Issue at the heart of our secret society

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The Independent Online
Journalists don't often win battles in court. Still less, battles against the Attorney-General adjudicated by the Lord Chief Justice, whose ruling yesterday will make journalists just a little more confident about reporting what goes on in and around the courts.

The case arose from The Independent's publication, in November 1995, of documents involved in the arms-to-Iraq scandal. Four men from a company called Ordtech had been found guilty of illegally exporting arms to Iraq, even though papers concealed by ministers through their use of public interest immunity certificates would have revealed that the men committed their crimes with the connivance of the authorities.

It took the intervention of Lord Chief Justice Taylor to prise these documents into the appeal process; their revelation led directly to the men's successful appeal, which concluded on 7 November 1995.

That same day, some of these contested documents fell into the hands of The Independent and we reproduced snatches of them in reporting the outcome of the appeal the next day.

Lord Chief Justice Taylor reported our behaviour to the Attorney-General, who prosecuted the newspaper, myself and Christopher Blackhurst, the reporter involved, for criminal contempt. Our actions, he charged, "set at nought the basis upon which the Court of Appeal had made available the documents".

A court order instructing the appellants not to use the papers for any purpose other than their appeal also meant that this newspaper was not allowed to use them to inform its readers.

Our argument was that Lord Taylor had not made clear that he intended this order to apply to the press, even though we made every effort to check his position following the end of the appeal.

Yesterday, Lord Chief Justice Bingham and two senior colleagues ruled that we were guilty neither of the act of contempt, nor intending to commit such a crime.

This was in part because the material we published was not significant enough to undermine the judicial process.

"Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way, should expose a party to conviction for contempt."

The consequences of the ruling, however, are anything but trivial. If the Attorney-General had won his case, the contempt laws, which are already complex and onerous for journalists, based upon 100 of years of precedent, would become more so.

Yesterday's message to the courts is that where they intend to restrict the reporting of their proceedings they should take care to be precise and to communicate their intentions to those they mean to restrict.

Those who are neither lawyers nor journals will, however, ask a more searching question: how can it be that documents at first concealed by politicians, then laid before a public court only in heavily censored form, should be further restricted from media and public scrutiny.

That is the real question and it cuts to the heart of Britain's obsessively secret state.