Foiled: Met chief’s bid to use secret courts to seize whistleblowers’ files
BRITAIN’S most senior policeman has failed in an attempt to use secret court hearings to force journalists and whistleblowers to hand over confidential material.
Scotland Yard boss Sir Bernard Hogan-Howe used a secret hearing to try to make BSkyB – owners of Sky News – reveal correspondence between one of its reporters and sources within the SAS.
The broadcaster successfully appealed against the decision in the High Court but the Met was still determined to overturn the ruling and establish the principle that it could submit secret evidence in closed hearings, and took the case to the Supreme Court. However, The Mail on Sunday understands that the Supreme Court has rejected his demand.
Its ruling is due to be published on Wednesday.
Requests for ‘production orders’ – in which a judge can order journalists to hand over notebooks, photographs, videos and other material – must currently be made in open court, with media organisations given the opportunity to argue their case.
Sir Bernard’s bid to overturn the arrangement was seen by critics as further evidence of the judicial system’s drift towards ‘secret justice’.
Despite his failure, a proposed change in the law might yet enable judges to authorise the seizure of journalistic material in closed hearings. Campaigners and lawyers have warned that the measure – in a little-known clause in the Deregulation Bill that aims to cut red tape – threatens press freedom.
Geoffrey Robertson QC said that any procedure enabling the police to obtain evidence in secret removes the ‘safeguard that justice must always be seen to be done’.
There is also concern it would deter potential whistleblowers from coming forward to expose wrongdoing.
The Met brought the case following the arrest in March 2011 of an SAS
‘Justice must always be seen to be done’
soldier accused of leaking sensitive intelligence reports to Sam Kiley, who at the time was the defence correspondent of Sky News.
The officer, known only as AB, was with his young son when his car was dramatically intercepted by armed counter-terrorism officers near Hereford. Another SAS officer, a 35-yearold man working in signals, was arrested on the same day and both men were accused of breaching the Official Secrets Act.
According to court documents, it was claimed that ‘communications evidence’ showed Kiley, now Sky’s Middle East correspondent, was receiving information originating from meetings of the Government’s Cobra emergency committee, including details of military operations.
MI5 officials carried out a covert operation before passing the soldiers’ names to the Met’s SO15 CounterTerrorism Command. The Met was granted a production order against BSkyB, demanding emails between Kiley and the soldiers and other information. The judge granted the order after receiving evidence from the Met that was not disclosed to the broadcaster.
However, BSkyB successfully appealed against the decision in the High Court. The production order was quashed and the procedure to use secret evidence at a closed hearing was deemed ‘unlawful’.
Allegations against the two soldiers were eventually dropped last year. Soldier AB, who was suspended for eight months, resigned from the Army in disgust at the lack of support from senior officers. He is now suing Scotland Yard for wrongful arrest and imprisonment.
His lawyer, Simon McKay, remains convinced that the Met presented illegal ‘intercept’ evidence during the secret hearing. He has complained to Scotland Yard’s Professional Standards Department alleging ‘their officers may have been guilty of unauthorised disclosure of intercepted communications’.
In a speech last month, Lord Neuberger, president of the Supreme Court, made clear his concerns about new powers in the 2013 Justice and Security Act that could allow more cases to be heard in private.
He pointed to a recent ruling by the Supreme Court in which judges were ‘able to make some pretty strong statements to discourage advocates from seeking closed material procedures, and to discourage judges from agreeing to adopt such procedures’.