Regina v Shayler

[Donald ramsbottom]

House of Lords decision in Shayler from todays Times, not Crypto, but
sufficiently interesting to some, to post here. As ever ignore if you do
not like law.





Regina v Shayler
 
 
 
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord
Hobhouse of Woodborough and Lord Scott of Foscote

Speeches March 21, 2002 

A former member of the Security Service who was prosecuted under the
Official Secrets Act 1989 for unauthorised disclosure of information and
documents which he had acquired by virtue of his position as a member of
the service was not entitled to rely on the defence that the disclosure was
made in the public or national interest. 

The provisions of the 1989 Act which restricted members and former members
of the Security Service and Secret Intelligence Service from disclosing
such information did not contravene their right to freedom of expression
guaranteed by article 10 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms. 

The House of Lords so held, dismissing an appeal by the defendant, David
Michael Shayler, from the dismissal by the Court of Appeal (Lord Woolf,
Chief Justice, Mr Justice Wright and Mr Justice Leveson) (The Times October
10 2001; (2001) 1 WLR 2206) of his appeal from a decision dated May 16,
2001 of Mr Justice Moses who, in the course of a preparatory hearing under
section 29 of the Criminal Procedure and Investigations Act 1996, ruled
that he was not entitled, on charges under the 

1989 Act, to raise the defence that the disclosure, without lawful
authority, of documents relating to security and intelligence, was
necessary in the public interest. 

Mr Geoffrey Robertson, QC, who did not appear below, and Mr Keir Starmer
for Mr Shayler; Mr Michael Tugendhat, QC and Miss Sapna Jethani for The
Times, The Sunday Times, The Observer, The Guardian, The Mirror, Sunday
People, The Mail on Sunday, The Independent, The Independent on Sunday,
Channel 4, Channel 5 and the Newspaper Society, intervening; Mr Nigel
Sweeney, QC, Mr Jason Coppel and Mr Jonathan Laidlaw for the Crown; Mr
Jonathan Crow for the Home Secretary. 

LORD BINGHAM said that the defendant was a member of the Security Service
from November 1991 to October 1996. 

At the outset of his service he signed a declaration acknowledging the
confidential nature of documents and other information relating to security
and intelligence, defence or international relations that might come into
his possession, and that he was under a contractual obligation not to
disclose, without lawful authority, any information that came into his
possession by virtue of his employment. 

On leaving the service he signed a further acknowledgement that the same
requirements of confidentiality continued to apply. He made a written
declaration that he had surrendered all information, whether classified or
not, made or acquired by him owing to his official position. 

Before August 1997 he disclosed at least 29 different documents to
journalists from The Mail on Sunday, most of which appeared to relate to
security and intelligence matters at levels ranging from "Classified" up to
and including "Top Secret". 

On August 24, 1997 The Mail on Sunday published an article written by the
defendant himself and several articles by other journalists purporting to
be based on information disclosed by the defendant. 

The prosecution alleged that the defendant was paid a substantial sum of
money by the newspaper and that the information in the articles related to
matters to which he could only have had access by reason of his employment
with the Security Service. 

At the preparatory hearing the first issue was whether, in law the
defendant would be entitled to be acquitted of the charges if, as he
asserted on his arrest, the disclosures had, or might have been made in the
public and national interest. 

The judge, having concluded that the defence was not available to the
defendant, went on to consider the common law defences of necessity and
duress of circumstances, and accepted that a conventional defence of duress
was in theory open to a former member of the service, but could not accept
that a a defence of necessity or duress of circumstances was open. 

The Court of Appeal took a different legal view on the 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 defendant on the facts. 

Section 29(1) of the 1996 Act conferred powers on a crown court judge to
order a preparatory hearing where it appeared to him that an indictment
revealed a case of such complexity, or a case whose trial was likely to be
of such length, that substantial benefits were likely to accrue from a
preparatory hearing so as to expedite the proceedings before the jury. 

In such cases the procedure could be highly beneficial. The process of
disclosure could be conducted and the marshalling of evidence prepared with
direct reference to the live issues in the case. 

Jurors and witnesses could be spared hours or days of frustrating inaction
while issues of law were argued in their absence. 

If there was an issue on the proper interpretation of a section or the
correct directions to be given to the jury, it might be better to resolve
the question sooner rather than later. 

The judge's decision to order a preparatory hearing in this case was
entirely sound. The test of complexity was comfortably satisfied, and the
likely length of the trial in large measure depended on how the main legal
issue was resolved. 

It was however important to stress that the judge's power under section
31(1)(b) of the 1996 Act was limited to ruling on questions of law
"relating to the case". That limitation must be strictly observed. 

The issues of law before the judge in this case were whether the sections
under which the defendant was charged, on a proper construction, afforded
him a public interest defence; whether if not, those sections were
compatible with article 10 of the Human Rights Convention; and whether, if
they were not, they could or should be read conformably with the Convention
or a declaration of incompatibility made. 

The defendant's case before the judge did not raise any question of
necessity or duress of circumstances. It was a little unfortunate that the
judge ventured into that vexed and uncertain territory not "relating to the
case", and that the Court of Appeal followed him into it. 

His Lordship was not to be taken to accept all that the Court of Appeal
said on those difficult topics, but in his opinion it was unnecessary to
explore them in this case. 

The defendant's case, put very broadly, was understood to be that he was
appalled at the unlawfulness, irregularity, incompetence, misbehaviour and
waste of resources in the service, which he thought was failing to perform
its public duty. 

He believed that unless those failings were exposed and remedied dire
consequences would follow, and he therefore believed it in the public and
national interest to make the disclosure he did. 

That omnibus contention might or might not afford him a defence under the
1989 Act, depending on whether a public interest defence was available, but
it was not within measurable distance of affording him a defence of
necessity or duress of circumstances. 

In his Lordship's opinion it was plain, giving sections 1(1)(a) and 4(1)
and (3)(a) of the 1989 Act their natural and ordinary meaning, and reading
them in the context of that Act as a whole, that a defendant prosecuted
under those sections was not entitled to be acquitted if he showed that it
was, or that he believed that it was, in the public or national interest to
make the disclosure in question or if the jury concluded that it might have
been or that the defendant might have believed it to be in the public or
national interest to make the disclosure in question. 

The sections imposed no obligation on the prosecution to prove that the
disclosure was not in the public interest and gave the defendant no
opportunity to show that the disclosure was in the public interest or that
he thought it was. The sections left no room for doubt and the intention of
Parliament was clear beyond argument. 

Despite the high importance attached to it, the right to freedom of
expression was never regarded in domestic law as absolute. 

Publication could render a party liable to civil or criminal penalties or
restraints on several grounds including libel, breach of confidence,
incitement to racial hatred, blasphemy and disclosure of official secrets. 

The Human Rights Convention similarly recognised that the right was not
absolute and the broad language of article 10.1 which guaranteed the right
to freedom of expression was qualified by article 10.2 which provided that
the exercise of the right was subject to restrictions "as are presecribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, ... for
preventing the disclosure of information received in confidence..." It was
plain from the language of article 10.2, and the European Court of Human
Rights had repeatedly held, that any restriction on freedom of expression
could be consistent with article 10.2 only if it was prescribed by law, was
directed to one or more of the objectives specified in the article and was
shown by the state concerned to be necessary in a democratic society. 

"Necessary" had been strongly interpreted. It was not synonymous with
"indespensible" neither had it the flexibility of expressions such as
"admissible", "ordinary", "useful", "reasonable", or "desirable". 

One must consider whether the interference complained of corresponded to a
pressing social need, whether it was proportionate to the legitimate aim
pursued and whether the reasons given by the national authority to justify
it were relevant and sufficient under article 10(2). 

In the present case, there could be no doubt that the sections under which
the defendant had been prosecuted restricted his prima facie right to
freedom of expression. 

There could equally be no doubt that the restriction was directed to
objectives specified in article 10.2. 

The restriction on disclosure was prescribed with complete clarity. 

A member or former member of the any of the security or intelligence
services wishing to obtain authority to disclose could be in no doubt but
that he should seek authorisation from his superior or former superior in
the relevant service or the head of that service, either of whom might
refer the request to higher authority. 

It was common ground that the restriction was prescribed by law. It was on
the question of necessity, pressing social need and proportionality that
the real issue between the parties arose. 

There was much domestic authority pointing to the need for a security or
intelligence service to be secure. The commodity in which such a service
dealt was secret information. 

If the service was not secure those working against the interests of the
state, whether terrorists, other criminals or foreign agents, would be
alerted and able to take evasive action. 

The service's own agents might be unmasked; members of the service would
feel unable to rely on each other; those upon whom the service relied as
sources of information would feel unable to rely on their identity
remaining secret; and foreign countries would decline to entrust their own
secrets to an insecure recipient. 

The need to preserve the secrecy of information relating to intelligence
and military operations in order to counter terrorism, criminal activity,
hostile activity and subversion, had been recognised by the European
Commission and Court in relation to complaints made under article 10 and
other articles under the Convention. 

The thrust of those decisions and judgments had not been to discount or
disparage the need for strict and enforceable rules but to insist on
adequate safeguards to ensure that the restriction did not exceed what was
necessary to achieve the end in question. 

The acid test was whether, in all the circumstances, the interference with
the individual's convention right as prescribed by national law was greater
than was required to meet the legitimate object which the state sought to
achieve. 

The 1989 Act imposed a ban on disclosure of information or documents
relating to security or intelligence by a former member of the service. 

But it was not an absolute ban. It was a ban on disclosure without lawful
authority. It was open to a former member of the service to seek
authorisation. 

Consideration of a request for authorisation should never be a routine or
mechanical process. It should be undertaken bearing in mind the importance
attached to the right of free expression and the need for any restriction
to be necessary, responsive to a pressing social need and proportionate. 

One would also hope that requests for authorisation to disclose would be
granted where no adequate justification existed for denying it and that
authorisation would be refused only where such justification existed. 

But the possibility would of course exist that authority might be refused
where no adequate justification existed. In that situation the former
member was entitled to seek judicial review of the decision to refuse, a
course which the 1989 Act did not seek to inhibit. 

In any application for judicial review alleging a violation of a Convention
right the court would conduct a much more rigorous and intrusive review
than was once thought to be permissible. 

The defendant contended that judicial review was in practice an unavailable
means since private lawyers were not among those to whom disclosure could
lawfully be made and a former member of the service could not be expected
to initiate proceedings for judicial review without legal advice and
assistance. 

His Lordship accepted that the right to a fair hearing guaranteed by
article 6.1 of the Convention must ordinarily carry with it the right to
seek legal advice and assistance from a lawyer outside the government
service. 

But that was a matter to be resolved by seeking official authorisation. The
service would, at that stage,depending on the nature of the material sought
to be disclosed, be fully entitled to limit its authorisation to material
in a redacted or anonymised or schematic form, to be specified by the
service. 

Circumstances could not be envisaged in which it would be proper for the
service to refuse its authorisation for any disclosure at all to a
qualified lawyer from whom the former member wished to seek advice. 

If it became necessary for the court to examine material said to be too
sensitive to be disclosed to the former member's legal advisers, special
arrangements could be made for the appointment of counsel to represent the
member's interests. 

The special position of those employed in the security and intelligence
services, and the special nature of their work imposed duties and
responsibilities on them within the meaning of article 10.2. 

If a person who had given a binding undertaking of confidentiality sought
to be relieved, even in part, from that undertaking he must seek
authorisation and, if so advised, challenge any refusal. If that refusal
was upheld by the courts, it must, however reluctantly, be accepted. 

Sections 1(1) and 4(1) and (3) of the 1989 Act were compatible with article
10 of the Convention. 

Submissions had been made on behalf of the press but this appeal called for
decision of no issue directly affecting them and it would be undesirable to
attempt to give guidance in the context of this appeal. 

Lord Hope and Lord Hutton delivered concurring opinions; Lord Hobhouse
agreed with Lord Bingham; Lord Scott agreed with Lord Bingham, Lord Hope
and Lord Hutton. 

 
 

Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK  Law Matters
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