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Section numbers from the book are used where relevant. The book should be read too. Its content provides other explanations and context.
32.1 Introduction
The Official Secrets Acts of 1911 and 1989 protect national security and can be used to enforce the duty of confidentiality owed to the UK State by Crown servants or employees of companies doing military and other sensitive work. Crown servants include civil servants, members of the armed services, the police, and civilians working for them. This law imposes a similar duty on members of the security and intelligence services. Many Crown servants are asked at start of their employment to sign a form acknowledging their obligations under official secrets law – see Useful Websites, at the end of this Additional Material, for an example of such a form. But even if not asked to sign, the obligations apply to these people. Some content of the Acts applies to all citizens.
Part of the legislation was designed to punish spies working for foreign powers, who betray or obtain or seek to obtain defence, intelligence, and diplomatic secrets, or make vital facilities vulnerable to sabotage.
Official secrets legislation can also punish the leaking of sensitive information to a journalist or to a member of the public. Publishing such material makes it available to hostile powers, terrorists and other criminals, and can embarrass the UK’s allies, for example by disclosing diplomatic correspondence.
A Crown servant, or someone else with an obligation of confidentiality under the Act, who accidentally leaves sensitive information, gained in their work, where members of the public may find it can also be punished because of this law.
32.2 The law’s consequences for journalists
Journalists were jailed in 1916 and 1932 for offences under the 1911 Act. But no journalist has been successfully prosecuted under official secrets law, let alone jailed, for many years.
Prosecutions under the 1911 and 1989 Acts can be brought only by or with the consent of the Attorney General, except in cases relating to crime or special investigation powers, when the Director of Public Prosecutions’ consent is needed.
32.3 Examples of journalists investigated
In 1977 journalists Crispin Aubrey and Duncan Campbell were arrested in London by Special Branch police investigating alleged breaches of the Official Secrets Act 1911. Campbell had published articles revealing the mingled nature of the UK’s civil and military communications systems, and how the state’s intelligence-gathering at home and abroad involved the interception of radio signals and tapping phones. Both journalists were charged with breach of the Act – the statute is explained below - and consequently were defendants in what became known as ‘the ABC trial’. Although both were convicted, the judge made clear he felt their offending was minor, because each was given a conditional discharge. The Additional Material for chapter 15 provides further detail of this trial, and outlines how this prosecution became discredited.
In 1998 Ministry of Defence police raided the home of Tony Geraghty, the former Sunday Times defence correspondent, after publication of his book The Irish War, which disclosed extensive use of computerised surveillance by intelligence agencies in Northern Ireland. He was arrested and charged with an offence under the Official Secrets Act 1989. It was not until a year later that the charge against him was dropped.
In 2000 Julie-Ann Davies, a broadcast researcher, was arrested and questioned on suspicion of a possible breach of the Act on the basis that she had communicated with David Shayler, a former MI5 officer who had given the Mail on Sunday security-related information. She was not prosecuted.
In 2003 armed police raided the home of Liam Clarke, the Northern Ireland editor of The Sunday Times, and arrested him and his wife Kathryn Johnston, following publication of an updated version of their book From Guns to Government, which contained transcripts of tape-recordings, made in a joint police/MI5 surveillance operation, detailing bugged telephone conversations acutely embarrassing to the UK Government. The couple were detained at their home for five hours. Officers also raided the Belfast office of The Sunday Times, battering the door down. Later the police admitted the raids were unlawful because, although they obtained a search warrant under Northern Ireland’s version of the Police and Criminal Evidence Act 1984 (PACE), it was authorised by a magistrate, not by a Crown court judge as the law at that time required. In the High Court in Belfast, Mr Justice Kerr quashed the warrant and ordered the police to pay the paper’s costs of its application for judicial review. In 2006 the two journalists were reported to have received a ‘five-figure’ sum from the police in settlement of a claim for false imprisonment arising from the raid on their home (Press Gazette, 20 September 2006). PACE procedures are explained in 33.6 in McNae’s, where there is a case study of two journalists being arrested in Northern Ireland in 2018 by police executing a search warrant granted on the basis that the journalists may have breached official secrets law, a claim later discredited by the High Court in Belfast.
In 2005 Attorney General Lord Goldsmith issued a warning to newspapers after the Daily Mirror published a story headlined ‘PM halted Bush plan to bomb Arab TV channel off the air’. The story began: ‘George Bush’s plot to bomb an Arab TV station in friendly Qatar was crushed by Tony Blair, who feared it would spark horrific revenge.’ The paper claimed that the story was based on a leaked memo which detailed a conversation in which Blair as UK Prime Minister and Bush as US President discussed the Arabic TV broadcaster Al-Jazeera. The broadcaster had angered the US and British Governments by showing footage of dead soldiers and others killed in the Iraq war. The Attorney General warned that the media would be contravening official secrets law if it published the memo’s contents. Commentators suggested that Lord Goldsmith ‘read the riot act’ to the media because of political embarrassment caused by what the Mirror claimed the memo said. The Mirror’s editor was threatened with prosecution under the Official Secrets Act 1989 and with an injunction unless he confirmed that the paper would not publish details of the memo. ‘We have essentially agreed to comply,’ the editor said (Daily Mirror, 22 and 23 November 2005; Guardian, 23 and 24 November 2005; Media Lawyer, 28 November 2005).
In 2011 the Metropolitan police dropped an attempt to gain a court order to require The Guardian to reveal confidential sources for stories relating to The News of the World phone-hacking scandal (which is outlined in 34.1 in McNae’s). The police application to a judge for a ‘production order’ had been made under PACE, with an assertion that Guardian reporter Amelia Hill could have committed an offence under the Official Secrets Act 1989 by inciting an officer from Operation Weeting – the police investigation into phone-hacking – to reveal information. Media lawyers expressed astonishment about the police application, in particular because it had been The Guardian which had exposed the police’s earlier failure to fully investigate the hacking scandal, a revelation clearly in the public interest. In the face of growing controversy about this attempt to require the reporter to identify sources of information, and that official secrets law was being cited, the police withdrew the application for a production order. The Director of Public Prosecutions, Keir Starmer QC said that the Crown Prosecution Service had not been contacted by the police before the application was made. Hill was interviewed under caution by police but not charged with any offence (The Guardian, 16, 19 and 20 September 2011, and 29 May 2012).
32.4 The fate of sources
Sources are generally dealt with more severely than journalists. A Crown servant found to have leaked sensitive information to the media will almost certainly be sacked, even if there is no prosecution. Anyone convicted of leaking material ruled to be covered by official secrets legislation could be jailed.
In 2008 charges under section 3 of the 1989 Act against Foreign Office civil servant Derek Pasquill were dropped shortly before he was due to be tried at the Old Bailey on charges of having leaked documents to The Observer newspaper and New Statesman magazine. Some of the documents concerned the controversial ‘rendition’ of terrorist suspects, and some the Government’s policy of engaging in dialogue with hard-line Islamic radicals. The Government’s counsel told the judge that there was no longer a realistic prospect of conviction (Media Lawyer, 9 January 2008). It was later reported that internal Foreign Office papers revealed that senior officials had privately admitted that instead of harming the UK’s interests, the leaks of some of the documents had helped provoke a constructive debate about the dialogue policy.
In 2007 Thomas Lund-Lack, who worked for the Metropolitan Police’s counter-terrorism command, was jailed for eight months for ‘wilful misconduct in a judicial or public office’, a charge which arose after he leaked documents to The Sunday Times about the threat Al-Qaeda posed to the UK. A charge under the Official Secrets Act 1989, which he denied, was dropped.
In 2003 Katharine Gun, a translator at the Government’s GCHQ communications centre, was charged under section 1 of the 1989 Act after leaking the content of an email to someone who passed it on to The Observer newspaper. The email was a request from US officials for the phones of some nations’ diplomats at the United Nations to be tapped. Ms Gun was sacked. The official secrets case against her ended the next year, when the prosecution decided to offer no evidence. The Attorney General told Parliament that prosecution counsel had decided there was no longer a realistic prospect of conviction. In 2019 a film, Official Secrets, has its cinema premiere. This was a drama adaptation about what happened, in which Keira Knightley acted the part of Gun.
Former MI5 officer David Shayler was jailed for six months in 2002. Stories he gave the Mail on Sunday in 1997 included the disclosure that the Government kept secret files on some Labour politicians. The newspaper published the story, but was not prosecuted. Shayler also said that MI5 had prior knowledge of a terrorist attack on the Israeli embassy, but failed to react. He also alleged that MI6 officers had plotted to assassinate the Libyan leader, Colonel Gaddafi. At one stage Shayler was arrested in France and held without charge for four months while the UK Government attempted - unsuccessfully - to extradite him. He returned to the UK voluntarily in 2000, and was then arrested and charged with three offences under the 1989 Act. He unsuccessfully appealed to the Court of Appeal and the House of Lords, see below.
In 1998 Stephen Hayden, a Royal Navy chief petty officer, admitted breaching the Act by selling The Sun information that Iraqi leader Saddam Hussein considered ordering a biological warfare attack to be made on the UK involving anthrax. Hayden pleaded guilty and was jailed for a year.
In 1985 a jury acquitted Clive Ponting, a senior civil servant who was charged under official secrets legislation after giving an MP information about the controversial sinking of the Argentine battleship the Belgrano in the 1982 Falklands war.
In none of these cases in which sources were prosecuted was any media organisation or journalist prosecuted. With the exception of Tony Geraghty, no journalist has been prosecuted under the UK official secrets law for several decades. And, as explained, the case against him was dropped.
32.5 The chilling effect is widespread
Journalists should probe the conduct and performance of state agencies, not just accept the government’s accounts of its policies and actions. There is little doubt that journalism’s watchdog role suffers from ‘the chilling effect’ of official secrecy law, to the detriment of democratic debate. It is not only journalists who believe this. In 2003 Rear Admiral Nick Wilkinson, then secretary of the Defence, Press and Broadcasting Advisory Committee (now known as the DSMA committee, whose role is explained in 32.6 in McNae’s, and in detail later in this Additional Material) said that the 1989 Act had a ‘pernicious influence’ on dialogue between officials and the public, including the media, and was in need of a ‘post-Cold War review’. He said the review was necessary not so much because of the content of the Act or its use in litigation, but because of its influence on government communications in the widest sense, as it induced in officials an attitude of ‘How little can I get away with saying?’ rather than ‘What must I really not say at present?’ Rear Admiral Wilkinson said: ‘This attitude is only partly a reflection of the civil service’s tradition of serving the government of the day: it is largely a reflection of the instinct of self preservation inherent in all bureaucracies.’
Case study: Official secrets law continues to be cited when officialdom wants to deter ‘whistleblowers’ from speaking to the media. In 2015 The Grimsby Telegraph reported from an unnamed police source that, after a ‘restructure’ in staffing, on some 3am – 7am shifts there were only four officers working in the whole of North East Lincolnshire. Humberside Police and Crime Commissioner Matthew Grove denied the claim, telling the paper: ‘If any police officers are telling you the number of officers on duty, they are breaking the Official Secrets Act and becoming criminals.’ The Times described as ‘ridiculous’ this idea that ‘junior officers who raised the alarm about inadequate night staffing’ had acted criminally by doing that. Mr Grove, faced with such criticism, later said: ‘I signed the Official Secrets Act on taking office as Commissioner, and felt that to provide sensitive information such as that disclosed would breach the principles of the Act.’ He added: ‘I would never try to ‘gag’ police officers from giving their views as has been implied, but ask them to consider the wider impact on the public and their colleagues before they do’ (The Grimsby Telegraph, 15 May and 5 June 2015, The Times and Press Gazette, 4 June 2015).
32.6 Reluctance to prosecute journalists
As ch. 32 in McNae’s makes clear, a source is more likely to be prosecuted under official secrets law than is the journalist who receives and discloses information from the source. The reluctance to prosecute journalists is partly an effect of the legislation. Section 5 of the 1989 Act contains some defences which journalists can use but their sources within the relevant state institution cannot. For example, the journalist can use the defence that disclosure of the information was not ‘damaging’ to the work of the intelligence services.
But a journalist might be found guilty of inciting or of aiding and abetting the source to commit an offence under the terms of section 1. This was the section under which David Shayler was prosecuted. Alarmed by this legal position, seven national newspapers made representations to the Court of Appeal when it was hearing Shayler’s appeal. The Lord Chief Justice, Lord Woolf, after pointing out that section 5 of the Act provided protection to the media that was not available to Shayler, said that only in exceptional circumstances would the Attorney General need to authorise a prosecution of the media for incitement to commit an offence under section 1.
32.7 The 1911 Act
Section 1 of the Official Secrets Act 1911 is concerned with spying, but journalists should know about it. The section makes it an arrestable offence, carrying a penalty of up to 14 years’ imprisonment, to do any of the following ‘for any purpose prejudicial to the safety or interests of the state’:
(a) approach, inspect, pass over, be in the neighbourhood of, or enter any prohibited place (see below);
(b) make any sketch, plan, model, or note that might be or is intended to be useful to an enemy;
(c) obtain, collect, record, or communicate to any person any information that might be or is intended to be useful to an enemy.
Offences under (c) are regarded as most relevant for journalists. This section was used in the charges against the journalists Crispin Aubrey and Duncan Campbell, see above, but has not been used against any journalist since.
Section 3 of the 1911 Act gives a lengthy definition of a ‘prohibited place’ as including, for example, ‘any work or defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft’ and ‘any telegraph, telephone, wireless or signal station, or office’ when any such property is used by the State. Statutory instruments have added British Nuclear Fuels plc and Atomic Energy Authority sites to the list of prohibited places. The Energy Act 2008 added any site where there is equipment or software for enriching uranium, or information about the process. These additions apparently reflect fears that terrorist groups want to build a nuclear bomb, or a ‘dirty’, radioactive one, or that rogue nations may seek to spy on these facilities, or that they are targets for sabotage.
As can be seen, the definition of a prohibited place is wide. The media must remember that taking photos or gathering information outside or near a prohibited place, even in routine news coverage of events such as peace protests, could be held to be a breach of the Act, for example, if material gathered and published jeopardises security at a defence base. Also, the Serious Organised Crime and Police Act 2005 makes it a criminal offence to trespass in any of the nuclear and military sites designated as ‘protected sites’ – for context, see 35.3 in the Additional Material for ch. 35.
The 1989 Official Secrets Act, see below, replaced section 2 of the 1911 Act, which was known as the ‘catch-all section’ because of the wide range of information covered. Under section 2, no Crown servant or government contractor could lawfully make an unauthorised disclosure of any information which they had learned in the course of their job. The section potentially made it a crime to disclose, for example, the number of cups of tea drunk each week in a Government department or the details of a new carpet in a Minister’s room. Under the section it was an offence for a person to merely receive such information, if it had been disclosed without authority. This was the part of the 1911 Act with which journalists were most frequently threatened. But in cases in the 1970s and 1980s the Attorney General failed to persuade juries to convict defendants prosecuted under section 2. The 1989 Act abolished the section.
32.8 Duty to name sources
Section 6 of the Official Secrets Act 1920 enables a chief officer of police to require a person to divulge information, which could include the identity of a source, when the officer believes an offence under section 1 of the 1911 Act has been committed. Refusal to comply is an offence.
32.9 The 1989 Act: the journalist’s position
The Official Secrets Act 1989 defines disclosure offences by categorising various classes of information as secret, including information (the categorisation is given here in summarised form):
1) about the work of the UK’s security and intelligence services, or information they hold, which if disclosed without lawful authority would or would be likely to damage that work (section 1 of the Act);
(2) about defence, such as deployment of the UK’s armed forces, military planning for conflicts, and development of weapons, which if disclosed without lawful authority would or would be likely to damage the capability of the armed forces to carry out their tasks or be damaging or likely to be damaging as regards loss of life or injury of members of those forces (section 2);
(3) about international relations, which if disclosed without lawful authority would or would be likely to create damage by endangering the interests of the United Kingdom abroad or the safety of UK citizens abroad (section 3);
(4) concerning crime—for example, about operations by police or any other law enforcement agency - which if disclosed without authority would or would be likely to facilitate commission of a criminal offence, or would or would be likely to impede the prevention or detection of crimes, or about custody or prison facilities which if disclosed without authority could make escapes more likely (section 4);
(5) about or from official interception of communications, including ‘phone-tapping’ and of emails and letters, by police or other state agencies (section 4 also); (for context about such official interception, see 33.3.1 in McNae’s).
(6) about matters relating to security or intelligence, defence or international relations communicated in confidence by the UK state to another state or international organisation.
For convenience, these can be referred to as Classes 1 to 6.
Some offences in the Act can only be committed by members of the security or intelligence services, Crown servants, government contractors, or people officially notified that they are subject to the Act’s provisions, who disclose without authority information categorised by the Act as an official secret. But there also ‘onward’ disclosure offences which can be committed by anyone.
For example, section 5 of the 1989 Act (here summarised) says a person—for our purposes, a journalist—commits an offence by making
- a damaging disclosure (for example, in a published article) without lawful authority of information about the work of security or intelligence agencies, or about defence or international relations,
- or a disclosure without lawful authority of information about official phone-tapping or police operations against a criminal,
if the journalist knew or had reasonable cause to believe that the information is protected against disclosure by the Act, and if he/she received that information from a Crown servant or Government contractor either without lawful authority or in confidence, or received it from someone else who received it in confidence from such a person.
‘In confidence’ means either that the discloser - in this example, a journalist - has been told the information is being given to him/her in confidence, or in circumstances in which the Crown servant or government contractor could reasonably expect that it would be so held.
As regards some of the information defined in classes 1 - 6, the prosecution in a section 5 case against a journalist would have to prove that the disclosure is or is likely to be ‘damaging’ and that the journalist knew, or had reasonable cause to believe, that the disclosure of this information would be or would likely to be damaging. The test of what is or is likely to be damaging differs according to the class of information.
But suppose, for example, a journalist publishes a report, based on information leaked by a police officer, which says accurately that a senior opposition MP’s telephone is being tapped under warrant by the police but for questionable reasons. A police officer is a Crown servant, and the information relates to official phone-tapping (interception), covered in section 4 of the 1989 Act. If the police source (the leaker) and the journalist are prosecuted under the Act for this disclosure, the prosecution does not have to prove damage, as under the Act the actions of both in disclosing this information are assumed to be damaging. Neither can base argument for acquittal on lack of damage – but see later about the possibility of a jury accepting ‘public interest’ justification for disclosure.
Under the Act, a journalist’s source can be guilty of a disclosure offence, without any proof of damage, in many more situations than the journalist can. For example, no proof of damage is required if, without lawful authority, a member of the security service or intelligence service discloses information relating to security or intelligence that came into their possession because of their work.
In most circumstances, the journalist does not commit an offence if the person from whom he/she received the information, although a government contractor or a person to whom it was entrusted in confidence, was not a UK citizen or the disclosure did not take place in the United Kingdom, the Channel Islands, the Isle of Man, or a British colony.
- It is also an offence under section 5 of the 1989 Act to disclose any information which the discloser knows or has reasonable cause to believe came into his/her possession as a result of a breach of section 1 of the 1911 Act, see above.
Section 6 of the 1989 Act covers the disclosure of information communicated in confidence to other states or international organisations, and there are no requirements that the information must have been disclosed originally by Crown servants or government contractors. Journalists or any other members of the public commit the offence by disclosing such information when it relates to security or intelligence, defence, or international relations. The information must have come into their possession as a result of being disclosed, whether to them or others, without the authority of the state or organisation or, in the case of an organisation, of a member of it. But the prosecution also has to prove that the defendant knew, or had reasonable cause to believe, that the information was of the type covered by the section, and that it had come into his/her possession in such a way, and that its disclosure would be damaging.
- Section 8 makes it an offence for a person to fail to comply with an ‘official’ order to return a document, where disclosure of the document would be an offence under the Act.
32.10 Damage test but no public interest defence
- The law permits no ‘public interest’ defence in official secrets cases. Also, the information can still be legally classed as secret even if it has already been published. The key test for whether an offence has been committed by a journalist may well be the ‘damage test’.
As indicated above, whether the prosecution must prove that damage was caused (or was likely to be caused) to secure a conviction under the 1989 Act depends on the class of information allegedly disclosed and/or the category of the person accused of the offence. Though the Act can catch journalists and members of the public, it is directed particularly at members of the security services, Crown servants, and government contractors.
Consider these examples:
(1) A journalist writes a story based on information received from a member of the security service (MI5) (Class 1 information) that members of the service have been involved in their work in illegal activities. The Act assumes that any disclosure about the work of the security service by a member of it is damaging, and therefore that member cannot defend himself/herself on the ground that the disclosure was not damaging. On the other hand, a Crown servant or a government contractor who makes a disclosure on the same subject is guilty only if the disclosure is proved to be damaging. The Act says that in this context a disclosure is damaging if:
(a) it causes damage to the work of, or of any part of, the security and intelligence services; or
(b) it is of information which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information the unauthorised disclosure of which would be likely to have that effect.
If a journalist is charged under the 1989 Act with making a disclosure about the work of the security service, the prosecution has to prove damage, and the ‘damage test’ is the same as that for a Crown servant, whether the journalist got the information from a Crown servant or a member of the security service.
(2) In defence matters (Class 2 information), the prosecution always has to prove the disclosure was damaging (or likely to be). This ‘damage test’ applied as regards a Crown servant making a disclosure on defence matters would the same as for a journalist publishing an article based upon the disclosure.
32.11 The onus of proof
Any journalist who risks being prosecuted under the Act will take a keen interest in who has to prove what. As with the test of damage, the onus of proof in the matter of damage also varies according to the class of information and the category of the person accused.
If a member of the security service makes a disclosure about his/her work the court will assume damage, and no proof of damage is necessary. If a Crown servant or government contractor makes such a disclosure, the prosecution has to prove the disclosure was damaging, but the Crown servant has a defence if he/she can prove that he/she did not know or had no reasonable cause to believe that it would be damaging. In the case of a journalist making a disclosure about security, the prosecution must prove not only that the disclosure was damaging, but also that the journalist knew or had reasonable cause to believe that it would be damaging – the onus of proof is on the prosecution.
32.12 A jury may acquit, if it accepts there was the public interest justification for the disclosure
As said earlier, there is no ‘public interest’ defence in official secrets law for any type of disclosure. But a jury may recognise that there was a public interest justification for a disclosure.
To develop an example given earlier: A journalist is prosecuted under the 1989 Act for publishing leaked information revealing that the police have been secretly intercepting (tapping) the phone calls of an opposition MP. If at the trial, the journalist argued that the tapping, though authorised by a warrant, was not justified, and persuaded the jury of that, it could choose to take the public interest in the disclosure being published into account when arriving at its verdict, and so may acquit the journalist even though the Act does not contain a public interest defence.
32.13 Misconduct in public office
It should be remembered that, even if material leaked to a journalist is not covered by official secrets law, a leaker who is a public official – for example, a police officer, prison officer, civil servant or someone employed by the armed services - could be charged with the common law offence of misconduct in public office (as Thomas Lund-Lack was, see above).
In such a case, a journalist who paid for the material or otherwise incited the leak could be charged with conspiracy to commit this offence or aiding and abetting it. See 34.3 in McNae’s for explanation of this offence.
32.14 Official secrecy versus freedom of expression
It has been suggested that official secrets legislation is susceptible to challenge under the Human Rights Act 1998, which came into effect in October 2000, incorporating the European Convention on Human Rights into UK law. See 1.3 in McNae’s for explanation of the Convention’s general effect. Any court determining a question in connection with Convention rights must construe existing legislation as far as possible to conform with those rights. For journalists, the relevant rights are most likely to be those set out in Article 10 of the Convention. Article 10 protects freedom of expression, including the rights to receive and impart information. Those rights may be restricted ‘in the interests of national security’, according to the second subsection of Article 10. But it makes clear that the exceptions (that is, the specified restrictions on Article 10 rights) listed in this subsection apply only so far as is ‘necessary in a democratic society’. The European Court of Human Rights (ECtHR) has ruled that reliance on such exceptions must answer a ‘pressing social need’ (in the context of official secrets law, this is likely to be a particular need to uphold an aspect of national security). That ECtHR has also ruled that interference with Article 10 freedoms, even if lawful, must be ‘proportionate to the legitimate aim pursued’.
Lawyers for David Shayler, in the case outlined earlier in this Additional Material, argued strongly that the Convention gave him a defence, in that Article 10 rights should be construed to protect publication of material which is ‘in the public interest’. In a preparatory hearing in May 2001 before his trial, it was argued on his behalf that the disclosures he made were in the public interest because they exposed serious illegality by the UK secret services and/or were necessary to avert threat to life and limb and serious damage to property (the ‘necessity’ argument’ – see also below, under Useful Websites, the House of Commons Library Briefing Paper ‘The Official Secrets Acts and Official Secrecy’). But the trial judge said the 1989 Act did not contain any exception to permit disclosure in the public interest. He ruled that all that the prosecution needed to prove was that Shayler as a former member of the security service had (without lawful authority) disclosed information that he acquired through his work for the service. The judge also ruled that the relevant restriction in the 1989 Act on disclosing secret information and the related criminal sanction were proportionate to the legitimate aim of protecting national security and necessary in a democratic society, and accordingly did not constitute violations of Article 10. In September 2001 the Court of Appeal dismissed Shayler’s appeal and in 2002 the House of Lords dismissed his further appeal.
Lord Bingham of Cornhill, giving the leading judgment in the House of Lords on the Shayler case, recognised that restrictions on freedom of expression had to be carefully scrutinised by the courts to ensure that they were proportionate to the aim they sought to further. But he said that an absolute ban against a member or former member of the security service disclosing information was necessary to protect national security. He added that it was also important to take into account the safeguards built into the Act that allowed a security officer to report unlawfulness and irregularity to superior officers and Ministers with the power and duty to take effective action. An officer could also seek authorisation to disclose information to the general public and could challenge, by judicial review, a refusal to give it.
Shayler’s stance was that there were no effective steps which could be taken through official channels to address his concerns and he had not therefore sought authorisation. Lord Bingham’s view was: ‘If a person who has given a binding undertaking of confidentiality seeks to be relieved, even in part, from that undertaking he must seek authorisation and, if so advised, challenge any refusal of authorisation. If that refusal is upheld in the courts it must, however reluctantly, be accepted’ (R v David Michael Shayler [2002] HL 11).
In essence, in key rulings on media investigation of matters relating to national security, UK judges have said that the Government, rather than the media, knows what information if published could damage national security, because Government officials have fuller knowledge than the media of security and intelligence operations, and about what ‘jigsaw’ pieces of information could aid enemies of the state.
32.15 Penalties
Penalties for an offence of disclosure under the 1989 Act are a maximum of two years’ imprisonment or a fine or both. If the case is tried summarily (by magistrates) the maximum is six months or a fine or both.
32.16 The use of injunctions
Official disillusionment with section 2 of the Official Secrets Act 1911 (outlined above, at 32.3) as a means of stopping leaks of sensitive information led to UK governments changing tack from the 1980s, in that they began using injunctions to ban publication of leaked material. Judges granted the injunctions in civil law on the ground of breach of confidence – that is, the information was held in confidence by members of the security and intelligence services, or Crown servants, and therefore any unauthorised publication of it would breach their obligation to keep it confidential (secret). In this civil law, the obligation to keep the information confidential can fall on any person who receives it, and consequently an injunction can be sought to make clear there is an obligation not to publish it, and to punish anyone who does publish it thereafter. The Government’s use of injunctions led to the media being silenced on occasion about leaked information, without a criminal prosecution – that is, without the risk of Government Ministers suffering political embarrassment through a jury’s decision to acquit a person charged with breach of official secrets law who had argued in their trial that the disclosure of the information had been in the public interest (such an acquittal happened in the Ponting case, see earlier). It is a contempt of court to disobey an injunction (a type of court order). Disobedience can be punished by a jail term of up to two years and/or a fine unlimited by statute. In 1985 the UK Government used such injunctions when attempting to stop publication of information acquired by Peter Wright during his former job as a senior officer of the MI5. He planned to make money by selling his memoirs – a book called Spycatcher. See chapter 26 in McNae’s about the law of confidence, and for other detail of the Spycatcher proceedings.
After The Mail on Sunday published David Shayler’s allegations, see above, the Government obtained an injunction forbidding him and the newspaper from revealing any further information unless formally authorised.
32.17 Use of an injunction in 2022
Case study: In 2022 the Attorney General Suella Braverman QC successfully asked Mr Justice Chamberlain in the High Court to grant an injunction to ban the BBC from identifying X, who the BBC said was ‘a covert human intelligence source’ (CHIS - that is, a type of undercover agent) for the security service (MI5). The BBC planned to broadcast a programme alleging he is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS. The BBC argued that the identification of X in the programme would be in the public interest. It said this would be relevant to the public debate on the coercive control of women by their male partners and on the failure of state security institutions to address this problem. The BBC said that publishing X’s identity would enable women considering a relationship or liaison with X to have access to information which may protect them from death or serious harm at the hands of X, and would remove the story from the realms of the abstract and so bolster and intensify the other public interest elements in the story. But the Attorney General, while neither confirming nor denying (‘the NCND stance’) that X had been such an agent, told the court that the BBC’s proposed identification of X would (a) involve a breach of confidence or false confidence, (b) create a real and immediate risk to the life, safety and private life of X and (c) damage the public interest and national security. She asked the court for the injunction to protect the rights of X under Articles 2, 3 and 8 of the European Convention on Human Rights (the rights to life, to freedom from torture or other degrading treatment, and to respect for privacy). The court heard evidence presented by the Attorney General in the ‘closed material procedure’, in which the public and press were barred from the hearing on national security grounds (see the Additional Material for ch. 15 for explanation of this procedure). Mr Justice Chamberlain said he was satisfied that there was cogent evidence establishing that the public disclosure of X’s identity would expose him to a ‘real and immediate risk” of death or serious injury at the hands of others and that, if his identity were disclosed, extensive protective measures would be necessary for him. Mr Justice Chamberlain also said that there was a cogently reasoned and plausible basis for concluding that disclosure of X’s identity would be likely to discourage people from acting as CHIS, and that this would cause material damage to the effectiveness of the work of the security and intelligence agencies and, therefore, the national security of the UK. The judge said that he would require considerable persuasion to grant an injunction if it would have a material effect on women’s ability to access information that might protect them from the risk of violence at the hands of X. But the judge added: ‘One aspect of the evidence to which I have already referred (bearing in mind the caveat as to the Attorney’s NCND stance) is that, if X’s identity were publicly disclosed, it is likely that extensive measures would be implemented to protect him from the real and immediate risks to which the disclosure would expose him. These measures would substantially undermine the protective effect which disclosure of his identity would have on women considering a relationship or liaison with him. Once these measures had been taken, as they are likely to be, public disclosure of X’s identity would not materially reduce any risks that X poses to women. This undermines one of the principal public interest justifications in favour of publication [of X’s identity]. It also means that, in the particular circumstances of this case, the grant of relief [the grant of the injunction requested by the Attorney General] would not materially increase any danger that X poses to women’ (Attorney General v BBC [2022] EWHC 826 (QB)). The BBC later broadcast a programme airing the allegations against X and MI5 without identifying him.
32.18 Defence and Security Media Advisory Notice system
In 2015 what was the Defence Press and Broadcasting Advisory Committee was reformed to become the Defence and Security Media Advisory (DSMA) committee. The committee is, as its predecessor was, the head of a joint government/media system through which the news media and other publishers – for example, when planning to publish a news article or a book, or to broadcast a news item - can get specific guidance on how to avoid inadvertent disclosure of information damaging to the UK’s national security and defence.
The committee comprises four senior officials of the Cabinet Office, Ministry of Defence, the Home Office, and the Foreign Office, and 18 nominees from newspapers, magazines, news agencies, broadcasting and book organisations. The chair is the Ministry of Defence’s Director General Security Policy.
The committee has five standing ‘notices’ giving general guidance. These are widely known as D-Notices (defence notices). Until 31 July 2015 they were officially called DA Notices (‘defence advisory’) but are now officially called DSMA-Notices. They describe the types of subject matter which the Government and media members of the committee consider may damage national security if published. These standing DSMA-Notices are distributed to national, regional and local newspapers, radio and television organisations, major internet service providers, and some publishers of periodicals and books on defence and related subjects. They can be read in full on the committee’s website - see Useful Websites, below - and cover the following subjects:
- military operations, plans and capabilities;
- nuclear and non-nuclear weapons and equipment [for defence and counter-terrorism];
- military counter-terrorist forces, special forces and intelligence agency operations, activities and communication methods and techniques;
- identification of sensitive installations;
- personnel who work in sensitive positions, and their families;
The permanent secretary of the committee (known as the DSMA-Notice secretary) is normally a retired senior officer from the armed forces. The current secretary is Brigadier Geoffrey Dodds. His contact details are on the committee’s website, as are the names of all committee members. When the secretary learns of media interest in any of the DSMA-Notice areas, he contacts the editor, publisher, or programme maker to offer advice. Editors, defence correspondents, other journalists, and authors can initiate contact to consult him to check whether information being considered for publication comes within a sensitive area.
The committee’s minutes, which can be read on its website, showed that in the period 26 October 2020 to 25 Apr 2021 its secretariat dealt with 23 requests from the media for DSMA-Notice advice.
Case study: The minutes of the committee’s meeting of 16 May 2019 show that Brigadier Dodds expressed concern that on December 21, 2018, ‘one UK media member’ tweeted live commentary about a special forces night operation to secure the safety of the crew of a ‘stricken maritime vessel in the Thames estuary’ who were under threat from a group of illegal immigrants. The minutes say: ‘Such live before and after reporting runs counter to the advice offered under DSMA standing notice 3. The tweeter was reminded of the implications of such reporting at the time. The Secretary subsequently wrote to all Committee members at the request of the Secretary of State for Defence to invite them to remind the wider UK media community, at an appropriate opportunity, of the dangers of live and before and after reporting of such operations.’
Part of standing notice 3 asks the media to check with the committee’s secretariat before disclosing methods and techniques of special forces. The aim is to avoid publication of detail which might compromise their future effectiveness. The estuary incident referred to in these minutes was reported by one newspaper under the headline: ‘Special forces retake cargo ship after stowaways threatened staff.’
32.19 Review after the Snowden affair
The Guardian’s publication in 2013 of some of the intelligence information stolen by Edward Snowden, see 32.2 in McNae’s, led mainstream organisations in the UK news media and the Government to consider if the committee was ‘fit for purpose’ in the internet age.
The secretary’s report in the committee’s minutes from that time say: ‘This event was very concerning because at the outset The Guardian avoided engaging with [what was then] the DA Notice System before publishing the first tranche of [Snowden] information. As a member of the Newspaper Publishers Association (NPA), The Guardian was obliged to seek (but not necessarily to accept) DA Notice advice under the terms of the DA Notice code. This failure to seek advice was a key source of concern and considerable efforts had been made to address it. There was also an important international dimension which played into the already complex equation. The Guardian was not the only newspaper involved in disclosing Snowden’s information, as the New York Times (NYT) was also publishing the same details in parallel. This meant that - even if The Guardian had sought and followed DA Notice advice - the highly sensitive information about GCHQ could still have been disclosed and once disclosed would immediately be widely repeated across the internet. This fact complicated subsequent dealings with The Guardian. Towards the end of July [2013] The Guardian had begun to seek and accept DA Notice advice not to publish certain highly sensitive details, and since then the dialogue with the [committee’s] Secretariat had been reasonable and improving. The events of the last few months had undoubtedly raised questions in some minds about the [DA Notice] system’s future usefulness.’
Alan Rusbridger, the editor of The Guardian, has said that the DA Notice committee found that nothing published by the paper had put British lives at risk. He also said that The Guardian had consulted government officials and intelligence agencies – including the FBI, GCHQ, the White House and the Cabinet Office – on more than 100 occasions before the publication of articles concerning Snowden’s information. He said that on only one occasion was there no consultation with the UK government before publication, when he feared an injunction could be sought to prevent publication (The Guardian, January 26, 2014, http://www.theguardian.com/uk-news/2014/jan/26/d-notice-system-reviewed-edward-snowden).
An official review of the DA Notice committee’s role, triggered by the Snowden affair, led in 2015 to its re-launch as the DSMA committee (and continuing dialogue over publication of Snowden revelations led to The Guardian’s deputy editor joining the committee as one of the media representatives). The review team, which included two former editors of national newspapers, criticised the ‘patchy engagement’ of some Government departments with the committee, and pointed out that in the USA, contact about national security matters between the media and official sources ‘far exceed in depth and breadth those that exist in the UK’. The Government did not accept all the review team’s recommendations – for example, it rejected the idea that the committee should have an independent chair.
The outcome of the review was, in effect, that the DSMA committee will function in much the same way was the DA Notice committee did. The system remains, in essence, a voluntary code of media self-censorship on national security and defence issues. Advice is made available for the news media and book authors, through or facilitated by the DSMA-Notice committee secretariat, from the Government’s departments and its security and intelligence services, a major aim being to safeguard military and intelligence secrets, including the identities and operational whereabouts of the UK’s undercover agents and special forces, including those deployed against terrorists.
Editors who consult the DSMA-Notice committee secretariat sometimes decide to limit what is published in news and features, and sometimes feel able to publish information that they might otherwise leave out. But the committee has no statutory powers of enforcement. Editors do not have to seek advice or take the advice offered. An editor who publishes information of the type covered by a DSMA-Notice knows that the Government regards such information as sensitive, and therefore realises there is a risk of prosecution if what is published is regarded as a breach of official secrets legislation.
There are books about the history of the Notice system: National Security and the D-Notice System, by Pauline Sadler (Dartmouth Publishing Co Ltd, 2001); Secrecy and the Media: The Official History of the D-notice System, by Nicholas John Wilkinson (Routledge, 2009).
Useful Websites
Official secrets form used by Ministry of Defence
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7422
House of Commons Library Briefing Paper ‘The Official Secrets Acts and Official Secrecy’
Defence and Security Media Advisory committee