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Last Updated: Tuesday, 6 March 2007, 21:06 GMT
Injunction row examined
Torin Douglas
By Torin Douglas
Media correspondent, BBC News

The BBC's news audiences may be forgiven for feeling slightly bemused by the "cash for honours" injunction row.

Number 10 Downing Street
The cash-for-honours probe began a year ago.

For several days, they heard a series of somewhat baffling reports about a story the BBC could not broadcast, while various newspapers gave hints about what they had heard and how they in their turn were being gagged, or not gagged.

The BBC could not even say that its story was the same as the one being winkled out by newspapers.

And so the injunction itself became the story, leading the BBC's 10 O'Clock News on Friday night.

An injunction is a court order, issued by a judge, stopping someone doing something.

In this case, it was stopping the BBC from publishing a new and potentially important piece of information about allegations of a Downing Street cover-up.

'Public interest'

It was obtained by Lord Goldsmith, the attorney general, a senior government law officer, acting - he insisted - not as a member of the Cabinet but in his independent capacity, upholding the public interest.

He was responding to a request from the Metropolitan Police, who were concerned that the disclosure of certain information would impede their inquiries.

Gradually the terms of the injunction on the BBC were relaxed, but it could still not reveal the main thrust of its story.

Then on Monday night the Guardian set out to publish its own version of events.

After checking its story with Lord Levy and the police, it was referred to the attorney general's office, which again sought an injunction.

Public domain

This time the judge, Mrs Justice Swift, refused it, because the paper had already been printed and the story was in the public domain.

The paper's editor Alan Rusbridger defended his decision to publish.

Guardian editor Alan Rusbridger
You don't have prior restraint, which is a notion which went out in the 18th century
Alan Rusbridger
Guardian editor

"They seemed to be saying that I as editor might be in breach of the Contempt of Court Act," he told the BBC.

"Well that's fine, that's the kind of risk we normally take. That's the British legal principle - you publish and you're damned. But you're prosecuted after publication. You don't have prior restraint, which is a notion which went out in the 18th century."

On Tuesday morning the BBC, the first onto the story, found itself at a disadvantage. Its injunction was still in force while others - including the Guardian and the Press Association - were free to write their own "cash for honours" stories.

The BBC went back to the Royal Courts of Justice and applied for its injunction to be lifted. The attorney general didn't contest it.

By lunchtime, the BBC was free to reveal the details of the story it had tried to report the previous Friday evening.

Should it have been gagged for several days? The Metropolitan Police continued to express concern that the revelations might hinder its inquiries, and the attorney general to insist he was acting independently of his government role, in the public interest.

The media lawyer Mark Stephens challenged that view in a BBC interview.

'Pure fantasy'

"There was no doubt the injunction had to be lifted" he said.

"Once the Guardian had published their story it became abundantly clear that the attorney general's proposition that in some way the story was going to interfere with the police investigation - and indeed any subsequent trial and perhaps cause some kind of contempt of court - was pure fantasy.

"The attorney general has to show through cogent evidence two things - one, that there would be a serious risk of interference with the police investigation and, two, that that serious risk would prejudice the trial.

"I don't think the information we have seen come out in the BBC reports, since the injunction has been lifted, and indeed in the Guardian report this morning, goes anyway near that.

"I think what we had was an attorney general trying to effectively censor information from the British public and that's just an appalling state of affairs."

'Prejudicial' reports

But Lord Levy's solicitor and the director of public prosecutions both criticised the stream of media coverage.
Lord Levy
Lord Levy denies any "wrong-doing whatsoever"
Neil O'May said Lord Levy categorically denied any wrongdoing whatsoever.

"The current round of reports in the media and in the BBC, which are said to be based on leaked material under consideration by the police are partial, contradictory, confused and inaccurate," he said.

"There's been a regular stream of such leaks to the media during this year-long investigation - all of which have been presented in a prejudicial and distorted manner."

Ken McDonald, the Director of Public Prosecutions, told the BBC: "I think it's very undesirable that there should be material broadcast and in the press relating to a continuing police inquiry.

"I'm all for public discussion on criminal justice issues and for openness. But while a police inquiry is going on, it's very important that there is not public dissection of developments and I think we should try and avoid that."

As the police inquiry continues, it seems lawyers, media, police and the government's law officers will continue to disagree about how much the public has a right to know.




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