Protection of Official Data report [2020] EWLC 395 (September 2020)


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Law Commission

Reforming the law

Protection of Official Data Report

HC 716

Law Com No 395

Law

Commission

Reforming the law

Law Com No 395

Protection of Official Data

Report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 1st September 2020

HC 716

© Crown copyright 2020

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.lawcom.gov.uk.

Any enquiries regarding this publication should be sent to us at [email protected]

ISBN 978-1-5286-2113-7

CCS0820043516       09/20

Printed on paper containing 75% recycled fibre content minimum

Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office

The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chairman

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The terms of this report were agreed on 1st July 2020.

The text of this report is available on the Law Commission's website at

http://www.lawcom.gov.uk.

Contents

PAGE

The genesis of this report

Classified evidence

The Report

Acknowledgements

CRIMINAL LAW’S RESPONSE TO ESPIONAGE

Introduction

Historical overview

The Official Secrets Act 1911

Official Secrets Act 1920

Official Secrets Act 1939

Summary of current law and examples

The Criminal Law’s protection against cyber espionage

Unauthorised acts with intent to impair or recklessness as to impairment of a computer

Ensuring computer networks are adequately protected

RECOMMENDATIONS FOR REFORM

Introduction

A new statute

Replacing the Official Secrets Acts 1911-1939 with a new statute

Recommendation 1.

Problems with the current law

Replacing “enemy” with “foreign power”

Recommendation 2.

Replacing “safety or interests of the state” with “national security”

Recommendation 3.

The fault element: purpose prejudicial

Recommendation 4.

The fault element: benefit to a foreign power (“useful to an enemy”)

Recommendation 5.

The list of prohibited places

Recommendation 6.

Archaic language to be reformed and elements to be retained

Recommendation 7.

Reverse burdens of proof

Recommendation 8.

Redundant provisions

Recommendation 9.

Extraterritoriality

Recommendation 10.

REQUIREMENT TO PROVE DAMAGE

Introduction

The background to the Official Secrets Act 1989

The requirement to prove damage

Classified evidence

Analysis

Consultation question 6

Provisional conclusion 10

Analysis

Recommendation 11.

Introduction

Liability for the security and intelligence agencies

Provisional conclusion 11

Consultation responses

Analysis

Recommendation 12.

Reform of the notification process and the definition of “member of the

security and intelligence agencies”

Provisional conclusion 12

Consultation question 7

Consultation responses

Analysis

Recommendation 13.

Sentencing

Provisional conclusion 13

Consultation responses

Classified evidence

Analysis

Recommendation 14.

Access to legal advice

Consultation responses

Classified evidence

Analysis

Recommendation 15.

Recommendation 16.

Recommendation 17.

Prior publication

Provisional conclusion 15

Consultation responses

Analysis

Recommendation 18.

Categories of protected information

Consultation question 8

Consultation responses

Analysis

Recommendation 19.

Sensitive economic information

Consultation responses

Analysis

Recommendation 20.

Extraterritoriality

Provisional conclusion 16

Consultation responses

Classified evidence

Analysis

Recommendation 21.

Optimal legislative vehicle for reform

Provisional conclusion 17

Consultation responses

Analysis

OFFENCES

Introduction

Data sharing between public bodies

Unauthorised disclosure offences and the protection of official data

Consultation question 10

Consultation responses

Analysis

Recommendation 22.

Section 55 of the Data Protection Act 1998 / section 170 of the Data

Protection Act 2018

Consultation question 11

Consultation responses

Analysis

Recommendation 23.

National security disclosure offences

Consultation question 12

Consultation responses

Analysis

Recommendation 24.

AND TRIAL

Introduction

The Protocol

Background to the Protocol

The seven-step process

Provisional conclusion 18

Consultation questions 13 and 14

Consultation responses

Analysis

Recommendation 25.

Recommendation 26.

Recommendation 27.

Recommendation 28.

The ability to exclude members of the public from the court during proceedings

Provisional conclusion 19

Consultation responses

Analysis

Recommendation 29.

Jury Checks

Provisional conclusion 20

Consultation responses

Analysis

Recommendation 30.

Issues that apply more generally to criminal trials in which sensitive information may be disclosed

Provisional conclusion 21

Consultation responses

Analysis

Recommendation 31.

Introduction

The structure of this part of the report

Our approach in the consultation paper to the statutory commissioner

The Civil Service Commission

Existing external mechanisms

Proposals for a statutory commissioner

Our approach in the consultation paper to the public interest defence 173

Responses of a general nature

Insufficient attention to the benefits of a public interest defence

Trust and loyalty of civil servants

Risk to others and national security

A public interest defence would create legal uncertainty

A public interest defence might “open the floodgates”

Open justice

Conclusion

HUMAN RIGHTS

Introduction

What does compliance with Article 10 require?

Is the interference prescribed by law?

Does the interference pursue a legitimate aim?

Is the interference necessary in a democratic society?

Duty of discretion

Effective means of remedying the wrongdoing

How would Shayler be decided today?

Summary of the judgment

How would the case be decided today?

The offences applicable to journalists

Consultation responses

Does Article 10 mandate a public interest defence?

Consultation responses

Conclusion

INVESTIGATIVE MECHANISM

The statutory commissioner and consultation responses

The Investigatory Powers Commissioner’s Office (“IPCO”)

What would the statutory commissioner model look like?

Who can make disclosure to the Statutory Commissioner?

Evidence requirement

The SC’s duty upon receiving a complaint

Outcome of investigation

Time-sensitive complaints

Conflicts of interest

Appeals process

The statutory commissioner and its relation to the public interest defence 237

Injunctions and prior restraint

What is an injunction?

The liability of third parties

The purpose of injunctions

Injunctions and the use of the SC

Conclusion

Recommendation 32.

Introduction

Our Consultation Paper

Our recommendation for a public interest defence

Why is a public interest defence desirable?

What is distinctive about a public interest defence?

A true public interest defence

Is it necessary to have different defences for different categories of defendant?

Burden of proof

Compliance with Article 6(2)

Public interest and the method of disclosure

Alternative models

A subject-matter approach

A broader, two-fold approach

A public interest defence for journalists

Conclusion

Recommendation 33.

Recommendation 1.

Recommendation 2.

Recommendation 3.

Recommendation 4.

Recommendation 5.

Recommendation 6.

Recommendation 7.

Recommendation 8.

Recommendation 9.

Recommendation 10.

Recommendation 11.

Recommendation 12.

Recommendation 13.

Recommendation 14.

Recommendation 15.

Recommendation 16.

Recommendation 17.

Recommendation 18.

Recommendation 19.

Recommendation 20.

Recommendation 21.

Recommendation 22.

Recommendation 23.

Recommendation 24.

Recommendation 25.

Recommendation 26.

Recommendation 27.

Recommendation 28.

Recommendation 29.

Recommendation 30.

Recommendation 31.

Recommendation 32.

Recommendation 33.

APPENDIX 1: LIST OF THOSE WHO RESPONDED TO THE

CONSULTATION PAPER

Government and public bodies

Media organisations

Other legal organisations and law firms

Other firms

Non-governmental entities

Academic

Select individual responses

it is very clear that the Official Secrets Act regime is not fit for purpose and the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.1

THE GENESIS OF THIS REPORT

the impact and sensitivity of leaks has increased over time... On a very practical level the Official Secrets Act 1989 does not cover the considerable changes that have occurred in technology, global networks and social media.

Our overall goal is a strengthened commitment to open government and transparency especially through open data, with clearer boundaries, and a safe space for policy discussion. I want to be able to provide those handling sensitive [government] information with the clearest possible expectation of what is required of them, and in instances where things go wrong a clear framework that sets out the consequences.

The terms of reference

Disclosure Act 1998 and the protections for information exempt from release under the Freedom of Information Act 2000. The Review will take a holistic approach and examine how the legislative landscape could be rationalised and made more coherent.

The consultation

CLASSIFIED EVIDENCE

THE REPORT

(including, for example, journalists). Given the absence of a prior duty of loyalty, members of the public will likely be afforded greater latitude under the ECHR than public servants in the exercise of their Article 10, freedom of expression, rights.

ACKNOWLEDGEMENTS

Report); Dr Oliver Butler (lawyer in the early stages of the Report); Tatiana Kazim (research assistant); Alex Davidson (research assistant in the early stages of the Report); and Amy Woolfson (research assistant in the early stages of the Report).

PART I

Espionage Offences

Chapter 2: The Official Secrets Acts 1911-1939 and the Criminal Law’s Response to Espionage

INTRODUCTION

HISTORICAL OVERVIEW

The Official Secrets Act 1911

A sub-committee of the Committee on Imperial Defence was established to examine the extent of this problem. One of the recommendations made by the Committee was the strengthening of the provisions contained in the OSA 1889. The Committee also recommended that these provisions should be given effect in a new Act. To this end, it was further recommended that the requisite Bill should be introduced by the Secretary of State for War as a “national defence” precaution, rather than by the Home Secretary or the Attorney General. This task ultimately fell to Viscount Haldane, the Secretary of State for War.11

Official Secrets Act 1920

purposes of espionage.

practice due to more modern methods of spying then being adopted.14

From a legal perspective, a better solution would have been to repeal the 1911 Act and reorganise the existing and new provisions into a clearer and more logical framework.15

Official Secrets Act 1939

SUMMARY OF CURRENT LAW AND EXAMPLES

Espionage by trespass/proximity

he shall be guilty of felony.

“prohibited place” could include, for example, military bases, nuclear fuel sites, or a government communications station.19

Examples of current law

Espionage by information gathering/communication

he shall be guilty of felony.

Example

Other criminal offences protecting sensitive sites

THE CRIMINAL LAW’S PROTECTION AGAINST CYBER ESPIONAGE

Unauthorised access to computer material

Unauthorised access with intent to commit/facilitate further offences

and the offence he intends to commit or facilitate is referred to below in this section as the further offence.

Example

Unauthorised acts with intent to impair or recklessness as to impairment of a computer

Example

Impairing a computer such as to cause serious damage

Example

ENSURING COMPUTER NETWORKS ARE ADEQUATELY PROTECTED

To establish a legal framework to ensure that essential services and selected digital service providers within the UK put in place adequate measures to improve the security of their network and information systems, with a particular focus on those services which if disrupted, could potentially cause significant damage to the UK’s economy, society and individuals’ welfare; and to ensure serious incidents are promptly reported to the competent authorities.42

Chapter 3: The Official Secrets Acts 1911-1939: Recommendations for Reform

INTRODUCTION

A NEW STATUTE

Replacing the Official Secrets Acts 1911-1939 with a new statute

Provisional conclusion 8

We provisionally conclude that the Official Secrets Acts 1911-1939 ought to be repealed and replaced with a single Espionage Act. Do consultees agree?44

Consultation responses

Recommendation 1.

PROBLEMS WITH THE CURRENT LAW

Replacing “enemy” with “foreign power”

Provisional conclusion 1

We provisionally conclude that the inclusion of the term “enemy” has the potential to inhibit the ability to prosecute those who commit espionage. Do consultees agree?51

States persons;

Consultation question 3

Is the list of foreign entities contained in the Espionage Statutes Modernization Bill a helpful starting point in the domestic context? Do consultees have views on how it could be amended?54

Consultation responses

We agree that the potential replacement term ‘foreign power’ would appear to be sufficient and that the wording would need to be wide enough to make the offence apply to UK residents, not simply British citizens.56

...if a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.57

Changing [enemy] to “foreign power” broadens the term far too much. This leads to lack of clarity on how to handle the passing of information by organisations such as NGOs or civil society groups. In the context of Brexit, as one example, a group could be accused of supporting EU positions or passing on information in negotiations. This activity is clearly not espionage and should not be treated as such - nor the information that they pass on to media. As a result of this proposed legislation anyone that published an intelligence- or foreign affairs-related story based on a leak would be open to criminal charges.58

The list of entities and organisations is a helpful starting point. It would not be unreasonable under (4) for the prosecution to be able to prove this element by reference to a non-exhaustive list of terrorist organisations designated by the state, in addition to defining “foreign power” so as to include, for example, nation states. Presumably there will be no requirement for the prosecution to prove which foreign power/organisation would benefit by the commission of the offence. It is agreed that in the domestic context the definition should refer to UK residents.60

The very broad ranges of possible meanings of “foreign power” at 2.139 show how far the interpretation of such a substitution could extend, from business reporting to reporting of terrorism.61

Classified evidence

P creates backups in the UK of the department’s corporate email and file storage system. P is compelled under the foreign state’s national security legislation to share this information with the foreign state’s intelligence services, who use it to target UK interests.

Analysis

Foreign power means:

Recommendation 2.

Replacing “safety or interests of the state” with “national security”

Consultation question 1

Should the term “safety or interests of the state”, first used in the 1911 Act, remain in any new statute or be replaced with the term “national security”?66

Consultation responses

The current wording should be replaced with “national security”. It is a concept more readily capable of definition and it also serves to narrow the scope of the offence.67

If there is no definition set down in the legislation, “national security” could in practice become as broad as “safety or interests of the state”. This is especially concerning when the information used to assess the risk of national security may not be made public during the course of any trial under the cover of public interest immunity. Prosecutions should be as transparent as possible and the public can have a greater confidence that the legislation will not be misused if the definition of national security is as precise as possible.72

The Law Commission does not provide any definition of the term "national security” despite suggesting that this term should replace the more specific wording “safety or interests of the state”. This is not a like-for-like swap and simply introduces a different, wide-reaching and equally vague replacement.73

It is important that the law continues to protect the “safety or interests” of the UK and not only its security. Espionage against the UK is not conducted, and never has been, solely with the aim of prejudicing our national security. The experience of HMG [Her Majesty’s Government] and the governments of allied states is that espionage is frequently targeted at and can do significant damage to important national interests that fall (or may fall) outside the scope of national security.74

Analysis

Consultation Paper was that the term “national security” is narrower than the term “safety or interests of the state”.

Recommendation 3.

The fault element: purpose prejudicial

Consultation question 2

Do consultees have a view on whether an individual should only commit an offence if he or she knew or had reasonable grounds to believe that his or her conduct might prejudice the safety or interests of the state/national security?80 81

Consultation responses

... that the standard is that the Defendant knew or had reasonable grounds to believe that their conduct “would” [rather than “might”] prejudice national security .81

Analysis

Recommendation 4.

The fault element: benefit to a foreign power (“useful to an enemy”)

he shall be guilty of felony.

Provisional conclusion 3

We have provisionally concluded that an offence should only be committed if the defendant knew or had reasonable grounds to believe his or her conduct was capable of benefitting a foreign power. Do consultees agree?84

Consultation responses

News Group Newspapers proposes that the same standard is adopted for both offences [and] proposes that the standard is that the defendant knew or had reasonable grounds to believe that their conduct “would’ ... benefit a foreign power.85

It is not clear though how it is that the prosecution will prove this element of the offence. Is it intended, for example, that it will be sufficient for the prosecutor to lead evidence of the types of behaviour which it might reasonably be considered capable of benefitting foreign power?86

A remote possibility of future benefit would seem to suffice to establish fault under this wording.87

We believe the law would be too narrowly framed if it required the defendant to know or have reasonable grounds to believe that their conduct was capable of benefitting a foreign power. A requirement in those terms would enable a person who knew that their conduct was prejudicial to the UK to escape prosecution for espionage on the basis that although they suspected they might be dealing with a foreign power, there were in fact no grounds on which they could reasonably believe that to be the case.we therefore consider the law should require the defendant to know or have reasonable grounds to believe that they are dealing with a foreign power, or to suspect that they may be.88

Analysis

Recommendation 5.

The list of prohibited places

The list of prohibited places no longer accurately reflects the types of sites that are in need of protection. Do consultees agree?92

Such a list would be enacted in primary legislation, but would be capable of amendment by way of Statutory Instrument subject to the affirmative resolution procedure in Parliament. We did not, however, believe that this power should only apply to Crown or Royal land.

Consultation question 4

We consider that a modified version of the approach taken in the Serious Organised Crime and Police Act 2005 is a suitable alternative to the current regime. The Secretary of State would be able to designate a site as a “protected site” if it were in the interests of national security to do so. Do consultees agree?93

Consultation responses

... out of date and under-inclusive, omitting, for example, places such as data centres at which sensitive information is stored.94

In principle we agree, provided that the list does properly relate to national security and does not end up being widened to include, for example, council offices or schools.97

Analysis

Recommendation 6.

Archaic language to be reformed and elements to be retained

Provisional conclusion 2

Any redrafted offence ought to have the following features:

Provisional conclusion 5

There are provisions contained in the Official Secrets Acts 1911-1939 that are archaic and in need of reform. Do consultees agree?

Provisional conclusion 6

We consider that the references in the Official Secrets Acts 1911 and 1920 to sketches, plans, models, notes and secret official pass words and code words are anachronistic and in need of replacement with a sufficiently general term. Do consultees agree?

Consultation responses

Journalists who obtain or gather information (including information about prohibited places) for the purposes of journalistic activity should not be committing an espionage offence.104

This thus has the potential to severely impact on the role of journalists to receive as well as to impart information... As a point of principle (irrespective of whether they publish) journalists who receive, gather or obtain information of the sort covered by OSA 1911, including about prohibited places, should not be under the threat of prosecution, if there is a legitimate public interest in their possession of such information, even if it is not published.105

Analysis

Recommendation 7.

Reverse burdens of proof

Consultation question 5

Bearing in mind the difficulties inherent in proving the commission of espionage, do consultees have a view on whether the provisions contained in the Official Secrets Acts 1911 and 1920 intended to ease the prosecution’s burden of proof are so difficult to reconcile with principle that they ought to be removed or do consultees take the view that they remain necessary?113

Consultation responses

Analysis

Recommendation 8.

Redundant provisions

No person in the vicinity of any prohibited place shall obstruct, knowingly mislead or otherwise interfere with or impede, the chief officer or a superintendent or other officer of police, or any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty in relation to the prohibited place, and, if any person acts in contravention of, or fails to comply with, this provision, he shall be guilty of a misdemeanour.

Any person who attempts to commit any offence under the principal Act or this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence under the principal Act or this Act, shall be guilty of a felony or a misdemeanour or a summary offence according as the offence in question is a felony, a misdemeanour or a summary offence, and on conviction shall be liable to the same punishment, and to be proceeded against in the same manner, as if he had committed the offence.

Consultation responses

Analysis

Recommendation 9.

Extraterritoriality

Provisional conclusion 7

The territorial ambit of the offences ought to be expanded so that the offences can be committed irrespective of whether the individual who is engaging in the prohibited conduct is a British Officer or subject, so long as there is a “sufficient link” with the United Kingdom. Do consultees agree?121

Consultation responses

We favour expanding [the territorial ambit] so that the offences can be committed overseas (i) by any British citizen or resident and (ii) by any other person where there is a sufficient link to the UK. We favour defining such a link to include cases (i) where the espionage is carried out remotely by attacking computer servers, computers or other electronic equipment sited in the UK or on which UK-related information is being held, processed or transmitted (regardless of whether the computers etc. are in public or private ownership), and (ii) where the information is held in a UK embassy or other diplomatic mission or is in the possession of HMG outside a mission.122

Classified evidence

Analysis

Example

Recommendation 10.

PART II

Unauthorised Disclosures

Chapter 4: The Official Secrets Act 1989 and the requirement to prove damage

INTRODUCTION

THE BACKGROUND TO THE OFFICIAL SECRETS ACT 1989

terms and was highly condensed. On one calculation, section 2 permitted two thousand differently worded charges to be brought under it.124 The Franks Committee concluded that section 2 of the OSA 1911 needed to be replaced with a more narrowly drawn provision.

The drafting of section 2 is archaic and, in places, obscure. But the central objection is its scope. It penalises the disclosure of any information obtained by a person holding office under the Crown or a government contractor in the course of his duties, however trivial the information and irrespective of the harm likely to arise from its disclosure. The “catch-all” nature of section 2 has long been criticised. Although in practice prosecutions are not brought for the harmless disclosure of minor information, it is objectionable in principle that the criminal law should extend to such disclosure. The excessive scope of section 2 has also led to its public reputation as an oppressive instrument for the suppression of harmless and legitimate discussion. Because section 2 goes so much wider than what is necessary to safeguard the public interest, its necessary role in inhibiting harmful disclosures is obscured.125

THE REQUIREMENT TO PROVE DAMAGE

Defences

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 or 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.

For offences requiring damaging disclosure, it is necessary for the prosecution to prove not only that the disclosure is damaging but also that the person making the disclosure knows or has grounds to believe that it would be damaging (in the sense that it is likely to have that effect). It is insufficient for the prosecution to prove that there were reasonable grounds to believe that the disclosure might be damaging or that this was merely a possibility.130

The requirement to prove any damage

Although the legislation absolves the prosecution of the burden of proving that the disclosure in fact caused damage, the prosecution must still prove that the information in question fell within a certain class or description and that the disclosure of information within that class or description was likely to cause the requisite damage. Our initial consultation with stakeholders suggests that the requirement to prove that the disclosure of such a category of information was likely to cause the requisite damage can still pose an insurmountable barrier to initiating a prosecution.131

Provisional conclusion 9

We provisionally conclude that, as a matter of principle, it is undesirable for those who have disclosed information contrary to the OSA 1989 to be able to avoid criminal liability due to the fact that proving the damage caused by the disclosure would risk causing further damage. Do consultees agree?134

The conduct of the prosecution of a person who has disclosed information etc. which is damaging to national security to others may itself cause further damage to the need to protect that information if it is conducted, as it ought normally to be, in open court. If appropriate safeguards are not available to protect the information, the prosecution may have to be stopped because the importance of the public interest in protecting the information outweighs the importance of the public interest in bringing the person who unlawfully disclosed it to justice. In so doing, the latter important public interest is thus frustrated.

So, yes, we agree, it is undesirable for us not to be able to proceed with an OSA offence because measures to safeguard the information in the criminal process are not available. The intelligence community in this country or another, for instance, will be made aware of the fact of the breach so that they can take appropriate steps in respect of it, but if they fear further damage being caused by the criminal process (which includes the circle of knowledge being expanded even within reasonable bounds to advocates, jury, court officials etc.) then the case will not be able to proceed without appropriate safeguards in place to assure them of the control which will be exercised over the information.

Risk management is therefore key, i.e. assessing risks including the importance of the information and who may come to learn of it, the likelihood of those risks being realised, the safeguards available in principle, and again the likelihood of securing them. A not dissimilar principle occurred, by way of illustration, in Incedal [2016] EWCA Crim 11, i.e. the critical importance of hearing some of the trial in camera.135

... previous attempts have been made to address this problem both through procedural measures such as the possibility of conducting hearings in private and the substantive provisions in the 1989 Act which give the prosecution the option of proving not that the disclosure in fact caused damage, but that the information in question fell within a certain class and that disclosure of information of that class was likely to cause the required damage. However, as discussed by the Commission, stakeholders report that these measures have been unsuccessful and that the damage element of the offences can still pose an insurmountable hurdle to bringing a prosecution. We accept this viewpoint and agree that it is unsatisfactory that those who have committed a disclosure offence can evade criminal liability for this reason.136

Insufficient evidence to support a change in the law

.the Law Commission is presumably privy to empirical evidence rather than simple assertion. How many prosecutions, which otherwise would have been brought, have been abandoned for this reason as opposed to the inherent sensitivity of the information?

We feel it is important to emphasise that agreement with this principle does not lead inescapably to the conclusion that it is necessary to relieve the prosecutor of any burden of proving that conduct engaged in was of a type capable of causing damage.137

...the Law Commission appears to adopt, without argument, the claim of unidentified “stakeholders” that disclosures must be criminalised regardless of the actual harm caused. Rather than examining the case for a real damages threshold, it offers only a choice between whether the offence would be committed where an individual knew, or merely believed, that the disclosure would be capable of causing damage. It also simply presumes that the meaning of the word, ‘damage’, would remain tied to the extremely loose definition in the 1989 Act. No other alternatives - beyond the Law Commission’s later discussion, and rejection, of a public interest defence - are even considered.138

If the Commission has been persuaded that. [the requirement to prove damage is an obstacle to prosecution], some account of the evidence it has seen would be expected: none is given. There is no indication that it has subjected what it has been told to critical examination. No example of any damaging disclosure which has gone unpunished is cited. No indication of the number of such cases is given.139

The Consultation suggests proving damage has meant suspects have avoided criminal liability - but absolutely no evidence is given to back this suggestion. It is important if changes are made to this highly sensitive area of law the changes are based on evidence that justify reform - not broad, sweeping, unsubstantiated assertions.141

Removal of an opportunity to consider public interest

The current damage requirement in the OSA 1989 has meant that, in effect, most of the OSA 1989 offences implicitly include an element of public interest.143

Removing the requirement to prove damage would be a retrograde step that takes us back towards the discredited 1911 Section 2 and its catch-all provisions. In principle, criminal sanction should only be applied to disclosures that can be demonstrated to have the potential to cause serious damage. The requirement to prove damage under the 1989 Act was explicitly stated to have a public interest component.144

Criminalising embarrassing, but not damaging, disclosures

...it would also be undesirable for public organisations to use the same justification to avoid disclosing potentially embarrassing information.145

We are alarmed by the absence of any recognition in the report that removing the damage requirement risks lowering the bar for criminal prosecutions to include situations where a civil servant leaks information that merely embarrasses the Government rather than causes actual damage to national security.146

Although Trinity Mirror accepts that it would be undesirable for national security to be compromised in order to prove a damaging disclosure, it would be equally undesirable to prosecute on a matter that was not damaging to the State, but merely embarrassing or inconvenient, in the knowledge that damage would not have to be proved. Section 1(5) of the Act currently allows for a defence of lack of belief that a disclosure would be damaging. Trinity Mirror suggests that the requirement of damage should remain, subject to the use of Public Interest Immunity Certificates if appropriate and if National Security is at risk of being compromised.147

Effect on public interest journalism

Put shortly, if a journalist has published information the publication of which cannot be shown to be damaging to security and intelligence, defence or international relations, nor be shown to be likely to cause such damage, nor (in the case of security and intelligence information) shown to be information which falls within a class or description of information which would be likely to cause such damage then - regardless of the journalist’s state of mind - the journalist should simply not be guilty of a criminal offence under the Official Secrets Act. For this reason, NGN believes that the offence should continue to require proof or likelihood of damage, as in the structure currently contained in section 5(3) of the OSA 1989.148

The NUJ strongly condemns the proposal to remove the requirement for prosecutors to prove that a disclosure was damaging. A requirement to prove damage must remain a prerequisite to establishing criminal liability in the area of unauthorised disclosures of information under the official secrets laws (or any successor). While we also oppose the recommendation to remove the damage requirement for primary disclosers, it is deeply disturbing that the Law Commission envisages a journalist could be prosecuted without any requirement for the authorities to prove that the disclosure caused damage. Anything short of a clear requirement to prove damage is likely to have a serious chilling effect on the exercise of public interest journalism. We urge the Law Commission to make it clear that there will be no recommendations or support for legal changes that would relax or abandon the requirement to prove damage before a journalist could be prosecuted.

Section 5(3) of the 1989 Official Secrets Act provides an important safeguard for journalists and we implore the Law Commission to recommend its preservation. Removal of this safeguard would pose an existential threat to journalism focused on investigating national defence and security.

Our concerns are in no way assuaged by the Law Commission’s recommendations on the introduction of a requirement to prove subjective fault.149

The proposals if implemented will mean criminalisation of disclosures that cause no harm and a far greater likelihood of the prosecution of editors, journalists and whistleblowers. It will inevitably have the effect of reducing the disclosure of information the public should know about and what is reported through increased police powers over journalists.150

If the harm test is removed from the current legislation, the result would be to open up again the scope of the offences which, in our view, would be an unjustifiable restraint on journalism and freedom of speech as protected under Article 10 of the European Convention on Human Rights (“ECHR”). If any new legislation contained a public interest defence (as discussed below), this effect would be mitigated. However, in the absence of a public interest defence we cannot support the Commission’s conclusion.151

Managing the trial process to reduce the risks of proving damage

Removing the requirement to prove damage risks removing any mechanism by which disclosures made in the wider public, and democratic, interest can be defended in court.152

Classified evidence

Analysis

However, as we cite at 4.42(1) above, we have had the opportunity to assess evidence on this matter, and that evidence substantiates our concerns.

Consultation question 6

We welcome consultees’ views on the suitability of shifting to non-result based offences to replace those offences in the OSA 1989 that require proof or likelihood of damage.155

Government Network, ITN, Campaign for Freedom of Information/Article 19 and Campaign Against Censorship.

The proposals at 3.161 do not meet the perceived problem of proving damage in practice. In order to prove that the defendant knew or had reasonable grounds to believe that disclosure is capable of causing damage, the prosecutor will in the ordinary course have to prove the potential for damage. It is from that evidence that the inference of knowledge is often drawn. The practical difference between proving reasonable grounds to believe that disclosure could cause damage and proving that disclosure could cause damage may be less than envisaged. Both involve an objective assessment of potential damage.158

NGN considers that the structure currently contained in section 5(3) of the OSA 1989 should be maintained. In addition, NGN draws attention to the fact that the proposed redrafting set out in paragraph 3.161 imposes a lower threshold of knowledge / belief than is currently contained in section 5(3)(b) of the 1989 Act. Paragraph 3.161 proposes that a person commits an offence if he or she intentionally makes an unauthorised disclosure of information relating to security and intelligence, defence or international relations knowing or having reasonable grounds to believe that that disclosure “is capable of” damaging security and intelligence, defence or international relations. By contrast, section 5(3)(b) requires the Defendant to have made the disclosure knowing, or having reasonable cause to believe, that it “would” be damaging.160

It means that a disclosure which is unlikely to cause damage may nevertheless be an offence because in circumstances that are highly unlikely to ever arise, it might cause damage. This may mean that if a journalist has been told by an official that a disclosure would be damaging, but has good reason not to believe it, they might still commit an offence - because having been told, they may now have reasonable cause to believe that it is ‘capable’ of being so.161

ANL’s concerns are not assuaged by the Law Commission’s recommendations [sic] on the introduction of a requirement to prove subjective fault... While subjective fault is usually part of the justification for criminalising conduct, it is not a comparable alternative justification for criminalising the conduct in issue - ie an alternative to actual or likely harm to an important public interest. The societal harm involved in criminalising journalists and their sources may in principle be justified by harm to such a public interest. It cannot be justified by pointing simply at subjective fault on the part of the individual charged.

In any event it is unclear how this is supposed to remedy the perceived problem. If proving that the information is of a type likely to have the relevant damaging effect is problematic so must proving this sort of subjective fault.

The removal of this objective requirement from the ss.5 and 6 defences is particularly worrying...163

A reformation of the offences should also serve to safeguard media defendants in circumstances where the primary intention behind disclosure is to highlight a matter of significant public interest rather than to cause damage to matters of national security. Thus, we are strongly of the view that the proposal to add a mens rea element to the offence must be accompanied by a public interest defence in the event that the harm test is removed.164

At present the editorial decision-making process takes into account the likelihood of damage alongside public interest. However, moving from evidence of actual damage in terms of the offence to an awareness or knowledge that the information may be detrimental to national security reduces the burden of proof. It may reduce the burden on the state but in so doing opens the door for unsubstantiated claims of damage. This fundamentally disrupts the editorial decision-making process introducing far more risk and leading to a likely chilling effect on the publication of stories that are automatically more likely to incur significant penalties - specifically penalties levied at individual journalists rather than media organisations.165

We urge the Law Commission to abandon its proposals to remove the damages threshold, and recommend instead that any offence of unauthorised disclosure must only attach to information the disclosure of which would cause identifiable, serious harm to national security.166

Our view is that proof of damage is an essential component of an offence under Official Secrets legislation. People should not be prosecuted for damage that they only might have done.168

We question whether the ability to prosecute damaging unauthorised disclosures would be materially enhanced by moving from a requirement that the disclosure was likely to cause damage (i.e. there was a real likelihood that it would have this effect to a requirement that the defendant knew that the disclosure was capable of causing damage. We see that a requirement to prove knowledge of “capability” to damage may in principle place a lower burden on the prosecution than a requirement to prove “likelihood” to damage. But we believe that in practice, in order to secure a conviction, the Crown would need in either case to adduce evidence to demonstrate the potentially damaging effect of the disclosure. This is because a person can only know that their disclosure is capable of causing damage if it is in fact so capable, and the Crown will need to prove that capability in order to prove that the defendant knew or must have known of it. In some cases, it might be possible to prove the potential of a disclosure to cause damage by means of general evidence that is not in itself sensitive. But this is unlikely to be the usual position. Rather, we would expect the courts to require a defendant’s knowledge of the capability of their disclosure to cause damage to be strictly proved by specific evidence.169

Provisional conclusion 10

We provisionally conclude that proof of the defendant’s mental fault should be an explicit element of the offence contained in the Official Secrets Act 1989. Do consultees agree?170

These are serious criminal offences in relation to which the Commission proposes to increase the applicable maximum sentence. Furthermore, there is currently no public interest defence and the Commission does not recommend introducing one. It is critical, therefore, that the provisions should only apply where there is a sufficient level of culpability on the part of the person making the disclosure.172

... we believe that the suggested drafting ... is too wide, in particular the wording “knowing that / having reasonable grounds to believe that disclosure is capable of damaging security and intelligence, defence or international relations”. The use of the words “capable of” would significantly lower the threshold of criminal liability as it could encompass disclosure which has only a remote possibility of causing damage. [emphasis added]173

NGN agrees with this conclusion. Similar to the position regarding section 1 of the Official Secrets Act 1911, as set out above, NGN is in favour of a requirement that the Defendant only commits an offence where he knows or has reasonable grounds to believe that disclosure would cause damage, and intends thereby to cause damage or is reckless as to whether such damage would be caused. However, NGN is not in favour of the simultaneous removal of the requirement that the disclosure actually be damaging.174

... would not object to the addition of a mental element, such that the Act would require the prosecution to prove both the new element of damaging intent and that damage was caused by the disclosure made with such intent. However, the substitution of the former for the latter is unacceptable.175

We strongly agree with this provisional conclusion for the reasons given by the Commission. But this is on the assumption that the fault element will remain as construed in Keogh. If the fault element were raised, this would compound the difficulties of prosecuting the offence.

We are not persuaded that having reasonable grounds to believe is a subjective fault element. If someone is liable to conviction because they had reasonable grounds to believe, although they did not in fact believe, that would seem to be an objective rather than a subjective basis of liability.176

Analysis

Recommendation 11.

INTRODUCTION

LIABILITY FOR THE SECURITY AND INTELLIGENCE AGENCIES

A person who is or has been—

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

it is not possible to read ... R v Saik... as laying down a universal proposition that if a statute speaks of a person having “reasonable cause to suspect”, that will always assume that he has to have an actual suspicion.182

Provisional conclusion 11

With respect to members of the security and intelligence agencies and notified persons, the offences should continue to be subject to strict liability. Do consultees agree?185

Consultation responses

If the Law Commission were to conclude that the strict liability offences should be maintained, to ensure compliance with the European Convention, it is suggested that the special restriction imposed on members of the security and intelligence services must be supported by an authorised disclosure mechanism underpinned by statute to allow individuals to raise concerns.187

a negligence standard is sufficiently flexible to take into account the responsibility of the official in question. Where a member of the security and intelligence service makes an unauthorised disclosure where, even by the high standards to which they must be held, he or she was not negligent to make that disclosure, then I do not think he or she should be held liable.189

The arbitrary, blanket prohibition on disclosure of any information a person acquires as a result of their work in the security and intelligence services results in ... absurd consequences ... Not only are revelations in the public interest punished, but ... disclosure of a document by a member of the Security Services may be an offence, whilst disclosure of the same document by a former civil servant in the Home Office may not be.192

Analysis

Recommendation 12.

REFORM OF THE NOTIFICATION PROCESS AND THE DEFINITION OF “MEMBER OF THE SECURITY AND INTELLIGENCE AGENCIES”

Provisional conclusion 12

The process for making individuals subject to the Official Secrets Act 1989 is in need of reform to improve efficiency. Do consultees agree?

Consultation question 7

If consultees agree with provisional conclusion 12, do consultees have a view on whether these options would improve the efficiency of the process for making individuals subject to the Official Secrets Act 1989?

Consultation responses

The criminal law requires certainty and it is important that it is clear to whom the Act applies to any potential subject and to any third party.196

The overriding principle should be clarity in the process both as a protection to the affected persons and to the sensitive information.197

Whilst we agree that the notification process is in need of reform, we submit that there are substantial failings which necessitate this rather than just a need for efficiency.... Currently, the notification process can be used as a means of

potentially intimidating whistleblowers. ...204

The basic principle of fully informing civil servants of the duties and responsibilities under the OSA is certainly a practice that should be encouraged - this is an area where a blanket approach to the signing of the OSA does not provide a solution and does not sit with the proper accountability of government departments. Guidance and training should also be considered for those departments that deal with protected information on a regular basis, so that there is a consistent approach across Government.202 203

the scope of those required to sign the Official Secrets Act should not be extended to surround government with a cloak of secrecy. The categories of person who need to be restricted by the act must not exceed what is strictly necessary to protect national security.204

This would be a sensible approach. It would also be appropriate to consider whether to use the term ‘worker’ or ‘a person who works for’ the security and intelligence services should be used as an alternative to avoid any suggested interpretation of the term “employee” to mean a person who has served a qualifying period of employment. It is further suggested that any term used should be supported with a statutory definition and this should be consistent with interpretations found in Employment Law.206

The author is unable to provide a full view on the notification of individuals. However, it is submitted that the Law Commission’s provisional conclusion that notified persons should remain is correct. Notification serves a useful purpose particularly where individuals have been notified but are not made subject to Developed Vetting. For example, by notifying members of the Intelligence and Security Committee but not making them subject to Developed Vetting the system arguably allows members to retain independence from the establishment.

If notification is proposed to continue, it would be sensible to review the justification behind notified persons being subject to the same requirements of strict liability as members of the security and intelligence agencies. Whilst there are clear policy justifications to suggest that security and intelligence information should be protected at the highest level, there is also the potential policy argument to suggest that notified office holders tasked with maintaining oversight of the agencies should be able to publish information concerning wrongdoing in the public domain in order to fulfil their democratic mandate. If authorisation to publish is refused by the government of the day, notification resulting in the committal of a strict liability offence appears to be overly restrictive. The author appreciates that the circumstances where this might occur may be limited.207

We believe the law should be clarified to make explicit that a “member” of the security and intelligence agencies includes any individual employed or contracted by the agencies or seconded or attached to them.

Guidance has been in place since the commencement of the notification regime.

The problem lies not in the guidance itself but in the difficulty of applying it given the many and varied scenarios in which individuals may have legitimate access to security and intelligence material. For this reason, we do not believe that revised guidance provides anything more than a partial answer to the problems with the notification regime. Extending the notification period would also be of limited assistance in reducing the bureaucratic burden of the regime, given the requirement to cancel a notification when it is no longer needed. We therefore strongly prefer the Commission’s second option, or defining the class of people who are caught by the section 1(1) offence. We suggest that for simplicity the class should cover any Crown servant or government contractor who has access to security or intelligence material in the course of their office or employment or under a contract for services. But to cover all eventualities we also favour retaining the power to notify individuals not within the defined class where their access to security and intelligence material makes that appropriate.

Analysis

Recommendation 13.

SENTENCING

Provisional conclusion 13

We provisionally conclude that the maximum sentences currently available for the main offences contained in the Official Secrets Act 1989 are not capable of reflecting the potential harm and culpability that may arise in a serious case. Do consultees agree?

Consultation responses

The unauthorised disclosure of security and intelligence information can lead to risk of life (of agents or intelligence officers, or of people wrongly identified as such), compromise vital national security intelligence gathering techniques, alert terrorist and serious crime intelligence targets to the interests of the authorities, and cause serious and long term damage to critical international intelligence relationships. We believe that if the maximum sentences for the offences of unauthorised disclosure were raised to 14 years’ imprisonment, in line with the sentences available for the spying offence under section 1 of the OSA 1911, this would enable a sentencing court to deal appropriately with serious cases of this sort. We also believe it would be desirable for there to be a review of the circumstances in which a Crown servant may by law forfeit some or all of their pension on conviction under the 1989 Act, in order to ensure that forfeiture is available in an appropriate case.

The harm caused by an unauthorised disclosure may range from negligible to catastrophic and the culpability of the person making the disclosure from low (in the case of an individual who considers there to be a minimal risk to the national security) to high (where a disclosure is made for the purpose of causing harm to UK interests). We agree with the Commission that a higher maximum sentence, perhaps of five years’ imprisonment, would allow for greater differentiation in sentencing between the most and least serious cases and would bring the penalty for these offences in line with the maximum sentence for unauthorised disclosure under sections 57 to 59 of the Investigatory Powers Act 2016. This is the approach that we suggest the Commission should take.213

If the Commission does conclude that the maximum sentence should be increased for such exceptional cases, we would like to make it clear that we do not think that this should be used as a rationale for re-setting sentences more widely.214

[The Law Commission’s] mention of Canada’s 14-year sentences is apt to mislead, since Canadian law provides for a public interest defence.218

The history of prosecutions under the 1989 Act does not, to the best of our knowledge, reveal an example of someone being sentenced to the maximum 2 years, still less an instance where the maximum sentence has been stated to be inadequate.220

The maximum sentence for secondary disclosers in the media, including journalists and editors should be no more than the current maximum of two years imprisonment. Sentences of above two years should also be precluded for primary disclosers adjudged to have disclosed the information in good faith and for a public interest reason to such a secondary discloser in the media.222

Having read a large proportion of the Snowden material and taken widespread advice I went ahead with publication, knowing I could face a jail sentence. The prospect of serving a longer period in jail would not in the least have deterred me.224

Classified evidence

Analysis

Information Act 2001, which contains a broader unauthorised disclosure offence, is not accompanied by a public interest defence, but nevertheless carries a maximum sentence of 14 years’ imprisonment.

Recommendation 14.

ACCESS TO LEGAL ADVICE

“disclose” and “disclosure”, in relation to a document or other article, include parting with possession of it;

A disclosure made to a professional legal adviser who is a barrister, solicitor or legal executive with a current practising certificate for the purposes of receiving legal advice in respect of an offence contrary to the Official Secrets Act 1989 should be an exempt disclosure subject to compliance with any vetting and security requirements as might be specified. Do consultees agree?

Consultation responses

...limiting the [proposed] exemption to a barrister, solicitor or legal executive denies a potential whistleblower legal advice from whistleblowing organisations such as Public Concern at Work. Such organisations provide expert free advice as to the legal implications of a disclosure and can also advise an individual how to raise concerns internally to prevent the consequences of disclosure for all parties concerned.232

This is an important addition which would remove current uncertainty. However, . there are several important considerations which must be explored . vetting may help to allay national security concerns, however there is a danger that individuals already concerned with the risks associated with making a disclosure will feel dissuaded from obtaining advice for fear that these vetted advisers are “part of the establishment”. It is recommended that the policy arguments for and against vetting should be fully explored and the option of notification without vetting should be considered as an alternative.234

The right to seek legal advice, without being penalised for doing so, is a fundamental right which should be available to any individual who is the subject of a criminal investigation. Legal advisers are bound by legal professional privilege which, in any event, would prevent the onward transmission of the information to further third parties. The Law Society/Bar Council could be asked to issue guidelines on how legal advisers should maintain the information provided to them, for example, not storing the information on firm-wide computer databases.235

[The ability to make an exempt disclosure] must include the ability to seek prepublication advice- which of course may lead to no publication specifically to avoid any commission of a criminal offence or damaging disclosure. Recipients of information such as the media may wish to avoid damaging disclosures, comply with the law and wish to seek advice internally from editorial and legal teams and externally from [the Defence and Security Media Advisory] Committee, external experts and external lawyers.237

However, where a journalist is concerned this would have serious repercussions if they were to discuss such matters with anyone else - an editor for example - there would still appear to be potential problems regarding the ability for offences to proliferate.239

A defendant must be able to give full instructions to his legal adviser. Whilst a special advocate can operate in discrete areas of evidence/disclosure in criminal proceedings, to deny a defendant proper access to his legal adviser may be in breach of ECHR Art 6(3)(c).

The Bar Council has concerns about the suggestion that fully qualified legal advisers with current practising certificates ought to be subject to vetting before being given full access to the material on which to advise their clients ... It is not clear whether it is proposed that there would be a panel of pre-vetted lawyers (to which exception may be taken) or a system whereby a suspect has a right to select a legal adviser of his choice, subject to post-selection vetting. The latter course has the potential to result in considerable delay.240

We agree subject to two caveats. First the exemption should apply only in relation to a person who has been arrested for or charged with an offence under the Official Secrets Act 1989 and for the purpose of them seeking advice and/or representation in relation to their arrest or prosecution. Secondly, the exemption should apply only if the legal adviser agrees to comply with such vetting and security requirements as may be specified and should cease to apply if the lawyer fails so to comply (in which case any security and intelligence material would need to be surrendered immediately to the originating authority).

Classified evidence

Analysis

It is clear from this review of the relevant authorities that the essence of the right to choose one’s counsel lies in the contribution that the exercise of that right makes to the achievement of the ultimate goal of a fair trial. It is not an autonomous right which falls to be considered outside that context.251

Those subject to section 1(1) OSA 1989.

Those subject to offences under the OSA 1989 other than section 1(1)

Lawyers’ professional obligations

Recommendation 15.

Offences for which the lawyer would be liable

Security and vetting requirements

Recommendation 16.

Recommendation 17.

PRIOR PUBLICATION

Provisional conclusion 15

We provisionally conclude that a defence of prior publication should be available only if the defendant proves that the information in question was in fact already in the public domain and widely disseminated to the public. Do consultees agree?

Consultation responses

...too narrowly formulated, such that it could not be relied upon, even if all the world was already aware of the material disclosed and its disclosure had done no harm. Indeed, the consultative proposals would even criminalise the disclosure of information that could be lawfully released under the Freedom of Information Act.265

We understand the concern that if there were two unauthorised leaks of the same information, a second widely disseminated leak might be more damaging than an initial unnoticed disclosure, and should not automatically benefit from a prior publication defence. However, if the initial disclosure is lawful this scenario is irrelevant.

The Consultation Paper expressly recognises that a disclosure under the FOI Act would be such a lawful disclosure. Remarkably, it considers that this would not be sufficient and the information must also be widely disseminated.270

There should be a defence of prior publication available in all the offences under the two pieces of legislation which can be charged against journalists and their sources. This should apply whenever the information in issue was already available to the public and the defence should not be restricted by a requirement that it became so lawfully.271

... it would have a huge chilling effect and would be disproportionate to prosecute a newspaper editor for following a story published by another publication using exactly the same information as originally published. If a newspaper followed up previous revelations but included new unlawful damaging revelations, then it could possibly be open to prosecute dependent on the individual circumstances, but to introduce the concept of a post publication gagging order would be contrary to article 10 of the European Convention on Human Rights and would, in any event, be unenforceable, given the amount of global news websites that would potentially follow the story.

If such a defence was raised the prosecution would need to show it was not lawfully in the public domain and widely disseminated. Dissemination is much easier and wider due to the internet and not always measurable. Mistakes can happen, including announcements by Ministers/Ministries where the significance under OSA is not always appreciated.273

It will be important to define with as much clarity as possible what is meant by the terms “widely disseminated” and “public domain”. For example, we believe that information placed on a hard-to-find website, or published in a foreign language should not be regarded as “widely disseminated” for this purpose, even if the website or publication is in principle accessible by anyone. Further, the availability of information in the digital age can change over time: if it is widely accessible at one point but then becomes harder to find, may the information cease to be “widely disseminated” and if so, at what point? In a similar vein, what constitutes the “public domain” in the digital era? Is material shared by a social media group subject to privacy settings to be regarded as in the “public domain”? Does it depend on how large the group is and how strict or effective are the privacy settings? What is “the public” for these purposes?

The law should make explicit that a previous disclosure will be lawful only if made in the course of official duty or pursuant to official authorisation.

On a related point, the defence should not be available to someone who confirms or denies prior claims or allegations. For example, if the media speculate that a particular individual is a subject of MI5 investigation, and D publicly confirms this to be the case, D should not be able to claim the benefit of the defence by claiming that the media speculation constituted a lawful disclosure.

The legal burden should rest on the defendant to prove that the information has been widely disseminated and that its disclosure was lawful. This is on the basis that it would be wrong for a person to disclose protected information without being sure it has been the subject of a prior lawful disclosure; and it is therefore reasonable to expect them to evidence the facts that they say justify their actions. If a person chooses to disclose protected information without carrying out such due diligence, they should do so at risk that the disclosure is not within the scope of the defence.

Analysis

It is a defence to a prosecution for an offence by a person against this [part of the Act] that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the [State].

Recommendation 18.

CATEGORIES OF PROTECTED INFORMATION

Consultation question 8

We would welcome consultees’ views on whether the categories of information encompassed by the Official Secrets Act 1989 ought to be more narrowly drawn and, if so, how.

Consultation responses

The 1989 Act was very effective in narrowing the protection of the law to information properly regarded as sensitive and the Government sees no case for drawing the categories of protected information more narrowly than they already are.

The categories of information protected by the OSA 1989 are widely drawn. However, the Act’s deliberate focus upon ‘damaging’ disclosure help to avoid undue restrictions upon freedom of expression. Narrowing the categories would not counteract the chilling effect of the Law Commission’s other proposals. In any event, even if the OSA were otherwise unchanged, any change to the categories would have to be carefully analysed to ensure that the intended ‘narrowing’ did not create new problems of legal uncertainty or inadvertently increase the potential for prosecution of journalists.281

...the disclosure of any information, document or other article relating to defence in section 2 or any information, document or other article relating to international relations in section 3 is far too broad. These categories of information are very widely drafted and such broad definitions are particularly problematic if the element of damage is removed from the offence.282

As we urged the Government during the Parliamentary passage of the Investigatory Powers Bill, we urge that the Law Commission to adopt a significantly tighter, clearer, and less abuse-prone definition of national security, drawing on the definition of national security provided by UN’s Siracusa Principles. It lays down a standard that ‘national security’ may only be invoked to protect “the existence of the nation or its territorial integrity or political independence against force or threat of force.” This would ensure that national security remains tightly defined, permitting official secrecy only where truly justified.283

... believes that more consideration needs to be given to the drafting of the categories of information encompassed by the Official Secrets Act 1989. As the Law Commission will be aware, several academic and professional authors have argued (over the course of several years) that the categories are overly broad. It is submitted that these views have merit. It is perhaps not that these broadly drafted categories are resulting in a large number of convictions, as the author has previously stated in his own work on this area, the number of prosecutions (where this information has been made available) is very small. However, the impact of arrest and potential loss of security clearance must be considered together with the application of the Official Secrets Act 1989. To the best of the author’s knowledge there is little information on the number of arrests carried out for Official Secrets Act offences. However, Stankovic v Chief Constable of Ministry of Defence Police illustrates the potential difficulty. In that case, a Major in the British Army was arrested for offences under the Official Secrets Act 1989. The episode took over two years to resolve and ultimately no charges were brought but Stankovic had lost his security clearance.

Analysis

Recommendation 19.

SENSITIVE ECONOMIC INFORMATION

Should sensitive information relating to the economy in so far as it relates to national security be brought within the scope of the legislation or is such a formulation too narrow?

Consultation responses

We consider that information relevant to the UK’s economic well-being is covered by the spying offence in the Official Secrets Act 1911 and should remain covered by a reformed law of espionage, on the basis that this is in the interests of the UK. It would seem inconsistent for such information not also to be protected by the Official Secrets Act 1989.

[We] would be particularly concerned if any class of information of this sort were included in the legislation, without a public interest defence in the relevant offence, given how much legitimate public interest journalism is based on official information about the economy.290

The IPA primarily involves a limitation of rights under Article 8(1) of the European Convention on Human Rights (ECHR), and Article 8(2) allows for this “in the interests of ... the economic well-being of the country." By contrast, the Official Secrets Act primarily involves a limitation of rights under Article 10(1) of the ECHR, but Article 10(2) does not contain an express “economic well-being" justification.291

‘Economic information,’ is an overbroad category; ‘[A]s it relates to national security’ only marginally less so. The Act lacks interpretive clarity in regard to the parameters of the ‘national interest.’ The generic formulation put forward in the Consultation Paper - ‘sensitive information relating to the economy in so far as it relates to national security’ - would do little, if anything, to resolve this ambiguity; it is just as likely, if not more, that it would compound the problem.292

A further problem inherent in the lack of specificity as to the language and content of the proposed category is revealed by a hypothetical scenario in which a Crown agent unlawfully discloses information which carries the potential to cause grave harm to the national economy but that, for whatever reason, this harm or damage does not come to pass. Would such a situation violate the protected category in the manner of a strict liability offence, on the basis of conduct alone? Or would the offence only be engaged in the case of damage arising as consequence of the disclosure? If the former, the offence would be so broad as to criminalize most, if not all, legitimate disclosures. If the latter, however, the category would fail in its purpose in that it would not carry the same deterrent force.294

Without further evidence to justify the need for this section it is difficult to see why it should be introduced. [I am] ... concerned that its inclusion, without a clear and well evidenced justification, would present an unnecessary retrograde step. The 1989 Act was aimed at narrowing the circumstances where individuals could be prosecuted. As previously discussed, the author (and many others) have suggested that the drafting of the current sections is too wide. It is difficult to consider how economic information protected under ‘national security’ grounds may be included without it resulting in broad and uncertain application.295

.if ‘national security’ is sufficient in itself, then “economic well-being. so far as [is] relevant to the interests of national security” is redundant, since it is a subset of the former. We have questioned both the Agencies and the Home Office on this matter and neither have provided any sensible explanation. In our opinion, this area is already sufficiently complex so drafters should seek to minimise confusion wherever possible. We therefore recommend that ‘economic well-being’ is removed as a separate category.297

We are not convinced that there is sufficient justification in the Law Commission report for such a dramatic and far reaching reform to the OSA.

The disclosure or improper use of market sensitive information is already criminalised through other parts of criminal law e.g. insider trading etc... With this in mind we are unsure what criminal act this extension would be outlawing.

Our fear is that it will be used to hide Government embarrassment behind the facade of national security. For example, should a concerned civil servant who discloses to the press controversial details on a trade negotiation, or the state of affairs during the Brexit negotiations really be criminally liable for such triggering a public debate? Should the journalist in receipt of such information be concerned that they could fall foul of the OSA. We also fear a chilling effect on public debate where Government experts and officials will feel they need to be more careful about their public comments about the effect of Brexit or any other economic event in fear that it will fall foul of the OSA.298

We are extremely concerned that such a change would permit Government to cloak all manner of information with the veil of secrecy, including information that has no national security impact whatsoever.303

used in relation to information, material and/or data linked to the legitimate activities of trade unionists and trade unions.”305

Disclosures of information concerning large corporations such as banks (for example at the time of the 2008 financial crisis) could have a harmful effect on the UK economy but, in our view, should not be criminalised. The aim of this legislation is not to protect corporate interests. The public’s perception and support for the Act is important. An average person may find it difficult to consider the leaking of economic information as espionage, as understood in the strictest sense.306

Analysis

Recommendation 20.

EXTRATERRITORIALITY

Provisional conclusion 16

The territorial ambit of the offences contained in the Official Secrets Act 1989 should be reformed to enhance the protection afforded to sensitive information by approaching the offence in similar terms to section 11(2) of the European Communities Act 1972 so that the offence would apply irrespective of whether the unauthorised disclosure takes place within the UK and irrespective of whether the Crown servant, government contractor or notified person who disclosed the information was a British citizen. Do consultees agree?

Consultation responses

We agree with this provisional conclusion as damage may be caused regardless of who makes the disclosure and where it takes place, especially in an internet-enabled world.

If the person making the disclosure threatening UK interests is not a British citizen and he makes that disclosure outside of the UK, there is no reason why he should not be prosecuted if all the required elements of the offence are present. As discussed in the context of the offence of espionage, state borders are now less significant when it comes to information storage than was the case prior to the digital era. It is easy to send information worldwide with the push of a button. The protection afforded to sensitive information must therefore be enhanced to meet this new challenge.309

There is force in the proposition in principle. As with the 1911 Act offences (Provisional Question 7), the extent of the required links will need to be considered, whether on a ‘last act’ or ‘substantial measures’ basis.310

New extraterritorial provisions would appear to significantly broaden the scope of the offences from British officers and subjects to those with a “significant link” to the UK.

The Report refers to the 2015 amendments of the Computer Misuse Act, which uses the same term “applied in various ways”. It is unclear what a “significant link” might mean in practice and whether the Commission is proposing that foreign journalists, for instance, might face prosecution if they published information that falls into a category protected by the Official Secrets Act.

If this is indeed what the Commission is proposing, it is unclear whether thought has been given to the likely possibility of foreign nationals being extradited to face charges of this type in the UK, particularly given the French courts’ refusal to extradite David Shayler in 1998.

Not only does it undermine the principle of deterrence if laws are unenforceable, the assertion of extraterritorial jurisdiction raises the possibility of states trying to enforce reciprocal laws against UK.307

Assuming the extended jurisdiction could also apply to a recipient of information such as a journalist this may also expand the scope for prosecutions of such individuals.308

There should be limits on the use of any new extra-territorial offences in regard to journalists and media organisations abroad.309

Classified evidence

Analysis

Any act—

any colony,

shall, if it would be an offence by that person under any provision of this Act other than section 8(1), (4) or (5) when done by him in the United Kingdom, be an offence under that provision.

Recommendation 21.

OPTIMAL LEGISLATIVE VEHICLE FOR REFORM

Provisional conclusion 17

The Official Secrets Act 1989 ought to be repealed and replaced with new legislation. Do consultees agree?

Consultation responses

OSA 1989 is “outdated and no longer fit for purpose”,315 while the Institute of Employment Rights cautioned that it was “just a change of title unless it enacts real reform”.316

We have no settled view on whether the existing law should, Parliamentary time permitting, be amended or repealed and replaced by a fresh statute. We agree that the title of any new statute should reflect that its object is to protect official information from unauthorised disclosure, e.g. the “Protection of Official Information Act”.

Analysis

INTRODUCTION

DATA SHARING BETWEEN PUBLIC BODIES

UNAUTHORISED DISCLOSURE OFFENCES AND THE PROTECTION OF OFFICIAL DATA

Consultation question 10

Do consultees agree that a full review of personal information disclosure offences is needed?

Consultation responses

whether a full review is required as a matter of priority should, ultimately be dependent upon an overall assessment of how well the current system has been working in practice.351

The proposal for a further review of other unauthorised disclosure offences, under the same terms of reference and from the same perspective, could result in even greater criminalisation of journalism and restrictions on the public right to know.

Analysis

Digital Economy Act 2017 and the Data Protection Act 2018 makes the lack of such a defence in respect of the other offences seem especially problematic.

Recommendation 22.

SECTION 55 OF THE DATA PROTECTION ACT 1998 / SECTION 170 OF THE DATA PROTECTION ACT 2018

Consultation question 11

Do consultees have a view on whether the offence in section 55 of the Data Protection Act 1998 ought to be reviewed to assess the extent to which it provides adequate protection for personal information?

Consultation responses

Analysis

Recommendation 23.

NATIONAL SECURITY DISCLOSURE OFFENCES

Consultation question 12

Do consultees have a view on whether national security disclosure offences should form part of a future full review of miscellaneous unauthorised disclosure offences?

Consultation responses

Analysis

INTRODUCTION

THE PROTOCOL

Background to the Protocol

The Protocol describes a process which encourages key stakeholders to contribute to the decision making, whilst recognising the independence of each organisation. The aim is to apply a discipline of supportive, collective reasoning to a wide range of considerations including likelihood of success and assessment of outcomes.419

The seven-step process

Step one - Internal investigation

It is the responsibility of Government Departments to ensure they have a security regime in place which: is fit for purpose; prevents leaks; encompasses whistle blowing; and fosters a culture of integrity regarding disclosure of information. Leaks should be investigated by suitably experienced internal investigators capable of exploiting investigative opportunities, with analytical support when appropriate. Before referral to the Cabinet Office, Departments should be able to present a clear intelligence/evidence based package, meeting the threshold required to instigate police involvement.

Step two - Meeting the threshold for police involvement

The threshold for police involvement is high. Only in leak cases where the Cabinet Office believes there is intelligence/evidence to suggest the criteria of Official Secrets Act criminality has been reached or in leak cases where the criteria has not been reached but there are compelling grounds to suspect a serious offence (as described in the introduction) has been committed should a case be presented to the Gateway process. Before moving to the Gateway stage, consideration should be given to the proportionality of police involvement, likely outcomes and other internal resolution options.

Step three - The Gateway process

The Gateway can be accessed only through nominated Single Points of Contact (SPOCs). These SPOCs should occupy senior executive positions within the Cabinet Office and other relevant participant organisations. In the case of the Metropolitan Police Service the level has been suggested at Deputy Commissioner. The Director of Public Prosecutions and Commissioner of the Metropolitan Police

Service have agreed to high level Gateway representation as a useful development. Other representatives may be invited to attend as appropriate. The panel of SPOCs will assess the strength of the intelligence/evidence package and decide whether it meets the threshold for police investigation. At this early stage the panel should consider likely outcomes and other resolution options, for example using appropriate regulatory authorities; whether an investigation represents the best use of police resources; and if it is in the public interest to investigate. The panel might also require further scoping of the case to take place before deciding upon the next step. Each organisation represented clearly has its own responsibilities and independence in this process; the objective is to see if collective agreement can be secured on the value of going forward. It is also understood, that at any stage, each of these organisations can exercise their individual independence as necessary given their different roles. Notwithstanding this principle, in extraordinary circumstances it may be necessary for the police to act outside these guidelines and not to fetter their independence by doing so. These situations would be exceptional and require a transparent rationale for taking such action.

Step four - Scoping

The Gateway Panel may request further work to assist in their considerations of the most appropriate course of action. This may be undertaken by the Cabinet Office/ Department or jointly with the police if they are able to bring added value to the process. If the police are engaged it should be clearly understood that this is not the start of an investigation, which should only commence once agreed by the Gateway Panel. Whilst undertaking the scoping, cognisance should be taken of the criteria applied in the Gateway.

Step five - Police investigation

Once an investigation has commenced, progress should be regularly reviewed against all resolution options including ceasing to investigate. In common with national best practice derived from other high risk cases, police will establish an early relationship with a senior level Crown Prosecution Service (“CPS”) lawyer and take advice at key stages of the investigation. When the investigation has Parliamentary implications, seeking advice from a Parliamentary official at an appropriate stage of the investigation would be advisable. Both these relationships should be separate to any formal police review process.

Step six - Regular review

This should be an ongoing process involving the Police, CPS and any other representative adding value. It is suggested that the introduction of someone not forming part of the investigation command team, who can independently challenge decision making, would be an asset to the quality of decision making. The purpose of the review is to take stock of the investigation. By considering the likely outcomes, resolution options and other relevant factors, the review will be capable of deciding the most appropriate course of action. In doing so, levels of actual harm or damage as revealed by the investigation will inform the police/CPS decisions as to public interest.

Step seven - Resolution options

At the conclusion of the investigation - assuming it has passed through the review process - there will be a determination of how the case will be concluded. The Director of Public Prosecutions will first decide whether any criminal proceedings should be pursued. In the event of there being no proceedings, other resolution options should be considered.

Provisional conclusion 18

We provisionally conclude that improvements could be made to the Protocol. Do consultees agree?

for example where an official is subject to bribery or corruption, or very exceptional cases which seriously threaten the UK in economic or integrity terms.421

Consultation questions 13 and 14

Do consultees have a view on whether defining the term “serious offence” and ensuring earlier legal involvement would make the Protocol more effective?

Do consultees have views on how the Protocol could be improved?

Consultation responses

Versatility

Any “gateway process” must not lose sight of this far more serious dimension and must allow for a swift and robust response where appropriate.425

One of the stated aims of the Protocol was its versatility and to ensure the necessary sensitivity where a high profile public figure (such as a Member of Parliament) is the subject of an investigation. One concern is that the Protocol may not be sufficiently versatile where the investigation is not concerned so much with strategic political “leaks” as with criminal disclosure intended to compromise national security.426

Serious offence

Examples include the incremental damage caused by a series of unauthorised disclosures (where the specific instances of unauthorised disclosure would not themselves seem so serious); the persons involved in the unauthorised disclosures, particularly where an individual has access to information by reason of special training, appointment or circumstances; the persons to whom the information is disclosed; the means by which the information is disclosed; or where the individual concerned is the holder of elected office. Rather than defining “serious offence”, a sensible course would be to outline factors that should be taken into account by the decision maker when determining whether an offence is sufficiently serious. This would allow decisions to be made on a case by case basis.427

We note that the Protocol is used throughout all Government departments when dealing with unauthorised disclosures, and, lacking any detailed guidance as to what constitutes a serious offence, the interpretation of the term could vary significantly depending on experience, training or personal perception.428

Law enforcement engagement

Step two, for example, states that “consideration should be given to the proportionality of police involvement...” It would be useful to clarify what additional guidance is provided beyond the protocol to determine the circumstances where involvement would be considered appropriate.446

Any redrafting of the Protocol should ensure the involvement of the police in the investigation of unauthorised disclosures is only in exceptional circumstances and also the independence of the police from the Executive is maintained.450

Analysis

446 A Savage, para 34.

447 See Crown Prosecution Service, Media: Prosecuting Cases Where Public Servants Have Disclosed Confidential Information to Journalists (27 July 2009), available at https://www.cps.gov.uk/legal-guidance/media-prosecuting-cases-where-public-servants-have-disclosed-confidential.

448 A Savage, para 35.

449 Peters and Peters, p 14.

450 Institute of Employment Rights, p 26.

in this context. It is not being used to describe a general category of offences that might typically be regarded as serious, such as murder. It is used to denote that certain offences involving unauthorised disclosure will be so serious that they deserve to be dealt with under the Protocol. In other words, it is not enough to ask whether the offence is one of a type relating to unauthorised disclosures that we might want to label as serious; we would also want to ask whether the gravity of the wrong or its consequences in the particular case was sufficient to render it “serious” even if it was within the category of disclosure offences that we might naturally label as serious. It is unlikely, then, that a simple list of “serious” offences would be sufficient for the purpose of engaging the Protocol.

Recommendation 25.

Recommendation 26.

Recommendation 27.

Recommendation 28.

THE ABILITY TO EXCLUDE MEMBERS OF THE PUBLIC FROM THE COURT DURING PROCEEDINGS

... since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.435

Without prejudice to any powers which a court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a court against any person for an offence under the principal Act or this Act or the proceedings on appeal, or in the course of the trial of a person for felony or misdemeanour under the principal Act or this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the national safety, that all or any portion of the public shall be excluded during any part of the hearing, the court may make an order to that effect, but the passing of sentence shall in any case take place in public.

Parliament deemed it necessary to augment in the Official Secrets cases, whatever common law powers a court had to sit in private by one the exercise of which would not be dependent upon the court’s assessment of the danger of publicity to the administration of justice.437

It is argued that if reliance is placed on section 8(4) of the Official Secrets Act 1920, the Crown must provide sworn evidence that disclosure would “be prejudicial to the national safety.” We cannot accept this. Courts should of course always be alert to the importance of keeping proceedings before the public and should examine with care the argument in favour of secrecy, but it will often happen that something less than formal proof is all that is available.439

In the instant case the magistrates would have had power to sit in camera to hear the whole or part of the evidence of “Colonel B” if this had been requested by the prosecution; and although they would not have been bound to accede to such a request it would naturally and properly have carried great weight with them. So would the absence of any such request. Without it the magistrates, in my opinion, would have had no reasonable ground for believing that so drastic a derogation from the general principle of open justice as is involved in hearing evidence in a criminal case in camera was necessary in the interests of the due administration of justice.440

Provisional conclusion 19

The power conferred on the court by section 8(4) of the Official Secrets Act 1920 ought to be made subject to a necessity test whereby members of the public can only be excluded if necessary to ensure national safety (the term used in the 1920 Act) is not prejudiced. Do consultees agree?

Consultation responses

In our view, this amendment is required so that the limitations on the power conferred on the court by section 8(4) are aligned with the remit of the court’s common law power to hear matters in private. Moreover, we note that the necessity test, due to its more precise wording and the existing common law guidance on its interpretation, would offer both (i) a more stringent legal test; and (ii) a more certain outcome than the current statutory wording of “prejudicial”, thus ensuring that the fundamental principle of open justice is maintained where possible.441

The BBC ... welcomes the Law Commission’s recognition that the power conferred by section 8(4) to exclude the public must only be exercised [in] cases of necessity. Further, we agree that the necessity in question must be to ensure public safety. We believe that the precise phrasing here is important since the requirement of necessity would be diluted if what was being guarded against was any prejudice to national safety since national safety can be prejudiced whilst still being ensured. For example, the publication of information might result in resources needing to be redeployed or additional measures being taken. Having to take such steps might be prejudicial to national security but, provided national security could still thereby be ensured, the public interest in open justice would, we submit, dictate that the evidence be given in public.442

. the media may not always be the best or most effective representatives of the public interest. We should be cautious about both the process and the media’s role. It is not at all inconceivable that journalists will moderate the way they report so that they do not risk their “accreditation”.446

overall, while a necessity test [as defined in the Consultation Paper] is preferable to the existing test, the retention of the overall position of s 8(4) is not supported.449

Analysis

Recommendation 29.

JURY CHECKS

General for an authorised jury check should, if at all possible, accompany the papers requesting the consent to proceedings.456

Provisional conclusion 20

The guidance on authorised jury checks ought to be amended to state that if an authorised jury check has been undertaken, then this must be brought to the attention of the defence representatives. Do consultees agree?

Consultation responses

The vetting of members of the jury should be exceptional and if undertaken this infringement of the random selection principle is so significant, transparency is “vital” and so the defence must be informed.457

Particular care is required in this area ... the absence of a right to challenge the decision to conduct a jury check, or the extent of the check, raises questions as to what benefit there can be in routinely sharing such information. The proposed reform would have to be carefully justified together with guidance on the use that could be made of any disclosed information.458

Analysis

Recommendation 30.

ISSUES THAT APPLY MORE GENERALLY TO CRIMINAL TRIALS IN WHICH SENSITIVE INFORMATION MAY BE DISCLOSED

The first question is whether reporting of the proceedings would give rise to a substantial risk of prejudice to the administration of justice. If not, that is the end of the matter.

If there is a substantial risk of such prejudice, the court must ask whether a s.4(2) order would eliminate that risk. If not, there could be no necessity to impose a ban.

Even if a judge is satisfied that the order would achieve the objective, he should still ask whether the risk can be overcome by less restrictive means. If so, a s.4(2) order could not be said to be necessary.

If the judge is satisfied that the order is necessary, he has a discretion and must balance the competing public interests between protecting the administration of justice and ensuring open justice and the fullest possible reporting of criminal trials. An order under s.4(2) should be regarded as a last resort.459

Provisional conclusion 21

A separate review ought to be undertaken to evaluate the extent to which the current mechanisms that are relied upon strike the correct balance between the right to a fair trial and the need to safeguard sensitive material in criminal proceedings. Do consultees agree?

Consultation responses

This is an area that is likely to be encountered in the courts with increasing frequency. Clear guidance as to how to deal with such situations is required.466

Closed Material Procedures represent a radical, but relatively new, departure from the principles of open justice. Further the application of common law powers for the court to sit in private in the Incedal467 case and also in R vAbdallah ... have been controversial and have given rise to concerns.468

We agree that such a review ought to be undertaken. However, we note that a direct comparison with the relevant civil law procedure (as mooted in the Consultation Paper) may be misleading inasmuch as the “closed material procedure” is aimed at withholding material from the non-governmental party to a civil case, as opposed to hearing sensitive material in camera. In our view, withholding material from another party in a criminal case is squarely against the right to a fair trial and thus should be preserved for the most extreme of circumstances.469

The suggestion in the consultation paper that such [civil] powers should be extended to the criminal context should be not be pursued. Moreover, there is no good reason at this point in time to embark on a wider review of criminal trial process and national security issues. The Incedal471 case is presently and should hopefully remain an exceptional one. ... We disagree with this provisional conclusion in the strongest possible terms.472

.would not support any proposal that would result in the availability of closed material proceedings in criminal courts. There is considerable disquiet about its use in civil proceedings, and it would be wholly inappropriate to introduce it to a criminal court context.473

Analysis

Recommendation 31.

PART III

Public Interest Disclosures

INTRODUCTION

THE STRUCTURE OF THIS PART OF THE REPORT

OUR APPROACH IN THE CONSULTATION PAPER TO THE STATUTORY COMMISSIONER

The Civil Service Commission

We welcome views from consultees on the effectiveness of the Civil Service Commission as a mechanism for receiving unauthorised disclosures.

Responses

These disclosures are currently ‘authorised’ by the Official Secrets Act 1989. The Commission also confirmed in a response to a Freedom of Information request to the author that it has procedures in place for handling such concerns. The author suggests that there is scope for the Civil Service Commission to take a more active role in the handling of whistleblowing concerns by Civil Servants. Although it is acknowledged that the Commission have made progress to introduce guidance to whistleblowers and organisations more is possible. For example, the guidance and the Civil Service Code could be clearer on when the Commission will be prepared to receive a concern. The guidance steers Servants to use internal processes only identifying that they ‘may consider receiving a concern direct’ this is rather vague, particularly considering that the Civil Service Commission is effectively the last official option available - at least as far as the Civil Service Code is concerned. The Code makes clear that:

“If the matter cannot be resolved using the procedures set out above, and you feel you cannot carry out the instructions you have been given, you will have to resign from the Civil Service.”

The wording is unhelpful particularly because even if the Commission agrees to investigate a concern it has no power to make departments follow corrective action and can only make recommendations...

...the author wishes to highlight that the Civil Service Commission is limited to investigating breaches of the Civil Service Code. The author advises the Law Commission that further consideration needs to be given to matters of concern which may fall outside of this remit.

Issues are not subject to outside scrutiny and debate. The Civil Service Commission retains the discretion as to whether matters are taken up with the permanent secretary, or will be included in any report to Parliament or made public in any way.476

There appears to be little evidence that internal mechanisms for reporting wrongdoing are widely used or effective. Indeed, the Commission notes the very low number of approaches made to the Civil Service Commission despite it having been given statutory powers. This may be indicative of a lack of faith on the part of civil servants in whistle-blowing procedures as noted by the Public Administration Select Committee in its investigation of Whitehall leaks. We also note that there is no appeal mechanism from the Commission’s decisions and no obligation on the state to follow the Commission’s recommendations.477

The Commission is ineffective because it covers civil servants only, and not others who may have access to official information in the course of their employment.478

Whilst a reasonable proposal in theory, in practice this would we believe be ineffective. Whistleblowers UK has put forward proposals for a statutory and independent Office of the Whistleblower; we are happy to share those proposals with the Commission if desired.479

The Civil Service Commission has commented that its remit is limited to hearing appeals under the provisions of the Civil Service Code and is set out in the Constitutional Reform and Governance Act 2010. It does not receive protected disclosures nor is it a prescribed person for the purposes of the Public Interest Disclosure Act. Those concerns that are raised by civil servants and investigated in the Department, and in some cases appealed to the Commission, would not therefore be considered to be unauthorised disclosures for the purpose of the Civil Service Code. The Civil Service Code is an effective framework for civil servants (outside of the security services, and military) to raise concerns of an ethical nature and be automatically protected in doing so, with the right to refer the matter to the Civil Service Commission on appeal. The Commission does not see the possibility or any benefit in extending its scope to receiving disclosures outside of the remit of the Civil Service Code, which would require additional resource and alter its statutory remit.

Analysis

Existing external mechanisms

To provide staff with an internal avenue to raise any ethical concerns they may have about the Service’s work with someone who is outside their management line.481

Proposals for a statutory commissioner

A member of the security and intelligence agencies ought to be able to bring a concern that relates to their employment to the attention of the Investigatory Powers Commissioner, who would be able to investigate the matter and report their findings to the Prime Minister. Do consultees agree?

Responses

This model needs: (a) to be fleshed out more fully with some uncertainties resolved, (b) to have a pathway for former employees, and (c) accompanied by a public interest defence, as the Canadian model is.

We welcome the call for reform of the internal whistleblowing arrangements that exist in the intelligence agencies; we feel this is long overdue. We see though a major flaw in the conclusion that changes to internal arrangements on their own, even if the system creates an independent oversight mechanism, can fully replace the need for a PID...

...We do though back the report’s conclusions that the whole system would benefit from an additional independent oversight tier to the arrangements.

We welcome the proposal to extend the Investigatory Powers Commissioner (IPC) role into being an independent oversight body for whistleblowing within the security services, as opposed to formalising in law the Staff Counsellor’s role. This is something that we have also called for in our response to the Investigatory Powers Act when it went through the legislative process in 2015.486

This is an internal mechanism about which Trinity Mirror has no specific comment, but this process should not be used to prevent, or be an alternative to, whistleblowing of wrongdoing to news organizations. It is easy to envisage a system like this taking months to get through the red tape and internal procedure and the end result would be that serious wrongdoing would be kept secret or covered up by the Government. It is a matter of degree, but serious wrongdoing or gross incompetence that is clearly in the public interest to expose should not be hidden from public view.487

Finally, given that the Intelligence and Security Committee is also responsible for oversight of the security and intelligence services, we think consideration should be given as to whether individuals should be empowered to report their concerns to the Committee, either directly or via the Commissioner.488

In fact an independent channel is a concept I have been publicly advocating for years... as to my mind the potential whistleblower can thereby avoid losing their career and potentially their liberty, and the intelligence agency avoids a scandal and can potentially improve its working practices and better protect the nation.489

Rather than leaking information to journalists the Law Commission suggests whistleblowers should initially raise concerns to an Investigatory Powers Commissioner, rather than a journalist. This is a woefully inadequate solution to attempt to demonstrate self-regulation. It would be impossible for whistleblowers to remain anonymous under such circumstances and in all likelihood having to alert officials to misgivings over, for example, systemic failings would be enough to put off those who wish to leak vital information altogether.490

As far as the proposal to utilise the Investigatory Powers Commissioner is concerned we believe that it seems disproportionate to create a new bureaucratic process and to vest powers in a, so far, untested new appointment when the departments concerned and the Courts could provide a sufficient framework as is currently the case. We also agree with the points made in paragraphs 41 to 46 of the submission of English PEN, Article 19 and Reporters Without Borders and particularly their concern that the office of the Investigatory Powers Commissioner may not have the capacity to discharge this function at speed which is essential where the information in question is time-sensitive.491

Analysis

UK’s future compliance with Article 10. We consider that IPCO is uniquely well-suited to the task. We make recommendations in detail in Chapter 10.

OUR APPROACH IN THE CONSULTATION PAPER TO THE PUBLIC INTEREST DEFENCE

Responses of a general nature

We continue to believe that the reasons for not introducing a public interest defence given in the White Paper that preceded the Official Secrets Act 1989 remain valid. Further, we do not believe that the introduction of such a defence would in fact bring any tangible benefit to the public interest, given the means that already exist to hold the security and intelligence agencies to account and ensure that misconduct and impropriety can be brought to light and dealt with.

An internal safeguard may be appropriate for certain types of concern, while a right to go public may be appropriate in others. For example, where a member of the security and intelligence services wants to report some misconduct by a colleague, the internal system may be an appropriate way for such complaints to be investigated and for remedial action to be taken. However, in other cases a whistleblower may not wish to report some wrongdoing that requires corrective action, but seek to disclose information that the public has a right to know in order to assess the actions of government. For example, a decision to supply military equipment to a particular country or to covertly monitor certain communications may not be the type of wrong that an internal process can deal with (if it is part of a strategy approved by government), but there is an argument that the public should know these activities are taking place.

The absence of a public interest disclosure defence for officials is only acceptable if there truly are robust and effective and independent internal mechanisms to review official action and other exemptions for reporting criminality to the police.494

Insufficient attention to the benefits of a public interest defence

...public exposure can have a positive, and unparalleled, cleansing and disinfecting effect on officialdom, which only an unfettered media can deliver. The press is uniquely placed to provide the oxygen of publicity that alerts people to risk, keeps the electorate informed and holds government to account, in a way that ethics counsellors in closed backroom sessions never could.495

We do not feel sufficient attention has been paid to the merits of an essential public interest defence...496

Recognising the fact that large organisations - such as the UK’s intelligence and security agencies - will suffer from organisational blindspots and systemic errors does not require any special scepticism towards them, just a recognition that sometimes only outside oversight - often by the press and public - can break through entrenched practice.497

The availability of a statutory public interest defence is essential, however inconvenient that may be for the authorities and/or the prosecution.498

We strongly disagree with the report’s [sic] conclusions in this area, and see the introduction of a public interest defence (PID) as a vital reform to ensure there is effective accountability in this sensitive area of Government activity. An absence of a PID risks undermining internal whistleblowing arrangements across Government, from Whitehall to the intelligence services, pushing concerned civil servants into making anonymous disclosures to the media.499

Analysis

Everyone accepts that some government information must remain secret. The system of secrecy, however, requires safeguards to ensure that the power to withhold information is not abused to shield government from criticism or embarrassment, or to cover up wrongdoing.

Trust and loyalty of civil servants

...the obligation to respect the democratic allocation of power prohibits civil servants from whistleblowing. The idea is that whistleblowers usurp the power to decide what is and what is not a legitimate state secret, whereas this is properly the prerogative of democratically elected officials. These officials have received a mandate from the people to decide, among many other things, on matters of state secrecy, whereas those engaged in whistleblowing have been elected neither by the people nor by its representatives.501

When unauthorized disclosures occur, vital decisions on matters of national security are effectively being made by private actors, an outcome that violates the democratic ideal that such decisions should be made by persons or institutions that have been directly or indirectly endorsed by citizens.502

Responses

We . do not accept the assertion that [a public interest defence’s] existence would in any way undermine the trust upon which the relationship between ministers and the Civil Service is based.503

Impartiality is a core value in the Civil Service Code, but disclosures in the public interest do not threaten impartiality as they are not a political act. Further, integrity is also a value in the Code and it can be argued that civil servants in serving the public interest, and holding Government to account for wrongdoing, are performing a constitutional role, rather than a political one in merely maintaining a political party in power.504

It cannot be right that civil servants justify the concealment of serious wrongdoing using a cloak of Ministerial trust. Certainly, only disclosures the revelation of which is in the public interest should be protected. The threat of prosecution and imprisonment for disclosures which are not so justified will remain a powerful deterrent. But trust in a civil servant not to reveal blatant illegality is not something to be fostered, but opposed.505

The preservation of ‘trust’ had long been the justification for retaining the discredited section 2 [of the Official Secrets Act 1911], criminalising the unauthorised disclosure of all official information. If the current proposals are based on the need to protect trust between ministers and officials, ministers in the Department of Transport, the Department for Education, the Department for Work and Pensions and others may argue that they have as much need as their Foreign Office or Ministry of Defence colleagues for their officials’ loyalty. This would point to a return to the philosophy of the old section 2.508

A poorly drafted PID could create this risk but this can be mitigated by ensuring that the drafting of the defence so safeguards minimise [sic] the risk of damage to public security. This issue has already been considered in depth by Principle 43 of the

Tshwane Principles [which] provides examples of safeguards that courts and juries could be required to consider when applying the defence...509

Analysis

Risk to others and national security

However well-intentioned he or she may be, a member or former member of the security or intelligence services may not be equipped with sufficient information to understand the potential impact of any disclosure. It may cause far more damage than the person making the disclosure was ever in a position to anticipate.510

Responses

[The potential risk to national security] is an inherent risk for the security services, but any public interest defence should be judged on whether the benefit of the disclosure was proportionate to the risk.511

Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information.513

[we] submit that the consideration of the impact of ‘mosaic’ theory of national security risks ought not to form any part of the assessment of a public interest defence to disclosure offences.515

Analysis

the theory’s basic premise is valid, if simple: Informational synergy does exist, and adversaries can capitalize on it to our detriment. Indeed, the only way adversaries can capitalize on information disclosure is through mosaic-making.516

A public interest defence would create legal uncertainty

Responses

Courts and Juries can and do contend with the concept of the public interest in other situations. Cases involving the law of confidence, data protection or the Public Interest Disclosure Act will often involve individuals having to make this kind of judgement. It is not obvious why cases involving the disclosure of official information should be considered differently.

There's also already a degree of uncertainty in Official Secrets Act cases as the Attorney General makes the decision about whether to prosecute. Furthermore, in at least three cases brought under the 1989 Act - that of Katherine Gunn, Derek Pasquill and the second against Richard Tomlinson - charges have either been dropped or the prosecution has declined to offer evidence. In other words, this is a system in which public interest factors play a role and do so in a very unpredictable manner. A statutory public interest defence would likely make the system more predictable, rather than less.517

Public interest tests, defences and exemptions appear across English law. They include statutory provisions concerning the disclosure or publication of information. See the public interest disclosure provisions of the Employment Rights Act; section 4 of the Defamation Act 2013; section 32 of the Data Protection Act 1998; section 55(2)(ca) of the Data Protection Act 1998 (as amended but not yet in force [at that time]). There are also numerous public interest provisions in the Freedom of Information Act 2000. There are also judicially-developed public interest defences or justifications in breach of confidence and copyright.518

It is submitted that it is wrong to state that it would be “impossible” for a jury to reach a just conclusion when evaluating a public interest defence (paragraph 7.52). No empirical studies or academic opinion is cited to support the proposition. The issue of whether a disclosure is made in the public interest would be determined on an assessment of the relevant evidence which would be called and challenged. It should not be elevated into a special category of evidence. It is the experience of criminal practitioners that jurors routinely grapple with technical and complicated concepts relating to financial, medical and scientific evidence in circumstances where experts disagree. Parliament could prescribe categories of behaviour or circumstances, of which disclosure would be in the public interest; see for example Section 43(B)(1) Employments Rights Act 1996 at paragraph 7.19 and below. Although the statutory whistle blowing provisions do not apply to members of the security and intelligence services and military personnel (paragraph 7.22), they do otherwise apply to those in the employment of the Crown, who are and will continue to be subject to the OSAs and any replacement statutory regime.

It is not accepted that a public interest defence will inevitably offend against the certainty rule (paragraph 7.50 et seq). The requirement, in respect of the ingredients of an offence, is “for sufficient rather than absolute certainty ... no-one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it”. Different considerations may apply between ingredients of an offence and a statutory defence and again depending on whether the defence imposes an evidential or legal burden on the defendant. The defence could be subject to further statutory definition, for example setting out relevant categories as per the whistle blowing provisions (see paragraph 7.19).

Analysis

A public interest defence might “open the floodgates”

Responses

A person would not know in advance whether a defence is likely to succeed or not. The source would likely find that the chances of success are slim, given that the courts will show considerable respect for the government’s assessment of where the public interest lies. These factors would be likely to have a deterrent effect on a would-be leaker. A further deterrent would be the various adverse consequences of being identified as a leaker, aside from criminal liability, which might include the loss of employment or at least discipline at work. Rather than providing a green light for individuals to publish vast amounts of information, there is a good chance that a public interest defence will be a disappointment to those seeking greater transparency in government. The risk of a public interest defence legitimating reckless or misguided disclosures may be less significant than might initially appear.520

In respect of the defence pursuant to Section 55 of the Data Protection Act 1998, stakeholders have confirmed that the defence is pleaded very rarely (paragraph 7.12). Whilst there is often likely to be some causal link between disclosure and the existence of a public interest defence that will not always be the case, for example where financial reward is the motivation for the disclosure. The limited empirical evidence from Canada and Denmark - jurisdictions which have enacted a public interest defences in official secret cases - suggest that it will only be rarely, if at all, where the need will arise for reliance on the defence.521

On the Snowden revelations, we note our role as careful facilitators, curators and moderators. During that reporting, Guardian staff took every decision very carefully. In nearly four months they published a handful of stories about GCHQ, and not a single GCHQ document in full - they quoted small portions of documents. In total, they published less than one per cent of the material they received.522

There will be no “floodgates” effect of increased disclosure because an editor will still have to consider whether there really is a public interest about what is being disclosed and there still may be offences that it would be difficult to avoid and thus prevent publication such as the Computer Misuse Act 1990. In any event the DSMA [notice committee] is still an effective filter for what is acceptable and what is truly harmful.523

Analysis

(perhaps, say, in order to increase the likelihood of remaining completely anonymous and thereby avoiding the risk of prosecution).

Open justice

As a general rule the English system of administering justice does require that it be done in public. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.524

reporting restrictions orders are ... exceptional, require clear justification and should be made only when they are strictly necessary to secure the proper administration of justice . they are measures of last resort.528

CONCLUSION

Chapter 9: Article 10 of the European Convention on Human Rights

INTRODUCTION

The task of the European Court of Human Rights, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully, and in good faith; what the court has to do is look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.531

WHAT DOES COMPLIANCE WITH ARTICLE 10 REQUIRE?

Is the interference prescribed by law?

Does the interference pursue a legitimate aim?

Is the interference necessary in a democratic society?

Duty of discretion

It is also necessary to take into account the special conditions attaching to military life and the specific “duties” and “responsibilities” incumbent on members of the armed forces. The applicant, as the officer at the KETA [the Greek Air Force] in charge of an experimental missile programme, was bound by an obligation of discretion in relation to anything concerning the performance of his duties.560

Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for them ... In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one.562

Effective means of remedying the wrongdoing

HOW WOULD SHAYLER BE DECIDED TODAY?

Summary of the judgment

The need to preserve confidentiality

The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention.579

The Security and Intelligence Services are necessary for our national security. They are, and must remain, secret services if they are to operate efficiently. The only practical way to achieve this objective is a bright line rule that forbids any member or ex-member of the service to publish any material relating to his service experience unless he has had the material cleared by his employers. There is, in my view, no room for an exception to this rule dealing with trivia that should not be regarded as confidential. What may appear to the writer to be trivial may in fact be the one missing piece in the jigsaw sought by some hostile intelligence agency.581

within the wide margin of discretion which is to be accorded to the legislature in matters relating to national security especially where the Convention rights of others such as the right to life may be put in jeopardy.582

In favour of that choice there are a number of important factors. However well-intentioned he or she may be, a member or former member of the security or intelligence services may not be equipped with sufficient information to understand the potential impact of any disclosure. It may cause far more damage than the person making the disclosure was ever in a position to anticipate. The criminal process risks compounding the potential for damage to the operations of these services, if the prosecution have to prove beyond reasonable doubt the damaging nature of the disclosures.583

Channels for authorised disclosure

One would hope that, if disclosure were made to one or other of the persons listed above, effective action would be taken to ensure that abuses were remedied and offenders punished. But the possibility must exist that such action would not be taken when it should be taken or that, despite the taking of effective action to remedy past abuses and punish past delinquencies, there would remain facts which should in the public interest be revealed to a wider audience. This is where, under the OSA 1989 the second condition comes into play: the former member may seek official authorisation to make disclosure to a wider audience.588

As I see it, the scheme of the Act is vulnerable to criticism on the ground that it lacks the necessary degree of sensitivity. There must, as I have said, be some doubt as to whether a whistle-blower who believes that he has good grounds for asserting that abuses are being perpetrated by the security or intelligence services will be able to persuade those to whom he can make disclosures to take his allegations seriously, to persevere with them and to effect the changes which, if there is substance in them, are necessary.591

Judicial review of unjust refusal of authorisation

The court's willingness to intervene will very much depend on the nature of the material which it is sought to disclose. If the issue concerns the disclosure of documents bearing a high security classification and there is apparently credible unchallenged evidence that disclosure is liable to lead to the identification of agents or the compromise of informers, the court may very well be unwilling to intervene. If, at the other end of the spectrum, it appears that while disclosure of the material may cause embarrassment or arouse criticism, it will not damage any security or intelligence interest, the court's reaction is likely to be very different. Usually, a proposed disclosure will fall between these two extremes and the court must exercise its judgment, informed by article 10 considerations.595

I cannot envisage circumstances in which it would be proper for the service to refuse its authorisation for any disclosure at all to a qualified lawyer from whom the former member wished to seek advice.596

Attorney General consent

The Attorney General will not give his consent to prosecution unless he judges prosecution to be in the public interest. He is unlikely to consent if the disclosure alleged is trivial or the information disclosed stale and notorious or the facts are such as would not be thought by reasonable jurors or judges to merit the imposition of criminal sanctions. The consent of the Attorney General is required as a safeguard against ill-judged or ill-founded or improperly motivated or unnecessary prosecutions.598

Concluding remarks

It is plain that a sweeping, blanket ban, permitting of no exceptions, would be inconsistent with the general right guaranteed by article 10(1) and would not survive the rigorous and particular scrutiny required to give effect to article 10(2). The crux of this case is whether the safeguards built into the OSA 1989 are sufficient to ensure that unlawfulness and irregularity can be reported to those with the power and duty to take effective action, that the power to withhold authorisation to publish is not abused and that proper disclosures are not stifled. In my opinion the procedures discussed above, properly applied, provide sufficient and effective safeguards. It is, however, necessary that a member or former member of a relevant service should avail himself of the procedures available to him under the Act. A former member of a relevant service, prosecuted for making an unauthorised disclosure, cannot defend himself by contending that if he had made disclosure under section 7(3)(a) no notice or action would have been taken or that if he had sought authorisation under section 7(3)(b) it would have been refused. If a person who has given a binding undertaking of confidentiality seeks to be relieved, even in part, from that undertaking he must seek authorisation and, if so advised, challenge any refusal of authorisation.599

How would the case be decided today?

9.71 As consultees emphasised, it is necessary to consider the extent to which any provision which has the potential to impact upon journalistic activity is compatible with Article 10. We accept the point made by Guardian News and Media and News UK, amongst others, that the Article 10 implications of prosecuting journalists require separate consideration. The discussion in this section is on the narrow issue of how the ECtHR assesses the proportionality of interferences in the freedom of expression of those engaged in journalistic activity. In particular, the discussion is concerned with the interference made by section 5 of the Official Secrets Act 1989. Section 5 provides:

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.

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.

and information or a document or article is protected against disclosure by sections 1 to 3 above if it falls within paragraph (a) above.

illegal conduct or wrongdoing... [where]... the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large.605

The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.610

The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.612

reveals the Court making its own assessment of whether national security interests, even in the sensitive field of security service operations, require the limitation of freedom of expression concerning such activities.621

The offences applicable to journalists

Applying the ECtHR case law to the sections 5 and 6 offences

Consultation responses

it is only in respect of the ‘strict liability’ offences under sections 1(1)(a) and 4(1) of the Official Secrets Act 1989 (unlawful disclosure by a member of the security or intelligence services and by a Crown servant or government contractor, respectively) that the House of Lords, in R v Shayler, confirmed that there is no public interest defence available, leaving it an open question whether such a defence might be available in respect of other offences under the Act.

In view of the interests protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom.

The ECtHR recognised the public’s right to receive information and the right of access to information via the media in cases such as Leander v. Sweden:624 Article 10 “prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him”. Similarly, in Youth Initiative v Serbia, 2013: “the gathering of information is an essential preparatory step in journalism and is an inherent, protected part of press freedom” and Guseva v Bulgaria, in 2015.625 Thus, the hindering of access to information which is of public interest “may discourage those working in the media, or related fields, from pursuing such matters”. As a result, they may no longer be able to play their vital role as “public

watchdogs” and their ability to provide accurate and reliable information may be “adversely affected”.

Whilst the Strasbourg jurisprudence relating to whistleblowers (in particular Guja v Moldova and Bucur and Toma v Romania) is not directly applicable to journalists, the Law Commission’s provisional recommendations raise important questions as to whether journalistic expression will be disproportionately restricted by the proposals. The expression rights of journalists are unlikely to be protected by allowing them to bring any information they receive from a Crown servant to an authorised disclosure route. As the Law Commission will be aware, Strasbourg provides journalists with a particularly high degree of protection to report on matters of the public interest. The practicalities of allowing journalists access to an authorised disclosure approvals process or via the Defence and Security Media Advisory (“DSMA”) Notice could be further explored together with the workability of a public interest defence.

DOES ARTICLE 10 MANDATE A PUBLIC INTEREST DEFENCE?

Compliance with Article 10 of the European Convention on Human Rights does not mandate a statutory public interest defence. Do consultees agree?

Consultation responses

Is Shayler still good law in deciding whether Article 10 of the ECHR mandates a public interest defence?

[The doctrine of margin of appreciation] is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states, but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues within their own countries.626

Proportionality

between, on the one hand, members of the security and intelligence agencies (ie. Shayler) and duly notified persons (section 1(1)) and, on the other hand, current or former Crown servants and government contractors ... whose contractual duties in this regard may be less onerous.

Absence of a public interest defence

If the internal mechanism fails, disclosure of information of public interest including classified information ... is protected under Article 10. Thus, in Convention law, there is a de facto public interest defence and any new legislative measure which fail to recognise this would not be in compliance with the European Convention on Human Rights, and the Human Rights Act 1998.

even if such mechanisms exist, they do not suffice to bar the whistleblower from proceeding to a public disclosure and courts from proceeding to the ad hoc test of whether they functioned properly in that particular instance and whether the disclosure was in the PI. [This] approach therefore, does not provide an adequate solution to the problem of balancing the interests of security and disclosures.631

The lack of a public interest defence and its impact on Article 10

does not mandate a public interest defence, it makes clear that where information is of a sufficiently high value to outweigh competing interests (to the organisation) and attempts to raise the concern through authorised channels have failed or it is not practical in the circumstances to do so an individual is able to obtain protection under Article 10.

[a]lthough we agree that case law does not currently mandate a freedom of information defence, the cases repeatedly stress the importance of Article 10 and we therefore believe that such a defence is desirable.

the enactment of a statutory public interest defence would ensure compliance with the Convention right to freedom of expression, protecting both investigative journalism and whistleblowers who disclose information in the public interest. Any bill failing to provide a public interest defence misses an opportunity to protect the human rights of whistleblowers.

the information may concern corruption at such a high level that internal methods of addressing the problem would be ineffective. Clearly, good intentions are normally irrelevant in criminal trials ... However, it is arguable that an exception to this rule should be made in respect of the Official Secrets Act. A statute aimed specifically at those best placed to know of corruption or malpractice in government should, in a democracy, allow such a defence. The fact that it does not argues strongly against the likelihood that it will have a liberalising impact.634

CONCLUSION

investigate disclosures of wrongdoing. This reflects not only our view that this would be necessary to ensure adequate protection to public interest disclosures for the purposes of Article 10 and domestic law, but also the broader principle that the cloak of confidentiality should not be used to mask serious wrongdoing.

THE STATUTORY COMMISSIONER AND CONSULTATION RESPONSES

The Investigatory Powers Commissioner’s Office (“IPCO”)

WHAT WOULD THE STATUTORY COMMISSIONER MODEL LOOK LIKE?

Who can make disclosure to the Statutory Commissioner?

Evidence requirement

The SC’s duty upon receiving a complaint

Outcome of investigation

Public disclosure by the SC

What form should public disclosure take?

Other remedial actions

Reporting to the ISC and to the Prime Minister

TIME-SENSITIVE COMPLAINTS

CONFLICTS OF INTEREST

APPEALS PROCESS

THE STATUTORY COMMISSIONER AND ITS RELATION TO THE PUBLIC INTEREST DEFENCE

INJUNCTIONS AND PRIOR RESTRAINT

What is an injunction?

The liability of third parties

The purpose of injunctions

Perpetual injunctions

Interim injunctions

Injunctions and the use of the SC

CONCLUSION

Recommendation 32.

INTRODUCTION

Our Consultation Paper

Our recommendation for a public interest defence

and therefore suggest a form of defence in skeletal form. For example, it is important to bear in mind that any assessment of whether the disclosure was in the public interest will necessarily have to take account of whether the chosen manner of disclosure risked more damage than was necessary: therefore, a Crown servant relying on the defence would be required to demonstrate why the authorised methods of disclosure (such as the Statutory Commissioner (“SC”) proposed in the preceding chapter) did not adequately serve the public interest.

We, unlike the Government, do not have the evidence necessary to draft with confidence on these matters.

WHY IS A PUBLIC INTEREST DEFENCE DESIRABLE?

(a possibility we consider in Chapter 10). The availability of a public interest defence in those situations would ensure that the UK has afforded sufficient protection to the Article 10 rights of those who make unauthorised disclosures that reveal or prevent wrongdoing.

WHAT IS DISTINCTIVE ABOUT A PUBLIC INTEREST DEFENCE?

Section 4(1) of the Obscene Publications Act 1959, for example, states that a person who publishes an obscene article contrary to section 2 of that Act shall not be convicted if publication of the article is “justified as being for the public good on the grounds that it is in the interests of science, literature, art or learning, or of other objects of general concern”. Both the prosecution and the defence are entitled to call expert witnesses to establish whether the publication may be justified as being for the public good.653 A “public good” defence in obscenity law does not amount to a denial of harm. The article remains obscene, but its obscenity is justified on the grounds that its publication is in the “public good”. This is the same role as is played by the concept of public interest in the context of unauthorised disclosure offences.

A TRUE PUBLIC INTEREST DEFENCE

However, where the fault element of the crime is met, it will not be sufficient to show that the motive was noble.

IS IT NECESSARY TO HAVE DIFFERENT DEFENCES FOR DIFFERENT CATEGORIES OF DEFENDANT?

BURDEN OF PROOF

Defendant, D, has disclosed a document in breach of the 1989 Act. The implication of this document is that the UK special forces have been engaged in illegal conduct, owing to a reference to “special forces operating in Ruritania”. D argues that there is therefore a public interest in publishing the document. However, the inference sought to be drawn from the document, and thus the basis of the public interest in publishing it, is entirely incorrect: despite the apparent implication of the document, there has been no illegal conduct as the reference was not to UK special forces.

Compliance with Article 6(2)

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence...656

PUBLIC INTEREST AND THE METHOD OF DISCLOSURE

ALTERNATIVE MODELS

What is necessary is for the relevant statute to provide further details of which factors the decision maker is to have regard to.

A subject-matter approach

Defining “public interest” by reference to a list of factors

So long as the areas of subject matter are selected with care, this approach to protecting the public interest avoids any theoretical difficulty entailed in defining the public interest in a general sense. Responding to the concerns raised in the Consultation Paper, a public interest defence for the disclosure of official data which was structured in this manner - i.e. as a defence made out where the information disclosed demonstrated criminal or other unlawful conduct - would neither give rise to unworkable uncertainty nor provide cover for partisan political activities.

Subsection (1) does not apply to a disclosure -

A list of factors specifying what cannot be considered to be in the public interest

A broader, two-fold approach

A public interest defence for journalists

CONCLUSION

Recommendation 33.

Recommendation 1.

Paragraph 3.9

Recommendation 2.

Paragraph 3.32

Recommendation 3.

Paragraph 3.45

Recommendation 4.

Paragraph 3.56

Recommendation 5.

Paragraph 3.70

Recommendation 6.

Paragraph 3.85

Recommendation 7.

Paragraph 3.106

Recommendation 8.

Paragraph 3.119

Recommendation 9.

Paragraph 3.130

Recommendation 10.

Paragraph 3.150

Recommendation 11.

Paragraph 4.81

Recommendation 12.

Paragraph 5.17

Recommendation 13.

Paragraph 5.41

Recommendation 14.

Paragraph 5.70

Recommendation 15.

Paragraph 5.127

Recommendation 16.

Paragraph 5.136

Recommendation 17.

Paragraph 5.146

Recommendation 18.

Paragraph 5.169

Recommendation 19.

Paragraph 5.185

Recommendation 20.

Paragraph 5.205

Recommendation 21.

Paragraph 5.222

Recommendation 22.

Paragraph 6.27

Recommendation 23.

Paragraph 6.43

Recommendation 24.

Paragraph 6.50

Recommendation 25.

Paragraph 7.39

Recommendation 26.

12.43 Consideration should be given, as part of the review of the Protocol, to an

appropriate mechanism for providing oversight of its operation.

Paragraph 7.40

Recommendation 27.

Paragraph 7.41

Recommendation 28.

Paragraph 7.42

Recommendation 29.

Paragraph 7.65

Recommendation 30.

Paragraph 7.79

Recommendation 31.

Paragraph 7.100

Recommendation 32.

Paragraph 10.108

Recommendation 33.

Paragraph 11.81

GOVERNMENT AND PUBLIC BODIES

MEDIA ORGANISATIONS

OTHER LEGAL ORGANISATIONS AND LAW FIRMS

OTHER FIRMS

NON-GOVERNMENTAL ENTITIES

ACADEMIC

SELECT INDIVIDUAL RESPONSES

CCS0820043516

978-1-5286-2113-7

1

Intelligence and Security Committee of Parliament, Russia (HC 632) para 117.

2

For a list see Appendix to the CP.

3

See further discussion in the CP, para 1.9.

4

We are grateful to these organisations for hosting a number of these roundtable events, and to Matrix Chambers for hosting one with legal representatives from media organisations in June 2016, before we published the Consultation Paper.

5

Intelligence and Security Committee of Parliament, Russia (HC 632) para 114.

6

Crown servants, government contractors, and notified persons, whether or not members of the security services.

7

We ought to have made this clearer since some consultees were under the impression we had concluded our work and recommended a new Espionage Act.

8

R Thomas, Espionage and Secrecy (1991) p 3; Consultation Paper, para 2.10.

9

Hansard (HL), 25 July 1911, vol 9, cc 641-647.

10

R Thomas, Espionage and Secrecy (1991) p 12; Consultation Paper, para 2.11.

11

  Hansard (HL), 25 July 1911, vol 9, cc 641 to 647.

12

  Hansard (HL), 18 August 1911, vol 29, cc 2257; Consultation Paper, para 212.

13

R Thomas, Espionage and Secrecy (1991) pp 11 to 34; Consultation Paper, para 2.74.

14

See R Thomas, Espionage and Secrecy (1991) pp 12 to 20.

15

R Thomas, Espionage and Secrecy (1991) pp 12 to 13; Consultation Paper, para 2.76.

16

eg: Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents: Official Secrets Act 1920, s 1 and Interfering with officers of the police or members of His Majesty’s forces: Official Secrets Act 1920, s 3; Consultation Paper, para 2.77.

17

Prior to amendment by the 1939 Act, section 6 of the OSA 1920 read:

“It shall be the duty of every person to give on demand to a chief officer of police, or to a superintendent or other officer of police not below the rank of inspector appointed by a chief officer for the purpose, or to any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty, any information in his power relating to an offence or suspected offence under the principal Act or this Act, and, if so required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be specified for the purpose of furnishing such information, and, if any person fails to give any such information or to attend as aforesaid, he shall be guilty of a misdemeanour.”

18

R Thomas, Espionage and Secrecy (1991) p18; Consultation Paper, para 2.95.

19

  We address the list of prohibited places at para 3.70.

20

  Chandler v DPP [1964] AC 763; Consultation Paper, para 2.27.

21

  Official Secrets Act 1920, s 8(1); Consultation Paper, para 2.18.

22

Official Secrets Act 1920, s 8(1); Consultation Paper, para 2.18.

23

  For these purposes it does not matter whether K is a government contractor or subject to any notification or

vetting procedures.

24

See: A Phillips, Gloucestershire Constabulary: Review of Operation Merit (12 August 2004), available at https://www.gloucestershire.police.uk/media/2189/policing-of-raf-fairford-during-the-iraq-conflict.doc.     The

case of R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2 AC 105 related to separate, planned protests in March 2003 at RAF Fairford.

25

Serious Organised Crime and Police Act 2005, s 128(1A); Consultation Paper, para 2.157.

26

  See, for example, the Serious Organised Crime and Police Act 2005 (Designated Sites) Order 2005/3447.

27

  Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007/930.

28

Serious Organised Crime and Police Act 2005, s 128(4).

29

Civil Aviation Act 1982, s 39.

30

British Transport Commission Act 1949, s 55.

31

HM Government, National Cyber Security Strategy 2016-2021(November 2016) p 18.

32

For a more detailed analysis, see for example A Lloyd, Information Technology Law (OUP 2017) and A Murray, Information Technology Law: The Law and Society (3rd edn, OUP 2016).

33

In this respect the offences are wider in their territorial ambit than the 1911 Act.

34

An “either way” offence is one that can be tried either in the Magistrates’ Court or in the Crown Court.

35

eg, murder.

36

D has also committed an offence contrary to section 7 of the Official Secrets Act 1920.

37

Criminal Misuse Act 1990, s 3(6)(c).

38

An interruption in an authorised user’s access to a computer network, typically one caused with malicious intent.

39

Inserted by section 41 of the Serious Crime Act 2015.

40

Computer Misuse Act 1990, s 3ZA(6) and (7).

41

There are in addition the offences under the Data Protection Act 2018 which are examined more fully in Chapter 6.

42

  See: Explanatory Memorandum to the Network and Information Systems Regulations 2018, para 2.1.

43

  See: Explanatory Memorandum to the Network and Information Systems Regulations 2018, para 8.3.

44

Consultation Paper, p 49.

45

Crown Prosecution Service, p 4.

46

Sue Jackson, by email.

47

Consultation Paper, para 2.106.

48

Intelligence and Security Committee: Annual Report 2003-2004 (2004) CM 6240, p 43; Consultation Paper, para 2.109.

49

  Consultation Paper, para 2.112.

50

  Consultation Paper, para 2.115.

51

  Consultation Paper, para 2.113.

52

  Consultation Paper, para 2.141.

53

Consultation Paper, paras 2.139 to 2.143.

54

Consultation Paper, para 2.144.

55

Dr Oliver Butler is now a barrister and a Fellow in Law at Wadham College, Oxford. He submitted a consultation response whilst a PhD student. He subsequently worked on aspects of this project as a consultant.

56

Crown Prosecution Service, p 2.

57

Guardian News and Media, p 43.

58

ITN, pp 4 to 5.

59

  Oliver Butler, p 4.

60

The Bar Council and the Criminal Bar Association, para 25.

61

News Media Association, pp 18 to 19.

62

Consultation Paper, para 2.115.

63

In contrast, the purpose of the US Foreign Intelligence Services Act 1978 is to provide a system for obtaining warrants to intercept the communications of people in the United States who are suspected of being agents of a foreign power.

64

  Consultation Paper, para 2.127.

65

  Consultation Paper, para 2.128.

66

  Consultation Paper, para 2.129.

67

  The Bar Council and the Criminal Bar Association, para 16.

68

Crown Prosecution Service, p 2.

69

eg, see Guardian News and Media, p 44.

70

News Media Association, p 19.

71

Annie Machon, p 1.

72

Peters and Peters, p 2.

73

ITN, p 5.

74

Government Response, pp 3 to 4.

75

See, for example: Data Protection Act 1998, s 28 (no longer in force); Regulation of Investigatory Powers Act 2000; and Data Retention and Investigatory Powers Act 2014, s 3 and s 7.

76

Kennedy v United Kingdom (2001) 52 EHRR 4 at [159].

77

Consultation Paper, paras 2.26 to 2.28.

78

  [1964] AC 763.

79

Consultation Paper, paras 2.27 to 2.28.

80

Consultation Paper, para 2.137.

81

News Group Newspapers, p 1.

82

eg, see Guardian News and Media, p 47.

83

  Consultation Paper, para 2.147.

84

  Consultation Paper, para 2.150.

85

News Group Newspapers, p 1.

86

The Bar Council and Criminal Bar Association, p 6.

87

Peters and Peters, p 3.

88

  Government Response, p 5.

89

Liberty, p 11.

90

Professor David Leigh, by email.

91

  Consultation Paper, para 2.155.

92

  Consultation Paper, para 2.161.

93

Consultation Paper, para 2.163.

94

Peters and Peters, p 3.

95

  Peters and Peters, p 4.

96

  Trinity Mirror, by email.

97

  Whistleblowers UK, p 2.

98

  Consultation Paper, para 2.158.

99

Section 3(c) and (d) Official Secrets Act 1911.

100

Consultation Paper para 2.166.

101

Consultation Paper para 2.167.

102

Consultation Paper, para 2.123.

103

Peters and Peters, p 2.

104

National Union of Journalists, p 2.

105

Guardian News and Media, pp 42 to 43.

106

Institute of Employment Rights, p 16.

107

Crown Prosecution Service, p 3. See G Corera, Sailor Edward Devenney’s fruitless attempt at betrayal (12 December 2012), available at https://www.bbc.co.uk/news/uk-20701842.

108

Guardian News and Media, p 41.

109

Government Response, p 3.

110

Consultation Paper para 2.177.

111

For a more detailed examination of Article 6 of the European Convention on Human Rights and reverse burdens of proof, see paras 2.180 - 2.189 of the CP.

112

See, eg P Alldridge, “Some Uses of Legal Fictions in Criminal Law”, in W Twining and M Del Mar (eds) Legal Fictions in Theory and Practice (2015) at pp 367 - 384.

113

Consultation Paper, para 2.190.

114

Consultation Paper, paras 2.59 to 2.61.

115

Consultation Paper, paras 2.78 to 2.84.

116

It was determined in the Court of Appeal that the word “and” in “abets and does an act preparatory” is instead to be read as “or”: R v Oakes [1959] 2 QB 350, [1959] 2 All ER 92. See also R v Bingham [1973] QB 870, [1973] 2 All ER 89.

117

[2014] EWCA Crim 186; [2014] 1 WLR 2867.

118

Part 2 of the Serious Crime Act 2007 and the Accessories and Abettors Act 1861.

119

News Media Association, p 18.

120

Under section 44 of the Serious Crime Act 2007, a person commits an offence if (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission.

121

Consultation Paper, para 2.175.

122

Government Response, p 7.

123

Consultation Paper, para 2.175.

124

Departmental Committee on Section 2 of the Official Secrets Act 1911 (1972) Cmnd 5104, p 37.

125

Reform of Section 2 of the Official Secrets Act 1911 (1988) Cm 408, para 6.

126

Consultation Paper, para 3.137.

127

Arguably this is a denial of fault element rather than a defence.

128

 [2007] EWCA Crim 528; [2007] 1 WLR 1500.

129

R v Keogh [2007] EWCA Crim 528; [2007] 1 WLR 1500 at [29].

130

Blackstone’s Criminal Practice (2020) at para B9.45.

131

Consultation Paper, para 3.146. Emphasis in original.

132

It is worth noting that under the present law, someone assisting that person - eg a journalist in knowing receipt - would be guilty of aiding and abetting the offence; a person who encouraged the unauthorised disclosure could be prosecuted under Part 2 of the Serious Crime Act 2007, irrespective of whether the disclosure was made.

133

Consultation Paper, paras 3.153 to 3.163.

134

Consultation Paper, para 3.137.

135

Crown Prosecution Service, by email 8 June 2012.

136

Peters and Peters, p 6.

137

Bar Council and Criminal Bar Association, paras 37 to 38.

138

Liberty, para 32.

139

Campaign for Freedom of Information and Article 19, para 14.

140

L Woods, L McNamara and J Townend, para 2.10.

141

ITN, p 6.

142

News Group Newspapers, para 9.

143

Guardian News and Media, p 59.

144

Courage Foundation, p 2.

145

Dr Ashley Savage, para 8.

146

Public Concern at Work, para 9.

147

Trinity Mirror, by email.

148

News Group Newspapers, para 9.

149

National Union of Journalists, p 17.

150

ITN, p 2.

151

BBC, p 2.

152

UK Open Government Network, p 3.

153

Campaign for Freedom of Information and Article 19, p 16.

154

Alan Rusbridger, pp 2 to 3.

155

Consultation Paper, para 3.164.

156

Peters and Peter, p 7.

157

Crown Prosecution Service, para 14.

158

Bar Council and Criminal Bar Association, para 42.

159

Peters and Peters, p 7.

160

News Group Newspapers, para 12.

161

Guardian News and Media, pp 4 to 5 [emphasis in original].

162

Damien Shannon, p 2.

163

Associated Newspapers, paras 37 to 39 [emphasis in original].

164

BBC, p 2 [emphasis in original].

165

ITN, pp 5 to 6.

166

Liberty, p 15.

167

Professor David Leigh, by email.

168

Campaign Against Censorship, by email.

169

Government Response, pp 9 to 10 [emphasis in original].

170

Consultation Paper, para 3.151.

171

Crown Prosecution Service, p 4.

172

Peters and Peters, p 6.

173

BBC, p 2.

174

News Group Newspapers, para 10.

175

News Media Association, p 11.

176

Government Response, p 9.

177

R v Keogh [2007] EWCA Crim 528; [2007] 1 WLR 1500.

178

See Consultation Paper, paras 3.74 to 3.90. Although this particular case related to sections 2(3) and 2(4) of the OSA 1989, as we discussed in our Consultation Paper, it is likely the same reasoning would apply in relation to other sections of the Act with similar phrasing.

179

[2006] UKHL 18; [2007] 1 AC 18.

180

R v Saik [2006] UKHL 18; [2007] 1 AC 18 at [52] to [53].

181

[2018] UKSC 36.

182

R v Sally Lane and John Letts [2018] UKSC 36 at [17].

183

R v Sally Lane and John Letts [2018] UKSC 36 at [24].

184

Consultation Paper, paras 3.165 to 3.166.

185

Consultation Paper, para 3.167.

186

Campaign Against Censorship was established as the Free Art Legal Fund in 1967. They are an organisation opposing censorship and promoting freedom of expression in the UK.

187

Dr Ashley Savage, para 12.

188

Peters and Peters, p 7.

189

Oliver Butler, p 7.

190

News Media Association, p 17.

191

The Institute of Employment Rights, p 20. This appears to conflate the fault element with the public interest defence. It would be possible to intend a disclosure to be damaging and also in the public interest, for instance, if damage were considered to be a necessary evil to expose illegality.

192

Liberty, para 53.

193

Peters and Peters, p 7.

194

Official Secrets Act 1989, s 1(7).

195

CP, paras 3.168 to 3.177.

196

News Media Association, p 17.

197

The Bar Council and Criminal Bar Association, p 9 to 10.

198

Peters and Peters, p 8.

199

Crown Prosecution Service, p 5.

200

Whistleblowers UK, p 2

201

Campaign Against Censorship, by email.

202

Public Concern at Work, para 10.

203

Public Concern at Work, para 14.

204

The Trinity Mirror, by email.

205

Dr Ashley Savage, paras 15 to 16. Dr Savage is a research fellow at the International Anti-Corruption Academy, Austria and former lecturer at the University of Liverpool with particular expertise in this area.

206

Dr Ashley Savage, para 14.

207

Dr Ashley Savage, paras 15 and 16.

208

The term “employee” may be too restrictive if taken to mean “someone who has passed a qualifying period of employment” and would need to be consistent with employment law. Dr Ashley Savage proposes using some other term (for example, “worker”) to avoid this pitfall.

209

CP, para 3.176.

210

Sch 7, para 5 of the Energy Act 2013 says “service as a member of the ONR [Office for Nuclear Regulation] is not service in the civil service of the state, but this is subject to paragraph 6”. Para 6 then says “Members of the ONR are to be regarded as Crown servants for the purposes of the Official Secrets Act 1989”.

211

CP, paras 3.180 to 3.189.

212

Crown Prosecution Service, p 6.

213

Peters and Peters, p 9.

214

BBC, p 3.

215

Dr Ashley Savage, para 18.

216

The Bar Council and Criminal Bar Association, p 10.

217

Whistleblowers UK, p 2; UK Open Government Network, p 3; The Trinity Mirror, by email.

218

Liberty, para 55.

219

Guardian News and Media, pp 65 to 69.

220

Courage Foundation, p 12.

221

News Media Association, p 4.

222

Associated Newspapers, para 7(e).

223

National Union of Journalists, p 32.

224

Alan Rusbridger, para 99.

225

Soon to be repealed and replaced by section 59 of the Investigatory Powers Act 2016, which has the same penalties.

226

Forfeiture Act 1870, s 2.

227

Public Service (Civil Servants and Others) Pensions Regulations 2014 (SI 2014/1964), Regulation 165(4).

228

CP, paras 3.190 to 3.196; A Bailin, “The Last Cold War Statute” [2008] Criminal Law Review 625, p 629.

229

[2002] UKHL 11; [2003] 1 AC 247.

230

R v Shayler [2002] UKHL 11; [2003] 1 AC 247 at [34].

231

Houses of Parliament (2017) National Security Vetting: Your Questions Answered, available at https://www.parliament.uk/documents/PSD-Security-Vetting-booklet.pdf. This is also stated on the website for MI5, available at https://www.mi5.gov.uk/careers/vetting.

232

The Institute of Employment Rights, pp 21 to 22.

233

The Institute of Employment Rights, p 22.

234

Dr Ashley Savage, para 19.

235

Peters and Peters, p 9.

236

Crown Prosecution Service, p 6.

237

News Media Association, p 16. The Defence and Security Media Advisory (“DSMA”) Notice system is discussed below, at 8.57.

238

Guardian News and Media, p 41.

239

Guardian News and Media, p 41.

240

The Bar Council and Criminal Bar Association, paras 48 to 49.

241

Whistleblowers UK, p 2.

242

Damien Shannon, p 3.

243

BBC, p 3.

244

Blackstone’s Criminal Practice (2019) at para D1.55.

245

(2002) 34 EHRR 507.

246

For a more detailed examination, see Human Rights Law and Practice, Lester, Pannick, Herberg (2009), at [4.6.70]

247

(2002) 34 EHRR 507 at [46 - 48]. Section 45 of the Northern Ireland (Emergency Provisions) Act 1991 is no longer in force, but similar provisions exist in section 58(6) to (10) of the Police and Criminal Evidence Act 1984 and Schedule 8 to the Terrorism Act 2000, paragraph 7A.

248

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17 (judgment given on 21 March 2018) (“Re Maguire”).

249

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17 at [34].

250

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17 at [34].

251

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17, at [38].

252

In the matter of an application by Kevin Maguire for Judicial Review (Northern Ireland) [2018] UKSC 17, at [44].

253

Deweer v Belgium [1980] ECHR 1, (1980) 2 EHRR 439 at [46].

254

Ibrahim and Others v The United Kingdom [2014] ECHR 1392, (2015) 61 EHRR 9 at [193].

255

See Bar Standards Board Handbook, available at https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/.

256

See Solicitors Regulation Authority Handbook, available at

https://www.sra.org.uk/solicitors/handbook/pdfcentre.page.

257

We are not discussing the remote prospect of the lawyer being prosecuted for aiding and abetting the leaker, nor for liability under the Serious Crime Act 2007, Part 2.

258

Official Secrets Act 1989, s 5(1)(a)(ii).

259

Official Secrets Act 1989, s 8(1).

260

Those with Security Check clearance are permitted frequent uncontrolled access to assets classified up to SECRET and occasional supervised access to TOP SECRET.

261

Reform of Section 2 of the Official Secrets Act 1911 (1988) Cm 408, paras 62-64.

262

A Bailin, “The last Cold War statute” (2008) Criminal Law Review 625, 629.

263

CP, paras 3.198 to 3.203.

264

BBC, p 4.

265

News Media Association, p 3.

266

News Media Association, p 12.

267

Guardian News and Media, p 63.

268

ITN, p 3.

269

The Bar Council and Criminal Bar Association, paras 50 to 54.

270

Campaign for Freedom of Information and Article 19, paras 41 to 42. Emphasis in original.

271

Associated Newspapers, para 7(d).

272

National Union of Journalists, p 17.

273

Crown Prosecution Service, para 20.

274

Peters and Peters, p 9.

275

Dr Ashley Savage, para 22.

276

Oliver Butler, p 8.

277

See G Robertson, Freedom, the Individual and the Law (1993), pp 168 to 173.

278

Crown Prosecution Service, p 6.

279

Peters and Peters, p 10; Dr Ashley Savage, p 8; News Media Association, p 17; The Institute of Employment Rights, p 23.

280

English PEN, Index on Censorship and Reporters Without Borders, para 73.

281

News Media Association, p 17.

282

The Institute of Employment Rights, p 20. Emphasis in original.

283

Liberty, para 64.

284

BBC, p xxx.

285

Butler, p 8.

286

Savage, p 8.

287

See: United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985), available at http://hrlibrary.umn.edu/instree/siracusaprinciples.html.

288

CP, paras 3.210 to 3.213.

289

Crown Prosecution Service, p 7.

290

Associated Newspapers, para 29.

291

News Group Newspapers, para 15. Emphasis in original.

292

English PEN, Index on Censorship, Reporters Without Borders, para 74.

293

UK Open Government Network, p 3; Public Concern at Work, p 2; Courage Foundation, p 13; Liberty, p 21; and Guardian News and Media, p 63.

294

English PEN, Index on Censorship, Reporters Without Borders, para 76.

295

Dr Ashley Savage, para 25.

296

Courage Foundation, pp 11 to 12.

297

Intelligence and Security Committee, Report on the Draft Investigatory Powers Bill (9 February 2016), HC795, p 10.

298

Public Concern at Work, paras 18 to 20; Liberty, p 21.

299

Global Witness, by email.

300

Compassion in Care, p 2.

301

Chris O’Donovan, by email.

302

Douglas Green, by email.

303

Liberty, para 59.

304

News Media Association, p 17; Guardian News and Media, pp 2, and 64 to 65.

305

National Union of Journalists, p 3.

306

Peters and Peters, p 10.

307

The Courage Foundation, p 12.

308

Guardian News and Media, p 65.

309

National Union of Journalists, p 3.

310

See generally: M Hirst, Jurisdiction and the Ambit of the Criminal Law (2003).

311

CP, paras 3.227 to 3.230.

312

The Bar Council and Criminal Bar Association, p 11; Whistleblowers UK, p 3; Oliver Butler, p 8.

313

Crown Prosecution Service, p 7.

314

Peters and Peters, p 11.

315

Dr Ashley Savage, p 8.

316

The Institute of Employment Rights, p 24.

317

Consultation Paper, para 4.1.

318

CP, para 4.4.

319

Data Sharing between Public Bodies: A Scoping Report (2014), Law Com No 351, para 1.104.

320

Data Sharing between Public Bodies: A Scoping Report (2014) Law Com No 351, para 1.37.

321

Data Sharing between Public Bodies: A Scoping Report (2014) Law Com No 351, para 1.80.

322

CP, para 4.5.

323

CP, para 4.20.

324

CP, para 4.22.

325

CP, para 4.27.

326

CP, para 4.25.

327

CP, para 4.30.

328

CP, para 4.33.

329

CP, para 4.39.

330

CP, para 4.45.

331

CP, para 4.46.

332

CP paras 4.41 to 4.44.

333

CP, para 4.52.

334

CP, para 4.55.

335

CP, para 4.58.

336

Employment Tribunal Case No. 2206458/2016 (22 December 2016).

337

For example, Public Concern at Work, p 5; Campaign Against Censorship, p 1; Whistleblowers UK, p 3; A Savage, p 10; and the Crown Prosecution Service, p 7.

338

Information Commissioners Office, p 1.

339

Bar Council, page 12.

340

Bar Council, p 12.

341

BBC, p 5.

342

BBC, p 5.

343

BBC, p 5.

344

Public Concern at Work, p 5.

345

Public Concern at Work, p 5.

346

Public Concern at Work, p 6.

347

Section 43B(3) Employment Rights Act 1996.

348

Public Concern at Work, p 6; Pytel v OFGEM, Employment Tribunal Case No. 2206458/2016 (22 December 2016).

349

Utilities Act 2000, s 5(4). Pytel v OFGEM, Employment Tribunal Case No. 2206458/2016 (22 December 2016) at [12].

350

Pytel v OFGEM, Employment Tribunal Case No. 2206458/2016 (22 December 2016) at [46].

351

Peters and Peters, p 11.

352

Trinity Mirror, by email.

353

 O Butler, p 2.

354

 O Butler, p 2.

355

 O Butler, p 9.

356

 O Butler, p 9.

357

  O Butler, p 9.

358

 O Butler, p 9.

359

 O Butler, p 9.

360

 O Butler, p 10.

361

 O Butler, p 10.

362

 O Butler, p 10.

363

Pytel v OFGEM, Employment Tribunal Case No. 2206458/2016 (22 December 2016).

364

Pytel v OFGEM [2018] UKEAT 0044_17_1012; [2019] ICR 715.

365

Section 55 of the Data Protection Act 1998 has now been repealed and replaced by section 170 of the Data Protection Act 2018.

366

Data Protection Act 1998, s 55(3).

367

Explanatory Notes to the Data Protection Bill 2018.

368

CP, para 4.70.

369

CP, para 4.74.

370

CP, paras 4.75 and 4.76.

371

CP, para 4.79.

372

CP, para 4.81.

373

CP, para 4.82.

374

CP, para 4.84.

375

Information Commissioner’s Office, p 3.

376

Information Commissioner’s Office, p 3.

377

Information Commissioner’s Office, p 3.

378

Information Commissioner’s Office, p 3.

379

Information Commissioner’s Office, p 4.

380

Information Commissioner’s Office, p 4.

381

Information Commissioner’s Office, p 4.

382

Peters and Peters, p 12.

383

O Butler, p 12.

384

A Savage, p 10.

385

The Bar Council and Criminal Bar Association, p 12; Crown Prosecution Service, p 8.

386

BBC, p 5.

387

New Media Association, p 1.

388

Whistleblowers UK, p 3.

389

Global Witness, by email.

390

Institute of Employment Rights, p 25.

391

Trinity Mirror, by email. Note that section 77 of the Criminal Justice and Immigration Act 2008 (which was never implemented) has now been repealed by schedule 19, paragraph 150 of the Data Protection Act 2018.

392

Information Commissioner’s Office, p 2.

393

Information Commissioner’s Office, p 2.

394

Information Commissioner’s Office, p 2.

395

Information Commissioner’s Office, p 2.

396

Peters and Peters, p 12.

397

O Butler, p 2.

398

O Butler, p 11.

399

O Butler, p 11.

400

O Butler, p 11.

401

O Butler, p 12.

402

O Butler, p 12.

403

See: Data Protection Act 2018, s 196(2).

404

Section 170(3)(c) of the Data Protection Act 2018.

405

CP, para 4.3.

406

These offences are: (a) the offence under section 11 of the Atomic Energy Act 1946; (b) the offence under section 13 of the Atomic Energy Act 1946; (c) the offence under section 79 of the Anti-terrorism, Crime and Security Act 2001; (d) the offence under regulations made in accordance with section 80 of the Antiterrorism, Crime and Security Act 2001; (e) the offence under the Nuclear Industries Regulations 2003/403; (f) the offence under section 1 of the Armed Forces Act 2006; (g) the offence under section 17 of the Armed Forces Act 2006.

407

CP, para 4.86 onwards.

408

CP, para 4.104.

409

CP, para 4.105.

410

CP, para 4.106.

411

CP, para 4.109.

412

As defined below at 7.11.

413

For example, an unauthorised disclosure of information contrary to section 105 of the Utilities Act 2000 is unlikely to concern the safety or interests of the State.

414

Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009), available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

415

See Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks ( October 2009) Annex B, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-leamed-report-20091001.pdf; and Government Response to the Tenth Report of Session 2008-09 from the Public Administration Select Committee: Leaks and Whistleblowing in Whitehall (March 2010) Cm 7863 Annex A, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/228774/7 863.pdf.

416

See, eg R Edwards and T Whitehead, Damian Green arrest: no charges over Home Office leaks (16 April 2009), available at https://www.telegraph.co.uk/news/politics/5163574/Damian-Green-arrest-no-charges-over-Home-Office-leaks.html.

417

Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009) para 4.7, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

418

Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009) Annex B, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

419

Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009) para 9.4, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

420

See Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009) Annex B, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

421

Her Majesty’s Inspectorate of Constabulary, Review of the Lessons Learned from the Metropolitan Police Service’s Investigation of Home Office Leaks (October 2009) Annex B, available at https://www.justiceinspectorates.gov.uk/hmicfrs/media/lessons-learned-report-20091001.pdf.

422

In particular, we thank the Bar Council and Criminal Bar Association, the Campaign Against Censorship, the Crown Prosecution Service, the Institute of Employment Rights, Peters and Peters Solicitors LLP, and Dr Ashley Savage.

423

Campaign Against Censorship.

424

Crown Prosecution Service, para 27.

425

Bar Council / Criminal Bar Association, para 62.

426

Bar Council / Criminal Bar Association, para 62.

427

Bar Council / Criminal Bar Association, para 63.

428

Peters and Peters, p 13.

429

Peters and Peters, p 13.

430

A Savage, para 33.

431

Jim Pragnell, by email.

432

Government Response to the Tenth Report of Session 2008-09 from the Public Administration Select Committee: Leaks and Whistleblowing in Whitehall (March 2010) Cm 7863 Annex A, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/228774/7 863.pdf.

433

See, eg GOV.UK, Cabinet Office, available at https://www.gov.uk/government/organisations/cabinet-office.

434

Scott v Scott [1913] AC 417, p 476.

435

Attorney General v Leveller Magazine Ltd [1979] AC 440, p 450.

436

Scott v Scott [1913] AC 417, p 438.

437

Attorney General v Leveller Magazine [1979] AC 440, p 470. See also ML Friedland, National Security: The Legal Dimension (1979) p 46.

438

See, eg Guardian News and Media Ltd v R & Erol Incedal [2016] EWCA Crim 11; [2016] 1 WLR 1767.

439

Attorney General v Leveller Magazine [1979] QB 31, pp 44 to 45.

440

Attorney General v Leveller Magazine [1979] AC 440, p 451.

441

Peters and Peters, p 14.

442

BBC, pp 6 to 7.

443

Guardian News and Media Ltd v R & Erol Incedal [2016] EWCA Crim 11; [2016] 1 WLR 1767. This was an appeal (ultimately dismissed) by the Guardian and others against reporting restrictions concerning parts of a terrorism trial that had been held in private. The Court of Appeal confirmed that, in exceptional circumstances, courts could depart from the principle of open justice. The test is narrow and strict: without excluding the public, justice cannot be done. The Court of Appeal found that the evidence in this case supported holding part of the trial in private in the interests of justice.

444

L Woods, L McNamara and J Townend, para 4.14.

445

Guardian News and Media Ltd v R & Erol Incedal [2016] EWCA Crim 11; [2016] 1 WLR 1767.

446

L Woods, L McNamara and J Townend, para 4.12.

447

BBC, p 7.

448

The Guardian, p 74.

449

The Guardian, p 75. The response deals with the issues in far greater detail and is available in full on our website.

450

The Bar Council and Criminal Bar Association, para 65.

451

The Bar Council and Criminal Bar Association, para 65.

452

J Gobert, “The peremptory challenge - an obituary” [1989] Criminal Law Review 528.

453

Governed by Criminal Procedure Rules (2015), rule 25.8(3). Discussed in D Ormerod and D Perry (eds), Blackstone’s Criminal Practice (2020), at D13.22 to D13.45, and Appendix 2.

454

For early analysis, see A Nicol, “Official Secrets and Jury Vetting” [1978] Criminal Law Review 284.

455

Attorney General's Guidelines (Juries: Right to Stand By) (1989) 88 Cr App R 123. Discussed in D Ormerod and D Perry (eds), Blackstone’s Criminal Practice (2019), at D13.45 and Appendix 2.

456

Crown Prosecution Service, Jury Vetting (10 July 2018), available at https://www.cps.gov.uk/legal-guidance/jury-vetting.

457

The Institute of Employment Rights, p 27.

458

Bar Council and Criminal Bar Association, para 66.

459

Judicial College, Reporting Restrictions in the Criminal Courts (May 2016) p28.

460

R v Sarker [2018] EWCA Crim 1341 at [29] (Lord Burnett of Maldon).

461

For a general discussion of the effort to reconcile national security with the right to a fair trial in the civil context see D Heaton, “Carnduff, Al Rawi, the ‘unfairness’ of public interest immunity and sharp procedure” 34(2) (2015) Civil Justice Quarterly 191; J Jackson, “Justice, Security and the right to a fair trial: is the use of secret evidence ever fair?” (2013) Public Law 720; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, Nineteenth Report of Session 2006-07.

462

For discussion, see C Walker, “Living with national security disputes in court in England and Wales” in G Martin, R Scott Bray and M Kumar (eds), Secrecy, Law and Society (2015) pp 23-43.

463

In the criminal context special counsel may be used. For discussion, see J Jackson, Special Advocates in the Adversarial System (1st ed 2019); and J Jackson, “The role of special advocates: advocacy, due process and the adversarial tradition” 20(4) (2016) International Journal of Evidence and Proof 343.

464

Justice and Security Green Paper (2011) Cm 8194.

465

The extent to which these two tests differ as a matter of substance is debatable.

466

Bar Council and Criminal Bar Association, para 68.

467

Guardian News and Media Ltd v R & Erol Incedal [2016] EWCA Crim 11; [2016] 1 WLR 1767.

468

BBC, p 7.

469

Peters and Peters, p 14.

470

The National Union of Journalists observed they were “opposed to any further expansion of closed courts proceedings, especially in regard to cases involving journalists and media organisations abroad”: National Union of Journalists, p 3.

471

Guardian News and Media Ltd v R & Erol Incedal [2016] EWCA Crim 11; [2016] 1 WLR 1767.

472

Woods, L McNamara and J Townend, paras 5.1 to 5.6.

473

The Guardian, p 75.

474

Effective, in that they are expeditious, independent, have statutory powers to compel disclosure, search powers etc.

475

Para 7.83.

476

News Media Association, p 6.

477

BBC, p 11.

478

Campaign Against Censorship, by email.

479

Whistleblowers UK, pp 3 - 4.

480

Bar Council/Criminal Bar Association, para 95.

481

Intelligence and Security Committee, 2007-2008 Annual Report (March 2008) Cm 7542, para 66.

482

See Consultation Paper, paras 7.94 - 7.96.

483

The statutory source of the Committee’s powers is the Justice and Security Act 2013. Ministers of the Crown are ineligible for membership of the ISC - though notably members must be nominated by the Prime Minister, albeit following consultation with the Leader of the Opposition (section 1(4)-(5) of the JSA 2013).

484

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [26].

485

Judicial Commissioners are current and recently retired High Court, Court of Appeal and Supreme Court Judges. The list of Judicial Commissioners can be found here: https://www.ipco.org.uk/ (last visited 25 April 2019).

486

Public Concern at Work, paras 33-37.

487

Trinity Mirror, by email.

488

Courage Foundation at pp 5, 15-16.

489

Annie Machon, p 2.

490

ITN Response, p 7.

491

BBC Response, p 12.

492

English PEN, Index on Censorship and Reporters Without Borders Response, pp 16-17.

493

The DSMA Notice System is a means of providing advice and guidance to the media about defence and security information, the publication of which would be damaging to national security. The system is voluntary, it has no legal authority and the final responsibility for deciding whether or not to publish or broadcast rests solely with the editor or publisher concerned.

494

Oliver Butler, p 12.

495

CPU Media Trust response, pp 5-6.

496

Society of Editors, para 26.

497

Liberty Response, p 30.

498

Whistleblowers UK response, p 3.

499

Public Concern at Work, para 23.

500

Many individual consultees were of the view that having a public interest offence was essential to the functioning of democracy, including Douglas Green, David Goepel, Susan Jackson, and Damien Shannon.

501

E R Boot, “No Right to Classified Public Whistleblowing” (2018) 31(1) Ratio Juris 70, 77.

502

Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton NJ: Princeton University Press 2013) p 114.

503

Society of Editors Response, para 26.

504

Institute of Employment Rights Response, p 10.

505

Liberty Response, pp 26-27.

506

Courage Foundation, p 14.

507

CPU Media Trust Response, p 6.

508

Campaign for Freedom of Information/Article 19 Response, p 14. Emphasis in original.

509

Public Concern at Work, para 29.

510

R v Shayler [2002] UKHL 11, [2003] 1 AC 247, para 84.

511

CPU Media Trust, para 4.4.

512

Institute of Employment Rights Response, p 10.

513

D Pozen, “The Mosaic Theory, National Security, and the Freedom of Information Act” (2005) 115 Yale Law Journal 628, 630.

514

D Pozen, “The Mosaic Theory, National Security, and the Freedom of Information Act” (2005) 115 Yale Law Journal 628, 650 and 678.

515

English PEN/Reporters Without Borders/Index on Censorship, para 37.

516

D Pozen, “The Mosaic Theory, National Security, and the Freedom of Information Act” (2005) 115 Yale Law Journal 628, 678.

517

Courage Foundation, p 15.

518

Associated Newspapers, para 16.

519

See discussion at 6.27.

520

Jacob Rowbottom, para 16.

521

Bar Council and Criminal Bar Association, para 87.

522

Guardian News and Media pp 2 -3.

523

Trinity Mirror, by email.

524

 Attorney General v Leveller Magazine Ltd [1979] AC 440, [1979] 2 WLR 247 p 449-450.

525

 In Re Guardian News and Media Ltd and others [2016] EWCA Crim 11, [2016] 1 WLR 1767 at [73].

526

 In Re Guardian News and Media Ltd and others [2016] EWCA Crim 11, [2016] 1 WLR 1767 at [45] - [47].

527

 In Re Guardian News and Media Ltd and others [2016] EWCA Crim 11, [2016] 1 WLR 1767 at [51] - [52].

528

R v Sarker [2018] EWCA Crim 1341, [2014] 4 All ER 694 at [29].

529

R v Shayler [2002] UKHL 11, [2003] 1 AC 247.

530

Handyside v United Kingdom (5493/72) [1976] ECHR 5, (1976) 1 EHRR 737 at [49].

531

R Clayton and H Tomlinson, The Law of Human Rights (2nd edn, OUP 2010) 15.239.

532

R v Central Independence Television plc [1994] Fam 192, 203 (Hoffman LJ).

533

The Guardian cited three examples at p2 of its consultation response: the UK’s involvement in the running of a prison in Baghdad that was the scene of human rights abuses; collusion between police and loyalist terrorists; and the workings of a Metropolitan Police undercover unit.

534

See, for example, E Barendt, Freedom of Speech (Clarendon Press 1985).

535

R Clayton and H Tomlinson, The Law of Human Rights (OUP 2000) 15.04.

536

 R Clayton and H Tomlinson, The Law of Human Rights (2nd edn, OUP 2010) 15.299.

537

 The Sunday Times v United Kingdom (6538/74) [1979] ECHR 9, (1979) 2 EHRR 245 at [49].

538

 R Clayton and H Tomlinson, The Law of Human Rights (2nd edn, OUP 2010) 15.305.

539

 R Clayton and H Tomlinson, The Law of Human Rights (2nd edn, OUP 2010) 15.305.

540

Prevention of crime seems the relevant objective for section 4(2) OSA 1989, and the protection of information received in confidence would be relevant to section 3.

541

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [26] (Lord Bingham of Cornhill).

542

Though there is no Article 10 jurisprudence on this direct point, it is noteworthy that the ECtHR held, in Dudgeon v United Kingdom [1983] ECHR 2, (1983) 5 EHRR 573 at [41], that “the maintenance in force of the impugned legislation [prohibiting homosexual acts between consenting adult men] constitutes a continuing interference with the applicant’s right...: [E]ither he respects the law and refrains from engaging... in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.”

543

The Sunday Times v United Kingdom (6538/74) [1979] ECHR 9, (1979) 2 EHRR 245 at [62].

544

R v Shayler [2002] UKHL 11, [2003] 1 AC 247.

545

Handyside v United Kingdom (5493/72) [1976] ECHR 5, (1976) 1 EHRR 737 at [48].

546

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [57] (Lord Hope of Craighead).

547

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16.

548

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [85]-[88].

549

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [95]-[96].

550

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [73].

551

Which is to say, neither motivated by malice nor grudge, nor by financial gain.

552

Klass and others v Germany (5029/71) [1978] ECHR 4, (1978) 2 EHRR 214 at [50].

553

Klass and others v Germany (5029/71) [1978] ECHR 4, (1978) 2 EHRR 214 at [50].

554

Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 at [20] (Lord Sumption).

555

Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 at [27] (Lord Sumption).

556

Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 at [27] (Lord Sumption).

557

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [68] (Lord Hope of Craighead).

558

See for example Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [70].

559

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [70].

560

Hadjianastassiou v Greece (12945/87) [1992] ECHR 78, (1993) 16 EHRR 219 at [46].

561

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [81]-[84].

562

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [71].

563

Catalan v Romania (13003/04) [2018] ECHR 6. The case concerned the dismissal of a civil servant (Mr Catalan). C was in the employ of the National Council for the Study of Securitate Archives (CNSAS). The CNSAS had a role in informing the public about historic collaboration with the Securitate (the former political police under the communist regime). C disclosed information to the press claiming that a religious leader had collaborated with the Securitate, and did so without authorisation from his employer. The domestic court, confirming his dismissal, found that he had breached his duty of discretion as a civil servant.

564

Catalan v Romania (13003/04) [2018] ECHR 6 at [57]-[58].

565

Catalan v Romania (13003/04) [2018] ECHR 6 at [67]-[68].

566

Catalan v Romania (13003/04) [2018] ECHR 6 at [69].

567

Catalan v Romania (13003/04) [2018] ECHR 6 at [69].

568

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [73].

569

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [73].

570

Heinisch v Germany (28274/08) [2011] ECHR 1175, (2014) 58 EHRR 31 at [65].

571

Bucur and Toma v Romania (40238/02) [2013] ECHR 14 at [93].

572

Heinisch v Germany (28274/08) [2011] ECHR 1175, (2014) 58 EHRR 31 at [73]-[74].

573

Heinisch v Germany (28274/08) [2011] ECHR 1175, (2014) 58 EHRR 31 at [75]-[76].

574

Bucur and Toma v Romania (40238/02) [2013] ECHR 14 at [97].

575

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [81]-[84].

576

Bucur and Toma v Romania (40238/02) [2013] ECHR 14 at [97].

577

Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [82].

578

R v Shayler [2002] UKHL 11, [2003] 1 AC 247.

579

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [26].

580

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [25].

581

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [25] citing Attorney General v Guardian Newspaper (No 2)

[1990] 1 AC 269 (Lord Griffiths).

582

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [80].

583

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [84].

584

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [30].

585

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [27].

586

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [27].

587

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [27].

588

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [29].

589

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [40]-[41].

590

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [63].

591

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [70].

592

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [71].

593

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [70].

594

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [32]-[34].

595

 R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [33].

596

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [34]. So stated, this is not the position that we adopt (see the discussion in Chapter 5), though we recommend that there should be circumstances in which disclosures to legal advisers would be authorised disclosures (and so not offences). We agree with Lord Bingham to the extent that it should never be the case that the former member is unable to seek legal advice.

597

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [85].

598

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [35].

599

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [36] (emphasis added).

600

R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [36].

601

Bucur and Toma v Romania (40238/02) [2013] ECHR 14.

602

As discussed at length above.

603

Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 at [27] (Lord Sumption).

604

 Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [70].

605

 Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [72].

606

 Guja v Moldova (14277/04) [2008] ECHR 144, (2011) 53 EHRR 16 at [73].

607

Wingrove v United Kingdom (17419/90) [1996] ECHR 60, (1997) 24 EHRR 1 at [4d].

608

D Feldman (2002) Civil Liberties and Human Rights in England and Wales.

609

Goodwin v the United Kingdom (17488/90) [1996] ECHR 16, 22 EHRR 123; Jersild v Denmark (15890/89) [1994] ECHR 33, (1994) 19 EHRR 1.

610

Bladet Troms0 and Stensaas v Norway [1999] ECHR 29, (2000) 29 EHRR 125 at [64].

611

See, for example, Independent News and Media and Independent Newspapers Ireland Limited v Ireland (55120/00) [2005] ECHR 402, (2006) 42 EHRR 1024 at [114].

612

Big Brother Watch and others v United Kingdom (58170/13) [2018] ECHR 722.

613

See Guseva v Bulgaria 6987/07 [2015] ECHR 171 at [53].

614

Leander v Sweden 9248/81 [1987] ECHR 4, (1987) 9 EHRR 433.

615

Sdruzen Jihoceske Matky c. la Republique tcheque [2006] ECHR 1205.

616

Tarsasag a Szabadsagjogokert v Hungary [2009] ECHR 618, (2011) 53 EHRR 3 at [36].

617

Kennedy v The Charity Commission [2014] UKSC 20 at [57] - [89].

618

Kennedy v The Charity Commission [2014] UKSC 20 at [67] (Lord Mance).

619

H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006) p 941.

620

Vereniging Weekblad Bluf! v The Netherlands (16616/90) [1995] ECHR 3, (1995) 20 EHRR 189.

621

A Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (2012) p 710.

622

See Big Brother Watch and others v United Kingdom (58170/13) [2018] ECHR 722.

623

(2009) 53 EHRR 130 at [27].

624

Judgment of 26 March 1987, Series A No. 116.

625

See also Shapovalov v Ukraine (45835/05) [2012] ECHR 1665 at [68] and Dammann v Switzerland (77551/01) at [37].

626

R v Director of Public Prosecutions, ex parte Kebilene and others [2000] 2 AC 326 at 380H (Lord Hope of Craighead).

627

R (on the application of Mahmood) v Secretary of State for the Home Department [2001] ACD 38, [2001] Imm AR 229 at [33].

628

L Woods, L McNamara and J Townend, para 2.14.

629

H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (OUP 2006) p 941.

630

Leaks and Whistleblowing in Whitehall, Report of the Public Administration Select Committee (2009) HC 83.

631

D Kagiaros ‘Protecting “national security” whistleblowers in the Council of Europe: an evaluation of three approaches on how to balance national security with freedom of expression’ (2015) The International Journal of Human Rights 19(4) p 416.

632

Matuz v Hungary [2014] ECHR 1112.

633

Wojtas-Kaleta v Poland 20436/02 [2009] ECHR 1120.

634

H Fenwick (2017) Civil Liberties and Human Rights p.506-507.

635

L Vickers (2002) Freedom of Speech and Employment p 211.

636

See, for example, H Fenwick and G Phillipson (2007) Media Freedom under the Human Rights Act, H Fenwick and G Phillipson (2017) Text, Cases and Materials on Public Law and Human Rights.

637

To this end, IPCO’s annual report affirms IPCO’s guiding principles which include, amongst others, both transparency but also - relevantly - that IPCO will not itself be the source of improper disclosure of secret information. IPCO Annual Report 2017 (2019) HC1780p 8.

638

Section 237 of the Investigatory Powers Act 2016.

639

IPCO Annual Report 2017 (2019) HC1780 at [2.3]

640

R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22.

641

Even the rare injunction contra mundum—that is, an injunction ‘against the world’—that lacks a named defendant requires that there is a real, extant risk: see R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434 and Venables v News Group Newspapers Ltd [2010] EWHC B18 (QB).

642

See, for example, Interflora Inc v Marks and Spencer plc [2014] EWHC 4168 (Ch) and our discussion in paragraph 9.76.

643

 Attorney General v Punch Ltd and another [2003] 1 AC 1046.

644

 Attorney General v Punch Ltd and another [2003] 1 AC 1046.

645

 Attorney General v Punch Ltd and another [2003] 1 AC 1046 at [3].

646

Attorney General v Punch Ltd and another [2003] 1 AC 1046 at [47].

647

See, for example, 9.74 above.

648

Bucur and Toma v Romania (40238/02) [2013] ECHR 14.

649

Bucur and Toma v Romania (40238/02) [2013] ECHR 14 at [97].

650

Bucur and Toma v Romania (40238/02) [2013] ECHR 14 at [100].

651

Perka et al v The Queen [1984] 2 SCR 232, 248. See also Southwark LBC v Williams [1971] Ch 734, 746 (Edmund Davies LJ); R v Dudley and Stevens (1884) 14 QBD 273 (DC).

652

See J Jaconelli, ‘Defences to Speech Crimes’ (2007) 1 European Human Rights Law Review 27.

653

Section 4(2) Obscene Publications Act 1959.

654

Janosevic v Sweden (34619/97) (2004) 38 EHRR 473 at [101].

655

D Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ (2007) 66 The Cambridge Law Journal 142, 147.

656

Salabiaku v France (10519/83) [1988] ECHR 19, (1988) 13 EHRR 379 at [28].

657

See, for example, the House of Lords’ opinions in Lambert [2001] UKHL 37, [2002] 2 AC 545; Johnstone [2003] UKHL 28, [2003] 1 WLR 1736; and Sheldrake and Others [2004] UKHL 43, [2004] 3 WLR 976.

658

 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, [2003] All ER 884.

659

 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, [2003] All ER 884 at [50].

660

 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, [2003] All ER 884 at [48].

661

 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, [2003] All ER 884 at [50].

662

 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, [2003] All ER 884 at [52]-[53].

663

Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2004] 3 WLR 976 at [33].

664

R v Webster [2010] EWCA Crim 2819, [2011] 1 Cr App Rep 16 at [22] (Pitchford LJ). It is worth noting, however, that the court actually found that the reverse burden in that case was not compliant with Article 6(2) because the legal landscape had changed such that those evidential obstacles were generally no longer insuperable.

665

Reform of Section 2 of the Official Secrets Act 1911 (1988) Cm 408, para 41.

666

Reform of Section 2 of the Official Secrets Act 1911 (1988) Cm 408, para 41.

667

Attorney-General of Hong Kong v Lee Kwong-Kut [1993] AC 951, 969H.

668

Security of Information Act 2001, s 15.

669

Security of Information Act 2001, s 15(5).

670

If the concern relates to a member of the Communications Security Establishment.

671

If the concern does not relate to a member of the Communications Security Establishment.

672

See CP paras 7.123-7.130 and A.113-A.148.


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