A group of news organisations has lodged an appeal against reporting restriction orders made by the judge in the trial of two men who were convicted of breaching the Official Secrets Act.
Mr Justice Aikens made two orders – one indefinitely postponing reporting of a statement made in open court by one of the defendants, and the other banning reporting connected with a letter at the centre of the case.
One of the two defendants, civil servant David Keogh, a Cabinet communications officer, was jailed for six months for breaching the Official Secrets Act by leaking an “extremely sensitive” memo detailing talks between George Bush and Tony Blair.
The second, Leo O’Connor, a researcher for anti-war Labour MP Anthony Clarke, to whom Keogh had passed the document, was found guilty of a similar charge and jailed for three months.
The contents of the letter were considered to be so sensitive that much of the two men’s trial at the Old Bailey trial, which ended when the pair were sentenced on May 10, was held in secret.
The appeal has being launched by a large consortium of media and news organisations, led by Times Newspapers.
Also in the group are the BBC, ITN, Guardian News and Media, British Sky Broadcasting, The Financial Times, Telegraph Media Group, Independent News and Media, Channel Four Television, Trinity Mirror, Channel 5 Broadcasting, Reuters, The Newspaper Society, Newsquest Media Group, The Economist Group, the New Statesman, and Index on Censorship.
The appeal is based on a number of grounds.
One order, under section 4 (2) indefinitely postpones reporting of some of the evidence Keogh gave in open court.
The media argue that the judge had no power to make an order indefinitely postponing reporting of this evidence because the publication of fair, accurate and contemporaneous reports of the evidence at the end of the trial could not give rise to a substantial risk of prejudice to the administration of justice in the proceedings.
It is also argued that Mr Justice Aikens failed to give sufficient weight to the important public interest in publishing fair and accurate reports of evidence given in open court, and that he was wrong to conclude that the Act gave him the power to postpone reports of the evidence indefinitely.
The second order, under section 11 of the Contempt of Court Act, bans the publication “in connection” with the trial of “any material which would or might reveal evidence or statements concerning” the content of a letter from Matthew Rycroft, who was at the time Prime Minister’s Tony Blair’s Private Secretary for Foreign Affairs, to Geoffrey Adams of the Foreign Office, and the actual, possible or alleged damage resulting from any alleged unauthorised disclosure of the letter.
The media argue that the judge was wrong to ban publication, as part of a report of the trial, of material which was in the public domain, because the Daily Mirror story which led to the trial, and was based on the leaked letter, had received wide publicity,
The media also argue that it could not be established that it was necessary in a democratic society and a proportionate interference with the media’s Article 10 rights to freedom of expression to ban publication of material which was in the public domain within a report of the criminal proceedings especially as – as the judge himself had acknowledged – the same material could be published in a separate article in the same issue of the same newspaper.
In addition, in a public judgment given in open court on July 18 last year, the Judge himself had repeated the essence of the Daily Mirror’s story.
It is also argued that section 11 does not give a court the power to ban publication, as part of a report of the trial, of material which might disclose evidence or statements which was given in camera – it only gives the power to ban publication of specific information which has already been withheld from the public.
The orders made by Mr Justice Aikens at the trial of Keogh and O’Connor caused difficulties for the press and media.
His ban on publishing material which “would or might” reveal evidence given while the court was sitting in secret left journalists having to conduct a guessing game as to the nature of the evidence given in the secret hearings.
It also meant that information which was in the public domain, and had already been widely reported, could not be used to give readers background to the trial.
Mr Justice Aikens himself acknowledged this – at the end of the trial, while discussing the section 11 order, he said: “Any journalist will have to ensure in his own mind that they are not making an impermissible link.
“This does mean that the members of the press and their colleagues in other media can continue to recycle information which is currently in the public domain so long as any material published or broadcast does not suggest that that information equals or may equal the evidence or statements concerning the matters that were dealt with in camera in this trial.
“If that means they have to have an article recycling material in the public domain on one page and they have to have another article on another item of news dealing with the trial then so be it.
“If that is done at least it would be clear that there is no intention to link the matters and thereby subvert the order that I made on 18 July.”