Ministers issue gag orders for MI5 trial
Blunkett and Straw accused of trying to intimidate judge as Shayler case starts today at Old Bailey
Monday October 7, 2002
Ministers have demanded that part of the trial of David Shayler, the former MI5 officer, which starts at the Old Bailey today, be held in secret in what lawyers say is an unprecedented attempt to influence the course of criminal proceedings.
The home secretary, David Blunkett, and the foreign secretary, Jack Straw, have signed public interest immunity certificates - a device designed to gag a court - insisting that the media and the public leave if activities of the security and intelligence agencies are raised by the defence.
They signed identical certificates last Friday, three days before the long-awaited trial was due to open.
Conservative ministers signed a series of PII certificates during arms-to-Iraq prosecutions in the 1990s. Guilty verdicts were subsequently quashed on appeal, mainly because the defence was deprived of relevant evidence.
The use of the PII certificates was strongly attacked by the then Labour opposition as well as by Lord Scott, chairman of the arms-to-Iraq inquiry and now a law lord. The certificates were used at the time to persuade a judge to prevent the disclosure to the defence of documents considered sensitive. The normal practice is for a trial judge to read the documents and decide, after hearing the case for secrecy, whether they should be disclosed.
Now ministers are demanding for the first time that the trial judge agree in advance that the court should go into secret session, without providing evidence to back up the prosecution's case and without the defence having the opportunity to argue against it.
The government was accused by lawyers yesterday of trying to intimidate the trial judge, Mr Justice Alan Moses, and of interfering in the criminal process.
Michael Tugendhat QC will today oppose the demand for parts of the trial to be heard in secret on behalf of the Guardian and other national newspapers. He is expected to underline the importance of the principles of open justice and freedom of expression and argue that the government has provided no evidence that national security could be threatened.
Geoffrey Robertson QC, acting for the civil rights group Liberty, will also oppose the government's move.
Government officials and lawyers persuaded the two cabinet ministers to sign the PII certificates after they learned that Mr Shayler intended to defend himself at the trial. They appear to be worried that he will make further allegations about MI5 and MI6 knowledge of a plot to assassinate the Libyan leader, Muammar Gadafy, in 1996.
A book, Forbidden Truth, published this summer claims that British intelligence was in contact with "Osama bin Laden's main allies" who were opposed to Colonel Gadafy.
In an earlier case relating to Mr Shayler's allegations, the appeal court last year ruled that "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".
Mr Shayler is charged under three counts with breaking the Official Secrets Act. They relate to disclosures published in national newspapers in 1997, including how MI5 held files on prominent politicians, - among them Jack Straw and Peter Mandelson - it once considered potentially subversive, and how it tracked the movements of a Libyan official suspected of being an intelligence agent.
The prosecution has put together five large files containing newspaper reports relating to allegations by Mr Shayler.
By coincidence, Mr Justice Moses was the prosecuting counsel in many of the arms-to-Iraq cases involving disputes over PII certificates signed by ministers, and Mr Robertson was defence counsel in the most controversial case involving three directors of the machine tool company Matrix Churchill.
The argument about whether any of the trial should be heard in secret will be held in public. The jury is unlikely to be sworn until after the matter is settled.
The David Shayler case
Freedom of information
Spies on the internet
Crown Prosecution Service
Campaign for Freedom of Information