Objectives

1. Restrictions, including those restrictions permitted by the European Convention on Human RightsDuty of confidentialityOfficial Secrets Legislation

2. Objectives • Explain the history of official secrets legislation. • Explain and discuss the Official Secrets Act 1911, with particular reference to Section 2 and cases. • Explain and apply the Official Secrets Act 1989 to given cases.

3. History of Official Secrets Marvin 1878 1889 Official Secrets Act 1911 Official Secrets Act and Section 2 Section 2 – imposed a complete prohibition on the unauthorised disclosure of official information, however trivial. Few prosecutions but see: Aitken (1970) Tisdall (1984) Ponting (1985)

4. Official Secrets Act 1989 OSA 1989 decriminalises disclosure of some official information. Specific categories of information now protected –sections 1 – 4. Categories are: Security and Intelligence Defence International Relations Crime

5. Official Secrets Act 1989 Security and Intelligence Section 1 – Security and Intelligence – wide category not confined only to work done by members of the security services. Section 1 (1) – prevents members or former members of the Security Services (and any person notified he is subject to the provisions of the subsection) disclosing anything at all relating or appearing to relate the operation of the Security Services. A lifelong duty to remain silent. No need to show harm will or may flow from disclosure. R v Shayler (2002) - no defence of acting in the public interest.

6. Official Secrets Act 1989 Security and Intelligence Section 1 (3) – criminalises disclosure of information relating to the security services by a former or present Crown servant as opposed to a member of the Security Services – this DOES include a harm test under section 1(4). Section 1 (4) – a disclosure is damaging if: it causes damage to the work of or any part of, the security and intelligence services. Test very easily met – what is meant by damage?

7. Defence Section 2 – covers information relating to defence. Section 2 (4) sets out what is meant by defence and includes – size shape, organisation, logistics of battle deployment ...weapons, stores equipment, invention development of equipment … defence policy, military planning and intelligence… Official Secrets Act 1989

8. Official Secrets Act 1989 Defence It must be shown that the disclosure in question is or would likely to be damaging as defined under section 2 (2). Section 2 (2) –it damages the capability of the armed forces …leads to loss of life or injury…serious damage to equipment ...it endangers the interests of the UK abroad…

9. Official Secrets Act 1989 International relations Section 3 – covers disclosure of any information, document or other article relating to international relations. The harm test under section 3 (2) is the same as that under section 2 (2) (b) and (c) ... it endangers the interests of the UK abroad… it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

10. Official Secrets Act 1989 Crime Section 4 – crime and special investigation powers. Section 4 (2) covers any information the disclosure of which: results in the commission of an offence or facilitates an escape from legal custody…..or impedes the prevention or detection of offences or prosecution of suspected offender … Section 4 (2) harm test for this category.

11. Official Secrets Act 1989 Crime Section 4 (3) – covers information obtained by use of intercept and security service warrants. There is NO harm test under this category.

12. Official Secrets Act 1989 Section 5 – information resulting from unauthorised disclosures or trusted in confidence. Not a new category. Information will fall within Section 5 if it falls within one or more of the previous categories and it has been disclosed to the defendant by a Crown Servant. Section 5 aimed primarily at journalists. Section 5 (2) - mens rea requirement.

13. Official Secrets Act 1989 Section 6 – covers the unauthorised publication abroad of information which falls into one of the categories apart from crime and special investigation powers. Section 6 – aimed primarily at journalists. Section 6 – mens rea requirement. Section 7 – a disclosure will not lead to liability under the Act if it is authorised.

14. Official Secrets Act 1989 Section 8 – Where a Crown servant or government contractor, has in his possession … any document or other article which it would be an offence under any of the foregoing provisions of the Act for him to disclose …. he is guilty of an offence if. (a) being a Crown servant, he retains the document or article or … (b) being a government contractor, he fails to comply with an official direction for the return or disposal of the document or article or … if he fails to take such care to prevent the unauthorised disclosure of the document or article.

15. Official Secrets Act 1989 Section 8(2) – It is a defence for a Crown servant charged with an offence under subsection 8 to prove that at the time of the alleged offence he believed that he was acting in accordance with his official duty.

16. Official Secrets Act 1989 Conclusion The Act appears to provide 3 defences: Defendant did not know information fell into a protected category. No reason to believe the information would cause harm; and Belief in lawful authorisation. N.B. No defence of acting in the public interest. A civil action for breach of confidence could also arise.

17. Test Yourself When was the first Official Secrets Act passed? What did Section 2 of the 1911 Official Secrets Act say? Name 2 cases that signalled the downfall of the 1911 Act? What categories of information are now protected under the 1989 Act? Which of these sections has a harm test? At whom is Section 5 primarily aimed? Which section allows the defence of belief in authorisation? Which section states that it is an offence to not take care or protected documents? Is there a public interest defence?