The collapse of the Derek Pasquill case proves that journalists effectively have a public interest defence in Official Secrets Act cases.
This is the view of New Statesman editor John Kampfner and other industry figures – despite the fact that no such defence exists in law under the Act.
The case against Foreign Office official Pasquill collapsed last week following an internal Foreign Office email that admitted his disclosures had not caused damage.
Pasquill was arrested and suspended from his job in January 2006 when he was accused of leaking documents relating to Government policy on extraordinary rendition, and on radical Islam, to New Statesman political editor Martin Bright. At the time Bright was also working for The Observer.
The New Statesman has called on the Government to launch an inquiry into the case, which editor Kampfner has called a ‘misguided and malicious prosecution”.
Kampfner told Press Gazette: ‘It is an extremely significant case for journalism and for the relationship between the state and the media. It proves as long as you feel you are legally and ethically on strong ground, you can fight your corner and more importantly you can win.
‘British law is based largely in precedent. What the Katharine Gunn case started [see below], and what this case has very much taken on, is establishing a precedent in the OSA of a public interest defence that technically does not exist in the Act.”
In 1985 a jury cleared civil servant Clive Ponting of charges under the Act – despite him admitting to leaking information about the sinking of the Belgrano to The Guardian – after he used the defence that it was of strong public interest.
The Labour Party, in opposition, pledged to reform the Act, and to insert a public interest defence.
Kampfner said: ‘What now needs to happen, on a cross-party basis, is to agree a route and branch reform of the Act that establishes this defence.
‘It’s not actually in the interest of any government to have a law that is now riddled with holes. It makes it extremely hard. I think that any prosecution under the Official Secrets Act of a whistleblower giving information to the media, that is in any way in the public interest, is now going to be extremely difficult.”
Kampfner said that the New Statesman and The Observer had been working closely together in assisting Pasquill through the case, and will continue to as the story unfolds.
‘We’re not really possessive about the story; this is a question about the fundamentals of journalism. As an editor you have to regard one of your top priorities as challenging power, and then defending those who legitimately challenge power.”
With regard to those who have been jailed under the Act, such as Keogh and O’Connor in 2007, Kampfner says they were simply not defended strongly enough. The pair leaked a memo purporting to be from George Bush to Tony Blair (seestory, bottom).
Observer columnist Peter Preston was editor of The Guardian when source Sarah Tisdall was jailed for six months after leaking the paper detailed documents about the arrival of cruise missiles to the UK. He told Press Gazette that if she had been advised better, jail could have been avoided. ‘Tisdall didn’t go to court to let a jury decide it, she pleaded guilty, which I’ve always thought was a terrible mistake. Ponting went to court and his argument was that he was doing it in the public interest, and the jury absolutely sided with him. If Sarah had been advised to do the same thing she probably wouldn’t have gone to prison either.”
Preston says he feels that the Act is redundant, and that it is clear that public interest does weigh with a jury, despite not being a defence.
‘In general terms, I think the Act, despite many attempts to repair it, is broken and can’t be fixed. Jury’s opinions on the needs for the Act are pretty evident now over a large number of cases, they’re not in favour of it and don’t like these sorts of cases.
‘They’re on the side of the journalist, which is also on their side, as they perceive it. You could say that politics and successive governments’ use of the Act have so tainted the whole business that it’s become very difficult to use the Act.’
Bob Satchwell, executive director of the Society of Editors, described the Act as ‘antiquated’in a time when the Government is looking at ‘expanding the frontiers of Freedom of Information“.
He said: ‘Politicians and government can’t have it both ways. They say that they benefit, and everyone else recognises that they benefit from the Freedom of Information Act, in terms of being kept informed about issues which they have a right to know. Even within the FOI Act there are more than enough checks and balances to stop the revelation of sensitive information that would damage state security or the public interest. No one gets hurt by openness.”
But David Hooper, partner at law firm Reynolds Porter Chamberlain, and author of Official Secrets: The Use and Abuse of the Act, suggested that the Act already has a ‘good balance”.
He acted for former MI5 secret service officer Peter Wright, the author of the infamous Spycatcher autobiography that the British government attempted to ban under the Official Secrets Act.
Hooper said: ‘On the whole I think it’s [the Act] a reasonably good balance. The press and the media would like to know everything that goes on in government; some things have to be secret if you’re going to fight wars. The trouble is politics does creep in. The protection of confidence, if used too widely, which it was in the Pasquill case, is the protection against political embarrassment and the covering up of actions of dubious legality.”
Pasquill faced trial for six breaches of Section 3 of the 1989 Official Secrets Act, that Mariot Leslie, the Foreign Office’s director of defence and intelligence, claimed at the time had seriously damaged UK interests abroad and endangered the life of a colleague.
Now that the Foreign Office has admitted Pasquill’s revelations did no harm, questions have been raised over why it took so long to do so.