Those brave enough to expose the state's dark underbelly should be celebrated, says Geoffrey Bindman
On the 25th anniversary of the Falklands war it is fitting to commemorate the courage of Clive Ponting, now a distinguished historian, but then a senior civil servant in the Ministry of Defence (MoD). Ponting sacrificed his high flying career by revealing that government ministers had misled Parliament over the sinking of the Argentinian cruiser General Belgrano with the loss of 368 lives.
Two years later the government was under pressure to explain what had led to the sinking. There were claims that the Belgrano should not have been attacked because it was outside the scene of combat and was sailing rapidly back home to Buenos Aires. On television Margaret Thatcher was asked by Diana Gould why she had authorised the attack. The Iron Lady was uncharacteristically rattled. She denied that it was leaving the battle zone. This proved to be untrue. Moreover, Parliament had been misled about the first sighting of the cruiser. It had been followed for 30 hours by the submarine Conqueror before the fatal torpedoes were fired.
Tam Dalyell MP asked pertinent questions but ministers declined to send him the straight answers which Ponting drafted for them. Ponting decided to send Dalyell the full story anonymously.
All he had done was to blow the whistle to an MP when ministers had concealed the truth from Parliament in clear breach of their constitutional duty. The decision to prosecute Ponting under the Official Secrets Act 1911, s 2 was thus surprising but the Secretary of State for Defence, Michael Heseltine, had a track record. Only a few months earlier, Sarah Tisdall, a junior clerk in the Foreign Office, had been prosecuted under s 2 after leaking to The Guardian a memorandum from Heseltine about the impending arrival of cruise missiles at RAF Greenham Common. She went to jail for six months.
Section 2 was extremely widely drawn and heavily criticised for many years—it was said that it made it a crime to reveal the menu in the staff canteen. However, it contained an exception for information communicated to “a person to whom it is in the interest of the state to communicate it”.
Ponting instructed my firm on the recommendation of Liberty (then still the National Council for Civil Liberties). Brian Raymond, our criminal law partner, conducted the case. Brian was a pioneer in media relations. He recognised the importance of frank contacts with serious and capable journalists. The public was told Ponting’s side of the story.
The public interest defence was clearly arguable. Mr Justice McCowan at the Old Bailey trial allowed defence evidence on governmental and constitutional practice from the former Home Secretary Merlyn Rees and the eminent Cambridge professor Henry Wade but in the jury’s absence he rejected the defence submission that whether or not Ponting had acted “in the interest of the state” was an issue of fact for the jury. Astonishingly, his ruling meant that what was in the interest of the state was whatever the government said it was.
After that, conviction and imprisonment seemed a foregone conclusion. Before we came to court next morning we had a farewell breakfast at the Savoy Hotel. Our client arrived with a small suitcase containing toothbrush, shaving kit and other items he would need as a guest of Her Majesty.
While the jury deliberated, we gloomily discussed our grounds of appeal and the prospects of winning in Strasbourg. Then came the verdict. When the foreman said “not guilty” there was a gasp of amazement followed by spontaneous applause. It was an incredible result because it meant the jury had flatly ignored the judge’s direction. Plainly they thought Ponting had done the right thing.
It was a famous victory, and a triumph for Brian, as well as Ponting himself. Tragically, Brian died suddenly a few years later. He was still in his early forties.
Would a government ever try again to punish a public servant for exposing its own iniquity? Section 2 was repealed in 1989 but the clause which replaced it is not very different.
Disclosure of defence information remains an offence unless the whistleblower can show that it does not endanger or obstruct the interests of the state, a heavy burden to discharge. Prosecutions continued. Katharine Gun, a translator at GCHQ, was prosecuted and committed for trial in 2003 after leaking an e-mail from a US agency requesting help to bug telephones and e-mails of members of the UN Security Council. The aim was to find out their voting intentions on a UN resolution authorising the attack on Iraq. The prosecution was dropped when it emerged that the defence would seek to challenge the legality of the Iraq war. The government was desperate to avoid disclosing the Attorney General’s advice. We now know of course that this long concealed advice was equivocal, unlike his later categorical Parliamentary answer.
Gun faced conviction. The blowing of her particular whistle could have been said to damage British interests—but only in the eyes of those whose dirty tricks were exposed to public view. The defence of necessity in the public interest, which was acknowledged in the Shayler case by the House of Lords, alone might have saved her. Again we were witnessing our government using draconian laws to avoid embarrassment and hide information from the public.
And yet since 2000 we have had a Freedom of Information Act. Properly, it has a national security exemption but recently the government has tried to restrict access further by raising costs barriers. It has even been reported recently that the Home Secretary is seeking new ways to “gag the blabbers”.
So Ponting’s brave struggle is by no means over. Since the Gun case there have been yet more prosecutions. Governments will always seek to protect their own political as well as genuine security interests. That is why we need to continue celebrating brave whistleblowers and challenging the occupational propensity of politicians to keep the public in the dark.
