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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Keogh v R. [2007] EWCA Crim 528 (07 March 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/528.html Cite as: [2007] EWCA Crim 528, [2007] 1 WLR 1500, [2007] WLR 1500, [2007] 3 All ER 789 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Aikens
T20060004
Strand, London, WC2A 2LL |
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B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
THE HONOURABLE MR JUSTICE DAVID CLARKE
____________________
KEOGH |
Appellant |
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- and - |
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R |
Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Perry Q.C and Mr L Mably for the Respondent
Hearing dates : Tuesday 13th February 2007
____________________
Crown Copyright ©
Lord Phillips CJ
Introduction
The Act
"2.—(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to defence which is or has been in his possession by virtue of his position as such. (2) For the purposes of subsection (1) above a disclosure is damaging if— (a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or (b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (c) 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. (3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to defence or that its disclosure would be damaging within the meaning of subsection (1) above. (4) In this section "defence" means— (a) the size, shape, organisation, logistics, order of battle, deployment, operations, state of readiness and training of the armed forces of the Crown; (b) the weapons, stores or other equipment of those forces and the invention, development, production and operation of such equipment and research relating to it; (c) defence policy and strategy and military planning and intelligence; (d) plans and measures for the maintenance of essential supplies and services that are or would be needed in time of war. |
3.—(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of— (a) any information, document or other article relating to international relations; or (b) any confidential information, document or other article which was obtained from a State other than the United Kingdom or an international organisation, being information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor. (2) For the purposes of subsection (1) above a disclosure is damaging if— (a) it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (b) 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. (3) In the case of information or a document or article within subsection (1)(b) above— (a) the fact that it is confidential, or (b) its nature or contents, may be sufficient to establish for the purposes of subsection (2)(b) above that the information, document or article is such that its unauthorised disclosure would be likely to have any of the effects there mentioned. (4) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above or that its disclosure would be damaging within the meaning of that subsection. (5) In this section "international relations" means the relations between States, between international organisations or between one or more States and one or more such organisations and includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation. (6) For the purposes of this section any information, document or article obtained from a State or organisation is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State or organisation to expect that it would be so held. |
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5.—(1) Subsection (2) below applies where— (a) any information, document or other article protected against disclosure by the foregoing provisions of this Act has come into a person's possession as a result of having been— (i) disclosed (whether to him or another) by a Crown servant or government contractor without lawful authority; or (ii) entrusted to him by a Crown servant or government contractor on terms requiring it to be held in confidence or in circumstances in which the Crown servant or government contractor could reasonably expect that it would be so held; or (iii) disclosed (whether to him or another) without lawful authority by a person to whom it was entrusted as mentioned in sub-paragraph (ii) above; and (b) the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of those provisions. (2) Subject to subsections (3) and (4) below, the person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1) above. (3) In the case of information or a document or article protected against disclosure by sections 1 to 3 above, a person does not commit an offence under subsection (2) above unless— (a) the disclosure by him is damaging; and (b) he makes it knowing, or having reasonable cause to believe, that it would be damaging; and the question whether a disclosure is damaging shall be determined for the purposes of this subsection as it would be in relation to a disclosure of that information, document or article by a Crown servant in contravention of section 1(3), 2(1) or 3(1) above. (4) A person does not commit an offence under subsection (2) above in respect of information or a document or other article which has come into his possession as a result of having been disclosed— (a) as mentioned in subsection (1)(a)(i) above by a government contractor; or (b) as mentioned in subsection (1)(a)(iii) above, unless that disclosure was by a British citizen or took place in the United Kingdom, in any of the Channel Islands or in the Isle of Man or a colony. (5) For the purposes of this section information or a document or article is protected against disclosure by the foregoing provisions of this Act if— (a) it relates to security or intelligence, defence or international relations within the meaning of section 1, 2 or 3 above or is such as is mentioned in section 3(1)(b) above; or (b) it is information or a document or article to which section 4 above applies; and information or a document or article is protected against disclosure by sections 1 to 3 above if it falls within paragraph (a) above. (6) A person is guilty of an offence if without lawful authority he discloses any information, document or other article which he knows, or has reasonable cause to believe, to have come into his possession as a result of a contravention of section 1 of the Official Secrets Act 1911. ………….. Authorised disclosures. 7.—(1) For the purposes of this Act a disclosure by— (a) a Crown servant; or (b) a person, not being a Crown servant or government contractor, in whose case a notification for the purposes of section 1(1) above is in force, is made with lawful authority if, and only if, it is made in accordance with his official duty. ……… (3) For the purposes of this Act a disclosure made by any other person is made with lawful authority if, and only if, it is made— (a) to a Crown servant for the purposes of his functions as such; or (b) in accordance with an official authorisation. (4) It is a defence for a person charged with an offence under any of the foregoing provisions of this Act to prove that at the time of the alleged offence he believed that he had lawful authority to make the disclosure in question and had no reasonable cause to believe otherwise. ………. 10.—(1) A person guilty of an offence under any provision of this Act other than section 8(1), (4) or (5) shall be liable – (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both; (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both. ……….." |
The basic issue
Article 6
Article 6 provides:
1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention Rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted…"
"a legislative interference with the presumption of innocence requires justification and must not be greater than necessary. The principle of proportionality must be observed."
"as the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification of the right pursues a legitimate aim and whether it satisfies the principle of proportionality…It is now well settled that the principle which is to be applied requires a balance to be struck between the general interests of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute"
"A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4th) 481, 493. This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access."
"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."
"The task of the court is never to decide whether a reverse burden should be placed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence."
The judgment
"98…
(7) However, it is legitimate and proportionate for Parliament to impose on the defendants a legal, persuasive burden to prove both his lack of knowledge as to the nature of the document and the effect of its unauthorised disclosure and also his lack of belief as to its nature and the effect of its unauthorised disclosure. There is "moral blameworthiness" in a Crown servant intentionally disclosing without authority a document which in fact relates to defence, or international relations or is from another state, when the disclosure is, in fact, "damaging". This is so even if there is doubt as to whether the Crown servant knows the nature of the document or doubt as to whether he knows or believes its unauthorised disclosure would be damaging. That is because the state cannot take chances with the unauthorised disclosure of documents covered by sections 2 and 3. Moreover, a responsible Crown servant should and would, before he intentionally makes an unauthorised disclosure, consider the nature of the document he is about to disclose and whether its unauthorised disclosure would be damaging. Therefore it is reasonable that he should have to prove his state of mind when he intentionally disclosed the document without authority to show that he was not acting irresponsibly and he is not 'morally blameworthy'.
(8) If the position were otherwise, then it would be easy for a maverick Crown servant to make unauthorised disclosure of documents covered by sections 2 and 3 and assert he had not committed an offence. Taking an offence under section 2, he would simply need to assert, in evidence, "I did not know or believe the document I disclosed without authority related to defence; nor did I know or believe that its disclosure would be damaging.". It would then be for the prosecution to disprove, beyond reasonable doubt, that this was not the state of mind of the defendant when he made the unauthorised disclosure. That would be a very difficult task indeed."
" 94. But in order to establish his defence under section 2(3), a defendant must also prove (on a balance of probabilities) that he "had no reasonable cause to believe that the [document]…would be damaging [as defined]". That means that he must show that he did not, in fact, believe, that unauthorised disclosure would be damaging. To do that it seems to me that the defendant would have to show one of two things. First, that he had considered all the ways that an unauthorised disclosure might be damaging, within the statutory definition. Having considered them he had come to the conclusion, or belief, that disclosure would not be damaging (in any of the defined senses) and also that it was not likely it would be damaging. Therefore he had "reasonable cause to believe" that the disclosure would not be damaging in the defined sense. Secondly, he had relied on someone else's assessment of whether an unauthorised disclosure was or was likely to be damaging; on the basis of what he was told, he believed that it would not be damaging (within the definition)."
95. I accept Mr Ellison's point that Crown servants can be expected to have some knowledge of the possible consequences of unauthorised disclosure of documents. But the wording of section 2(3), taken literally, would (in one situation at least) require the defendant to prove a high level of thought and consideration before he can establish his defence under this section. The defendant may well not have ready access to information that would enable him to conclude: "having considered all reasonable possibilities, I believe that disclosure of this document relating to defence would not be damaging; nor would it be likely to be so".
Submissions
The ingredients of the offence
"55. However, although the justification for applying the criminal law in this area is the harm that disclosure may cause, it would not be right to make disclosure criminal except where the discloser knows or can reasonably be expected to know that the disclosure would be likely to cause harm."
'No reasonable cause to believe'
Necessity
"Whenever a criminal intention is an essential ingredient of a crime the defendant is better placed to prove his intention that anyone else, but this does not relieve the prosecution of the need to prove criminal intention against him in the overwhelming majority of cases"
"118 –(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not"
Mr Tedd argued, with some reason, that if the prosecution could discharge the burden of proof in respect of the matters covered by the sections to which section 118 (5) referred, it was not easy to see why they could not do the same in respect of the offences with which this court is concerned.