25 February 2001
February 22, 2001
Nigel Wylde
The Sunday Times is asking Mr Justice Bloefeld in the High Court to rule on principles ands procedures for dealing with cases of Breach of Confidence involving members of former members of the Armed Forces. Since November 1999 the Sunday Times has had an injunction against them preventing them reporting allegations made by a former member of the Force Research Unit who uses the pseudonym Martin Ingram. The allegations concern Conspiracy to Murder and Conspiracy to Pervert the Course of Justice by members of the British Army. After three days of argument Mr Justice Bloefeld today reserved judgement until the week begining 12 March.
The hearing turned to be far more significant than just relating to the injunctions against the Sunday Times. In short the Ministry of Defence seems to have abandoned the use of the Official Secrets Act in favour of civil proceedings for breach of confidence. The following points have emerged so far:
1. At least 5 Secret Injunctions have been taken out against members or former members of the MoD. The terms of the injunctions and the fact that they even exist are Secret and cannot be communicated to anybody. A newspaperpaper could be guilty of breaching an injunction without even knowing it existed. In the case of the Sunday Times a source of theirs, alleged by the MoD to be Martin Ingram and known in Court as 'R' had one taken out against him and served on him as he returned to UK a year ago. It was only discovered by the Sunday Times that the injunction existed some months after it was served.
2. The injunctions do not appear to be time limited. Even if the press do become aware of them they have no right of appeal as they do in Criminal cases.
3. The burden of proof in Civil Cases is far less than in Criminal Courts. So it seems the old chestnuts 'puts lives in danger' and 'damages national security' will do as proving the government case and that no supporting evidence will be needed. The Sunday Times is asking for a Court appointed expert to review the government evidence in such cases.
4. There are no fixed definitions of 'Public Domain', 'Public Interest' and 'National Security'. So the MoD are trying to to use the widest possible definitions.
5. A balance between Public Interest and Right to Life has to be determined under the Human Rights Act. However, how the threat to life is determined has to be agreed. At the moment the word of the MoD will do whether true or not.
The Sunday Times is trying to get the principles and machinery by which this sort of action should be judged set out by the Judge. Whoever wins this first battle will face appeals -- probably to the House of Lords.