The Master of the Rolls and two Lords of Appeal yesterday ordered the Guardian to return a leaked secret document to the Ministry of Defence and refused to allow the newspaper to keep it pending an appeal to the House of Lords.
Although all three judges agreed that it was in the interests of national security that the document should be returned, they arrived at their conclusions by different routes.
The Guardian had argued through its counsel, Lord Rawlinson, that the newspaper need not return the document because it bore markings which might disclose its source, and because section 10 of the 1981 Contempt of Court Act bars courts from demanding that a newspaper should disclose its sources.
The Crown, through Mr Simon Brown, attacked this defence on two points: that section 10 was irrelevant because it was asking for the return of its property and not for the disclosure of a source; and because section 10 would not apply if disclosure of the source were necessary in the interests of national security or justice, or to prevent crime.
In the lower court on Thursday morning Mr Justice Scott had ruled against the Guardian on the first point, concluding that Section 10 had no relevance, but added that he supported the newspaper on the second point, that the source of the document was not a threat to national security.
Yesterday the Master of the Rolls, Sir John Donaldson, skirted round the first issue. “The matter should be approached from a different point of view,” he said. “The Crown need not rely or its ownership of the document to argue that it should be returned.
He noted at this point that a second counsel for the Guardian, Mr Peter Prescott, had argued that the Crown’s ownership of the document might not extend to the crucial markings in the corners, so that it could be returned without them.
Sir John attacked Mr Prescott’s point by saying that the Crown probably owned the document because it had been photocopied on their paper on one of their machines, and anyway copyright on the markings probably did belong to the Crown.
But, he said, regardless of whether the Crown owned all the document or not, it was entitled to demand its return on the same grounds that British Steel demanded its leaked documents from Granada Television in 1980: because it was needed to pursue legal proceedings.
Sir John then turned to the second issue, and declared that he disagreed with Mr Justice Scott’s ruling. Section 10 could not help the Guardian, he said, because disclosure of the source was necessary in the interests of national security and, he added, in the interests of justice and to prevent crime.
The fact that this particular leak had done no damage was not important, he said: “A servant of the Crown who handles classified documents has decided for himself whether classified information should be made public. If he can do it on this occasion, he may do it on others when the safety of the state will truly be imperilled.”
It was for ministers to decide what should be published, not for dishonest civil servants or newspaper editors. “It is no answer to this that the editor of the Guardian may be a patriotic and responsible citizen.”
It was equally clear, he said, that in the interests of justice the Crown should be allowed to proceed against its ‘dishonest servant’ and also to prevent crime, such as a further breach of the Official Secrets Act.
In their judgments Lord Justice Griffiths and Lord Justice Slade agreed with Sir John’s view on national security but differed on the first issue of whether Section 10 of the Contempt Act covered the return of property as well as the disclosure of information.
Lord Justice Griffiths said that Section 10 should allow newspapers to protect their sources even if that meant that they refused to return property to its rightful owner.
“I have some doubts whether section 10 has any relevance at all to the present case. It is at least arguable that Parliament did not intend to interfere with the rights of owners to the return of their property even if the return incidentally involves the disclosure of its source.”
He added that it was also arguable that in this case the property should be returned because it was by no means certain that it would actually lead to the disclosure of its source: the markings on the document might not lead to the detection of the person who sent it.
But Lord Justice Griffiths and Lord Justice Slade agreed with Sir John that, even if Section 10 did apply, the circumstances of the leak amounted to a threat to national security which made the disclosure of the source imperative.
Lord Justice Griffiths said: “The threat to national security lies in the fact that someone, probably in a senior position, cannot be trusted. So long as he is unidentified, he presents a very serious threat to our national security. It is a matter of urgency that every possible step should be taken to identify and remove him. Too much time has already passed. The trail will be growing cold and the culprit taking steps to cover his tracks.”
Lord Justice Slade agreed and added that the Guardian was not being asked to disclose a source whose identity was known to the paper. “The Guardian can scarcely be criticised when they have strongly resisted the order both here and in the court below.”
The three judges then granted an application from Lord Rawlinson that the Guardian should have leave to appeal to the House of Lords but denied an application that the order for the return of the document should be delayed until the appeal was heard.