Behind half-open doors

Christine Verity

Despite all the fun and games surrounding the 'Colonel B' episode, it may seem somewhat surprising that the general reactions to the verdict of the Lord ChiefJustice's Court a fortnight ago in the Attorney General's case against Peace News, The Leveller and The Journalist have been so mild. The case did after all raise serious questions relating to press freedom, and some may think that Lord Widgery's judgment has merely added yet another surreal twist to a legal saga which already bore disturbing similarities to Alice in Wonderland.

The Colonel B case arose from the proceedings in Tottenham Magistrates Court last November, when Crispin Aubrey, John Berry and Duncan Campbell (now generally known as 'A, B and C') were comitted for trial under the Official Secrets Act for publishing information all of which had been culled from already-published sources. Colonel B was a prosecution witness. He gave his evidence in open court. The justices permitted him to keep his name secret, 'in the interests of national security'. But iafact his name was never mentioned in court, and it was merely deduced afterwards from facts which came to light during the hearing, and from articles which Colonel B had published in magazines under his real name.

Many casual readers of the press have probably assumed that Tottenham magistrates actually gave a 'direction' to reporters last November that Colonel B's identity should not be revealed. This was in fact the original basis of the Attorney General's case in the recent hearing, confirmed by an affidavit made by a member of the Director of Public Prosecution's staff present at the time. But, somewhat to universal astonishment, this evidence was directly challenged by a statement obtained at tbe last minute from Mr Pratt, clerk to the Tottenham magistrates.

The defence feared that nothing said by the dour-looking Pratt could possibly be in their favour. In fact his evidence became the cornerstone of their case. Pratt stated that no 'direction' had been given to the court, on the revealing of Colonel B's identity, because the justices, as advised by him, had no power to give such a direction. A certain amount of havoc followed this conflict of evidence, and the Attorney General even rather lamely tried to alter the grounds of his case, by vainly attempting to have the word 'direction' altered to 'arrangement'.

All this helped to heighten the more than usual air of unreality in the courtroom.

Confronted on the public benches by serried ranks of T-shirts and cheesecloth reminiscent of the protest movements of yesteryear, it was hard to believe that the Bench could do more than award a hundred lines all round, with the reminder 'not to do it again'.

Nevertheless, after a four-day hearing and a fortnight for judgment to be considered, Lord Widgery's Court refused to accept that the magistrates had not ordered those present at Tottenham to keep quiet about Colonel B's identity. The magazines had deliberately flouted the court's 'intention' (an intention which, as Pratt had explained, the magistrates had no power to put into effect). Although the justification for contempt proceedings has usually been to show that the acts complained of are likely to prejudice the conduct of legal proceedings, their Lordships refused to accept that this was relevant. Nor was any evidence permitted, they said, as to the general rights and wrongs of a witness being permitted to remain anonymous while giving evidence in open court.

All of which leaves the whole question of contempt shrouded in more mystery than ever. The prime intention of the law of contempt is generally assumed to be that it ensures a fair trial for the defendant. So vaguely defined is the notion of contempt, that a newspaper may be theoretically guilty of the offence in publishing anything, if the events described result in a court case. The difficulties of operating the law as it stands have been abundantly illustrated in recent years, by such instances as the press 'hounding' of Ronald Milhench, Lord Lucan or Dr Savundra.

Nevertheless most people would probably see the logic of preserving some contempt rules, in the interests of the defendant. The point about Colonel B is that he was a witness for the prosecution. Surely the public is entitled to know by whose 'expert' evidence the accused stands condemned? When a barber is sued for negligence, it may be of some import to know that the expert evidence against him is given by a bona fide hairdresser and not Sweeney Todd.

So why did Lord Widgery and his col' leagues come to the conclusion they did in the Colonel B case? The authority for their decision came from R. v. Socialist Worker and Foot (1975). Towards the end of a blackmail trial involving Janie Jones, the Socialist Worker revealed the names of two prosecution witnesses who had been allowed to give their evidence anonymously. In the contempt proceedings which followed, the same question arose: had the judge 'directed' that the identities be kept secret outside the courtroom? The answer never emerged. However, the AttorneY General did on that occasion acknowledge that the revelation had caused no harm to be done to the fair administration of justice, and that there was no legal authority which bore directly on the case.

But in the Socialist Worker case, the rational and human considerations behind the verdict were arguably very different from those in the Colonel B affair, namelY the need to protect the identity of blackmail victims in the hope that they will not feel inhibited from giving crucial evidence. On the darker side, the Socialist Worker case seemed to introduce a new legal concept amounting to what might be called a state of 'semi-camera', in which a court might be deemed to be both open and yet partially secret. It is this highly dubious concept which appears to have lain behind the

recent Colonel B decision. •

Several conclusions begin to emerge. The Phillimore Committee, which reported as long ago as 1974, recommended more certainty in this murky area of the law. Typically the report still lies gathering dust. But the recent statutory enactment which prevents a court from naming rape victims is crystal clear compared with Lord Widgery's backwater, which seems to be producing yet more murky tributaries of contempt. Another problem with the law as it stands is the apparently quite arbitrary nature of its application. Where will the Attorney General strike next? Boring as she is, glad to see the back of her as we are, Miss Joyce McKinney was awaiting trial in this country when the Mirror and the Express published their lurid tales of her past life. The DPP has now decided not to apply for her extradition on the grounds that she cannot now 'receive a fair trial'. And how. Meanwhile, the two newspapers in question continue to flourish unscathed, while Peace News with assets of £900 faces a fine of £500.

• -Of course, had the Colonel B proceedings failed, it might have been taken as a ref

lection on the Official Secrets case against 'A, B and C' (scheduled for the Old Bailey in September) — which raises even further questions about the motivation behind the

recent• decision. It is perhaps a pity that the Sunday Times's mammoth thalidomide

battle seems to have bored the subject of contempt so far out of the arena of public interest that the recent proceedings in the Lord Chief Justice's Court have aroused so little public concern.