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What the attorney kept under wraps

Marcel Berlins

Monday November 28, 2005

The Guardian

Lord Goldsmith has been a busy attorney general in the past few days, caught up in two controversies and having to scatter denials and explanations all over the media. Question one: Is he trying to gag newspapers by threatening to use the Official Secrets Act against those who publish the contents of the memo said to contain President Bush's idea of bombing al-Jazeera and Tony Blair's advice to him not to do so?

Not at all, says the attorney general. Me, of all people, gag the press? Heaven forfend. He was merely reminding papers, in the words of his note to them, "that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is itself a breach of section 5 of the Official Secrets Act". True, but only (Lord Goldsmith omitted to say) if the prosecution can prove that what was disclosed was damaging (I summarise) to the country's security or to its international relations and - an important "and" - that the newspaper knew (or had cause to believe) that it was damaging.

I have been trying all weekend to think of ways in which disclosing the memo - even if, apart from the al-Jazeera bits, it also contains what Bush and Blair said about the US attack on Falluja - could cause the damage required by the act. I have failed.

On the radio Lord Goldsmith added another warning, pointing out that there was a "live" prosecution. In other words, watch out, the media, that you don't commit contempt of court. But that would be triggered only by publishing something that creates a "substantial risk of serious prejudice" to a forthcoming trial. I cannot see how revealing more about the Bush-Blair conversation could create that degree of prejudice (or indeed any) to the case of the two men facing the official secrets prosecution. The final score: Threats to the media by Lord Goldsmith 2; empty threats 2.

The second question: What happens now to the government's plans to take away trial by jury from complex fraud trials? They were supposed to come into force on January 1 next. Happily, they won't. Lord Goldsmith has done his arithmetic and found that the government could not win the vote in the House of Lords, scheduled for tomorrow, that would have activated no-jury fraud trials.

Instead, he is going to hold talks with the Conservatives and the Liberal Democrats in the hope of reaching a compromise. This will delay any non-jury trials for months at least, with a reasonable chance they will be scrapped altogether.

It may not be easy to find a format acceptable to the House of Lords, and the government may start to feel, as time passes, that there are more important matters on the agenda than trying to force through this unnecessary and marginal piece of legislation. I gather that Gordon Brown is not nearly as enthusiastic about the measure as Blair has been. The nearer we get to Brown's reign, the less we'll hear of no juries.

What are the options for compromise? Trial by a judge sitting on his own is a non-runner. Variations on a threesome have been mooted: three judges (thrice as bad as one); a judge and two magistrates; a judge with two assessors who are experts in the financial field under scrutiny.

One possibility occasionally discussed is to retain a jury, but a smaller one - four or six members, who would have some knowledge or experience of financial affairs. That wouldn't really be a jury, more a bunch of expert assessors. All those suggestions have difficulties and all are based on the premise that juries are incapable of comprehending the evidence in complicated fraud cases.

That is by no means proven, nor accepted by opponents of change, who point instead to poor choice of charges, poor presentation by the prosecution, and weak, inadequate control of the trial by the judge. The government should concentrate on getting those shortcomings put right. Trials would be shorter, their content clearer. Then there would be no need to tamper with juries.