27 February 2001: Add Nigel Wylde message on MoD use of Public Interest Immunity Certificates to miscarry justice.
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.
Date: Sun, 25 Feb 2001 14:52:59 +0000
To: John Young <jya@pipeline.com>
From: Donald ramsbottom <donald@ramsbottom.co.uk>
Subject: Re: Inquiry
I've just read the report by Nigel Wylde. Very interesting. If they are going in the civil arena, rather than the criminal, then the Civil Procedure Rules apply. The whole of the rules can be found at:
http://www.open.gov.uk/lcd/civil/procrules_fin/cprocfr.htm
However they are long and complex (three A4 loose leaf volumes when printed)and supplemented by many "Practice directions" (PDs).
The relevant parts for interim injunctions is part 25 and its PDs.
Another very relevant rule would be Part 1, the overiding objective.
I think it would be a double edged sword to go "civil" for the MoD, as although the burden of proof is the balance of probabilities, rather than beyond reasonable doubt (in criminal cases), apart from shutting someone up, and possible pecuniary damages, there is no prison term available (except for contempt of any injunction), there are most certainly avenues for for appeal.
The party has to be served (under the auspices of the "supervising solicitor" with the injunction and if not served with all the evidence, it must be made available for inspection and for copying and taking away. The supervising solictor must also advise regarding the terms of the order in everyday language and advise the recipient of his right to legal advice and his right to apply to vary or discharge the order. (PD 7.4)
Then there is the hurdle of part 1, which aims to give all parties a "level playing field".
If you need any more on this let me know.
The first 5 sections of part 25 are set out below as is Part 1:
INTERIM REMEDIES
Orders for interim remedies
25.1
(1) The court may grant the following interim remedies -
(a) an interim injunction(GL);(b) an interim declaration;
(c) an order -
(i) for the detention, custody or preservation of relevant property;(ii) for the inspection of relevant property;
(iii) for the taking of a sample of relevant property;
(iv) for the carrying out of an experiment on or with relevant property;
(v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and
(vi) for the payment of income from relevant property until a claim is decided;
(d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c);
(e) an order under section 4 of the Torts (Interference with Goods) Act 1977(36) to deliver up goods;
(f) an order (referred to as a 'freezing injunction(GL)') -
(i) restraining a party from removing from the jurisdiction assets located there; or(ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;
(g) an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing injunction(GL);
(h) an order (referred to as a 'search order') under section 7 of the Civil Procedure Act 1997(37) (order requiring a party to admit another party to premises for the purpose of preserving evidence etc.);
(i) an order under section 33 of the Supreme Court Act 1981(38) or section 52 of the County Courts Act 1984(39) (order for disclosure of documents or inspection of property before a claim has been made);
(j) an order under section 34 of the Supreme Court Act 1981(40) or section 53 of the County Courts Act 1984(41) (order in certain proceedings for disclosure of documents or inspection of property against a non-party);
(k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay;
(l) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party's right to the fund;
(m) an order permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him; and
(n) an order directing a party to prepare and file accounts relating to the dispute.
(Rule 34.2 provides for the court to issue a witness summons requiring a witness to produce documents to the court at the hearing or on such date as the court may direct)
(2) In paragraph (1)(c) and (g), 'relevant property' means property (including land) which is the subject of a claim or as to which any question may arise on a claim.
(3) The fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.
(4) The court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.
Time when an order for an interim remedy may be made
25.2
(1) An order for an interim remedy may be made at any time, including -
(a) before proceedings are started; and(b) after judgment has been given.
(Rule 7.2 provides that proceedings are started when the court issues a claim form)
(2) However -
(a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise;(b) the court may grant an interim remedy before a claim has been made only if -
(i) the matter is urgent; or(ii) it is otherwise desirable to do so in the interests of justice; and
(c) unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgment of service or a defence.
(Part 10 provides for filing an acknowledgment of service and Part 15 for filing a defence)
(3) Where the court grants an interim remedy before a claim has been commenced, it may give directions requiring a claim to be commenced.
(4) In particular, the court need not direct that a claim be commencedwhere the application is made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement of a claim).
How to apply for an interim remedy
25.3
(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.
(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.
(Part 3 lists general powers of the court)
(Part 23 contains general rules about making an application)
Application for an interim remedy where there is no related claim
25.4
(1) This rule applies where a party wishes to apply for an interim remedy but -
(a) the remedy is sought in relation to proceedings which are taking place, or will take place, outside the jurisdiction; or(b) the application is made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement) before a claim has been commenced.
(2) An application under this rule must be made in accordance with the general rules about applications contained in Part 23.
(The following provisions are also relevant -
Inspection of property before commencement or against a non-party
25.5
(1) This rule applies where a person makes an application under -
(a) section 33(1) of the Supreme Court Act 1981 or section 52(1) of the County Courts Act 1984 (inspection etc. of property before commencement);(b) section 34(3) of the Supreme Court Act 1981 or section 53(3) of the County Courts Act 1984 (inspection etc. of property against a non-party).
(2) The evidence in support of such an application must show, if practicable by reference to any statement of case prepared in relation to the proceedings or anticipated proceedings, that the property -
(a) is or may become the subject matter of such proceedings; or(b) is relevant to the issues that will arise in relation to such proceedings.
(3) A copy of the application notice and a copy of the evidence in support must be served on -
(a) the person against whom the order is sought; and(b) in relation to an application under section 34(3) of the Supreme Court Act 1981 or section 53(3) of the County Courts Act 1984, every party to the proceedings other than the applicant.
Part one the overiding objective is:
The overriding objective
1.1
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable -
(a) ensuring that the parties are on an equal footing;(b) saving expense;
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved;(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
Application by the court of the overriding objective
1.2
The court must seek to give effect to the overriding objective when it-
(a) exercises any power given to it by the Rules; or(b) interprets any rule.
Duty of the parties
1.3
The parties are required to help the court to further the overriding objective.
Court's duty to manage cases
1.4
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes -
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently
Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK Law
Matters
5 Seagrove Avenue Hayling Island Hampshire UK
Tel (44) 023 9246 5931 Fax (44) 023 9246 8349
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Service by Fax or Email NOT accepted
From: "Nigel Wylde"
<Nigel.Wylde@btinternet.com>
To: "John Young" <jya@pipeline.com>
Subject: MoD Injunctions
Date: Tue, 27 Feb 2001 08:32:02 -0000
I am very grateful to Donald Ramsbottom for setting out how the system should work. Unfortunately, the MoD are using Public Interest Immunity Certificates issued by Ministers to cause delay and expense to the recipients. It works like this:
In all cases the PII Certificates contain grave warnings that release of the information will cause loss of life and damage National Security. The problem this creates for the defence is that the system is loaded against it. They cannot test the evidence and in some cases they cannot see it. Thanks to the Arms to Iraq affair a few years ago when a miscarriage of justice, caused by the withholding of information from both the Prosecution and the Defence, led to a review of the case by Mr Justice Scott matters are a little better.
In the case involved in these injunctions the individuals concerned are alleging wrong doing by the MoD or its employees. Yet they are also acting as the organisation that advises the Judge on what should be made public and what should remain private. The Judge has to make a ruling on these matters which are frequently complex and outside his area of knowledge. The MoD know this and therefore say they are the best advisers. The defendants know better. Let us look at some examples:
In the case of the Bloody Sunday Inquiry reported at http://www.sunday-times.co.uk/news/pages/sti/2001/02/25/stiireire01007.html David Shayler is apparently going to testify that the agent known as Infliction was unreliable. In the papers submitted to the Inquiry the reliability grading given to the report is redacted. If they have nothing to hide why is it not open? It cannot be for fear of compromising the grading system in use in the early 80s when the statement was made, because the IRA have been in possession of that for years.
In my own case it took 21 months to obtain the classified documents in the case. We used those to show that the so called information published in the book the Irish War was all in the public domain and had been for many years and that most of it had been put there by the MoD through the approval of books that had been published going back to the mid 70s. We did not even get to the redacted material before they gave up. The Attorney General is reported to be very concerned that he and his predecessor were both misled by the evidence provided by the Army witnesses.
Even though BSE is slowly being controlled in England we have the legacy to live with for years to come. The recent report showed that the obsession of the Civil Service to keep information Secret actually added to the crisis.
So the arguments that the Sunday Times team put to Mr Justice Bloefeld last week were to set up the machinery to enable an appeal against the injunctions as set out by Donald Ramsbottom in his letter to you. In my case I was fortunate enough to have Mr Justice Moses as my trial Judge. He had been the prosecutor in the Arms to Iraq affair and knew how officials could mislead. Amongst the suggestions he made at a pre trial hearing last August was the following:
MR JUSTICE MOSES: Because there are going to be all sorts of issues in relation to how PIIs should be handled. For example, I mean, two possibilities that are occurring to me - so far as the defendant is concerned he is not your ordinary spy. I do not know whether he is still on the strength. He is not a reservist or anything.THE DEFENDANT: Yes, I am.
MR JUSTICE MOSES: He is. One way of handling this which your people would have to consider is he could also participate in seeing these documents but be bound by an undertaking to the court not to disclose them without any further order of the court. It is not like somebody who cannot... He is in a very different position from very many defendants. That is one possibility you would have to consider. Then he could give an undertaking; then if he breached it he could seek release from it at any stage after the trial, but only if I gave leave, otherwise he is just stuck like anybody else, like you and I. That is one possibility. Of course he has then had the expertise or being able to advance arguments from Mr Owen as to whether it is really relevant or not.
One of the troubles with all this - and I speak from bitter experience - is you look at these documents and actually they are all pretty meaningless unless you have somebody standing over your shoulder saying: 'Ah, yes, that means so and so' and 'No, it doesn't'. By the time you have passed it on to counsel via a solicitor everybody has forgotten the significance and nobody has ever understood and by the time counsel... so everybody is sort of arguing in the dark. That is one possibility.
The reason I believe that the MoD will use the Civil Courts in preference to the Criminal Courts is that only governments and those with deep pockets like the Sunday Times can afford the process. Individuals will just give up due to lack of money and the objective of silencing dissident voices will have been achieved without the need for unwanted publicity.