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I was once hit with a superinjunction and know how democracy dies in the dark
I was once hit with a superinjunction and know how democracy dies in the dark

The Independent

time4 days ago

  • Politics
  • The Independent

I was once hit with a superinjunction and know how democracy dies in the dark

I was once smacked with a superinjunction … and lived to tell the full Kafkaesque tale. So I have a lot of sympathy for The Independent and other media organisations who, for nearly two years, have been forced to sit on a story which the British state didn't want told. My own experience of being gagged involved an unappetising company called Trafigura, which had been caught dumping toxic chemicals off West Africa in 2006. The company had shelled out more than £30m in compensation and legal costs to 30,000 inhabitants of Abidjan in Ivory Coast who claimed to have been affected by the dumping. Trafigura was keen to suppress the findings of an internal report, which could have proved embarrassing. So they obtained an injunction to stop The Guardian from publishing it – and then, for good measure, a further injunction to prevent us from revealing the existence of the original injunction. Welcome to superinjunctions, which were, for a while, sprayed around like legal confetti – often by errant footballers keen to keep their off-pitch escapades secret. The Trafigura case represented a novel application of the law to silence investigative journalism, seemingly contradicting the only dictum about the courts that most people are familiar with – the principle that the law must be seen to be done. Trafigura went one step further. When a Labour MP tabled a question about their use of a superinjunction, their lawyers, the unlovely company Carter-Ruck, even warned newspapers that they would be in contempt of court if they dared mention this parliamentary intervention. That was plainly ludicrous. Trafigura's legal pitbulls had lost sight of the fact that people risked their liberty and their lives to fight for the right to report what their elected representatives say and do. The super injunction collapsed like an undercooked souffle. And here we are 16 years later, discovering that, for 683 days, a tiny handful of lawyers, judges, politicians and civil servants had been silencing the press from telling the most extraordinary story of how a hapless MoD official caused a catastrophic data breach, putting the lives of thousands of Afghans in peril. The saga began in September 2023 when Mr Justice Knowles issued a gagging order contra mundum (against the world) forbidding anyone from revealing the leak, which named Afghans who had assisted the British forces in Kabul – and who might now be at risk of reprisals from the Taliban. The judge spoke in lukewarm terms about the importance of freedom of expression, but considered a blanket gag was essential to give MoD time to mitigate the harm. Since then, a growing number of journalists became aware of the story, and another judge, Mr Justice Chamberlain, held multiple hearings – many of them closed to outsiders – to decide how long the injunction should hold. At one point, about a year ago, he thought enough was enough, but was overruled by the Court of Appeal. It was only this week that the curtain was lifted and we were allowed to know that as many as 18,500 Afghans had secretly been flown to Britain at a cost variously estimated to be between £400m and £7bn (ie we don't know). British spies and special forces soldiers were also among the tens of thousands of people potentially put at risk by the catastrophic Afghan data leak. The clincher for Chamberlain was a risk assessment report commissioned by the current government from a retired civil servant, Paul Rimmer. Rimmer took a markedly different view of the ongoing risk and, said Chamberlain, 'fundamentally undermined' the case for the gagging order to continue. And so it was that, at midday on Tuesday, the jaw-dropping nature of what had been going on was finally revealed. Some might argue that, back in September 2023, there was a case for some kind of news blackout to give the authorities a chance to alert those most at risk, and to extricate as many people as possible. The question is, was it right to keep the gagging order in place for so long? Chamberlain clearly thought it was fine to discharge it a year ago. Was he right? Or was the MoD justified in arguing for more time? The first thing to be said is that the state (in the form of governments and Whitehall) will, in such circumstances, always argue for more secrecy. They will say they are acting in the national interest. But history tells us that the government of the day can often not be trusted in their judgment of where the national interest lies. In 1938, the government of the day attempted to use the Official Secrets Act to compel Duncan Sandys MP to disclose the source of his information about the state of anti-aircraft defences around London. Sandys later became defence minister. Historians now take a different view of those who opposed appeasement in the 1930s. Also in the 1930s, the appeasing government condemned the 'subversive' whistleblowers who were feeding Winston Churchill information about Britain's readiness for war. 'The damage done to the Services far outweighs any advantage that may accrue,' raged a now-forgotten war minister. He was wrong: Churchill and his informants were right. The government of the day tried in 1967 to prevent The Sunday Times, under its editor, Harold Evans, from publishing an accurate account of the case of former MI6 agent Kim Philby and his life as a double agent. The then foreign secretary, George Brown, having failed to prevent publication, publicly accused Evans of being a traitor and of 'giving the Russians a head start... for god's sake, stop!' It's not just a British instinct. In 2004, George W Bush talked The New York Times out of running a series of articles which revealed that the US National Security Agency [NSA] had been eavesdropping on the communications of Americans without any warrant. Bush told the editor: 'You'll have blood on your hands.' The editor spiked the articles. So Mr Justice Chamberlain was right to be a little sceptical about what the state's representatives were telling him during this two-year saga. As he pointed out, the potential sums of money involved (£7bn!?) and the sheer number of urgent migrants were entirely legitimate subjects of political debate. Even more troubling is the fact that members of parliament's Intelligence and Security Committee (ISC) were also kept in the dark. In June 2024, a court of appeal judge suggested that the ISC might be allowed access to the issue. But the lead KC for the MoD poo poohed the idea. Lord Beamish, the ISC's chair, said the decision not to keep his committee in the loop was 'appalling'. He's right. The ISC is a statutory committee intended to scrutinise the work of Britain's spy agencies, including GCHQ, MI6 and MI5. Being told that the MoD doesn't trust them with 'certain pieces of information' calls into question the entire mechanism of oversight in the secret state. What else do the spooks not think they can be trusted to know? Ironically, the seven media organisations – including The Independent – that were in on the secret by the time the injunction was finally discharged all behaved impeccably in not breathing a word. It's a topsy-turvy world in which journalists can be trusted with knowing information that the ISC was denied. Lord Beamish is right to be furious – and no doubt his committee will want answers. They're not the only ones. There should be the fullest possible reckoning. As the saying goes, democracy dies in darkness.

Trafigura says employee at Indonesia unit cooperating with corruption probe
Trafigura says employee at Indonesia unit cooperating with corruption probe

Reuters

time6 days ago

  • Business
  • Reuters

Trafigura says employee at Indonesia unit cooperating with corruption probe

JAKARTA, July 14 (Reuters) - Global commodities trading firm Trafigura said an employee at its Indonesian subsidiary has been cooperating with the authorities in a corruption investigation involving state energy company PT Pertamina. The Indonesian Attorney General's Office on Thursday named nine more people, including the employee at PT Trafigura, as suspects in an investigation into alleged corrupt activities between 2018 and 2023 that officials have said resulted in losses of 285 trillion rupiah ($17.58 billion) to the state. "We understand that the employee has been recently named a suspect in an investigation involving PT Pertamina," a Trafigura spokesperson said in an email. "Trafigura is providing appropriate legal representation to the employee. The company is awaiting further details about the specific allegations." The suspects were allegedly involved in improper imports of crude oil and fuel, improper shipping leases and fuel terminal lease procurements, the AGO said. ($1 = 16,215.0000 rupiah)

What are superinjunctions and why was one imposed in Afghan case?
What are superinjunctions and why was one imposed in Afghan case?

The Guardian

time6 days ago

  • Politics
  • The Guardian

What are superinjunctions and why was one imposed in Afghan case?

A data breach that led the UK government to offer relocation to 15,000 Afghans in a secret scheme with a potential cost of more than £2bn escaped parliamentary and media scrutiny until Tuesday when a superinjunction was lifted more than 600 days after it had taken effect. Here, the Guardian explains the legal background to the controversy. A regular injunction is a court order that prevents certain details of a case from being made public. A superinjunction prohibits disclosure not only of the underlying information but also of the existence of the order itself. One of the earliest known superinjunctions was obtained by the oil-trading company Trafigura in 2009 to prevent the Guardian from reporting details of toxic waste dumping in Ivory Coast. They have also been used by celebrities such as the footballers John Terry and Ryan Giggs to try to stop reporting about their private lives. The Daily Mail said that after its reporter approached the Ministry of Defence (MoD) about the breach, the D-notice committee (formally the Defence and Security Media Advisory Committee) was activated, which advises the press on threats to national security. Compliance with the committee is not obligatory but the Mail said it agreed not to publish the story. It said the government applied for a binding court order after others became aware of the breach. Ben Wallace, who was defence secretary at the time, told the BBC's Today programme that when ministers went to the high court 'we applied for a four-month injunction, a normal injunction,' and that he did not know why it was converted into a superinjunction in September 2023. He said his priority 'was to protect those people who could have been or were exposed by this data leak'. Mr Justice Robin Knowles said in his 2023 judgment that he had gone further than what the MoD had requested. 'Although it was proposed that the order (not the hearing) should be in public and published on the court website, I have decided it should be in private and not published on the website, at least at this stage,' he said. After Paul Rimmer, a former civil servant, carried out a review for the MoD, Mr Justice Chamberlain ordered on 26 June that the injunction be lifted from noon on Tuesday 16 July because Rimmer's conclusions 'fundamentally undermine the evidential basis on which [the courts previously] relied in deciding that the superinjunction should be continued'. This time there was no appeal. In his review, Rimmer said: 'It appears unlikely that merely being on the dataset would be grounds for targeting. It is therefore also unlikely that family members – immediate or more distant – will be targeted simply because the 'principal' appears in the dataset. Should the Taliban wish to target individuals, the wealth of data inherited from the former government would already enable them to do so.' The aim was ostensibly to prevent risk to life, but in a judgment in May last year ordering that the superinjunction be lifted – which was subsequently overturned by the court of appeal – Chamberlain said: 'It is fundamentally objectionable for decisions that affect the lives and safety of thousands of human beings, and involve the commitment of billions of pounds of public money, to be taken in circumstances where they are completely insulated from public debate.' He said the superinjunction was likely to have an adverse effect on those not being relocated as they would not be able to react to any threat or benefit from public pressure on the government to do more for them. In last month's final judgment, Chamberlain said: 'The assessments in Mr Rimmer's report are very different from those on which the superinjunction was sought and granted. The change is in part due to the passage of time … It will be for others to consider whether lessons can be learned from the way the initial assessments in this case were prepared and whether the courts were, or are generally, right to accord such weight to assessments of this kind. Mark Stephens, a partner at Howard Kennedy and a trustee of Index on Censorship, said it might have been justified by the exceptional circumstances but added: 'The difficulty here is, I think you're only entitled to the superinjunction for as long as it is necessary, essentially to preserve life, and it's not clear that this didn't run on a bit longer.'

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