Do you remember Clive Ponting?

I thought I would post slightly obliquely about the current political and legal chaos.

The Supreme Court’s decision reminded me of two court cases long ago.

In the early 1980s, Ken Livingstone’s Greater London Council (later abolished) introduced radically cheap transport fares. This was challenged in the courts, and found unlawful, I can’t remember why.

I remember asking in a tutorial “why they couldn’t have found out it was illegal before introducing the policy”, thus displaying a lamentable naivete for a politics student at a reputable university. I had not at that stage understood that law is made, to some extent, as we go along. (See my previous post on this, https://www.penelopewallace.com/vicarious-liability-and-making-law/).

I also remember a criminal case in 1985. A civil servant called Clive Ponting discovered in the course of his work some documents relating to the conduct of the Falklands War, which he thought showed dishonest or otherwise bad behaviour by the government (they related to the sinking of the Argentine ship General Belgrano.) He gave or showed these documents to Tam Dalyell MP (not, notice, to a newspaper) and was duly prosecuted under the Official Secrets Act.

A year or so earlier,  a civil servant called Sarah Tisdall had been jailed under the Act for leaking documents about cruise missiles to the Guardian.

The Act gave Ponting a defence if his actions had been “in the public interest.”

However, in all trials, the jury are instructed in the law by the presiding judge, and the judge in this case told the jury and thus the watching world that “the public interest” meant “the interest of the government of the day.”

Hearing this, I thought – everyone must have thought – “Mr Ponting is doomed.” The judge was telling the jury to convict, because of course it wasn’t in the government’s (political) interest for these facts to come out.

A day or two later, the jury found Mr Ponting not guilty, and there was great rejoicing, at least in the circles in which I moved.

This apparently is an example of what is called “jury nullification.”

If I’d been on that jury, as a timid stickler for the legalistically orthodox, I would probably have said “the judge says this is the law, and we have to believe him, the man is legally guilty”. But I am very glad that the jury in fact didn’t do this. Jury deliberations are secret, but I assume they must have looked at each other and said, “What nonsense. The government shouldn’t use anti-espionage legislation to hush up embarrassing information,” and acted accordingly.

Ms Tisdall and Mr Ponting were early examples of whistle-blowers, acting long before such people were respected or protected.

On checking this old story on Wikipedia, I learn that

The Conservative government reacted by amending UK secrets legislation, introducing the Official Secrets Act 1989….. As a result of the 1989 modification, that defence [of public interest] was removed. After this enactment, it was taken that ‘”public interest” is what the government of the day says it is.

I hate to disagree with Wikipedia, and it’s doubtless right as to the law. But my memory is the opposite – because of Clive Ponting’s acquittal, no one in Britain ever again could define the public interest that way with a straight face.

And I think the concept of challenging unlawful and inappropriate behaviour by government has continued ever since – that there is a line from Sarah Tisdall and Clive Ponting to Gina Millar and Lady Hale.

Love from the PPI Blogger