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State interest v public interest
157/Julie-ann Davies
The contradictions of the Official Secrets Act are in the media spotlight again, says Julie-ann Davies
DATELINE: 15/6/07Two men, David Keogh and Leo O'Connor are, at the time of writing, being tried under the Official Secrets Act (OSA) at the Old Bailey in London. Both deny the charges.
Keogh, a civil servant in the cabinet office, is said to have passed a memo containing details of a talk between Tony Blair and George Bush to O'Connor, a political researcher.
It is alleged that O'Connor, motivated by his opposition to the Iraq War, slipped the four-page memo into papers belonging to his boss, the Labour MP for Northampton South, Anthony Clarke.
The court heard that Keogh and O'Connor hoped the document, dated 16 April 2004, would enter the public domain. But, when Clarke, who voted against the Iraq War, found the memo he contacted the police.
Prosecutor David Perry QC, told the jury that the OSA exists not to prevent Governmental embarrassment but to protect the interests of the state. He said: "We are not talking about what may be embarrassing, a betrayal or an act of disloyalty. Even in the age of mass communication, something remains sacred."
But who decides when, or if, the public interest outweighs the state interest?The most recent major overhaul of the OSA came in 1989 after several high-profile leaks and trials rocked the Thatcher Government. One of these cases, the 1985 trial of Clive Ponting, hinged upon the issue of the public interest.
Ponting, who worked in the Ministry of Defence, was charged under Section 2 of the 1911 OSA for disclosing information about the sinking of the General Belgrano, an Argentinean warship, during the Falklands War.
His revelations debunked a Government cover-up of the facts behind the incident, but prosecuting Ponting was a high-risk strategy for Thatcher. Ponting pled "not guilty" arguing that, although he had committed a criminal act, he had done so in the public interest.
He cited Section 2 of the 1911 Act which held a slim provision for such a defence. The judge, Mr Justice McCowan, disagreed. He said: "The public interest is what the government of the day says it is." He added that the only legal way to communicate information was via authorized channels.
He denied Ponting a public interest defence and indicated that the jury should convict. However, despite the direction of the judge, Ponting was acquitted of breaching the OSA. His victory meant remedial action was necessarily to prevent more whistleblowers arguing the public had a "right to know".
Section 2 of the 1911 OSA, complete with its splinter of hope for a public interest defence, was removed. The 1989 OSA also introduced a new offence of secondary disclosure.
This criminalised further dissemination of material gained from unauthorised disclosures and placed the media squarely in the line of fire for the first time.
A whistleblower could no longer claim they made their disclosures in the public interest. Moreover, the media could be prosecuted for publishing, or otherwise disseminating, such revelations.
It was argued the lack of a public interest defence in the OSA made it incompatible with the Human Rights Act. MI5 whistleblower David Shayler relied on this discrepancy when he was prosecuted under the OSA.
His case led to a 2001 ruling that a "defence of necessity" should be available under the OSA. But Shayler's hopes were shattered when he was told this defence was not available in his case.
This precedent meant the defence of "duress of circumstance" was now available to defendants facing prosecution under the OSA. This was considered by many civil libertarians to be a landmark ruling.
However, it is now believed the current Government wishes to restrict, or remove totally, access to this new - and as yet untried - defence.
Last week, Sir Nigel Sheinwald, Blair's foreign policy advisor, gave evidence at the trial of Keogh and O'Connor. He told the jury that conversations between political leaders must remain confidential - even if their content was immoral or illegal.
The contents of the Bush-Blair memo have not been discussed in open court. Certain parts of the trial are held "in camera" and the media are asked to leave.
Justice McCowan's ruling during the Ponting trial indicated that it is for the Government to decide what should be kept secret and what the electorate can be permitted to know.
The existence and protection of a public interest defence in the Official Secrets Act does not represent a threat to public or national security. It represents a healthy and positive check and balance on power.
A public interest defence allows a court to decide, based on the merits of each case, whether state secrecy is outweighed by the public's right to scrutinise the actions of their Government.
The case of Keogh and O'Connor continues.
Last modified: Friday, June 15, 2007
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Previous stories
Free Speech & Censorship
Review: The Truth is Out There
A very British coup
50 years of censorship
Trial Exposes Bush-Blair Secrets
FoI rethink
Downing St will throw aide to the wolves
Galloway accuses BBC over Blair disc 'ban'
Secrets, lies and diplomats
MPs seek special exemption from FoI laws
Fighting back for freedom
Access all areas?
Secrets trial to be secret
Libel ruling is victory for British journalism
Memoirs and Whistleblowers
Shayler Silenced
Official Secrets Act: Where are we now?
The Price of Freedom
Another success for British justice
MI5 whistleblower back in court
The Danish cartoon controversy and World Press Freedom Day
Improving Cultural Communication
The Need for Context
The Danish Cartoon Controversy
IFEX conference highlights freedom of expression
Statement of Media Professionals Meeting to Discuss the Danish Cartoons Controversy
Freedom of Expression or Hate Speech
Religion and Freedom of the Press
CPBF response to the cartoons
Cover-ups, lies and censorship
CPBF response to the cartoons