Official secrets Flashcards
When the British government use methods to keep official information secret what must they ensure they balance it with?
Must be balanced against Article 10 (freedom of expression) as there will be people who feel it necessary to divulge certain information
What type of right is article 10?
Qualified right which under Article 10 (2) provides for legitimate reasons when the right can be interfered with by a public authority
“in the interests of national security, territorial integrity or public safety”
In the late 19th century how did the government urger secrecy from the members of the government departments?
Members threatened with dismissal
When was there a need for a more robust safeguard then simply being threatened with dismissal?
Charles Thomas Marvin who worked in the foreign office wrote articles for a newspaper and in one such article he told of The treaty of Berlin between Russia and UK ( a secret treaty) details which he had memorised. When trying to convict it was not possibly as he had not technically stolen anything, only memorised information
What Act made it an offence to wrongfully communicate information obtained as a result of being a civil servant?
Official Secrets Act 1889
Why was the Official secrets Act 1911 introduced?
The old OSA 1889 was not considered robust enough
What type of people was S.2 OSA 1911 aimed at?
Civil servants and other crown employees rather than “enemy agents”
Further OSA 1911 was passed in one afternoon and S.2 had received no debate at all.
Why was S.2 OSA 1911 deemed an unfair restriction on Article 10?
=law VERY broad
Strict lability criminal offence
Imposed a complete prohibition on the unauthorised disclosure of even trivial information, lacking any provision regarding the substance of the information. S.2 also criminalised the receiver of the information
=created a culture of obedience
Given the blanket ban of S.2 OSA 1911 why was there few prosecutions?
Created a culture of obedience and acceptance of secrecy within the civil service. However S.2 power began to be perceived as an unacceptable restraint in a more modern society, with a growing free press
State three cases which suggested that S.2 OSA 1911 lacked credibility
Aitken
MP charged under S.2 OSA 1911 after he had photocopied a report about the British Governments supply of weapons to Nigeria and sent a copy to the Sunday telegraph. In the end he was acquitted of this charge and the judge in the case highlighted the freedom of the press and that S.2 should be “pensioned off”
Tisdall
A Foreign office clerk send the Guardian photocopies of a document containing details when missile weapons would be arriving in the UK. She pleaded guilty under S.2 and sentenced to 6 months in prison. This case attracted a lot of adverse publicity for the government
Ponting
D gave Labour MP information which undermined the truth of conservative answers given about a sinking of a warship during the Falklands war. He was prosecuted under S.2 but the jury acquitted him.
What act replaced S.2 OSA 1911?
Officials secret act 1989
However in relation to espionage S.1 OSA 1911 is still in place
What does the Official secret act 1989 state?
Makes it an offence to disclose any information in relation to certain specific categories
1) Security and intelligence
2) Defence
3) International Relations
4) Crime
(it has narrowed the breadth of S.2 OSA 1911 so that trivial disclosures are not included)
What is S.1 Official Secrets Act 1989?
Security and Intelligence
means the work of, or in the support of, the security and intelligence services, or any part of them, including any information held or transmitted by those services or by persons in support of those services
=wide category as it is an offence for:
-Present and former members of the security and intelligence services
-People who have been notified in writing that the are subject to S.1 (1) OSA 1989
-Crown servants
-Government Contractors
…………… to disclose without lawful authority any official information about security and intelligence
How long is a person under S.1 Official Secrets Act 1989?
Lifelong duty to keep silent
For members of the security and intelligence services what is required of the disclosure under S.1?
No need to prove it was damaging therefore all information no matter how trivial is covered making this a fair stricter offence for those who directly work for M15 etc
For a member of the crown servants and government contractors what is required of the disclosure under S.1?
Need to prove that the disclosure was damaging
How is a disclosure deemed damaging under S.1?
1) damages the work, or any part of security or intelligence services
2) would likely cause damage
=The test for damage is therefore easy to satisfy, however trivial information would be hard to be considered damaging
What defence is there to a S.1 (Security and intelligence)?
If a person can prove that at the time of the alleged offence s/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 relating to crown servants and government contractors, that the disclosure would be damaging
What is S.2 OSA 1989?
Defence
=any information relating to:
- the organisation, operations, and training of the armed forces
-the weapons
-defence policy
-plans
Who is under a S.2 OSA 1989?
It is a criminal offence for present or former
Crown servants
Government contractors
………….to without lawful authority make a damaging disclosure in relation to defence
Under S.2 OSA 1989 when is a disclosure deemed damaging?
-damages the capability of the armed forces to carry our theirs tasks, or leads to loss of life or injury to members of those forces
-endangers the interest of the Uk aboard or the safety of a British citizen abroad
-would likely to have that effect
What defence is available to a S.2 OSA 1989?
If a person can prove at the time of the alleged offence they did not know and o reasonable cause to believe the information, document or article in question related to defence or that the disclosure would be damaging
What is S.3 of the OSA 1989?
=international relations
means the relations between international organisations or between one or more states and includes any matters relating to a state other than the United Kingdom
it is a criminal offence for present or former
-crown servants
-government contractors
……… to without lawful authority make damaging disclosures in relation to international relations
Under S.3 OSA 1989 when is a disclosure deemed damaging?
-endangers the interests of the Uk abroad or the safety of British citizens abroad
-would be likely to have that effect
What is a defence to a S.3?
If a person can prove that at the time of the alleged offence they did not know and had no reasonable cause to believe that the information, document, or article in question related to international relations or that the disclosure would be damaging
What is S.4 OSA 1989?
=Crime
This is a criminal offence for present or former
-crown servants
-government contractors
……….to without lawful authority make a damaging disclosure in relation to a crime
When does S.4 apply to a disclosure?
-results in the commission of a crime
-facilities an escape from legal custody
-impedes the prevention or detection of offences
-would be likely to have any of those effects
-this section also covers unauthorised disclosures of any information obtained using surveillance legislation
What is a defence to S.4?
It is a defence if a person can prove that at the time of the alleged offence they did not know, and had no reasonable cause to believe that the disclosure would have any of the effects mentioned above
It is also a defence if a person can prove at the time of the alleged offence they did not know and had no reasonable cause to believe that the information in question was information to which this section applies
What is S.5 OSA 1989?
Onward Disclosure of information
this means that a member of the public is bound by the OSA 1989 even though they never signed a document
S.5 (1) (a) (i) -makes it an offence for people to disclose information that ahs come via an unauthorised disclosure at some stage form a crown servant or government contractor
S.5 (1)(a) (i)- makes it offence to disclose information/ material entrusted to them in confidence or with reasonable expectation of confidence by a crown servant or government contractor
S.5 (1) (a) (iii)- makes it an offence to disclose material acquired as a result of an unauthorised disclosure by a person to whom it had been entrusted by a crown servant
(It must show D had MR by knowingly or having reasonable cause to believe it falls into one of the protected categories) and the disclosure must be damaging and the person must make it knowingly, or having reasonable cause to believe that it is damaging. Therefore jury could acquit if they accept the D did not think it was damaging
What is S.7 OSA 1989?
Permission to disclose
-a disclosure will not lead to lability if it was authorised in accordance with their duty by either their contract as a crown servant or as a government contractor
It will also be a defence if a person can proof at the time of the alleged offence that they believed they had lawful authority to make the disclosure and no reasonable cause to believe otherwise
What is S.8 OSA 1989?
Makes it an offence to retain information and not return it, or fail to return it, or fail to take such care to prevent the unauthorised disclosure of it
It is a defence if a person can proof at the time of the alleged offence that they believed they were acting in accordance with their official duty and had no reasonable cause to believe otherwise
What is S.9 OSA 1989?
Permission to prosecute
all prosecutions require the permission of the attorney general (except S.4 (crime) which requires DPP approval). Therefore it is up to the AG/DPP to decided weather it has been a damaging disclosure
What is S.10 OSA 1989?
Penalty
=offences are triable either way
-A person guilty of an offence shall be liable to a term not exceeding 2 years (in the crown court) or 12 months (as of 18th Nov 2024) (in the magistrate’s court) and/ or an unlimited fine
Exception is S.8 which is a summary conviction with a max 3 months and/ or unlimited fine
What is S.12 OSA 1989?
Definition of “Crown servant” and “Government contractor”
Crown servant= a minister of the crown, any person employed in the civil service, any member of the armed forces and any member of the police
Government contractor= any person who is not a crown servant but who provides or is employed in the provision of goods or services for the purposes of any person mentioned above
What happened in the case of Shayler?
D member of MI5 and had signed a declaration under the Official Secret Act. In breach provided journalists with documents obtained through his position which related to national intelligence and security issues. D argued in the public interest, Appeal dismissed, there was insufficient evidence to suggested unauthorised disclosure was through duress
What did the law commission publish in September 2020 relating to this law?
Recommendations included:
-statutory public interest test for anyone which if found in the interest the D would be found not guilty
-Public servants and civilians should report concerns of wrongdoings to an independent statutory commissioner
-Parliament should consider increasing the max sentences
