Why Gun walked free
Former prosecutor explains why he dropped secrets charges in 2004
A former director of public prosecutions has cast new light on a little-understood decision he took more than 20 years ago to stop the trial of Katherine Gun, a former translator at the government surveillance agency GCHQ who had been charged with disclosing secret information.
Ken Macdonald gave no explanation his decision at the time. But speaking this week on the Double Jeopardy podcast that he presents with Tim Owen KC, Lord Macdonald of River Glaven KC said that a false explanation had been widely believed over the years — in part because of the release in 2019 of Official Secrets, a film in which Gun was played by Keira Knightley.
Macdonald had been head of the Crown Prosecution Service for less than two weeks in November 2003 when he approved a decision to charge Gun under section 1 of the Official Secrets Act 1989, which makes it an offence for security and intelligence staff to disclose information obtained through their work.
At the end of January 2003, Gun had photocopied an email in which a senior official at the US National Security Agency had asked for GCHQ’s help in bugging the UN offices of six swing states on the UN Security Council. This was at a time when the UK and the US were seeking support for an invasion of Iraq.
Gun passed the copied email to a friend and some two months later it was published by the Observer. She soon admitted she had been the newspaper’s source and was arrested on the same day.
Some weeks after Gun had been charged, as Macdonald recalled this week, he came into possession of information that concerned him.
“I held some meetings and there was a split view about whether we needed to disclose this information to Katherine Gun,” he explained.
It was accepted by all concerned that the material would need to be shared with Gun’s lawyers if it might undermine the prosecution case or assist the defence. But there was disagreement over whether this information met that test.
Macdonald concluded that it might help Gun’s defence and would have to be disclosed. But then, he explained, “a very strong view was expressed in other quarters that it would be contrary to national security to expose this material in a trial”.
It probably would, he agreed. “So the only alternative we had in those circumstances was to offer no evidence and to collapse the trial.”
On 23 February 2004, prosecutors emailed Gun’s lawyers to say that there would be a hearing at the Old Bailey two days later at which they would drop the charge against her. No explanation was given.
But, said Macdonald, it was widely believed that the case had been stopped because prosecutors did not want to disclose advice from Lord Goldsmith KC, attorney general at the time, on whether it had been lawful for the UK to take military action against Iraq.
“That wasn’t the reason at all,” Macdonald told listeners. “The information that I came into possession of, or was shown, had nothing at all to do with the legality or otherwise of the Iraq war.”
How, then, did the belief arise? Macdonald recalled what happened when prosecutors arrived at court to offer no evidence.
Rather to our surprise — they having been told that we were going to drop the case — the defence handed our barrister a disclosure request asking to see the attorney general’s advice. And we said, don’t be so silly — we’re dropping the case. We’re not going to disclose anything to you. You know that perfectly well.
We then drop the case. She’s acquitted. They then claim that we’ve dropped the case because they’d asked to see the attorney general’s advice and we’d concealed it.
So that became the widespread belief, certainly on the liberal left, that we had dropped this case because of their request to see Peter Goldsmith’s advice. But we’d emailed them two days before.
Macdonald said his five years as DPP — he was succeeded by Sir Keir Starmer — had given him an interesting insight into the security and intelligence services. Officers had openly shown him material that could collapse a case in which they had a close interest. And they accepted that the prosecution could not go ahead if there was a risk that Gun’s trial would be unfair because a particular piece of information had not been disclosed.
The former DPP’s comments came as part of a wider discussion with Owen about national security on this week’s edition of their Double Jeopardy podcast.
Where to start? I suppose by saying that I readily accept what Lord Macdonald tells us. In no way does that mean that I am going soft on the machinations of the Westminster government of the day in seemingly being prepared to act in whichever unprincipled manner in order to try to manipulate those six nations into coming “onside”. I continue to call what later transpired the illegal invasion of Iraq. The lack of preparedness and coherent plans following upon a “successful” invasion is of yet another order of magnitude in - at the very least- unwisdom and we continue to reap that whirlwind. The impression must remain with so many of us that the reaction to the Gun revelations had at least as much to do with executive embarrassment as any considerations of the national interest. I swallow hard and then I add this -scarcely original but still important- thought: whatever the life changing consequences for Katherine Gun might well have been, was she occupying the high moral ground with her (very likely) unlawful disclosure? Another hard swallow and then I answer that question in the affirmative. As to Lord Goldsmith’s eventual (truncated?) advice to Cabinet, I find it hard to speak or write politely about that.
Following on from Julien Burcher: it seems clear the indictment should have been dropped (obviating the need for Ms Gun to enter a plea), but why was it issued in the first place. Was it a case of shoot first, and think afterwards? If so, an indictment of the government itself.