The Secretary of State for Defence and the Attorney General yesterday sued the Guardian for the return of a secret document as part of their attempt to discover the identity of the person who leaked it to the newspaper in October.
The Guardian resisted the move at a High Court hearing before Mr Justice Scott on the grounds that an untested clause of the 1981 Contempt of Court Act allows newspapers to protect their sources of information.
The court heard that on October 20 the Secretary of State for Defence, Mr Michael Heseltine, wrote a memo marked ‘secret’ to the Prime Minister in which he told her that cruise missiles were expected to arrive at RAF Greenham Common on November 1 and explained his plans for dealing with the ensuing parliamentary and public debate.
On the next evening a copy of the memo arrived on the Guardian news desk and, after checking its contents with the Ministry of Defence, the newspaper published a front-page story disclosing the planned arrival date of the missiles. Ten days later, on the eve of a parliamentary debate on the subject, the newspaper published the full text of the memo.
In an affidavit, the principal establishment officer of the Ministry of Defence, Mr Richard Hastie-Smith, said that the leak was “of the gravest importance to the continued maintenance of national security” and a threat to the relationship between the UK and her allies, who would be unable to entrust secret documents to the government for fear of having them leaked.
Mr Simon Brown, representing the Crown, said that Mr Heseltine had distributed only seven copies of the memo. Markings on the Guardian’s photostat could indicate which of the seven copies had been leaked. “The leak must be identified to safeguard future security,” he said.
The editor of the Guardian, Mr Peter Preston, said in an affidavit that the Guardian had a responsibility to its sources, even when their identity was not known. “The duty exists because it is in the public interest that people who give information to newspapers should have every protection that a newspaper can provide,” he said.
Lord Rawlinson, representing the Guardian, argued that the court should not order the return of the document because under section 10 of the 1981 Contempt of Court Act “no court may require a person to disclose the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”
Mr Brown said that this section did not help the Guardian, firstly, because it covered the disclosure of sources and not the return of property to its rightful owners; and secondly because “it would be difficult to find a stronger case of disclosure being in the interests of national security.”
Both sides agreed that the leaking of Mr Heseltine’s memo had not in itself prejudiced national security, but Mr Brown argued that the existence of a civil servant who was prepared to leak secret documents on sensitive subjects amounted to a threat to future security, which had to be checked. He indicated that the person responsible for the leak faced prosecution under the Official Secrets Act.
Lord Rawlinson added that the newspaper had taken care not to publish anything which might prejudice national security and that, in making its initial check on the contents of the memo, it had encountered no order or request to stop publication.
Mr Justice Scott is expected to deliver judgment in the case today.