The Official Secrets Act
Even as a criminal solicitor in London, in over 20 years I have never come across a client accused of breaching the Official Secrets Act. Reference is often made to someone ‘signing the Official Secrets Act’, and this week I came across such a signed document, headed ‘Official Secrets Act’, amongst the papers of an elderly relative who died recently.
Contrary to many people’s belief, those who are bound by the Act are bound by it whether they have signed anything or not. ‘Crown Servants’, a term that includes civil servants, police, judicial officials and the armed forces and ‘government contractors’, ie companies who produce goods or services under contract for the government, are all bound by the Act, as well as members of the security services. Signing a document merely acts as a reminder to individuals that they continue to be bound by the Act even after they cease to be employed.
Prosecutions under the Official Secrets Act
To be an offence, the disclosure must be damaging. Prosecutions under the Official Secrets Act are rare; Clive Ponting in 1985 for leaking details of the sinking of the General Belgrano during the Falklands War; Richard Tomlinson in 1997 for passing secrets to a journalist; Sarah Tisdall for leaking details of the arrival of American missiles in the UK, and David Shayler.
David Shayler was arrested in France in 1998. He had been working for MI5, and revealed sensitive information to the Daily Mail, suggesting amongst other things that the security services were deliberately planting misinformation in the media and had ignored information that could have prevented terrorist attacks in the UK. The French courts refused to extradite him, ruling that the prosecution was politically motivated. A similar bar exists in the Extradition Act, S13 ‘extraneous considerations’, which prevents the extradition of a person where the warrant is issued for the purpose of prosecuting him or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or he might be prejudiced at his trial for any of those reasons.
Shayler eventually returned to the UK and was prosecuted. He was convicted after the Judge directed the jury to convict him.
A similar direction to the previous case had been given to the jury in the trial of Clive Ponting, who argued that the Act as it then stood allowed for the publication of information if it was in the interests of the state to do so. Although the trial judge directed the jury that it was up to Government Ministers to decide what was and what was not in the interest of the state, and that the jury should convict the defendant, they acquitted him.
Katharine Gun was charged in 2003 with leaking an email from the National Security Agency in the United States. The email was asking for help in a bugging operation at the United Nations, in the run up to the UN Security Council vote on the invasion of Iraq. Countries who were thought to be undecided were to have their offices bugged. Gun’s defence was that she was acting to prevent imminent loss of life in an illegal war. On the day of trial, for reasons never fully explained, the prosecution offered no evidence.
This seems to have been the last notable prosecution under the Act. Earlier this year, the Law Commission published a paper suggesting ways to bring the Official Secrets Act up to date, to deal with modern issues. the consultation has now closed, but you can still access the documents.
With the majority of Parliamentary time over coming months and years being taken up with Brexit, it seems unlikely that there will be progress soon.
John Howey, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.