The media has dragged a small concession from the jaws of censorship. A coalition of British media organisations has won a limited victory in an appeal against restrictions imposed on reporting the Official Secrets Act (OSA) trial of David Keogh and Leo O’Connor.
Keogh and O’Connor were jailed in May for breaching the OSA. The high court heard that Keogh, a cabinet office civil servant, passed a memo containing minutes of an April 2004 meeting between George Bush and Tony Blair to O’Connor, a political researcher.
O’Connor, who opposed the Iraq war, placed a copy of the document into papers belonging to his boss Anthony Clarke, the Labour MP for Northampton South.
The court heard that O’Connor and Keogh wanted the document’s contents to become public. But when Clarke found the memo he contacted the police.
Downing Street was made aware of the leak, but in November 2005 the Daily Mirror ran a story on the alleged contents of the memo.
It said the document contained details of a conversation between Bush and Blair in which Bush discussed bombing Al Jazeera’s Qatari headquarters, but was dissuaded by Blair.
The White House quickly dismissed the Mirror’s allegations. An official said, “We are not going to dignify something so outlandish with a response.”
However, within 24 hours of the Mirror’s publication, newspaper editors were contacted and threatened with prosecution if they published the document.
Lord Goldsmith, the attorney-general, told editors “publication of a document that has been unlawfully disclosed by a crown servant could be in breach of Section 5 of the Official Secrets Act”.
During the trial Sir Nigel Sheinwald, Tony Blair’s foreign policy adviser, said that conversations between political leaders must remain confidential – even if their content was immoral or illegal.
He added that publication of the document’s contents could “seriously damage relations with friendly governments”.
Prosecutor David Perry QC told the jury the OSA does not exist to prevent governmental embarrassment but to protect the interests of the state.
He said, “We are not talking about what may be embarrassing or an act of disloyalty. Even in the age of mass communication, something remains sacred.”
The interests of the state and the interests of “friendly governments” were openly taken into account during the Keogh and O’Connor trial. But it is argued that far less consideration was given to the public’s right to know.
During the trial, discussions relating to the contents of the document were held in secret. The media and public were excluded – only the jury could hear that evidence. Publication was prohibited.
The strictures on reporting the trial were tightened when the trial judge, Mr Justice Aikens, used the Contempt of Court Act to impose a further injunction.
This prevented the media from discussing the trial and speculation about the contents of the memo in the same article.
Nor were the media allowed to publish this information in two separate articles placed on the same page.
Additionally, the media was prohibited from publishing a comment made by Keogh when quizzed about the memo in open court.
This placed the media in the Kafkaesque position of not being able to repeat material they had previously published and that remained available on their websites.
Seventeen British media organisations launched a joint appeal against Justice Aikens’ injunction.
They were partially successful. On 30 July the court of appeal ruled the media could once again report allegations about the memo’s contents.
However, they were warned that suggesting these allegations accurately represented the evidence given in secret could be in contempt of court.
The media are still not permitted to publish Keogh’s comment.
But they can say Keogh is reported to have said the contents of the document were “abhorrent” and “illegal” and that he felt the document revealed Bush to be a “madman”.
April 2004, the period the document is reported to pertain to, was a particularly sensitive period in the Iraq war. There are numerous reports of British unease and concerns surrounding the attack on Fallujah and the use of white phosphorus at this time.
This is not just an issue of media freedom. When the media is gagged the public is often blindfolded.
For a genuine democracy to exist the electorate needs to be able to hold their government to account.
The Iraq war has been masked by a confection of official spin and disinformation.
Now we are being prevented from hearing the truth behind the fiction and discovering what Blair and Bush really said behind closed doors.
Julie-ann Davies is the editor of Free Press, the newsletter of the Campaign for Press and Broadcasting Freedom. For more information go to » www.cpbf.org.uk