Release on Temporary Licence
The government has conducted a review of the process for prisoners to be released on temporary licence (ROTL); the drive behind the changes being the rehabilitation of offenders.
Research has shown that working in the community prior to release significantly reduces the likelihood of re-offending. Ex-offenders in employment are up to nine percentage points less likely to commit further crime.
Re-offending currently costs the country £15 billion per year.
Previous changes focussed on support for ex-offenders when they leave prison with changes to the probation service. There was also a move away from short, ineffective, prison sentences and to allow more effective treatment of issues such as addiction and mental health problems.
What is new?
Now a number of changes have been made to the previous policy on ROTL, for adults. The idea is that this will assist in preparation for resettlement in the community once released.
The changes include:
- The threshold for Restricted ROTL is changed so that it is focussed on the most serious offenders.
- The current restriction on ROTL in the first three months after transfer to open conditions is removed, subject to a risk assessment.
- Those serving indeterminate sentences are eligible to be considered for unaccompanied day release (RDR) from the point of entry to an open prison or reaching open status in a women’s prison.
- In order to streamline the process agencies are consulted and boards only sit where necessary, with a focus on the right information and reducing paperwork.
- Greater use of workplace ROTL is encouraged; paid work will be allowed as soon as a prisoner is eligible for day release. The requirement for a prisoner on ROTL to spend at least one 24-hour period per week in prison is removed.
- Primary and sole carers will be allowed to apply for Childcare Resettlement Licence.
- Prisoners with a prior history of absconding will be allowed to be risk assessed for open conditions and ROTL if the history is more than two years ago and happened only once in the current sentence.
- Directors of contracted prisons will be allowed to take ROTL decisions whilst the Controller will continue to monitor the Director’s compliance in this area.
Public safety and public confidence
Any temporary release will always be balanced with the need for maintaining public safety and the public’s confidence in the judicial system. For example, the risk assessment will consider the impact of any release on identified victims and their whereabouts. More serious offenders will be subject to Restricted ROTL. This includes a number of elements over and above Standard ROTL such as enhanced monitoring.
The use of ROTL was restricted in 2013 following a murder committed by a prisoner on day release. However, the new licence changes mark a shift in attitude. Allowing prisoners to spend time in the community is a vital part of reintegration and 99% of all temporary releases are completed successfully.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We deal with all manner of criminal offences on a daily basis, from the initial investigation through to Court. We have the expertise to get you the best result possible.
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Mental Health, the Criminal Law and Sentencing
Mental Health is a complicated business. Conditions are not easy to diagnose, doctors can disagree on which disorder a person is suffering from, or even if they have a mental health condition at all.
Those with mental disorders might have specific needs in court on top of those of the typical defendant. That’s if they’re mentally well enough to stand trial at all, or if the CPS deems it is in the public interest to charge them.
Diversion
Our initial approach is to seek diversion away from the court process wherever possible. A proactive approach with the police and Crown Prosecution Service can often avoid prosecution and more speedily access any necessary medical help that an accused person needs.
How do Courts approach Defendants with Mental Health Problems?
Sentencing defendants who appear to have mental health problems is a very difficult exercise. As a result, The Sentencing Council recently published a new draft guideline. This sets out a general approach to sentencing defendants who have mental health problems.
This guideline is now open for consultation. The idea is that it will make sentencing easier and more consistent amongst those who suffer from mental illness.
It will apply only to some mental health conditions, including schizophrenia, bipolar disorder, PTSD, learning difficulties, autistic spectrum disorders, and dementia.
Although the guideline is still at consultation stage there is much that we can already utilise to assist those we defend.
What Sentences are Available?
Assuming a person is not well enough to stand trial, “unfit to plead”, a hearing goes ahead to determine whether they did the act; but this is not an ordinary trial with a “guilty” or “not guilty” outcome.
If they have done the act, or are found guilty in the usual way, there are several mental health-specific sentencing options available to the Judge under the Mental Health Act 1983.
Hospital Order
A Judge must be satisfied, on the evidence of two doctors, that this is the appropriate order, and that treatment is available.
The order is initially for six months but can be renewed for a further six and then annually. The treating doctor, hospital manager, or First-Tier Tribunal (Mental Health) decides when a person can be discharged from hospital.
Restriction Order
This is a type of order that attaches to a Hospital Order. At least one doctor must give live evidence. It can only be made if it is necessary to protect the public.
They restrict how a person can be discharged for a certain period, and they can be made indefinitely.
Only the Secretary of State, in most cases, can discharge someone under a Restriction Order. There is still a limited right of review in the First-Tier Tribunal (Mental Health).
Hospital and Limitation Directions
Otherwise known as “Hybrid Orders” these are a conventional prison sentence, with a direction that the time should be served in hospital rather than prison. These can only be made where a person is over 21.
If a person is discharged before the end of the prison term, they are transferred back to prison.
If they complete the “sentence”, they remain in hospital on the terms of a regular Hospital Order.
Several other factors weigh into whether any of these orders can or should be made.
A recent example of the use of a hybrid order can be found in the case of Samantha Ford. You can read more about that case here.
Can Someone Still be Sent to Prison?
Yes. The Judge is not obliged to make any of these orders just because a defendant suffers from mental health problems. Therefore, he/she can pass an ordinary prison or another sentence.
In the case of insanity or unfitness to plead, the Judge must use a mental health sentence or give an absolute discharge.
How we can assist
If you need specialist advice, then please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. At all stages we can access specialist medical advice to ensure the appropriate outcome.
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Who Guards the Guards?
This perennial question was back in the news following a ministry of justice announcement that further steps would be taken to root out dishonest prison officers and others working in custodial institutions.
A new counter-corruption unit will be tasked with ‘proactively pursuing those suspected of corrupt activity in prison and probation services across England and Wales.’
The unit comprises 29 specialist staff split into a national team and 5 regional teams. Within these teams are expert intelligence analysts who will examine threats to the organisation.
Corruption can range from a member of staff having a relationship with a prisoner, to bringing in drugs and contraband for individual prisoners or organised crime groups. The unit complements prison security teams that can already search staff, including with metal detectors and baggage scanners.
The new Counter Corruption Unit has 4 aims to combat the threat:
- protect against corruption by building an open and resilient organisation;
- prevent people from engaging in corruption, strengthening professional integrity;
- pursue and punish those involved in corruption;
- prepare prisons to minimise the impact of corruption where it does occur.
How widespread is the problem?
The numbers of staff found taking contraband into prisons in England and Wales has risen by 57% in the past six years, according to ministry of justice figures obtained through a freedom of information request. 341 staff members were either dismissed, excluded, convicted or cautioned by police. In 2017, there were 71 cases of staff smuggling compared with 45 in 2012.
Ben Crewe, deputy director of Cambridge University’s Prisons Research Centre, said staff cuts and a more significant proportion of inexperienced officers meant that “those in post are more vulnerable to corruption”.
This is terrible news for prisoners looking to leave prison with a clean slate – if the temptation is offered from within the prison estate the chances of breaking free from a cycle of criminality is severely diminished.
The new heightened security measures will also act as a deterrent to prisoners who break the rules while serving a sentence as the chances of capture may significantly increase.
The alarming scale of prison officer corruption also leads many to question the value that can be placed on prison officer testimony during court cases and prison adjudications. The actions of a few can impact on the entire staff.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 73881658 and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.
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Speed – How Fast is Too Fast?
The idea of speed limits causes immense confusion, with many people believing that the speed limit is at least the minimum speed you should ordinarily drive at.
Most of us have experienced the rage of a motorist behind us if we adhere to the limit. A step below it to any degree can often cause outrage.
In reality, however, the safe speed is always linked to the conditions. We need to factor in lighting, road conditions, traffic etc., while keeping an eye on the overall speed limit.
But, just how strictly are those limits enforced?
Research published recently by Auto Express magazine showed that most police forces adopt a 10% +2 policy, so if the speed limit is 40 miles per hour (mph), there will be no fixed penalty or prosecution unless the speed exceeds 46 mph. Interestingly some police forces, including Greater Manchester and the West-Midlands among others, refused to confirm the margin. Lancashire Police and the Metropolitan Police stated that they adopt 10% +3. Essex said they operate no threshold, and several other forces refused to say anything about the issue.
Even where a margin of error is allowed for, this would not preclude a prosecution if the police wished to pursue one. So unless you are going to drive around with a current and comprehensive list of speed policies in your head, the safe course is to stick to the limit.
As well as exploring police policies to speed, the research also disclosed that car speedometers typically display a speed which is 1 or 2 mph above the actual speed of the vehicle. This again provides some welcome tolerance for those times when you might not be fully observing the applicable limit.
But speeding isn’t really a crime is it?
In criminal law terms, speeding is often seen at the bottom of the list when compared to other crimes. Despite the relative low penalties, those points can soon hit the magic 12. At that point, the risk of disqualification can become very real for many people. Even gaining 6 points can mean some new drivers forfeiting their licence. Speeding far in excess of the limit can result in instant disqualification. In some circumstances, you could end up being charged with a more serious offence such as dangerous driving.
When looking at the more serious offences, in particular causing death by careless or dangerous driving, we see that excess speed is often a feature highlighted by the prosecution. What starts as nothing other than a rush to get home can soon become an unintended tragedy for all concerned.
How we can assist
If you need specialist driving offences advice, then get in touch with John Howey on 020 7388 1658 and let us help. We deal with all manner of road traffic offences on a daily basis. Our team has the expertise to get you the best result possible.
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Interview under caution; Do I need a Solicitor?
An interview under caution at the police station is also known as a ‘Caution + 3’ interview, or a voluntary interview. You will usually be contacted by a police officer who will ask you to come to the police station at a certain time because they want to talk to you about an offence, usually a fairly minor one or something that happened a while ago. Sometimes they will tell you they just ‘want a quick chat’.
Interview under caution; your rights;
Anybody who attends the police station for an interview under caution is entitled to free and independent legal advice. We will attend the police station with you at an agreed time. You won’t have to wait for a solicitor.
You are free to leave at any time, although if you leave before the interview there is the danger that you could be arrested. If you attend the police station as a volunteer you should not be arrested, unless the officer can show that one of the grounds for arrest exists. You probably won’t be searched and you won’t have your DNA and fingerprints taken. You will not have to go into a cell.
Why should I have a solicitor?
Well why wouldn’t you? For a start, it’s free. To everybody, no matter how much or how little they earn. That should probably be a good enough reason in itself, but many people still choose not to have a solicitor.
Before you are interviewed, the police officer will give your solicitor ‘disclosure’. They will tell us what you have been arrested for, and give us a summary of the evidence. We will then speak to you in private before you are interviewed. Your lawyer will tell you what you are going to be questioned about and what evidence the police have. We will advise you on the law and if you should be answering the questions or not.
Even if you are not under arrest, what you say or don’t say in your interview is still important. If you end up in court many months later, the Judge and jury, or magistrates, will know what you said or didn’t say in your interview and will pay close attention to it. If you do the right thing in your interview, you might not even get to court. You might be given a caution or your case might be dealt with in another way that means you don’t have to go to court. You might not even be charged. It can make a big difference to the outcome of your case, so you should still have a solicitor.
It doesn’t make you look guilty;
If you were ill you would go to a doctor. If your car breaks down you go to a garage. You get help from someone who knows what they are doing and is there to help you. The same applies to someone attending an interview under caution.
Just because you feel you haven’t done anything wrong, doesn’t mean you don’t need a solicitor;
In fact, it makes you need one even more. If you say or do the wrong thing, you might end up getting charged with something you didn’t do.
If you are in being interviewed in the police station, there is no such thing as ‘not very serious’;
A conviction for even a ‘minor’ offence can have a significant impact on your life. It might stop you getting a job, or it might stop you travelling to places like America, and that is before you have to pay a fine, have a curfew or do unpaid work, or even go to prison. Calling us to come and represent you is not ‘bothering us’. It is what solicitors are there for.
What happens after the interview?
Following your interview under caution, you will be free to leave. Sometimes the officer will be able to tell you straight away what is going to happen. Usually, the Police or the Crown Prosecution Service (CPS) will have to consider the case and then decide how to proceed. Should they decide there is sufficient evidence against you and that you should go to Court, then you will get a summons in the post. The summons will detail the charge against you and will give you the date to attend Court.
If you have any questions or you want us to assist you in arranging a voluntary interview, please contact us on 0207 388 1658 or email lawyers@jfhlaw.co.uk, and ask to speak to one of our experienced criminal lawyers.
John Howey, senior solicitor
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What To Do If You Are Too Unwell To Attend Court
Many people face very lengthy court proceedings, and it is therefore hardly unusual that on occasion a person may be unwell and unable to attend court.
Despite this fact, courts are sceptical of alleged illness and unless the rules are followed in close detail, a non-attendee faces the serious prospect of being arrested by the police and taken to court in custody. This may involve a stay in police cells over the weekend, so it is essential that you understand what you need to do.
The first step is to inform your solicitor as soon as you are able.
Our firm has a 24-hour contact number, 07939 958767, so that you can contact us before office opening (say around 8 am) to inform us as to what is happening.
In almost all cases, if you do not need to see a Doctor, the court is unlikely to accept your illness as an excuse not to attend court.
It will, of course, depend on the exact circumstances, so again it is essential to speak to us and obtain advice as to what is the best course of action.
A Doctor will be able to issue you with a sick note.
This is not, however, necessarily the end of the matter, and the opinion of a Doctor does not bind a court.
Doctors have been issued with guidance concerning medical notes for court non-attendance, but a busy practitioner may very well miss the detail.
The Criminal Practice Direction sets out the following minimum requirements:
(a) The date on which the medical practitioner examined you;
(b) The exact nature of your ailments;
(c) If it is not self-evident, why the ailment prevents you attending court;
(d) An indication as to when you are likely to be able to attend court, or a date when the current certificate expires
Circumstances where the court may find a medical certificate unsatisfactory include:
(a) Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court);
(b) Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
(c) Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help, we have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.
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Government Tightens Terrorism Laws
The Manchester Arena bombing, the London Bridge attack, Shamima Begum. These are some examples of terrorism headlines in the past few years.
The Counter-Terrorism and Border Security Act 2019 is the Government’s latest answer to curbing and punishing terrorist activity. The Act creates new terrorism offences, changes some old ones, and increases the maximum sentence for many existing ones. The new provisions came in to force on 12 April 2019. They apply to offences committed on or after that date.
Expression of Support for Proscribed Organisations
This new offence covers a situation where a person expresses an opinion or belief that supports a proscribed organisation and is reckless as to whether the person listening will be encouraged to support it.
This is explained as plugging a gap expressed by the Court of Appeal in Anjem Choudary’s case; that it was not unlawful to support a proscribed organisation, or to express those views.
It was an offence to actually and intentionally invite support for them.
Doubtless there will be free speech challenges to this new provision under Article 10 of the European Convention on Human Rights. The Court in Choudary ruled that the existing offence of inviting support did not breach Article 10. This was because it did not restrict the expression of views.
Publication of Images and Seizure of Articles
This creates an offence of publishing images, including videos, of prohibited clothing/articles (usually flags or banners) in circumstance where it arouses a reasonable suspicion that the person is a member of a prohibited group.
It covers situations where the image itself may be very good evidence of the person wearing or displaying an article, but no offence is committed because they are not in a public place in the photograph.
The photograph itself can reach a wide audience (for example via social media) similar to being in a public place. However, this was not an offence up to now.
Obtaining or Viewing Material over the Internet
This makes it an offence to simply view, on top of actually download/record, information likely to be useful to a terrorist attack. It also clarifies that the existing provisions do indeed include downloading information.
There is a defence if a person can show a reasonable excuse, for example a journalist researching a story.
This offence may also face legal challenge based on free speech and freedom of expression.
Entering or Remaining in a Designated Area
This section is expressly to deal with “foreign fighters” that leave the UK for places such as Syria in order to fight for proscribed organisations such as IS.
The Secretary of State can make regulations designating areas outside the UK, where he is satisfied it is necessary in order to protect the public from threats of terrorism.
It would then become an offence for UK nationals or residents to go to, or remain in, any of those designated places, subject to a one-month grace period and exceptions for people such as diplomats or armed forces, and other reasons such international aid work or to visit a terminally ill relative.
It is also a defence to enter involuntarily.
The Secretary of State must keep any designation under review, and in any event a designation lapses after three years.
Encouraging Terrorism and Dissemination of Terrorist Publications
This section amends the current sections 1 and 2 of the Terrorism Act 2006.
It removes the requirement that statements or publications made are likely to be understood by those at whom they are directed. Instead, the test is whether they are likely to be understood by the reasonable person.
This means that the offence will now cover situations where statements or publications are made towards children or those who do not have the capacity to understand the remarks made.
Sentences for Terrorism Offences
The maximum sentence for some terrorism offences are increased. They are:
- Failure to disclose information about terrorism: doubled to ten years.
- Collection of information likely to be useful to a terrorist: increased from ten to 15 years.
- Eliciting, collecting or publishing information about the armed forces likely to be useful to a terrorist: increased from ten to 15 years.
- Encouragement of terrorism: more than doubled from seven to 15 years.
- Dissemination of terrorist publications: more than doubled from seven to 15 years.
Existing sentencing guidance will need to be reviewed in light of these changes.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch with. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Policing Public Protest – A Question of Balance
Environmental protests across London in recent days have caused massive disruption and are set to spread across other towns and cities over the coming weeks and months.
Public protest has always been a legitimate and important part of the democratic process and is enshrined in law. But, how do the police balance the right to protest as against the rights of other people to go about their business unimpeded?
Why are people protesting?
Extinction Rebellion has organised the protests; a group concerned about the environmental destruction of our planet.
Frustrated that other attempts to force change in governmental behaviour have changed, they have resorted to a new form of peaceful protest, on its website they claim:
‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’
In London the protesters blocked major roads and bridges, leading to significant chaos and disruption.
What was the police response?
The Metropolitan Police set out the dilemma in this way:
‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it.
Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.’
‘…we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents. However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’
Was anyone arrested?
An almost unique feature of the protests to date is that people are aware of the risk of arrest and are willing to be arrested – this ironically presents an incredibly difficult policing challenge.
The police say:
‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences. So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800).
Will all those people be prosecuted?
This remains to be seen, but potentially thousands of contested prosecutions would place an immense strain on the criminal justice system, so many people think that those released without charge will face no further action.
Are there any legal defences to these charges?
There are several defences potentially available although the lawful right to protest peacefully is not an absolute one, and case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protestors. We anticipate that there will be a good number of legal challenges flowing from these protests.
People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help – if you are arrested ask for us by name, the police can contact us so that we can speak to you privately.
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Undercover Policing – Beyond the Line of Duty
The television drama ‘Line of Duty’ reaches a conclusion this evening, with audiences keen to discover the identity of ‘H’ and the top copper involved in organised crime gangs.
Central to the plot of this series has been undercover cop John Corbett, who met with an unexpected and grisly end in episode 4.
Having been sent in to expose the workings of organised crime gangs, he appeared to go rogue and was involved in armed robbery and murder, despite appearing otherwise legitimate when trying to convince AC12 officer Steve Arnott that he was near to uncovering the police officer at the head of the plot.
So, how near to real life is Line of Duty?
The role of undercover police officers is well documented, but surprisingly there is little statutory control over what they can and cannot do.
They cannot, of course, kill people, otherwise than with a lawful excuse, such as self-defence, but by necessity, they have to get involved in some level of criminality otherwise they would be quickly exposed.
The difficulty lies when the boundaries become blurred; can we always tell when an officer is a bystander or lowly participant, and when, as in the case of John Corbett, they appear to be the instigator of a serious crime?
At the moment there is an enquiry underway concerning undercover policing, but its findings are some years away yet. In the meantime defence lawyers need to carefully peel away the layers of secrecy, navigating public interest immunity obstacles in a fight to uncover the real story of their client’s involvement in alleged criminality.
This work can be slow and painstaking, but experienced lawyers know the law inside out and are well placed to ensure that your corner is appropriately defended. Only by shining a light on this often secret police world can a jury fully explore all of the facts and arrive at a just verdict.
As serious crime becomes every more organised and sophisticated, and traditional surveillance techniques are frustrated by modern technology and encryption, it is likely that the police will have to rely even more on old school techniques to gather evidence.
But we also know that human behaviour is complex and undercover police do not always keep to the rules, on occasion being guilty themselves of crime and encouraging others to commit crimes that they otherwise may not have (a legal concept called entrapment).
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.
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Listen, do you want to know a secret?
Gavin Williamson MP has been sacked from the Cabinet for leaking confidential information from the National Security Council regarding Huawei. Theresa May considers that the matter is closed and won’t refer him to the police. However, they can investigate anyway, but would need the cooperation of the Cabinet Office. There are some sensitivities when it comes to investigating the workings of government at Cabinet level.
What crime might he have committed?
The Official Secrets Act 1989 covers information like this and applies to the former Defence Secretary because he was a Crown Servant, in other words, a Government Minister.
Doesn’t he have to sign the Act?
No. There is no requirement for a person to sign the Official Secrets Act, although it is often done to reinforce to members of MI5, MI6 and GCHQ that it applies to them. Certain persons do have to be notified that the Act applies in order to trigger liability for certain offences.
What does the Act say?
There are various provisions within the Act, two of which may be relevant. They relate to Security and Intelligence, and International Relations.
Under each section, a Crown Servant commits an offence if he makes a “damaging disclosure” of any information they have access to because of their job.
Members of MI5, MI6, GCHQ, and people who are notified that this part applies to them, commit an offence by making any disclosure. It is this reference to ‘notification’ that leads to people being asked to ‘sign the Act’, but in reality, this is only in relation to people who might not know the importance of the information they might come across.
It is possible Gavin Williamson had been notified this applies to him, in which case his leak would seem to be an offence, but we don’t yet know for certain. The Cabinet Office manual does however contain specific reference to the Act, so notification does seem likely to have been in operation.
If he hadn’t been notified, he was subject to that part of the Act, the leak would have to be damaging to one of the areas above. This would be by damaging the work of the security and intelligence services or endangers the interests of the UK abroad.
Was the leak damaging?
Maybe. It may damage the capability of the security and intelligence services to conduct investigations. Sources may not be willing to cooperate if they feel their information will appear in the Daily Telegraph the next day.
It could also mean that foreign intelligence agencies, such as Five Eyes, are more hesitant to share information with us.
Since the leak related to Huawei and their links to the Chinese Government, it may be that it has damaged our interests in China.
Both could count as damage under the Act.
But if Huawei are Chinese spies, we need to know!
That may be, but there is no “whistle-blower” defence to the Official Secrets Act. Just because it is in the public interest to leak information does not mean it isn’t still a crime.
Has Gavin Williamson breached the Official Secrets Act 1989?
It is possible. There are opposing views at the moment, with Julian Lewis, Chair of the Defence Committee, saying that no secret information was leaked.
Other reports say the opposite, and it has been reported that the NSA has already voiced their concerns.
Whether there is evidence to satisfy a jury of criminality remains to be seen, and the situation may well be complicated by the role of security services and methods employed in order to gather that evidence.
Why not ask the journalist?
The journalist will not voluntarily reveal any information given and given journalistic protections enshrined in law it is unlikely that he could be compelled to cooperate.
Are the offences serious?
If convicted, Williamson could go to prison for up to two years. In the end, it will be up to the police and Crown Prosecution Service, with the consent of the Attorney-General, to investigate and prosecute.
Are there defences to the Official Secrets Act?
Yes. Crown Servants can show the leak wasn’t damaging. It’s also a defence to show that the disclosure was authorised, or that you didn’t believe the disclosure would be damaging.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk and let us help. Whilst investigations under the Official Secrets Act are relatively rare, the underlying evidential considerations are things that our experts deal with on a daily basis.
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