LA3 Official Secrets

shann.w
Flashcards by shann.w, updated more than 1 year ago
shann.w
Created by shann.w over 5 years ago
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Flashcards for A2 Law, Official Secrets topic (LA3; Option 3 of the WJEC Law course)

Resource summary

Question Answer
Article 10(2) of the ECHR allows our freedom of expression to be restricted on the grounds of national security. What Acts of Parliament in the UK enforce this restriction? Official Secrets Acts 1911-1989
What type of case is brought under the OSAs? Criminal prosection (R v Defence)
Which court does someone go to if they're charged for an offence under OSA? Westminster Magistrates' Court
What do the 1911-1939 Acts cover? Spying, by real spies from foreign countries or traitors
The main Act is the 1989 one. What does it cover? Each section covers a specific type of secret information Covers people who work in security services, Crown Servants, government contractors and others who divulge secret information
What could happen if the government cannot stop someone from disclosing secret information by using OSA? Attorney-General may bring a case under Breach of Confidence and ask for an injunction to be granted, prohibiting publication
What was the 1989 passed to do, in regards to the old Acts? Get rid of the public interest defence from the 1911 Act Amend the wide criminal liability under Section 2 of the 1911 Act
What is the maximum sentence a 1911 Act carries, compared to the 1989 Act? 1911 - maximum life sentence 1989 - maximum 2 years, unlimited fines
Who should you use the Section 1 OSA 1911 to prosecute? When the villain is a member of the armed forces and/or is sending secret messages to the enemy
OSA 1911 What does the S1 OSA 1911 offence say? It is an offence for any person for any reason prejudicial to the safety or the interests of the state to: (a) approach/enter a prohibited place (b) make a sketch, plan, etc which could be useful to the enemy (c) obtain, publish or communicate any sketch, etc. which could be useful the enemy
OSA 1911 How is 'prohibited place' defined and under which section? Section 3 Includes: -any defence works -arsenal, naval, or air force station -camp, ship, aircraft belong to/occupied by the Crown
OSA 1911 What does Section 1(2) say? That if a person is acting without permission, then it is presumed that they are doing it for reasons prejudicial to the safety/interests of the state
OSA 1911 What happened in Chandler v Director of Public Prosecutions 1964 D charged with conspiring to damage aircraft carrying nuclear bombs CND supporters got inside nuclear arms airbase with hammers, intending to damage the aircraft Claimed their purpose was to prevent bombs from going off, and therefore they were not acting prejudicially to the state However, found guilty - not up to individuals to decide what is prejudicial to the state
OSA 1911 What happened in R v James 2008? Charged with an offence under S1(1)(c) OSA 1911 Betrayed Britain by passing coded messages to Iranian military in Afghanistan Loyalty to the UK 'wavered' because he thought he had been snubbed for promotion
OSA 1911 What happened in R v Devenney 2012? Collected official secrets from the submarine he worked on Attempted to set up covert meeting with Russian agents, but British Security Services intervened Guilty of S1(1)(c) offence - "classic story of betrayal"
OSA 1920 What does S1(1) say it is an offence to do? -Wear an unauthorised uniform -Make a false declaration -Forge a permit -Impersonate a government official ...for the purpose of gaining admission to a prohibited place, or for any other reason prejudicial to the state
OSA 1920 What does Section 2 say? Communication with a foreign agent is evidence of obtaining/attempting to obtain information which could be useful to an enemy
OSA 1920 What does Section 3 say? No person 'in the vicinity of a prohibited place shall obstruct or interfere with a military or police guard
OSA 1920 What did Adler v George 1968 decide in regards to S3? 'in the vicinity' to be read as 'in or in the vicinity of'
OSA 1920 What does Section 7 say it is an offence to do? Attempt to commit offences under the 1911 or 1920 Acts, or to do any preparatory act towards it
OSA 1989 Under what sections are the offences? Section 1(1) Section 1(3) Section 2(1) Section 3(1) Section 4(1) Section 5(2)
OSA 1989 What is the offence under Section 8(1)? Hold onto secret information beyond the official need for it, and obligates the person to properly protect secret information from accidental disclosure
OSA 1989 What type of offence are the offences under this Act? Strict liability - no guilty mind (mens rea) has to be proved
OSA 1989 What type of secret information does Section 1 cover? Security and Intelligence
OSA 1989 What is the offence under Section 1(1)? A person who is/has been a member of the security/intelligence services (or is subject to these provisions) is guilty of an offence if, without lawful authority, they disclose any information, document or other article relating to security and intelligence, which is in his possession by virtue of his position
OSA 1989 What does Section 1(9) say 'security and intelligence' information is? The work of, or in support of, the security and intelligence services or any part of them
OSA 1989 Who is considered as 'security and intelligence' services? MI5 MI6 National Crime Agency SAS GCHQ
OSA 1989 Summarise the Section 1(1) offence If any security/intelligence personnel disclose any information, document or other article relating to security/intelligence, that's come into their possession due to their position, then they will be guilty of an offence Disclosure does not have to be damaging Does not matter why they did it
OSA 1989 What happened in R v Shayler 2001? Former member of Security Service Charged with 3 offences under S1(1), S4(1) and 4(3) Argued FOE Article 10 (recent HRA) However, no defence - Article 10(2) allowed restriction on the grounds of national security
OSA 1989 Name some things that Section 1 covers? Secrets Technology Aircraft Information on spies Information on infiltration of terror groups Secret plans Personnel
OSA 1989 What does Section 1(3) say it is an offence to do? For a Crown Servant or government contractor to make an unlawful and damaging disclosure of any information, document or other article relating to security/intelligence, which has come into their possession by virtue of their position
OSA 1989? What is a Crown Servant/government contractor? What section defines it? Defined by Section 12 OSA 1989 GC - person fulfilling contract issued by the state, e.g. cleaner MPs Police officers Members of the Armed Forces Civil servants
OSA 1989 How would information be 'damaging'? According to Section 1(4)(a) and (b) Causes damage to any work, or any part of the security and intelligence services Or unauthorised disclosure would be likely to have this effect
OSA 1989 Is there a defence for a Section 1(3) offence? Yes - Section 1(5) Prove that at the time of the alleged offence, the person did not know and did not have reasonable cause to believe that the information related to security and intelligence, or that it's disclosure would be damaging
OSA 1989 What is meant by 'reasonable cause'? A 'reasonable man' would not have realised the same Would be judged by a jury
OSA 1989 - S2 What type of secret informaiton does Section 2 cover? Defence (of the Realm)
OSA 1989 - S2 What does S2(1) say it is an offence to do? For a CS/GC to unlawfully make a damaging disclosure of any information, document or other article relating to defence, which has come into his possession by virtue of his position
OSA 1989 - S2 What type of information is covered by S2? Section 2(4) (a) size, shape, logistics, order of battle, deployment, training of the Armed Forces (b) weapons, equipment of the forces (c) defence policy, strategy, planning (d) plans and measures to maintain supplies in the event of war
OSA 1989 - S2 How will a disclosure be damaging? S2(2) (a) damages the capability of the armed forces, or leads to loss of life or injury (b) endangers the interests of the UK abroad, or the safety of UK citizens abroad (c) disclosure would be likely to have these effects
OSA 1989 - S2 Is there a defence for a person charged under S2(1)? S2(3) Prove that at the time of the alleged offence, he did not know and did not have reasonable cause to believe that the information related to defence, or that its disclosure would be damaging
OSA 1989 - S3 What does Section 3 cover? Disclosure of information gained from international relations
OSA 1989 - S3 What is the offence under S3(1)? For a Crown Servant or government contractor to unlawfully make a damaging disclosure of any information, document or other article relating to international relations, or anything obtained from a State other than the UK or from an international organisation, where that information has been gained due to his position
OSA 1989 - S3 How will a disclosure be 'damaging' under S3(2)? (a) it endangers the interests of the UK abroad, or endangers the safety of UK citizens abroad (b) or its disclosure would be likely to have this effect
OSA 1989 - S3 What happened in R v O'Connor and Keogh 2007? Leaked memo from USA about a conversation between Bush and Blair Keogh leaked - S3(1) offence O'Connor published - S5(2) offence
OSA 1989 - S3 Is there a defence for a S3(1) offence? Yes, S3(4) Prove that at the time of the alleged offence, he did not know and did not have reasonable cause to believe that the information related to international relations, or that it's disclosure would be damaging
OSA 1989 - S4 What type of information does Section 4 cover? Information relating to crime and special investigative powers
OSA 1989 - S4 What is the offence under S4(1)? For a Crown Servant or government contractor to unlawfully make a damaging disclosure of any information, document or other article relating to crime and special investigative powers, which he has in his possession by virtue of his position
OSA 1989 - S4 What does S4(2) say the consequences of disclosing this type of information are, of which would result in an offence being committed? (a)(i) results in the commission of an offence (ii) facilitates an escape from legal custody (iii) impedes the prevention or detection of offences (iv) or its disclosure would be likely to have any of these effects
OSA 1989 - S4 S4(3) gives 2 ways in which this type of information can be obtained. What are they? 1) by interception of communications 2) by the actions of the police under the Security Services Act 1989 (e.g. following and other surveillance)
OSA 1989 - S4 Is there a defence for a S4(1) offence? Yes - S4(4): did not know and did not have reasonable cause to believe that disclosure would have those effects S4(5) did not know and did not have reasonable cause to believe that the information applied to this section
OSA 1989 - S5 What does Section 5 refer to? The disclosure of information received in confidence
OSA 1989 - S5 Who is Section 5 aimed at? People other than security services, Crown Servants and government contractors E.g. press and journalists who have received secret information and pass it on or publish it
OSA 1989 - S5 What type of offence is a S5 offence? Partial strict liability
OSA 1989 - S5 The offence under S5 is not under S5(1) like the other sections. What does S5(1) do instead? It defines the type of information that falls within the S5 offence and how it came into their possession
OSA 1989 - S5 What does S5(1) say? (i) disclosed to him by a CS/GC without lawful authority (ii) entrusted to him by a CS/GC on the terms that it be held in confidence (iii) disclosed to him without lawful authority by a person who had received it as mentioned by (ii) above
OSA 1989 - S5 What is the offence under S5(2)? Person discloses the information without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure
OSA 1989 - S5 What does S5(3) say that should occur for an offence to be committed? (a) the disclosure is damaging (b) he makes it knowing, or having reasonable cause,t hat it is damaging
OSA 1989 - S5 How will a disclosure be damaging for a S5 offence? Dependent upon the category of information E.g. if the information is about defence, 'damaging' defined under S2(2)
OSA 1989 - S5 Is there a defence for a S5(2) offence? Yes, S5(3) can be used as a defence D can argue that he didn't know or have reasonable cause to believe that it would be damaging
OSA 1989 - S7 What does S7(1) say is a defence for an OSA 1989 offence? If a disclosure made by a CS/GC is made in accordance with his official duty, then he is not committing an offence
OSA 1989 - S7 What does S7(2) is a defence? If the information was disclosed as part of their job or with the permission of a person with the authority to allow disclosure
OSA 1989 - S7 What does S7(4) say that a person using a S7 defence has to prove? That they believed they had lawful authority or that they had no reasonable cause to believe that they did not have lawful authority
OSA 1989 - Privilege What are people in Parliament protected by? Parliamentary privilege Have complete freedom of speech E.g. mentioned Kim Philly in Parliament before the truth came out about his betrayal However, cannot mention it outside of Parliament
OSA 1989 What are the 2 common law defence? Duress Necessity (duress of the circumstances)
OSA 1989 What is the defence of duress? The D is under the threat of death or physical harm to himself or another, and this leads them to commit a specifically stated crime (e.g. go and rob Barclays Bank or I'll shoot your wife - if robs Natwest, defence fails)
OSA 1989 What is the defence of necessity? Where the threat of death/injury is imminent, and the D is forced to commit a crime because of the emergency situation they're in E.g. a fire forces the D to smash a window of a house
OSA 1989 Where did the test for the defence of necessity come from? R v Martin 1989 Did the D act in the way they did because they had reason to fear that death/serious injury would result? Would a reasonable person with the same characteristics have acted in the same way?
OSA 1989 What happened when Shayler tried to use the defence of duress and necessity in R v Shayler 2001? Judge said he could not use it Danger was not to himself, and he was not responsible for the people to whom the danger was directed at Could not identify the people he was helping
OSA 1989 What happened when Catherine tried to use the defence of duress and necessity in R v Catherine Gun? Able to ascertain who she was saving Prosecutors dropped the case...
OSA Breach of Confidence Where can BOC for OSA be traced back to? AG v Jonathon Cape 1976
OSA Breach of Confidence How would the AG try to use BOC and why? If OSA is unable to prevent disclosure, AG will go to court under BOC and ask for an injunction to prevent disclosure
OSA Breach of Confidence What is the test for OSA Breach of Confidence? 1 - is the disclosure a breach of confidence? 2 - does the public interest require that the information be restrained? 3 - is there a greater public interest that requires disclosure?
OSA 1989 Breach of Confidence How will the first part of the test be passed? Certain relationships create an automatic bond of confidence, e.g. solicitor/client Information explicitly or impliedly communicated on the basis that it be kept in confidence Newspaper bound as well on the basis that a reasonable man would have realised it was confidential information
OSA 1989 Breach of Confidence What would need to happen for the 2nd part of the test to be passed? Articles must produce 'harm'
OSA 1989 Breach of Confidence What did Lord Advocate v Scotsman Publications 1990 say about what is 'harm'? Publications by former members of the security services will always be contrary to the public interest
OSA 1989 Breach of Confidence What may justify disclosure, and pass the 3rd part of the test? Must prove there is a greater public interest to disclose If information is disclosed to expose the wrongdoings of others, it may be justified However, should be made to those who can investigate - not to the national press
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