Official secrets and the powerful disinfectant

19 September 2011 by Adam Wagner

Updated x 2 |Following on from Obiter J’s guest post, when considering the Metropolitan Police Commissioner’s attempt to force a Guardian journalist to disclose her source, it is worth revisiting the seminal case of Shayler, R [2002] UKHL 11. The case, which arose shortly after the Human Rights Act came into force, shows how heavily stacked the law is against those accused of causing to leak state secrets, but may also reveal some limited hope for journalists too.

Although it now appears that the case is being brought under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, it is still worth examining the powers which the police have under both PACE and the Official Secrets Act.

Simply, according to the House of Lords in Shayler, there is no public interest defence to the charges under sections 1 and 4 and none will be implied by the courts as a result of human rights law. However, section 5 was not considered and may still bear fruit should a prosecution be brought under it.

The Defendant in Shayler had been charged with three offences under the Official Secrets Act 1989 of disclosing information and/or documents without lawful authority to the Mail on Sunday (for more, see Rosalind’s 2002 summary). Lord Bingham explained at paragraph 21 why the right to freedom of expression exists, and emphasised the vital role of the press in exposing malpractice of public officials. He began by describing modern democratic government as:

government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments… there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated.

Sometimes those involved in Government are guilty of “error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice“. But how to expose such behaviour?

Those concerned may very strongly wish that the facts relating to such matters are not made public… Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied… The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one. But the press cannot expose that of which it is denied knowledge.

By Article 10 of the ECHR any restricting on freedom of speech must be prescribed by law and necessary in a democratic society. Shayler was charged under sections 1 and 4 of the 1989 Act.. The sections themselves are, as Lord Bingham observed, entirely clear and therefore “prescribed by law”. The real question was of “necessity, pressing social need and proportionality“. Put another way,

The acid test is whether, in all the circumstances, the interference with the individual’s convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.

Lord Bingham placed significant importance on the fact that there are already three safeguards built into the Act.

First, a current or former intelligence officer who is concerned can disclose information to a “Crown servant” (defined in section 12(1)) or a Security Service Commission who can then take the matter further.

Secondly, they can request to the relevant authorities permission to disclose the information. In the latter cases, if permission were refused that decision can be judicially reviewed, at which point the article 10 balancing exercise would come into play.

Thirdly, the consent of the Attorney General is required before a prosecution can be brought (section 9(1)). Although there are no particular criteria for him to follow, he generally follows the CPS guidance (the current version is here; it is not particularly illuminating). That decision could also be judicially reviewed.

In Lord Bingham’s opinion, the three safeguards available under the Act “properly applied, provide sufficient and effective safeguard”. He was therefore satisfied that sections 1(1) and 4(1) are compatible with Article 10 of the ECHR.

Lord Hope was less convinced that the built-in safeguards would be sufficient, although not to the extent of ruling for Mr Shayler. He thought that defect of the internal system of whistle blowing – that is to a Commissioner or Crown Servant – “lies in the fact that the Act does not identify the criteria that officials should bear in mind when taking decisions as to whether or not a disclosure should be authorised“.

However, Lord Hope was more confident that a judicial review of the proportionality of a refusal to authorise disclosure will, if done properly, “enable the court to give proper weight to the public interest considerations in favour of disclosure” (he sets out the relevant factors for the court at paragraph 79).

What now?

Does Shayler close down any human rights arguments for journalists accused under the Official Secrets Act, as may be ultimately be the case here? In and of itself, not entirely. Their lordships, who rather unhelpfully gave three substantially similar but not identical rulings, were only dealing with sections 1 and 4 of the 1989 Act.

But the Met may look to section 5, which relates to information resulting from unauthorised disclosure which comes into a person’s possession.That person, who could be any member of the public, is “guilty of an offence if he discloses it without lawful authority“. However, by section 5(3), the disclosure must be “damaging” and the person charged but know that it will be damaging.

Section 5 has not as yet (as far as I can tell) been examined by the courts in respect of whether it is compatible with the European Convention. The current scenario, in which the police are investigating the potential disclosure by a police officer to a journalist of details of an ongoing investigation into police and press misconduct, seems distant from the facts of Shayler, which was about an ex-spook.

The police may well be justified in seeking the disclosure, on the grounds that they need to plug the holes (see Brian Cathcart on Inforrm’s Blog for a post from their perspective). But is it in the public interest that they can use powers under the Official Secrets Act to do so?

Lord Bingham in Shayler said it was important that there is a “bright line” in relation to security and intelligence disclosure; in other words, that everyone knew what the law was. But is there a necessity for such a bright line in this scenario too?

And in the case of a journalist who comes into possession of classified information many of the safeguards which Lords Bingham and Hope took comfort in do not exist. Practically speaking, a journalist is unlikely to seek authorisation from the very institution they are investigating, and there does not seem to be a “bright line” which they can follow to have their case considered by way of a judicial review. Perhaps the answer is that they should wait for the Crown to request an injunction to prevent publication, and then argue the matter there.

And, it may also be important that judicial review of a refusal to authorise is no longer available following the decision of the Supreme Court in  A, R (on the application of)v B [2009] UKSC 12 (summery here) but rather to the Investigatory Powers Tribunal. Whether in practice this offers the same level of scrutiny as the High Court is unclear.

It should be noted that in the Court of Appeal examination of Shayler, Lord Woolf did to an extent envisage such a scenario, and observed:

96. Section 5 is not easy to interpret and we do not seek to say anything about its interpretation. However, Mr Tugendhat was concerned in case a journalist could instead of being prosecuted under section 5 be charged with inciting an offence under section 1. He says allegations as to this have been made in this case. These may have arisen because the Daily Mail paid Mr Shayler £37,000 for his revelations which they published. As Professor Birkinshaw makes clear in his admirable work, Freedom of Information, this area is a minefield and we feel unable to say more in relation to the submissions that we have heard than:
(1) It would have to be an extreme case on the facts for a prosecution for incitement to be justified having regard to the structure of the OSA which attaches such importance to the status of the individual charged.
(2) Judicial review could have a significant role to play in this area and if for example, before disclosure the matter was already fully in the public domain it is difficult to identify what would be the rational justification for not granting authorisation for disclosure or authorising a prosecution.

It would seem that this comment is obiter (in that it is peripheral to the main point of the ruling and therefore not binding on other courts). The question was also not addressed by the House of Lords. But it is interesting and could be of some assistance in the current scenario.

Bright lines

Finally, what about PACE? If the production order is being made under PACE has has been reported, then the case of Bright, R (on the application of) v Central Criminal Court [2000] EWHC 560 comes into play. That was another case involving Mr Shayler, prior to the House of Lord judgment.

In that case the High Court was asked to approve a production order in respect of a letter sent by Shayler to a Guardian journalist. It approved the order despite concerns that such production may force the journalist to incriminate himself under the Official Secrets Act, but emphasised that only the documents strictly relevant to the potential prosecution against Shayler for his own breach of the OSA should be disclosed.

It would appear that Bright is still the leading case on this topic, although (1) it was only at the High Court level so there is nothing stopping the appeal courts from examining the issue again, and (2) a lot has changed since then so a reexamination may be due in any event.

The phone hacking scandal has shown and continues to show that the press can be both a powerful disinfectant but also a stain upon society. For that matter, so can the police if they fail to act with propriety. Even if the courts follow the bright line left by Shayler and reject any appeals to the public interest, which seems likely, this unfortunate mess should certainly be considered by the Leveson Inquiry in order to clear things up and brighten the lines between secrecy and the public interest.

Update, 21 September 2011 – The Metropolitan Police have decided not to pursue the issue and Friday’s hearing has been cancelled.

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Related posts:

• Is the Official Secrets Act about to be used to gag journalism? – Obiter J
• Some information on local sex offence teachers must be disclosed, rules tribunal