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.

Aug/Sep 2000
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Last modified: 25 July 2000
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