As the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.
The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.
Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:
“Most of the legislation about state secrets is in the Official Secrets Act and it only concerns an official. I think there is going to have to be a look at what happens when somebody possesses material which is secret without having authority.”
The problem with Lord Blair’s comments is that they appear to be based on a misunderstanding of the Official Secrets Act 1989. Whilst he is correct that some of the Act focusses on disclosures by Crown servants, sections 5 and 6 are specifically aimed at preventing damaging disclosures of secrets by non-officials.
Section 5 concerns information resulting from unauthorised disclosures or entrusted in confidence. It creates a criminal offence for individuals, who don’t need to be officials, who make a damaging disclosure having obtained any “information, document or other article protected against disclosure by the foregoing provisions of this Act“, that is those which have been entrusted to Crown servants.
Section 6 concerns information entrusted in confidence to other States or international organisations. It creates a criminal offence when any person makes a damaging disclosure of “any information, document or other article” which “relates to security or intelligence, defence or international relations” which has been communicated in confidence by or on behalf of the UK to another State or to an international organisation.
Doesn’t section 6 sound rather relevant to David Miranda’s case? And if Miranda’s case fits squarely within section 6, which on the current facts it would appear to, why do we need any new powers? And, for that matter, why did the Police need to use anti-terrorism laws to detain and question him if he was potentially committing an offence under the OSA? All interesting questions which will hopefully be resolved by the courts in due course.
Of course, there may still be a case for reform of the Official Secrets Act , given that it was drafted before the internet became widespread. But any reform would inevitably impact on civil liberties and must therefore be carefully thought through. More fundamentally, in making the case , legislators such as Lord Blair must be careful to get the facts right.
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