The editor of the Guardian, Mr Peter Preston, yesterday handed over a secret Ministry of Defence document after a two-day legal battle ended with an emphatic order from the Appeal Court that the person who leaked it to the newspaper in October had to be traced as an urgent matter of national security.
The Guardian had fought the government’s attempt to recover the document in a test case of a section of the 1981 Contempt of Court Act which allows newspapers to protect the sources of their information.
Lawyers acting for the government had made it clear that they wanted the document – a memo marked secret, from the Secretary of State for Defence to the Prime Minister – so that they could examine markings on it and try to identify the person who leaked it.
Yesterday morning the Master of the Rolls, Sir John Donaldson, and two Lords of Appeal unanimously dismissed the newspaper’s appeal against an earlier order that they should surrender it. All three judges rejected the Guardian’s argument that the source of the document represented no threat to national security.
In his ruling Sir John said that it was irrelevant that the memo, which discussed how to handle publicity about the arrival of cruise missiles, had not in itself jeopardised national security.
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.”
Lord Justice Griffiths and Lord Justice Slade both stressed that it was the threat to future security which concerned them. Lord Justice Griffiths said: “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.”
The judges disagreed on the issue of whether the Contempt Act covered the return of property as well as the disclosure of sources. Lord Justice Griffiths upheld the Guardian argument that the source of written information should be protected as much as the source of verbal information. Lord Justice Slade disagreed, and Sir John Donaldson did not rule on the point.
After the hearing Mr Preston attacked the judgement in principle: “It is like saying that because someone whips a tube of Smarties they should be treated as if they would rob a bank. It means that Section 10 of the Contempt Act is shot full of holes and is virtually no help in the protection of sources. I feel sad and sick at the whole business,” he said.
Although the three appeal judges gave the newspaper leave to appeal to the House of Lords against their ruling, they refused to grant an application that the order for the return of the document should be delayed until that appeal had been heard.
Yesterday afternoon, Mr Preston handed the document to Treasury solicitors. A decision on whether to proceed with the appeal to the Lords is not expected until Monday.
In a separate development yesterday the Director of Public Prosecutions said that no criminal proceedings would be brought against a civil servant in the Department of Education and Science who was accused of trying to leak documents to the Guardian in May. The civil servant, who has now retired at the normal re-tirement age, was interviewed by officers from Scotland Yard’s Serious Crimes Squad after it was claimed that raw material for a study of the effect of spending cuts on education had been sent to the newspaper.
UPDATE: Following the return of the memo, a clerical officer at the Foreign Office, Sarah Tisdall, was prosecuted under the Official Secrets Act. She pleaded guilty and was jailed for six months.