In
addi­tion to pla­cing an injunc­tion on Shayler in August 1997, which for­bade him from
reveal­ing any fur­ther inform­a­tion unless form­ally author­ised, the Gov­ern­ment issued
a state­ment of claim against him on 22 Decem­ber 1999 for breach­ing copy­right laws
on files held by MI5 and MI6, and breaches of con­fid­ence and con­tract.
The per­cep­tion of the need for a com­pre­hens­ive gag on serving and former spies is
not uni­ver­sally shared among mem­bers of the judi­ciary. Judge LJ stated that David
Shayler’s alleg­a­tion of MI6 par­ti­cip­a­tion in a plot to assas­sin­ate Col­onel Gad­dafi “is
either true or it is false, and unless there are com­pel­ling reas­ons of national secur­ity,
72
Attorney-General v Blake and Another, House of Lords 27 July 2000
The last OSA pro­sec­u­tion for a security-related dis­clos­ure occurred in Octo­ber 1998. See Richard
Norton-Taylor, “’Blun­der’ over naval vet­ting,” The Guard­ian, 19 Feb­ru­ary 2000
73
the pub­lic is entitled to know the facts.“74 Des­pite this enti­tle­ment, the com­bined
effect of s. 1(1) and s. 1(2) OSA 1989 is to expose Shayler to pro­sec­u­tion for mak­ing
those dis­clos­ures. Given the extraordin­ary scope of the OSA offences – and the s. 1(1)
offence in par­tic­u­lar – it is per­haps unsur­pris­ing that the French courts refused the
UK’s request for extra­di­tion of Shayler in 1998 on the basis that the charges were
“polit­ical” in nature.75 David Shayler returned to the UK vol­un­tar­ily in August 2000
to face charges of breach of the OSA, and intends to invoke the Human Rights Act in
his defence.
Richard Tom­lin­son
Richard Tom­lin­son is an ex-MI6 employee. In 1995 he was denied an indus­trial
tribunal at which to con­test his dis­missal on grounds that it would require dis­clos­ure
of inform­a­tion harm­ful to national secur­ity. He was sen­tenced to one year’s
impris­on­ment in 1997 for offences under the OSA for hav­ing sent an Aus­tralian
pub­lisher a syn­op­sis of a planned memoir-cum-exposé of his work. Released on
parole in April 1998 after nine months in prison, he was barred from talk­ing to
journ­al­ists and his pass­port was con­fis­cated. How­ever, Tom­lin­son left Bri­tain and
went to France where he made pub­lic alleg­a­tions that MI6 had been involved in
wrong­do­ing, one such claim being that there had been an MI6 plot to assas­sin­ate
Slobodan Milo­sevic, then Pres­id­ent of Yugoslavia.76
Tom­lin­son was re-arrested under an inter­na­tional war­rant on 31 July 1998 in France,
by officers from Scot­land Yard and mem­bers of the Dir­ec­tion de la Sur­veil­lance du
Ter­ritoire (DST), the French equi­val­ent of MI5. The war­rant was issued on the basis
of sus­pi­cions that Tom­lin­son was intend­ing to make dam­aging dis­clos­ures regard­ing
the secur­ity and intel­li­gence ser­vices. How­ever, the DST per­son­nel quickly
determ­ined that there was insuf­fi­cient evid­ence to jus­tify an extra­di­tion and, as in the
case of David Shayler, the UK Government’s attempt to extra­dite him failed and
Tom­lin­son was released after some 30 hours’ questioning.77 He then trav­elled to New
Zea­l­and in August 1998, where he was greeted with an injunc­tion obtained by the UK
Gov­ern­ment which pre­ven­ted him from mak­ing any security-related dis­clos­ures and
com­ple­men­ted the injunc­tion already in place in the UK.78 After the names of spies
were placed on the Inter­net on 12 May 1999 gov­ern­ment sus­pi­cion fell on Tom­lin­son
des­pite his denial, and he was expelled from Switzer­land where he was then liv­ing.
The Gov­ern­ment con­tin­ues to believe that he intends to pub­lish dam­aging rev­el­a­tions
and in May 2000, Italian police accom­pan­ied by Brit­ish Spe­cial Branch officers
raided his apart­ment in Italy and took away per­sonal papers and com­puter
equipment.79
74
R v Cent­ral Crim­inal Court, ex parte The Guard­ian, The Observer & Mar­tin Bright, Divi­sional Court
of Queen’s Bench Divi­sion 21 July 2000, draft judg­ment, p.2
75
“Offi­cials study Shayler rul­ing,” BBC News, 19 Novem­ber 1998,
«news​.bbc​.co​.uk/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​2​1​6​0​0​0​/​2​1​6​7​9​5​.​stm»
76
“The spy who was snubbed” BBC News 13 May 1999
«news6​.thdo​.bbc​.co​.uk/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​3​4​2​0​0​0​/​3​4​2​8​5​3​.​stm»
77
David Lep­pard and Nich­olas Ruther­ford, “The spies dragged in from the cold,” The Sunday Times, 9
August 1998
78
Michael Evans, “Cook gags former MI6 spy in New Zea­l­and,” The Times, 6 August 1998
79
Philip Wilan “Reneg­ade spy to give him­self up in return for tribunal hear­ing”, The Guard­ian, 3 June
2000
Nigel Wylde
Shayler and Tom­lin­son may be the most widely-known indi­vidu­als pur­sued via the
OSA in recent years, but they are not the only ones. Nigel Wylde, a former army
col­onel, has been arres­ted and charged with mak­ing dam­aging defence-related
dis­clos­ures under s. 2 of the OSA. This pro­sec­u­tion has been brought against Wylde
as the alleged source of inform­a­tion pub­lished in The Irish War by Tony Ger­aghty, a
book which includes details of the extent to which the pop­u­la­tion in North­ern Ire­land
is kept under com­pu­ter­ised sur­veil­lance by the state.80 Wylde was iden­ti­fied through
a search of Geraghty’s house under the OSA. No attempt was made to pre­vent
pub­lic­a­tion of Geraghty’s book. Indeed, the Min­istry of Defence has con­ceded that
the book was “embar­rass­ing rather than damaging.“81 In Octo­ber 2000, how­ever, the
MoD law­yers were repor­ted to be seek­ing to try Wylde in secret, since the MoD is
now claim­ing that the inform­a­tion in the book was dam­aging. 82 One obvi­ous reason
for these charges is the hope of exer­cising a deterrent effect on any fur­ther dis­clos­ures
of this kind.
“Mar­tin Ingrams”
Also facing pro­sec­u­tion under s.1 of the OSA is the pseud­onym­ous “Mar­tin Ingrams”,
former mem­ber of the Force Research Unit (FRU), a now dis­ban­ded “clandes­tine
cell” within army intel­li­gence which handled inform­ants within the IRA and loy­al­ist
para­mil­it­ary groups.83 “Ingrams” has made vari­ous dis­clos­ures to Liam Clarke of The
Sunday Times regard­ing the activ­it­ies of the FRU and other secur­ity forces oper­at­ing
in North­ern Ire­land. He has alleged that the secur­ity forces elec­ted not to con­fis­cate or
dis­able ter­ror­ist weapons which were sub­sequently used in sec­tarian killings in the
interests of pro­tect­ing their inform­ers within the para­mil­it­ary groups.84 Addi­tion­ally,
“Ingrams” has claimed that listen­ing devices used by the secur­ity forces to gather
inform­a­tion facil­it­ated two SAS ambushes that res­ul­ted in the deaths of eleven IRA
members.85
The most notori­ous of “Ingrams’s” dis­clos­ures con­cerns attempts by the FRU to
dis­rupt an inquiry con­duc­ted by John Stevens (now Com­mis­sioner of the
Met­ro­pol­itan Police) into alleged links between the police and secur­ity forces and
loy­al­ist murders. Accord­ing to “Ingrams”, these efforts reached their peak with an
“illegal burgle-and-burn assault“86 on the offices used by the Stevens Inquiry team.
The fire was inten­ded to sab­ot­age the inquiry in order to pre­vent or at least delay the
arrest for murder of a FRU informer named Brian Nel­son. The attempt failed because
Stevens had for­tu­it­ously kept back-up cop­ies of all files else­where. Nel­son was
con­victed.
80
“A point­less pro­sec­u­tion,” The Guard­ian, 26 Feb­ru­ary 2000
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guard­ian, 23
Decem­ber 1999
82
Richard Norton-Taylor, “MoD wants former officer tried secretly over book rev­el­a­tions”, The
Guard­ian, 23 Octo­ber 2000
83
Richard Norton-Taylor, “Secrets and Spies,” The Guard­ian, 18 May 2000
84
Liam Clarke, “Agents ?stole papers? to nail whis­tleblower,” The Sunday Times, 2 April 2000
85
Liam Clarke, “Listen­ing devices take the place of agents,” The Sunday Times, 21 Novem­ber 1999
86
Liam Clarke, “Secret army unit burnt police files,” The Sunday Times, 21 Novem­ber 1999
81
Cer­tain of “Ingrams’s” claims have been described as “abso­lutely on the knuckle” by
one RUC officer87 and his alleg­a­tions regard­ing inter­fer­ence with the Stevens Inquiry
are being taken ser­i­ously by police.88 The issue of con­cern here is not the leg­al­ity or
appro­pri­ate­ness of FRU actions but rather the clear pub­lic interest in know­ing that
such decisions were made and in hav­ing access to inform­a­tion regard­ing the con­duct
of secur­ity oper­a­tions in those cir­cum­stances. Provided that no cur­rent genu­ine
national secur­ity interests are threatened and no lives put at risk, it is import­ant that
such mat­ters be brought into the pub­lic domain.
The OSA does not allow “Ingrams” to argue that the pub­lic interest jus­ti­fied his
dis­clos­ures. The offi­cial response to those dis­clos­ures has not been to invest­ig­ate his
alleg­a­tions of illegal and dan­ger­ous acts by the FRU, but rather to make efforts to
identify and pro­sec­ute him for breach of the OSA. The hunt for him led to at least one
other arrest under the OSA, that of a former sol­dier accused of being “Ingrams”. On 1
Feb­ru­ary 2000, prior to his arrest, the individual’s house was burgled. Amongst the
items stolen was the draft of a memoir.89 Extraordin­ar­ily, this manu­script “turned up
a few days later in the hands of the pro­sec­u­tion at a court hear­ing” for an injunc­tion
pre­vent­ing pub­lic­a­tion of the work90 and was used to con­front the alleged “Ingrams”
in questioning.91 The MOD claimed that these papers had been received in a
mys­ter­i­ous let­ter drop. If one has doubts about the jus­ti­fi­ab­il­ity of the OSA offences
them­selves, this series of events gives inde­pend­ent cause for con­cern regard­ing how
alleged breaches of the OSA are invest­ig­ated.
3.4 Con­clud­ing obser­va­tions
The Government’s pur­suit of the above cases high­lights three tend­en­cies, act­ive
crim­in­al­isa­tion of whis­tleblowers; the use of far-reaching injunc­tions; and increas­ing
invent­ive­ness in the grounds on which injunc­tions are sought.
There can be no doubt that there is a power­ful pub­lic interest in at least some of the
dis­clos­ures made by Shayler, Tom­lin­son, Wylde and “Ingrams”. Yet the OSA makes
crim­in­als of those “insiders?” who would expose illegal and/or dan­ger­ous beha­viour
by the Secur­ity and Intel­li­gence Ser­vices. There are at present few, if any, means by
which wrong­do­ing within these ser­vices can be exposed, and the over­all pub­lic
interest prop­erly assessed. In par­tic­u­lar, there is no inde­pend­ent means for bal­an­cing
the pub­lic interest in dis­clos­ure against any genu­ine national secur­ity con­sid­er­a­tions.
The exper­i­ences of Shayler, Tom­lin­son, Wylde and “Ingrams” high­light the extens­ive
use of the gen­er­ally pre­ferred means of gag­ging state ser­vants, namely the civil
injunc­tion. Exper­i­ence sug­gests that when the Gov­ern­ment claims “national secur­ity”
as the legit­im­ate interest to be pro­tec­ted in applic­a­tions for far-reaching injunc­tions,
the desired interim order will be obtained from the courts without great dif­fi­culty. The
Gov­ern­ment has no hes­it­a­tion in try­ing to extend the scope of injunc­tions as far as
pos­sible. For example, in respect of “Mar­tin Ingrams” and The Sunday Times, the
gov­ern­ment reques­ted and ini­tially received an order that pre­ven­ted repe­ti­tion of
87
Henry McDon­ald, “Police in hunt for Brit­ish agent,” The Observer (Irish edi­tion), 21 May 2000
Liam Clarke, “Met chief blames arson on army,” The Sunday Times, 19 March 2000
89
Liam Clarke, “Agents ‘stole papers’ to nail whis­tleblower,” The Sunday Times, 2 April 2000
90
Richard Norton-Taylor, “Secrets and Spies,” The Guard­ian, 18 May 2000
91
Liam Clarke, “Agents ‘stole papers’ to nail whis­tleblower,” The Sunday Times, 2 April 2000
88
pre­vi­ously pub­lished alleg­a­tions and even men­tion of the fact that the injunc­tion
existed.92 These con­di­tions were removed on appeal.
In an appar­ent attempt to counter adverse pub­li­city, the UK Gov­ern­ment has denied
that a wide interim injunc­tion relat­ing to David Shayler, in place since Septem­ber
1997, is a “blanket” injunc­tion, since it allows for the repe­ti­tion of inform­a­tion
already in the pub­lic domain and for new dis­clos­ures “if formal author­ity is obtained
beforehand.“93 In seek­ing this injunc­tion, the gov­ern­ment relied upon a wide range of
claims, includ­ing the tri­um­vir­ate of claims described above, as well as a claim for
breach of Crown copyright.94
92
Richard Norton-Taylor, “Softly, softly,” The Guard­ian, 10 April 2000
Lord Wil­li­ams of Mostyn, let­ter to The Guard­ian, 6 August 1998
94
This can also con­sti­tute a crim­inal offence. See s. 107 Copy­right Designs and Pat­ents Act 1988
93
4 Restrict­ing Sec­ond­ary Dis­clos­ure — Gag­ging the
Media and oth­ers
Demo­cracy requires cit­izens to be informed so that they can mean­ing­fully exer­cise
their right to par­ti­cip­ate in the demo­cratic pro­cess. The media play an essen­tial role in
facil­it­at­ing the pro­cess of provid­ing inform­a­tion to cit­izens. This is par­tic­u­larly
import­ant in regard to inform­a­tion about offi­cial wrong­do­ing. Exper­i­ence shows that
when wrong­do­ing does take place, invest­ig­at­ive journ­al­ists are among those best
placed to expose it. Indeed, because of the great pub­lic interest in the con­duct of
gov­ern­ment, includ­ing cor­rup­tion and other kinds of mis­use of pub­lic office, the
European Court of Human Rights has fre­quently noted the import­ant ‘watch­dog’ role
of the media.
How­ever, as Chapters 4 and 5 show, for­mid­able bar­ri­ers are placed in the way of
invest­ig­at­ive journ­al­ists in the form of laws pre­vent­ing sec­ond­ary dis­clos­ure of
inform­a­tion relat­ing to national secur­ity, and the rel­at­ive ease with which the
Gov­ern­ment is able to pry con­fid­en­tial sources and inform­a­tion from journ­al­ists. With
regard to secur­ity inform­a­tion, the law in rela­tion to the media, allows the gov­ern­ment
to employ a wide range of crim­inal and civil law to pre­vent dis­clos­ures. In so far as
pub­lic­a­tion is fre­quently the primary means by which the pub­lic are aler­ted to such
dis­clos­ures, mech­an­isms invoked against the press are the most effect­ive way for the
gov­ern­ment to pre­vent inform­a­tion from reach­ing the pub­lic.
4.1 Sec­ond­ary dis­clos­ure under s. 5 OSA
The main legal mech­an­ism for pre­vent­ing sec­ond­ary dis­clos­ure is con­tained in s. 5 of
the OSA, which makes it a crim­inal offence for any­one to dis­sem­in­ate inform­a­tion
deemed to be dam­aging to national secur­ity. The prin­cipal tar­get of this pro­vi­sion has
always been the media. Although there is a harm test, there is no pub­lic interest
defence.
Under s. 5, any­one will com­mit an offence if:
(i) they receive inform­a­tion from an “insider” by way of a primary disclosure;95
(ii) they make a sec­ond­ary dis­clos­ure without obtain­ing law­ful author­ity know­ing
    (or hav­ing reason to believe) that the primary dis­clos­ure was unlaw­ful under
   the OSA;96
(iii) they know or have reason to believe that their sec­ond­ary dis­clos­ure would be
     damaging;97 and
(iv) their sec­ond­ary dis­clos­ure is damaging.98
It does not mat­ter whether the tar­get of this pro­vi­sion – nor­mally a journ­al­ist or media
out­let – received the inform­a­tion dir­ectly or indir­ectly from the ori­ginal (insider)
95
S. 5(1)(a)(i) OSA 1989
S. 5(2) OSA 1989
97
S. 5(3)(b) OSA 1989
98
S. 5(3)(a) OSA 1989
96
source. On the other hand, the journ­al­ist must have at least reas­on­able cause to believe
both that the dis­clos­ure was unlaw­ful and that it would be dam­aging to national
secur­ity. This may be harder for the pro­sec­u­tion to estab­lish in the case of “out­siders”
than for civil ser­vants and spies, since the lat­ter may be gen­er­ally assumed to be more
famil­iar with these mat­ters. Moreover, in respect of this offence, it is for the
pro­sec­u­tion to prove bey­ond reas­on­able doubt the pres­ence of all ele­ments of the
offence. Indeed, hav­ing the requis­ite know­ledge is a key ele­ment of the s. 5 offence.
While it is more dif­fi­cult to pro­sec­ute a journ­al­ist under the OSA than a civil ser­vant
or mem­ber of the secur­ity and intel­li­gence ser­vices, the lack of any pub­lic interest
defence remains a not­able and dis­turb­ing fea­ture of the legis­la­tion.
4.2 The Defence Advis­ory notice sys­tem (DA-Notice sys­tem)
In addi­tion to the media’s import­ant role as a watch­dog of gov­ern­ment on behalf of
soci­ety, they also have a respons­ib­il­ity, as do gov­ern­ment employ­ees and the gen­eral
pub­lic, to exer­cise their right to free­dom of expres­sion so that genu­ine national
secur­ity interests are pro­tec­ted. The DA-Notice sys­tem, formerly the D-Notice
sys­tem, was set up to pre­vent dis­clos­ures by journ­al­ists unsure or unaware of whether
a par­tic­u­lar dis­clos­ure would be regarded as dam­aging to national secur­ity. How­ever,
Liberty and ARTICLE 19 are of the view that this sys­tem rep­res­ents a ser­i­ously
flawed attempt to nego­ti­ate the bound­ar­ies between press pub­lic­a­tion of secur­ity
inform­a­tion and free­dom of expres­sion through an “informal?” sys­tem.
The Defence, Press and Broad­cast­ing Advis­ory Com­mit­tee was con­ceived as a
vol­un­tary arrange­ment between gov­ern­ment and the press with the aim of pre­vent­ing
inad­vert­ent breaches of s. 5 OSA 1989.99 Chaired by the Per­man­ent Under-Secretary
of State for Defence, it has sev­en­teen mem­bers, thir­teen of which are nom­in­ated by
media organ­isa­tions. The Com­mit­tee, estab­lished in 1912, issues gen­eral guid­ance
notices and spe­cific “Private and Con­fid­en­tial” notices, on cat­egor­ies of inform­a­tion
where secrecy id deemed to be essen­tial to pro­tect national secur­ity. Edit­ors or
journ­al­ists can, if they wish, con­sult the Sec­ret­ary of the Com­mit­tee, cur­rently Rear–
Admiral Nick Wilkin­son, to find out in advance whether any details con­tained in a
planned story fall within the scope of the five stand­ing DA-Notices which cover
dif­fer­ent areas of pos­sible threat to national secur­ity. The Secretary’s role is offi­cially
described as that of a con­fid­en­tial medi­ator between the journ­al­ist wish­ing to pub­lish
and the gov­ern­ment depart­ment or secur­ity ser­vice con­cerned to pro­tect national
security.100 Under the Committee’s rules, any offi­cials whom the Sec­ret­ary con­sults
about a par­tic­u­lar story must be able to con­vince the Sec­ret­ary of the need for secrecy
and can­not ini­ti­ate police action or legal pro­ceed­ings unless they have the requis­ite
inform­a­tion from another source.101
The DA-Notice sys­tem is unique – no other coun­try in the world main­tains such an
arrangement.102 Some edit­ors are con­vinced that the sys­tem is out­dated, a relic of the
Cold War,103 although oth­ers con­cede the value of an “advis­ory pipeline” of this
99
See §4.2 and §6 below
«www​.dnotice​.org​.uk/​f​a​q​s​.​htm»
101
Ibid
102
Ibid
103
“What is remark­able about [DA-Notices] is that edit­ors still obey them.” Roy Greenslade, quoted in
The Inde­pend­ent, 18 May 1999
100
nature.104 Regard­less of ones’ pos­i­tion on the value of the Committee’s advice, the
DA-Notice sys­tem suf­fers from at least two key flaws. First, exist­ing as it does under
the shadow of the dra­conian pro­vi­sions of s. 5 of the OSA, it is hardly vol­un­tary in
any true sense of that word. Absent the threat of OSA pro­sec­u­tions and other forms of
legal har­ass­ment, it may be assumed that few journ­al­ists would bother with the DA
Notice sys­tem.
Second, “com­pli­ance [with the DA-Notice sys­tem] does not relieve the editor of
respons­ib­il­it­ies under the Offi­cial Secrets Act.“105 Thus, the fact that the Sec­ret­ary
has raised no objec­tion to a planned story does not neces­sar­ily mean that the applic­ant
editor or journ­al­ist is immune from pro­sec­u­tion in respect of any dis­clos­ures they then
go on to pub­lish. Given this, the claim by the Sec­ret­ary that the DA-Notice sys­tem
oper­ates on a more strin­gent and nar­rower under­stand­ing of “national secur­ity” than
the OSA and other statutes106 is of scant com­fort. The cur­rent Sec­ret­ary main­tains that
“nego­ti­ation by me between the media and the offi­cials must be prefer­able to
lit­ig­a­tion, espe­cially as lit­ig­a­tion tends to be slow and expens­ive and to end in blanket
sup­pres­sion of a story or source, rather than removal of just a few details.“107 Many
in the media world, on the other hand, feel that one does not neces­sar­ily pre­clude the
other.
Of at least equal con­cern is the grow­ing per­cep­tion amongst journ­al­ists that the DA
Notice sys­tem is in fact being used to facil­it­ate cen­sor­ship of the press by the
gov­ern­ment, des­pite the Secretary’s insist­ence that it is “inde­pend­ent and media–
dominated.“108 Journ­al­ists have expressed the fear that seek­ing “con­fid­en­tial”
medi­ation will merely invite early receipt of an injunc­tion and/or invest­ig­a­tion for
breach of s. 5 OSA, and this is not helped by the tra­di­tion of appoint­ing an ex-Armed
Ser­vices per­son to the post of Sec­ret­ary. The Sec­ret­ary offers guid­ance in con­sulta­tion
with mem­bers of the affected ser­vices, and this neces­sar­ily gives them advance
warn­ing that a story is about to emerge. Even if the Sec­ret­ary does not dis­close the
iden­tity of the party, it is not dif­fi­cult for pro­fes­sional intel­li­gence officers to dis­cover
the rel­ev­ant inform­a­tion in short order. The exper­i­ence of Tony Ger­aghty has greatly
rein­forced this sus­pi­cion (see box below) although the Sec­ret­ary of the DA-Notice
Com­mit­tee “denied any col­lu­sion between him­self and the MoD police”.109
Tony Ger­aghty
Tony Ger­aghty was accused of dis­clos­ing inform­a­tion regard­ing the extens­ive use of
com­pu­ter­ised sur­veil­lance by intel­li­gence agen­cies in North­ern Ire­land in his book,
The Irish War. Prior to pub­lic­a­tion of his book, Rear Admiral David Pul­ver­taft
con­tac­ted Geraghty’s pub­lish­ers, invit­ing the author to sub­mit the manu­script for
eval­u­ation. Ger­aghty declined, believ­ing that the only reason for the request was to
facil­it­ate the iden­ti­fic­a­tion of his sources within the SAS.110 Ger­aghty has repor­ted
that the Sec­ret­ary respon­ded to his refusal by express­ing his hope that Ger­aghty
104
Cal McCrys­tal, “Secret stor­ies,” The Guard­ian, 5 July 1999
“Gen­eral Intro­duc­tion to DA-Notices”, «www​.dnotice​.org​.uk/​n​o​t​i​c​e​s​.​htm».
106
This claim was made by Rear Admiral Nick Wilkin­son in the course of a speech to the Soci­ety of
Edit­ors on 3 May 2000, See “Media Art­icles and Speeches,” «www​.dnotice​.org​.uk/​a​r​t​i​c​l​e​s​.​htm»
107
“Media Art­icles and Speeches,” «www​.dnotice​.org​.uk/​a​r​t​i​c​l​e​s​.​htm»
108
Rear Admiral Nick Wilkin­son, “Open Secrets,” let­ter to The Observer, 30 July 2000
109
John Dav­ison, The Inde­pend­ent, 18 May 1999
110
Stephen Glover, “Where’s free­dom of inform­a­tion if this journ­al­ist is charged next Thursday?” The
Spec­tator, 6 March 1999
105
“would not come to regret” his non-co-operation.111 No attempt was made to pre­vent
pub­lic­a­tion of the book; but Geraghty’s house was raided by Min­istry of Defence
police on 3 Decem­ber 1998 and the author was sub­sequently charged with the
sec­ond­ary dis­clos­ure offence under s. 5 OSA 1989.112
4.3 Recent pro­sec­u­tions brought under s. 5 OSA
Tony Ger­aghty
As out­lined above, former Sunday Times defence cor­res­pond­ent Tony Ger­aghty was
arres­ted some three months after pub­lic­a­tion of his book, The Irish War. No
injunc­tion was sought at the time of pub­lic­a­tion, per­haps because, as the Min­istry of
Defence has sub­sequently con­ceded, its rev­el­a­tions regard­ing the extens­ive
sur­veil­lance con­duc­ted on the pop­u­la­tion of North­ern Ire­land were “embar­rass­ing
rather than damaging.“113 Nev­er­the­less, the pub­lish­ers came under pres­sure from
Min­istry of Defence police to refrain from issu­ing a paper­back ver­sion of the work.114
Ger­aghty was arres­ted after a dawn raid of his home on 3 Decem­ber 1998 for breach
of s. 5 OSA 1989.115 The charge was dropped in Decem­ber 1999 on the advice of the
Attor­ney Gen­eral. Sig­ni­fic­antly, this change of heart occurred shortly before the case
would have reached com­mit­tal pro­ceed­ings, that is, the first point at which the
pro­sec­u­tion case would have been sub­jec­ted to judi­cial exam­in­a­tion. Ger­aghty is not
alone in being “sur­prised that they [the mil­it­ary police] believe that they have law­ful
jur­is­dic­tion over a civil­ian author owing no legal duty to the MoD.“116 The charges
against Nigel Wylde, Geraghty’s alleged source, are still being pur­sued.
Liam Clarke
In 1999, the North­ern Ire­land Editor of The Sunday Times was threatened with
pro­sec­u­tion for breach of s. 5 of the OSA.117 Clarke pub­lished a series of art­icles
detail­ing dis­clos­ures made by agents, includ­ing “Mar­tin Ingrams” (see 3.3), of the
activ­it­ies of the under­cover Force Research Unit (FRU) in North­ern Ire­land. The
art­icles con­tained ser­i­ous alleg­a­tions of wrong­do­ing by the FRU, includ­ing claims
that they com­mit­ted arson to des­troy evid­ence in an offi­cial invest­ig­a­tion and spied on
and tapped the phones of oppos­i­tion Mem­bers of Par­lia­ment. Fol­low­ing a com­plaint
by the UK Min­istry of Defence, Clarke was detained by the Met­ro­pol­itan Police for
ques­tion­ing regard­ing breach of s 5 of the OSA. It remains unclear whether he will be
charged.
111
Cal Mac­Crys­tal, “Spy­ing secrets spark ‘abuse’ of the D-notice”, Even­ing Stand­ard, 12 March 1999
Stephen Glover, “Where’s free­dom of inform­a­tion if this journ­al­ist is charged next Thursday?” The
Spec­tator, 6 March 1999
113
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guard­ian, 23
Decem­ber 1999
114
Richard Palmer, “Anger at book ban on Ulster spy secrets,” The Express, 26 July 1999
115
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guard­ian, 23
Decem­ber 1999
116
Tony Ger­aghty, “I am cen­sored too,” let­ter to The Sunday Tele­graph, 7 March 1999
117
Let­ter from Detect­ive Inspector Alan Learner to Liam Clarke, 5 May 2000
112
Julie-Ann Dav­ies
Per­haps the most aston­ish­ing case of the use of s. 5 OSA is that of Julie-Ann Dav­ies,
a mature stu­dent and volun­teer researcher for the satir­ical pro­gramme, the Mark
Thomas Com­edy Product. She was arres­ted and ques­tioned for pos­sible breach of s. 5
OSA on the basis that she had been in com­mu­nic­a­tion with David Shayler. Yet the
OSA only pro­hib­its dis­clos­ures and it is unclear which dis­clos­ures she her­self was
alleged to have made. Her uni­ver­sity – “an insti­tu­tion com­mit­ted to free­dom of
expres­sion” – was equally per­turbed by the devel­op­ment. The Vice Chan­cel­lor stated
that King­ston Uni­ver­sity “would be par­tic­u­larly con­cerned if it turned out that a
dis­cred­ited piece of legis­la­tion … was being used to sup­press journ­al­istic
invest­ig­a­tion and the public’s right to know about alleged abuse by the secur­ity
services.“118 Although it has since been decided that Julie-Ann Dav­ies should not be
pro­sec­uted, her arrest gives cause for con­cern, since it shows a determ­in­a­tion to
extend the impact of chilling effects bey­ond pro­spect­ive whis­tleblowers and the
media, to encom­pass any­one inclined to assist – or even to cor­res­pond with – a
whis­tleblower.
4.4 Use of injunc­tions to pre­vent pub­lic­a­tion
As well as being used to gag whis­tleblowers, injunc­tions are also brought heav­ily to
bear on press attempts to pub­lish “dam­aging inform­a­tion.” Indeed, the government’s
pre­ferred means of gag­ging the press still seems to be prior restraint via an injunc­tion,
not­with­stand­ing the recent increase in crim­inal pro­ceed­ings under s. 5 OSA. Once an
injunc­tion is gran­ted, it can be served not only on the defend­ant, but also on any
media out­let likely to dis­close the inform­a­tion in ques­tion. Injunc­tions can also be
served dir­ectly on journ­al­ists and their employ­ers.
Sig­ni­fic­antly for the media, injunc­tions may be imposed for breach of con­fid­ence
even in the absence of any con­trac­tual rela­tion­ship. A news­pa­per or journ­al­ist that
receives security-related inform­a­tion as the res­ult of a primary dis­clos­ure may be held
to owe a duty of con­fid­ence to the state in equity where they know that the primary
dis­clos­ure by the whis­tleblower occurred in breach of confidence.119 As such, the
gov­ern­ment can seek an injunc­tion against the media dir­ectly, even if not (yet) able to
identify the primary source of the inform­a­tion con­cerned and inde­pend­ently of any
legal action against the source.
Injunc­tions abound at present in rela­tion to the pub­lic­a­tion of security-related
inform­a­tion by “Mar­tin Ingrams”, Shayler and Tom­lin­son.
The Sunday Times received an injunc­tion in respect of rev­el­a­tions by “Mar­tin
Ingrams” relat­ing to the Force Research Unit. News­pa­pers have also been banned
from pub­lish­ing any dis­clos­ure he makes about the 1973 “Bloody Sunday” killings of
civil­ians by UK secur­ity forces in North­ern Ire­land. Ini­tially, the injunc­tion on
inform­a­tion about the FRU not only covered facts already pub­lished, but also
pre­ven­ted any dis­clos­ure of the exist­ence of the injunc­tion. These con­di­tions were
118
Vice Chan­cel­lor Peter Scott, quoted in “Stu­dent arres­ted over Shayler link,” The Guard­ian, 7 March
2000
119
Attorney-General v Guard­ian News­pa­pers Ltd (No.2) [1988] 3 WLR 776, House of Lords
relaxed on appeal, but the pre­cise terms of the injunc­tion still may not be disclosed.120
The press has thus been pre­ven­ted from dis­clos­ing any fur­ther inform­a­tion relat­ing to
alleg­a­tions of illegal and dan­ger­ous activ­it­ies, includ­ing inter­fer­ence with an
inde­pend­ent police inquiry. 121 It appears that the interests of national secur­ity demand
that a will­ing­ness to endanger life and impede the course of justice by those in the
employ of the army’s intel­li­gence units be kept secret. The Min­istry of Defence
appar­ently “can­not identify any ‘pub­lic interest which demands pub­lic­a­tion of such
material’”.122
Injunc­tions also exist to pre­vent any pub­lic­a­tion of fur­ther alleg­a­tions from Shayler.
On 6 Octo­ber 2000 James Steen, editor of Punch magazine, was found guilty of
con­tempt of court in rela­tion to pub­lic­a­tion of an art­icle writ­ten by David Shayler,
even though the judge found no evid­ence to believe that it had harmed national
security.123 The art­icle was found to be in breach of the 1997 injunc­tion “which bans
pub­lic­a­tion of any inform­a­tion David Shayler acquired by vir­tue of employ­ment for
the secur­ity service”,124 although gov­ern­ment law­yers admit­ted that it had been
broken many times before. In accord­ance with the magazine’s prac­tice, Punch
sub­mit­ted Shayler’s art­icle to the Gov­ern­ment Law Officers before pub­lic­a­tion for
con­firm­a­tion that it would not infringe the injunc­tion. When the Treas­ury Soli­citor
was unable to deliver a final ver­dict on the art­icle in good time, Steen decided to
pub­lish an abridged ver­sion of the ori­ginal. He is cur­rently appeal­ing the guilty
ver­dict.
4.5 Con­clu­sion
Des­pite the unac­cept­ab­il­ity of attempt­ing to chill free expres­sion by crim­in­al­ising
journ­al­ists car­ry­ing out their job of invest­ig­at­ing alleged gov­ern­ment wrong­do­ings,
the Labour Gov­ern­ment cur­rently in power has dis­played an increased will­ing­ness to
deploy s. 5 OSA, and has sought to exploit addi­tional rem­ed­ies against those who
have made sec­ond­ary dis­clos­ures in mat­ters touch­ing on national secur­ity. ARTICLE
19 and Liberty believe that the UK Gov­ern­ment makes excess­ive use of both civil and
crim­inal pro­ced­ures to pre­vent embar­rass­ing inform­a­tion from reach­ing the pub­lic at
large and that the pen­al­ties it seeks to impose have gen­er­ally been dis­pro­por­tion­ate to
actual dam­age caused when bal­anced against the pub­lic interest in know­ing the
inform­a­tion.
120
Liam Clarke, “Gag­ging order pro­tects army’s dirty tricks unit,” The Sunday Times, 28 Novem­ber
1999
121
See 4.4 below for fur­ther detail on “Ingrams’s” dis­clos­ures
122
Liam Clarke, “Under­cover arson­ists pro­moted by army,” The Sunday Times, 16 April 2000
123
Richard Norton Tayler, “Punch ruled guilty of con­tempt of court” The Guard­ian, 7 Octo­ber 2000
124
Spokes­man for the Attorney-General’s office, quoted in Paul Lash­mar, “Editor of Punch to face
court for Shayler con­tempt,” The Inde­pend­ent, 28 July 2000
5 Pro­tec­tion of sources
Journ­al­ists’ abil­ity to expose wrong­do­ing, and hence to exer­cise their proper func­tion
in a demo­cracy, is often heav­ily depend­ent on their abil­ity to receive and hold
inform­a­tion in con­fid­ence, and their capa­city to make cred­ible prom­ises of con­fid­ence
to their sources of inform­a­tion. Fur­ther, in many cases, pro­tec­tion of con­fid­en­tial
sources is essen­tial not only to main­tain the free flow of inform­a­tion to journ­al­ists,
and from them to the pub­lic, but also for the per­sonal secur­ity of journ­al­ists.
Under the cur­rent legal régime in the UK, a pub­lic interest defence holds no weight
and insiders risk crim­inal pro­sec­u­tion if they decide to blow the whistle on illeg­al­ity
and incom­pet­ence in mat­ters touch­ing on national secur­ity, regard­less of how
peri­pheral or import­ant they may be. Their will­ing­ness to do so thus often depends
dir­ectly on assur­ances that their iden­tit­ies will be con­cealed. If journ­al­ists can be
com­pelled to divulge their sources – or to grant access to doc­u­ments that could enable
the source to be traced and iden­ti­fied – their prom­ises of con­fid­ence will ring hol­low.
Across the world, journ­al­ists have too fre­quently and too read­ily been required to
divulge their sources, and there is a widely felt con­sensus that the UK courts have
sys­tem­at­ic­ally failed to accord due weight to the import­ance of per­mit­ting journ­al­ists
to keep their sources con­fid­en­tial. It may be true that “[a]ny rule of pro­fes­sional
con­duct enjoin­ing a journ­al­ist to pro­tect his con­fid­en­tial sources is sub­ject to whatever
excep­tion is neces­sary to enable the journ­al­ist to obey the orders of a court of
com­pet­ent jurisdiction.“125 How­ever, this can be regarded as an accept­able state­ment
of prin­ciple only if the court of com­pet­ent jur­is­dic­tion is required to recog­nise and
give spe­cial weight to the pub­lic interest in journ­al­ists’ abil­ity and interest in keep­ing
their sources con­fid­en­tial.
5.1 Inter­na­tional stand­ards on pro­tec­tion of journ­al­ists’
sources
The UN, OSCE and OAS rap­por­teurs on free­dom of expres­sion asser­ted in Feb­ru­ary
2000 that: “Journ­al­ists should never be required to reveal their sources unless this is
neces­sary for a crim­inal invest­ig­a­tion or the defence of a per­son accused of a crim­inal
offence and they are ordered to do so by a court, after a full oppor­tun­ity to present
their case.“126
The European Court of Human Rights has emphas­ised the fact that orders for source
dis­clos­ure have the poten­tial to pro­duce a sub­stan­tial chilling effect, sig­ni­fic­antly
impair­ing the capa­city of the press to act as pub­lic watch­dog. One import­ant rul­ing in
the land­mark judg­ment of Good­win v UK,127 was that, “[l]imitations on the
con­fid­en­ti­al­ity of journ­al­istic sources called for the most care­ful scru­tiny by the
125
X Ltd v Mor­gan Grampian (Pub­lish­ers) Ltd and oth­ers [1991] 1 AC 1, House of Lords per Lord
Bridge
126
State­ment regard­ing key issues and chal­lenges to free­dom of expres­sion, agreed by: San­ti­ago
Can­ton, OAS Spe­cial Rap­por­teur on Free­dom of Expres­sion. Freimut Duve, OSCE Rep­res­ent­at­ive on
Free­dom of the Media and Abid Hus­sain, UN Spe­cial Rap­por­teur on Free­dom of Opin­ion and
Expres­sion, ARTICLE 19, Feb­ru­ary 2000
127
Good­win v UK, 27 March 1996, 22 EHRR 123
Court.“128 This requires courts to take their own watch­dog respons­ib­il­it­ies ser­i­ously
and sub­ject any applic­a­tions for source dis­clos­ure to sub­stant­ive ana­lysis. As the
European Court put it:
“Pro­tec­tion of journ­al­istic sources is one of the basic con­di­tions for press free­dom …
Without such pro­tec­tion, sources may be deterred from assist­ing the press in
inform­ing the pub­lic on mat­ters of pub­lic interest. As a res­ult, the vital pub­lic
watch­dog role of the press may be under­mined and the abil­ity of the press to provide
accur­ate and reli­able inform­a­tion may be adversely affected. Hav­ing regard to the
import­ance of the pro­tec­tion of journ­al­istic sources for press free­dom in a demo­cratic
soci­ety and the poten­tially chilling effect an order of source dis­clos­ure has on the
exer­cise of that free­dom, such a meas­ure can­not be com­pat­ible with Art­icle 10 of the
Con­ven­tion unless it is jus­ti­fied by an over­rid­ing require­ment in the pub­lic
interest.”129
Most estab­lished demo­cra­cies – includ­ing, for example, Aus­tria, Den­mark, Fin­land,
France, Ger­many, Italy and Sweden – provide expli­cit pro­tec­tion for journ­al­ists’
con­fid­en­ti­al­ity of sources. It is the view of Liberty and ARTICLE 19 that journ­al­ists
should not be com­pelled to dis­close their sources, except under “excep­tional
cir­cum­stances”, where “vital interests” are at stake.130
5.2 Legal mech­an­isms for com­pel­ling source dis­clos­ure in
the UK
There are both crim­inal and civil mech­an­isms avail­able to the gov­ern­ment to use in
pur­suit of journ­al­ists either for dir­ect dis­clos­ure of their sources, or else for access to
notes and papers which may enable the inform­ant to be iden­ti­fied and traced.
It has been argued that s.10 Con­tempt of Court Act 1981 provides some degree of
pro­tec­tion to journ­al­ists by hold­ing that:
No court may require a per­son to dis­close … the source of inform­a­tion con­tained in a
pub­lic­a­tion for which he is respons­ible, unless it be estab­lished to the sat­is­fac­tion of
the court that dis­clos­ure is neces­sary in the interests of justice or national secur­ity or
for the pre­ven­tion of dis­order or crime
This sec­tion has been described as requir­ing the judge to engage in a bal­an­cing
exer­cise, weigh­ing the import­ance of non-disclosure and the need for dis­clos­ure in the
interests of, for example, national security.131 How­ever it fails to give due weight to
the pre­sump­tion in favour of non-disclosure. S. 10 states that the court must be
per­suaded that an order for source dis­clos­ure is neces­sary in the interests of, for
example, national secur­ity.
It would appear that the applic­a­tion of s. 10 by judi­cial author­it­ies within the UK falls
short of the stand­ard set out in Art­icle 10 of the European Con­ven­tion. In 1996 the
128
Michael Allen & Brian Thompson, Cases & Mater­i­als on Con­sti­tu­tional & Admin­is­trat­ive Law, 5th
edi­tion, 1998: Black­stone Press, p.565
129
Good­win v United King­dom, 27 March 1996, 22 EHRR 123. European Court of Human Rights
130
Pro­tec­tion of Journ­al­ists’ Sources: Com­par­at­ive Law and Jur­is­pru­dence, writ­ten com­ments
sub­mit­ted to the ECHR in the case of Good­win v UK by ARTICLE 19 and Interights (April 1995)
131
X Ltd v Mor­gan Grampian (Pub­lish­ers) Ltd and Oth­ers [1991] 1 AC 1, House of Lords per Lord
Bridge
European Court of Human Rights ruled in the case of Good­win v United King­dom
that the applic­a­tion of s. 10 of the Con­tempt of Court Act 1981 by the UK House of
Lords in fin­ing a journ­al­ist for refus­ing to dis­close his source viol­ated Art­icle 10 of
the ECHR. The European Court dis­agreed with the House of Lords regard­ing the
applic­a­tion of the neces­sity test, find­ing that on bal­ance the interest of a demo­cratic
soci­ety in a free press out­weighed any coun­ter­vail­ing interests.132 Sig­ni­fic­antly, in a
more recent case, strik­ing for its sim­il­ar­ity to the facts of Good­win, UK courts again
ordered source disclosure.133
Orders for dis­clos­ure of sources often take the form of the stat­utory pro­duc­tion orders.
These allow the police to access journ­al­istic mater­ial that is likely to assist in a
crim­inal invest­ig­a­tion, includ­ing invest­ig­a­tions into alleged breaches of the Offi­cial
Secrets Act.134 There is also common-law power to order sim­ilar dis­clos­ure to enable
“wrong­do­ers” to be pro­sec­uted, includ­ing those allegedly respons­ible for a breach of
con­fid­ence. 135
Crim­inal pro­ced­ures
a) The Police and Crim­inal Evid­ence Act 1984 (PACE)
S. 9 of the Police and Crim­inal Evid­ence Act 1984 allows for pro­duc­tion orders to be
made by a judge if per­suaded by the police that cer­tain “access con­di­tions” con­tained
in sched­ule 1 are sat­is­fied. The orders are designed to allow the police to pierce the
veil of journ­al­ists’ pro­fes­sional con­fid­ence in the event that this will assist with a
crim­inal invest­ig­a­tion. The invest­ig­a­tion in ques­tion could, of course, con­cern an
alleged breach of the OSA, but only “ser­i­ous arrestable offences” are covered by the
pro­vi­sions of s. 9 and sch. 1. Neither s. 9 nor sch. 1 of PACE con­tain stat­utory
require­ments to weigh press free­dom against the interests of facil­it­at­ing a ter­ror­ist
invest­ig­a­tion.
b) Pre­ven­tion of Ter­ror­ism Acts (PTA)
Sim­ilar powers to those described above (based on less strin­gent access con­di­tions)
have been con­ferred on judges by the Pre­ven­tion of Ter­ror­ism (Tem­por­ary
Pro­vi­sions) Acts. Although these powers apply solely in respect of “ter­ror­ist”
invest­ig­a­tions, they have been placed on a per­man­ent foot­ing in the Ter­ror­ism Act
2000, in which the defin­i­tion of ter­ror­ism has been con­sid­er­ably widened.
c) S. 8(4) of the Offi­cial Secrets Act 1989
The OSA con­tains a mech­an­ism to facil­it­ate access to journ­al­ists’ papers. S. 8(4) OSA
1989 makes it an offence for a journ­al­ist to fail to com­ply with an “offi­cial dir­ec­tion”
for the return or dis­posal of inform­a­tion sub­ject to s. 5 OSA which is in their
pos­ses­sion or con­trol. This may be pun­ished with three months’ impris­on­ment and/or
an unlim­ited fine.136
132
Good­win v UK , 27 March 1996, 22 EHRR 123
Cam­elot Group plc v Cen­taur Com­mu­nic­a­tions Ltd [1998] 2 WLR 379, Court of Appeal
134
e.g., s. 9 Police and Crim­inal Evid­ence Act 1984
135
Nor­wich Phar­macal v Cus­toms & Excise Com­mis­sion­ers [1974] AC 133, House of Lords, as
sub­sequently fettered by s. 10 Con­tempt of Court Act 1981
136
S. 10(2) OSA 1989
133
d) The Reg­u­la­tion of Invest­ig­at­ory Powers Act 2000
The Reg­u­la­tion of Invest­ig­at­ory Powers Act, passed in July 2000, author­ises the
exec­ut­ive to under­take inter­cep­tion of elec­tronic com­mu­nic­a­tion on the vague and
undefined grounds of national secur­ity and eco­nomic well-being, and to com­pel
access to decryp­tion keys. This legis­la­tion legit­im­ises offi­cial sur­veil­lance of e-mail
cor­res­pond­ence and Inter­net use by private indi­vidu­als. Had the RIP Act been in place
at the time, there would have been no need for the Gov­ern­ment to take out a
pro­duc­tion order against The Guard­ian to com­pel sur­render of David Shayler’s email
(see sec­tion 5.3 below). The sur­veil­lance can be car­ried out cov­ertly on the orders of
the exec­ut­ive without prior judi­cial author­isa­tion.
Civil orders
Where no crim­inal offence is being invest­ig­ated, the gov­ern­ment can still rely on
courts to order journ­al­ists (and oth­ers) to dis­close their sources – or grant access to
their papers – in order to identify “wrongdoers”.137 Civil orders can com­pel
dis­clos­ure of the iden­tit­ies of those who have acted in breach of con­fid­ence, and who
thus con­sti­tute “wrong­do­ers”. As such, where the Gov­ern­ment is able, as it fre­quently
is, to argue that a dis­clos­ure has occurred in breach of con­fid­ence, it has grounds upon
which to apply for an order requir­ing journ­al­ists to dis­close their sources. These
mech­an­isms allow the Gov­ern­ment to com­pel journ­al­ists to dis­close their sources
irre­spect­ive of whether the primary and sec­ond­ary dis­clos­ures them­selves are being
pur­sued via the crim­inal or civil law.
5.3 Recent his­tory of pro­duc­tion orders
The recent his­tory of pro­duc­tion orders in cases of whis­tleblowers sug­gests that the
police find it rel­at­ively easy to con­vince the judge at first instance to make the order,
but that applic­a­tions for judi­cial review of that decision are often suc­cess­ful,
fre­quently on the basis that pro­ced­ural errors have been com­mit­ted. This has been the
res­ult in both ex parte Bright138 and ex parte Moloney.139
5.3.1 Ex parte Bright — the use of PACE
In March 2000, Judge Steph­ens approved pro­duc­tion orders against The Guard­ian and
The Observer under s. 9 and sch. 1, para. 2 Police and Crim­inal Evid­ence Act 1984.
These pro­duc­tion orders were issued at the request of Spe­cial Branch for mater­ial held
by The Observer and The Guard­ian news­pa­pers relat­ing to David Shayler. In
par­tic­u­lar Spe­cial Branch sought the ori­ginal of a let­ter Mr Shayler wrote to The
Guard­ian con­tain­ing his email address. They also wanted the notes of Mar­tin Bright, a
journ­al­ist on The Observer who repor­ted that Mr Shayler had named two MI6 officers
involved in the alleged plot to kill Gad­dafi.
137
Nor­wich Phar­macal v Cus­toms & Excise Com­mis­sion­ers [1974] AC 133, House of Lords
R v Cent­ral Crim­inal Court, ex parte The Guard­ian, The Observer & Mar­tin Bright, 21 July 2000
139
R v Bel­fast County Court, ex parte Molo­ney, 27 Octo­ber 1999
138
The orders were sought on the basis that they would advance police invest­ig­a­tions
into alleged breaches of the Offi­cial Secrets Act.140 An appeal for judi­cial review of
the decision against the Observer, ex parte Bright, was decided in July 2000. By a
major­ity of two to one, the court quashed all the orders bar one. In each case, the basis
for the decision was that the grounds for grant­ing a pro­duc­tion order (or access
con­di­tions) had not been met. Judge LJ emphas­ised the need for the presid­ing judge to
be per­son­ally per­suaded that each ele­ment of those con­di­tions had been prop­erly
made out by the applic­ant police force.
In par­tic­u­lar, the Court held that the evid­ence did not dis­close a “ser­i­ous arrestable
offence” under the OSA. While s. 1(1) and s. 1(2) offences are always “arrestable”,
they become “ser­i­ous arrestable” offences only if the dis­clos­ure in ques­tion has
caused, was inten­ded to cause, or was likely to cause ser­i­ous harm to state secur­ity, or
death or ser­i­ous injury to any person.141 In respect of the order sought against The
Guard­ian, there was no cred­ible claim that “ser­i­ous” harm had been done (or was
threatened) to national secur­ity. A more cogent case argu­ment was presen­ted in
rela­tion to The Observer, but again the access con­di­tions were found not to have been
prop­erly made out.
Pro­ced­ural errors in ex parte Bright
The appeal court found that the ori­ginal grant of pro­duc­tion orders against The
Guard­ian and The Observer,142 was marred by ser­i­ous pro­ced­ural errors. Amongst the
most sig­ni­fic­ant flaws were the fol­low­ing:
(i) All parties to the pro­ceed­ings, includ­ing the judge, had assumed that any
   breach of the OSA amoun­ted to a “ser­i­ous arrestable” offence as defined by
      the Police and Crim­inal Evid­ence Act. In fact, OSA offences, whilst
     “arrestable”, are not “ser­i­ous arrestable” offences unless the dis­clos­ures have
            cer­tain con­sequences (see above). The police were not put to proof on this
           cru­cial ele­ment of the applic­a­tion.
(ii) The task of giv­ing evid­ence in sup­port of the applic­a­tion was assigned to DS
    Flynn, a “qual­i­fied fin­an­cial invest­ig­ator”, as required by police policy.
       How­ever, DS Flynn had not been involved in the rel­ev­ant invest­ig­a­tion prior
      to this point. “In real­ity he knew noth­ing, or vir­tu­ally noth­ing, about the
     case“143 and was in no pos­i­tion to give an informed assess­ment of the value to
    the invest­ig­a­tion of the mater­i­als in respect of which the orders were sought.
(iii) As a res­ult of DS Flynn’s lack of involve­ment with the invest­ig­a­tion, all the
       evid­ence he pro­duced for the court was hearsay. As such, it should have been
140
Whether the Attorney-General would have con­sen­ted to such a pro­sec­u­tion may never be known.
Judge LJ expressed “con­sid­er­able reser­va­tions whether there is any evid­ence at all that Mr. Bright can
be said to have “dis­closed” any­thing to any­one for the pur­poses of s. 5. On the other hand, Judge LJ
sug­ges­ted that he might legit­im­ately have been pur­sued for incit­ing David Shayler to com­mit offences
under s. 1 OSA R v Cent­ral Crim­inal Court, ex parte The Guard­ian, The Observer & Mar­tin Bright,
Divi­sional Court of Queen’s Bench Divi­sion 21 July, draft judg­ment, p.16
141
S. 116(6) PACE 1984
142
The orders were gran­ted on 17 March 2000 by His Hon­our Judge Mar­tin Steph­ens QC at the Cent­ral
Crim­inal Court
143
R v Cent­ral Crim­inal Court, ex parte The Guard­ian, The Observer & Mar­tin Bright, 21 July 2000,
Divi­sional Court of Queen’s Bench Divi­sion, draft judg­ment, p.12, per Judge LJ.
accor­ded less weight than it would have attrac­ted if presen­ted by a per­son with
first-hand know­ledge of the mat­ters in ques­tion and cap­able of being fully
cross-examined on the evid­ence.
(iv)
Inspector Lerner – an officer more intim­ately involved in the case – atten­ded
the court through­out the hear­ing, but coun­sel for the defend­ants was not
informed of this fact and so was not given the oppor­tun­ity to cross-examine
him. Coun­sel stated that he would, given the oppor­tun­ity, wish to ques­tion
Inspector Lerner. As the appeal court noted, “It is unfor­tu­nate that these
obser­va­tions did not lead to the obvi­ous response that Mr. Lerner was indeed
present and avail­able at court.“144
Com­ments on ex parte Bright
The judg­ment on appeal in the case was wel­comed as “a ringing defence of press
free­dom and the news­pa­pers’ right to pub­lish alleg­a­tions by whistleblowers.“145
Closer exam­in­a­tion of the judg­ment sug­gests that such enthu­si­asm is not war­ran­ted.
In fact, the basis of the decision was primar­ily pro­ced­ural errors, not the bal­an­cing of
free­dom of expres­sion in the con­text of a national secur­ity interest. Indeed, “the police
did not claim that either news­pa­per had in any way threatened national security.“146
How­ever, the judg­ment is prom­ising in that it con­tains a recog­ni­tion that gov­ern­ment
claims of national secur­ity need to be open to scru­tiny. Judge LJ stated that judges
“gen­er­ally … can­not pro­ceed on the basis of bare asser­tion by a police officer.“147
How­ever, he also sug­ges­ted that a “care­ful sum­mary of the rel­ev­ant factors” delivered
in open court would suf­fice, unless even this level of dis­clos­ure would itself threaten
national secur­ity, in which case “a pro­ced­ure sim­ilar to that used in [Pub­lic Interest
Immunity] applic­a­tions” would be more appropriate.148 It is argu­able whether either
of these two approaches can guar­an­tee that the judge will be able to make a truly
inde­pend­ent assess­ment of the claim that national secur­ity was under threat. How­ever,
Judge LJ emphas­ised that the presid­ing judge must be per­son­ally con­vinced that the
rel­ev­ant sch.1 factors are all sat­is­fied and that he/she found uncon­vin­cing the Crown’s
asser­tion that it was “abso­lutely vital” for the police to get their hands on the mater­ial
to facil­it­ate pro­sec­u­tion of the case against David Shayler.
5.3.2 Ex parte Molo­ney — use of the PTA
In Octo­ber 1999, a pro­duc­tion order against Ed Molo­ney, a North­ern Ire­land
journ­al­ist was quashed by the High Court in Bel­fast. A County Court order had been
served on him dir­ect­ing him to sur­render notes of inter­views he car­ried out nearly ten
years pre­vi­ously with Wil­liam Sto­bie. The lat­ter was a self-confessed police informer
and alleged quarter­mas­ter of the Ulster Defence Asso­ci­ation, a para­mil­it­ary
organ­isa­tion, who was being invest­ig­ated for the 1989 murder of Pat Finu­cane, a
Cath­olic soli­citor. As in ex parte Bright, the judge found the access orders, in this case
based on sch.7, para. 3(5) of the Pre­ven­tion of Ter­ror­ism (Tem­por­ary Pro­vi­sions) Act
144
Ibid., p.13
Richard Norton-Taylor, “Papers win Shayler MI5 case,” The Guard­ian, 22 July 2000
146
“A court comes to the res­cue of free speech,” The Guard­ian, 22 July 2000
147
Draft judg­ment, p.13
148
Ibid
145
1989 (which sur­vive in sch. 5, para. 5 of the Ter­ror­ism Act 2000) were not made out,
in par­tic­u­lar as the police had not proved that there was a pos­sib­il­ity that the notes
would be of help in the investigation.149
Com­ment on ex parte Molo­ney
Des­pite this judg­ment, there is little reason to think that the agenda pro­tect­ing
free­dom of expres­sion has been sig­ni­fic­antly furthered as regards use of the PTA. As
with s. 9 and sch. 1 PACE, there is no stat­utory require­ment to weigh press free­dom
against the interests of facil­it­at­ing a ter­ror­ist invest­ig­a­tion, although the judge at first
instance stated that he took the import­ance of a free press into account in mak­ing the
order and this was accep­ted in judi­cial review by the High Court. Carswell LCJ took
the view that – des­pite not being included as a stat­utory cri­terion – press free­dom was
a mater­ial factor to be con­sidered, but the weight to be accor­ded to that factor was for
the indi­vidual judge to determine.150
5.4 Con­clu­sion
Even if the UK courts do con­sider there to be a pre­sump­tion against mak­ing an order
for dis­clos­ure, their his­tor­ical reluct­ance to sub­ject claims of national secur­ity to
sub­stant­ive scru­tiny weak­ens its strength. Indeed, it con­tin­ues to be dis­pro­por­tion­ately
easy for an applic­ant able to plead national secur­ity to obtain an order for dis­clos­ure
of sources. This con­cern is enhanced by recent legis­lat­ive devel­op­ments which fur­ther
under­mine pro­tec­tion for con­fid­en­tial sources. For example, the Ter­ror­ism Act 2000 ?
which pre­serves the pro­duc­tion order pro­vi­sions from the Pre­ven­tion of Ter­ror­ism
(Tem­por­ary Pro­vi­sions) Act 1989 – greatly extends the defin­i­tions of “ter­ror­ist” and
“terrorism”151 and the Reg­u­la­tion of Invest­ig­at­ory Powers Act 2000 provides a basis
for email inter­cep­tion, a grow­ing form of com­mu­nic­a­tion between journ­al­ists and
their sources. In Liberty and ARTICLE 19’s view, there is a clear need for stronger
judi­cial scru­tiny in the UK.
The tra­di­tional reluct­ance of the judi­ciary to pierce the veil of national secur­ity is
unlikely to evap­or­ate overnight, but these judg­ments may sig­nal a change in atti­tude
as the courts alloc­ate more import­ance to pro­tect­ing press free­dom. It is not­able for its
insist­ence that even once access con­di­tions have been made out, the decision to grant
a pro­duc­tion order is within the judge’s dis­cre­tion. In ex parte Bright, the Court held
149
For detail on the back­ground to this judg­ment, see Justice Delayed … Alleged State Col­lu­sion in the
Murder of Patrick Finu­cane and Oth­ers, §6, Brit­ish Irish Rights Watch, Feb­ru­ary 2000.
«http://​www​.fhit​.org/​b​i​r​w​/​j​u​s​t​i​c​e​.​h​tml»
150
ex parte Molo­ney, draft judg­ment, p.15. The pro­duc­tion order against Molo­ney was again quashed
on the nar­row ground that the stat­utory access con­di­tions had not been prop­erly sat­is­fied by the
applic­ant police force.
151
S. 1 of the new Act defines ter­ror­ism in such a broad man­ner that it might encom­pass cam­paign­ing
bod­ies, pro­test­ers and even work­ers involved in indus­trial dis­putes. The Act cov­ers those who use or
threaten action involving ser­i­ous viol­ence, ser­i­ous prop­erty dam­age, endan­ger­ment of life, ser­i­ous risks
to pub­lic health and safety or ser­i­ous inter­fer­ence with an elec­tronic sys­tem. (s. 1(2) Ter­ror­ism Act
2000) The use or threat of such action becomes “ter­ror­ism” if designed to influ­ence the gov­ern­ment or
intim­id­ate (a sec­tion of) the pub­lic in the interests of a polit­ical, reli­gious or ideo­lo­gical cause. (s. 1(1)
Ter­ror­ism Act 2000) The Act also imposes a duty of dis­clos­ure on those – includ­ing journ­al­ists – who,
in the course of their pro­fes­sion, obtain inform­a­tion relat­ing to ter­ror­ist offences. (s. 19 Ter­ror­ism Act
2000) Those who, without reas­on­able excuse, fail to pass on such inform­a­tion to the police com­mit an
offence
that in decid­ing how to exer­cise this dis­cre­tion, the presid­ing judge should bear in
mind that:
“[i]nconvenient or embar­rass­ing rev­el­a­tions, whether for the Secur­ity Ser­vices or for
pub­lic author­it­ies, should not be sup­pressed. Legal pro­ceed­ings [for pro­duc­tion
orders], or the threat of such pro­ceed­ings, tends to inhibit dis­cus­sion. … [C]ompelling
evid­ence would nor­mally be needed to demon­strate that the pub­lic interest would be
served by such proceedings.”152
In addi­tion, the incor­por­a­tion of the ECHR under the Human Rights Act 1998 will
mean that courts are com­pelled to expli­citly bal­ance free­dom of expres­sion as a
human right against claims in favour of dis­clos­ure. A pre­sump­tion in favour of
free­dom of expres­sion should mean that even where a source falls at the least
pro­tec­ted end of the spec­trum, the applic­ant seek­ing dis­clos­ure should be required to
make a com­pel­ling case on the facts, to rebut a pre­sump­tion that his applic­a­tion ought
to fail.
Given that in the UK both crim­inal and civil forms of orders com­pel­ling source
dis­clos­ure are dis­cre­tion­ary, in all cases, the pub­lic interest in press free­dom should be
given con­sid­er­able weight and a pre­sump­tion against mak­ing the order should be
observed. Judges should exer­cise their dis­cre­tion to refuse such orders, save in
excep­tional cases, and only when they can be per­suaded that the prin­ciple of
journ­al­istic con­fid­ence has genu­inely to be aban­doned in the pub­lic interest.
Applic­ants claim­ing national secur­ity to be at stake should be put to proof on that
mat­ter. It is incum­bent upon judges to ques­tion invoc­a­tions of national secur­ity in
sup­port of those applic­a­tions; to ensure that the applic­a­tions are dealt with in a
pro­ced­ur­ally proper man­ner; to insist upon being fur­nished with care­fully pre­pared
and adequate evid­ence; and, ulti­mately, to accord free expres­sion and the prin­ciple of
journ­al­istic con­fid­ence the weight they deserve.
152
Draft judg­ment, p.27
6 Chilling the watch­dogs and silen­cing the
whis­tleblowers
The laws pre­vent­ing primary and sec­ond­ary dis­clos­ures of security-related
inform­a­tion – whether through pro­sec­u­tion under the Offi­cial Secrets Act or through
ex parte applic­a­tions for interim injunc­tions – clearly affect those against whom they
are deployed. They may ulti­mately lose their liberty and/or face sub­stan­tial fin­an­cial
pen­al­ties. Sim­ilar con­sequences may be vis­ited upon those who refuse to com­ply with
stat­utory pro­duc­tion orders or equit­able dis­clos­ure orders under con­tempt of court
pro­vi­sions.
How­ever, in addi­tion to such “local” effects on those who dis­close inform­a­tion and
those who pub­lish it, these mech­an­isms also pro­duce wider or global chilling effects.
Given the flawed DA-Notice sys­tem, the lack of adequate pro­tec­tion of sources, lack
of clar­ity as to what national secur­ity cov­ers and the lack of effect­ive judi­cial
over­sight, the cur­rent régime is well poised to pro­duce chilling effects on free
expres­sion.
There are two ways in which chilling effects dampen the free flow of inform­a­tion:
(i) con­fid­en­tial sources cease to make that inform­a­tion avail­able for fear of the
   per­sonal con­sequences of doing so; and
(ii) journ­al­ists and news­pa­pers are reluct­ant to make sec­ond­ary dis­clos­ures for
    fear of the per­sonal and/or cor­por­ate con­sequences that may fol­low
   pub­lic­a­tion.
The greater the chilling effects at either level, the less the media are able to per­form
their vital role as watch­dog of the demo­cratic pro­cess, and the less informed the
pub­lic are about mat­ters they have an interest in know­ing, and about which they have
a right to know.
The European Court has stated that such chilling effects must be taken into account in
determ­in­ing whether a pro­duc­tion order is com­pat­ible with Art­icle 10 of the European
Con­ven­tion on Human Rights.153 Indi­vidual cases can have indir­ect and wider
con­sequences; and these should impact upon whether grant­ing a given order can be
regarded as “pro­por­tion­ate” in the sense deman­ded by the Art­icle 10(2) require­ment
that any restric­tion on free expres­sion be neces­sary in a demo­cratic soci­ety. Given that
demo­cracy needs its watch­dogs to be effect­ive, the danger of pro­du­cing such chilling
effects must be given due weight in determ­in­ing what the out­come of a given
applic­a­tion ought to be.
6.1 Whis­tleblowers deterred
There can be little doubt that UK Gov­ern­ments have pur­sued a delib­er­ate policy of
seek­ing to chill at the first level, to make whis­tleblowers reluct­ant to come for­ward.
This is sup­por­ted by the judiciary’s will­ing­ness to impose sen­tences under the OSA
which sig­nal a clear inten­tion to exert a deterrent effect.154 Given the extens­ive scope
153
154
Good­win v United King­dom, 27 March 1996, 22 EHRR 123
R v Tis­dall (Sarah) (1984) 6 Cr.App.R.(S.) 155, Court of Appeal, Crim­inal Divi­sion
of the OSA offences and the lack of any pub­lic interest defence thereto, such deterrent
effects must work to dis­cour­age the major­ity of dis­clos­ures which would oth­er­wise be
made in the pub­lic interest, as much as those who might seek to reveal inform­a­tion
with mali­cious intent. For example, Jestyn Thirkell-White, a former col­league of
David Shayler’s who has recently come for­ward to endorse some of the latter’s
dis­clos­ures, “had always agreed with Shayler’s ana­lysis of MI5’s fail­ings … but was
ori­gin­ally deterred, as well as appalled, by the har­ass­ment and the impris­on­ment of
his former colleague.“155
In the civil arena, the courts have recently expressed a will­ing­ness to treat breaches of
con­trac­tual oblig­a­tions of con­fid­ence by former mem­bers of the secur­ity and
intel­li­gence ser­vices as deserving of spe­cial treat­ment, in the form of par­tic­u­larly
harsh and dis­pro­por­tion­ate pen­al­ties. In such cases, the courts have, for example,
aban­doned the gen­eral rule that the proper rem­edy for breach of con­tract is
com­pens­at­ory dam­ages. Instead, they will at least con­sider award­ing an account of
profits, even where the dis­clos­ures in ques­tion can­not be regarded as hav­ing
con­tra­vened any fidu­ciary duty of confidence.156 At least part of the jus­ti­fic­a­tion for
this move is that the breach of con­tract in ques­tion in such cases will neces­sar­ily also
con­sti­tute an offence under s. 1 OSA.157 As such, this may be read as a fur­ther means
of deter­ring acts in con­tra­ven­tion of the OSA.
6.2 Media self-censorship
The recent trend of threat­en­ing journ­al­ists with pro­sec­u­tion under s. 5 OSA 1989 is
being sup­ple­men­ted by a grow­ing will­ing­ness to put fin­an­cial pres­sure on news­pa­pers
via civil claims for damages.158 If indi­vidual journ­al­ists can­not be made to fear for
their liberty, then per­haps their employ­ers can be made to fear for their wal­lets. Civil
actions such as applic­a­tions for interim injunc­tions and pro­duc­tion orders often have
indir­ect chilling effects as con­test­ing such orders can be extremely expens­ive and
time-consuming. In addi­tion, fail­ure to com­ply with their terms can res­ult in fines
and/or impris­on­ment. The author­it­ies have some incent­ive in ini­ti­at­ing pro­ceed­ings –
whether in the crim­inal or civil courts – because even a pro­sec­u­tion or suit that
even­tu­ally fails can help rein­force the chill.
6.2.1 Slate — a case of Inter­net self-censorship
When David Shayler’s alleg­a­tions regard­ing MI6 involve­ment in a plot to assas­sin­ate
Col­onel Gad­dafi were first cir­cu­lated in 1998, the Brit­ish news­pa­pers hes­it­ated in
pub­lish­ing the story for fear of being in breach of the stand­ing injunc­tion against
dis­clos­ing any security-related inform­a­tion obtained from Shayler.159
Given the ini­tial reluct­ance of Brit­ish news­pa­pers to pub­lish Shayler’s alleg­a­tions
about MI6 involve­ment in the Gad­dafi plot, one UK-based journ­al­ist e-mailed an
art­icle about the alleg­a­tion to Slate, an Inter­net news site. His sug­ges­tion was that
Slate – being an Amer­ican site – could pub­lish the story which, given the global
155
Mark Hollings­worth, “Open­ing the floodgates,” The Guard­ian, 25 July 2000
Attorney-General v Blake and Another, House of Lords, 27 July 2000
157
Ibid., per Lord Nich­olls of Birken­head
158
See §§4§6 for details regard­ing the range of claims brought against David Shayler and Asso­ci­ated
News­pa­pers
159
This was issued on 4 Septem­ber 1997
156
nature of the Inter­net, would then be avail­able in the UK.160 Legal advice con­vinced
Slate and its par­ent com­pany, Microsoft, that the site would not neces­sar­ily escape
sanc­tion under the OSA and Slate there­fore declined the invit­a­tion to pub­lish. Shortly
there­after, The Sunday Times took the risk of men­tion­ing Shayler’s alleg­a­tions and
then other news­pa­pers took up the story, report­ing the fact that the alleg­a­tions had
been reported.161 Had The Sunday Times not taken this step, the ini­tial chill might
have per­sisted. This illus­trates how the threat of pro­sec­u­tion under the OSA can cre­ate
chilling effects that reach bey­ond the bor­ders of the UK.
On the other hand, if Slate had not been a sub­si­di­ary of a global cor­por­a­tion with a
UK pres­ence, it is unlikely that its editor would have felt the inten­ded chill. “Our
Brit­ish friend instantly and effort­lessly e-mailed us the rogue spy’s art­icle, and if we
hadn’t been wor­ried about Brit­ish law we would have made it as instantly and
effort­lessly avail­able in Bri­tain as if he’d pub­lished it himself.“162 This per­haps
under­lines the view expressed by Rear Admiral David Pul­ver­taft, former DA-Notice
Sec­ret­ary, that the Inter­net is “unpre­dict­able and uncontrollable.“163 The gov­ern­ment
has sought to limit the impact of Inter­net pub­lic­a­tion by refus­ing to recog­nise
dis­sem­in­a­tion over the Inter­net as put­ting the mater­ial in the pub­lic domain. 164 This
view would mean that it was still pro­hib­ited to pub­lish mater­ial from the Inter­net in
news­pa­pers, con­trary to the gen­eral rule that once mater­ial is in the pub­lic domain,
fur­ther pub­lic­a­tion does not threaten national secur­ity.
In the end it was the New York Times, which was not covered by the injunc­tion,
which pub­lished the details of the alleg­a­tions in August 1998. The Guard­ian and then
other Brit­ish papers fol­lowed suit. The alleg­a­tions were also the sub­ject of an epis­ode
of the cur­rent affairs pro­gramme Pan­or­ama.
6.3 Con­clu­sion
The chilling effect of UK legis­la­tion and prac­tice extends far bey­ond those dir­ectly
affected. Whether chilling effects are delib­er­ately sought or whether instead they are
the unin­ten­ded by-products of actions taken for other reas­ons is to some extent
irrel­ev­ant. As long as genu­ine whis­tleblowers are pro­sec­uted along­side those who
make genu­inely dam­aging dis­clos­ures, and the media are act­ively pre­ven­ted from
pub­lish­ing rev­el­a­tions of wrong­do­ing in the pub­lic interest, this chilling effect will be
widely felt. The pub­lic interest demands a sub­stan­tial thaw.
160
Michael Kins­ley, “How we lost that story,” 8 August 1998 «slate.msn.com/Readme/98–08–
08/Readme.asp»
161
Ibid
162
Ibid
163
Quoted in “Inter­net expos­ure sparks fears for safety of spies,” Fin­an­cial Times, 13 May 1999
164
David Pal­lister, “World web war wor­ries cen­sors,” The Guard­ian, 13 May 1999
7 A cul­ture of greater open­ness?
The Brit­ish State has long been cri­ti­cised for its cul­ture of secrecy and lack of
open­ness. The oper­a­tion of the par­lia­ment­ary sys­tem has been described as an elect­ive
dic­tat­or­ship, and the strangle­hold that the exec­ut­ive exer­cises on inform­a­tion and on
decision-making was only tempered in the 1980s by the estab­lish­ment of a select
com­mit­tee sys­tem.
The Labour Party, before its elec­tion in 1997, pledged that it would intro­duce a new
cul­ture of open­ness and trans­par­ency and broaden the pro­cesses of polit­ical
account­ab­il­ity. Since it took office it has enacted one piece of legis­la­tion and has
another in the pipeline, both of which – if they met inter­na­tional stand­ards – would
encour­age and facil­it­ate the dis­sem­in­a­tion of inform­a­tion to the media and the pub­lic.
The Pub­lic Interest Dis­clos­ure Act 1998 provides pro­tec­tion for leaks con­cern­ing
unlaw­ful or oth­er­wise dam­aging activ­it­ies, and its effects are already begin­ning to be
felt. The Gov­ern­ment is still attempt­ing to steer its Free­dom of Inform­a­tion Bill,
provid­ing for a right to access inform­a­tion held by pub­lic author­it­ies, through the
legis­lat­ive pro­cess. How­ever, it has come up against stiff res­ist­ance from many
quar­ters, and it still falls far short of inter­na­tional standards165 – in par­tic­u­lar in
rela­tion to the excess­ive régime of exemp­tions included in the Bill.
While such legis­la­tion is wel­come, neither piece of legis­la­tion applies to the Secur­ity
and Intel­li­gence ser­vices, illus­trat­ing the utter lack of will­ing­ness on the part of
Gov­ern­ment to tackle the veil of secrecy on mat­ters of national secur­ity. It is pre­cisely
where other mech­an­isms of hold­ing gov­ern­ment and state to account are weak­est that
this new legis­la­tion is most feeble. The lack of account­ab­il­ity on mat­ters con­cern­ing
national secur­ity is fur­ther rein­forced by inad­equate par­lia­ment­ary over­sight on these
mat­ters.
7.1 Pub­lic Interest Dis­clos­ure Act 1998
The Pub­lic Interest Dis­clos­ure Act 1998 (PIDA) amends the Employ­ment Rights Act
1996 to provide stat­utory pro­tec­tion for those who, in the pub­lic interest, breach
duties of con­fid­ence and make dis­clos­ures regard­ing inter alia illeg­al­it­ies and
wrongdoing.166 Under cer­tain con­di­tions, PIDA will pro­tect dis­clos­ures made to the
press, although the pre­ferred recip­i­ents of such dis­clos­ures are employ­ers or those
appoin­ted to hear grievances.167 Where indi­vidu­als have made dis­clos­ures that fall
within the scope of PIDA, they are entitled not to be sub­ject to any adverse
con­sequences as a result.168 If they are dis­missed as a res­ult of mak­ing such
dis­clos­ures, this will con­sti­tute unfair dismissal.169
The restric­ted scope of PIDA, how­ever, high­lights the lim­ited way in which the
Gov­ern­ment is pre­pared to be open. None of these pro­tec­tions extends to those
165
See Appendix 2
S. 1 PIDA 1998, adding s. 43B ERA 1996
167
S. 1 PIDA 1998, adding ss. 43C-43H ERA 1996
168
S. 2 PIDA 1998, adding s. 47B ERA 1996
169
S. 5 PIDA 1998, adding s. 103A ERA 1996
166
employed by the secur­ity and intel­li­gence services,170 even where they expose
illeg­al­it­ies and incom­pet­ence. In light of the fact that the pub­lic interest may favour
the dis­clos­ure of some secret inform­a­tion, this fail­ure to offer pro­tec­tion would not
appear to serve the pub­lic interest. Par­lia­ment ought to con­sider afresh the ques­tion of
whether whis­tleblowers from within MI5 and MI6 should be given some pro­tec­tion
against adverse con­sequences arising as a res­ult of their dis­clos­ures. This is
par­tic­u­larly import­ant where, due to the lack of effect­ive internal and external
account­ab­il­ity struc­tures, whistle-blowing may be the only way in which atten­tion can
be brought to bear on wrong­do­ing.
It might be said that the abil­ity of those ser­vices to dis­charge their func­tions is
pecu­li­arly sens­it­ive to the per­ceived loy­alty and integ­rity of its officers. The courts
have held that: “It is of para­mount import­ance that mem­bers of the [Secret
Intel­li­gence Ser­vice] should have com­plete con­fid­ence in all their deal­ings with each
other, and that those recruited as inform­ers should have the like confidence.“171
How­ever, it is surely going too far to sug­gest that this factor is of para­mount
import­ance. It may be that mem­bers of the Secur­ity and Intel­li­gence Ser­vices should
not bene­fit from exactly the same rem­ed­ies as oth­ers, for example in rela­tion to a right
to rein­state­ment, but there can be little jus­ti­fic­a­tion for deny­ing such whis­tleblowers
any pro­tec­tion from sanc­tion.
7.2 The Free­dom of Inform­a­tion Bill
The Gov­ern­ment claims to hon­our a mani­festo com­mit­ment by intro­du­cing a draft law
on free­dom of inform­a­tion. How­ever, the Free­dom of Inform­a­tion Bill cur­rently going
through Par­lia­ment fails to provide any altern­at­ive sys­tem­atic means of dis­sem­in­at­ing
security-related inform­a­tion which is in the pub­lic interest and so leaves the press-as–
watch­dog reli­ant on unau­thor­ised dis­clos­ures.
The pro­vi­sions in the Bill relat­ing to secur­ity bod­ies effect­ively impose a blanket ban
on any inform­a­tion about their operation.172 MI5, MI6, GCHQ and the spe­cial forces,
are com­pletely excluded from the oblig­a­tions of dis­clos­ure set out in the Bill.
In addi­tion, all inform­a­tion “dir­ectly or indir­ectly sup­plied to the pub­lic author­ity by,
or [which] relates to the work of” secur­ity bod­ies is also exempt (s. 21(1)). Moreover,
a cer­ti­fic­ate signed by a Min­is­ter of the Crown will stand as con­clus­ive evid­ence that
any inform­a­tion reques­ted falls within this blanket exemption.173 A sim­ilar exemp­tion
applies in respect of other inform­a­tion to be with­held from the pub­lic in the interests
of safe­guard­ing national secur­ity. Again, a min­is­terial cer­ti­fic­ate will suf­fice as
con­clus­ive evid­ence that inform­a­tion falls within this category.174 The pro­vi­sion for
min­is­terial cer­ti­fic­ates to con­sti­tute con­clus­ive evid­ence of a legit­im­ate exemp­tion
offers scant com­fort to those who regard the executive’s abil­ity to deflect proper
scru­tiny through claims of national secur­ity as a vital tool for main­tain­ing the cur­rent
imbal­ance between free expres­sion and other ele­ments of the pub­lic interest. Fur­ther
170
S. 11 PIDA 1998, adding s. 193(4) ERA 1996
Attorney-General v Blake and Another, 27 July 2000, House of Lords per Lord Nich­olls of
Birken­head
172
Sub­mis­sion to the UK Gov­ern­ment on the Free­dom of Inform­a­tion Bill, Cen­sor­ship News No. 53,
ARTICLE 19, July 1999
173
cl.21(2) FOIB 2000
174
cl.22 FOIB 2000
171
exemp­tions apply in respect of inform­a­tion that would be likely to pre­ju­dice defence,
inter­na­tional rela­tions, or the eco­nomic interests of the UK.175
Although s. 14 of the Bill allows author­it­ies to dis­close exempt inform­a­tion where this
is in the pub­lic interest, the blanket nature of the secur­ity exemp­tion is exacer­bated by
the fact it is one of only two exemp­tions to which s. 14 does not apply. Thus, s. 21
pre­cludes dis­clos­ure of inform­a­tion even where this is clearly in the pub­lic interest. In
effect, s. 21 com­pletely neg­ates any pub­lic access to the very broad range of
inform­a­tion it cov­ers. The Free­dom of Inform­a­tion Bill there­fore provides little more
by access to inform­a­tion about national secur­ity than exis­ted before.
7.3 Lack of demo­cratic account­ab­il­ity of the Secur­ity and
Intel­li­gence Ser­vices
The need for greater account­ab­il­ity has led to some change in the way that the
Secur­ity and Intel­li­gence Ser­vices func­tion. How­ever, the extent to which they can be
said to be sub­ject to adequate par­lia­ment­ary over­sight is ques­tion­able. Yet
par­lia­ment­ary over­sight is of key import­ance to ensur­ing that the secur­ity and
intel­li­gence ser­vices are account­able for their activ­it­ies to the same degree as other
pub­lic bod­ies. Judging by the num­ber of whis­tleblowers that have come forth over
time, and the sup­port that they have attrac­ted from some of their ex-colleagues, there
appears to be a need for Par­lia­ment to scru­tin­ise more closely the work of the secur­ity
and intel­li­gence ser­vices, par­tic­u­larly as internal mech­an­isms deal­ing with
wrong­do­ing do not appear to be work­ing.
Given the view of some ex-security and intel­li­gence ser­vices officers that there is “no
mech­an­ism for internal dis­sent” and that mem­bers of MI5 have “no con­fid­ence in the
so-called staff coun­sel­lor,” a former per­man­ent secretary,176 whistle-blowing appears
to some employ­ees within the secur­ity and intel­li­gence ser­vices as the only way to
draw atten­tion to wrong­do­ing. But rely­ing on whis­tleblow­ing to expose wrong­do­ing is
unsat­is­fact­ory and a poor sub­sti­tute for prop­erly effect­ive struc­tures of account­ab­il­ity,
both internal and external.
In 1989 and again in 1994 there was some move­ment towards mak­ing the Secur­ity
and Intel­li­gence Ser­vices more account­able to elec­ted rep­res­ent­at­ives. In the wake of
vari­ous leaks and con­tro­ver­sies, and a case res­ult­ing from MI5?s sur­veil­lance of
Liberty, the Gov­ern­ment passed the 1989 Secur­ity Ser­vices Act which provides for
stat­utory reg­u­la­tion of the activ­it­ies of MI5.177 GCHQ and MI6 were also form­ally
estab­lished by the Intel­li­gence Ser­vices Act 1994. How­ever, the sys­tem of
com­mis­sion­ers and tribunals empowered to “check the leg­al­ity of war­rants issued by
ministers“178 has yet to uphold a single com­plaint.
In 1994, the Intel­li­gence Ser­vices Act was passed provid­ing for lim­ited Par­lia­ment­ary
over­sight through the estab­lish­ment of the Intel­li­gence and Secur­ity Com­mit­tee.
How­ever, lim­it­a­tions in its man­date have led many to con­clude that the secur­ity and
intel­li­gence ser­vices are still not sub­ject to a sat­is­fact­ory level of Par­lia­ment­ary
175
cll.24, 25 & 27 FOIB 2000
David Shayler and Jestyn Thirkell-White make these claims. See Mark Hollings­worth, “Open­ing the
floodgates,” The Guard­ian, 25 July 2000
177
Hewitt and Har­man vs. UK(1) (1991) 14 EHRR 657) European Court of Human Rights
178
Ian Leigh, “Have you logged on to the MI5 web­site?” The Times, 29 August 2000
176
over­sight. 179 In par­tic­u­lar, as a stat­utory, rather than a Par­lia­ment­ary Com­mit­tee, it
enjoys none of the formal powers of a Select Com­mit­tee. Mem­bers are appoin­ted by
the Prime Min­is­ter, to whom it reports. Its remit is to exam­ine expendit­ure,
admin­is­tra­tion and policy of the secur­ity agen­cies, but it is restrained from examin­ing
oper­a­tions. It can com­pel evid­ence from heads of agen­cies but has no power to
sum­mon wit­nesses or demand inform­a­tion from the pub­lic at large. Per­haps the most
lim­it­ing fea­ture of the Com­mit­tee is the fact that it has to oper­ate within the “ring of
secrecy” – “the Com­mit­tee can­not itself con­trol the extent to which its con­clu­sions are
made pub­lic … the Prime Min­is­ter may – after con­sulta­tion with the Com­mit­tee –
exclude mater­ial which he con­siders to be pre­ju­di­cial to the con­tin­ued dis­charge of
the func­tions of the Agen­cies …“180 This once again rein­forces the executive’s
mono­poly over defin­ing what con­sti­tutes national secur­ity.
The view that the Intel­li­gence and Secur­ity Com­mit­tee should be given full Select
Com­mit­tee status was endorsed by the Home Affairs Select Com­mit­tee last year and
many other senior politi­cians before that.181 This status would give the Com­mit­tee a
status inde­pend­ent of the exec­ut­ive in national secur­ity mat­ters and would extend its
abil­ity to invest­ig­ate wrong­do­ings and to main­tain effect­ive over­sight over the
Secur­ity and Intel­li­gence Ser­vices. In pro­pos­ing such a scheme in 1989, Roy
Hat­ters­ley said:
“One of the advant­ages of a Select Com­mit­tee in com­par­ison with other insti­tu­tions is
that under our scheme it would write its reports after listen­ing to the Government’s
advice about the need for secur­ity. That dif­fer­ence is cru­cial. It demon­strates the
weak­ness of one and the strength of the other. It is the dif­fer­ence between keep­ing the
super­vi­sion of the secur­ity ser­vices within the fam­ily of the estab­lish­ment or
extend­ing it to a respons­ible but essen­tially inde­pend­ent oversight.”182
Mak­ing the Secur­ity and Intel­li­gence Ser­vices answer­able to Par­lia­ment, in part by
con­fer­ring full Select Com­mit­tee status upon the Intel­li­gence and Secur­ity
Com­mit­tee, would go some way to address­ing the Secur­ity and Intel­li­gence Ser­vices’
cur­rent lack of account­ab­il­ity.
7.4 Con­clu­sion
The lack of account­ab­il­ity and open­ness about the secur­ity forces makes
whis­tleblowers from within the secur­ity and intel­li­gence ser­vices par­tic­u­larly
valu­able. In the absence of any sub­stan­tial altern­at­ive means by which Par­lia­ment can
scru­tin­ise the con­duct of those ser­vices, unau­thor­ised dis­clos­ures by those within the
intel­li­gence com­munity con­sti­tutes a vital source of inform­a­tion on illeg­al­it­ies and
wrong­do­ing. Yet the gov­ern­ment has shown that it is not only unwill­ing to pro­tect
whis­tleblowers, but actu­ally pur­sues them instead. Its com­mit­ment to open­ness is
there­fore open to ques­tion.
179
“Our spies must answer to Par­lia­ment for their actions” Don­ald MacIntyre, The Inde­pend­ent, 22
August 2000
180
Third Report: Account­ab­il­ity of the Secur­ity Ser­vices, Select Com­mit­tee on Home Affairs, House of
Com­mons, 21 June 1999
181
Ibid
182
Offi­cial Report 16 Janu­ary 1989 col 37
ARTICLE 19 and Liberty believe that the Gov­ern­ment can do much more to ful­fil its
com­mit­ment to open­ness. It should extend the pro­tec­tion offered by PIDA to its
employ­ees in the Secur­ity and Intel­li­gence Ser­vices, and amend the cur­rent FOI Bill
to remove the blanket exemp­tion of secur­ity inform­a­tion and gen­er­ally to meet the
stand­ards of open­ness of many other estab­lished demo­cra­cies. Lastly, it should
sub­ject the Secur­ity and Intel­li­gence Ser­vices to greater Par­lia­ment­ary scru­tiny than
cur­rently exists.
8 The Future of Secrecy under the Human Rights Act
1998
The most sig­ni­fic­ant recent piece of legis­la­tion in rela­tion to the laws on secur­ity and
free­dom of expres­sion is the Human Rights Act 1998 (HRA) which came into force
on 2 Octo­ber 2000. The HRA finally incor­por­ates the ECHR into UK law.183 UK
cit­izens are now able to rely on their ECHR rights before domestic courts, both as a
defence to civil action and crim­inal pro­sec­u­tion and as a cause of action against pub­lic
author­it­ies in civil actions and judi­cial review.184 The gov­ern­ment regards the HRA
as “a con­sid­er­able achieve­ment” and has “urged people to make the most of their new
rights.“185
For those facing pro­sec­u­tion and civil suits for mak­ing security-related dis­clos­ures
such as David Shayler, Nigel Wylde, “Mar­tin Ingrams”, the HRA will be a wel­come
means of defend­ing their right to free expres­sion.
Under the HRA all legis­la­tion is to be con­strued, where pos­sible, so as to render it
com­pat­ible with the ECHR rights incor­por­ated by this Act.186 The HRA for the first
time gives the courts in Scot­land, North­ern Ire­land and Eng­land and Wales the power
to strike out sec­ond­ary legis­la­tion, such as stat­utory instru­ments and Orders in
Coun­cil, where it does not admit of a com­pat­ible interpretation.187 Sim­il­arly, the
courts may inval­id­ate admin­is­trat­ive actions, includ­ing those con­duc­ted under the
Royal Prerogative.188 The courts can­not, how­ever, strike out primary legis­la­tion –
that is, Acts of Parliament.189 Rather, in the name of par­lia­ment­ary sov­er­eignty, the
courts will only be able to declare them incom­pat­ible with the ECHR190 and it will
then be for Par­lia­ment to amend the offend­ing stat­ute (the Act provides for a spe­cial
“fast-track” pro­ced­ure for this).191 In the mean­time, the incom­pat­ible stat­ute will
con­tinue to apply, so a declar­a­tion of incom­pat­ib­il­ity has no impact on the
pro­ceed­ings within which it is issued.192
8.1 Free­dom bred in the bone of com­mon law?
It is some­times claimed by the courts that the pro­vi­sions of Art­icle 10 of the ECHR
are reflec­ted in the com­mon law of Eng­land and Wales,193 and that free­dom of
183
The HRA does not incor­por­ate Art­icle 13, which con­fers the right to an effect­ive rem­edy to cor­rect
infringe­ments of the “sub­stant­ive” ECHR rights
184
Provided the indi­vidu­als in ques­tion are “vic­tims” of a breach of ECHR rights. See s. 7 Human
Rights Act 1998
185
Robert Verkaik, “Human rights claimants will be able to get instant justice,” The Inde­pend­ent, 12
August 2000
186
S. 3 HRA 1998
187
Ibid
188
S. 6 HRA 1998
189
S. 3(2)© and s. 6(2)(a) HRA 1998
190
S. 4 HRA 1998
191
S. 10 HRA 1998
192
S. 4(6) HRA 1998
193
Derby­shire County Coun­cil v Times News­pa­pers Ltd [1993] AC 534; Attorney-General v Guard­ian
News­pa­pers Ltd (No.2) [1988] 3 WLR 776
expres­sion is “bred in the bone” of the com­mon law.194 How­ever, ARTICLE 19 and
Liberty believe that many aspects of Brit­ish law and prac­tice are not cur­rently
com­pat­ible with the ECHR. As a respec­ted com­ment­ator has observed, “[the] Brit­ish
sys­tem pre­cisely does not put the onus on gov­ern­ment to jus­tify inter­fer­ence with
fun­da­mental polit­ical rights. Par­lia­ment­ary sov­er­eignty in prac­tice raises the exec­ut­ive
above any sys­tem­atic legal or polit­ical restraint. … Moreover, the judi­ciary imposes
fur­ther restraints on itself, most not­ably in cases involving national security.“195 The
HRA should, there­fore, provide an oppor­tun­ity for a sig­ni­fic­ant review of Brit­ish law
and prac­tice in the area of secrecy and national secur­ity.
One sig­ni­fic­ant dif­fer­ence under the HRA is that courts will no longer be restric­ted to
the stand­ard of judi­cial review when assess­ing legis­la­tion and admin­is­trat­ive actions.
We believe that the courts should apply the three-part test set out above to any
restric­tions on free­dom of expres­sion, in par­tic­u­lar to require any restric­tion to be
“neces­sary in a demo­cratic soci­ety”. This means that the tra­di­tional defer­ence courts
have shown in the face of exec­ut­ive claims regard­ing national secur­ity is no longer
accept­able; instead, courts should now see them­selves as under a duty to sub­ject
attempts to limit free expres­sion to proper scru­tiny.
Another dif­fer­ence is that courts must now take account of the jur­is­pru­dence of the
European Court and Com­mis­sion of Human Rights.196 Com­pli­ance with this
require­ment will demand that the UK courts inter­pret the “rights and freedoms
guar­an­teed … con­sist­ent with the gen­eral spirit of the Convention.“197 This means that
the courts should give a broad con­struc­tion to the basic freedoms – as the right to free
expres­sion in Art­icle 10(1) – con­strue the legit­im­ate excep­tions to those freedoms,
such as the national secur­ity exemp­tion in Art­icle 10(2), in a nar­row man­ner.
In this respect, it is worth cit­ing state­ments made by the Lord Chan­cel­lor in a lec­ture
delivered on 16 Decem­ber 1997.198 Dis­cuss­ing the likely impact of incor­por­at­ing the
ECHR, Lord Irvine of Lairg stated that from incor­por­a­tion, judi­cial scru­tiny:
will not be lim­ited to see­ing if the words of an excep­tion can be sat­is­fied.
The Court will need to be sat­is­fied that the spirit of this excep­tion is made
out. It will need to be sat­is­fied that the inter­fer­ence with the pro­tec­ted right
is jus­ti­fied in the pub­lic interests in a free demo­cratic soci­ety [and will] have
to apply the Con­ven­tion prin­ciple of pro­por­tion­al­ity.
8.2 An end to judi­cial defer­ence
As noted above, the HRA should bring about a sig­ni­fic­ant change in the way UK
courts assess restric­tions on free­dom of expres­sion on grounds of national secur­ity. It
could be argued that the HRA requires courts to adopt an approach closer to that of
194
R v Cent­ral Crim­inal Court, ex parte The Guard­ian, The Observer & Mar­tin Bright, 21 July 2000,
draft judg­ment, p.24
195
F. Klug, K. Starmer and S. Weir, The Three Pil­lars of Liberty: Polit­ical Rights and Freedoms in the
United King­dom (1996), quoted in Michael Allen and Brian Thompson, Cases & Mater­i­als on
Con­sti­tu­tional & Admin­is­trat­ive Law, 5th edi­tion, Black­stone Press, 1998, pp.507–508
196
S. 2 HRA 1998
197
Soer­ing v United King­dom (1989) 11 EHRR 439
198
Lord Irvine of Lairg, “The Devel­op­ment of Human Rights in Bri­tain under and Incor­por­ated
Con­ven­tion on Human Rights,” par­tially reprin­ted in Michael Allen and Brian Thompson, Cases &
Mater­i­als on Con­sti­tu­tional & Admin­is­trat­ive Law, 5th edi­tion, Black­stone Press, 1998, pp.539–541
the Spe­cial Immig­ra­tion Appeals Com­mis­sion, which was itself a response to a case
in which the European Court con­cluded that, where ques­tions of national secur­ity
were at issue, the UK’s immig­ra­tion and deport­a­tion pro­ced­ures were not ECHR
compliant.199 As Lord Woolf MR has observed, sub­ject­ing claims regard­ing national
secur­ity to proper scru­tiny is not a role that the courts read­ily adopt in the absence of
stat­utory intervention.200 The HRA now provides that stat­utory basis and, as Lord
Irvine of Lairg has con­cluded, “a more rig­or­ous scru­tiny than tra­di­tional judi­cial
review will be required.“201
The implic­a­tions of a revised judi­cial approach could be wide-ranging. The HRA
allows the courts to sub­stan­tially rein­ter­pret legis­la­tion, includ­ing the Offi­cial Secrets
Act, and to issue declar­a­tions of incom­pat­ib­il­ity where this fails to render laws ECHR
com­plaint. It also allows courts to re-evaluate the tra­di­tional approach towards the
exer­cise of their dis­cre­tion, for example in award­ing pro­duc­tion orders, interim
injunc­tions and other civil rem­ed­ies. Sim­il­arly, the deterrent effect of pen­al­ties can be
taken into account by assess­ing whether a par­tic­u­lar claim viol­ates the require­ment of
pro­por­tion­al­ity.
8.3 The HRA and injunc­tions
The HRA con­tains spe­cific pro­vi­sions relat­ing to interim injunc­tions which will
sig­ni­fic­antly impede the Government’s abil­ity to secure gag­ging orders of this nature.
Such injunc­tions are often obtained through an ex parte applic­a­tion, that is, in the
absence of the respond­ent. Under the HRA, no ex parte relief can be gran­ted unless
either the gov­ern­ment has taken all prac­tic­able steps to put the respond­ent on notice or
there are com­pel­ling reas­ons for the pro­ceed­ings to be con­duc­ted on this basis.202
Moreover, an interim injunc­tion will be jus­ti­fi­able only if the gov­ern­ment can show
that a per­man­ent injunc­tion is likely to be obtained at trial.203 This is quite dif­fer­ent
from present require­ments, under which the applic­ant only needs to show that there is
an “argu­able” case where the bal­ance of con­veni­ence favours an injunc­tion. Courts
are now expli­citly required to take into account the extent to which the mater­ial in
ques­tion has entered or is about to enter the pub­lic domain and, sig­ni­fic­antly, the
extent to which it would be in the pub­lic interest for the mater­ial to be published.204
These changes – inspired by media con­cern that the judi­ciary might give too little
weight to free­dom of expres­sion as against indi­vidu­als’ right to pri­vacy under Art­icle
8 of the ECHR205 – mean that ex parte interim injunc­tions to pre­vent security-related
dis­clos­ures should now be far more dif­fi­cult to obtain. They are much-needed
safe­guards against a rem­edy fre­quently abused by the Gov­ern­ment to pre­vent the
dis­sem­in­a­tion of a wide range of inform­a­tion.
199
Chahal v United King­dom (1997) 23 EHRR 413
Sec­ret­ary of State for the Home Depart­ment v Shafiq Ur Reh­man, 23 May 2000
201
Lord Irvine of Lairg, “The Devel­op­ment of Human Rights in Bri­tain under and Incor­por­ated
Con­ven­tion on Human Rights,” par­tially reprin­ted in Michael Allen and Brian Thompson, Cases &
Mater­i­als on Con­sti­tu­tional & Admin­is­trat­ive Law, 5th edi­tion, Black­stone Press, 1998, p.557
202
S. 12(2) HRA 1998
203
S. 12(3) HRA 1998
204
S. 12(4)(a) HRA 1998
205
Brian MacAr­thur, “Farewell kiss-and-tell,” The Times, 18 August 2000
200
Sec­tion 12 Human Rights Act 1998 and Free­dom of Expres­sion
Sec­tion 12 (2) If the per­son against whom the applic­a­tion for relief is made (“the
respond­ent”) is neither present nor rep­res­en­ted, no such relief is to be gran­ted unless
the court is sat­is­fied–
(a) that the applic­ant has taken all prac­tic­able steps to notify the respond­ent; or
(b) that there are com­pel­ling reas­ons why the respond­ent should not be noti­fied.
(3) No such relief is to be gran­ted so as to restrain pub­lic­a­tion before trial unless the
court is sat­is­fied that the applic­ant is likely to estab­lish that pub­lic­a­tion should not be
allowed.
(4) The court must have par­tic­u­lar regard to the import­ance of the Con­ven­tion right to
free­dom of expres­sion and, where the pro­ceed­ings relate to mater­ial which the
respond­ent claims, or which appears to the court, to be journ­al­istic, lit­er­ary or artistic
mater­ial (or to con­duct con­nec­ted with such mater­ial), to–
(a) the extent to which–
(i) the mater­ial has, or is about to, become avail­able to the pub­lic; or
(ii) it is, or would be, in the pub­lic interest for the mater­ial to be pub­lished;
(b) any rel­ev­ant pri­vacy code.
8.4 An ECHR-compliant OSA
The HRA should also sig­ni­fic­antly affect applic­a­tion of the Offi­cial Secrets Act. On
the face of it, the OSA is clearly incom­pat­ible with the ECHR and is widely
recog­nised to be so, although it remains to be seen as to whether the judi­ciary will
neces­sar­ily agree with this view. The key issues here are whether it is pos­sible to read
the OSA in such a way that the vari­ous offences estab­lished by that Act are
com­pat­ible with the ECHR; whether, if not, the courts will be will­ing to issue
declar­a­tions of incom­pat­ib­il­ity; and finally, whether, in this case, the Gov­ern­ment will
be pre­pared to amend or repeal the offend­ing pro­vi­sions.
A dis­clos­ure under ss. 2–5 OSA 1989 is crim­inal only if it is “dam­aging”. In the view
of Liberty and ARTICLE 19 this require­ment can eas­ily be read as includ­ing a broad
pub­lic interest test. Under such an inter­pret­a­tion, dam­age would be con­strued broadly,
so that it would refer not only to dir­ect harm to national secur­ity but also to any
bene­fits from a par­tic­u­lar dis­clos­ure, for example in expos­ing wrong­do­ing. This
inter­pret­a­tion is sup­por­ted by s. 12(4)(a) HRA, deal­ing with injunc­tions, which
expli­citly requires that the broader pub­lic interest be taken into account, and by cases
in which the ECHR has held that fur­ther dis­sem­in­a­tion of inform­a­tion already in the
pub­lic zone may not be sanc­tioned.
A more dif­fi­cult ques­tion is whether s. 1 OSA – the pro­vi­sion under which former
mem­bers of the secur­ity and intel­li­gence ser­vices may be pro­sec­uted – can also be
read in such a way as to be com­pat­ible with the ECHR. This offence does not con­tain
any require­ment of dam­age. How­ever, it could be argued that by incor­por­at­ing
Art­icle 10 into UK law, the HRA has impli­citly amended the OSA so as to include
harm and pub­lic interest tests. Des­pite this, it may be worth not­ing that under the
doc­trine of the mar­gin of appre­ci­ation, the European Court has always allowed States
some lat­it­ude in pro­tect­ing national secur­ity, and it remains unclear how the Brit­ish
courts will apply this doc­trine.
Even if the courts do not read harm and pub­lic interest tests into s. 1 OSA, they still
could, and indeed should, issue a declar­a­tion of incom­pat­ib­il­ity under the HRA,
pla­cing the onus on gov­ern­ment to cor­rect that incom­pat­ib­il­ity. How­ever, since such a
declar­a­tion does not affect the pro­ceed­ings in which it is issued,206 in the­ory the courts
could jail a whis­tleblower under the OSA while at the same time recog­nising its
incom­pat­ib­il­ity with the ECHR.
8.5 The HRA and civil claims
The HRA could also provide assist­ance to a genu­ine whis­tleblower facing the full
range of civil claims that the gov­ern­ment habitu­ally deploys against those who make
dis­clos­ures of security-related inform­a­tion. A pub­lic author­ity will only to be able
bene­fit from civil rem­ed­ies – includ­ing dam­ages, account of profits and per­man­ent
injunc­tions – where they are ECHR-compliant, in the sense that they are neces­sary in
a demo­cratic soci­ety. Where the applic­ant is a true pub­lic actor, as opposed to a
private one where the rules might be dif­fer­ent, the same require­ments of harm and
pub­lic interest should apply. This should apply, for example, to claims by the Secur­ity
and Intel­li­gence Ser­vices for breach of con­fid­ence or con­tract. Unless these con­di­tions
are sat­is­fied, grant­ing the gov­ern­ment a civil law rem­edy would not be a pro­por­tion­ate
response to the dis­clos­ure.
8.6 Con­clu­sion
The HRA requires UK courts to be more act­ive in their scru­tiny of restric­tions on
free­dom of expres­sion, includ­ing those jus­ti­fied in the name of national secur­ity. They
should now assess whether such restric­tions are neces­sary in a demo­cratic soci­ety,
rather than simply apply the weak stand­ard of judi­cial review. This should mean that
injunc­tions and other civil law rem­ed­ies will be harder to obtain; pro­duc­tion orders
more dif­fi­cult to jus­tify; and con­vic­tions under the OSA restric­ted to a nar­row range
of genu­inely dam­aging dis­clos­ures. ARTICLE 19 and Liberty see the incor­por­a­tion of
the ECHR into UK law through the HRA as an extremely pos­it­ive devel­op­ment which
provides an oppor­tun­ity to redress the cur­rent strik­ing imbal­ance between the right to
free­dom of expres­sion and national secur­ity. We sin­cerely hope that the courts
embrace this oppor­tun­ity to bring about sig­ni­fic­ant changes in the law.
206
Laurence Lust­garten, “Free­dom of Expres­sion, Dis­sent, and National Secur­ity in the United
King­dom,” in Sandra Coliver et al, Secrecy and Liberty: National Secur­ity, Free­dom of Expres­sion and
Access to Inform­a­tion, Kluwer Law, 1999, p. 470
9 Recom­mend­a­tions
The pro­tec­tion of national secur­ity is a genu­ine and legit­im­ate interest, not simply of
the state or the gov­ern­ment of the day, but of the pub­lic at large. How­ever, as this
report has shown, cur­rent law and prac­tice in the UK sig­nally fails to provide a proper
bal­ance between the public’s right to free­dom of expres­sion and free­dom of
inform­a­tion and these national secur­ity interests. The law is overly restrict­ive,
effect­ively pre­cludes proper judi­cial over­sight and encour­ages abuse.
Cor­rect­ing the flaws of cur­rent law and prac­tice – design­ing a struc­ture able to deliver
an appro­pri­ate bal­ance between free expres­sion and national secur­ity – demands a
recog­ni­tion of the fact that this is not a mat­ter of weigh­ing the interests of the state
against the interests of its cit­izens. Ulti­mately, proper pro­tec­tion of the right to free
expres­sion will lead to more open, account­able and bet­ter gov­ern­ment, as well as
more appropriately-run, effect­ive secur­ity ser­vices. This is in the over­all interest of
the State, as well as indi­vidu­als, since both free­dom of expres­sion and national
secur­ity are, ulti­mately, interests of the pub­lic. Bal­an­cing the two is a mat­ter of
determ­in­ing how best to serve the over­all pub­lic interest.
To the extent that judges in Bri­tain have ten­ded to adopt a “stat­ist view of the pub­lic
interest,“207 they have failed to strike an appro­pri­ate bal­ance between these two
interests. Tak­ing bet­ter account of cit­izens and their rights and of the cor­rect­ive
func­tion of open gov­ern­ment would aid in strik­ing a bet­ter bal­ance. The start­ing point
for this bal­an­cing exer­cise has to be a pre­sump­tion in favour of free expres­sion,
sub­ject to narrowly-drawn restric­tions which the author­it­ies can jus­tify as neces­sary to
pro­tect a legit­im­ate aim. By expli­citly incor­por­at­ing a test of this sort, the Human
Rights Act 1998 provides a unique oppor­tun­ity to redress the imbal­ance that cur­rently
applies under Brit­ish law and practice.208
To help provide a bet­ter bal­ance between free­dom of expres­sion and national secur­ity
in the United King­dom, com­pat­ible with inter­na­tional stand­ards in this area, Liberty
and ARTICLE 19 make the fol­low­ing recom­mend­a­tions to the UK author­it­ies:
Recom­mend­a­tion 1: Com­pre­hens­ive Review of Exist­ing Law
The gov­ern­ment should imme­di­ately put in place a com­pre­hens­ive pro­cess, includ­ing
broad pub­lic con­sulta­tions, to review all legis­la­tion and com­mon law rules which
restrict expres­sion and inform­a­tion on grounds of national secur­ity. All such rules
should be brought into line with the fol­low­ing recom­mend­a­tions.
Recom­mend­a­tion 2: Review of Ongo­ing Pro­sec­u­tions and Con­vic­tions
The rel­ev­ant author­it­ies should imme­di­ately review all ongo­ing pro­sec­u­tions and
other legal meas­ures which seek to jus­tify restric­tions on expres­sion or inform­a­tion on
207
Sydney Kentridge QC, “The Incor­por­a­tion of the European Con­ven­tion on Human Rights,” quoted
in Michael Allen and Brian Thompson, Cases & Mater­i­als on Con­sti­tu­tional & Admin­is­trat­ive Law,
5th edi­tion, Black­stone Press, 1998, p. 554
208
Indeed, the change of per­spect­ive encour­aged by the HRA may already be mak­ing itself felt, since
“senior judges have been pro­tect­ing free speech more strongly on the eve of the com­ing into force of
the Human Rights Act 1998″. Anthony Lester, “Find­ing com­mon pur­pose,” The Observer, 23 July
2000
grounds of national secur­ity. Where the applic­able stand­ards do not con­form to these
recom­mend­a­tions, the pro­sec­u­tion or other meas­ure should be dropped. A sim­ilar
review should be con­duc­ted in rela­tion to any legal sanc­tions already applied, and
redress should be provided as appro­pri­ate where either the sanc­tions them­selves or the
legal pro­vi­sions under which they were imposed do not con­form to these
recom­mend­a­tions.
Recom­mend­a­tion 3: Judi­cial Scru­tiny of all National Secur­ity Restric­tions
Any restric­tion on expres­sion or inform­a­tion on grounds of national secur­ity should
be sub­ject to a full appeal on the mer­its, and not just to judi­cial review, by the courts.
Where the author­it­ies claim that inform­a­tion can­not be revealed in open court, the
rem­edy should be for the judi­cial author­it­ies to review that inform­a­tion in cam­era, and
not to deny effect­ive access to the courts.
Recom­mend­a­tion 4: Clear Stat­utory Defin­i­tion of National Secur­ity
All legis­la­tion pos­ing restric­tions on expres­sion or inform­a­tion on grounds of national
secur­ity should include a clear and nar­row stat­utory defin­i­tion of national secur­ity.
Guid­ance in rela­tion to such a defin­i­tion can be found in Prin­ciple 2(a) of
Johan­nes­burg Prin­ciples, which reads as fol­lows:
A restric­tion sought to be jus­ti­fied on the ground of national secur­ity is not
legit­im­ate unless its genu­ine pur­pose and demon­strable effect is to pro­tect a
country’s exist­ence or its ter­rit­orial integ­rity against the use or threat of
force, or its capa­city to respond to the use or threat of force, whether from
an external source, such as a mil­it­ary threat, or an internal source, such as
incite­ment to viol­ent over­throw of the gov­ern­ment.
Recom­mend­a­tion 5: Bur­den of Proof to Rest with the Author­it­ies
In all cases involving restric­tions on expres­sion or inform­a­tion on grounds of national
secur­ity, those seek­ing to apply the restric­tion should bear the bur­den of prov­ing that
the restric­tion meets the stand­ards out­lined in these recom­mend­a­tions.
Recom­mend­a­tion 6: Three-part Test in European Con­ven­tion to Apply
No restric­tion on expres­sion or inform­a­tion on grounds of national secur­ity is
legit­im­ate unless it meets the fol­low­ing three-part test:
• it must be pre­scribed by law, in the sense that the law is access­ible,
   unam­bigu­ous and nar­rowly and pre­cisely drawn, and that indi­vidu­als may
  fore­see in advance whether a par­tic­u­lar action is unlaw­ful;
• its genu­ine pur­pose and demon­strable effect is to pro­tect a legit­im­ate national
   secur­ity interest; and
• it is neces­sary in a demo­cratic soci­ety and, in par­tic­u­lar:
(a) the expres­sion or inform­a­tion at issue poses a ser­i­ous threat to a legit­im­ate
national secur­ity interest;
(b) the restric­tion imposed is the least restrict­ive means pos­sible for
pro­tect­ing that interest; and
© the harm to free­dom of expres­sion is not dis­pro­por­tion­ate to the bene­fits
of the restric­tion in terms of pro­tect­ing national secur­ity.
Recom­mend­a­tion 7: No Pun­ish­ment without Dam­age: The Sub­stan­tial Harm Test
No one should be sub­ject to crim­inal pen­alty, includ­ing under the Offi­cial Secrets
Act, for either a primary or a sec­ond­ary dis­clos­ure of inform­a­tion unless that
dis­clos­ure poses a real risk of sub­stan­tial harm to a legit­im­ate national secur­ity
interest and there was a spe­cific inten­tion to cause harm of that sort. The fol­low­ing
factors should be taken into account in assess­ing whether a par­tic­u­lar dis­clos­ure meets
this stand­ard:
• whether the inform­a­tion has already entered, or is likely soon to enter, the
   pub­lic domain, includ­ing via the Inter­net; and
• whether there is an dir­ect and imme­di­ate con­nec­tion – a causal link – between
       the dis­clos­ure and the risk of harm.
Recom­mend­a­tion 8: A Pub­lic Interest Defence to Apply
All restric­tions on expres­sion and inform­a­tion on grounds of national secur­ity,
whether crim­inal or civil, should be sub­ject to a pub­lic interest defence so that
sanc­tion or liab­il­ity should ensue only where any dam­age to national secur­ity is not
out­weighed by a cor­res­pond­ing pub­lic interest in dis­clos­ure.
Recom­mend­a­tion 9: Sanc­tions should not be Dis­pro­por­tion­ate
Any legal sanc­tions, crim­inal or civil, for breach of laws restrict­ing expres­sion or
inform­a­tion on grounds of national secur­ity should not be so severe as to have a
dis­pro­por­tion­ate effect on free­dom of expres­sion and inform­a­tion. In par­tic­u­lar, in
impos­ing sanc­tions, decision-makers should take account not only of the effect on the
indi­vidual in breach, but also the wider chilling effect.
Recom­mend­a­tion 10: Lim­it­ing the Régime of Injunc­tions
The exist­ing régime of injunc­tions should be lim­ited in the fol­low­ing ways:
• ex parte interim injunc­tions should not be gran­ted where they are not
   abso­lutely neces­sary and the applic­ant has not taken all prac­tical steps to put
  the respond­ent on notice;
• the court should appoint a “spe­cial advoc­ate” in all pro­ceed­ings where an ex
       parte interim injunc­tion is being sought;
• no interim injunc­tion should be gran­ted unless the applic­ant can show that he
   or she is likely, at trial on the mer­its, to suc­ceed in obtain­ing an order
  restrain­ing pub­lic­a­tion;
• in decid­ing whether to grant an injunc­tion, judges should take into account the
   pre­sump­tion in favour of the right to free­dom of expres­sion and inform­a­tion,
  and the severe impact of an injunc­tion, as a form of prior restraint, on these
 rights;
• the grant of an injunc­tion should be sub­ject to a pub­lic interest test and, in
   par­tic­u­lar, no injunc­tion should be gran­ted unless the bene­fits, in terms of
  avoid­ing harm to a legit­im­ate national secur­ity interest, sig­ni­fic­antly and
 clearly out­weigh the harm to free­dom of expres­sion;
• no injunc­tion should be gran­ted in respect of inform­a­tion already in the pub­lic
   domain, regard­less of the means by which the inform­a­tion was dis­sem­in­ated,
  includ­ing via the Inter­net; and
• any decision to award an interim injunc­tion should be sub­ject to speedy review
   and there should be an oppor­tun­ity for reg­u­lar re-appraisal of any on-going
  injunc­tion, interim or final.
Recom­mend­a­tion 11: Pro­tec­tion for Con­fid­en­tial Sources and Inform­a­tion
Journ­al­ists should not be required to reveal con­fid­en­tial sources or inform­a­tion unless
there are excep­tional cir­cum­stances, includ­ing an over­rid­ing pub­lic interest, in such a
require­ment. In par­tic­u­lar, journ­al­ists should be able to with­hold con­fid­en­tial sources
or inform­a­tion unless the party seek­ing dis­clos­ure can show that it is neces­sary for the
con­duct of the defence of an accused per­son in a crim­inal trial or to the interest of
soci­ety in crim­inal invest­ig­a­tions. Neces­sity, in this con­text, implies the fol­low­ing:
• the mater­ial in ques­tion will mater­i­ally assist the defence or crim­inal
   invest­ig­a­tion;
• there is no altern­at­ive means by which the inform­a­tion might be obtained; and
• the pub­lic interest in dis­clos­ure sig­ni­fic­antly out­weighs the harm to free­dom of
   expres­sion from dis­clos­ure.
Recom­mend­a­tion 12: The DA-Notice Sys­tem should be Dis­mantled
The sys­tem as presently con­sti­tuted should be dis­mantled. Any future secur­ity
advis­ory sys­tem must be strictly vol­un­tary and not a response to oppress­ive secrecy or
other secur­ity laws. Where the press makes use of this sys­tem and receives an
indic­a­tion that no dam­age to national secur­ity is threatened by a given story, this
out­come should be able to guar­an­tee that there will be no sub­sequent adverse
con­sequences as a res­ult of pub­lic­a­tion.
Recom­mend­a­tion 13: Exten­sion of stat­utory pro­tec­tion for whis­tleblowers
The Pub­lic Interest Dis­clos­ure Act 1998 should be amended so that it includes within
its ambit secur­ity and intel­li­gence per­son­nel.
Recom­mend­a­tion 14: Account­ab­il­ity Mech­an­isms for the Secur­ity and Intel­li­gence
Ser­vices should be Enhanced
The Intel­li­gence and Secur­ity Com­mit­tee should be given full Select Com­mit­tee
status, includ­ing the right to review the oper­a­tions of bod­ies fall­ing within its man­date
and the abil­ity to decide on its own whether or not to pub­lish its decisions.
——————————————————————————–
APPENDIX 1
THE JOHANNESBURG PRINCIPLES ON NATIONAL SECURITY,
FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION
INTRODUCTION
These Prin­ciples were adop­ted on 1 Octo­ber 1995 by a group of experts in
inter­na­tional law, national secur­ity, and human rights con­vened by ARTICLE 19, the
Inter­na­tional Centre Against Cen­sor­ship, in col­lab­or­a­tion with the Centre for Applied
Legal Stud­ies of the Uni­ver­sity of the Wit­water­srand, in Johan­nes­burg.
The Prin­ciples are based on inter­na­tional and regional law and stand­ards relat­ing to
the pro­tec­tion of human rights, evolving state prac­tice (as reflec­ted, inter alia, in
judg­ments of national courts), and the gen­eral prin­ciples of law recog­nized by the
com­munity of nations.
These Prin­ciples acknow­ledge the endur­ing applic­ab­il­ity of the Siracusa Prin­ciples on
the Lim­it­a­tion and Derog­a­tion Pro­vi­sions in the Inter­na­tional Cov­en­ant on Civil and
Polit­ical Rights and the Paris Min­imum Stand­ards of Human Rights Norms In a State
of Emergency.209
PREAMBLE
The par­ti­cipants involved in draft­ing the present Prin­ciples:
Con­sid­er­ing that, in accord­ance with the prin­ciples pro­claimed in the Charter of the
United Nations, recog­ni­tion of the inher­ent dig­nity and of the equal and inali­en­able
rights of all mem­bers of the human fam­ily is the found­a­tion of free­dom, justice and
peace in the world;
Con­vinced that it is essen­tial, if people are not to be com­pelled to have recourse, as a
last resort, to rebel­lion against tyranny and oppres­sion, that human rights should be
pro­tec­ted by the rule of law;
Reaf­firm­ing their belief that free­dom of expres­sion and free­dom of inform­a­tion are
vital to a demo­cratic soci­ety and are essen­tial for its pro­gress and wel­fare and for the
enjoy­ment of other human rights and fun­da­mental freedoms;
Tak­ing into account rel­ev­ant pro­vi­sions of the Uni­ver­sal Declar­a­tion of Human
Rights, the Inter­na­tional Cov­en­ant on Civil and Polit­ical Rights, the UN Con­ven­tion
on the Rights of the Child, the UN Basic Prin­ciples on the Inde­pend­ence of the
Judi­ciary, the African Charter on Human and Peoples’ Rights, the Amer­ican
Con­ven­tion on Human Rights and the European Con­ven­tion on Human Rights;
209
The Siracusa Prin­ciples were adop­ted in May 1984 by a group of experts con­vened by the
Inter­na­tional Com­mis­sion of Jur­ists, the Inter­na­tional Asso­ci­ation of Penal Law, the Amer­ican
Asso­ci­ation for the Inter­na­tional Com­mis­sion of Jur­ists, the Urban Mor­gan Insti­tute for Human Rights,
and the Inter­na­tional Insti­tute of Higher Stud­ies in Crim­inal Sci­ences. The Paris Min­imum Stand­ards
were adop­ted in April 1984 by a group of experts under the aus­pices of the Inter­na­tional Law
Asso­ci­ation
Keenly aware that some of the most ser­i­ous viol­a­tions of human rights and
fun­da­mental freedoms are jus­ti­fied by gov­ern­ments as neces­sary to pro­tect national
secur­ity;
Bear­ing in mind that it is imper­at­ive, if people are to be able to mon­itor the con­duct of
their gov­ern­ment and to par­ti­cip­ate fully in a demo­cratic soci­ety, that they have access
to government-held inform­a­tion;
Desir­ing to pro­mote a clear recog­ni­tion of the lim­ited scope of restric­tions on free­dom
of expres­sion and free­dom of inform­a­tion that may be imposed in the interest of
national secur­ity, so as to dis­cour­age gov­ern­ments from using the pre­text of national
secur­ity to place unjus­ti­fied restric­tions on the exer­cise of these freedoms;
Recog­niz­ing the neces­sity for legal pro­tec­tion of these freedoms by the enact­ment of
laws drawn nar­rowly and with pre­ci­sion, and which ensure the essen­tial require­ments
of the rule of law; and
Reit­er­at­ing the need for judi­cial pro­tec­tion of these freedoms by inde­pend­ent courts;
Agree upon the fol­low­ing Prin­ciples, and recom­mend that appro­pri­ate bod­ies at the
national, regional and inter­na­tional levels under­take steps to pro­mote their wide­spread
dis­sem­in­a­tion, accept­ance and imple­ment­a­tion:
I. GENERAL PRINCIPLES
Prin­ciple 1: Free­dom of Opin­ion, Expres­sion and Inform­a­tion
(a) Every­one has the right to hold opin­ions without inter­fer­ence.
(b) Every­one has the right to free­dom of expres­sion, which includes the free­dom to
seek, receive and impart inform­a­tion and ideas of all kinds, regard­less of fron­ti­ers,
either orally, in writ­ing or in print, in the form of art, or through any other media of
his or her choice.
© The exer­cise of the rights provided for in para­graph (b) may be sub­ject to
restric­tions on spe­cific grounds, as estab­lished in inter­na­tional law, includ­ing for the
pro­tec­tion of national secur­ity.
(d) No restric­tion on free­dom of expres­sion or inform­a­tion on the ground of national
secur­ity may be imposed unless the gov­ern­ment can demon­strate that the restric­tion is
pre­scribed by law and is neces­sary in a demo­cratic soci­ety to pro­tect a legit­im­ate
national secur­ity interest.210 The bur­den of demon­strat­ing the valid­ity of the
restric­tion rests with the gov­ern­ment.
Prin­ciple 1.1: Pre­scribed by Law
210
For the pur­poses of these Prin­ciples, a demo­cratic soci­ety is one which has a gov­ern­ment that is
genu­inely account­able to an entity or organ dis­tinct from itself; genu­ine, peri­odic elec­tions by uni­ver­sal
and equal suf­frage held by secret bal­lot that guar­an­tee the free expres­sion of the will of the elect­ors;
polit­ical groups that are free to organ­ize in oppos­i­tion to the gov­ern­ment in office; and effect­ive legal
guar­an­tees of fun­da­mental rights enforced by an inde­pend­ent judi­ciary. This for­mu­la­tion is based on a
defin­i­tion of con­sti­tu­tion­al­ism provided by Pro­fessor S A de Smith in The Com­mon­wealth and its
Con­sti­tu­tion (Lon­don: Stevens & Sons, 1964), 106, aug­men­ted by ref­er­ence to Art­icle 25 of the
Inter­na­tional Cov­en­ant on Civil and Polit­ical Rights.
(a) Any restric­tion on expres­sion or inform­a­tion must be pre­scribed by law. The law
must be access­ible, unam­bigu­ous, drawn nar­rowly and with pre­ci­sion so as to enable
indi­vidu­als to fore­see whether a par­tic­u­lar action is unlaw­ful.
(b) The law should provide for adequate safe­guards against abuse, includ­ing prompt,
full and effect­ive judi­cial scru­tiny of the valid­ity of the restric­tion by an inde­pend­ent
court or tribunal.
Prin­ciple 1.2: Pro­tec­tion of a Legit­im­ate National Secur­ity Interest
Any restric­tion on expres­sion or inform­a­tion that a gov­ern­ment seeks to jus­tify on
grounds of national secur­ity must have the genu­ine pur­pose and demon­strable effect
of pro­tect­ing a legit­im­ate national secur­ity interest.
Prin­ciple 1.3: Neces­sary in a Demo­cratic Soci­ety
To estab­lish that a restric­tion on free­dom of expres­sion or inform­a­tion is neces­sary to
pro­tect a legit­im­ate national secur­ity interest, a gov­ern­ment must demon­strate that:
(a) the expres­sion or inform­a­tion at issue poses a ser­i­ous threat to a legit­im­ate
national secur­ity interest;
(b) the restric­tion imposed is the least restrict­ive means pos­sible for pro­tect­ing that
interest; and
© the restric­tion is com­pat­ible with demo­cratic prin­ciples.
Prin­ciple 2: Legit­im­ate National Secur­ity Interest
(a) A restric­tion sought to be jus­ti­fied on the ground of national secur­ity is not
legit­im­ate unless its genu­ine pur­pose and demon­strable effect is to pro­tect a country’s
exist­ence or its ter­rit­orial integ­rity against the use or threat of force, or its capa­city to
respond to the use or threat of force, whether from an external source, such as a
mil­it­ary threat, or an internal source, such as incite­ment to viol­ent over­throw of the
gov­ern­ment.
(b) In par­tic­u­lar, a restric­tion sought to be jus­ti­fied on the ground of national secur­ity
is not legit­im­ate if its genu­ine pur­pose or demon­strable effect is to pro­tect interests
unre­lated to national secur­ity, includ­ing, for example, to pro­tect a gov­ern­ment from
embar­rass­ment or expos­ure of wrong­do­ing, or to con­ceal inform­a­tion about the
func­tion­ing of its pub­lic insti­tu­tions, or to entrench a par­tic­u­lar ideo­logy, or to
sup­press indus­trial unrest.
Prin­ciple 3: States of Emer­gency
In time of pub­lic emer­gency which threatens the life of the coun­try and the exist­ence
of which is offi­cially and law­fully pro­claimed in accord­ance with both national and
inter­na­tional law, a state may impose restric­tions on free­dom of expres­sion and
inform­a­tion but only to the extent strictly required by the exi­gen­cies of the situ­ation
and only when and for so long as they are not incon­sist­ent with the government’s
other oblig­a­tions under inter­na­tional law.
Prin­ciple 4: Pro­hib­i­tion of Dis­crim­in­a­tion
In no case may a restric­tion on free­dom of expres­sion or inform­a­tion, includ­ing on the
ground of national secur­ity, involve dis­crim­in­a­tion based on race, col­our, sex,
lan­guage, reli­gion, polit­ical or other opin­ion, national or social ori­gin, nation­al­ity,
prop­erty, birth or other status.
II. RESTRICTIONS ON FREEDOM OF EXPRESSION
Prin­ciple 5: Pro­tec­tion of Opin­ion
No one may be sub­jec­ted to any sort of restraint, dis­ad­vant­age or sanc­tion because of
his or her opin­ions or beliefs.
Prin­ciple 6: Expres­sion That May Threaten National Secur­ity
Sub­ject to Prin­ciples 15 and 16, expres­sion may be pun­ished as a threat to national
secur­ity only if a gov­ern­ment can demon­strate that:
(a) the expres­sion is inten­ded to incite immin­ent viol­ence;
(b) it is likely to incite such viol­ence; and
© there is a dir­ect and imme­di­ate con­nec­tion between the expres­sion and the
like­li­hood or occur­rence of such viol­ence.
Prin­ciple 7: Pro­tec­ted Expres­sion
(a) Sub­ject to Prin­ciples 15 and 16, the peace­ful exer­cise of the right to free­dom of
expres­sion shall not be con­sidered a threat to national secur­ity or sub­jec­ted to any
restric­tions or pen­al­ties. Expres­sion which shall not con­sti­tute a threat to national
secur­ity includes, but is not lim­ited to, expres­sion that:
(i) advoc­ates non-violent change of gov­ern­ment policy or the gov­ern­ment itself;
(ii) con­sti­tutes cri­ti­cism of, or insult to, the nation, the state or its sym­bols, the
gov­ern­ment, its agen­cies, or pub­lic officials,211 or a for­eign nation, state or its
sym­bols, gov­ern­ment, agen­cies or pub­lic offi­cials;
(iii) con­sti­tutes objec­tion, or advocacy of objec­tion, on grounds of reli­gion,
con­science or belief, to mil­it­ary con­scrip­tion or ser­vice, a par­tic­u­lar con­flict, or the
threat or use of force to settle inter­na­tional dis­putes;
(iv) is dir­ec­ted at com­mu­nic­at­ing inform­a­tion about alleged viol­a­tions of
inter­na­tional human rights stand­ards or inter­na­tional human­it­arian law.
(b) No one may be pun­ished for cri­ti­ciz­ing or insult­ing the nation, the state or its
sym­bols, the gov­ern­ment, its agen­cies, or pub­lic offi­cials, or a for­eign nation, state or
its sym­bols, gov­ern­ment, agency or pub­lic offi­cial unless the cri­ti­cism or insult was
inten­ded and likely to incite immin­ent viol­ence.
Prin­ciple 8: Mere Pub­li­city of Activ­it­ies That May Threaten National Secur­ity
211
“Pub­lic offi­cials”, for the pur­pose of these Prin­ciples, include the Head of State; the Head of
Gov­ern­ment; all gov­ern­ment offi­cials includ­ing Min­is­ters; all officers of the mil­it­ary, secur­ity forces
and police; and all people who hold elec­ted office.
Expres­sion may not be pre­ven­ted or pun­ished merely because it trans­mits inform­a­tion
issued by or about an organ­iz­a­tion that a gov­ern­ment has declared threatens national
secur­ity or a related interest.
Prin­ciple 9: Use of a Minor­ity or Other Lan­guage
Expres­sion, whether writ­ten or oral, can never be pro­hib­ited on the ground that it is in
a par­tic­u­lar lan­guage, espe­cially the lan­guage of a national minor­ity.
Prin­ciple 10: Unlaw­ful Inter­fer­ence With Expres­sion by Third Parties
Gov­ern­ments are obliged to take reas­on­able meas­ures to pre­vent private groups or
indi­vidu­als from inter­fer­ing unlaw­fully with the peace­ful exer­cise of free­dom of
expres­sion, even where the expres­sion is crit­ical of the gov­ern­ment or its policies. In
par­tic­u­lar, gov­ern­ments are obliged to con­demn unlaw­ful actions aimed at silen­cing
free­dom of expres­sion, and to invest­ig­ate and bring to justice those respons­ible.
III. RESTRICTIONS ON FREEDOM OF INFORMATION
Prin­ciple 11: Gen­eral Rule on Access to Inform­a­tion
Every­one has the right to obtain inform­a­tion from pub­lic author­it­ies, includ­ing
inform­a­tion relat­ing to national secur­ity. No restric­tion on this right may be imposed
on the ground of national secur­ity unless the gov­ern­ment can demon­strate that the
restric­tion is pre­scribed by law and is neces­sary in a demo­cratic soci­ety to pro­tect a
legit­im­ate national secur­ity interest.
Prin­ciple 12: Nar­row Des­ig­na­tion of Secur­ity Exemp­tion
A state may not cat­egor­ic­ally deny access to all inform­a­tion related to national
secur­ity, but must des­ig­nate in law only those spe­cific and nar­row cat­egor­ies of
inform­a­tion that it is neces­sary to with­hold in order to pro­tect a legit­im­ate national
secur­ity interest.
Prin­ciple 13: Pub­lic Interest in Dis­clos­ure
In all laws and decisions con­cern­ing the right to obtain inform­a­tion, the pub­lic interest
in know­ing the inform­a­tion shall be a primary con­sid­er­a­tion.
Prin­ciple 14: Right to Inde­pend­ent Review of Denial of Inform­a­tion
The state is obliged to adopt appro­pri­ate meas­ures to give effect to the right to obtain
inform­a­tion. These meas­ures shall require the author­it­ies, if they deny a request for
inform­a­tion, to spe­cify their reas­ons for doing so in writ­ing and as soon as reas­on­ably
pos­sible; and shall provide for a right of review of the mer­its and the valid­ity of the
denial by an inde­pend­ent author­ity, includ­ing some form of judi­cial review of the
leg­al­ity of the denial. The review­ing author­ity must have the right to exam­ine the
inform­a­tion withheld.212
Prin­ciple 15: Gen­eral Rule on Dis­clos­ure of Secret Inform­a­tion
212
Addi­tional grounds for obtain­ing and cor­rect­ing per­sonal inform­a­tion in files about one­self, such as
the right to pri­vacy, lie bey­ond the scope of these Prin­ciples.
No per­son may be pun­ished on national secur­ity grounds for dis­clos­ure of inform­a­tion
if (1) the dis­clos­ure does not actu­ally harm and is not likely to harm a legit­im­ate
national secur­ity interest, or (2) the pub­lic interest in know­ing the inform­a­tion
out­weighs the harm from dis­clos­ure.
Prin­ciple 16: Inform­a­tion Obtained Through Pub­lic Ser­vice
No per­son may be sub­jec­ted to any det­ri­ment on national secur­ity grounds for
dis­clos­ing inform­a­tion that he or she learned by vir­tue of gov­ern­ment ser­vice if the
pub­lic interest in know­ing the inform­a­tion out­weighs the harm from dis­clos­ure.
Prin­ciple 17: Inform­a­tion in the Pub­lic Domain
Once inform­a­tion has been made gen­er­ally avail­able, by whatever means, whether or
not law­ful, any jus­ti­fic­a­tion for try­ing to stop fur­ther pub­lic­a­tion will be over­rid­den by
the public’s right to know.
Prin­ciple 18: Pro­tec­tion of Journ­al­ists’ Sources
Pro­tec­tion of national secur­ity may not be used as a reason to com­pel a journ­al­ist to
reveal a con­fid­en­tial source.
Prin­ciple 19: Access to Restric­ted Areas
Any restric­tion on the free flow of inform­a­tion may not be of such a nature as to
thwart the pur­poses of human rights and human­it­arian law. In par­tic­u­lar, gov­ern­ments
may not pre­vent journ­al­ists or rep­res­ent­at­ives of inter­gov­ern­mental or non–
gov­ern­mental organ­iz­a­tions with a man­date to mon­itor adher­ence to human rights or
human­it­arian stand­ards from enter­ing areas where there are reas­on­able grounds to
believe that viol­a­tions of human rights or human­it­arian law are being, or have been,
com­mit­ted. Gov­ern­ments may not exclude journ­al­ists or rep­res­ent­at­ives of such
organ­iz­a­tions from areas that are exper­i­en­cing viol­ence or armed con­flict except
where their pres­ence would pose a clear risk to the safety of oth­ers.
IV. RULE OF LAW AND OTHER MATTERS
Prin­ciple 20: Gen­eral Rule of Law Pro­tec­tions
Any per­son accused of a security-related crime213 involving expres­sion or inform­a­tion
is entitled to all of the rule of law pro­tec­tions that are part of inter­na­tional law. These
include, but are not lim­ited to, the fol­low­ing rights:
(a) the right to be pre­sumed inno­cent;
(b) the right not to be arbit­rar­ily detained;
© the right to be informed promptly in a lan­guage the per­son can under­stand of
the charges and the sup­port­ing evid­ence against him or her;
(d) the right to prompt access to coun­sel of choice;
(e) the right to a trial within a reas­on­able time;
213
For the pur­poses of these Prin­ciples, a “security-related crime” is an act or omis­sion which the
gov­ern­ment claims must be pun­ished in order to pro­tect national secur­ity or a closely related interest.
(f) the right to have adequate time to pre­pare his or her defence;
(g) the right to a fair and pub­lic trial by an inde­pend­ent and impar­tial court or
tribunal;
(h) the right to exam­ine pro­sec­u­tion wit­nesses;
(i) the right not to have evid­ence intro­duced at trial unless it has been dis­closed to
the accused and he or she has had an oppor­tun­ity to rebut it; and
(j) the right to appeal to an inde­pend­ent court or tribunal with power to review the
decision on law and facts and set it aside.
Prin­ciple 21: Rem­ed­ies
All rem­ed­ies, includ­ing spe­cial ones, such as habeas cor­pus or amparo, shall be
avail­able to per­sons charged with security-related crimes, includ­ing dur­ing pub­lic
emer­gen­cies which threaten the life of the coun­try, as defined in Prin­ciple 3.
Prin­ciple 22: Right to Trial by an Inde­pend­ent Tribunal
(a) At the option of the accused, a crim­inal pro­sec­u­tion of a security-related crime
should be tried by a jury where that insti­tu­tion exists or else by judges who are
genu­inely inde­pend­ent. The trial of per­sons accused of security-related crimes by
judges without secur­ity of ten­ure con­sti­tutes a prima facie viol­a­tion of the right to be
tried by an inde­pend­ent tribunal.
(b) In no case may a civil­ian be tried for a security-related crime by a mil­it­ary court or
tribunal.
© In no case may a civil­ian or mem­ber of the mil­it­ary be tried by an ad hoc or
spe­cially con­sti­tuted national court or tribunal.
Prin­ciple 23: Prior Cen­sor­ship
Expres­sion shall not be sub­ject to prior cen­sor­ship in the interest of pro­tect­ing
national secur­ity, except in time of pub­lic emer­gency which threatens the life of the
coun­try under the con­di­tions stated in Prin­ciple 3.
Prin­ciple 24: Dis­pro­por­tion­ate Pun­ish­ments
A per­son, media out­let, polit­ical or other organ­iz­a­tion may not be sub­ject to such
sanc­tions, restraints or pen­al­ties for a security-related crime involving free­dom of
expres­sion or inform­a­tion that are dis­pro­por­tion­ate to the ser­i­ous­ness of the actual
crime.
Prin­ciple 25: Rela­tion of These Prin­ciples to Other Stand­ards
Noth­ing in these Prin­ciples may be inter­preted as restrict­ing or lim­it­ing any human
rights or freedoms recog­nized in inter­na­tional, regional or national law or stand­ards.
The fol­low­ing experts par­ti­cip­ated in the Con­sulta­tion that draf­ted these Prin­ciples in
their per­sonal capa­city. Organ­iz­a­tions and affil­i­ations are lis­ted for pur­poses of
iden­ti­fic­a­tion only.
Laurel Angus, Exec­ut­ive Dir­ector, Centre for Applied Legal Stud­ies, Uni­ver­sity of the
Wit­water­srand, South Africa
Lawrence W Beer, Pro­fessor of Civil Rights, Depart­ment of Gov­ern­ment and Law,
Lafay­ette Col­lege, USA
Geof­frey Bind­man, soli­citor, Bind­man and Part­ners, Lon­don, UK
Dana Brisk­man, Legal Dir­ector, Asso­ci­ation for Civil Rights, Israel
Richard Carver, Africa Pro­gramme Con­sult­ant, ARTICLE 19, Lon­don, UK
Yong-Whan Cho, Duksu Law Offices, Seoul, South Korea
Sandra Coliver, Law Pro­gramme Dir­ector, ARTICLE 19, Wash­ing­ton DC, USA
Peter Danowsky, Danowsky & Part­ners, Stock­holm, Sweden
Emmanuel Derieux, Pro­fessor of Media Law, Uni­ver­sity of Paris 2, and Co-editor,
Legi­presse, Paris, France
Frances D’Souza, Exec­ut­ive Dir­ector, ARTICLE 19, Lon­don, UK
Eliza­beth Evatt AC, mem­ber, UN Human Rights Com­mit­tee and legal con­sult­ant,
Sydney, Aus­tralia
Felipe Gonza­lez, Pro­fessor of Law, Diego Portales Uni­ver­sity, San­ti­ago, Chile and
Legal Officer for Latin Amer­ica, Inter­na­tional Human Rights Law Group,
Wash­ing­ton DC
Paul Hoff­man (Con­fer­ence Chair), media law­yer, Los Angeles, USA
Git­obu Iman­yara, Advoc­ate of the High Court of Kenya, and Editor-in-Chief, Nairobi
Law Monthly, Kenya
Lene Johan­nessen, Media Pro­ject, Centre for Applied Legal Stud­ies, Uni­ver­sity of the
Wit­water­srand, Johan­nes­burg, South Africa
Ray­mond Louw, Chair­man, Free­dom of Expres­sion Insti­tute, Johan­nes­burg, South
Africa
Laurence Lust­garten, Pro­fessor of Law, Uni­ver­sity of Southamp­ton, UK
Paul Mahoney, Deputy Regis­trar, European Court of Human Rights, Coun­cil of
Europe214
Gil­bert Mar­cus, Advoc­ate of the Supreme Court of South Africa, Johan­nes­burg, South
Africa
Kate Mar­tin, Exec­ut­ive Dir­ector, Cen­ter for National Secur­ity Stud­ies, Wash­ing­ton
DC, USA
Juan E Men­dez, Gen­eral Coun­sel, Human Rights Watch, New York, USA
214
Because of his pos­i­tion as an inter­na­tional civil ser­vant, Mr Mahoney did not endorse or oppose
these Prin­ciples
Bran­islav Milinkovic, editor, Review of Inter­na­tional Affairs, Bel­grade, Fed­eral
Repub­lic of Yugoslavia
Etienne Mureinik, Pro­fessor of Law, Uni­ver­sity of the Wit­water­srand, Johan­nes­burg,
South Africa
Ann Naughton, Pub­lic­a­tions Dir­ector, ARTICLE 19, Lon­don, UK
Mamadou N’Dao, human rights law­yer and con­sult­ant, Panos Insti­tute, Dakar,
Senegal
Andrew Nicol, QC, Doughty Street Cham­bers, Lon­don, UK
David Pet­rasek, Man­date and Legal Policy Adviser, Amnesty Inter­na­tional, Lon­don,
UK
Laura Pol­lecut, Exec­ut­ive Dir­ector, Law­yers for Human Rights, Pre­toria, South
Africa
John Sangwa, Simeza, Sangwa & Asso­ci­ates, Lusaka, and mem­ber, Fac­ulty of Law,
Uni­ver­sity of Zam­bia
Sergei Sirotkin, Human Rights Com­mis­sion, Moscow, Rus­sia
Mal­colm Smart, Deputy Exec­ut­ive Dir­ector, ARTICLE 19, Lon­don, UK
Tanya Smith, UN Centre for Human Rights, Geneva, Switzer­land
Soli Sor­ab­jee, Senior Advoc­ate, Supreme Court of India, New Delhi, India
K S Ven­kateswaran, advoc­ate, Indian Bar, and mem­ber, Law Fac­ulty, Uni­ver­sity of
Ulster, North­ern Ire­land
Kerim Yildiz, Exec­ut­ive Dir­ector, Kur­d­ish Human Rights Pro­ject, Lon­don, UK
Kyu Ho Youm, Pro­fessor, Cronkite School of Journ­al­ism and Tele­com­mu­nic­a­tion,
Ari­zona State Uni­ver­sity, USA
APPENDIX 2
Sum­mary of recom­mend­a­tions in ARTICLE 19’s pub­lic­a­tion,
The Public’s Right to Know: Prin­ciples on Free­dom of
Inform­a­tion Legis­la­tion (ARTICLE 19, June 1999).
PREFACE
Inform­a­tion is the oxy­gen of demo­cracy. If people do not know what is hap­pen­ing in
their soci­ety, if the actions of those who rule them are hid­den, then they can­not take a
mean­ing­ful part in the affairs of that soci­ety. But inform­a­tion is not just a neces­sity
for people, it is an essen­tial part of good gov­ern­ment. Bad gov­ern­ment needs secrecy
to sur­vive. It allows inef­fi­ciency, waste­ful­ness and cor­rup­tion to thrive. As Amartya
Sen, the Nobel Prize-winning eco­nom­ist has observed, there has never been a
sub­stan­tial fam­ine in a coun­try with a demo­cratic form of gov­ern­ment and a rel­at­ively
free press. Inform­a­tion allows people to scru­tin­ise the actions of a gov­ern­ment and is
the basis for proper, informed debate of those actions.
Most gov­ern­ments, how­ever, prefer to con­duct their busi­ness in secret. In Swahili,
one of the words for gov­ern­ment means “fierce secret”. Even demo­cratic gov­ern­ments
would rather con­duct the bulk of their busi­ness away from the eyes of the pub­lic. And
gov­ern­ments can always find reas­ons for main­tain­ing secrecy – the interests of
national secur­ity, pub­lic order and the wider pub­lic interest are a few examples. Too
often gov­ern­ments treat offi­cial inform­a­tion as their prop­erty, rather than some­thing
which they hold and main­tain on behalf of the people.
That is why ARTICLE 19 has pro­duced this set of inter­na­tional prin­ciples – to set a
stand­ard against which any­one can meas­ure whether domestic laws genu­inely per­mit
access to offi­cial inform­a­tion. They set out clearly and pre­cisely the ways in which
gov­ern­ments can achieve max­imum open­ness, in line with the best inter­na­tional
stand­ards and prac­tice.
Prin­ciples are import­ant as stand­ards but on their own they are not enough. They need
to be used – by cam­paign­ers, by law­yers, by elec­ted rep­res­ent­at­ives and by pub­lic
offi­cials. They need apply­ing in the par­tic­u­lar cir­cum­stances that face each soci­ety, by
people who under­stand their import­ance and are com­mit­ted to trans­par­ency in
gov­ern­ment. We pub­lish these prin­ciples as a con­tri­bu­tion to improv­ing gov­ernance
and account­ab­il­ity and strength­en­ing demo­cracy across the world.
BACKGROUND
These Prin­ciples set out stand­ards for national and inter­na­tional regimes which give
effect to the right to free­dom of inform­a­tion. They are designed primar­ily for national
legis­la­tion on free­dom of inform­a­tion or access to offi­cial inform­a­tion but are equally
applic­able to inform­a­tion held by inter-governmental bod­ies such as the United
Nations and the European Union.
The Prin­ciples are based on inter­na­tional and regional law and stand­ards, evolving
state prac­tice (as reflec­ted, inter alia, in national laws and judg­ments of national
courts) and the gen­eral prin­ciples of law recog­nised by the com­munity of nations.
They are the product of a long pro­cess of study, ana­lysis and con­sulta­tion over­seen by
ARTICLE 19, draw­ing on extens­ive exper­i­ence and work with part­ner organ­isa­tions
in many coun­tries around the world.
PRINCIPLE 1. MAXIMUM DISCLOSURE
Free­dom of inform­a­tion legis­la­tion should by guided by the prin­ciple of max­imum
dis­clos­ure
PRINCIPLE 2. OBLIGATION TO PUBLISH
Pub­lic bod­ies should be under an oblig­a­tion to pub­lish key inform­a­tion
PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT
Pub­lic bod­ies must act­ively pro­mote open gov­ern­ment
PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS
Excep­tions should be clearly and nar­rowly drawn and sub­ject to strict “harm” and
“pub­lic interest” tests
PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS
Requests for inform­a­tion should be pro­cessed rap­idly and fairly and an inde­pend­ent
review of any refus­als should be avail­able
PRINCIPLE 6. COSTS
Indi­vidu­als should not be deterred from mak­ing requests for inform­a­tion by excess­ive
costs
PRINCIPLE 7. OPEN MEETINGS
Meet­ings of pub­lic bod­ies should be open to the pub­lic
PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE
Laws which are incon­sist­ent with the prin­ciple of max­imum dis­clos­ure should be
amended or repealed
PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS
Indi­vidu­als who release inform­a­tion on wrong­do­ing – whis­tleblowers – must be
pro­tec­ted

Spies, Lies, and Whistleblowers” — Subversion chapter

Back­ground to subversion

At this time MI5 was still using the same cri­teria for record­ing indi­vidual sub­vers­ives and their sym­path­isers as was set out by Home Sec­ret­ary David Maxwell-Fyfe in 1952.  He called on the ser­vices to identify any indi­vidual engaged in under­min­ing Par­lia­ment­ary demo­cracy, national secur­ity and/or the eco­nomic well-being of the UK by viol­ent, indus­trial or polit­ical means.  In fact, many would argue that groups who used only polit­ical means to get their point across were merely exer­cising their demo­cratic rights.  In fact, MI5 used pho­tos of demon­stra­tions, cop­ies of elec­tion lists and even lists of sub­scribers to rad­ical left-wing book clubs as indic­at­ors of sub­vers­ive sym­pathy and mem­ber­ship.  Of course, the world was a very dif­fer­ent place when I joined the sec­tion, almost 40 years after Maxwell-Fyfe’s declar­a­tion, not least because of the dis­in­teg­ra­tion of the Soviet Union and its East­ern bloc allies.  

From Maxwell-Fyfe’s state­ment to Par­lia­ment, which was never made law, MI5 and sub­sequent gov­ern­ments used to argue that all mem­bers of cer­tain parties –such as the Com­mun­ist Party of Great Bri­tain (CPGB) or later the bewil­der­ing array of Trot­sky­ists, with names like the Inter­na­tional Marx­ist Group (IMG), Work­ers’ Revolu­tion­ary Party (WRP) Major and Minor, Revolu­tion­ary Com­mun­ist Party (RCP) and Revolu­tion­ary Com­mun­ist Group (RCG), anarch­ists and the extreme right — were threats to the secur­ity of the state or our demo­cratic sys­tem.  This in itself is a con­ten­tious pro­pos­i­tion.  None of these Trot­sky­ist groups was cul­tiv­at­ing East­ern bloc fin­ance or build­ing bombs in smoky back rooms, but were instead using legit­im­ate demo­cratic meth­ods to make their case, such as stand­ing in elec­tions, organ­ising demon­stra­tions and ‘edu­cat­ing’ the work­ers.  They cer­tainly had no alle­gi­ance to a for­eign power, the primary raison d’etre for the invest­ig­a­tion of sub­ver­sion, because, unlike the Com­mun­ist Party, they abhorred the East­ern bloc.

Since MI5 was effect­ively invest­ig­at­ing indi­vidu­als for hold­ing opin­ions the gov­ern­ment did not like — a very un-British pos­i­tion — it was always at pains to point out that it took its respons­ib­il­it­ies with regard to human rights very ser­i­ously, although not ser­i­ously enough to ensure that these activ­it­ies were reg­u­lated by a legal frame­work.  All the service’s phone taps prior to the passing of the Inter­cep­tion of Com­mu­nic­a­tions Act (IOCA) in 1985 were unlaw­ful because there was no legis­la­tion gov­ern­ing the inter­cep­tion of communications1.  In fact, the Home Office War­rants (HOWs) used to jus­tify phone tap­ping and cov­ert entry were so vague as to be mean­ing­less.  There was cer­tainly not enough inform­a­tion for the min­is­ter sign­ing a war­rant to make an informed decision about let­ting the ser­vice break into an individual’s home or bug their phone.

Dur­ing pub­li­city inter­views for her book, Open Secret, the former head of MI5 Dame Stella Rim­ing­ton demon­strated that she at least was far from sens­it­ive to the illeg­al­ity of the activ­it­ies of the service:

I still thought the essence of the Cold War and spies and stuff was fun,’ she said.  ‘You know, going around listen­ing to people’s tele­phones and open­ing their mail and stuff.”

The Human Rights Act (HRA) provides a num­ber of reas­ons why a secur­ity ser­vice is allowed to invade the pri­vacy of an indi­vidual.  The stand­ard is ‘neces­sary in a demo­cracy’.  It does not include ‘fun’.  Dame Stella also admit­ted that files were opened on indi­vidu­als who posed no threat to the state, under­min­ing the author­it­ies’ pre­vi­ous assur­ances that files were only opened on mem­bers of sub­vers­ive organ­isa­tions or their sym­path­isers.  This means that MI5 mon­it­or­ing included legit­im­ate polit­ical activists: 

You can say from the pos­i­tion of 2001 that files were opened on people who were not act­ively threat­en­ing the state, but nev­er­the­less, in the con­text of those days, I think the files that were opened fit­ted that defin­i­tion of sub­ver­sion.  I think, in the past, some of our pre­de­cessors may have been a bit over enthu­si­astic (in open­ing files), but by the time I got there we were very focused on this defin­i­tion and what we were doing.”

She tries to wriggle off the hook by refer­ring to ‘that defin­i­tion of sub­ver­sion’ as if it some­how changed over the years.  The truth is, it did not.  In August 1997 David dis­closed in The Mail on Sunday that files were opened on such indi­vidu­als as Jack Straw and Peter Man­del­son.  Either they were inno­cent vic­tims of MI5’s over-zealous invest­ig­a­tion of sub­vers­ives, in which case they should demand an explan­a­tion from the ser­vice and should estab­lish how many oth­ers were wrong­fully invest­ig­ated, or they really were a threat to our national secur­ity, in which case the Brit­ish people have a right to know.

In fact, MI5 devoted such sig­ni­fic­ant resources to sub­vers­ive groups from the 1940s to 1993, when sub­ver­sion was finally down­graded, that F2 claimed to know more about the fin­ances of the Com­mun­ist Party of Great Bri­tain (CPGB) than the Party did itself!  In communism’s hey­day from the 1950s to the 1970s, around 60 desk officers – each with a num­ber of sup­port staff – spied on the CPGB alone, although F Branch had dwindled to around nine or ten desk officers and agent run­ners, plus around 20–30 sup­port and sec­ret­arial staff by the time I arrived in 1991.  

As pub­lic sup­port for com­mun­ism began to fade dur­ing the 1970s and 80s, F2 had become increas­ingly con­cerned with Mil­it­ant Tend­ency (MT) because of its entry­ist or ‘False Flag’ tac­tics, in which MT mem­bers who had infilt­rated the Labour party stood as can­did­ates for Par­lia­ment and other bod­ies without declar­ing their asso­ci­ation with Mil­it­ant.  How­ever, by the early 1990s the Soviet bloc had col­lapsed; the age­ing CPGB had become the Demo­cratic Left, and MT was on the point of abandon­ing entry­ism.  As a res­ult, every­one in F2 believed that there was no jus­ti­fic­a­tion to con­tinue the invest­ig­a­tion of sub­ver­sion– with the excep­tion of Dir­ector F, the man in charge of the Branch.  He seemed to have no idea that the work of MI5 should be in defence of demo­cratic val­ues.  He was rather more con­cerned about his stand­ing in the ser­vice peck­ing order along­side other MI5 dir­ect­ors.  He saw any reduc­tion in his branch’s resources as an attack on his power base in MI5, so he fiercely res­isted any attempts to trans­fer his staff to other branches.  

In addi­tion, MI5 man­age­ment wanted to retain per­son­nel so it would not need to take on extra staff, in the event of it win­ning the lead in the invest­ig­a­tion of the Pro­vi­sional IRA (PIRA) from the Met­ro­pol­itan Police Spe­cial Branch (MPSB).  That was where the Social­ist Work­ers Party (SWP) came in.

My role against the SWP

To my dis­may, as I had always been com­pletely apolit­ical, my first post­ing after the induc­tion course was to F Branch, the counter-subversion sec­tion.  Dur­ing my recruit­ment, I had been told that MI5 no longer took much interest in sub­ver­sion, instead focus­sing increas­ingly on threats such as ter­ror­ism.  I had there­fore hoped to go straight to a counter-terrorism branch or, fail­ing that, to K Branch (counter-espionage) where I could use my Rus­sian.  It was some con­sol­a­tion to find out sub­sequently that MI5 had a policy of post­ing those deemed to be “clear thinkers” to this sec­tion, because of the polit­ical sens­it­iv­ity of its work.  Per­haps we should infer that the counter-terrorism branches were staffed by muddled thinkers?

In Feb­ru­ary 1991 I joined F2.  The sec­tion was tucked away in a little-known MI5 build­ing in Bolton Street, May­fair.  The office was a clas­sic, run-down civil ser­vice affair, with battered old wooden desks, lime green wall paint and thread­bare car­pets.  The sec­tion when I joined had no com­puter sys­tem; all its records were on paper, a fact which sur­prised me, as eas­ily access­ible inform­a­tion is essen­tial to an intel­li­gence ser­vice.  This also meant that all my work had to be writ­ten out in longhand and passed to my sec­ret­ary for typ­ing, before com­ing back to me for cor­rec­tions.  Hav­ing worked in other offices with com­puters, I found this all pain­fully slow.

My ‘job title’ was F2B/5, and I was in charge of a small team invest­ig­at­ing the SWP.  David joined F Branch a year later as F2C/7, to study anarch­ists, com­mun­ists and extreme right-wingers.  David and I met in F2 but we didn’t start going out with each other until spring 1993.  Our eyes met across a crowded oper­a­tions room, he always likes to joke.

All new MI5 officers are ‘ment­ored’ by a more exper­i­enced officer, usu­ally of the same grade, over a period of six months.  Some new recruits are lucky.  David had Glyn Michaels, my boss at the time, who took his ment­or­ing duties very ser­i­ously.  I was unlucky.  I had Alison Pom­de­terre, who appeared com­pletely unin­ter­ested in the ment­or­ing pro­cess.  After only a month of ment­or­ing, I took over the desk and the man­age­ment of three cler­ical work­ers who did the painstak­ing work of form­ally identi­fy­ing “subversives”.  

Like any other job, the MI5 desk officer has an IN tray and an OUT tray and pro­cesses inform­a­tion.  (Officers always also made great use of the PENDING tray for any­thing that might look dif­fi­cult.)  The dif­fer­ence between MI5 and a nor­mal job is that the inform­a­tion comes in the form of reports from agents in the field or GCHQ ‘sigint’.  

As well as routinely pro­cessing vast quant­it­ies of Linen (product from tele­phone taps), CHALIS (let­ters), and source (agent) reports, in my first year in F2 I was tasked to research each area of the SWP’s activ­it­ies: fin­ance, mem­ber­ship, stu­dent num­bers, and indus­trial rela­tions among oth­ers, in order to assess whether the party was a threat to national secur­ity.  It was a moot point whether the SWP had ever posed a real­istic threat to the state.  But after I’d car­ried out months of painstak­ing research, I was in no doubt.  Although indi­vidual mem­bers of the party were com­mit­ted, the SWP was small, rel­at­ively poor, and their polit­ics fell out­side MI5’s cri­teria for invest­ig­a­tion – they neither had links to a for­eign power, like the Com­mun­ists, nor did they prac­tice entry­ism, like Mil­it­ant Tend­ency.  Their policies advoc­ated edu­cat­ing people so that they could take part in a demo­cratic move­ment to replace the exist­ing polit­ical sys­tem.  This was hardly the stuff of revolu­tion­ary nightmare.  

Des­pite my assess­ments, senior man­age­ment in F2 ensured that the SWP assumed an increas­ingly prom­in­ent role in the work of the branch.  MI5 man­age­ment unre­mit­tingly applied pres­sure to me to beef up the case for the study of the SWP, par­tic­u­larly after its (legit­im­ate) sup­port for a num­ber of indus­trial dis­putes in the early nineties, which of course posed no threat to national secur­ity or Par­lia­ment­ary demo­cracy.  Des­pite the pres­sure, I still suc­ceeded in ter­min­at­ing the last remain­ing tele­phone tap tar­geted against an indi­vidual sub­vers­ive in the UK – Tony Cliff, the SWP’s founder – and drastic­ally redu­cing the num­ber of agents who for dec­ades had been run against the SWP at great cost to the tax­payer.  How­ever, senior man­agers still insisted that a tele­phone tap stay in place on the party’s HQ.

Even then, F2 policy dic­tated that any indi­vidual who atten­ded six or more meet­ings of the Social­ist Work­ers’ Party was record­able as a ‘mem­ber: Trot­sky­ist organ­isa­tion’, even where the ser­vice knew that many indi­vidu­als atten­ded these meet­ings to protest against spe­cific issues such as the NHS cuts or the poll tax, sub­jects of legit­im­ate dissent. 

Fail­ure to tran­scribe tele­phone taps

When MI5 took over primacy for the IRA in Octo­ber 1992, a num­ber of tele­phone inter­cept tran­scribers were trans­ferred to the new T Branch sec­tion from F Branch work.  English-speaking tran­scribers were at a premium in T Branch in the service’s work against PIRA.  As a res­ult, F2 simply did not have the resources to tran­scribe the vast amount of intel­li­gence gathered from the inter­cepts on the Social­ist Work­ers’ Party and Mil­it­ant Tend­ency HQs.  There­fore a back­log of untran­scribed tapes built up over sev­eral months.  Although F2 claimed in its HOW applic­a­tions that these inter­cepts were abso­lutely neces­sary to pro­tect national secur­ity and other demo­cratic rights, in 1993 Dir­ector F ordered that the untran­scribed tapes be des­troyed without ever being listened to, even though he had insisted on the phone lines being tapped.

If the SWP and MT really had been in the pro­cess of under­min­ing the state, then MI5 would have lost vital intel­li­gence and put the secur­ity of the state at risk.  This was con­firm­a­tion, if any were needed, that the inter­cepts on the SWP and MT were not ‘neces­sary in a demo­cracy’ – they could only be des­troyed pre­cisely because they were unne­ces­sary — and were there­fore unlaw­ful under the European Con­ven­tion of Human Rights (ECHR).  

But the prob­lem was com­poun­ded when MT abol­ished its policy of entry­ism in late 1992.  Since MT’s mem­ber­ship had dwindled to less than a thou­sand and entry­ism within the Labour move­ment was MI5’s only legit­im­ate reason for invest­ig­at­ing MT, the desk officer, F2B/4, Sarah Knight, recom­men­ded that there was no longer a case to jus­tify the tele­phone and let­ter inter­cept on the party’s HQ.  Her minute went through the man­age­ment chain.  In each case, the line man­ager agreed with her assess­ment until it reached Dir­ector F.  He ordered the desk officer to go and ‘make a case’.  Under mild protest, she went off to seek out any nug­gets of intel­li­gence from the mater­ial that had been tran­scribed.  She then squeezed a case for reval­id­a­tion of the inter­cept war­rant out of it, even where this meant exag­ger­at­ing the import­ance of facts and tak­ing them out of con­text or ‘sex­ing up’, as it is now known.

The Home Sec­ret­ary approved the war­rant in ignor­ance because he simply did not know of the desk officer’s reser­va­tions or, I sus­pect, that months of untran­scribed tapes had been destroyed.

The illegal and unjus­ti­fied files

On our TC101 induc­tion courses, David and I were told that MI5 has opened more than a mil­lion Per­sonal Files (PFs).  We were also exhaust­ively taken through case stud­ies of incor­rect iden­ti­fic­a­tion.  If MI5 were 99.9% accur­ate in its work that would still mean that there would be over ten thou­sand files con­tain­ing inform­a­tion that is fac­tu­ally incor­rect.  Of course, no organ­isa­tion is 99.9% accur­ate and the inac­curacies would be spread across a much greater num­ber of files.  As we had seen on TC101, this was remark­ably easy to do.  This means that there must be tens of thou­sands of files in the MI5 archives which con­tain inac­curacies about Brit­ish cit­izens.  Even where the inform­a­tion is accur­ate, its col­lec­tion and reten­tion is clearly unlaw­ful under the HRA.  After all, the dif­fer­ence between a demo­cratic and non-democratic or total­it­arian state is that legit­im­ate polit­ical dis­sent and the pri­vacy of those involved is pro­tec­ted in the former and not in the lat­ter.  Dame Stella Rim­ing­ton has — we have already seen — admit­ted that she thought MI5 was ‘over-enthusiastic’ in its tar­get­ing of left-wing act­iv­ists.  David and I can con­firm that this is the case.  

On one occa­sion, for example, a school­boy had writ­ten to the Com­mun­ist Party ask­ing for inform­a­tion for a topic he was pre­par­ing at school.  His let­ter was copied (all mail to the CPGB was copied by MI5) and used to cre­ate a Per­sonal File (PF), where he was iden­ti­fied before being recor­ded as a ‘?com­mun­ist sym­path­iser’.  On another occa­sion, a man divor­cing his wife had writ­ten to MI5 claim­ing she was involved in com­mun­ism.  For that, his wife got a PF again as a ‘?com­mun­ist sym­path­iser’.  In both cases, the sus­pect only came to the atten­tion of the ser­vice on that one occa­sion.  So why was this inform­a­tion still avail­able to desk officers some twenty years after these indi­vidu­als had first come to atten­tion, in less than sus­pi­cious circumstances?

It is also of enorm­ous con­cern in a demo­cracy that MI5 con­tin­ues to hold private inform­a­tion about our elec­ted rep­res­ent­at­ives, which could be used to influ­ence min­is­ters and MPs in secret.  In Octo­ber 2002, The Mail on Sunday repor­ted that Jack Straw had leaked inform­a­tion in con­nec­tion with the Jeremy Thorpe/Norman Scott affair when he was PPS to Bar­bara Castle.  As this inform­a­tion also fea­tures in his PF, we have to ask whether it was used to influ­ence the then Home Secretary’s policy towards hear­ing David’s evid­ence, which he has declined to do, and see­ing him pro­sec­uted, which he has endorsed.

Even where MI5 was jus­ti­fied in hold­ing files — as in the case of Vladi­mir Ilych Lenin (PF2) or Leon Trot­sky (PF3) who act­ively worked to under­mine this coun­try — it can­not reas­on­ably argue that it must still keep these files and their con­tents secret.  How­ever, the intel­li­gence ser­vices are so res­ist­ant to scru­tiny that these files remain in the registry of MI5’s new HQ, Thames House, even though the their sub­jects have all been dead for years.  MI5 has claimed that open­ing up these files will reveal sens­it­ive oper­a­tional tech­niques.  The use of car­rier pigeons perhaps?

In fact, the intel­li­gence agen­cies are in the pecu­liar pos­i­tion of not just hold­ing files on indi­vidu­als who no longer pose a notional ‘threat’ but hold­ing files even though the actual threat itself, such as state com­mun­ism, no longer even exists.  

It can­not be there­fore ‘neces­sary in a demo­cracy’ for the ser­vices to con­tinue to hold private inform­a­tion about indi­vidu­als on out­dated files, which are still access­ible to intel­li­gence oper­at­ives.  The grav­ity of this abuse of power is com­poun­ded by the fact that the mater­ial was unlaw­fully gathered in the first place.  

To com­ply with the con­di­tions of the HRA, MI5 should notify every indi­vidual, on whom a file was cre­ated before the passing of the 1989 Secur­ity Ser­vice Act, that they have a right to rem­edy, and there­fore com­pens­a­tion, for: 

  • MI5’s ini­tial unlaw­ful inva­sion of their privacy;
  • any inter­fer­ence with their freedoms, such as being black­lis­ted because of alleged sub­vers­ive sym­path­ies.  There are a num­ber of BBC applic­ants who were affected by this;
  • the service’s con­tin­ued inva­sion of their pri­vacy by retain­ing per­sonal inform­a­tion which could be used against them.

Files on pub­lic figures

In the course of my work in F2, I came across many files on media fig­ures, celebrit­ies and prom­in­ent politi­cians, par­tic­u­larly when we were asked to research can­did­ates stand­ing in the 1992 Gen­eral Elec­tion.  Our job was to sum­mar­ise MI5’s secur­ity his­tory of an indi­vidual and assess the threat they might pose to national secur­ity.  F2 man­age­ment then passed the assess­ment and sum­mary — but not the ori­ginal mater­ial or file — to the Prime Min­is­ter and the leader of the oppos­i­tion.  They would use them when decid­ing on the suit­ab­il­ity of a par­tic­u­lar can­did­ate for gov­ern­ment or the shadow cab­inet.  Because the PM or the leader of the oppos­i­tion did not see the raw intel­li­gence or the detail of the secur­ity case against the indi­vidual con­cerned, they were in no real pos­i­tion to make an informed assess­ment of that indi­vidual.  It was all too easy for the ser­vices to cherry pick intel­li­gence or ‘sex up’ a case by omis­sion, if they didn’t like a pro­spect­ive min­is­ter or thought that his pres­ence in gov­ern­ment might mean that MI5 was more closely scru­tin­ised or held to account.

F2, being tucked away in the little-known MI5 build­ing on Bolton Street off Pic­ca­dilly, was a relaxed sec­tion, with quite an esprit de corps.  Con­sequently, dur­ing our time there David and I either per­son­ally reviewed or were shown by our col­leagues the fol­low­ing PFs.  Few of those lis­ted actu­ally belong or belonged to sub­vers­ive organ­isa­tions.  Accord­ing to MI5, they have or had ‘sym­path­ies’ with these or other groups and are there­fore worthy of MI5 investigation: 

John Len­non, Jack Straw MP, Ted Heath MP, Tam Dalyell MP, Gareth Peirce (soli­citor), Jeremy Corbyn MP, Mike Mans­field (bar­ris­ter), Geof­frey Robertson (bar­ris­ter), Patri­cia Hewitt MP, Har­riet Har­man MP,  Garry Bushell (journ­al­ist), Peter Man­del­son (European com­mis­sioner), Peter Hain MP, Clare Short MP, Mark Thomas (comedian), Mo Mow­lam (politi­cian), Arthur Scar­gill (NUM leader, who fam­ously had his own record­ing cat­egory: unaf­fili­ated sub­vers­ive), Neil Kin­nock (politi­cian), Bruce Kent (peace cam­paigner, )Joan Rud­dock MP, Owen Oyston (busi­ness­man), Cherie Booth aka Blair, Tony Blair MP, David Steel (politi­cian), Teddy Taylor MP, Ron­nie Scott (jazz musi­cian), Robin Cook MP, John Prescott MP, Mark Steel (comedian), Jack Cun­ning­ham MP, Mohammed Al Fayed (busi­ness­man), Mick McGa­hey (former union leader), Ken Gill (former union leader), Michael Foot (politi­cian), Jack Jones (former union leader), Ray Bux­ton (former union leader), Hugh Scan­lon (former union leader), Har­old Wilson (politi­cian), James Callaghan (politi­cian), Richard Norton-Taylor (Guard­ian journalist).

David and I also came across a file called: ‘Sub­ver­sion in con­tem­por­ary music’, which con­sisted of press clip­pings about Crass, then a well-known, self-styled ‘anarch­ist’ band; the Sex Pis­tols; and, rather sur­pris­ingly, UB40.  You can almost ima­gine the what’s-the-country-coming-to? Col­onel Blimp type, open­ing the file because the Sex Pis­tols per­formed shock­ing songs like ‘Anarchy in the UK’ – the lyr­ics of the song were on the file after being snipped from Time Out magazine — and (their ver­sion of) ‘God Save the Queen’.  But does any reas­on­able per­son believe that the Sex Pis­tols were act­ively try­ing to dam­age national security?  

Unlaw­ful invest­ig­a­tion of non-subversives

The ‘sub­ver­sion’ of cab­inet min­is­ters Har­riet Har­man and Patri­cia Hewitt was to have been lead­ing mem­bers of the National Coun­cil for Civil Liber­ties (NCCL — now Liberty), the very organ­isa­tion designed to pro­tect us from such unwar­ran­ted abuses of our liber­ties.  At one point, David came across a series of minutes on a file dat­ing from the early 1980s.  They were writ­ten by Charles Elwell, a pub­licly named and notori­ously para­noid former head of F2 who saw a red under every bed, and who had suc­cess­fully argued that mem­bers of the exec­ut­ive of the NCCL were record­able as ‘sus­pec­ted sym­path­iser: Com­mun­ist’, simply for being mem­bers of the exec­ut­ive.  He based this assump­tion on the fact that, as one or two lead­ing mem­bers of the NCCL had Com­mun­ist sym­path­ies, the organ­isa­tion was there­fore by defin­i­tion a Com­mun­ist front organisation.  

This went bey­ond MI5’s own rules.  It jus­ti­fied its work against legit­im­ate non-subversive organ­isa­tions such as trade uni­ons, CND, the NCCL and the Green­ham Com­mon women by say­ing that it was not invest­ig­at­ing these organ­isa­tions or their mem­bers per se but was invest­ig­at­ing sub­vers­ive pen­et­ra­tion of these groups.  

As a res­ult, MI5 gathered ten thick volumes on both the Green­ham women and the Cam­paign for Nuc­lear Dis­arm­a­ment.  Inev­it­ably, as a res­ult of this, F2 gathered per­sonal inform­a­tion on and details of legit­im­ate polit­ical act­iv­ists, which were passed to min­is­ters in offi­cial Secur­ity Ser­vice reports – then known as Box 500 reports — under the guise of reveal­ing sub­vers­ive pen­et­ra­tion of these organ­isa­tions.  The ser­vice also had a his­tory of gath­er­ing inform­a­tion on trade union activ­ity and indus­trial dis­putes on the same basis.  How­ever, it again went bey­ond a strict study of sub­vers­ive activ­ity, and passed inform­a­tion relat­ing to legit­im­ate indus­trial protest to min­is­ters and the police.

The decision regard­ing the Exec­ut­ive of the NCCL meant that MI5 could invest­ig­ate an indi­vidual — that means tap their phones, fol­low their move­ments, break into their houses, place a bug in their homes — simply for being a mem­ber of the Exec­ut­ive of the NCCL, without hav­ing to estab­lish any other con­nec­tions to com­mun­ism.  This was clearly a breach of demo­cratic rights.  

It can­not be ‘neces­sary in a demo­cracy’ to invest­ig­ate the lead­ing mem­bers of an organ­isa­tion charged with uphold­ing demo­cratic rights, in the absence of other secur­ity inform­a­tion.  Har­riet Har­man and Patri­cia Hewitt learnt of the infringe­ment of their rights when former MI5 officer Cathy Mas­siter blew the whistle on the ser­vices in 1984.  As a res­ult, they took their case to the European Court of Human Rights (ECtHR) and won because MI5 was not a leg­ally con­sti­tuted and demo­crat­ic­ally account­able organ­isa­tion, the min­imum stand­ard in a demo­cracy.  It was only as a res­ult of this rul­ing that Par­lia­ment finally put MI5 on a legal foot­ing for the first time and made it account­able to min­is­ters in the 1989 Secur­ity Ser­vice Act.

F2/URG

While in F2, I also came across files detail­ing the activ­it­ies of the Uni­ver­sit­ies Research Group.  Although it referred to ‘uni­ver­sit­ies’ it was only con­cerned with the activ­it­ies of alleged com­mun­ists at Cam­bridge and Oxford.  As late as the mid-1980s, MI5 officers were still inter­view­ing indi­vidu­als who had been — or were alleged to have been — mem­bers of the Cam­bridge Uni­ver­sity Com­mun­ist Party and the Cam­bridge Uni­ver­sity Social­ist Party in the 1930s and 1940s, the time that Bur­gess, Philby, Maclean et al were there.  

If the indi­vidual could estab­lish he had belonged to the Social­ist Party, he was cleared of sub­vers­ive sus­pi­cion.  Those deemed to have been mem­bers of the Com­mun­ist Party were inter­viewed and recor­ded as ‘mem­ber: sub­vers­ive; com­mun­ist’ and, if they were still work­ing in pub­lic ser­vice or the BBC, had their vet­ting clear­ance secretly with­drawn.  They were then moved to other pos­i­tions, where they had little or no access to sens­it­ive material.  

Con­sid­er­ing the dam­age the Cam­bridge spy ring did to our national secur­ity, it is not sur­pris­ing that MI5 had an interest in any pos­sible ‘fel­low trav­el­lers’.  How­ever, you would have thought that, given the poten­tial grav­ity of the situ­ation, the ser­vice would have treated as a high pri­or­ity the rapid iden­ti­fic­a­tion of any fur­ther spies from that era.  Instead, MI5 was still invest­ig­at­ing poten­tial sus­pects, many of them retired, in the 1980s.  They were at the end of their careers, and if any had been spies, the dam­age would have been done.  

How MI5 vetoed Wilson’s choice of a Cab­inet minister

Another example of MI5’s abuse of its powers is the case of Judith Hart, a min­is­ter in Har­old Wilson’s gov­ern­ment in the 1970s.  She was refused a par­tic­u­lar min­is­terial post because MI5 alleged that she had con­nec­tions with Com­mun­ists.  Hart denied this and the case became a cause célèbre for the left.  Many believed she had been mixed up with another Judith Hart who was a well-known mem­ber of the Com­mun­ist Party.  In fact, that is what many assert to the present day.

How­ever, the truth is stranger still.  Wilson, ever sus­pi­cious of MI5, asked for fur­ther details of the ‘secret and reli­able source’ which had repor­ted Hart’s con­nec­tions to Com­mun­ism.  MI5 refused, so Wilson told them he was not pre­pared to infringe a minister’s right to pur­sue her career in polit­ics without fur­ther evid­ence.  After a stand-off, the ser­vice reluct­antly agreed to fur­nish Wilson with the raw intel­li­gence in its ori­ginal form.  This was one of the first and only times that a prime min­is­ter had seen actual MI5 intel­li­gence.  (The little which min­is­ters are usu­ally allowed to see is always sum­mar­ised, with sources dis­guised).  The intel­li­gence con­sisted of a couple of tran­scripts of tele­phone taps on the Com­mun­ist Party HQ in King Street.  It estab­lished that Hart had indeed been in con­tact with the CP but only to talk to a friend who worked there.  As Wilson poin­ted out to MI5, this was hardly evid­ence of com­mun­ist sym­pathy or con­nec­tions.  He nev­er­the­less agreed to post Hart to a less sens­it­ive area of government.

Cre­at­ing bur­eau­cracy: the ‘Traffic Light’ system

As part of our work in F2, David and I had to review the ‘traffic light’ status of Per­sonal Files (PFs).  In the late 1980s, the ser­vice set up a sys­tem for its files, giv­ing them a green, amber or red card, which dic­tated whether the ser­vice would carry out enquir­ies.  It was largely a bur­eau­cratic exer­cise, which did noth­ing to pro­tect civil liber­ties.  In fact, it allowed the ser­vice to main­tain all its files, rather than des­troy­ing them or open­ing them up to pub­lic scru­tiny, after their tar­gets had ceased to be of secur­ity interest.  Red-carded files remained open for inspec­tion by any officer request­ing the file, even though red-carding was sup­posed to mean that the file was closed and the tar­get had not come to atten­tion for twenty or thirty years, in some cases.  

The reten­tion of these files also slowed down counter-terrorist invest­ig­a­tions because, if officers were try­ing to identify, say, Patrick Jones, registry would send them files con­cern­ing every Patrick Jones or P Jones the ser­vice had ever come across.  The desk officer then had to look through these files to ‘clear the trace’ or con­firm that the sub­ject of the file was not identical with the sus­pect in the invest­ig­a­tion.  The last thing an officer facing tight invest­ig­at­ive dead­lines needed was to have to plough through files made in the 1940s on the off chance that one of these com­mun­ist tar­gets was the same per­son as an IRA sus­pect, who had recently come to atten­tion.  Inter­est­ingly, Jan Taylor and Patrick Hayes, the two Pro­vi­sional IRA mem­bers con­victed of the 1992 bomb­ing of Har­rods, were both well-known to MI5 for their mem­ber­ship of Red Action, a ‘sub­vers­ive’ group which cam­paigned on Irish Repub­lican issues.  MI5 never con­sidered them as sus­pects for the bomb­ing.  They were con­victed on the basis of evid­ence gathered by the Met­ro­pol­itan Police Anti-Terrorist Squad.  I am not cri­ti­cising MI5 with the bene­fit of hind­sight for fail­ing to appre­hend them.  I am merely point­ing out that a sub­vers­ive record means noth­ing in the con­text of ter­ror­ism and is not there­fore a reason for retain­ing files on indi­vidu­als with ‘sub­vers­ive’ records, as some officers in MI5 tried to argue.

As part of review the traffic light­ing of files, F2B officers saw some fright­en­ingly ana­chron­istic files.  David came across a minute on the minute sheet, which recom­men­ded that the tar­get of the file be placed on a cer­tain list because she had been pro­moted to dis­trict organ­iser of the CPGB.  In the event of a state of emer­gency being declared, any­one hold­ing the office of dis­trict organ­iser or above in the Com­mun­ist Party was to be detained without trial.  We also saw vet­ting files where indi­vidu­als were denied pro­mo­tion or dis­missed because they were not “the right sort”, or because they had what MI5 called “char­ac­ter defects”.  As late as 1994, MI5 con­sidered homo­sexu­al­ity, debt and promis­cu­ity as evid­ence of a defect­ive character.

Fail­ure with IT

Des­pite the massive reduc­tion in the per­ceived threat from sub­ver­sion at this time, MI5 per­sisted in devel­op­ing a new national data­base of ‘sub­vers­ives’ in the UK.  The com­puter sys­tem, Hawk, had been under devel­op­ment for a num­ber of years by the time I joined F2.  As with all MI5 sys­tems, it was an in-house devel­op­ment designed at vast expense by tech­ni­cians who could not find employ­ment in the more luc­rat­ive com­mer­cial sec­tor and over­seen by an intel­li­gence officer who resen­ted being pos­ted away from a more main­stream line of work.  It was ana­chron­istic before it even came online in 1992.  How­ever, F2 man­age­ment still insisted that cler­ical work­ers spend valu­able man-hours input­ting irrel­ev­ant data to jus­tify Hawk’s development.  

Of course, when the study of sub­ver­sion was even­tu­ally shut down in 1996 it became appar­ent that the tech­no­logy of Hawk was too out of date to be trans­ferred to other sec­tions in MI5.  This was a pat­tern which could be seen in MI5’s IT strategy across the service.  

Class War and the Com­mun­ist Party

David’s main area of respons­ib­il­ity in F2 was for the anarch­ist group Class War and the rump of the Com­mun­ist Party, which had decided to plug on with Marxism-Leninism, after the rest of the CPGB had renounced it and become the Demo­cratic Left.  He was sur­prised that MI5 still devoted such extens­ive resources to these groups.  Dur­ing recruit­ment, he had been told that MI5 was no longer look­ing in any great depth at sub­vers­ives.  MI5 lore had it that the study of Class War was beefed up in the wake of the Poll Tax riot in Lon­don in 1990, after the group’s posters and ban­ners were seen on the news cov­er­age.  How­ever, accord­ing to Spe­cial Branch officers, the viol­ence in Tra­fal­gar Square had star­ted when front-line anti-riot police had lost con­trol and turned on the demonstrators.

By early 1992, Class War was a dis­or­gan­ised col­lec­tion of around 200 anarch­ist indi­vidu­als.  As such, it posed no real threat to Par­lia­ment­ary demo­cracy or national secur­ity.  F2 had no phone inter­cept on Class War because it did not have an HQ.  How­ever, the author­it­ies did devote con­sid­er­able resources to the group.  

Some years before David had joined F2, a Met­ro­pol­itan Police Spe­cial Duties Sec­tion (SDS) agent, code­named M2589, had pen­et­rated Class War.  Unlike the vast major­ity of agents recruited by MI5, he was not a mem­ber of an organ­isa­tion who had been ‘turned’ by the ser­vice.  He was a full-time police­man from Spe­cial Branch under deep cover.  For six days a week, he lived, ate and breathed the life of a class war­rior before return­ing to his nor­mal life with friends and fam­ily for a day. Whether Class War mer­ited this kind of resource intens­ive cov­er­age is open to debate.  I quote David:

When I met M2589 in Feb­ru­ary 1992, at a safe house in Lon­don, it was quite obvi­ous that this pecu­liar arrange­ment had affected the agent psy­cho­lo­gic­ally.  After around four years of pre­tend­ing to be an anarch­ist, he had clearly become one.  To use the ser­vice jar­gon, he had gone nat­ive.  He drank about six cans of Spe­cial Brew dur­ing the debrief, and regaled us with stor­ies about beat­ing up uni­formed officers as part of his ‘cover’.  Partly as a res­ult, he was ‘ter­min­ated’ after the 1992 Gen­eral Elec­tion.  Without his organ­isa­tional skills, Class War fell apart.”  

Did the agent make Class War more effect­ive while he was there?  In other words, did the state actu­ally provide resources, which con­trib­uted to the spread of anarchism?

Another anarch­ist source was run by Daphne.  It is doubt­ful whether any use­ful inform­a­tion ever came from him, as Daphne spent most of her time act­ing as his coun­sel­lor cum ther­ap­ist, sort­ing out prob­lems with his rent, his girl­friends and even hav­ing to get worm pills for his dog.  

After the 1992 Gen­eral Elec­tion, David car­ried out two research pro­jects into Class War and the Com­mun­ist Party of Bri­tain (CPB), which I read after he had left the sec­tion because I had taken over the study of the former group.  David’s research had clearly estab­lished that Class War was moribund and recom­men­ded that M2589 was not replaced.  In prac­tice, this meant that MI5 kept only a ‘watch­ing brief’ over the group.  David came to the same con­clu­sions regard­ing the CPB.  It had fewer than 1,000 mem­bers, half of whom were over 65.  He recom­men­ded the ter­min­a­tion of agent M148, who had been report­ing on com­mun­ists for thirty years.  M148 had spent nearly his entire work­ing life as an agent.  

F2/0, Paul Slough praised David for this work after he left the sec­tion, accept­ing all his recom­mend­a­tions, although I later found that a col­league still in F2, Sarah Knight, had been tasked to copy out his assess­ments word for word.  She explained that although David’s work was a thor­ough, accur­ate and per­tin­ent research pro­ject — and his recom­mend­a­tions had been accep­ted — it was felt that he was too new to the ser­vice to com­mand the neces­sary author­ity in his assess­ments.  His work was there­fore copied, but presen­ted as her work as she had been in the ser­vice longer.

David says:

It was extremely frus­trat­ing not being cred­ited for good work.  The Class War research paper did though have a funny side.  When I first read the typed draft of the paper I came across the line: ‘Class War sees the women’s move­ment as clit­ist’.  Think­ing I had take leave of my senses, I checked it against my hand­writ­ten ver­sion, which said: ‘Class War sees the women’s move­ment as élit­ist’.  God knows what my sec­ret­ary, an inno­cent 18-year-old from Essex, thought I was try­ing to say.”

Just before David left F2, he played an anarch­ist in a police agent run­ning exer­cise.  He was so con­vin­cing that a uni­formed police officer out­side Char­ing Cross sta­tion moved him on, mak­ing the exer­cise more of a chal­lenge to the trainee.  On his return to his Bolton Street office, one of the older officers remarked that he had “now seen everything – a mem­ber of the officer class wear­ing an ear-ring” after catch­ing sight of David’s ear-ring which had been re-inserted purely for the role play.

Pre­par­a­tions for Pro­vi­sional IRA (PIRA) primacy

In 1991 and early 1992 expect­a­tions had been high within the ser­vice that it would be given the lead respons­ib­il­ity for the invest­ig­a­tion of the Pro­vi­sional IRA (PIRA) on the UK main­land.  Tra­di­tion­ally the Met­ro­pol­itan Police Spe­cial Branch (MPSB) had the lead and MI5 merely acted in sup­port.  In order to ensure that enough officers would be avail­able to form the new sec­tion, T2, when primacy was handed to MI5, other sec­tions of MI5 had their staff quotas arti­fi­cially inflated, par­tic­u­larly in the counter-espionage K branch and counter-subversion F branch.  

How­ever, dir­ect­ors’ and assist­ant dir­ect­ors’ prestige within the ser­vice relied on their staff num­bers.  So when the call came from the newly formed T2, some senior man­agers refused to allow their staff to be pos­ted else­where.  Even though T2 was des­per­ately stretched, dir­ect­ors of other branches reg­u­larly turned down requests for help even in the form of tem­por­ary secondments.  

In May 1992, Home Sec­ret­ary Ken­neth Clarke finally announced to Par­lia­ment that MI5 was tak­ing over PIRA invest­ig­a­tions in Bri­tain, bring­ing to an end MPSB’s 106-year lead respons­ib­il­ity for Irish Repub­lican mat­ters.  MI5 officers were informed of the decision over the office tan­noy, as part of an office13 secur­ity announce­ment.  Journ­al­ists look­ing for a quote, it told us, might door­step us as we left the build­ing because MI5 had been awar­ded primacy.  

As the Pro­vi­sional IRA were at this time reg­u­larly car­ry­ing out bomb­ings and endan­ger­ing the lives of Brit­ish cit­izens, it was no longer a pro­por­tional – or, indeed, sane – response to con­tinue to deploy vital resources like tele­phone tap­ping against Trot­sky­ists rather than ter­ror­ists.  The ser­vice con­veni­ently decided that that sub­ver­sion no longer posed the same ser­i­ous threat as it had less than a year before – exactly what we desk officers had been arguing.  In August 1992, just nine months after join­ing the ser­vice, David was pos­ted to T2A.  

Even though my two years as F2B/5 were up by Feb­ru­ary 1993, and I had received a per­form­ance related bonus and pro­mo­tion, Dir­ector F turned down a request for my trans­fer from one of T2’s senior man­agers because he had already seen his empire shrink too much.  I finally joined T5E, study­ing Irish ter­ror­ist logist­ics, in August 1993.

David’s and my exper­i­ences in F2 had opened our eyes to state abuses of power, which most recruits in the 1990s just did not see.  These ranged from the con­tinu­ing and unlaw­ful exist­ence of files made before 1989, through the absurd files made on the basis of little secur­ity inform­a­tion, to the reten­tion of deeply embar­rass­ing per­sonal mater­ial on influ­en­tial fig­ures.  Both David and I hoped that this work now belonged to another era and that MI5 was finally ceas­ing such con­ten­tious oper­a­tions.  In the con­text of sub­ver­sion, it all begged the question: 

In the 1980s, who really was the Enemy Within?”  

Was it the miners strug­gling to pro­tect their jobs and com­munit­ies?  Or polit­ical act­iv­ists hold­ing meet­ings, peace demon­stra­tions and stand­ing in elec­tions?  Or was it the state, with its undemo­cratic, unac­count­able, law-breaking secret spies?