Is the Official Secrets Act about to be used to gag journalism? – Obiter J

Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school.  She was kidnapped and murdered and her body was found in September 2002.  In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff.  When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail.  The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. 

The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
Clearly, the media have, of necessity, to use “sources” of information and such information is usually given only on the basis that the journalist will not reveal the source.  If the authorities were able to readily demand that sources be revealed then it is likely that sources of information would dry up.  That could lead to the end of investigative journalism with the result that a great deal of iniquity would remain hidden from the public eye.  The European Court of Human Rights clearly recognised this in the case of Goodwin v United Kingdom (1996) 22 EHRR 123.   In para. 39 the Court stated:

Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest.

Thus, in these cases, Article 10 of the European Convention on Human Rights (Freedom of Expression) is heavily engaged and the Human Rights Act 1998 s.3 applies – “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

In looking at this, it will be necessary to consider the precise terms of Article 10:

  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Clearly, there are a number of potential exceptions to freedom of expression including “the prevention of … crime” or “information received in confidence.”  However, it is also vital to note that any “formalities, conditions, restrictions or penalties” must be prescribed by law and must be necessary in a democratic society.  The revelation of iniquity – such as the hacking of a dead child’s phone – is clearly vital in any democratic society.  It follows that, in all but very exceptional situations, the balance ought to lie in favour of the journalist who seeks to protect the source which has led that journalist to reveal the iniquity.

Turning to the phrase “prevention of crime”, if particular material was actually protected by the Official Secrets Acts then it could be an offence to disclose that information – see Official Secrets Act 1989 section 4 and section 5.   Prosecutions usually require the consent of the Attorney-General – see OSA 1989 s.9  Constables (and others employed or appointed by Police Forces) are Crown Servants for the purposes of the OSA 1989 – see. s.12(1)(e)   One of the aims of the Act is to penalise disclosure (without lawful authority) of information held by Police Forces.

Suppose that a disclosure order is made and the journalists refuses to comply.  This could amount to a contempt of court but the journalist would be able to argue section 10 of the Contempt of Court Act 1981.

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

This is a serious development and is worrying for freedom of speech generally and, of course, for the journalists in question.  It sounds ill in the mouths of the Metropolitan Police to be bringing the case given their very dilatory investigations into phone hacking.  Since it is unclear how this case will actually be argued before the court, we must now await developments.

For further on this, please see the article in The Guardian by Geoffrey Robertson QC – “Threat to press freedom” – Friday 16th September.   Se also the Guardian’s editorial of 16th September and the article “Journalists’ right to act as eyes and ears of the public interest must not be put at risk.”

Jack of Kent blog 16th September –  “Today’s Met Statement

Case law which may be of some relevance:

X v Morgan Grampian [1991] 1 AC 1 – interpretation of “interests of justice” in the Contempt of Court Act 1981 s.10

Secretary of State for defence v Guardian Newspapers [1984] 2 WLR 268 – “national security” in Contempt of Court Act 1981 s.10

Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 – “prevention of disorder or crime” – Contempt of Court Act 1981 s.10

R v Shayler [2002] UKHL 11

Interbrew SA v Financial Times [2002] EWCA Civ 274 – disclosure – public interest

Ashworth Hospital Authority v MGN [2002] UKHL 29 – whether public interest in disclosure outweights media interest in protection of sources

Update, 18 September 2011 – Read Obiter J’s follow-up post: The Official Secrets Acts 1911-1989: Blunderbusses and Armalites

This post by Obiter J originally appeared on the Law and Lawyers Blog and is reproduced here with permission and thanks

7 thoughts on “Is the Official Secrets Act about to be used to gag journalism? – Obiter J

  1. In my view this Prosecution against the Guardian Journalists is an Abuse of Process. The Prosecution are manipulating the process of the Court for reasons which are clearly not in the Public Interest.
    No Doubt sections of the Metropolitan Police are angry with the Guardian for exposing the phone Hacking but it is entirely wrong that the Court Process should be used to punish the Journalists.
    The Police clearly have too much power and the whole Criminal Justice system appears to have lost its way. The Crown Prosecution (CPS) forget that they must prosecute in the Public Interest not in the interests of Police Officers.
    The rational for the creation of the CPS was to prevent the police making wrong and vindictive charging decisions which were not in the Public Interest. The CPS have increasingly become and arm of the Police and no-longer act impartially and in the Interests of the Public they serve.
    The CPS should review this case and discontinue and parliament needs to re-think the whole criminal justice system.

  2. It’s interesting that the State is arguing that the anonymity of informants should not be protected. The Data Protection Act, Section 7, has explicit provisions that require the anonymity of informants to be maintained.

    In Gaskin v UK ECtHR 1989 the UK government argued that anonymity of informants overrode Gaskin’s right to access the records kept on him by the State. Lord Denning in Gaskin v Liverpool City Council 1979 argued the same. The ECtHR acknowledged that protection of informants is proportionate in a democratic society but also held that the protection of informants should not impede access to records where they contain information vital to the subject understanding their formative years.

    I am wondering whether disclosure of the informant’s identity would breach the Data Protection Act 1998. Journalism is designated a “Special Purpose” in the Act.(section 3). Section 32 confirms that publication of personal data is lawful for journalistic purposes.However, Section 32, SS1, exempts journalists from complying with Section 7 (including the provisions that protect informants). Hence it seems that Section 32 can not be relied upon by the Guardian .

    Section 29 of the Act (Crime and Taxation) also exempts personal data from Section 7. This seems to confirm that it is permissible to release details of an informant’s identity if personal data are being processed for the purposes of the “apprehension or prosecution of offenders”, or “the prevention or detection of crime”.

    In conclusion, it seems that no support can be found in the DPA for the Guardian’s position. A worrying state of affairs indeed.

  3. Blatantly oppressive, with overtures of a chant of ‘Police State’ have we devolved into a Nation who punishes Journalists with prosecution for exposing crimes committed by police officers?
    Then to add the final blow to credulity the Metropolitan Police are using the ‘Official Secrets Act’ as a cover all bludgeon to batter the Journalists into submission. What do the Security Service think about that?
    What is abundantly clear is the Met far from taking a salutary look at the massive corruption within their own ranks are behaving like a Private Company whose corrupt and criminal practices have been exposed. They destroy the whistleblower!
    What is alarming is that the Police are doing all this with public money and this same organisation is daily making similar decisions to prosecute, less high profile, members of the public. Can they be trusted? It seems not.
    The Police investigating the Police or the toothless IPCC is not acceptable. The Security Services should investigate all allegations of Police Misconduct.

  4. R v Shayler (link in the post) is a formidable obstacle in the way of arguing Art 10 in UK courts. Reading of that case is crucial. Shayler was charged under OSA 1989 sections 1 and 4. The House of Lords, deciding an appeal on prelimnary issues raised before the trial judge (Moses J), held that the OSA 1989 was compatible with Article 10.

    The OSA 1989 does not contain any defence of acting in the public interest. This was deliberately not included by Parliament. There are certain statutory defences included in the various sections of the Act.

    It is worth noting that Scotland Yard’s Operation Weeting was set up in January 2011 to investigate allegations of phone hacking. This is a wide-ranging investigation and it is alleged that the phones of many prominent people were hacked. It emerged in July 2011 that some 11,000 pages of notes had been kept by Glen Mulcaire who was imprisoned in 2007 for hacking. It is said that the notes reveal that Milly Dowler’s phone was hacked.

    It will be interesting to see how this matter develops.

  5. Officially unbelievable Prosecution.

    Unlike Mr Shayler these Guardian Journalists have not signed the Official Secrets Act.

    The Hacking of the phones of ‘prominent people’ certainly raises security issues but these Guardian Journalists are not accused of this. Security issues are not, in any event, matters for the police who are notoriously at odds with the Intelligence Services.
    Lord Franks committee into the Official Secrets Act observed in 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.”

    This Guardian prosecution is clearly designed to protect police officers and has no beneficial aspect to either the Security of Britain or her allies.

    If it is however suggested this is a matter of damaging State Security, and the police of course may know something we do not, then let the Security Services investigate it and the Attorney General stop this prosecution.

  6. Failing to sign an extract of the Official Secrets Act has the same legal effect as a new motorist failing to sign the Road Traffic Act 1988 or a Bride and Groom failing to sign Matrimonial Causes Act 1973 – none at all!

  7. A BASIC GUIDE TO OFFICIAL SECRETS ACT 1989

    The Official Secrets Act 1989 came into force on 1 March 1990. The 1989 Act replaces section 2 of the Official Secrets Act 1911, under which it was a criminal offence to disclose any official information without lawful authority. Under the 1989 Act it is an offence to disclose official information only in six specified categories and only if the disclosure is damaging to the national interest.

    This guide gives answers to basic questions about how the new law might affect you. It does not cover everything in the Act, but the Department or organisation who issued it should be able to give you more information and advice if you need it.

    1. Who is affected by the Act?

    The Act applies to

    Crown servants, including
    government ministers
    civil servants, including members of the diplomatic service
    members of the armed forces
    the police
    Government contractors, including anyone who is not a Crown servant but who provides or is employed in the provision of goods or services for the purposes of a Minister.
    a small number of office holders and the members and staff of a small number of non-government organisation who are Crown servants for the purposes of the Act, including
    the UK Atomic Energy Authority
    British nuclear Fuels plc
    Urenco Ltd
    the National Audit Office and the Northern Ireland Audit Office
    the Offices of the Parliamentary Commissioner for Administration and the Northern Ireland Commissioner
    Members of the public and others who are not Crown servants or government contractors but who have, or have had, official information in their possession.

    2. What is “official information”?

    This means any information, document or article which a Crown servant or a government contractor has or has had in his or her possession by virtue of his or her position as such.

    3. Is it an offence to disclose means of access to protected information?

    It is an offence for anyone to disclose official information which it would be reasonable to expect might be used to obtain access to information protected by the Act.

    4. What about the security and intelligence services?

    For

    present and former members of the security and intelligence services and
    people who have been notified in writing that they are subject to section 1(1) of the Act

    it is an offence to disclose without lawful authority any official information about security or intelligence. There is no damage test.

    5. Who will be notified?

    A person may be notified only if his or her work is or includes work connected with the security and intelligence services, and the nature of the work is such that the interest of national security require that the person should be subjects to section 1(1) of the Act.

    6. What are the penalties for unauthorised disclosure?

    Offences of unauthorised disclosure under the Act may be tried either on indictment, on High Court or Sheriff Court, or summarily, in a Sheriff Court by a magistrates’ court. The maximum penalties are two years’ imprisonment or an unlimited fine, or both, if the offence is tried on indictment, and six months’ imprisonment or a £2000 fine, or both, if the offence is tried summarily.

    7. What about safeguarding information?

    It is also an offence under the Act

    for a Crown servant, a government contractor or a notified person to fail to take reasonable care to prevent the unauthorised disclosure of a document or article which is protected by the Act.
    for a Crown servant or a notified person to retain such a document or article contrary to official duty
    for a government contractor or a member of the public to fail to comply with an official direction for the return or disposal of such a document or article

    These are summary offences, triable in Scotland by a Sheriff Court. The maximum penalties are three months’ imprisonment or a £2000 fine or both.

    Section 1 of the Official Secrets Act 1911

    the 1989 Act does not affect the operation of section 1 of the Official Secrets Act 1911, which protects information useful to an enemy. The maximum penalty for offences under section 1 of the 1911 Act is fourteen years’ imprisonment.

    8. What are the six specified categories of official information protected by the Act?

    It is an offence for a Crown servant or government contractor to disclose official information in any of the following categories if the disclosure is made without lawful authority and is damaging. The categories are:

    security and intelligence
    defence
    international relations
    foreign confidences
    information which might lead to the commission of crime
    the special investigation powers under the Interception of Communications Act 1985 and the Security Service Act 1989

    9. When is a disclosure damaging?

    The Act sets a different test or tests of damage for each of the six categories of information. For an offence to be committed under the Act, the disclosure of information must in general have damaged the national interest in the particular way, or ways, specified in the Act for the category of official information in question. It is ultimately for the jury to decide, when the case comes to trial, whether damage has in fact occurred.

    10. When is a disclosure made without lawful authority?

    Crown servants may disclose official information only in accordance with their official duty. Government contractors may do so only in accordance with an official authorisation or for the purposes of their functions as government contractors and without contravening an official restriction. In any other circumstances a disclosure is made without lawful authority.

    11. What about members of the public?

    If a member of the public – or any other person who is not a Crown servant or government contractor under the Act – has in his or her possession official information in one of the protected categories, and the information has been:

    disclosed without lawful authority, or
    entrusted by a Crown servant or government contractor on terms requiring it to be held in confidence

    It is an offence to disclose the information without lawful authority.

    It is also an offence to make a damaging disclosure of information relating to security or intelligence, defence or international relations which has been:

    communicated in confidence to another State or an international organisation and
    the information has come into a person’s possession without the authority of that State or organisation.

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