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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bright, R (on the application of) v Central Criminal Court  EWHC 560 (QB) (21 July 2000)
Cite as:  Crim LR 64,  UKHRR 796,  WLR 662,  2 All ER 244,  EMLR 4,  EWHC 560 (QB),  1 WLR 662
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QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MAURICE KAY
MR JUSTICE GIBBS
|CENTRAL CRIMINAL COURT|
|EX PARTE THE GUARDIAN, THE OBSERVER|
|& MARTIN BRIGHT|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR B EMMERSON QC (instructed by Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Applicant Bright.
MISS C MONTGOMERY QC and MR I LEIST (instructed by the Crown Prosecution Service, Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondents.
Crown Copyright ©
"Shayler later said, I briefed my boss at MI5 during the course of the operation on planning and funding. One other officer in MI5 was fully briefed on the operation. The three MI6 officers were called PT16, PT16 Ops B, and the man meeting and running Tunworth, PT16B. As Shayler told ......., 'PT16B, who was my opposite number in SIS (MI6), started to talk about how this guy was involved in trying to plan an assassination attempt on Gaddafi, using a Libyan Islamic extremist group'."
"We do not publish letters where only an email address is supplied; please include a full postal address and a reference to the relevant article. If you do not want your email address published, please say so. We may edit letters."
"'Shayler's apparent exaggeration gave Cook an easy way out', asserts Richard Norton Taylor (Words of a weasel, February 15th) about the MI6 report which has appeared on the internet. I would like to confirm that the report is genuine and that its source was Tunworth, who passed his information to PT16/B (an MI6 officer). PT16/B explained to me that MI6 put it out to Whitehall that MI6's customers would be informed of the planned coup but would not be alerted to MI6's involvement.
I would like to make it clear that I have exaggerated nothing. I have never claimed the CX report in question confirmed that MI6 funded the plot. The coup plan it discusses does though match exactly the account I gave of the Gaddafi plot in Secrets and Lies, a document I prepared to defend myself in June 1999.
I have pointed out that Robin Cook told the Frost programme of August 9 1998: 'There was no Government inspired plan to assassinate Colonel Gadaffi. There was no (MI6) proposal to do it and I am fairly clear that there has never been any (MI6) involvement'. The CX report demonstrates that an MI6 agent was involved in a plot to assassinate Colonel Gaddafi. All MI6 agents are run by at least one officer so, by extension, an MI6 officer was involved."
"1.The Guardian does not possess the original letter.
2. We were not sent any additional documents"
"As the letter from David Shayler was published in any event, it is unlikely that a copy of the original would add anything to your investigation. In any event, the Guardian does not have the original letter."
"In the past month Shayler has increased the intensity of his campaign for an amnesty to allow him to return to Britain. He is also poised to release more details about MI5 reports into the bombing of the Israeli Embassy in 1994."
"The letter published by the Guardian on 17th February must have been received in some form at the newspaper. I wish to know in what form the material was received by the Guardian and who is now in possession of the original material/letter."
"All files, documents and other records, whether those records are in written form, are kept on microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism, or correspondence concerning;
The letter which appeared ...... On Thursday 17th February 2000."
"A criminal investigation has been initiated into alleged breaches of the Official Secrets Act
...... It is proposed to make application for Production Orders ..... for material held by you in relation to the article which appeared on page one of the Observer on Sunday 27th of February 2000...... The material sought is any and all files, documents, audio, or any other records held, controlled or otherwise in your possession, whether directly or indirectly in relation to the article published in the Observer on Sunday 27th February 2000, whether those records are in written form or kept on microfilm, magnetic tape or other form of mechanical or electronic data retrieval mechanism."
"all files, documents and accounts and other records, whether those records are in written form, kept on micro film, magnetic tape or any other form of mechanical or electronic data retrieval mechanism in relation to the article published in The Observer on Sunday 27th February 2000 entitled Two Spies named in Libya Plot.,"
"You have not provided any reason why you would need to see the original letter, and it is difficult to see how it would be of any value to your investigation."
"Your letter is not specific about which offences you are investigating, but you refer to the Official Secrets Act 1911- 1989. I have made enquiries and I am satisfied that the Observer is not in possession of any relevant material."
"The letter from David Shayler was sent to the Guardian by email, and this email was deleted on the day of publication. The Guardian does not have any other material, unless there is data which we have not yet been able to trace on our database. This data will be in a form which can be recovered only by specialists in information technology, with sufficient expertise to find and recover this material.
The Guardian has a policy of not storing information sent to the Letters Page, as it is aware of its responsibilities to protect personal data under the Data Protection Act. The contents of letters may be intended for publication, but writers do not expect these documents to be stored indefinitely....."
"You should know that it is normal procedure for journalists to dispose of records of information given to them in confidence by their sources. I have made enquiries about the email system at the Observer. The IT department have informed me that the backup tapes for 25 to 27 February were used during that week, so that no material deleted on or before those dates survives in the system.
In any event, the Observer email system is password protected and private. Each person has a personal address and no- one else has access to that persons emails. ..... The editor does not have the authority to access journalists emails without permission, and it is right that this would be a breach of the journalists privacy. Journalists value their independence and it is the Observer's policy to respect their rights.
I am also writing to find out whether you are aware of the telephone calls between Government Departments and the Observer on Saturday, 26th February 2000? The Treasury Solicitor called, as did MI5. No application was made for any injunction that night, and MI5 said that they had seen the paper and were no longer worried."
"The Observer newspaper appears to be in possession of material covered by the Official Secrets Act. The disclosure of this information in the article of the 27th February may constitute a breach of Sec 5 OSA 1989.
Parts of this submission may contain material which is extremely sensitive and its disclosure to any unauthorised person is likely to lead to serious harm to the security of the State by purporting to detail methods and investigative techniques of the intelligence and security services."
"disclosure of details contained in The Observer article 'Two spies named in Libya plot' of 27th February is extremely damaging."
"The enquiry is hampered by the lack of the information which may be held in respect of the letter by David Shayler, the substantive part of which was published on 17th February 2000 in the Guardian newspaper and the article entitled 'Two Spies named in Libya plot' published on 27th February 2000 in the Observer newspaper."
"It is entirely unsatisfactory that the information should be based, as it clearly is, on hearsay. And insofar as it is not based on hearsay, on the facts of this case it is even more unsatisfactory because this officer has not, hitherto, been responsible for this investigation. So he does not know the background. He is starting from scratch. He is in no position to give any informed assistance to the court as to what is or what is not to be of likely value in this investigation. And insofar as it is hearsay from another officer, Mr Lerner, it is unsatisfactory because it is impossible to ask any questions."
"sent by email to our letters page address, which is firstname.lastname@example.org. Liz McGregor is the letters editor and she has given me details of what happened. The letter was edited to make it shorter and more readable. The part of the letter that was not published was what she described as 'political rant' and was edited out because it was not of interest to readers. The email was deleted on 17 or 18 February. The Guardian's policy is not to keep the personal data of letter writers as it is aware that it may have obligations under the Data Protection Act. This is particularly so when letter-writers have indicated that their details are confidential. Members of the public who write to the letters page do not expect their letters or personal details to be kept indefinitely, and do not give their permission for these details to be stored. We delete letters and email addresses so that letter writers can be sure that we will not disclose their personal details and this data will not be used for any collateral purpose, such as marketing.
The information technology (IT) department has confirmed that the email from David Shayler was deleted on 17 or 18 February.
It is extremely unlikely that a copy of the email is still on our backup tape..... We recycle tapes by copying over them."
"Is your evidence that you have reasonable grounds to believe that Mr Bright has contravened the section?
(A) It is, my Lord."
"A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject-(a) to an express or implied undertaking to hold it in confidence; or
(b) to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act."
"A person holds journalistic material in confidence for the purposes of this section if
(a) he holds it subject to such an undertaking, restriction or obligation; and
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism."
"A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes."
"(a) material to which sub section (2) below applies; and
(b) journalistic material, other than excluded material."
"1. If on an application made by a constable a Circuit Judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below."
"2. The first set of access conditions is fulfilled if
(a) there are reasonable grounds for believing
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence; (which by the application of s8(4) means anything that would be admissible in evidence at a trial for the offence)
(b) other methods of obtaining the material
(i) have been tried without success; or
(ii) have not been tried because it appears that they were bound to fail; and
(c) it is in the public interest, having regard
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds,
that the material should be produced or that access to it should be given."
"...... If this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in this Kingdom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel...... This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant."
"No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage is nothing ........ If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant."
"Papers are the owners goods and chattels .....and so far from enduring a seizure, ....... they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society."
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement."
"I am concerned with the fundamental freedom which this country has prided itself on maintaining, and for which much blood has been spilt over the centuries, namely freedom of speech."
"It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty."
"The question of whether a statute which confers a power to ask questions or obtain documents or information excludes the privilege against self incrimination in one or other of its forms is therefore one of construction."
"For the purpose of the discharge of their respective functions ......
(b) a waste regulation or authority may, by notice in writing served on him, require any person to furnish such information specified in the notice as the ...... authority ...... reasonably considers ...... it needs."
"...... not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information on the grounds that their answers might tend to incriminate them. ...... The request under s71(2) does not in itself form a part, even a preliminary part, of any criminal proceedings. It does not therefore touch the principle which prohibits interrogation of a person charged or accused......"
"Journalists these days, it seems, cannot even copy accurately out of the documents I give them."
161. R -v- Crown Court at Northampton ex parte Director of Public Prosecutions to lead me to that conclusion, and I do not find it necessary to analyse that authority. Moreover, the circumstances in which one or more people at the Observer are holding the material do not, in my judgment, give rise to any great counterveiling public interest. The material is not being held in circumstances of confidentiality. Inferentially, it was provided by Shayler with a view to its dissemination. Part of it has been published. I do not find any error of law in the judge's perception of the balancing of the public interest in light of the competing facts which were relevant at this stage of the exercise.
"...the European jurisprudence under art 6(1) is firmly anchored to the fairness of the trial and is not concerned with extra judicial inquiries. Such impact as art 6(1) may have is upon the use of such evidence at a criminal trial."
168. Serves on the other hand:
"...turns on the fact that Captain Serves was at risk of being required to incriminate himself in the very proceedings in which he was charged with murder. The questions were to be put to him as part of the judicial process. The case is therefore not relevant to extra judicial inquiries."
"It is however clear that the court in the Saunders' case, did not regard this case as casting doubt upon the clear distinction which it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution."