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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bright, R (on the application of) v Central Criminal Court [2000] EWHC 560 (QB) (21 July 2000) URL: http://www.bailii.org/ew/cases/EWHC/QB/2000/560.html Cite as: [2001] 1 WLR 662, [2001] EMLR 4, [2001] 2 All ER 244, [2000] UKHRR 796, [2001] WLR 662, [2002] Crim LR 64, [2000] EWHC 560 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		Date: Friday, 21st July 2000

1. LORD JUSTICE JUDGE: These are separate but linked applications for judicial review of the orders made on 17th March 2000 at the Central Criminal Court by His Honour Judge Martin Stephens QC under s9 and Schedule 1, paragraph 2, of the Police & Criminal Evidence Act 1984.
2. In the course of careful and wideranging submissions by Mr Michael Tugendhat QC and Mr Ben Emmerson QC it was suggested that the applications raised important issues about the freedom of the press in this country. So, without providing a detailed or comprehensive summary of all the events which led up to the applications, I must sketch in some of the background.
3. It is fairly well known that from about 1997 a former employee of the Security Service, David Shayler, has been under investigation for alleged breaches of the Official Secrets Act 1989, and to use colloquial language, that he is wanted by the police in this country. He is believed to be resident in France and earlier extradition proceedings against him in the courts of that country were unsuccessful.
4. Mr Shayler's activities have given rise to considerable public debate. Perhaps the most alarming feature is his allegation that in 1996 British Security Services were involved in a failed bomb plot to assassinate Colonel Gaddafi, the Head of State of Libya, which nevertheless resulted in the deaths of innocent bystanders. This allegation was dismissed by the Foreign Secretary in 1998 as pure fantasy. If true it is difficult to over estimate its enormity: a conspiracy to murder the Head of another State, resulting not in his death, but in the deaths of innocent people who were not its intended targets. Again, if true, the circumstances in which such a plan was conceived and developed, and the identity of those who were informed about and approved it, or turned a blind eye to it, and equally, those who were deliberately kept in ignorance, raise critical public issues about the activities of the Security Services and those responsible for them.
5. If false, the fact that the allegations were made at all is itself inevitably damaging to the Security Services.
6. There are those who would instinctively believe the worst of the Security Services and, whatever the evidence, would remain invincibly confident that Mr Shayler had lifted a veil over an obscure and dark corner of public life. In their minds, at any rate, something of the smear would stick. No doubt, too, even false allegations of this kind can be used, and would continue to be used to attack the Security Services, and to undermine public confidence in their activities. Nevertheless, in its own way, the refutation of this allegation is also a matter of public importance. The story of the Gaddafi bomb plot is either true or it is false, and unless there are compelling reasons of national security, the public is entitled to know the facts, and as the eyes and ears of the public, journalists are entitled to investigate and report the facts, as I hope they would, dispassionately and fairly, without prejudgment or selectivity.
7. Mr Shayler is a regular newspaper correspondent. The first article drawn to our attention is a letter dated 28th September 1997 published in the Mail on Sunday in the form of a letter to the Prime Minister. Subsequent letters or articles by or about him have appeared in the Times, the Independent, the Evening Standard, the Sunday Times, and the Daily Telegraph (an interview). He has been the subject of a Panorama programme. Throughout 1999 he wrote articles for Punch magazine. He has a website (www.shayler.com) to which he makes written contributions on a regular basis and which therefore are generally accessible.
8. In 1999, "MI5 and the Shayler affair", was the subject of a new book entitled "Defending the Realm" by Mark Hollingsworth and Nick Fielding. In view of the material which was to emerge later one passage in chapter 6, "Bombings, Assassination and the Bugging of a Journalist" requires quotation:

"Shayler later said, I briefed my boss at MI5 during the course of the operation on planning and funding. One other officer in MI5 was fully briefed on the operation. The three MI6 officers were called PT16, PT16 Ops B, and the man meeting and running Tunworth, PT16B. As Shayler told ......., 'PT16B, who was my opposite number in SIS (MI6), started to talk about how this guy was involved in trying to plan an assassination attempt on Gaddafi, using a Libyan Islamic extremist group'."

9. On Sunday 13th February 2000 the debate was revived. An article from the Press Association purporting to link MI6 with an attempt to assassinate the Libyan leader Muammar Gaddafi was posted on the internet. It ran under the headline, "MPs demand enquiry into Gaddafi assassination plot". The article went on to refer to the first emergence of such claims "when former MI5 officer David Shayler began alleging that the security services were out of control. He claimed in a BBC Panorama programme that his opposite number in MI6, code named PT16B, had told him Britain paid about £100,000 to back the plot ....... Paris-based Mr Shayler, who fought off a British extradition attempt, claimed that the British Government had colluded in the details of deaths of innocent civilians."
10. The report went on to record the Foreign Secretary's dismissal of the allegations, and the demand for an enquiry "into the affair" by the Shadow Foreign Secretary and the Liberal Democrat Foreign Affairs and Defence Spokesman.
11. Mr Wadham, Director of Liberty, was said to have called for a Parliamentary Committee "with real teeth" to oversee the work of the Security Services.
12. A very long article, entitled "Cook misled public over Libya plot" appeared in the Sunday Times for the same date. In this article references were again made to the claims by Shayler and the circumstances in which he was told, and by whom, (PT16B) of the plot. The vigorous denial by the Foreign Office of these claims was recorded. The article ended by noting that the Sunday Times had complied with a request by the Secretary of the Government's Defence, Press and Broadcast Advisory Committee, "not to print the address of the website" on which the report was published.
13. On the following morning both the Birmingham Post and the Scotsman published articles to similar effect.
14. Perhaps inevitably, given the importance of the issues, on the same day, the Foreign Secretary Mr Robin Cook, made himself available for interview on the BBC Today programme. In the course of the interview he is recorded as saying that he was "absolutely satisfied that the previous Foreign Secretary did not authorise an assassination attempt" adding "the Secret Intelligence Service had never put forward such a proposal for an assassination attempt, and in my time in office I have never seen any evidence that SIS is interested in such an escapade".
15. On the following day, 15th February, the Guardian newspaper printed an article by Richard Norton-Taylor, "Words of a Weasel" , analysing the Foreign Secretary's remarks and identifying a number of issues arising from David Shayler's assertions. He said that "you do not need to take all of Shayler's claims at face value to suggest that the episode raises serious questions about MI6's lack of accountability. Shayler, exiled in Paris, will be delighted to know that the cross party parliamentary intelligence committee - which in the past has dismissed his allegations as nothing more than disaffected rantings - will raise the matter at a meeting today."
16. On 17th February, a letter attributed to David Shayler, giving the address, "Paris, France", was printed in the correspondence column of the Guardian newspaper. The Letters Column contains this written assurance:

"We do not publish letters where only an email address is supplied; please include a full postal address and a reference to the relevant article. If you do not want your email address published, please say so. We may edit letters."

17. Under the heading "MI6 and Gadaffi", the letter reads:

"'Shayler's apparent exaggeration gave Cook an easy way out', asserts Richard Norton Taylor (Words of a weasel, February 15th) about the MI6 report which has appeared on the internet. I would like to confirm that the report is genuine and that its source was Tunworth, who passed his information to PT16/B (an MI6 officer). PT16/B explained to me that MI6 put it out to Whitehall that MI6's customers would be informed of the planned coup but would not be alerted to MI6's involvement.

I would like to make it clear that I have exaggerated nothing. I have never claimed the CX report in question confirmed that MI6 funded the plot. The coup plan it discusses does though match exactly the account I gave of the Gaddafi plot in Secrets and Lies, a document I prepared to defend myself in June 1999.

I have pointed out that Robin Cook told the Frost programme of August 9 1998: 'There was no Government inspired plan to assassinate Colonel Gadaffi. There was no (MI6) proposal to do it and I am fairly clear that there has never been any (MI6) involvement'. The CX report demonstrates that an MI6 agent was involved in a plot to assassinate Colonel Gaddafi. All MI6 agents are run by at least one officer so, by extension, an MI6 officer was involved."

18. There is nothing to suggest that the Guardian solicited or invited the letter. It simply received a letter from one of its readers and the editor (Mr Alan Rushbridger) decided that it should be published. In view of the comments directed at Mr Shayler personally, two days earlier, it was perfectly reasonable to publish his response. Simultaneously however it was decided to omit from the published letter a number of matters considered to be "political rantings" which failed to advance the public debate. So the letter was edited accordingly.
19. Mr Shayler did not seek confidentiality, and, as far as the evidence goes, he did not expressly accept the invitation at the head of the letters column to indicate that he did not want his email address published.
20. The Metropolitan Police Special Branch, responsible for the investigation into the activities of Shayler, contacted the legal representative of the Guardian newspaper on 18th February, informing her of the investigation. By letter dated 19th February (apparently sent on the 18th itself) her assistance was sought, "with this investigation, ........ (we) request from you any and all information relating to the publication of this letter which may be in your possession or control, that may assist the enquiry."
21. By letter dated 21st February the Legal Department of the Guardian and the Observer responded that

"1.The Guardian does not possess the original letter.

2. We were not sent any additional documents"

22. it concludes:

"As the letter from David Shayler was published in any event, it is unlikely that a copy of the original would add anything to your investigation. In any event, the Guardian does not have the original letter."

23. On Saturday 26th February, before the Observer for the following day was published, the Treasury Solicitor and MI5 made a number of telephone calls to the Observer which, according to a statement by Shayler on his website, followed a contact he had made with MI5. According to a subsequent letter from the legal adviser of the Observer, MI5 saw the following days newspaper in draft. No effort was made to prevent publication. So, on 27th February, an article was published on the front page of the Observer newspaper under the headline, "Two spies named in Libya plot", and written by Martin Bright, the Observers home affairs correspondent.
24. The lengthy article describes Shayler as the "renegade MI5 agent" and suggests that he had "dramatically escalated his battle with the Government when he named two serving intelligence officers ..... involved in a covert operation to assassinate Libyan dictator Colonel Muammar Gaddafi". The article claims that the names of the agents involved in the plot "have been disclosed to the Observer, but for legal reasons we are prevented from publishing them. News that Shayler is revealing the identities of agents will send shockwaves through the Intelligence Services ....... It will also intensify the Governments determination to pursue the errant agent, currently in exile in Paris, through the courts."
25. The article then refers to a letter, for reasons which will appear, crucial in these appeals, sent by Shayler to the Home Secretary, Jack Straw, with "full details of the alleged plot on 24th November last year", speaks of a "weekend of high drama", and purports to include a quotation directly from Shayler himself in Paris, adding that he claimed that he had "attended several high- level meetings between MI5 and MI6 throughout the autumn of 1997 at which the plot was discussed openly".
26. The article concludes:

"In the past month Shayler has increased the intensity of his campaign for an amnesty to allow him to return to Britain. He is also poised to release more details about MI5 reports into the bombing of the Israeli Embassy in 1994."

27. On 29th February Mr Shayler made a long statement on his website, purporting to be a narrative account of events following a meeting at an unspecified location which had taken place with Mr Bright on 24th February, "to brief him on the issues around my case". He was plainly extremely dissatisfied with the article in the Observer and ended by recording that he would not be "working with the Observer again, partly because of its representation of my story and partly because of the basic inaccuracies in the front page piece. Journalists these days, it seems, cannot even copy accurately out of the documents I give them. I fail to understand why a newspaper like the Observer feels the need to attack a whistle blower who has stood up against the Intelligence Services..... No wonder the Observer's circulation has plummeted so rapidly in recent years."
28. The article includes assertions by Shayler that on 25th February he sent a copy of the submission he made to the Government to the Observer, and that Bright had telephoned him to say that the Observer was to publish the name of PT16/B and that the Observer had asked him "to put PT16/Bs identity on the Internet so the paper could publish it without breaking the injunction". Shayler says that he refused to do so and that accordingly the Observer decided not to use the name in the first edition.
29. On 1st March 2000 two separate letters were sent to the legal department of the Guardian newspapers, the first related to the letter published in the Guardian. The Metropolitan Police asserted:

"The letter published by the Guardian on 17th February must have been received in some form at the newspaper. I wish to know in what form the material was received by the Guardian and who is now in possession of the original material/letter."

30. The notice of application directed to the editor of the Guardian, Alan Rushbridger, sought

"All files, documents and other records, whether those records are in written form, are kept on microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism, or correspondence concerning;

The letter which appeared ...... On Thursday 17th February 2000."

31. The second letter dated 1st March concerned the article in the Observer. It asserted:

"A criminal investigation has been initiated into alleged breaches of the Official Secrets Act

...... It is proposed to make application for Production Orders ..... for material held by you in relation to the article which appeared on page one of the Observer on Sunday 27th of February 2000...... The material sought is any and all files, documents, audio, or any other records held, controlled or otherwise in your possession, whether directly or indirectly in relation to the article published in the Observer on Sunday 27th February 2000, whether those records are in written form or kept on microfilm, magnetic tape or other form of mechanical or electronic data retrieval mechanism."

32. The notices of application to the author of the article, Martin Bright, and the editor of the Observer, Roger Alton, were directed to:

"all files, documents and accounts and other records, whether those records are in written form, kept on micro film, magnetic tape or any other form of mechanical or electronic data retrieval mechanism in relation to the article published in The Observer on Sunday 27th February 2000 entitled Two Spies named in Libya Plot.,"

33. On 3rd March, by fax, the legal department for the Guardian replied:

"You have not provided any reason why you would need to see the original letter, and it is difficult to see how it would be of any value to your investigation."

34. The same writer, writing from the legal department for the Observer, responded to the relevant notice of application.

"Your letter is not specific about which offences you are investigating, but you refer to the Official Secrets Act 1911- 1989. I have made enquiries and I am satisfied that the Observer is not in possession of any relevant material."

35. On 10th March the legal department of the Guardian confirmed:

"The letter from David Shayler was sent to the Guardian by email, and this email was deleted on the day of publication. The Guardian does not have any other material, unless there is data which we have not yet been able to trace on our database. This data will be in a form which can be recovered only by specialists in information technology, with sufficient expertise to find and recover this material.

The Guardian has a policy of not storing information sent to the Letters Page, as it is aware of its responsibilities to protect personal data under the Data Protection Act. The contents of letters may be intended for publication, but writers do not expect these documents to be stored indefinitely....."

36. On 14th March, that is on the first day of the hearing of the application, the legal department of the Observer wrote on behalf of the editor:

"You should know that it is normal procedure for journalists to dispose of records of information given to them in confidence by their sources. I have made enquiries about the email system at the Observer. The IT department have informed me that the backup tapes for 25 to 27 February were used during that week, so that no material deleted on or before those dates survives in the system.

In any event, the Observer email system is password protected and private. Each person has a personal address and no- one else has access to that persons emails. ..... The editor does not have the authority to access journalists emails without permission, and it is right that this would be a breach of the journalists privacy. Journalists value their independence and it is the Observer's policy to respect their rights.

I am also writing to find out whether you are aware of the telephone calls between Government Departments and the Observer on Saturday, 26th February 2000? The Treasury Solicitor called, as did MI5. No application was made for any injunction that night, and MI5 said that they had seen the paper and were no longer worried."

37. The information in support of the present application by DS Flynn asserts that:

"The Observer newspaper appears to be in possession of material covered by the Official Secrets Act. The disclosure of this information in the article of the 27th February may constitute a breach of Sec 5 OSA 1989.

Parts of this submission may contain material which is extremely sensitive and its disclosure to any unauthorised person is likely to lead to serious harm to the security of the State by purporting to detail methods and investigative techniques of the intelligence and security services."

38. The reference to s5 of the Official Secrets Act was a significant development: Attention was no longer exclusively directed at Shayler.
39. In the information DS Flynn referred to a damage assessment conducted by the Security Services. He said that their assessment was that the:

"disclosure of details contained in The Observer article 'Two spies named in Libya plot' of 27th February is extremely damaging."

40. The precise nature of the damage is unspecific, but significantly no similar references were made to any damage assessment alleged to arise from the Shayler letter to the Guardian.
41. The information in support of the application against the Guardian includes DS Flynn's assessment that:

"The enquiry is hampered by the lack of the information which may be held in respect of the letter by David Shayler, the substantive part of which was published on 17th February 2000 in the Guardian newspaper and the article entitled 'Two Spies named in Libya plot' published on 27th February 2000 in the Observer newspaper."

42. In context, the reference to "the enquiry" appears to be the enquiry into the material in the possession of the Observer.
43. Evidence at the hearing
44. Generally
45. Three important preliminary points arise. Throughout the hearing, everyone, including the judge himself, proceeded on the assumption that an offence against the Official Secrets Act amounted to a "serious arrestable offence" for the purposes of the 1984 Act. Unfortunately, although referred to in the application, in the course of the argument no one drew the attention of the judge to s116 of the Act. I shall return later to the significance of this error.
46. DS Flynn gave evidence. In reality he knew nothing, or virtually nothing, about the case. He was "tasked" to apply for the orders and they represented his first involvement in the Shayler investigation. He was entrusted with that responsibility because police policy required that an officer making such an application should be a "qualified financial investigator, having completed the appropriate courses".
47. At the hearing before us we were told that another officer, Inspector Lerner, who had much greater knowledge of the facts was present throughout the hearing. Mr Tugendhat told us that this was the first he knew of the presence and availability of any police officer with more information of the facts than DS Flynn. It is not insignificant that at one stage in his submission to Judge Stephens, Mr Tugendhat complained:

"It is entirely unsatisfactory that the information should be based, as it clearly is, on hearsay. And insofar as it is not based on hearsay, on the facts of this case it is even more unsatisfactory because this officer has not, hitherto, been responsible for this investigation. So he does not know the background. He is starting from scratch. He is in no position to give any informed assistance to the court as to what is or what is not to be of likely value in this investigation. And insofar as it is hearsay from another officer, Mr Lerner, it is unsatisfactory because it is impossible to ask any questions."

48. The judge intervened and asked Mr Tugendhat whether he would have sought to question Inspector Lerner if he had known of his existence. Mr Tugendhat replied that he would. He ended this part of his submission by commenting that DS Flynn lacked any sufficient authority to provide appropriate information, saying "Mr Lerner is not either but at least I could have found out from Mr Lerner who is."
49. It is unfortunate that these observations did not lead to the obvious response that Mr Lerner was indeed present and available at court.
50. Moreover, in my judgment the evidence should have been rather more carefully prepared. While acknowledging the sensitivities which can arise in cases involving national security, generally speaking the judge cannot proceed on the basis of bare assertion by a police officer. If public disclosure of the details of Shayler's offences would itself have prejudiced national security a properly drafted, careful summary of the relevant factors would probably have sufficed. Ultimately if the national interest would have been prejudiced by any publication at all, arrangements could have been made to provide the judge with necessary evidence by adopting a procedure similar to that used in PII applications (that is public interest immunity). It is not satisfactory for the officer giving evidence to the court, and attending for the purposes of being cross examined by the persons against whom the information is directed, to know as little about the case as DS Flynn, and for different reasons, equally unsatisfactory that the presence of an officer who knew rather more than he did was not disclosed. This application demanded full and proper disclosure. All these matters would be relevant to the exercise of the judges discretion, but more important, they are also directly relevant to the question whether the access conditions were established.
51. We must focus on the evidence actually produced by the Crown in support of the application. We enquired of Miss Claire Montgomery QC whether she wished to call or introduce any further evidence. She courteously declined.
52. The third point for emphasis is that, apart from any other distinctions between the position of the Guardian and the Observer and Mr Bright, it is clear that whereas the Guardian came into possession of a letter from Mr Shayler, with one exception there is no evidence that either Mr Bright or the Observer ever did so. The published article and Shayler's website entry referred in some detail to conversations, but the only document to which any specific reference is made is a submission or letter sent to the Government by Shayler in November 1999.
53. The Guardian
54. Stripped to essentials, what DS Flynn was after was "Shayler's email address".
55. He required the letter because there may be material .... That may contain evidence in relation to the offences that are being investigated, ie disclosures by David Shayler "and that the email 'would reveal Mr Shayler's email address which may further open new lines of enquiry'". That, he said, would add to the evidence. When he was asked whether the code name PT16B had been mentioned to him before or whether he had material which disclosed that name his response was not entirely clear, but he said that he had "never seen any original documents relating to PT16".
56. He was cross examined whether there were reasonable grounds for believing that there was any relevant material on the Guardian's premises. DS Flynn replied that he was "not a computer expert", but he added that material which had "been received by computers can be obtained when one has thought deleted.... if there is material on the computer there may be experts that can find it". Later he was to say that the investigation might recover evidence which would benefit Mr Shayler. He did not face up to the question whether Shayler's email address was already known to the investigating authorities, or the Home Office, with whom Shayler claimed on his website that he had communicated. Finally, DS Flynn did not attempt to refute or question Mr Elliott's evidence on behalf of the Guardian.
57. The unchallenged evidence of Mr Chris Elliott, Executive Editor for the Guardian, dealt with the receipt of the letter. It was:

"sent by email to our letters page address, which is [email protected]. Liz McGregor is the letters editor and she has given me details of what happened. The letter was edited to make it shorter and more readable. The part of the letter that was not published was what she described as 'political rant' and was edited out because it was not of interest to readers. The email was deleted on 17 or 18 February. The Guardian's policy is not to keep the personal data of letter writers as it is aware that it may have obligations under the Data Protection Act. This is particularly so when letter-writers have indicated that their details are confidential. Members of the public who write to the letters page do not expect their letters or personal details to be kept indefinitely, and do not give their permission for these details to be stored. We delete letters and email addresses so that letter writers can be sure that we will not disclose their personal details and this data will not be used for any collateral purpose, such as marketing.

The information technology (IT) department has confirmed that the email from David Shayler was deleted on 17 or 18 February.

It is extremely unlikely that a copy of the email is still on our backup tape..... We recycle tapes by copying over them."

58. The Observer and Mr Bright
59. The assertions made in the Observer article were briefly examined with DS Flynn, when the investigation was said to include "offences that may have been committed by Mr Shayler or, indeed, any person connected with this affair". He went on to say that it was "possible" that Mr Alton and Mr Bright would be subject of a criminal investigation, but he added that he only referred to Mr Bright in the context of Shayler's website because Shayler claimed that he had met Mr Bright and had discussions with him. He was of course under a duty to investigate any "collateral offences" which might be disclosed by the investigation.
60. When he was cross examined DS Flynn agreed that he was inviting the judge "to consider that there are reasonable grounds to believe that Mr Bright may have committed an offence contrary to s5 (of the Official Secrets Act)". He went on to agree that Mr Bright was "under investigation for such an offence". Finally the judge asked a direct question:

"Is your evidence that you have reasonable grounds to believe that Mr Bright has contravened the section?

(A) It is, my Lord."

61. Neither Mr Bright nor Mr Alton (the editor of the Observer) gave evidence. They would have been entitled to do so, and while so entitled, to refuse to answer questions which might incriminate them. I cannot help pondering about the likely disinhibiting effect of the belief expressed by DS Flynn, certainly in the case of Mr Bright, that although he knew virtually nothing about the case personally, he had reasonable grounds for believing that Mr Bright had contravened the Official Secrets Act. The Crown was not prepared to give an undertaking to the effect that evidence obtained as a result of the production order would not be used in criminal proceedings against Mr Bright or Mr Alton. Instead, and much more generally, and without providing any binding commitment, the risk of prosecution was said to be minimal. Understandably, that provided little comfort. Unlike DS Flynn, but like Judge Stephens, I have considerable reservations whether there is any evidence at all that Mr Bright can be said to have "disclosed" anything to anyone for the purposes of s5 of the Official Secrets Act, which was not already included in the published article. That said, if the entry on Shayler's website were accurate - and it seems to have represented a significant factor in DS Flynn's analysis - then Mr Bright was actively inciting Shayler to commit offences under s1 of the 1989 Act.
62. After that lengthy recitation of the evidence before Judge Stephens, I can turn to the relevant legislative framework.
63. The Legislation
64. Part II of the Police & Criminal Evidence Act 1984 contains detailed statutory provisions governing the powers of the police to enter and search premises and to seize property from them.
65. S8 empowers a Justice of the Peace who is satisfied that there are reasonable grounds for believing a number of specific matters, including that a serious arrestable offence has been committed, to issue a warrant authorising a constable to enter and search premises. No express reference is made to the public interest, but a special provision was made in relation to items subject to legal professional privilege, of some significance for present purposes. By s10(2) where the items in question are held for the purposes of crime, they fall outside the ambit of legal professional privilege. Once authorised, if necessary, reasonable force may be used to effect entry (s117). However these powers do not extend to "excluded material or special procedure material".
66. S11 explains the meaning of excluded material, and by s11(2) provides:

"A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject-

(a) to an express or implied undertaking to hold it in confidence; or

(b) to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act."

67. S11(3) provides:

"A person holds journalistic material in confidence for the purposes of this section if

(a) he holds it subject to such an undertaking, restriction or obligation; and

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism."

68. In brief therefore s11(3) is linked to both paragraphs (a) and (b) of s11(2).
69. Journalistic material is defined by s13 as ......... "material acquired or created for the purposes of journalism", provided "it is in the possession of a person who acquired or created it for the purposes of journalism" (s13(2)). Finally s13(3) explains that:

"A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes."

70. S14(1) explains the meaning of "special procedure material" as:

"(a) material to which sub section (2) below applies; and

(b) journalistic material, other than excluded material."

71. I can now turn to the Special Procedure provisions found in Schedule 1 of the Act.
72. This provides:

"1. If on an application made by a constable a Circuit Judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below."

73. That order is for the production of material to a constable or the provision of access to it.

"2. The first set of access conditions is fulfilled if

(a) there are reasonable grounds for believing

(i) that a serious arrestable offence has been committed;

(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application;

(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and

(iv) that the material is likely to be relevant evidence; (which by the application of s8(4) means anything that would be admissible in evidence at a trial for the offence)

(b) other methods of obtaining the material

(i) have been tried without success; or

(ii) have not been tried because it appears that they were bound to fail; and

(c) it is in the public interest, having regard

(i) to the benefit likely to accrue to the investigation if the material is obtained; and

(ii) to the circumstances under which the person in possession of the material holds,

that the material should be produced or that access to it should be given."

74. In these applications access condition 2(b) was established, and needs no further mention.
75. By contrast with the situation before Judge Stephens, it was appreciated before us that some, but not all, arrestable offences are serious. The Official Secrets Act 1989 is not included in either Part I or Part II of Schedule 5 of the 1984 Act. Therefore an offence contrary to any provisions of the 1989 Act is only a "serious" arrestable offence if it has or is intended or likely to lead to any of the consequences specified in s116(6) of the Act. These include not harm, but "serious" harm to the security of the State, or death or serious injury.
76. In truth, in the case of the Guardian, there is very little evidence to this effect. So far as the Observer is concerned, nothing has been produced to contradict the assertion that the draft "offending" article was seen by MI5 before it was published without any subsequent effort by MI5 to discourage publication. Judge Stephens concluded that the article itself provided the main source of material from which to conclude that an offence contrary to s1 of the 1989 Act had been committed. He proceeded on the basis that the only relevant arrestable offence or offences were committed by Shayler: So he ignored DS Flynn's evidence in so far as it related to Mr Bright and the Observer. For the reasons already given he did not specifically ask himself whether Shayler's offence was "serious" but the internal language of the article itself, suggesting that Shayler had identified two agents involved in the bomb plot to Mr Bright and that this had sent "shockwaves" through the Intelligence system, would have provided him with sufficient grounds for believing that a serious arrestable offence had indeed been committed by Shayler.
77. A successful application results in an order by the judge which is directed to the person who appears to be in possession of the relevant material. Entry to his premises is not immediately authorised. The order imposes a personal obligation on the individual to whom it is addressed. Very precise statutory provisions deal with practical problems (for example, where it is impracticable to communicate with the person entitled to grant entry to the relevant premises). For present purposes however the significant feature is that failure to comply with the order exposes the person to whom it is addressed to process, and penalty, "as if he had committed a contempt of court" (paragraph 15). Similar provisions are found in s20(2) of the Juries Act 1974 and s6(5) of the Bail Act 1976. Therefore, no doubt as it should be, non compliance with the order of the Circuit Judge is regarded as a very serious matter, which may have major consequences, including an order of imprisonment. On this basis alone it therefore behoves a judge to act with great circumspection before making an order.
78. In my judgment, and contrary to Miss Montgomery's submission, it is clear that the judge personally must be satisfied that the statutory requirements have been established. He is not simply asking himself whether the decision of the constable making the application was reasonable, nor whether it would be susceptible to judicial review on Wednesbury grounds. This follows from the express wording of the statute, "if .... a Circuit Judge is satisfied that one .... of the sets of access conditions is fulfilled". The purpose of this provision is to interpose between the opinion of the police officer seeking the order and the consequences to the individual or organisation to whom the order is addressed, the safeguard of a judgment and decision of a Circuit Judge. This conclusion is consistent with the approach suggested in R v IRC ex parte Rossminster [1980] AC 952, as well as a series of decisions in the Divisional Court of which R v The Crown Court at Lewes ex parte Hill [1991] 93 CLR 60 represents a valuable example.
79. In my judgment it is equally clear that the constable making the application must satisfy the judge that the relevant set of conditions is established. This appears to follow as an elementary result of the fact that an order will force or oblige the individual against whom it is made to act under compulsion when, without the order, he would be free to do otherwise. Again, if authority is required, I refer to the reasoning of Lord Diplock in R v IRC ex parte Rossminster at 1011 e-f where he said "the onus would be upon the officer to satisfy the court that there did in fact exist reasonable grounds......" And I should emphasise, under the rules currently under consideration, grounds for belief, not merely grounds for suspicion, are required, and the material to be produced or disclosed is not merely general information which might be helpful to police enquiries, but evidence in the sense in which that term is applied in the Crown Court, "relevant and admissible" at a trial.
80. Another feature of the rules arises from the clear language that if the relevant set of access conditions is fulfilled then the judge is empowered, but not bound, to make the order. Assuming that access conditions are established to his satisfaction, he has a discretion or power to refuse the application. Given the detailed pre- requirements of the order which mean, among other things, that the judge has no power to make the order unless he is satisfied in the public interest that he should do so, this is a little surprising. If he is so satisfied, how, putting the matter rhetorically, can he refuse the order?
81. Miss Montgomery suggested that the answer was that he could not, and she relied on the decision in R v Crown Court at Northampton, ex parte Director of Public Prosecutions [1991] 93 CAR 376. I do not so read this decision. The Circuit Judge purported to exercise his discretion on the basis that the application was "a sledge hammer to crack a nut", and therefore that it was not in the public interest to make the order. Given that he had already decided that a serious arrestable offence had been committed "it was hardly consistent for him to reach the conclusion that this was anything other than a serious matter and one which the public had an interest in seeing was brought to justice". So the exercise of his discretion was wrong.
82. I agree with that conclusion, but I do not accept that it has the consequence for which Miss Montgomery contended. That would have required paragraph 1 to read "if ...... a Circuit Judge is satisfied ..... he 'shall' make an order". That is not what it says.
83. The answer appears to arise from the somewhat limited conditions which are said expressly to be relevant to the "public interest". They are restricted to the potential benefit to the investigation and the circumstances in which the person against whom the order is sought "holds" the material. So, for example, nothing is said about open discussion in the media of questions of public importance or the consequences to which the person against whom the order is made may be exposed. Mr Emmerson's first position was that paragraph (c)(ii) in particular, was to be given very wide effect, in practice covering anything which might in a general way be said to be a matter of "public interest", including the privilege against self incrimination. If he is wrong however, and for the reasons which lead me later in this judgment to the conclusion that special procedure orders do not exclude the privilege against self incrimination, I believe that he is, his fall back position would be that the matters which could not otherwise be considered as matters of public interest as defined in paragraph (c) fall to be considered when the judge decides whether to exercise his discretion.
84. This provision, as it seems to me, is the final safeguard against an oppressive order, and in an appropriate case, provides the judge with the opportunity to reflect on and take account of matters which are not expressly referred to in the set of relevant access conditions and, where they arise, to reflect on all the circumstances, including where appropriate, what can, without exaggeration, be described as fundamental principles. This approach was endorsed in R v Bristol Crown Court, ex parte Bristol Press and Picture Agency Limited [1987] 85 CAR 190 where Glidewell LJ noted with approval that the judge at the crown court had rightly taken into account both "the importance of the impartiality and independence of the press", and "the importance of ensuring that members of the press can photograph and report what is going on without fear of their personal safety". Neither of these considerations is included in the public interest considerations specifically identified in paragraph 2(c).
85. Without attempting any comprehensive list of such matters, they might include, for example, the effect of the order on third parties, and any consequent damage to them, or the antiquity of the matters under investigation, or an unexplained re-investigation of matters formally investigated many years earlier, or that, notwithstanding that the offence under consideration is serious, the result of the prosecution would inevitably be a nominal sentence because of circumstances personal and particular to the potential defendant. Again, in my judgment, the judge may take account of an apparent disproportion between what might possibly be gained by the production of the material and the offence to which it is said to relate, and, for the reasons set out in detail below, in the case of journalistic material, to the potential stifling of public debate, and, in cases arising under s9 and schedule 1 to the risk of imposing an obligation requiring the individual to whom the order is directed to incriminate himself.
86. I must reflect on these last two considerations in greater detail.
87. It seems improbable that the European Convention on Human Rights was foremost in the mind of Parliament when this special procedure was enacted. Our attention was drawn to a number of decisions of the European Court of Human Rights. I have considered them with care. That said, by now, we surely fully appreciate that the principles to be found in Articles 6 and 10 of the European Convention are bred in the bone of the common law and indeed, in some instances at any rate, the folk understanding of the community as a whole. I do not intend to imply any criticism of the submissions made by any of the counsel in this appeal, each of whom advanced submissions of great clarity and appropriate economy, when I say that generally, the vast and increasingly lengthy number of citations in numerous skeleton and oral arguments of the decisions of the European Court, simply repeating in different language long standing and well understood principles of the common law, suggests that perhaps we do not.
88. For this reason, but in the context of this particular schedule only I shall illustrate what I am driving at by focusing on proceedings which may culminate in entry by the police into the premises of the Guardian and the Observer newspapers, reminding myself that in the sixth edition of his Law of the Constitution, at p203, Dicey, in a memorable observation, explained that as a matter of general principle, "with us individual rights are the basis not the result of the law of the constitution".
89. The common law principle was expressed nearly two hundred and fifty years ago in the famous case of Entick v Carrington [1765] 19 State Trials 1029.
90. Entick was a clerk whose home in Stepney was broken into by Carrington and three other "Messengers in Ordinary to the King". Their defence was that they were acting under the authority of a warrant issued by the earl of Halifax, a member of the Privy Council, and one of the principal Secretaries of State, which authorised and requested them to make strict and diligent search for the plaintiff and to bring him with his books and papers in safe custody..... to be examined.
91. The issue was whether the Secretary of State had jurisdiction to seize the papers. The report, at 1063, clearly mistakenly, refers to "the defendants' papers".

"...... If this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in this Kingdom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel...... This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant."

92. The judgment of Lord Camden, CJ, at 1066, includes statements of fundamental principle.

"No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage is nothing ........ If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant."

93. He continued:

"Papers are the owners goods and chattels .....and so far from enduring a seizure, ....... they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society."

94. At much the same time William Pitt, Earl of Chatham, (1708 - 1778) with greater rhetorical flourish was expounding the same principle, when he said:

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement."

95. The measured language of the judge and the emotion of the orator are encapsulated in the simple phrase that an Englishman's home is his castle. These principles were clearly understood in this country while an absolute monarch still reigned in France. If the Bourbon monarch, Louis XV, had heard of such language used by a prominent politician, and former First Minister, the speaker's best hope would have been for the king to have assumed that he was joking. But even that would not have prevented some fawning minion from despatching a lettre de cachet to ensure that he was locked up, indefinitely, and without trial. It is, hardly surprising therefore, that Voltaire, having twice been imprisoned in the Bastille, and eventually forced to live in exile, and notwithstanding what we can now appreciate were its great defects then, so greatly admired our constitution.
96. Linked with this by now ancient understanding of the autonomy of each individuals premises was the "much prized and indispensable freedom" spoken of by Watkins J, in Verrall v Great Yarmouth Borough Council [1981] 1QB 202, and encapsulating the historical truth that:

"I am concerned with the fundamental freedom which this country has prided itself on maintaining, and for which much blood has been spilt over the centuries, namely freedom of speech."

97. These principles are interlinked. Premises are not to be entered by the forces of authority or the State to deter or diminish, inhibit or stifle the exercise of an individual's right to free speech or the press of its freedom to investigate and inform, and orders should not be made which might have that effect unless a Circuit Judge is personally satisfied that the statutory preconditions to the making of an order are established, and, as the final safeguard of basic freedoms, that in the particular circumstances it is indeed appropriate for an order to be made.
98. Inconvenient or embarrassing revelations, whether for the Security Services, or for public authorities, should not be suppressed. Legal proceedings directed towards the seizure of the working papers of an individual journalist, or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tends to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence is normally be needed to demonstrate that the public interest would be served by such proceedings. Otherwise, to the public disadvantage, legitimate enquiry and discussion, and "the safety valve of effective investigative journalism", the phrase used in a different context by Lord Steyn in R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 at 341, would be discouraged, perhaps stifled.
99. What does not follow from the initiation of proceedings is that a stifling exercise is on foot. The judge, alert to the need to safeguard basic freedoms, must simultaneously acknowledge the public interest which underpins the relevant legislation, and s9 and schedule 1 in particular, that crime should be discouraged and those responsible for crime should be detected and brought to justice. Balancing these interests where they appear to be in conflict is a decision to be made in each individual case where apparent conflict arises.
100. These principles, which I derive from the common law, are interlinked. They are encapsulated and reflected in the European Convention. (Attorney General v Guardian Newspapers Limited [No 2] [1990] 1 AC 109 and Derbyshire County Council v Times Newspapers Limited [1993] AC 534). While account must be taken of reported decisions of the European Court which serve to supplement or clarify these principles, I do not find it necessary to refer to any of these decisions to discover the principles which apply to this one, and should not have done so if this judgment were delivered on 3rd October 2000, immediately after the Human Rights Act 1998 comes into force.
101. The next matter for consideration is Mr Emmerson's contention that a successful application against Mr Bright would infringe his privilege against self incrimination.
102. Mr Tugendhat adopted these submissions in relation to the Observer. In the course of the written and oral argument attention was drawn to the decisions of the European Court of Justice in Saunders v UK [1997] 23 EHRR 313, Funke v France [1993] 16 EHRR 297, and Serves v France [1999] 28 EHRR 265.
103. Perhaps Mr Emmerson will forgive me for failing to avoid the temptation to return to the observations of Lord Camden towards the end of his judgment in Entick v Carrington, at 1074,

"It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty."

104. Differing reasons for the rule against self-incrimination have emerged over the years, and the entire subject was recently illuminated by Lord Mustill in R v Director of Serious Fraud Office ex parte Smith [1993] AC 1.
105. In R v Hertfordshire County Council ex parte Green Environmental Industries Limited [2000] 1 AER 773, the impact of Article 6(1) and 6(2) of the European Convention, and the relevant decisions of the European Court on these provisions were analysed by Lord Hoffmann in the context of domestic legislation, the Environmental Pollution Act. Without implying any disrespect for the decisions of the European Court, sitting in the Divisional Court in England, where such a decision, or group of decisions has been examined by the House of Lords or Court of Appeal, this court is bound by the reasoning of the superior courts in our jurisdiction. We are not permitted to re-examine decisions of the European Court in order to ascertain whether the conclusion of the House of Lords or Court of Appeal may be inconsistent with those decisions, or susceptible to a continuing gloss. The principle of stare decisis cannot be circumvented or disapplied in this way, and if it were, the result would be chaos. In my judgment, in this court it is appropriate to consider and apply the principles against self incrimination as explained in R v Hertfordshire County Council but we should not now attempt to revisit the decisions in Saunders, Funke, and Serves, and attempt to reconcile their apparent contradictions. So far as we are concerned the impact of this group of decisions has been authoritatively decided. We have been told how they should be taken into account.
106. I respectfully venture to suggest that when the Human Rights Act 1998 comes into force the possible relevance of the decisions of the European Court for the purposes of s2(1) should be examined in the light of any available analysis by the House of Lords and the Court of Appeal, and in that way properly but sufficiently taken into account. It would therefore be unnecessary to recite massive passages from the judgments, and inappropriate to seek to undermine the decisions of our superior courts about their true ambit.
107. The question which therefore arises from the statutory provisions relating to special procedures is whether
108. Mr Bright was entitled to rely on the privilege against self incrimination as a ground on which the judge should have decided to refuse the application made against him, or, at the very least, as a significant factor bearing on the exercise of his discretion.
109. In R v Hertfordshire County Council, at 778, Lord Hoffmann explained that,

"The question of whether a statute which confers a power to ask questions or obtain documents or information excludes the privilege against self incrimination in one or other of its forms is therefore one of construction."

110. S71(2) of the 1990 Act provided:

"For the purpose of the discharge of their respective functions ......

(b) a waste regulation or authority may, by notice in writing served on him, require any person to furnish such information specified in the notice as the ...... authority ...... reasonably considers ...... it needs."

111. Non compliance, without reasonable excuse, amounted to an offence.
112. Lord Hoffmann went on to explain that the powers were created,

"...... not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information on the grounds that their answers might tend to incriminate them. ...... The request under s71(2) does not in itself form a part, even a preliminary part, of any criminal proceedings. It does not therefore touch the principle which prohibits interrogation of a person charged or accused......"

113. With these principles in mind I turn to ss8 and 9 of the 1984 Act which are directed to the proper investigation of a serious crime, after its commission, or more accurately, when there are reasonable grounds for believing that it has been committed, and involve the search for likely relevant and admissible evidence. These sections are directly concerned with the criminal process and the search for incriminating material in serious arrestable offences. That indeed is their exclusive purpose. Neither has anything to do with public administration.
114. Under s8 a warrant to enter premises owned or occupied either by a suspect or someone against whom no hint of suspicion arises may be granted. If necessary force may be deployed. During the course of the search incriminating material may be seized, and if so, used at a subsequent trial. The privilege against self incrimination is untouched. Of itself the warrant does not permit a suspect to be questioned, and apart from permitting the entry and search, the individual in the premises, whether a suspect or not, is not required personally to assist or indeed do anything at all. He is entitled to remain entirely passive.
115. By contrast, an order under s9 imposes a specific obligation, enforceable by a penal sanction, to produce or grant access to material which is likely to be relevant and admissible at a subsequent trial. It would be an odd and surprising development if the special procedure rules excluded the privilege against self incrimination, when the same privilege is maintained in s8. At the risk of repetition, this permits the search of the premises, but does not require a suspect to produce incriminating material to the police, or to give them access to it, although the police themselves may open doors and drawers as part of a legitimate search. Any admissible evidence is discovered by the searching officers, not handed over or made available to them under compulsion.
116. It is improbable that Parliament anticipated that an order under s9 and schedule 1, but not s8, would be made against a suspect, obliging him to elect between handing over or providing access to self incriminating material and rendering himself liable to imprisonment for failing to do so, or that, so far as a "suspect" is concerned, his position under s9 should in any way differ from the position of a suspect in s8 proceedings. No express provision to this effect is made.
117. Although this point was not closely addressed in argument, I shall return to the way in which journalistic material is defined in s13. The journalist must acquire or create the material for the purposes not of crime, but journalism. S13(3) is directed to the intention of the conveyor of the materials. If he intends that it should be used for journalism there is a rebuttable presumption that it was acquired by the recipient for that purpose. But if not, if for example, the recipient's purpose was to conceal evidence of a crime, the material is not journalistic material. In summary, if a journalist acquires material for the purposes of crime, or receives it other than for the purposes of journalism, it falls outside the ambit of s13(1). The objective of s9 is to enable the police to obtain journalistic material in the possession of a journalist, which is relevant to the criminal activities of others, including the individual who provided him with the material.
118. Focusing exclusively on paragraph 4(b) of schedule 1, it is suggested that an order which simply provides that a journalist should give the police "access" to material in his possession cannot give rise to any potential for self incrimination. I respectfully disagree. In my view the requirements in paragraph 4(a) and 4(b) should be read together. Read in this way they represent the process by which access may be gained by the police to journalistic material. It may be impossible, or highly inconvenient, for material to be physicially produced by the journalist to the investigating officers. He may need a critical document: he may have put the material sent to him into a computer which he needs to use, or into electronic form, or on microfile or magnetic tape. So, as an alternative to handing the material over to the police officer he must provide access to it. In my view all this forms part of the same process. Neither this procedure, nor the procedures under s8 are intended to result in self incrimination, and if either had been, express language would have been used.
119. In any event, even if it were right to treat the obligation under paragraph 4(b) as a distinct provision, the question of self incrimination would still arise. In short, the contrary view proceeds on the basis that no question of self incrimination can arise where a police officer says to a "suspect" journalist, in possession of material acquired or created in the course of his profession, "I demand that you give access to your notebooks" or, in the language of the current application your "files ...... or microfilm, magnetic tape or any form of mechanical or electronic data retrieval mechanism". In my view, in such circumstances, if the suspect journalist were obliged to take any positive step to comply with the demand, he would be providing or helping to provide material which could be used at his trial. Passive giving of access in such circumstances is improbable: unlike "allow" or "permit", "give" implies more than mere passivity.
120. The present appeals have proceeded on the basis that save for the purposes of comparison s8 did not arise for consideration. Therefore no argument was addressed to the question whether an application could be made against a "suspect" journalist or newspaper under s8, and I expressly decline to say anything about the possibility. Assuming however that it could not be so deployed in circumstances like the present, I remain of the view that s9 and schedule 1 do not provide sufficient authority for the proposition that Mr Bright, and the Observer, must produce documents or give access to material which may incriminate them.
121. Finally, I must add, that as a matter of fundamental principle, and for the reasons analysed earlier in this judgment, if I am wrong, I have no doubt that in exercising his discretion, the judge should take account of the fact that a possible consequence of his order would be the danger of self incrimination. This factor does not, in my judgment, become irrelevant because of the undoubted discretion provided in s78 of the Act for the trial judge to exclude evidence.
122. Conclusions
123. I can now turn to my conclusions.
124. The Guardian
125. The information against the Guardian was unspecific. Without repeating all the matters set out in the information it was said that parts of the submission "may" contain extremely sensitive material. No damage assessment was referred to in the information. In the application concerning the Guardian, I have considerable doubts whether there is any sufficient evidence to justify the conclusion that there were reasonable grounds for believing that a serious arrestable offence had been committed.
126. Judge Stephens decided that condition (a)(ii) was fulfilled, notwithstanding the unchallenged evidence of Mr Elliott that it was "extremely unlikely that a copy of the E- mail is still on the backup tapes". From the judges comments that "such material may be recoverable by persons of appropriate expertise", he proceeded to the conclusion that there "is" special procedure material at the Guardian's premises. I respectfully disagree: On the evidence, at most, there was the possibility that such material might be available.
127. Miss Montgomery persuasively sought to explain how material in electronic form could be recovered. But the evidence of DS Flynn was less convincing than Miss Montgomery's submission, not because he was dissembling or untruthful, but no doubt because he had very little personal knowledge of the process and the likelihood of success.
128. I further doubt whether the evidence being sought, that is, Shayler's email address, would provide relevant and admissible evidence against him. Although he wrote a letter to a newspaper when interest in his activities, and his allegations, was heightened, and did so without claiming confidentiality, it has not been demonstrated that anything in that letter as printed would do more than help with the general police enquiry. That would not make it relevant and admissible as evidence at Shayler's trial and there was no evidence to explain why his email address would, or should, of itself be so treated. Given the scarcity of information about Shayler's alleged offences it is also difficult to examine whether the material sought by DS Flynn was likely to be of "substantial" value to the investigation. In all the circumstances I am not impressed with the proposition that ability of the Crown unequivocally to prove that Shayler actually wrote the letter published under his name in the Guardian is of substantial importance. And if it were, the point could be proved by calling a witness from the Guardian, to explain that the original was no longer available.
129. I must deal with the suggestion, implicit in Mr Tugendhat's argument, that prior and extensive publicity of material falling within the Official Secrets Act should lead to the conclusion that it may be repeated with impunity. Constant repetition may be a relevant consideration in civil proceedings for an injunction, but every repetition may constitute another serious offence. Nevertheless, when the judge's final exercise of discretion comes to be made, he should balance precisely what national interest, or which individuals safety was being endangered, by repetition of material already in the public domain. In short, although Shayler would not avoid conviction for criminal disclosure merely because he had constantly repeated his disclosures, repetition might make it disproportionate for the special procedure to be deployed against a newspaper which printed a letter from him in response to its own earlier publication of an article critical of him, particularly when the letter contained nothing of any fresh significance.
130. In my judgment the necessary access conditions were not established. No question of the exercise of the judge's discretion arose. The order should not have been made. The appeal should be allowed.
131. The Observer and Mr Bright
132. This case is more difficult.
133. Judge Stephens proceeded on the basis that the only relevant available offence or offences were committed by Shayler: so he ignored DS Flynn's evidence in so far as it related to possible criminal proceedings against Mr Bright and The Observer. As far as he was concerned, the application related to Shayler's activities alone. Nevertheless the question of incitement by Mr Bright remains open. The risk of self incrimination leads me to exclude from a production order under s9 any record of Mr Bright's words to Shayler.
134. Mr Bright's article purported to report details of his conversation with Shayler. There is a clear distinction between material which is likely to be of "substantial value" to the investigation (paragraph 2(a)(iii)) and material likely to provide "benefit" to the investigation (paragraph 2(c)(i)) and the presence on the Observer's premises of evidence likely to be relevant and admissible at Shayler's trial (paragraph 2(a)(iv)). What Shayler said to Mr Bright would be admissible against Shayler, but Mr Bright's notebooks and records of what Shayler said to him would prove nothing against Shayler. Although the information given to Mr Bright from Shayler might be extremely interesting, probably of value to the overall investigation, apart possibly from ss23 and 24 of the Criminal Justice Act, any admissible evidence against Shayler arising from his discussions with Mr Bright is to be found either in Shayler's comments on his own website or in oral testimony from Mr Bright. In this context therefore he would be a potential witness against Shayler and apart from refreshing his memory from any contemporaneous notes, it is difficult to see how his records of the conversations would fall within paragraph 2(a)(iv).
135. So what is left? Shayler's website entry suggests that on 25th February he sent the Observer a copy of the submission he had made to the Government in the previous November. Mr Bright's article purports to refer to the submission or letter, apparently sent to Mr Straw, the Home Secretary. From the details given in the article it is reasonable to infer that Mr Bright was either in possession of the letter, or at the very least of his own note taken directly from it when the article was written. Shayler was scathing of the article complaining, but only in a general sense, that journalists "cannot even copy accurately out of the documents I give them". Therefore notwithstanding those words, I am unable from the material as a whole to draw the further conclusion that there are reasonable grounds for believing that Shayler disclosed or sent any other document to Mr Bright or the Observer.
136. The slow development of the Observer's claim that "relevant" records would "normally" be destroyed, and the absence of any evidence from Mr Alton or Mr Bright to the effect that he had never been or was not still in possession of the November 1999 letter, or that he had indeed destroyed all his records, entitled the judge to approach the case on the basis that there were reasonable grounds for believing that Mr Bright or Mr Alton were still in possession of this letter.
137. The proper analysis of the information about the letter has forced me to pause and reflect. There is no evidence from any police officer about the possible significance of the document, nor that the original was indeed sent to the Home Secretary by Shayler, nor any explanation of why Shayler's original letter cannot be produced to the police. However the document must be put into context, and examined as part of the overall concern about Shayler's criminality, and for the purposes of the access conditions, not simply ring- fenced and isolated from the rest of the case. Therefore, for different reasons to those which attracted Judge Stephens, I have concluded that there are reasonable grounds for believing that the access conditions in paragraph 2(a) are fulfilled in relation to this single document, but not in relation to any other material included in the application.
138. For present purposes I doubt whether the Crown would regard Shayler as a witness of truth. He is, in any event, unlikely to return willingly to the jurisdiction, to be called to give evidence against Mr Bright. The prospect of criminal proceedings against Mr Bright or the Observer arising from Shayler's decision to disclose to the Observer a copy of the letter he had sent to the government in November 1999 is theoretical and the risk of self incrimination is nonexistent. Finally, there is no realistic possibility that a warrant issued under s9 in relation to this document could possibly serve to stultify the proper functioning of the press. Shayler disclosed that he had sent the letter. It was a copy of a letter he had already sent to the Secretary of State. He invoked no journalistic confidence for it, and save on an imaginary basis, none could be implied. I have considered the particular public interest conditions identified in paragraph 2(c). In my view the public interest is properly served by an order limited to this single document. In effect therefore, this appeal, too, is allowed.
139. If I were wrong about the very limited ambit of the order which should follow in this case, I add, by way of footnote, that, in addition to the considerations in paragraph 2(c), and assuming that I am wrong about the proper construction of s9 in relation to self incrimination, for the purposes of exercising discretion I should have much more closely analysed the dangers of prosecution against Mr Bright for incitement, and second, and even more important in this particular case, I should have attached considerable weight to the potential danger that would have followed an order.
140. In the wide terms sought in the original application, I believe that it would have had a devastating and stifling effect on the proper investigation of the Shayler story. Virtually any journalist who made contact with him, and any newspaper publishing an article based on discussions with Shayler, would be at risk of a similar application to the present. To my mind that would be an unhealthy development, quite disproportionate to any practical advantages to the prosecution process.
141. Finally, I should add that this judgment is concerned only with the deployment of warrants under s9 and schedule 1. Nothing said in it is intended or should be regarded as having any bearing on civil proceedings for an injunction.
142. MR JUSTICE MAURICE KAY: I agree that the application on behalf of Mr Rusbridger and The Guardian should be granted. I have reached this conclusion for reasons which can be stated more laconically than those given by Judge LJ. Quite simply, I consider that, on the material before him, His Honour Judge Martin Stephens QC ought not to have been satisfied that there were reasonable grounds for believing that there was material consisting of or including special procedure material on the premises specified in the application. Accordingly, he ought not to have found access condition 2(a)(ii) to have been fulfilled. It may be that other access conditions were not fulfilled either but I do not intend to address that further. I entirely agree with what Judge LJ has said about the requirement for the Circuit Judge to be satisfied that the access conditions are fulfilled. I also agree with his analysis of the evidence relating to condition 2(a)(ii) in respect of The Guardian and attach particular significance to the unchallenged evidence of Mr Elliott who was made available for but was not the subject of cross-examination. In my judgment, the evidence relating to condition 2(a)(ii), taken at its highest, amounted to no more than a speculative possibility that the material was on the premises at the material time. As that in itself entitles The Guardian to succeed in their application, I consider it unnecessary to address the other points advanced on its behalf. Perhaps I should add that, in my view, the application on behalf of The Guardian raises no great principle of press freedom.
143. The application on behalf of Mr Bright, Mr Alton and The Observer does not admit of such a simple solution. Taking Mr Bright's article at face value, it seems clear that Shayler has disclosed to him names of two serving intelligence officers whom Shayler alleges were involved in a plot to assassinate the Libyan Head of State. An editorial decision has been taken not to publish the names. It is necessary to stand back and consider the circumstances in which the application to the judge was made. For some time the police have been investigating Shayler. As I understand it he is suspected of having committed offences under the Official Secrets Act. That is the basis upon which his extradition was sought, albeit unsuccessfully. His disclosures may be true or false. In either case, he may have committed offences because section 1(2) of the 1989 Act extends to a statement 'which purports to be a disclosure of... information'. A journalist to whom Shayler has disclosed any relevant 'information, document or article' does not commit an offence under section 5 merely by receiving or retaining such things. The offence under section 5(2) - or, for that matter, section 5(6) - is committed when the recipient discloses them without lawful authority.
144. In order to obtain a production order, the police first had to satisfy the judge that the access conditions were fulfilled by satisfying him that there were reasonable grounds for believing the specified matters. Our task is to consider whether the satisfaction of the judge was lawful. I shall deal with the conditions in their statutory sequence.
145. (a)(i) 'that a serious arrestable offence has been committed'.
146. Whilst it is unfortunate that the judge was not referred to section 116 of the Police and Criminal Evidence Act 1984 on the meaning of "serious arrestable offence", it seems to me to be incontrovertible that the disclosure by Shayler of the names of two serving intelligence officers - whether the accompanying allegations are true or false - is likely to lead to "serious harm to the security of the State."
147. "Likely" in this context should be given the same meaning as in paragraph 2(a) of the access conditions, namely "such as well might happen" rather than the higher hurdle of "more probable than not": see R -v- Norwich Crown Court ex parte Chethams [1991] COD 271. In my judgment, to disclose the names in question to the media in the context of the grave allegation of the assassination plot - true or false - is such that serious harm to the security of the State (including its security officers) might well ensue. If the judge had been referred to the correct test, I do not doubt that he would have found it fulfilled. On the other hand, I do not consider that any offence which Mr Bright may have committed under section 5 could be characterised as a serious arrestable offence. He did not publish the names of the intelligence officers and what he did publish does not seem to have included anything significant that was not already in the public domain.
148. Access condition (a)(ii) "that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on the premises specified in the application".
149. So far as this condition is concerned, the evidence is much stronger in relation to The Observer than in relation to The Guardian. Miss Montgomery submitted that there was no evidence of actual destruction or deletion and the timescale was short. Shayler's web-site stated that the material went into the possession of its recipient at The Observer on 25th February. The article was published on 27th February and the notice of application for a production order was served on 1st March. The material was seen and considered by editorial and legal staff. There was contact with the security services. As Judge LJ has observed, neither Mr Bright or Mr Alton gave evidence before the judge. It has never been suggested that Shayler sought to impose confidentiality in relation to the material and the evidence does not point to an implied obligation of confidentiality. In my judgment there was ample evidence from which the judge could properly infer that there was special procedure material (not including excluded material) on the specified premises. I shall come back to the extent of such material later.
150. Although Mr Emmerson sought to attach importance to the language of the judge - "may still exist and be recoverable" - as being evidentially insufficient, I am confident that the judge was satisfied, and properly satisfied, that there were reasonable grounds for believing that there was, at the date of the hearing, material on the premises. When I come to consider access condition (a)(iv) I shall address the question of whether it is "likely to be relevant evidence" against Shayler.
151. Access condition (a)(iii) "that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made". So far as "the investigation in connection with which the application is made" is concerned, the documents in support of the application to the judge referred to sections 1 and 5 of the 1989 Act. Any offence under section 1 could only have been committed by Shayler, whereas any offence under section 5 could, in the circumstances of this case, only be committed by a recipient of the material at The Observer who went on to disclose it. So far as Shayler is concerned, the investigation is legitimately concerned with whatever he has disclosed to the newspaper, whether or not it has subsequently been published. Moreover, to prove a case against Shayler, the prosecution would need to prove the material that he is alleged to have disclosed to The Observer. Mere proof of the article in the edition of 27th February would prove nothing as against Shayler. The judge was clearly entitled to be satisfied as to condition (a)(iii), quite apart from any question of a prosecution of Mr Bright. The fact that such a prosecution remains a possibility is an additional but unnecessary factor so far as condition (a)(iii) is concerned.
152. Access condition (a)(iv) "that the material is likely to be relevant evidence."
153. This condition is more difficult. Any material that was created by Mr Bright would be relevant and admissible against him - for example, notes of conversations or drafts of articles. However, as I have said, he cannot be said, on the material before us, to have committed a serious arrestable offence under section 5. Nor would such material be admissible against Shayler if he were to stand trial for a serious arrestable offence under section 5. It seems to me that, for this access condition to be met, the judge had to be satisfied that there were reasonable grounds for believing that there was journalistic material on the premises which was likely to be relevant evidence against Shayler. In my judgment, there was a basis for the judge to have been so satisfied. The Shayler website for 29th February contains his account of his dealings with Mr Bright and The Observer over the previous few days. Ignoring the more self-serving parts of it, it says of Mr Bright's article:

"Journalists these days, it seems, cannot even copy accurately out of the documents I give them."

154. Moreover, parts of the text of Mr Bright's article seem to me to be consistent with having been compiled from documentary material provided by Shayler including a copy of a letter which Shayler claimed to have sent to the Home Secretary and which included, "full details of the alleged plot...including the name of a MI6 officer who ran the operation and, according to Shayler, paid for the assassination attempt." Any such material would be relevant and admissible against Shayler in relation to a charge upon the serious arrestable offence of disclosing such material to Mr Bright.
155. Access condition (b)(i) "other methods of obtaining the material... have been tried without success."
156. The application was only made after attempts to procure voluntary production had been unsuccessful. The fulfilment of this condition was therefore self-evident. In the circumstances, consideration of the alternative condition (b)(ii) - methods not tried because bound to fail - did not arise.
157. Access condition (c) It is in the public interest, having regard
158. (i) to the benefit likely to accrue to the investigation if the material is obtained; and
159. (ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.
160. I agree with Judge LJ that this is not an open-ended public interest condition and that, for example, the important submissions made by Mr Emmerson about self-incrimination and freedom of expression fall to be considered in the context of the statutorily conferred judicial discretion once the judge is satisfied that the specific access conditions have been fulfilled. Having arrived at this position it is a short step to satisfaction as to condition (c) in the circumstances of this case. The benefit likely to accrue to the investigation if the material is obtained is that, if and when Shayler becomes available to the jurisdiction, the investigating officers will be in a much stronger position to charge him with and prove against him a serious arrestable offence than they would be if the material was not obtained. On the facts of this case, there is a substantial public interest in that. It does not need

161. R -v- Crown Court at Northampton ex parte Director of Public Prosecutions to lead me to that conclusion, and I do not find it necessary to analyse that authority. Moreover, the circumstances in which one or more people at the Observer are holding the material do not, in my judgment, give rise to any great counterveiling public interest. The material is not being held in circumstances of confidentiality. Inferentially, it was provided by Shayler with a view to its dissemination. Part of it has been published. I do not find any error of law in the judge's perception of the balancing of the public interest in light of the competing facts which were relevant at this stage of the exercise.

161. If follows from what I have said that, in my judgment, His Honour Judge Martin Stephens QC was entitled to be satisfied that the access conditions were fulfilled in relation to Mr Bright, Mr Alton and the Observer. That brings me to one of the more difficult parts of this case, and the part which makes it a case of importance beyond its own perameters. I do not doubt that, when exercising the overarching discretion to grant or to refuse a production order, a judge must have due regard to the human rights and fundamental freedoms of the persons against whom the order is sought.
162. In my judgment, if human rights and fundamental freedoms have a crucial role in this case, it is only likely to be by reference to the protection against self-incrimination, to which I shall shortly return. However, Mr Emmerson sought to rely also on freedom of expression. There is certainly high authority for the proposition that, even before the coming into force of the Human Rights Act 1998, the common law right to freedom of expression is to be treated as coextensive with Article 10 of the Convention (Attorney General -v- Guardian Newspapers (No 2) [1990] 1 AC 109 at 283 to 284, per Lord Goff of Cheveley, Reynolds -v- Times Newspapers [1999] 3 ELR 1010 at 1029 per Lord Steyn. However, notwithstanding Mr Emmerson's powerful submissions and those of Mr Tugendhat, I am not persuaded that this case is concerned with freedom of expression. The Observer has already published that part of the material which it wished to publish. It is under no duty of confidentiality to Shayler in relation to the remaining material. In any event, it would not be the granting of a production order that would inhibit further publication, but the risk of criminal liability under section 5 of the Official Secrets Act. I am not impressed by the argument that to grant a production order in relation to special procedure material which is not the subject of an obligation of confidentiality to the source of the material would stand as a disincentive to future whistle-blowers or other suppliers of information to the media to act in the public interest by disclosing important material. It is usually open to them to demand confidentiality as to their identity as the price of their disclosure.
163. It seems to me that the real issue in relation to the Observer is not freedom of expression or respect for correspondence (which crept into the submissions but, almost unnoticed, crept out again) but the privilege against self-incrimination. It is clear from the evidence before the judge that the investigation in respect of which the application was being made included an investigation into an offence under section 5, as to which the only suspects could be employees of the Observer, especially Mr Bright. To that extent, the investigating officers assert that there are reasonable grounds to believe that he has committed such an offence and, whereas it is suggested that it is unlikely that he will be prosecuted, an undertaking not to prosecute has not been forthcoming. We must therefore assume that he is at risk of prosecution. It is inherent in the application for the production order that, if granted, it would require him to produce "relevant evidence" and that the material produced would be "likely to be of substantial value... to the investigation", which includes investigation into an alleged offence committed by Mr Bright himself. Against this background, Mr Emmerson submitted that the privilege against self-incrimination has an important place in the protections developed by both domestic law and pursuant to Article 6 of the European Convention on Human Rights. It was incumbent upon the judge to have proper regard to it when exercising his discretion whether or not to grant the production order. In effect, the submission was that the discretion ought to have been exercised in a way which was consistent with the privilege or right as recognised by the common law and the ECHR and not in a way which would conflict with such an important protection.
164. The privilege or right is not an absolute one and there are numerous examples of legislation interfering with it. Indeed, Lord Mustill said in ex parte Smith at page 40: "...statutory interference with the right is almost as old as the right itself," but that the court should be: "More than ever cautious before concluding that Parliament really intended to exclude it." In the circumstances of the present case, Parliament has not excluded it, but has created a judicial discretion where its implications have to be considered.
165. The Strasbourg jurisprudence in this area is extensive. We have been taken to the leading cases including Fayed -v- United Kingdom; Saunders -v- United Kingdom; Funke -v- France and Serves -v- France. I agree with Judge LJ that, since this Strasbourg jurisprudence has recently been considered by the House of Lords in R -v- Herefordshire County Council ex parte Green Environmental Industries Limited, this Court ought to be guided by what the House of Lords said (although the matter would not be quite so simple if we were considering this case after 2nd October 2000 because of section 2(1)(a) of the Human Rights Act). However, there are other parts of the speech of Lord Hoffman to which I feel obliged to refer.
166. The principle which Lord Hoffmann extracted from Saunders was expressed by him in the following terms at page 781:

"...the European jurisprudence under art 6(1) is firmly anchored to the fairness of the trial and is not concerned with extra judicial inquiries. Such impact as art 6(1) may have is upon the use of such evidence at a criminal trial."

168. Serves on the other hand:

"...turns on the fact that Captain Serves was at risk of being required to incriminate himself in the very proceedings in which he was charged with murder. The questions were to be put to him as part of the judicial process. The case is therefore not relevant to extra judicial inquiries."

167. As to Funke, upon which Mr Emmerson placed most reliance, Lord Hoffman considered that it contains "obscurities in reasoning" (page 782) adding (at page 783):

"It is however clear that the court in the Saunders' case, did not regard this case as casting doubt upon the clear distinction which it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution."

168. Accepting these statements of principle, the next question is how they apply to the facts of the present case. Mr Emmerson submitted that Article 6 applies to a person who is under investigation but has not yet been charged and that "charge" has a special meaning in ECHR law in the sense that Article 6 applies as soon as an individual is "substantially affected" by the actions of the investigating or prosecuting authorities. He referred to a number of authorities, the most recent of which is Allemet de Ribemont -v- France 20 ECHR 557. To operate on the level which Mr Emmerson seemed to be suggesting, such a principal would not live easily with Saunders. However, it is apparent from the judgment in Allemet de Ribemont (page 575), that the case turned on the fact that, at the material time, a judicial investigation had already begun and it was that that made the suspect a person "charged with a criminal offence" within the meaning of Article 6(2). Indeed he was already under arrest and in police custody as part of the judicial investigation.
169. Miss Montgomery submitted that, in the light of Saunders and ex parte Green Environmental Industries, the present case does not give rise to a breach of Article 6. In the event that Mr Bright is prosecuted, the trial judge will be able to decide whether any material obtained by reason of the production order is to go before the jury. At that stage, section 78 of the Police and Criminal Evidence Act and Article 6 can both be properly considered.
170. In my judgment, Miss Montgomery is right. At the point when the judge in the Central Criminal Court was considering this, and more, there was no question of the making of a production order contravening Article 6(1). Moreover, the making of an order does not fly in the face of the privilege against self-incrimination. Parliament has laid down a detailed code for controlling the circumstances in which a production order may be made in relation to journalistic material. It does not include an exception for material which may incriminate the journalist. Journalistic material is either special procedure material or excluded material and, in either case, is beyond the reach of the police under the general provision relating to warrants to search and enter premises (section 8). Production orders are more tightly controlled by the access conditions and by the exercise of judicial discretion at the higher level. Their execution, initially at least, is less coercive and invasive although it is true that noncompliance may lead to a warrant and/or contempt proceedings (paragraphs 12 and 15 of Schedule 1). To the extent that Judge LJ attaches importance to the notion that, under section 9, there is an obligation upon the journalist actually to produce the material which may incriminate him, I respectfully disagree with his analysis. The journalist, out of deference to his profession, is given the option either to produce it to a constable for him to take away or to give a constable access to it. He is not obliged physically to hand it over and, if he chooses not to do so, his position under the alternative of giving access is not very different from the section 8 warrant procedure.
171. Where does all this lead? In my judgment, the making of this production order did not contravene Article 6 or any other provision of the European Convention on Human Rights and nor did it offend the privilege against self-incrimination in domestic law. If I am wrong in my conclusion about Article 6 and the common law of self-incrimination, I am still not persuaded that the making of a production order in the case of the Observer was legally erroneous. In respect of what alleged offence may Mr Bright be at risk of incriminating himself? On the material before the Court, the answer must be an offence of disclosure under section 5 in relation to the article of 27th February. The application for the production order referred only to section 5 in the case of Mr Bright (and section 1 in the case of Shayler). As I understand it, Mr Bright does not dispute that he was the author of the article which bears his name or that its contents came, at least in part, from Shayler. There is no suggestion that he has made any other disclosures which may amount to offences under section 5. In these circumstances, it does not seem to me that he would be placed in any greater jeopardy than already exists if the production order stands. Whilst that is not a point that was advanced to the judge at the Central Criminal Court or to us, it disposes me to the view that, in the context of the ultimate judicial discretion, it is a matter which would militate against the total refusal of a production order.
172. Nevertheless, it was entirely appropriate for the judge to consider the implications for Mr Bright as a suspect when considering whether or not, in his ultimate discretion, to make the order. That is what he did, albeit by reference to a wider construction of Access Condition 2(c), rather than in relation to the general discretion under paragraph 1. He considered the Strasbourg jurisprudence and the common law. Since I am satisfied that the judge was entitled to find that the access conditions were fulfilled, all that remains to consider is whether the exercise of his ultimate discretion was legally erroneous and amenable to challenge and, if the production order is to stand, what its scope should be. In my judgment, he exercised discretion generally in a way that is not susceptible to judicial review.
173. I agree, however, with Judge LJ, that where it is apparent that the access conditions are not satisfied in relation to a particular category of material, that category must be excluded from the production order. In the circumstances of this case, that applies to any document created by
174. Mr Bright. However, where the access conditions are satisfied in relation to one or more items of journalistic material, I would uphold the production order in relation to not only the one or more items that have been specifically identified, but also to any other material of the same category. Thus, in the present case, I would extent it to any material which Mr Bright obtained from Shayler. In other words, I do not think that it is necessary for the police to satisfy the judge as to each and every document. If they had satisfied him as to an item of a category or type of material, everything falling within that category or type should be produced. If a judge was satisfied that X was in possession of special procedure material in the form of a letter from Y and was minded to make a production order in respect of it, it would be most unfortunate if the production order did not extend to any other letters from X and Y which were of similar significance. It would be absurd if the production order were limited to a specific letter that was identified and, upon that letter being produced, it referred to an earlier letter and a fresh application had to be made for the production of that earlier letter. As one document led to another, there might have to be a wholly undesirable series of applications with the possible loss or destruction of important material between applications.
175. Accordingly, in relation to Mr Bright and the Observer, I conclude that there was material upon which a production order might properly have been made but that, in my judgment, the scope of it ought to have been more limited. So far as that limitation is concerned, I would limit it to the letter to which I have referred, together with any other documentation which was provided to Mr Bright by Shayler.
176. MR JUSTICE GIBBS: I agree that the application on behalf of
177. Mr Rushbridger and the Guardian should be allowed. For the reasons given by Judge LJ, the access conditions in Schedule 1 paragraph 2 of the Police and Criminal Evidence Act 1984 were not fulfilled. I do not find it either necessary or helpful to add anything further on the subject of these applications.
178. I agree also that the applications on behalf of Mr Alton, the Observer and Mr Bright raise altogether more difficult questions.
179. A question of considerable importance is whether the powers of the police under section 9 of the 1984 Act may be invoked when the effect would or may be to oblige a person at whom an application under that section is directed to incriminate himself. On that question I respectfully agree with the opinion of Maurice Kay J, and (save where indicated hereafter) the reasons which he gave for that opinion in his judgment. I would wish to add only a few observations of my own.
180. The potential for self-incrimination could arise in several different ways. It could arise where the serious arrestable offence referred to in Schedule 1, paragraph 2(a)(i) was believed to have been committed by the very person against whom the application is directed. It could arise where the principal target of the investigation was a person other than the recipient of the application, but where at the same time there were grounds for believing that the latter may also incriminate himself by complying with an order. It could arise also where there was nothing known to the applicant which would suggest that compliance with the order would incriminate the person in possession of the material, yet where the latter believed that such material was likely to incriminate him. In the present case (taking the informations at face value) an order would not require Mr Shayler, who is the principal target of the investigation, to incriminate himself; yet it would potentially have that effect on Mr Bright. These examples, whilst not directly relevant to the question under consideration, do demonstrate that there are a number of different ways in which the right against self-incrimination may arise in connection with applications under section 9; and it shows further, that the degree of weight to be attached to that right in individual factual situations may vary infinitely. This is in my judgment important when one comes to consider the question of access conditions C(i) and (ii), and/or the exercise of discretion under paragraph 1 of the Schedule.
181. It may also be useful to note that the warrant procedure may be adopted in situations which might otherwise call for a production order if "service of notice of an application for an order under paragraph 4 above may seriously prejudice an investigation" (subparagraph 14(d)). This appears to contemplate a situation in which a person to whom an order is directed is so closely connected with the matters being investigated that notice to such a person may in itself have a serious adverse effect upon the investigation. The most obvious reason for such a situation to arise is fear by the recipient of the order that production of the material may incriminate him.
182. I respectfully differ from the reasoning of Maurice Kay J on this topic in two particular respects; first, on the distinction made between the requirements under paragraph 4(a) to produce the documents and 4(b) to give access to them. I respectfully agree with Judge LJ that this distinction does not diminish the coercive quality of the procedure. Secondly, I attribute greater importance to the distinction drawn by Mr Emmerson between a requirement to produce incriminating documents or answer questions in the context of regulatory as opposed to purely criminal investigations. This is the distinction based upon the contrast between (for example) Saunders -v- United Kingdom (1997) 23 EHRR 393 and Funke -v- France (1993) 16 EHRR 297.
183. I nevertheless conclude that section 9 by necessary implication includes the power for the Crown Court to make production orders which actually or potentially infringe a person's right against self-incrimination. This right whilst of considerable importance at common law has never been considered absolute. Whilst recognised in much more recent times in the European Human Rights jurisprudence, it is not, in fact, expressly guaranteed by Article 6 of the European Convention. However, it is, in my judgment, vital to couple with my conclusion on section 9 the recognition that in it Parliament has created safeguards in the form of a series of access conditions fulfilment of which have to be proved to a court; and further a judicial discretion which can and must be exercised before a production order can be made. As will appear, the extent to which any order made may infringe the right against self-incrimination is in my view an important consideration in this process.
184. I turn now to the specific access conditions. For the reasons given by Judge LJ I consider that access condition (a) is only fulfilled as to the copy letter to the Home Office and not otherwise.
185. I agree with the opinion of Judge LJ on the extent to which access condition (b) is fulfilled.
186. I turn now to access condition (c). I accept that (c) (i) and (ii) set boundaries or limitations on the extent to which the court is entitled to explore the wide and potentially problematic territory of 'public interest'. I do not however agree that it places off limits such issues as self-incrimination. On the contrary, the words of (c)(ii) appear to me to be apt to cover as "circumstances under which a person in possession holds it" the fact that the journalistic material in question is held pursuant to a genuine press story on a matter of important public debate. It is also apt to cover the circumstance that possession of the material may incriminate that person. I cannot think that the wording of (c)(ii) was intended to be confined to matters as narrow as, for example, whether the material was held on disk, in a filing cabinet or a carrier bag. It seems to me that Parliament contemplated a balancing exercise to be conducted by weighing factors such as the two I have just mentioned against the fact and degree of any benefit shown to be likely to accrue to the investigation pursuant to (c)(i). I am reinforced in that view by the important point made by Mr Emmerson, to which I have already referred, namely that the powers under section 9 arise solely in the context of a criminal investigation, one of whose targets is or may be Mr Bright. It is not sufficient therefore to say that his position can be safeguarded at trial by invoking section 78. The court must direct itself to consider the position of Mr Bright and others at the Observer and their rights in a criminal context, so far as is permitted by the scope of Schedule 1, at this stage.
187. That process of consideration is no more than a modern expression of Lord Camden CJ's statement of principle in Entick -v- Carrington already quoted by Judge LJ. This emphasises the need for careful judicial scrutiny to justify any claimed power of the state to encroach on a person's right of property.
188. For the reasons given by Judge LJ, I find that in relation only to the copy letter which he defined, the balance weighs heavily in favour of disclosure. In relation to that letter, there is effectively no risk of self-incrimination by Mr Bright or anyone else at the Observer in the disclosure of that document alone. The sending of such a document to the Observer was a serious arrestable offence on the part of Mr Shayler (or there are good grounds to believe that it was); and the document itself is likely to be of central benefit to the investigation of that offence.
189. Subject to that single exception, I would disallow the terms of the production order as to any wider definition of material. The principal reason for this is the non-fulfilment of access condition (a). However, even assuming that the Crown had overcome that hurdle so as to justify the production of some further category or categories of document, I would hold that access condition (c) was not fulfilled.
190. I would make that finding upon the exercise of a judgment on the factors set out in (c)(i) and (ii) based upon the evidence in this case. Our attention was drawn to remarks in the Divisional Court in R -v- Crown Court at Northampton ex parte DPP 93 Cr App R 376. These were to the effect that once a judge had concluded under paragraph 2(a)(i) of the Schedule that a serious arrestable offence had been committed, it will normally be inconsistent with that finding to refuse an application for access to materials by finding under paragraph 2(c) that it is not in the public interest that access should be given. As a statistical prediction that may well be accurate. It was a justifiable comment on the facts of that particular case. In my judgment, however, it cannot and should not be taken as a matter of law to fetter the exercise of the Court's independent judgment to consider as a separate matter in every case whether access condition (c) has been fulfilled. Briefly the reasons why I would hold (save in relation to the one document) that access condition (c) is not fulfilled are these: on the face of it, there is no significant reason to think that Mr Bright was doing other than pursuing a genuine journalistic story on a matter of public interest and legitimate public debate.
191. Further, Mr Emmerson is justified in contending on Mr Bright's behalf that there is a real danger or likelihood of self-incrimination. It is true that it may be difficult on the basis of the evidence available to the court to rationalise the source of that likelihood. Four points however need to be borne in mind.
192. (1) The informations seeking the orders actually specify offences under section 5 of the Official Secrets Act as well as section 1. Such offences can only have been committed by Mr Bright as opposed to Shayler.
193. (2) DS Flynn in evidence said that he had reasonable grounds to believe that an offence under section 5 had been committed by Mr Bright.
194. (3) There have been repeated and considered refusals to give undertakings not to prosecute Mr Bright.
195. (4) The evidence about the extent of damage caused by publication of the article to the security of the state was in the form of an assertion by DS Flynn. The limitations upon the value of that evidence and the unfortunate non-disclosure of the presence in court of Mr Lerner have already been analysed by Judge LJ. I agree with his analysis.
196. The significance of the fourth point in this context is that the Court was not given the necessary material to assess the basis of DS Flynn's assertion and thus the likelihood or otherwise of self-incrimination. At its face value his assertion gave serious grounds for believing that Mr Bright would be prosecuted. Was it no more than mere assertion? Or was there some other undisclosed ground for believing that a prosecution of Mr Bright would be justified?
197. The plain fact is that the extent and quality of the evidence before the Court were inadequate to permit a sensible judgment to be made. For that reason it would not be right to reach any conclusion other than that Mr Flynn's opinion may have been correct about the commission of an offence by Mr Bright.
198. All these matters in my judgment underline the correctness of Judge LJ's views about the need to provide the court with the necessary evidence to make a proper assessment of the access conditions. I agree with his observations about the adoption if necessary where the evidence includes confidential information of a procedure similar to that used in public interest immunity applications. Such a procedure may not infrequently be necessary to enable the court to exercise an informed judgment. The deficiencies in the evidence here give rise to a situation in which the Court is faced with a bald assertion of the belief that Mr Bright has committed serious offences or a serious offence, but is left to speculate as to the grounds for that belief. That situation in my view would make it unsafe and wrong to find that access condition (c) is fulfilled save in respect of the one document already mentioned.
199. Alternatively if my interpretation of (c)(ii) is wrong, I would for similar reasons exercise my discretion against granting an order except to the limited extent mentioned.
200. I recognise the logic of Maurice Kay J's reasoning which justifies the extension of the material to be disclosed to a wider class of documents than simply the letter. Had the evidence available to the Court been more satisfactory I may have adopted that reasoning. But given the current state of the evidence I am disinclined to uphold any order which carries with it any real possibility of infringing Mr Bright's right against self-incrimination. I acknowledge that if there were to be sustainable grounds for believing that further disclosable procedure material is in possession of the Observer, or such grounds were to emerge, a further application might (and I emphasise 'might') be justified.
201. I acknowledge Maurice Kay J's reservations about unnecessarily prolonging the proceedings; but I nevertheless consider on the evidence here that a cautious approach is justified.
202. As to the width of the terms of the original application, I respectfully associate myself fully with the remarks of Judge LJ as to their potentially stifling effect on any or any useful responding of the Shayler story.
203. I am compelled, it follows, to disagree with the views of the judge at the Central Criminal Court as to access conditions (a) and (c) and also as to the exercise of discretion, but in so deciding I recognise the difficulty of the task with which he was confronted and have no wish in this judgment to appear unduly critical.
204. In the result, I respectfully agree with the conclusions reached by Judge LJ and with the one exception specified by him. The application to this Court should be allowed.
205. LORD JUSTICE JUDGE: How would you like to proceed, Mr Tugendhat and Mr Emmerson? I think I should say to you and to Miss Montgomery - of course, you have the benefit of the typed copy of my judgment and there will, when the judgment is finally corrected and approved, be various amendments to the typing at various different stages. I think you should also look for a sentence on page 38, at the beginning, where, "As indicated earlier in this judgment", that passage and the next sentence, those two sentences will be put together with the passage at the beginning on page 36, "Judge Stephens proceeded on the basis". It is pretty obvious that is repetition. There is a sentence omitted, so I warn you to look out for that, but I am not going to deal with that now, it has to do with the business that I had difficulty with when we were dealing with the bottom of page 38 and page 39, so could you please work on the basis that although privileged to see the working notes, the final judgment will be the one that I approve. Thank you very much. I do not think it will effect any newspaper or media reporting of the issues in this case.
206. Now, where do you want to go from there?
207. MR TUGENDHAT: My Lord, speaking for myself, your Lordships' judgments are very closely reasoned and not identical. I cannot say with confidence that I have appreciated the full significance----
208. LORD JUSTICE JUDGE: I think you have won.
209. MR TUGENDHAT: My Lord, I think I had understood that.
210. LORD JUSTICE JUDGE: You had got that far.
211. MR TUGENDHAT: What I had not understood was the precise form of the order that was contemplated.
212. LORD JUSTICE JUDGE: This is something we need your help with. As things stand at the moment, the way I see it - but I am open to correction by my colleagues and it is certainly open to submissions from counsel. So far as the Guardian is concerned, the appeal is allowed and that is the end of that.
213. MR TUGENDHAT: Yes.
214. LORD JUSTICE JUDGE: So far as the Observer and Mr Bright are concerned, I think the order should be that the appeal is allowed. Perhaps, save and except in relation to the specific letter which Gibbs J and I identified, that is the majority view on the point. Now, whether it is necessary for us to make an order; in other words, to amend the original order we have given our reasons for our conclusion. No one has actually asked the Observer or Mr Bright to send "that" particular document, and the request was in very wide ranging terms which, in our view, was too wide. Whether, if the request were made in those terms, your side might be prepared either to hand it over or, because their is the other part of the case we have to bear in mind, produce an affidavit by Mr Bright or the editor Mr Alton, the document was sent to the Observer, saying, 'we did have it, we do not have it any longer' that might be the end of it, fine and good, but that is something you need to taken instructions about.
215. MR TUGENDHAT: My Lord, I was going to say, it did seem to me that there might well be matters on which I wish to take instructions.
216. LORD JUSTICE JUDGE: I certainly understand that. We will not draw up or finalise any order until all three of you have had a chance to reflect and take such instructions as you need. What next?
217. MR TUGENDHAT: My Lord, I would, for my part, like an opportunity for that course.
218. LORD JUSTICE JUDGE: The difficulty is Maurice Kay J is handing down another judgment not before 12 o'clock, would it be sufficient for your purposes, do you think, if I said we would sit again at 11.45 a.m.?
219. MR TUGENDHAT: My Lord, my problem is that I am part heard in another court, and I am expecting to have to reply any minute now.
220. LORD JUSTICE JUDGE: As to the effect of the order, I do not think there is any doubt that the majority view is that that is the only document to which the order should apply, so it is a matter of drawing it up, unless Mr Emmerson or Miss Montgomery say something else.
221. As to any subsequent matters, are there any that are going to arise in your case and can we deal with them please.
222. MR TUGENDHAT: My Lord, I think the only other matter is costs. We do feel we have won.
223. LORD JUSTICE JUDGE: Mr Emmerson, what is your position?
224. MR EMMERSON: My Lord, we have a similar application so far as costs are concerned.
225. LORD JUSTICE JUDGE: So far as the terms of the order are concerned, you are in the same position.
226. MR EMMERSON: I was going to make the suggestion to your Lordships briefly if I may. As your Lordships will appreciate, not only because of the way in which the application was originally framed, but also because of the way in which the hearing was conducted, the focus which has emerged in your Lordships' judgment on that particular letter was never directly addressed. That being the case, it may be, I do not know, that either the respondents to the application would wish to formulate their response afresh as that are, in my submission, points towards an order quashing the judge's order. If it is judged appropriate in those circumstances then for the police to make an application in respect of the letter, the application can be responded to and the matter can be dealt with properly before the judge.
227. Some of the issues that your Lordship identified as unanswered questions in your judgment being canvassed properly before the trial.
228. LORD JUSTICE JUDGE: If that is your position when you have taken instructions and, obviously, it links up with Mr Tugendhat's position, well and good, but I must say, speaking for myself as a matter of reaction, I would hate to see a proliferation of proceedings, costs and everything that has to go on, as I would have thought that possibly the matter could be dealt with informally, that is not a concluded view, it is a response to your submission, thank you.
229. MR EMMERSON: I am certainly available if your Lordships wished to----
230. MR JUSTICE MAURICE KAY: If it were quashed, there would have to be some undertaking as to preservation of that letter or something in the meantime. At the moment, it is protected as long as the order is in existence.
231. LORD JUSTICE JUDGE: Let us see what we can do, Mr Emmerson. Miss Montgomery, what is your position, first of all, so far as costs?
232. MISS MONTGOMERY: Obviously the Guardian have won and, in those circumstances, your Lordships have the choice as to whether you make - this being a criminal cause or matter - a defendants' costs order under the Prosecution of Offences Act or you make an order against the Crown Prosecution Service, whom I represent.
233. Given these times of strained budgets, I would invite your Lordships to make an order out of Central Funds, but I cannot take the matter any further.
234. So far as costs and the Observer is concerned, my Lord, that is closer to a score draw, and I would submit that the appropriate order is that both sides should bear their own costs.
235. LORD JUSTICE JUDGE: Very well, thank you.
236. MISS MONTGOMERY: So far as the form of the order and the Observer is concerned, I would really urge your Lordships not to countenance further litigation before the Crown Court. All of your Lordships agree that there are no public law grounds for questioning the order insofar as it catches that single letter. So the proper order I would suggest, subject, of course, to some consensual variation on it is that your Lordships should quash all those parts of the production order, save for the part which relates to the single letter.
237. LORD JUSTICE JUDGE: Thank you.
238. MISS MONTGOMERY: My Lord, so far as other matters are concerned, each of your Lordships has identified a clearly significant issue of law, namely whether and the extent to which a judge in special procedure cases has to consider the privilege against self-incrimination. I apprehend that I would be asked to invite your Lordships to certify a question and grant us leave to appeal.
239. LORD JUSTICE JUDGE: May I just interrupt you. I simply do not know what the time constraints are, but we have discussed this obviously before we came in to sit. If you can produce a reasonable question for us to certify, which seems to us to arise, we would be minded to do so. The question whether we would give leave is a different matter because that, on the whole, we tend to leave to the House of Lords, but we recognise the force of the submission you have just made.
240. MISS MONTGOMERY: I quite appreciate that, my Lord. The concern we have is your Lordships have delivered a series of judgments which also raise other and equally important points and certainly those who instruct me are very anxious to give some mature reflection to those judgments. On the other hand, we are also conscious that some of these points are of general importance and we are approaching vacation. If your Lordships were prepared to countenance it, I suggested my learned friends that we might invite your Lordships to consider on paper suggested certified questions and paper applications for leave, if that would enable us to get a decision on those questions sooner than requiring your Lordships to reconvene as a court to hear oral submissions.
241. LORD JUSTICE JUDGE: I make you no promises, we will do what we can about that. One of our difficulties is that Maurice Kay J is leaving today. You have not had a chance to look at the approved judgments and it would, I think, be extremely difficult for me in your position to formulate a question without seeing the text. You have had nothing to work on in relation to the second and third judgments. I am anxious obviously that any delay (a) should be avoided and (b) should not prejudice the certification of a question. Speaking for myself - and we will discuss this when we go out and Mr Tugendhat and Mr Emmerson have discussed the matter with their clients - I would have no difficulty in considering the possibility of certifying a question if everyone were agreed. The difficulty would be if Mr Tugendhat and Mr Emmerson took a different view. Can you ask Mr Leist to check on the timetable. I do not want you to be put out of time, I do not want any delay here to put you beyond the possibility of us certifying.
242. MISS MONTGOMERY: Yes, the position is I think I have 14 days to place the question before the court. I am reasonably confident that those questions, I hope, will be relatively uncontroversial and, therefore, it may well be that you will be faced with some agreed questions. In those circumstances, if your Lordships were able to consider them without the need for further oral hearing, that would be sufficient from our point of view.
243. LORD JUSTICE JUDGE: We would certainly prefer it. You would then have to appreciate that if Maurice Kay J is not here, Gibbs J and I would have to do it as a court of two judges.
244. MISS MONTGOMERY: If your Lordships could constitute for that purpose and then you could certify even without....
245. LORD JUSTICE JUDGE: Provided no one else minded, we would be content to do it that way. Of course, then there is the practical reality of what it all adds up to, apart from the general and most interesting questions of law.
246. We will adjourn now and Mr Tugendhat, shall we sit at 12.45 p.m. or shall we sit at 1 o'clock?
247. MR TUGENDHAT: If your Lordships would contemplate sitting during the luncheon adjournment it would assist me greatly. I am already embarrassed in the other case.
248. LORD JUSTICE JUDGE: We will not do anything in this case until 1.10 p.m. We will sit as near to 1.10 p.m. as we can. If by that stage, because of your other commitments, you simply have not been able to get your instructions, then we will quite understand it and we will then see how we can accommodate you, thank you.
249. (Short adjournment)
250. (Court reconvenes at 1.10 p.m.)
251. LORD JUSTICE JUDGE: What is the position of your clients?
252. MR TUGENDHAT: The position is, my Lord, that we do not want any further proceedings, if they can possibly be avoided, and so we would like the matter to be resolved as simply as possible.
253. Miss Montgomery has suggested to me, that against the possibility of her obtaining certification from your Lordships and leave from the House of Lords.
254. LORD JUSTICE JUDGE: Shall we say, it is all without prejudice to that.
255. MR TUGENDHAT: Yes, all without prejudice to that. She is concerned about the preservation of such material as might exist, as has fallen out of everything except the single letter, she is concerned about anything like that which might need preservation against the eventuality of her succeeding in the House of Lords. My Lord, on that problem, we would be prepared to give her comfort and whatever form that needs to be....
256. LORD JUSTICE JUDGE: She might say an undertaking that any material encompassed in Judge Stephens' order to the extent that you still have it will be preserved.
257. MR TUGENDHAT: My Lord, that is what we had in mind. As far as the single document which the Court has held is properly in the scope of the order, my Lord, it does not exist. What more needs to be dealt with, if anything, in relation to that, we do not know, when I say it did not exist, it did not exist at the time of the service of the notice.
258. LORD JUSTICE JUDGE: My present view would be that there should be an affidavit from the editor of the Observer to say so, because so far there has been no evidence from him or Mr Bright on the subject.
259. MR TUGENDHAT: My Lord, certainly I understand what your Lordship is saying. I do not know at the moment whether the editor would be able to contribute anything, over and above what Mr Bright would.
260. LORD JUSTICE JUDGE: All right, Mr Bright, if he is the appropriate person.
261. MR TUGENDHAT: He is undoubtedly first in line, as it were, on that point. I do not know if there is anything else I can say at this moment.
262. MR EMMERSON: Your Lordships' have heard the position. The letter and document said to have been sent to the Home Secretary in November 1999 is not in Mr Bright's possession and has not been, at any of the relevant times since the service of the notice of application.
263. LORD JUSTICE JUDGE: Would he be prepared to swear an affidavit to that effect?
264. MR EMMERSON: Would your Lordship just give me one moment (pause). Yes, my Lord.
265. LORD JUSTICE JUDGE: Is he here?
266. MR EMMERSON: Yes, my Lord.
267. LORD JUSTICE JUDGE: It may be unconventional, but we would be perfectly happy to hear him give evidence and say so, rather than go through the business of getting the document out, let us have his oral evidence.
268. MR EMMERSON: I am in your Lordships' hands, but I would prefer to deal with it by way of affidavit. That being the position my Lord, the outstanding so to speak, document that was potentially to be accepted from your Lordships' order is no longer, so to speak an issue in the proceedings, so we would invite your Lordships, on behalf of Mr Bright, to quash it, subject to the undertaking to preserve any materials in the scope of the original, pending the outcome of a further appeal and to ask for an order of costs.
269. LORD JUSTICE JUDGE: Thank you. Miss Montgomery, what is your position? The preservation of the material encompassed in Judge Stephens' orders, that is obvious, you are entitled to have that and an undertaking from Mr Tugendhat and
270. Mr Emmerson will be sufficient for your purposes, certainly for ours. Now, what about the affidavit of Mr Bright?
271. MISS MONTGOMERY: My Lord, as with Mr Suggler (?) I am anxious not to prolong these proceedings, as a matter of strict legal form it would convert the Crown's remedy in the event of there being any misstatement in that affidavit, to being one that is probably sound only in perjury instead of, as it would, if the order were preserved, a capacity to bring the matter before the Crown Court for contempt. It is simply that legal procedure that would be circumvented by your Lordships' taking this course. It may be a distinction which makes no difference in the circumstances of this case but, certainly, I would be reluctant to accede to the matter being dealt with by way of the order being quashed in its entirely until we have that affidavit.
272. LORD JUSTICE JUDGE: If the affidavit were served on you and on two members of the current constitution, then do I follow from what you have said that you would then be content, subject of course to your rights of appeal and so on, for the order in relation to the Observer and Mr Bright personally to be quashed?
273. MISS MONTGOMERY: What I am anxious not to do is by advice -- which is not advice -- is to face some later problem in relation to an argument that has all become academic now and therefore we should not have left. I am anxious that by conceding what seems to me to be a sensible course to short circuit the necessity for other proceedings. I am not in any way undermining our ability to appeal this decision.
274. LORD JUSTICE JUDGE: Absolutely, that is perfectly clear. The order that I am about to make is subject to Miss Montgomery succeeding in an application that we should certify a point of law and the matter going further. We will quash the orders made by Judge Stephens in relation to the Guardian. We will quash the orders made in relation to the Observer and Mr Bright, subject to the following conditions: I am perfectly willing to consider any suggestions for the wording. First, an undertaking from
275. Mr Tugendhat and Mr Emmerson on behalf of their respective clients for the preservation of any material encompassed in Judge Stephens' orders, pending the outcome of any further appeal and, secondly, on condition that an affidavit is sworn by Mr Bright, or the Editor of the Observer within seven days, that neither is in possession of the relevant letter, referred to in our judgment, and has not been in possession of it since the date of the application.
276. I put it that way, Miss Montgomery, because although I have given you very clear indication of our view on the possibility of certifying, I do not think, in truth, it will arise in relation to the Guardian. I think that it is really going to arise in relation to Mr Bright. That is the form of order that we propose.
277. MISS MONTGOMERY: Would your Lordship consider extending the order for the affidavit to indicate non-possession since service of notice of the intention to make the application for the order at the relevant period.
278. LORD JUSTICE JUDGE: Is that acceptable to you, Mr Emmerson?
279. MR EMMERSON: Yes. We will do that.
280. LORD JUSTICE JUDGE: Yes, we will do that. There is just something else.
281. MR TUGENDHAT: My Lord, on the form of the affidavit which I would be undertaking on behalf of Mr Alton, I submit it should follow the words of the access conditions so that, "in the possession of" is considerably wider than PACE. PACE actually addresses material on the premises.
282. LORD JUSTICE JUDGE: I think that is probably right, is it not, Miss Montgomery?
283. MR TUGENDHAT: My Lord, I am not conscious of any particular significance in the point I am making, but it does seem to be inherent in the jurisdiction she is invoking and the order.
284. MISS MONTGOMERY: I respectfully disagree. The order is an order under paragraph 4, a person who appears to the circuit judge to be in possession of the material to which the application relates, shall produce or give access to it, so your Lordships' formulation is right.
285. LORD JUSTICE JUDGE: Why can the affidavit just simply say, "what happened to it? and when whatever happened to it, happened?" Then there is no more circumlocution.
286. MR TUGENDHAT: I entirely follow what your Lordship is saying.
287. LORD JUSTICE JUDGE: At the moment, we are inclined to the view that we should focus on paragraph 4.
288. MR TUGENDHAT: Paragraph 4 refers back to the material to which the application relates, the application can only relate to material on the premises, because that is access condition....
289. MR JUSTICE MAURICE KAY: We are looking at it after the judgments in this case, and the judgments focused, two of them focused exclusively on the letter, the third one focused substantially on the letter. In those circumstances, it is not appropriate for there to be evidence as to what happened to it and when.
290. MR TUGENDHAT: My Lord, this should be academic, and I am very concerned not to arise concerns and suspicions which, as far as I know are entirely without foundation, but I feel it is necessary to be cautious and precise about it. The PACE procedure is tied into the premises, it does not permit anybody to inquire of anyone else where material is kept. If the PACE procedure is invoked, in relation to the wrong premises, so be it. There is simply no way in which the respondent -- the person named in the application can be, otherwise than by consent or agreement, induced to tell the officer, 'well, we do not have it at our high street branch in Brighton, but we do have it in Hove', to use a very different example. If the premises named in the application is the branch in Brighton, and it is not in Brighton, that is it. It would be, in my submission, wrong to ask for an affidavit or anything else that goes wider than the order that is within the jurisdiction of the court to make and indeed which has been made. The judge's order is correctly confined to the premises.
291. LORD JUSTICE JUDGE: You have told us that your client is not in possession of the document and has not been in possession of it since the appropriate date. No one is committing him to accept, that as a matter of principle, in future his position will be prejudiced by any consent or any affidavit he files now. We are really just trying to find a way of sensibly avoiding further proceedings by saying, well, if he is prepared to give the affidavit, saying he does not have it and so on, in the terms I have indicated, that will be an end of it, we might have to come back if he cannot swear an affidavit to that effect or is unprepared to.
292. MR TUGENDHAT: My Lord, can I taken instructions?
293. LORD JUSTICE JUDGE: Please do.
294. MR TUGENDHAT: My Lord, I have made the point. Your Lordships I do not want to press it.
295. LORD JUSTICE JUDGE: Thank you. Mr Emmerson?
296. MR EMMERSON: My Lord, may I simply add, so far as Mr Bright is concerned, it makes no difference whether the terms of the affidavit refer to possession of premises, but I would certainly indicate that the scope of the affidavit would be broadly, as your Lordship outlined, dealing with possession between the relevant dates, as far as the legislation is concerned.
297. My Lord, the only other point I make is, I do accept that the relevant start date, is the date of service of notice rather than hearing of the application. The only question mark in my mind is to ensure that it should be drafted in such a way as allows for the notice having been brought to Mr Bright's attention. What I was going to propose was an affidavit sworn within seven days, that
298. Mr Bright was neither in possession of the letter which was referred to in the judgment now or since the service of the notice of intention to make an application was brought to his attention.
299. LORD JUSTICE JUDGE: That seems reasonable, Miss Montgomery. Thank you very much. We will deal with the applications for costs. We think the overall justice of this case will be served in this way: there will be an order in relation to the Guardian for all the defence costs, subject of course to appropriate assessment to be met out of central funds. So far as the Observer and Mr Bright are concerned, we take the view that there should be an order in relation to three-quarters of their costs, again out of central funds. The reason why we particularly focused on central funds because we think this case did raise issues of some general importance which needed to be resolved.
300. MISS MONTGOMERY: My Lord, can I just indicate that I am not in a position to lay a draft certified question before your Lordships now. It is contemplated that we will consider asking your Lordships to certificate the following four topics, just so your Lordships and my learned friends can consider them. Firstly whether, and to what extent a circuit judge hearing an application under Schedule 1 is entitled to take into account and claim privilege against self-incrimination.
301. Secondly, the meaning of the terms "relevant evidence" in access condition 2(a)(iv) and in particular whether it takes a narrow meaning expanded by your Lordships which is in conformity with the existing authority, for example, ex parte Berkshire County Council or whether it should have the extended meaning given to that phrase, in R -v- Secretary of State ex parte Finifest (?). That is the second area. The third area is whether the right of freedom of expression is violated by an order requiring production of a journalist's notes of conversations with a person who supplies information without requiring any undertaking of confidence.
302. Fourthly and finally, this is probably the least formulated and possibly there will even be a question as to whether or not it will be put forward, the question of the standard of proof to be satisfied in relation to access conditions and the material that is required in order to satisfy whatever that standard may be. My Lords, I hope it is helpful to you and to my learned friends for me to indicate the four areas we have in mind and it may persuade you, if you can, at least to look forward with some confidence to be able to have identified by consent on paper the agreed questions, leaving only the question of leave as a life issue.
303. LORD JUSTICE JUDGE: It will enable the three of us to discuss the subjects so that when two of us decide on it, Maurice Kay J will have made a contribution.
304. I am bound to say, my initial reaction is that this case does not stand four separate questions or even three, but we will hear what you have to say in due course.
305. You have made the application, we will adjourn the application so time does not run against you. We will not require you to produce anything at all until you have copies of the perfected judgments. Thereafter, you must liaise with Mr Emmerson and Mr Tugendhat, no doubt they will be on holiday from time to time, as you will be, but I do not think it would be unreasonable for us, would it, but please say if you think it would, to say that we must know whether you are inviting us to certify these questions. What date would be sensible?
306. MISS MONTGOMERY: Would your Lordship say the week ending 5th August.
307. LORD JUSTICE JUDGE: I do not think there is any chance of you having the perfected judgments by then. In fact, you certainly will not, because Kay J is on holiday.
308. MISS MONTGOMERY: I do not know whether the end of August is more realistic? We certainly on our side are very anxious to have the matter determined one way or the other because, as your Lordships recognised your judgments may have possible wider implications of the contents.
309. LORD JUSTICE JUDGE: I think we had better just say as soon as practicable, because if you are going to do it on the basis of discussions with the other side, you all have to meet, talk it over and see what points do arise. So as soon as practicable. If we have heard nothing by 30th September, could you write to us telling us what is going on, showing the letter to the other side please. Anything else, Mr Emmerson, Mr Tugendhat?
310. MR TUGENDHAT: No, my Lord, I am very grateful to you for accommodating my convenience.