HOUSE OF LORDS
Lord Bingham of Cornhill Lord Hope of Craighead Lord Hutton Lord Hobhouse of Wood-borough Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 21 MARCH 2002
 UKHL 11
LORD BINGHAM OF CORNHILL
1. Mr David Shayler, the appellant, is a former member of the Security Service. He has been indicted on three counts charging him with unlawful disclosure of documents and information contrary to sections 1 and 4 of the Official Secrets Act 1989. Moses J, exercising a power conferred by section 29(1) of the Criminal Procedure and Investigations Act 1996, ordered that a preparatory hearing be held before him. At that hearing the judge ruled under section 31(3)(b) of that Act that no public interest defence was open to the appellant under those sections, which he held to be compatible with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The appellant appealed to the Court of Appeal (Criminal Division) against those rulings, and also questioned whether it had been appropriate for the judge to make rulings under the 1996 Act. The Court of Appeal held that the judge had been entitled to make rulings under the 1996 Act, and upheld his rulings both on the absence of a public interest defence and on the compatibility with article 10 of the European Convention of sections 1 and 4 of the Official Secrets Act 1989:  1 WLR 2206. The appellant now challenges these rulings of the judge and the Court of Appeal before the House. At the hearing of this appeal the House had the benefit of submissions on behalf of media interests and the Home Secretary.
2. The appellant faces trial on indictment and his right to a fair trial must of course be protected. No evidence has yet been called and no facts proved. In summarising the facts giving rise to the appeal it is appropriate to rely very heavily on the statement of facts agreed between the parties.
3. The appellant was a member of the Security Service ("the service") from November 1991 to October 1996. At the outset of his service he signed an Official Secrets Act 1989 ("OSA") declaration acknowledging the confidential nature of documents and other information relating to security or intelligence, defence or international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose, without authority, any information that came into his possession by virtue of his employment. On leaving the service he signed a further OSA declaration acknowledging that the provisions of the Act continued to apply to him notwithstanding the termination of his appointment, and that the same requirements of confidentiality continued to apply to any information, documents or other articles relating to security or intelligence, defence or international relations which might have come into his possession as a result of his previous employment. He made a written declaration that he had surrendered any and all information in material form (whether classified or not) made or acquired by him owing to his official position, save such as he had the written authority of the service to retain.
4. Before August 1997, the appellant disclosed a number of documents to journalists from The Mail on Sunday. Some 29 different documents were later returned by the newspaper to the Treasury Solicitor in March 1998. Most of them appeared to relate to security and intelligence matters and were classified at levels ranging from "Classified" up to and including "Top Secret". The prosecution allege that certain of the documents included material obtained by or relating to the interception of communications in obedience to warrants issued under section 2 of the Interception of Communications Act 1985.
5. On 24 August 1997, The Mail on Sunday published an article written by the appellant himself (according to the by-line) and a number of other articles by journalists purporting to be based on information disclosed by the appellant. The prosecution allege that the appellant was paid a substantial sum of money by the newspaper for these activities. The prosecution also allege that the information contained in and referred to in the articles relates to matters of security and intelligence to which the appellant could only have had access by reason of his employment with the service.
6. Just before the articles were published, the appellant left the country and a subsequent attempt to extradite him from France failed. He returned on 21 August 2000 and was arrested on his arrival at Dover. He was cautioned and made no reply. He was not interviewed at any stage, but was taken to London and charged at Charing Cross Police Station that same afternoon. In reply to the charge he said:
"I have been living in Paris for three years and I have decided voluntarily to return to Britain to face charges under the Official Secrets Act. I have done this to clear my name and to allow a jury of 12 of my fellow citizens to judge me. I have also returned to challenge the cover-ups and complacency that have followed my disclosures. I admit that as an officer of the Security Service, I was a Crown Servant from November 1991 to October 1996. However, I do not admit making any disclosures which were contrary to the criminal law. Any disclosures made by me were in the public and national interests. In my defence I will rely on my right of freedom of expression as guaranteed by the common law, the Human Rights Act and Article 10 of the European Convention on Human Rights."
7. The first count in the indictment against the appellant alleges that, on or before 24 August 1997, being a person who had been a member of the security and intelligence services, he disclosed documents relating to security or intelligence without lawful authority contrary to section 1(1) of the OSA 1989. The second count alleges that, on or before 24 August 1997, being a person who had been a crown servant, he without lawful authority disclosed information obtained by reason of warrants issued under the Interception of Communications Act 1985, contrary to section 4(1) of the OSA 1989. The third count alleges that on 24 August 1997, being a person who had been a member of the security and intelligence services, he without lawful authority disclosed information relating to security or intelligence, contrary to section 1(1) of the OSA 1989. The appellant has pleaded not guilty to these charges.
8. At the preparatory hearing before the judge the first issue was whether, in law, the appellant would be entitled to be acquitted of the charges against him if (as he asserted on his arrest) his disclosures had (or, one should add, might have) been made in the public and national interest. In his judgment Moses J referred to the assertion made by the appellant on his arrest and quoted the written submission made on the appellant's behalf:
"Any disclosures made by him were intended to draw attention to the illegal, unlawful and inefficient workings of the security and intelligence services, which, on occasion risked, and continued to risk, life and limb."
The judge, at para 4, recorded the appellant as seeking
"to contend that his disclosures were necessary to expose serious illegality by the security and intelligence services, and, in particular such disclosure was necessary to avert threat to life or limb or serious damage to property."
The judge's conclusion expressed at the end of his judgment, was unequivocal:
"Section 1(1) and section 4 of the Official Secrets Act 1989 do not permit a defendant to raise a defence that his disclosure was necessary in the public interest to avert damage to life or limb or serious damage to property."
The judge developed at some length his reasons for holding that the sections as so construed were not incompatible with article 10 and at paragraph 82 of his judgment, under the heading "Extending the common law", said:
"Were I to have concluded that the absence of any public interest offence is incompatible with the Convention, Mr Fitzgerald QC's argument that the common law principle of necessity should be developed in the light of Article 10 seems to me to afford a more fruitful basis for the courts to permit such a defence."
He then went on to consider the common law defences of necessity and duress of circumstances. He was prepared to accept that a conventional defence of duress was in theory open to a former member of the service, but could not accept that a defence of necessity or duress of circumstances was open. The Court of Appeal took a different legal view on this latter issue, to which much of its judgment was directed, but it was of the opinion that there was no material before the court to suggest that a defence of necessity or duress of circumstances was open to the appellant on the facts.
The Official Secrets Act 1989
9. Section 2 of the Official Secrets Act 1911, enacted in great haste, was the subject of sustained criticism over many years. Its excessive scope had proved an obstacle to its effective enforcement. For this reason, and in fulfilment of a pledge to get rid of unnecessary secrecy, a departmental committee under the distinguished chairmanship of Lord Franks was established in 1971 to consider and recommend an effective and enforceable alternative. The committee reported in 1972 (Cmnd 5104). The committee recognised in paragraph 1
"the concern of democratic governments to see that information is widely diffused, for this enables citizens to play a part in controlling their common affairs. There is an inevitable tension between the democratic requirement of openness, and the continuing need to keep some matters secret."
The committee went on to observe on pp 47-48, paras 122-123:
"It is generally accepted that secrecy is an important element in the effectiveness of defence measures and equipment, and that a breach of secrecy could seriously damage the nation . . . Defence is traditionally thought of in terms of troops, weapons and equipment, and plans. Intelligence is also an important aspect of defence, and comprises both our own intelligence operations and measures taken against the intelligence operations of others. All defence matters must be treated in terms not just of this country, but of the United Kingdom and her allies taken together. The Government are under an obligation to protect the defence information of our allies in the same way as our own. For the purposes of our broad categories, we regard defence as including home defence and internal security."
After observing (p 49, para 127) that in the field of international relations secrecy is mutual, since one country cannot breach secrecy unilaterally without damaging its relations with others, the committee said on p 50, para 130:
"Exchanges between governments not amounting to negotiations are often on a confidential basis. One nation may entrust to a second nation or to its friends or allies information which it is on no account prepared to allow to go further. A breach of this trust could have a seriously adverse effect on relations between the countries concerned, which might extend well beyond the particular matter which leaked."
10. A white paper based on the Franks recommendations was published in July 1978 and a bill was introduced in Parliament in the following year. The bill was however criticised for its reliance on conclusive ministerial certificates and the excessive width of the prohibition it imposed. In the face of strong criticism it was withdrawn. Unsuccessful attempts to reform the law were made by private members, and in 1987 the government of the day again sought to devise an acceptable reform. A further white paper (Cm 408) was published in June 1988.
11. This white paper was the immediate precursor of the OSA 1989 and its recommendations bear directly on the interpretation of the Act. The following paragraphs are particularly relevant:
"25. The most obvious areas in which the public interest needs to be protected are those where the protection of the nation from attack from outside or from within is involved. Clearly new legislation must protect information relating to defence (including civil preparedness) and information relating to security and intelligence.
30. There is a particular sensitivity about the interception of telephone calls, mail and other forms of communication. It is an exceptional but vital instrument which is used, for the protection of society, when other means are not available. Successive Governments have recognised that properly controlled interception for limited purposes, such as national security or the prevention and detection of crime, is not only justified but essential in the public interest. The effectiveness of interception would be much reduced if details of the practice were readily available. But it is not only the means by which interception is practised which need to be protected. The information gathered by its use, even where it is not covered by one of the other categories already mentioned, ought not to be publicly available. Interception inevitably involves interference, without their knowledge, with the privacy of those whose communications are intercepted. Such interference is acceptable in the public interest only if those responsible for interception maintain the privacy of the information obtained.
38. . . . [The Government] proposes instead that legislation should make a distinction between disclosures by members and former members of the security and intelligence services and disclosures by other persons; and that, in the latter case, the prosecution should have to show that the disclosure was likely to damage the operation of the security or intelligence services.
39. Because of the exceptional sensitivity of this area of information, however, there is a particular difficulty in bringing prosecutions in some cases which would be exacerbated by the need to show that the proposed test of harm had been met. In order to prove the truth of the information at present, and in order to satisfy the test of harm if the Government's proposal is adopted, evidence may need to be adduced which involves a disclosure which is as harmful as or more harmful than the disclosure which is the subject of the prosecution. Because of this danger it is not always possible to bring a prosecution at all. The Government considers that it is not in the public interest that those who wish to disclose information which damages the operation of the security or intelligence services (for example by revealing details of their operations or identifying personnel) should be able to do so with impunity, simply by reason of the sensitivity of the subject matter.
41. While the Government believes that this proposed test of harm is in general adequate to safeguard the interests both of the defendant and of the security and intelligence services, it considers that different arguments apply to the unauthorised disclosure of information by members or former members of those services. It takes the view that all such disclosures are harmful to the public interest and ought to be criminal. They are harmful because they carry a credibility which the disclosure of the same information by any other person does not, and because they reduce public confidence in the services' ability and willingness to carry out their essentially secret duties effectively and loyally. They ought to be criminal because those who become members of the services know that membership carries with it a special and inescapable duty of secrecy about their work. Unauthorised disclosures betray that duty and the trust placed in the members concerned, both by the State and by people who give information to the services.
42. The Government accordingly proposes that it should not be necessary for the prosecution to adduce evidence of the likely damage to the operation of the security or intelligence services when information relating to security or intelligence has been disclosed by a member or former member of one of those services.
43. The difficulties described in para 39, arising from the fact that a trial may lead to the disclosure of information more sensitive than has already been disclosed, need particularly to be overcome where the defendant is a member or former member of the security or intelligence services. It is clearly not in the public interest that a person who is entrusted with the protection of the security of the country, and who betrays that trust, should be able to escape prosecution because of the very sensitivity of the information with which he has been entrusted. Furthermore, as a general policy, Governments do not comment on assertions about security or intelligence: true statements will generally go unconfirmed, and false statements will normally go undenied. As a result, and because of the particular credibility attaching to statements about security or intelligence by members of the services concerned, the circulation of misinformation by a member of the services may, in a different way, be as harmful as his disclosure of genuine information.
44. The Government proposes to meet these problems by making it an offence for a member or former member of the security or intelligence services to make any disclosure which is either of information relating to security or intelligence or which purports to be of such information or which is intended to be taken as such.
53. Finally, paragraph 30 sets out the reasons why the disclosure of information relating to the process of interception or obtained by that means is harmful. It seems to the Government that no information relating to this process can be disclosed without the possibility of damaging this essential weapon against terrorism and crime and vital safeguard of national security. Similarly no information obtained by means of interception can be disclosed without assisting terrorism or crime, damaging national security or seriously breaching the privacy of private citizens. The Government does not therefore consider that a specific test of harm can be formulated or, indeed, is necessary or appropriate for this category of information."
Under the heading "A Public Interest Defence", the white paper continued:
"58. Suggestions have been made that the law should provide a general defence that disclosure was in the public interest. The object would be to enable the courts to consider the benefit of the unauthorised disclosure of particular information, and the motives of the person disclosing it, as well as the harm which it was likely to cause. It is suggested, in particular, that such a defence is necessary in order to enable suggestions of misconduct or malpractice to be properly investigated or brought to public attention.
59. The Government recognises that some people who make unauthorised disclosures do so for what they themselves see as altruistic reasons and without desire for personal gain. But that is equally true of some people who commit other criminal offences. The general principle which the law follows is that the criminality of what people do ought not to depend on their ultimate motives - though these may be a factor to be taken into account in sentencing - but on the nature and degree of the harm which their acts may cause.
60. In the Government's view, there are good grounds for not departing from the general model in this context; and two features of the present proposals particularly reinforce this conclusion. First, a central objective of reform is to achieve maximum clarity in the law and in its application. A general public interest defence would make it impossible to achieve such clarity. Secondly, the proposals in this White Paper are designed to concentrate the protection of the criminal law on information which demonstrably requires its protection in the public interest. It cannot be acceptable that a person can lawfully disclose information which he knows may, for example, lead to loss of life simply because he conceives that he has a general reason of a public character for doing so.
61. So far as the criminal law relating to the protection of official information is concerned, therefore, the Government is of the mind that there should be no general public interest defence and that any argument as to the effect of disclosure on the public interest should take place within the context of the proposed damage tests where applicable."
What became the OSA 1989 was debated in both Houses during its passage through Parliament. An amendment designed to introduce a public interest defence was rejected. The Act as passed gives general effect to the proposals in the white paper.
12. As enacted the OSA 1989 makes important distinctions leading to differences of treatment:
(1) The Act distinguishes between different classes of discloser. Thus, in section 1, members and former members of the intelligence and security services and persons notified that they are subject to the subsection are covered by subsection (1), whereas past and present Crown servants and government contractors are covered by sub-section (3).
(2) The Act distinguishes between different kinds of information. Section 1 deals with security and intelligence information. Successive sections deal with information relating to defence, international relations and crime.
(3) The Act provides specific defences on which reliance may be placed in different circumstances: thus, in addition to the defence expressly provided in section 1(5) quoted below, further defences are provided in sections 2(3), 3(4), 4(4) and (5), 5(3) and (4), 6(3), 7(4) and 8(2).
(4) The requirement to prove damage differs according to the nature of the disclosure and the information disclosed. Thus the provisions in section 1(3) and (4) are to be contrasted with the lack of any express requirement of damage in section 1(1), and are in line with similar provisions in sections 2(1) and (2), 3(1), (2) and (3), 4(2), 5(3) and 6(2).
13. Section 1 under which counts 1 and 3 of the indictment against the appellant have been laid, provides (so far as relevant) as follows:
"(1) A person who is or has been -
(a) a member of the security and intelligence services; or
(b) a person notified that he is subject to the provisions of this subsection,
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.
The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.
A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above.
For the purposes of subsection (3) above a disclosure is damaging if -
(a) it causes damage to the work of, or of any part of, the security and intelligence services; or
(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.
It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.
In this section 'security or intelligence' means the work of, or in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them."
Section 4, under which count two of the indictment is laid, provides (so far as material, and as amended) as follows:
"(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such.
This section also applies to -
(a) any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985, any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception; and
(b) any information obtained by reason of action authorised by a warrant issued under section 3 of the Security Service Act 1989 or under section 5 of the Intelligence Services Act 1994 or by an authorisation given under section 7 of that Act, any information relating to the obtaining of information by reason of any such action and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such action.
(5) It is a defence for a person charged with an offence under this section in respect of any other disclosure to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was information or a document or article to which this section applies."
Section 7 governs the authorisation of disclosures. It deals first with disclosures by Crown servants and persons subject to notification under section 1(1), then with government contractors, and then in subsection (3) provides:
"For the purposes of this Act a disclosure made by any other person is made with lawful authority if, and only if, it is made -
(a) to a Crown servant for the purposes of his functions as such; or
(b) in accordance with an official authorisation."
"Official authorisation" is defined to mean an authorisation duly given by a Crown servant or by or on behalf of a prescribed body or a body of a prescribed class. These expressions are defined in section 12. A "Crown servant" includes any minister, civil servant, member of the armed forces or constable, and any holder of an office or body or member of a body prescribed by the secretary of state. In section 13 "disclose" and "disclosure" are defined to include parting with possession of a document.
The Security Service Act 1989