TNAG-1694-FCO40-2344-Broadcasting-in-Hong-Kong-1987 — Page 85

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Date:

Time:

24.8.87

10

-

Reporter:

11 am

CNB/13

Mr Lester put it in his reply.

Accordingly, I accept Mr Ribeiro's

contention on behalf of the Attorney that I should adopt the Millett approach, but really that appears to me to be no more than an application of American Cyanamid principles. Once the Attorney has shown he has an arguable case and an interest needing protection, it is a question of weighing all the evidence and the other factors referred to by Mr Justice Millett and deciding where the balance lies.

If the Attorney was seeking to protect nuclear secrets, clearly the defendants would have to work hard to tip the balance of convenience their way. Indeed, I hope that conscientious newspapers and other persons would be astute to help

But if all that preserve secrecy rather than plead free speech.

was at stake was perhaps the consumption of rubber bands in the Foreign Office, the Attorney, I apprehend, would have an uphill struggle to prevent the halange from tipping easily in favour of the defendants. That seems to me to come very close to the "necessity" or "proportion" test which has been propounded by the European Court under Article 10 but perhaps there is in reality no great distance between the parties on this point.

As I have indicated, the Attorney's claim is in two parts. He seeks first to prevent loss of confidence in the British Security Service and, secondly, to deter others 25 from misbehaviour similar to that of Mr Wright.

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By way of evidence, he relies on the affidavit of Michael Lawrence Saunders, the Legal Secretary to the Attorney. Mr Saunders in his affidavit deposes in paragraph 12 that "I verBelieve," and then I go to sub-paragraph 5: [Reads]

any such publication will cause irreparable damage to the British Security Service and hence the Crown in right of the Government of the United Kingdom in the manner described in the said affidavits of Sir Robert Armstrong and the Statement of Claim in the proceedings against The Guardian'."

I need not refer to that Statement of Claim. That Statement of Claim relies upon the affidavits of Sir Robert Armstrong who swore

VERBATIM REPORTERS

HONG KONG

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