R (Bright) v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE,MR JUSTICE MAURICE KAY,MR JUSTICE GIBBS |
| Judgment Date | 21 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0721-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2000 |
| Docket Number | CO 1236/00, 1240/00; CO 1241/00 |
[2000] EWHC J0721-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Judge
Mr Justice Maurice Kay
Mr Justice Gibbs
CO 1236/00, 1240/00; CO 1241/00
MR TUGENDHAT QC (instructed by Legal Department of the Guardian, and the Legal Department of the Observer) appeared on behalf of the Applicants, Rushbridger and Alton
MR B EMMERSON QC (instructed by Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Applicant Bright.
MISS C MONTGOMERY QC and MR I LEIST (instructed by the Crown Prosecution Service, Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondents.
These are separate but linked applications for judicial review of the orders made on 17th March 2000 at the Central Criminal Court by His Honour Judge Martin Stephens QC under s9 and Schedule 1, paragraph 2, of the Police & Criminal Evidence Act 1984.
In the course of careful and wideranging submissions by Mr Michael Tugendhat QC and Mr Ben Emmerson QC it was suggested that the applications raised important issues about the freedom of the press in this country. So, without providing a detailed or comprehensive summary of all the events which led up to the applications, I must sketch in some of the background.
It is fairly well known that from about 1997 a former employee of the Security Service, David Shayler, has been under investigation for alleged breaches of the Official Secrets Act 1989, and to use colloquial language, that he is wanted by the police in this country. He is believed to be resident in France and earlier extradition proceedings against him in the courts of that country were unsuccessful.
Mr Shayler's activities have given rise to considerable public debate. Perhaps the most alarming feature is his allegation that in 1996 British Security Services were involved in a failed bomb plot to assassinate Colonel Gaddafi, the Head of State of Libya, which nevertheless resulted in the deaths of innocent bystanders. This allegation was dismissed by the Foreign Secretary in 1998 as pure fantasy. If true it is difficult to over estimate its enormity: a conspiracy to murder the Head of another State, resulting not in his death, but in the deaths of innocent people who were not its intended targets. Again, if true, the circumstances in which such a plan was conceived and developed, and the identity of those who were informed about and approved it, or turned a blind eye to it, and equally, those who were deliberately kept in ignorance, raise critical public issues about the activities of the Security Services and those responsible for them.
If false, the fact that the allegations were made at all is itself inevitably damaging to the Security Services.
There are those who would instinctively believe the worst of the Security Services and, whatever the evidence, would remain invincibly confident that Mr Shayler had lifted a veil over an obscure and dark corner of public life. In their minds, at any rate, something of the smear would stick. No doubt, too, even false allegations of this kind can be used, and would continue to be used to attack the Security Services, and to undermine public confidence in their activities. Nevertheless, in its own way, the refutation of this allegation is also a matter of public importance. The story of the Gaddafi bomb plot is either true or it is false, and unless there are compelling reasons of national security, the public is entitled to know the facts, and as the eyes and ears of the public, journalists are entitled to investigate and report the facts, as I hope they would, dispassionately and fairly, without prejudgment or selectivity.
Mr Shayler is a regular newspaper correspondent. The first article drawn to our attention is a letter dated 28th September 1997 published in the Mail on Sunday in the form of a letter to the Prime Minister. Subsequent letters or articles by or about him have appeared in the Times, the Independent, the Evening Standard, the Sunday Times, and the Daily Telegraph (an interview). He has been the subject of a Panorama programme. Throughout 1999 he wrote articles for Punch magazine. He has a website (www.shayler. com) to which he makes written contributions on a regular basis and which therefore are generally accessible.
In 1999, "MI5 and the Shayler affair", was the subject of a new book entitled "Defending the Realm" by Mark Hollingsworth and Nick Fielding. In view of the material which was to emerge later one passage in chapter 6, "Bombings, Assassination and the Bugging of a Journalist" requires quotation:
"Shayler later said, I briefed my boss at MI5 during the course of the operation on planning and funding. One other officer in MI5 was fully briefed on the operation. The three MI6 officers were called PT16, PT16 Ops B, and the man meeting and running Tunworth, PT16B. As Shayler told ……., 'PT16B, who was my opposite number in SIS (MI6), started to talk about how this guy was involved in trying to plan an assassination attempt on Gaddafi, using a Libyan Islamic extremist group'."
On Sunday 13th February 2000 the debate was revived. An article from the Press Association purporting to link MI6 with an attempt to assassinate the Libyan leader Muammar Gaddafi was posted on the internet. It ran under the headline, "MPs demand enquiry into Gaddafi assassination plot". The article went on to refer to the first emergence of such claims "when former MI5 officer David Shayler began alleging that the security services were out of control. He claimed in a BBC Panorama programme that his opposite number in MI6, code named PT16B, had told him Britain paid about £100,000 to back the plot ……. Paris-based Mr Shayler, who fought off a British extradition attempt, claimed that the British Government had colluded in the details of deaths of innocent civilians."
The report went on to record the Foreign Secretary's dismissal of the allegations, and the demand for an enquiry "into the affair" by the Shadow Foreign Secretary and the Liberal Democrat Foreign Affairs and Defence Spokesman.
Mr Wadham, Director of Liberty, was said to have called for a Parliamentary Committee "with real teeth" to oversee the work of the Security Services.
A very long article, entitled "Cook misled public over Libya plot" appeared in the Sunday Times for the same date. In this article references were again made to the claims by Shayler and the circumstances in which he was told, and by whom, (PT16B) of the plot. The vigorous denial by the Foreign Office of these claims was recorded. The article ended by noting that the Sunday Times had complied with a request by the Secretary of the Government's Defence, Press and Broadcast Advisory Committee, "not to print the address of the website" on which the report was published.
On the following morning both the Birmingham Post and the Scotsman published articles to similar effect.
Perhaps inevitably, given the importance of the issues, on the same day, the Foreign Secretary Mr Robin Cook, made himself available for interview on the BBC Today programme. In the course of the interview he is recorded as saying that he was "absolutely satisfied that the previous Foreign Secretary did not authorise an assassination attempt" adding "the Secret Intelligence Service had never put forward such a proposal for an assassination attempt, and in my time in office I have never seen any evidence that SIS is interested in such an escapade".
On the following day, 15th February, the Guardian newspaper printed an article by Richard Norton-Taylor, "Words of a Weasel" , analysing the Foreign Secretary's remarks and identifying a number of issues arising from David Shayler's assertions. He said that "you do not need to take all of Shayler's claims at face value to suggest that the episode raises serious questions about MI6's lack of accountability. Shayler, exiled in Paris, will be delighted to know that the cross party parliamentary intelligence committee —which in the past has dismissed his allegations as nothing more than disaffected rantings —will raise the matter at a meeting today."
On 17th February, a letter attributed to David Shayler, giving the address, "Paris, France", was printed in the correspondence column of the Guardian newspaper. The Letters Column contains this written assurance:
"We do not publish letters where only an email address is supplied; please include a full postal address and a reference to the relevant article. If you do not want your email address published, please say so. We may edit letters."
Under the heading "MI6 and Gadaffi", the letter reads:
"'Shayler's apparent exaggeration gave Cook an easy way out', asserts Richard Norton Taylor (Words of a weasel, February 15th) about the MI6 report which has appeared on the internet. I would like to confirm that the report is genuine and that its source was Tunworth, who passed his information to PT16/B (an MI6 officer). PT16/B explained to me that MI6 put it out to Whitehall that MI6's customers would be informed of the planned coup but would not be alerted to MI6's involvement.
I would like to make it clear that I have exaggerated nothing. I have never claimed the CX report in question confirmed that MI6 funded the plot. The coup plan it discusses does though match exactly the account I gave of the Gaddafi plot in Secrets and Lies, a document I prepared to defend myself in June 1999.
I have pointed out that Robin Cook told the Frost programme of August 9 1998:...
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