14 November 2002. Thanks to Martin Bright. And thanks to D for transcribing.
See censored article in Dawn cited in the documents: http://www.dawn.com/2002/10/30/int9.htm
THE TREASURY SOLICITOR Queen Anne's Chambers, 28 Broadway, London SW1H9JS DX 123242 St James's Park. Switchboard 020 7210 3000 (GTN 210). |
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Direct Line: 020 7210 3696 Direct Fax: 020 7210 3410 E-mail: aaylett@treasury-solicitor.gsi.gov.uk |
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Mr. Martin Bright Home Affairs Editor Observer Guardian Newspapers Limited 119 Farringdon Road LONDON EC1R 3ER |
Please quote: LT2/AXA/D1 Your reference: Date: 1 November 2002 |
Dear Sir,
HER MAJESTY'S ATTORNEY GENERAL -v- MARTIN BRIGHT
I act for the Attorney General who has obtained an injunction against you in relation to the republication of the article published in the Pakistani newspaper "Dawn" on 30th October and any information derived from or about the employment of David Michael Shayler in and his position as a member of the Security Service (whether presented as fact or fiction) which relates to or may be construed as relating to the Security Service or its membership or activities or to security or intelligence activities generally. The injunction also prohibits the publication of the order containing the injunction or any part thereof.
I would ask you to read the terms of the order carefully, in particular, the effect of the order as set out on page 5.
At the hearing, the Judge made a number of manuscript amendments. For your convenience I set them out as follows:-
In paragraph (1) "trial" is deleted and the new text reads:- "the conclusion of the trial of David Michael Shayler or any retrial".
In paragraph (2) a similar alteration is made.
At the top of page 4 it reads:- "or such shorter notice as the court may permit".
The additional undertakings in Schedule 2 on page 6 are:-
"(iii) To serve this order forthwith on the Defendant.
(iv) To prepare:
(a) A witness statement(b) Documents relied upon at this hearing
(c) Note of this hearing
(d) Judge's reasons for granting this injunction
(b) - (d) to be available for any hearing on abridged notice; if no such hearing then (a) - (d) to be available by c o b (closure of business) Monday 4/11/02."
Yours faithfully,
[signature A. Aylett]
for the Treasury Solicitor
Vivienne Collett - Head of Public Law Group
Anthony Lawton - Team Leader
| [handwritten illegible 1/11/02] | CLAIM NO: |
|
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION BEFORE MR. JUSTICE GAGE SITTING IN PRIVATE B E T W E E N: |
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HER MAJESTY'S ATTORNEY GENERAL
and
MARTIN BRIGHT |
Intended Claimant
Intended Defendant |
____________________________
____________________________
IMPORTANT: Notice to the Defendant
1. This Order prohibits you, Martin Bright, "the Defendant", from doing the acts set out in paragraphs (1) and (2) of this Order. You should read it carefully. You are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or set aside this Order under the civil Procedure Rules 1998, Part 23.10.
PENAL NOTICE
2. If you, the defendant, disobey paragraphs (1) or (2) of this Order you may be found guilty of contempt of court and may be sent to prison or fined or your assets may be seized.
INTRODUCTION
3. A without notice application was made on 1 November 2002 by Counsel for Her Majesty's Attorney General ("the Claimant") to the Judge who heard the application in private (having had regard to Article 6(1) of the European Convention on Human Rights) save for the making of this Order.
4. The application was supported by information provided to him by Counsel for the claimant and the Judge accepted the undertakings in Schedule 2 to this Order.
5. As a result of the application.
| IT IS ORDERED THAT: |
(1) The Defendant be restrained until trial
[handwritten: the conclusion of the current trial of DMS [i.e. David
Michael Shayler] or any retrial] or further Order whether by himself,
his servants or agents or otherwise howsoever from further publishing or
causing or permitting to be published or disclosed or instruction or encouraging
any other person further to publish or disclose in any way whatsoever, including,
for the avoidance of doubt, publication or disclosure on the Internet, the
article written by the Defendant entitled, 'MI6 Hire Al Qaeda Men to Kill
Gaddafi: Ex-Official" and published on 30 October 200 in Pakistan in the
Dawn newspaper and on the Internet on the Dawn newspaper's Interned site
or any part thereof.
2
(2) The Defendant be restrained until trial
[handwritten: the conclusion of the current trial of DMS [i.e. David
Michael Shayler] or any retrial] or further Order whether by himself,
his servants or agents otherwise howsoever from publishing or disclosing
or causing or permitting to be published or disclosed or instruction or
encouraging any other person to publish or disclose in any way whatsoever,
including, for the avoidance of doubt, publication or disclosure on the Internet.
(a) any information derived from or about the employment of David Michael Shayler in and his position as a member of the Security Service (whether presented as fact or fiction) which relates to or which may be construed as relating to the Security Services or its membership or activities or to security or intelligence activities generally; provided that this order does not apply to:(i) Any information in respect of which the Claimant (whether at the request of the Defendant or any third party or his own motion makes a statement in writing (either personally or by the Treasury Solicitor) that such information is not information in respect of which the Crown seeks to restrain publication;(ii) The repetition of information disclosed in The Mail on Sunday on 24th August 1997.
(b) the note of the hearing taken by the Claimant's solicitors ("the Solicitors' notes")
(c) this Order or any part thereof.
(3) Costs reserved.
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VARIATIONS AND SETTING ASIDE OF THIS ORDER
The Defendant and any other person notified of this Order may apply to the Court on 48 hours notice [handwritten: or such shorter notice as the court may permit] to the Claimant's solicitors to vary or set aside this Order or so much of it as affects that person.
NAME AND ADDRESS OF THE CLAIMANT'S SOLICITORS
The Claimant's solicitors are:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H9JS
DX: 123242 (St James' Park)
Tel: 020 7210 3496 (in office hours)
Tel: 020 7210 3000 (out of office hours)
Fax: 0202 7210 3410
Ref:
And all references in this Order to "the Claimant's solicitors" shall be construed accordingly.
INTERPRETATION OF THIS ORDER
A. In this Order the words "he", "him" or "his' include "she", "her" or "hers" and "it" or "its".
B. Where there are two or more Defendants then (unless the contrary appears): reference to "the Defendant" means both or all of them; and an Order requiring "the Defendant" to do or not do so anything requires each Defendant to do or not to do it.
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C. A requirement relating to service of this Order or any legal proceeding on "the Defendant" means each of them.
THE EFFECT OF THIS ORDER
I. A Defendant who is an individual who is ordered not to do something must not do it himself or in any other way. HE must not do it through others acting on his behalf on his instructions or with his encouragement.
II. A Defendant which is a corporation and which is ordered not to do something must not do itself or by its directors, officers, employees, or agents or in any other way.
III. It is contempt of Court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be sent to prison or fiend or his assets may be seized.
COMMUNICATIONS WITH THE COURT
All communications with the Court about this Order should be sent to Room W11, the Royal courts of Justice, Strand, London, WC2A 2LL (tel 020 7947 6009). The offices are open between 10 am and 4.30 pm on Monday to Friday.
SCHEDULE 1
The supporting information comprised information provided to the Judge at the hearing by Counsel for the Claimant.
5
SCHEDULE 2
Undertakings given to the Court by the Claimant:
(i) If the Court later find that this Order has caused loss to the Defendant and decides that the Defendant should be compensated for that loss, the Claimant will comply with any Order the Court may make.
(ii) The Claimant will issue and file a Claim Form, Particulars of Claim and without notice application notice in support of this application and pay the connected Court fees forthwith.
[handwritten additional cited above]
DATED
1 November 2002
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| IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION B E T W E E N: |
Claim No: |
| HER MAJESTY'S ATTORNEY GENERAL
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Claimant |
| - v -
MARTIN BRIGHT |
Defendant |
____________________________
EXHIBIT "APMA 3"
____________________________
This is the exhibit marked "APMA 3" to the statement of Anthony Peter Michael Aylett dated this [4th in manuscript] day of November 2002.
Signed [signature]
Anthony Peter Michael Aylett
HM Attorney General -v- Martin Bright
Mr Justce Gross
Friday 1 November
Reasons for granting injunction (unapproved note)
I have had regard to CPR 39.2(3).
In this matter the Attorney General applies firstly that this application should be heard in private, and secondly for an injunction without notice, to the terms of which I shall come in due course.
I am grateful to Philip Havers QC for his full and fair submissions.
The application arises out of the trial of David Shayler for various offences under the Official Secrets Act of 1989. The present application is made against Martin Bright, a journalist and the Home Affairs editor of the Observer newspaper. Mr Bright has written a number of previous articles connected with David Shayler and his dispute with the Security Services.
The fundamental ground on which this injunction is sought its the risk posed by the publication, the details of which I will come to, to the integrity of what I shall call the the[sic] current David Shayler trial.
The David Shayler trial is now at a critical stage. On Monday David Shayler is to make his speech. The judge will then sum up and the jury will be sent out to consider their verdict.
The background to this matter goes back some time, but Mr Havers has made clear that the main concern is for the current trial.
In 1997 various injunctions were sought and obtained by the Attorney General, the first against David Shayler, and the second against a newspaper, preventing the publication of any material the subject of this trial. I do not need to rehearse the details of those injunctions. National newspapers were aware of them.
In the course of preliminary proceedings, the case went to the House of Lords which ruled that there was no public interest defence under the Official Secrets Act. That ruling has been reconfirmed or restated by Mr Justice Moses, the trial judge in the current proceedings.
Last weekend the Attorney General apprehended that there might be published an article in the Observer on Sunday 27 October. The Attorney General was concerned as to the relationship between that article and the injunction already obtained. A letter was written to the Observer on 26 October. That letter referred to the previous injunction and sought to obtain an assurance that the article would not be published.
That assurance was given, but for understandable reasons was limited to last Sunday's edition of the Observer.
On Wednesday this week, an article was published in a Pakistani publication called Dawn. That article was written by Martin Bright, and appeared under what may be described as a fairly exciting heading, and covered some ground previously published relating to matters concerning David Shayler, the Security Services and the Special Intelligence Services.
Mr Havers makes the point that it may be the gathering together of this information in one place which is significant. However, the present concern is twofold: first, that if the article were to be published more generally, the timing could not be worse given the stage reached in David Shayler's trial; second, that the article touches on the suggestion that David Shayler would have liked to run a public interest defence at this trial, but has been prevented from doing so by Moses J.
I should say that the Article was not only published in the Dawn newspaper, but also appears on the Dawn website.
The Attorney General categorizes this as a deliberate attempt to circumvent the Observer assurance, which Martin Bright was aware of. Mr Havers also submitted that Martin Bright must have been aware of the previous injunctions.
The concern is that this is an attempt to subvert the trial by getting before the jury material they would not otherwise be permitted to have.
There is great concern on the attorney's part that this is an attempt to sabotage the trial of David Shayler.
I have already indicated that this matte out to be heard in private. I have been referred to and have had regard to CPR 39.2(3). It is exceptional to sit in private, but in this case it is appropriate, for the following reasons:
(1) it would be self defeating if this hearing were not in private, if I were to rule that there should be no further publication of the article, because the article would have been referred to in public.(2) It I were to find in favour of the Attorney General, then publication of the hearing would do the thing the Attorney is concerned about.
The Attorney General seeks an injunction, the terms of which are as follows:
(1) The Defendant be restrained until trial or further Order whether by himself, his servants or agents or otherwise howsoever from further publishing or causing or permitting to be published or disclosed or instructing or encouraging any other person further to publish or disclose I any way whatsoever, including, for the avoidance of doubt, publication or disclosure on the Internet, the article written by the Defendant entitled, "MI6 Hire Al Qaeda Men to Kill Gaddafi: Ex-Official" and published on 30 October 2002 in Pakistan in the Dawn newspaper and on the Internet on the Dawn newspaper's Internet site or any part therof.(2) The Defendant be restrained until trial or further Order whether by himself, his servants or agents or otherwise howsoever from further publishing or causing or permitting to be published or disclosed or instructing or encouraging any other person further to publish or disclose I any way whatsoever, including, for the avoidance of doubt, publication or disclosure on the Internet,
(a) any information derived from or about the employment of David Michael Shayler in and his position as a member of the Security Service (whether presented as fact or fiction) which relates to or which may be construed as relating to the Security Service or its membership or activities or to security or intelligence activities generally; provided that this order does not apply to:(i) Any information in respect of which the claimant (whether at the request of the Defendant or any third party or of his own motion makes a statement in writing (either personally or by the Treasury Solicitor) that such information is not information in respect of which the crown seeks to restrain publication;(ii) The repetition of information disclosed in The Mail on Sunday on 24th August 1997
(b) the note of the hearing taken by the Claimant's solicitors ("the Solicitors' notes")
(c) this Order or any part thereof.
This application is made by the Attorney General against Martin Bright.
Mr Havers then addressed the question of why this application is proceeding without notice. Essentially, in light of Wednesday's publication the Attorney General did not trust Martin Bright. He feared there might be further publications were notice to be given to Martin Bright of this application.
In all the circumstances, I am satisfied I should hear this matter without notice.
Mr Havers drew my attention to section 12 of the Human Rights Act 1998, in particular:
(1) To section 12(2)(b) which provides that if the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied that there are compelling reasons why the respondent should not be notified;(2) to section 12(4) which emphasises the importance the Court must attach to the Convention right to freedom of expression;
(3) and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to the extent to which the material has, or is about to, become available to the public; or it is, or would be, in the public interest for the material to be published;
(4) to section 12(3) which provides that no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
I must effectively be satisfied that the applicant would be likely to establish at trial that publication should not be allowed.
I have already indicated that I will grant the relief sought. My reasons are as follows:
(1) I have indicated that his application is to proceed in private without notice(2) I am satisfied more widespread access to or publication of the article would pose a direct risk to the integrity of the trial, in particular because of the critical stage the trial has reached. Publication this weekend would impact upon the jury which will be sent out to consider its verdict on Monday.
(3) I do have regard to the extent of the publications so far, but I consider that there is a considerable distinction between publication in a Pakistani newspaper and on its website, and publication closer to home or on a website closer to home.
(4) The Attorney General has a solidly based fear that anything less will not do. I put it that way because I have raised the question of the Attorney General writing to Martin Bright and asking for an assurance that he will not further publish the article. For reasons which I understand, the Attorney General is not satisfied that anything short of an order will do, and would not be followed by further publication.
(5) I have paid particular regard to the principle of freedom of expression and to the test for interim relief, which is that the Attorney General would be likely to succeed at the final hearing. The particular vice is the stage that has been reached in the trial of David Shayler.
I can do no better than to quote from a note handed to me by Mr Havers:
'Counsel for the Prosecution (Nigel Sweeney QC) telephoned Counsel for the Attorney General (Philip Havers QC) at 2.20pm to report that he had just drawn the attention of the Trial Judge, Moses J, to an article written by Martin Bright, entitled"MI6 Hired Al Qaeda Men to Kill Gaddafi: Ex-official" published on the "DAWN" Internet site on 30 October 2002 and had indicated to the trial Judge that it was his understanding that the Observer Newspaper intended to publish an article connected with this article. The Judge stated as follows (as recorded by Mr Sweeney):
"I have absolutely no doubt that were such material to be published it would be highly damaging to the proper conduct of the case and likely to be a serious contempt. I can see no better way to divert the jury from the relevant issues and to use your (ie Mr Sweeney's words, sabotage the case."'For those reasons, I will grant the injunction sought.
........
J: I ask for Mr Havers' assistance on questions arising from the precise terms of the Order:
'until trial or further order' to be replaced by: 'until conclusion of the trial of David Shayler or any retrial, or further Order' (in paras 1 and 2).
J: undertakings, and liberty to apply.
PH: We will endeavour to serve tonight
48 hours will go beyond Sunday. 24?
J: I mustn't assume what you'll do with the Observer. Assuming there are good reasons against this injunction which Martin Bright and/or the Observer would want to bring to my attention, their objective would be to publish on Sunday. We should therefore build in some mechanism to enable them to do this.
PH: either 48 / 24 hours or such shorter time as the court may permit / direct.
J: If Martin Bright does feel aggrieved, or the Observer wishes to publish, they out to have the chance to come back, If there are points the (martin Bright or the Observer) wish to make, they ought to have the chance to make them.
They will of course have to contact the court and we will all have to get together.
PH: Should also be an undertaking to serve evidence in support.
J: Yes. In my reasons, I rely on what I've been told...
PH: ..but would normally expect to formalise this in a witness statement
J: Undertakings (1), (2) as in draft order.
Should also notify Observer (though this will not be in the Order)
But, overnight, copies of documents relied on should be available in stapled, numbered form, and a copy of longhand note of hearing (typed up if necessary), so that they are available if there is an application to vary over the weekend.
If there is not application to vary over the weekend, would be helpful if this could be got to Martin Bright on Monday.
Undertaking (3) to serve this order forthwith on the Defendant. (4) to product A, witness statement, B, documents relied upon at this hearing, C note of this hearing, D, judge's reasons for granting this injunction' B-D to be available for any hearing on abridged notice. If no such hearing, A-D to be available by close of business Monday 4 November.
Preferable to type up note, if possible. This will not be part of the Order, but would be very helpful.
Thank you.
8pm.