Media organisations scored a partial victory today in a court claim that they should be free to publish the contents of a confidential memo detailing talks between George Bush and Tony Blair which was at the centre of an Official Secrets Act trial at the Old Bailey.
The ruling in the Court of Appeal was qualified by a warning from the judges that publication of “speculative” stories about what the memo contained would probably amount to contempt of court.
Lawyers for 17 media organisations including The Times, the Daily Telegraph and the BBC had urged the court to overrule a decision by the trial judge to impose a permanent ban on reporting the memo – a note of a meeting between Mr Bush and Mr Blair at the White House in April 2004.
An official minute of the meeting, marked “secret”, was sent by fax to Whitehall from the British Embassy in Washington DC.
David Keogh, a Cabinet Office communications officer, passed on the document to Leo O’Connor, a researcher for anti-war Labour MP Anthony Clarke.
At the Old Bailey two months ago, Keogh was jailed for six months and O’Connor for three months for offences under the Official Secrets Act.
The trial judge, Mr Justice Aikens, rejected media argument that, since the proceedings were now at an end, the reporting restrictions imposed under the Contempt of Court Act should be lifted.
Today, Lord Phillips, the Lord Chief Justice, sitting with Mr Justice Elias and Mr Justice Griffith Williams, said details of the memo were heard strictly “in camera” at the trial and publication of the memo in relation to the trial was plainly prohibited.
But the trial judge, Mr Justice Aikens, had gone too far in banning publication of material which not only “would” but also “might” result in disclosure of the details.
The appeal judges deleted the word “might” on the grounds that publication of inaccurate speculation as to what the memo contained could not be prohibited because it would not amount to publication of the material heard in secret at the trial for the purposes of national security.
But Lord Phillips warned: “Such publications would be attempts, albeit unsuccessful, to flout the order made by the court and would be seen by the public as a violation of the order of the court.
“We consider it likely that any such attempt would, itself, constitute a contempt of court at common law.”
He added that the reporting restrictions themselves did not prevent the media from publishing the memo, if they had knowledge of it, in articles that were not related to the court proceedings.
But he said: “Where, as in the present case, the matter in question is withheld from the public at trial on the ground that its disclosure would be prejudicial to the national safety, there may be other legal inhibitions on the publication of that information, even if this is not in connection with the legal proceedings.”
Repetition of reports – regarded by the trial judge as “inaccurate” – as to the contents of the memo would not infringe the secrecy order.
But if any publication alleged that those reports accurately represented the evidence that was given in camera, there was a risk that it would constitute contempt of court.
Keogh, who believed the memo exposed Mr Bush as a “madman”, hoped it could be used to raise questions in the House of Commons and also wanted it to be passed on to US presidential candidate John Kerry.
O’Connor placed it in Mr Clarke’s constituency papers, but the then Northampton South MP handed it in to Downing Street and an investigation was launched, leading to the Old Bailey trial.