Key pre-trial hearing 29th-30th July, Lewes Crown Court.
[Criminal trial to resume 7th October]

A new pre-trial hearing in the case of David Shayler has been set for Lewes Crown Court on 29th and 30th July. At this hearing, Moses J will consider three issues:
- whether the defence of necessity is available;
- whether the prosecution and the Security Service have to disclose all the documents in their possession which would assist David with this defence;
- and whether the jury will have to be vetted by the Security Service and if so does the
Human Rights Act require the defence to be given access to their investigations.

In March, the House of Lords confirmed the Court of Appeal's ruling that Mr Shayler could not have access to a broad public interest defence in his trial under the Official Secrets Act. This followed an appeal from Mr Justice Moses' ruling following preliminary arguments in the Crown Court in April 2001. The hearing on 29th July will be in open court; we expect that the legal arguments will be able to be reported.

In September, while ruling out the broad public interest defence, the Court of Appeal ruled that a defence of necessity was available under the Official Secrets Act and that any employee of MI5 does have right to go to court if they wish to expose malpractice.

This is the first defence to a charge under section 1 of the Official Secrets Act that has ever been established and the first time a right to access to courts for "whistle-blowers" has been created. In broader terms this is a major breakthrough; but the Court suggested that the defence of necessity would not be available to David Shayler on the facts. Ultimately this is a matter for the trial judge.

It is this issue that will be argued at the hearing on the 29th and 30th July. David's criminal trial is scheduled to resume at the Old Bailey on 7th October.