A journalist's desk is her castle
MARTIN BRIGHT, Observer Home Affairs
correspondent and late of this Branch, could heave a provisional
sigh of relief on 21 July. Lord Justice Judge in the Court of Appeal
granted almost all the appeal against a March Queen's Bench ruling
that Martin, the Observer and the Guardian
must hand over all documents and notes relating to articles in February
about allegations by former MI5 agent David Shayler.
Lord Justice Judge did rule that Martin Bright and the
Observer must hand over any copy they had of a letter
which David Shayler sent to the government in November 1999. The
response will be an affidavit affirming that no such copy now exists.
The Observer's legal department wrote in March:
"You should know that it is normal procedure for journalists to
dispose of records given them in confidence by their sources."
The Freelance recommends this normal procedure.
The security services were particularly interested in the original
of a letter sent by Shayler to the Observer in email. As
Lord Justice Judge concluded, they wanted Shayler's email address. He
commented that DS Flynn of the Special Branch, giving evidence in March,
"did not face up to the question whether [this] was already known
to the investigating authorities". The Freelance supposes
that it was, through interception, but that they wanted to get it through
a different source that they could use in court.
"The Guardian's policy is not to keep the personal
details of letter writers," Managing Editor Chris Elliot said in
evidence at the March hearing, "as it may have obligations under the
Data Protection Act... Members of the public who write to the letters pages
do not expect their letters or personal details to be kept indefinitely
and do not give their permission for these details to be stored. "
Much of Lord Justice Judge's judgement, however, was a ringing
endorsement of the right to privacy and of the necessity of challenging
investigative journalism. He cited the eighteenth century William Pitt, Earl
of Chatham: "The poorest man may in his cottage bid
defiance to all the forces of the Crown. It may be frail... the rain
may enter, but the King of England cannot enter - all his force dares
not cross the threshold of his ruined tenement."
He cited Voltaire's admiration for the British Constitution and
common law ("Without implying any disrespect for the decisions of
the European Court of Justice...")
And he declared: "Inconvenient or embarrassing revelations,
whether for the security services or for public authorities, should not be
suppressed," lest the "safety valve of effective investigative
journalism" be "discouraged, perhaps stifled". Mr Justice
Gibbs concurred, and Mr Justice Maurice Kay dissented. The Appeal Court
will rule in the autumn on the government's application to appeal to
the House of Lords. If this were granted, Martin Bright and the papers
would have to go through the whole process again.