Slippery slope which led the Guardian to court failure

The Guardian, December 17 1983

The events which led to yesterday’s ruling in the Appeal Court began on October 20 when the Secretary of State for Defence, Mr Michael Heseitine, sent a memo to the Prime Minister discussing publicity surrounding the imminent arrival of cruise missiles at RAF Greenham Common, Berkshire.

Mr Heseltine sent copies of the memo to the Home Secretary, the Foreign Secretary, the Lord President of the Council, the Lord Privy Seal, the Chief Whip and the Secretary of the Cabinet. All were marked secret.

On Friday October 21, someone made a Photostat copy of one of the copies of the memo, and it was delivered to the Guardian that evening.

It arrived without a covering letter. Some handwriting in the top right-hand corner had been partially blacked out with a felt-tipped pen. The inefficiency of this operation, together with the fact that an anti-cruise demonstration was due to take place the next day in London,led initially to suspicions that the memo was a hoax.

Its text noted that the missiles were due to arrive at the air base on November 1; that Ministry of Defence and other Nato governments realised that their arrival could not be kept secret; and that it was, therefore, important to score the maximum impact in the parliamentary and public debate which would ensue.

That Friday evening the Guardian’s defence correspondent, David Fairhall, contacted the Ministry of Defence and, without disclosing the existence of the memo, confirmed that the missiles were due on November 1. His story ran in later editions of the paper.

Four days later, on October 24, an inquiry into the source of that story was established in Whitehall. That, too, was published in the Guardian, of October 25.

On October 31, when cruise missiles were due to be debated in the House of Commons, the Guardian published the full text of the memo, detailing Mr Heseltine’s thinking on how to gain the best coverage from the media and secure the best reception from the House of Commons.

During that day’s parliamentary debate, the Prime Minister expressed her regret that confidential messages between herself and Mr Heseltine should be published. Eleven days later, on November 11, the Treasury Solicitor wrote to the Guardian asking for the return of the memo.

On November 17, after taking counsel’s advice, solicitors acting for the Guardian wrote back, expressing the fear that the partially blacked-out handwriting in the corner of the memo might indicate which of the seven copies of the original had been Photostated and sent to the newspaper.

The solicitors wrote: “The editor is not prepared to take any step which might lead to the disclosure of the source of information in his newspaper.” They offered to return the document without the crucial marked corner.

The Treasury Solicitor, acting on behalf of Mr Heseltine and the Attorney-General, then issued a writ for the return of the document, on the grounds that it was their property. The Crown made it clear that the document’s return was sought because of the evidence it might yield on the source of the leak.

The Guardian indicated that it would fight the action on the grounds that it should not be forced to disclose the source of its information and that the leaked material represented a political embarrassment and not a threat to national security. After the unanimous decisions of a judge in Chancery and three senior judges in the Court of Appeal that the memo had to be surrendered immediately, it was returned by the editor yesterday afternoon.