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Judge upholds open justice
Attorney general loses attempt to exclude media from ‘spy’ case
The attorney general Suella Braverman has lost an attempt to stop reporters covering part of a hearing in which the government will seek to prevent the BBC from identifying an intelligence operative working overseas. She has until tomorrow to appeal.
Braverman had argued that the public should be told nothing about the nature of the proposed broadcast or about her application to the High Court except that she was seeking an injunction to prevent the BBC publishing a news report which it had said would be in the public interest but that she says would damage national security and breach an individual’s human rights.
By the time the Telegraph story appeared on 21 January, the government had issued High Court proceedings alleging breach of confidence and breaches of human rights. At a two-day hearing planned for the beginning of March, Mr Justice Chamberlain will decide whether the current temporary order preventing publication of the story should remain in force until the case can be argued in full.
Today’s Telegraph quotes “a source” as saying there would be huge disquiet if the BBC news broadcast went ahead. The source said: “It is really serious — there are serious risks. The programme would be a massive compromise for our security.”
Other sources have expressed surprise and concern that the case has got this far. As a matter of policy, the intelligence services never publicly confirm the identities of people who have supplied them with information — even when individuals choose to do so themselves.
Some of the hearing next week will be held in closed session under powers granted by the Justice and Security Act 2013. That means the BBC and its legal team will be excluded as well as reporters and the wider public. Security-cleared lawyers known as special advocates will do their best to represent the BBC’s interests.
The remainder of the hearing will be in open session. That normally means it can be reported. However, Braverman’s lawyers had argued that the open hearing should be held “wholly or substantially” in private, with members of the press and public excluded.
In a short summary of his judgment published yesterday, Chamberlain rejected the attorney’s submission and concluded that the open part of the proceedings on 1 and 2 March should be conducted in public:
The attorney has not convinced me that there is a sufficiently compelling reason for departing from the principle that open proceedings take place in public (the “open justice principle”). This means that, when the hearing takes place, the public will be informed about many of the important aspects of this case, apart from the identity of [the individual concerned].
Chamberlain said he intended to publish the whole ruling tomorrow morning unless there was an appeal by the attorney in the meantime. She and the BBC would have received an embargoed copy in advance.
By way of background, the judge explained that
the attorney, acting on behalf of the Crown, has brought a claim for an injunction to prevent the BBC from broadcasting the programme. She submits that, irrespective of the truth of the allegations, the BBC’s proposed broadcast would
(a) involve a breach of confidence or false confidence,
(b) create a real and immediate risk to the life, safety and private life of [the individual] and
(c) damage the public interest and national security.
The attorney invites the court to restrain what she says would be a breach of confidence by the BBC and to grant relief to protect the rights of [the individual] under articles 2, 3 and 8 of the European Convention on Human Rights.
Chamberlain said he would invite the parties to agree on the information that could and could not be referred to at the hearing in March to ensure that nothing was said which would enable the individual to be identified.
Update 24 February: Chamberlain has now published his judgment. It begins:
The BBC wants to broadcast a programme about an individual, “X”. The programme is to include the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X is also a covert human intelligence source (variously referred to as a “CHIS” or an “agent”) for the Security Service (“MI5”); that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS. The BBC says that the broadcast of this story, and the identification of X by name, is in the public interest.
Chamberlain considers the Telegraph story in some detail. He is unimpressed with evidence about the source of the story and says:
The fact that a government source (whether acting with or without authority) appears to have briefed the press about this case has an impact on the extent to which it is “necessary to sit in private to secure the proper administration of justice”…
It would in principle be unfair to allow one party to put its own “spin” on a case without allowing the other party to put before the public even the basic factual elements of its defence.
We are very fortunate to have lawyers of Chamberlain’s stature on the High Court bench. He is marked out for great things.
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