R v David Michael Shayler (2001)
HL (Lords Bingham, Hope, Hutton, Hobhouse, Scott) (March 21 2002)
The Official Secrets Act, which affords no public interest defence to disclosure of classified information, does not breach Article 10.
This was an appeal from a ruling by the Court of Appeal (summarised below) that the provisions of the Official Secrets Act under which the defendant had been charged were not incompatible with the defendant's Convention rights.
Appeal dismissed. The relevant provisions afforded no public interest defence to the charges of disclosing information and/or documents without lawful authority; and they were compatible with Article 10 of the European Convention on Human Rights.
COMMENT (April 2002)
It is not surprising that this appeal should fail. There is no doubt that the aims and legal basis of the OSA comply with Article 10(2). What did engage their Lordships - particularly Lord Hope - for some time in this judgment was the question of proportionality, and it is likely that this case will replace R (Daly) Secretary of State for the Home Department  2AC 532 as the leading domestic authority on the principle.
The appellant argued that the matters he wished to disclose were not being kept secret in the interests of national security. The target of any Article 10 challenge to the Official Secrets Act is its lack of public interest defence, which many commentators regard as incompatible with Article 10(2) (see for example Clayton, The Law of Human Rights (2000) P 1105). It was on this defence that Shayler originally sought to rely when he was charged with breach of the OSA in August 2000. He argued that the unauthorised disclosures which he had made were in the interests of the right of the public to be informed about abuse of the powers given to the security services, with such information leading to pressure for reform. But this defence is simply not available under OSA, which in Lord Hope's view does render the Act vulnerable to criticism "on the ground that it lacks the necessary sensitivity" (para 70).
However in these Official Secrets cases there is another public interest in play - the public interest in national security. Quite how the balance should be struck between these two requires the court to speculate -as the legislature speculated, when it considered reforming OSA - what would be the consequences in national security terms if the prosecution had to prove beyond reasonable doubt any potential damage to the security system if a particular disclosure was made. In Lord Hope's words, "Damage already done may be irreperable and the gathering together and disclosure of evidence to prove the nature and extent of the damage may compound its effects to the futher detriment of national security." (para 85) Therefore the strict controls on authorisation could not be considered to be disproportionate.
The judgment also notes that the authorisation system under the Act - which allows for a limited amount of whistleblowing - is similar to the Staff Regulations in the European Communities which requires an official of the EC Commission to obtain prior permission for the publication of the material dealing with the work of the commission. The ECJ found that this saved the Staff Regulations from falling foul of Article 10 - see Connolly v Commissioner of the European Communities (Case C-274/99 March 6 2001). In addition there is judicial review, which is available if any potential whistleblower quibbles with the refusal of authorisation for the disclosure. Now that it is generally acknowledged that judicial review involving Convention challenges adopts a higher standard of scrutiny than other forms of judicial review, it should be open to the court to ask, when examining why authorisation was refused, whether that refusal was in fact justified, rather than simply asking whether that refusal was within the range of reasonable responses open to the official in question.
CA (Lord Woolf LCJ, Wright J, Leveson J) 28/9/2001
The defendant had been charged with with three offences under the Official Secrets Act 1989 of disclosing information and/or documents without lawful authority. This appeal raised the following important issues: whether the defence of duress or necessity of circumstances applied to the offences with which the defendant was charged and whether it could apply to the situation on which he relied as justification for the disclosure; whether the disclosure was necessary in the public interest to avert damage to life or limb or serious damage to property, or to expose serious and pervasive illegality or iniquity in the obtaining of warrants and surveillance; the circumstances in which it was appropriate for a judge to make rulings in a s.29 hearing defining the issues to be the subject of evidence at a forthcoming trial; and the position of the media when the disclosure that was relied on as amounting to an offence was made to the press. The Court of Appeal granted permission to seven national newspapers to make submissions on the issue of freedom of expression.
Appeal dismissed. This court agreed that the defence of duress or necessity was not open to the defendant. Although sections 1(1) and 4 of the 1989 Act did not exclude the defence altogether,in the circumstances of the case it was not made out. There had been no necessity or duress that compelled him to breach the Act. As far as freedom of speech was concerned, it was true that ss.1 and 4 of the 1989 Act imposed a blanket ban on a limited section of the community. However this had to be balanced against the fact that the 1989 Act was designed to protect national security. Even if a change in events before the trial might make this ruling inappropriate, the judge below had not overstepped the mark by clarifying the law. That approach was not incompatible with a defendant's rights to a fair trial. The Attorney-General would only authorise a prosecution of the press for incitement to commit an offence under s.1 of the 1989 Act in exceptional circumstances. Section 5 of the 1989 Act provided protection to the press that was not available to the defendant.
COMMENT (October 7 2001)
True political speech does not come under serious threat in post war Britain. Nevertheless the subject of freedom of speech has exerted a mesmeric hold on the scribbling classes, hence the outpourings on every little skirmish in the defamation courts involving politicians and newspaper editors. Now, post September 11, the issue has become serious again, and there will be protracted litigaiton ahead on the rights of minority groups to preach religious hatred and the rights of newspapers to report on covert counter-terrorist measures and so on. See for example R v Secretary of State for the Home Department ex parte Louis Farrakhan. By comparison, the Spycatcher saga will begin to seem like a mere bagatelle. This latest stage in the Shayler litigation foreshadows some of the conflicts that will have to be resolved in the current climate.
The Appeal Court observed that free speech had to be balanced against the public interest in its own security. Until recent events this would have been no more than a bland recitation of existing law. But the public perception of its own security in general, and of the intelligence services in particular, has undergone a radical change in the last few days. It has swung from mild interest in internal shenanigans and corrupt practices portrayed by Shayler and others, to a worried apprehension about the efficiency of the security and intelligence services in the counter terrorist game. It will be these anxieties that will form the backdrop to the jury's deliberations at Shayler's ultimate trial. In the light of recent events, his claims that his revelations were in some way necessitated or justified in the public interest would not have stood a chance in court, so it is just as well that such assertions have been excluded at this early stage.
Rosalind English, 1 Crown Office Row