Monday, November 28, 2005

Empty threats from the Attorney-General

Marcel Berlins points out that the Attorney-General is being selective in his quoting of the Official Secrets Act:

He was merely reminding papers, in the words of his note to them, "that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is itself a breach of section 5 of the Official Secrets Act". True, but only (Lord Goldsmith omitted to say) if the prosecution can prove that what was disclosed was damaging (I summarise) to the country's security or to its international relations and - an important "and" - that the newspaper knew (or had cause to believe) that it was damaging.

I have been trying all weekend to think of ways in which disclosing the memo - even if, apart from the al-Jazeera bits, it also contains what Bush and Blair said about the US attack on Falluja - could cause the damage required by the act. I have failed.

On the radio Lord Goldsmith added another warning, pointing out that there was a "live" prosecution. In other words, watch out, the media, that you don't commit contempt of court. But that would be triggered only by publishing something that creates a "substantial risk of serious prejudice" to a forthcoming trial. I cannot see how revealing more about the Bush-Blair conversation could create that degree of prejudice (or indeed any) to the case of the two men facing the official secrets prosecution. The final score: Threats to the media by Lord Goldsmith 2; empty threats 2.

This is even before the legitimate defence that could be raised under the right to freedom of expression in the European Convention on Human Rights.

It's unfortunate that no newspaper has yet moved to challenge the gag and publish the memo. It's also a great shame that the leaker of the document didn't realise that in the 21st century, all you need to do is anonymously fax such memos to Cryptome, where they will remain on full public view whatever the empty threats of the UK government.

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