Real reason behind the failure of the Gun case will cause even more problems

Published on Tuesday 2 March 2004 00:00

ODD one out round: Princess Diana, Peter Mandelson, Arthur Scargill, Kofi Annan. The answer, of course, is Clare Short.

She is now so dangerous to the government and the security services that she should be kept under constant surveillance, while the others were also bugged by Britain, even though it’s hard to see what particular threat they constituted.

In politics, as in comedy, timing is everything and Ms Short’s attack on the legality of the war achieved maximum impact by capitalising on the outcome of the Katharine Gun case to leave the government in a difficult situation. Once again they are forced to deny the war was illegal without wishing to publish the legal advice they were given at the time.

But the government’s lawyers will also be aware that there is another, wider consequence of the Gun case which has gathered fewer headlines, but which could prove in time to be just as problematic as the current row.

The official reason for the dropping of the prosecution was "the evidential deficiency related to the prosecution’s inability within the current statutory framework to disprove the defence raised on the particular facts of the case."

This statement, of course, has been largely ignored, as the government’s critics have claimed the real reason was that Gun was demanding copies of the Attorney-General’s advice to the Cabinet on the legality of the war.

Although this had huge potential for embarrassment to the government, it was not strictly relevant to Gun’s defence, which was one of "necessity." She was prepared to argue that, although she had leaked confidential information, she had done so in an attempt to prevent the loss of life that war would inevitable entail.

Necessity is a well-established defence in criminal law, although it is not often used. It requires there to be an actual threat of death or serious injury as the motivation for the criminal act carried out by the accused. In Scotland, it was used in a case in 1982 where a man admitted drunk driving, but he had been assaulted and was escaping further assault at the time.

It usually relates to the particular circumstances of the accused at the time, but it can be used where the harm is being caused to another, such as breaking into a house to make a phone call to call an ambulance. There would appear to be no reason why it could not apply to a war.

Its use as a defence to a breach of the Official Secrets Act was attempted before by David Shayler in 2001. He argued that he was attempting to prevent harm to the public that would result from the abuses and blunders by the Secret Services, which he disclosed. This was rejected by courts as there was only a very vague link between his disclosures and some unspecified future harm.

Crucially, however, the Lord Justice-General, Lord Woolf, refused to rule out the possibility that necessity could be a defence to the Official Secrets Act, although he said he could not imagine circumstances in which it would apply.

In the Gun case, there was clearly a specific harm. Although her leak did not prevent it, prevention was her motivation. The prosecution statement admits they would have had trouble disproving this.

Cases which have yet to come to court in connection with the Iraq war are also planning to use the necessity defence, including one where peace protesters are charged with breaking into RAF bases and disabling bombers.

It’s entirely possible that others awaiting trial will now attempt to run something similar. Could it be a "necessity" to cause a breach of the peace in George Square to prevent the greater harm of war?

Had the Gun case gone ahead and she had been acquitted, this would have immediately set a legal precedent that would have obvious dangers for the government. Overnight, a "leaker’s charter" would have been created for civil servants in the lead-up to any future conflicts.

It’s no surprise, therefore, that the dropping of the prosecution was followed by an announcement that the Official Secrets Act was being immediately reviewed. This is something which critics have been calling on for years, but the Gun case has suddenly injected some urgency.

It may well be that a new Official Secrets Act will be required to rule out any future use of a defence of necessity. In the current climate, it would also be no surprise if the government considered more sweeping reforms to the Act.

An undoubted factor in the Gun decision was that her case would be in open court and able to be reported, and that she would be tried by a jury who might not be entirely sympathetic to the government’s position on the war. Why not get rid of these pesky juries and reporters in Official Secrets cases in future?

As for Ms Short, the irony is that, if she is prosecuted under the current act for leaking the Kofi Annan story, she cannot use the "necessity" defence, as the war is now over. If she had followed her principles by resigning and leaking the information during the run-up to war, however, she might well have been able to beat the government in court.