LA3 Official Secrets

Introduction
1. Limitation to Article 10 on the grounds of national security
2. Criminal prosecution, so R v (Name)
3. Currently 4 Acts: 1911, 1920, 1939 and 1989 (main Act)
  1. Other Acts still in force - 1911-1939 Acts for spying, i.e. spies from foreign countries and traitors
4. 1989 Act removed the 'public interest' defence from 1911 Act and to amend the wide criminal liability under Section 2 1911
  1. 1989 Act - maximum sentence = 2 years and unlimited fines
5. 1989 Act - each section creates an offence overing a specific area of information
6. Cases always go to Westminster Magistrates' Court
7. If government cannot keep people quiet using the OSA, then Attorney-General can step in under Breach of Confidence (different to normal BOC) and claim an injunction to stop publication of secret information
Official Secrets 1911-1939
1. S1 OSA 1911 - maximum of a life sentence
  1. Use this section where the villain is a member of the armed forces, or is sending secret messages to an enemy
  2. Offence for any person 'for any reason prejudicial to the safety or interests of the state to (a) approach or enter a prohibited place; (b) make a sketch or plan that might be useful to the enemy; (c) obtain, publish or communication any sketch, etc. which could be useful to the enemy
  3. S3 - 'prohibited place' includes any defence works, arsenal, naval, or air force station, or any camp, ship or aircraft belonging to the Crown
  4. Section 1(2) if the person is acting without permission, it is presumed that he is doing it for reasons prejudicial to the state
    1. Chandler v Director of Public Prosecutions 1964 - conspiring to damage aircraft that carried nuclear bombs; not up to individuals to decide what is prejudicial to the state
  5. R v James 2008 - betrayed Britain by passing coded messages to Iranian military in Afghanistan
  6. R v Devenney 2012 - collected information from the submarine he worked on
2. OSA 1920
  1. S2 - communication with a foreign agent is evidence of obtaining or attempting to obtain information which could be useful to an enemy, contrary to S1 OSA 1911
  2. S1(1) - offence to (i) wear an unauthorised uniform; (ii) make a false declaration; (iii) forge a permit; (iv) impersonate a government official, for the purpose of ganging admission to a prohibited place
  3. S3 - no person 'in the vicinity' of a prohibited place shall obstruct/interfere with military or police guard
    1. Adler v George 1968 - menas 'in or in the vicinity of'
  4. S7 - offence to attempt to commit offences under the 1911 or 1920 Acts, or to do any preparatory act towards it
3. OSA 1939 - Section 6 makes an amendment to the 1911, allowing a chief officer of police to require a suspect to give information in connection with a S1 1911 offence, with the permission from the Secretary of State
1989 Act overview
1. Offences under S1(1); S1(3); S2(1); S3(1); S4(1) and S5(2)
2. S1(1) for members of security services
3. Other offences for Crown Servants and Government contractors
4. S5 offence for everyone else, e.g. journalists who receive information and publish, or pass it on, etc.
5. S8(1) - offence to hold onto secret information beyond the need to do so
6. Strict liability offences
Section 1 OSA 1989 - Security and Intelligence
1. Section 1(1) - offence for a person who is/has been a member of the security and intelligence services, or a person notified he is subject to the provisions of this subsection to disclose information without lawful authority any information, document or other article relating to security and intelligence, and which is in his possession by virtue of his position
  1. MI5, National Crime Agency, MI6, SAS, GCHQ
  2. R v Shayler 2001
  3. R v Catherine Gun (successfully used defence of duress)
2. Covers info including secrets, technology, equipment, information on spies, information on the infiltration of terrorist groups, secret plans, movements, personnel, etc.
3. Section 1(3) - a person who is or has been a Crown Servant or government contractor is guilty of an offence if, without lawful authority, they make a damaging disclosure of any information, document or other article relating to security or intelligence, and has come into his possession by virtue of his position
  1. S12 - defines Crown Servant/government contractor
  2. Section 1(4)(a) and (b) say a disclosure will be damaging if 'it causes damage to the work of the security and intelligence services, or its disclosure would be likely to have this effect'
  3. Section 1(5) defence - did not know and had no reasonable cause to believe that the information related to security or intelligence, and that it's disclosure would be damaging
Section 2 OSA 1989 - Defence of the Realm
1. S2(1) - offence for a Crown Servant or government contractor to make a damaging disclosure of any information, article or other document relating to defence, which has come into their possession by virtue of their position
2. S2(4) says 'defence' information includes (a) the size, shape, order of battle, deployment and training of the armed forces; (b) weapons, equipment, invention and development of such equipment; (c) defence policy and strategy; (d) plans to maintain supplies that would be needed in the time of war
3. S2(2) a disclosure is damaging if (a) it damages the capability of the armed forces or leads to injury/loss of life or damage to equipment; (b) endangers the interests of the UK abroad, or UK citizens abroad; (c) disclosure would be likely to have these effects
4. S2(3) a defence for anyone caught - did not know and had no reasonable cause to believe that the information related to defence, and that its disclosure would be damaging
5. Crown Servant/government contractor defined under S12
Section 3 OSA 1989 - Disclosure of information gained from international relations (unlikely to be tested)
1. Section 3(1) - offence for a Crown Servant/government contractor to make an unlawful damaging disclosure of (a) any information, document or other article relating to international relations, or (b) any confidential information which was obtained from a State other than the UK or international organisation where that information has been gained in virtue of his position
2. Section 3(2) - a disclosure will be damaging if (a) it endangers the interests of the UK abroad, or UK citizens abroad, or (b) its disclosure would be likely to have this effect
3. S3(4) defence to prove that he did not know and did not have reasonable cause to believe that the information related to international relations, or that its disclosure would be damaging
Section 4 OSA 1989 - Crime and Special Investigative Powers
1. Section 4(1) - offence for a Crown Servant/government contractor to make an unlawful damaging disclosure of any information, document or other article which relates to crime and special investigative powers, and got the information as a result of his position
2. Section 4(2)(a) - the information to which Section 4(1) applies has the following the consequences if disclosed: (i) results in the commission of an offence; (ii) facilitates an escape from custody; (iii) impedes the prevention/detection of offences; (iv) its unauthorised disclosure would be likely to have these effects
  1. Therefore it is the effect of the disclosure that creates a criminal offence
3. Defences under S4(4) and S4(5) - did not know and did not have reasonable cause to believe that the disclosure would have that effect; or did not know and did not have reasonable cause to believe that the information was information to which this section applies
Section 5 - Disclosure of information received in confidence
1. Partial strict liability offence
2. Aimed at preventing disclosure by other people, e.g. press, roommates, etc.
3. S5(1) defines the type of information that falls into this section and how it came into the person's possession
  1. (i) Disclosed to him by a Crown Servant or government contractor without lawful authority
  2. (ii) Entrusted to him by a CS/GC on the terms that it be held in confidence
  3. (iii) Disclosed to him without lawful authority by a person to whom is was entrusted as mentioned in S5(1)(ii)
4. S5(2) Offence to disclose information without lawful authority, or having reasonable cause to believe that it is protected against disclosure
5. S5(3) To commit an offence, the following has to occur: disclosure made is damaging and he makes it knowing, or having reasonable cause to believe that it would be damaging
  1. Therefore, could be a defence if D can prove he did not know/have reasonable cause to believe it would be damaging
Common law defence of duress and necessity
1. Duress - D under threat of death/physical harm to himself or another, and D commits a specifically stated crime (lesser of two evils)
2. Necessity - Threat of death/physical harm because of the emergency situation the D is in, e.g. a fire forces someone to smash a window of a house
  1. Test from R v Martin 1989 - did the D act the way they did because they had reason to fear that death/injury would result and would a reasonable person, with the characteristics of the D, have acted in the same way?
3. R v Shayler 2001 - unsuccessful as could not identify those he saved
4. R v Catherine Gun - successful as she could identify who she saved
OSA Breach of Confidence
1. Goes back to AG v Jonathan Cape 1976
  1. Latest case - (Scottish) Lord Advocate v Scotsman Publications
2. Different test to normal BOC from Campbell v MGN
3. Step 1 - is the publication a BOC?
  1. Information is confidential and it was disclosed
  2. Newspapers bound - reasonable man would have realised the information should have been kept confidential
4. Step 2 - does the public interest require that the information be restrained?
  1. Articles produce 'harm' - against the public interest to allow publication
  2. Lord Advocate v Scotsman Publications 1990 - allowing publication by a former member of the security services would always be contrary to the public interest
5. Step 3 - is there a greater public interest that requires disclosure?
  1. E.g. Sunday Times in Spycatcher cases - even though against public interest to allow publication, argued there was a greater public interest to publish
  2. If confidential information is revealed to expose the wrongdoing of others, then it may justify disclosure
6. Spycatcher Cases - 1987-88
Section 7 - Authorised disclosures
1. A defence
2. S7(1) - if disclosure is made in accordance with his duty, he is not committing an offence
3. S7(2) If disclosure is made as part of their job with the permission of a person with authority to allow disclosure - not committing an offence
4. S7(4) However, have to prove that they believed they had lawful authority, or had no reasonable cause to believe that they did not have lawful authority

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LA3 Official Secrets

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