The Official Secrets Act - a sleeping dog or a dead dog?

Clare Short’s claim that British agents spied on the UN Secretary General, for which she is likely to avoid prosecution, and the collapse of the case against Katharine Gun, a GCHQ translator accused of divulging sensitive intelligence information, might strengthen the resolve of journalists to publish reports on the work of the security and intelligence community.

Journalists should, nevertheless, be careful not to fall foul of the Official Secrets Acts of 1911 and 1989 and related legislation: they might bite.

Under the Official Secrets Act 1911, it is an offence to obtain, collect, receive or communicate any information that might be or is intended to be useful to any enemy. In 1978, a freelance journalist was accused of collecting information concerning the Government’s surveillance systems and obtaining material from a former soldier.

A Time Out reporter was also accused of aiding and abetting in the offence. The charges against all three protagonists were later dropped, but not until after the court had held that the ambit of the section extended beyond the scope of spying or sabotage and could apply to those who did not intend to assist an enemy of the state. This would include journalists.

Although certain sections of the 1911 act have been repealed, section 1, the breach of which carries a penalty of up to 14 years’ imprisonment, remains on the statute books.

The 1989 act relates to six broad classes of information: security and intelligence, defence, international relations, crime, interception of communications, and sensitive information disclosed to other states or international organisations. It is designed primarily to prevent the disclosure of information by civil servants that might be damaging to national security.

For example, Mrs Gun’s disclosure of a memo from the US National Security Agency to GCHQ, shortly before the war in Iraq, prompted legal action under section 1.

That section relates to damaging disclosure by a crown servant of information concerning security or intelligence.

However, journalists might also be liable under section 5, if they publish information that is provided to them in breach of a civil servant’s obligations under the act. As the Katherine Gun case shows though, if confidential information has passed through a number of hands before being published, as it did in that case, charges are unlikely to be brought against a journalist and even a conviction against the source of the material might not be secured.

A journalist commits an offence under section 5 of the 1989 act if he discloses information knowing, or having reasonable cause to believe, that it is protected against disclosure by the act.

In the case of information pertaining to security and intelligence, defence and international relations, liability will only arise if the disclosure causes damage, or would be likely to cause damage to the security and intelligence services.

In the case of information concerning crime and government interception of communications, however, damage is assumed.

The degree of damage necessary for conviction under the act varies according to the class of information, but if a conviction is secured, imprisonment of the journalist for up to two years can potentially result.

Except for disclosure of information relating to crime or the interception of communications, for which consent of the Director of Public Prosecutions is required under the 1989 act, no prosecution for an offence under either of the acts may be instituted without the Attorney-General’s consent.

Indeed, there have so far been no successful prosecutions of journalists under the 1989 act.

However, journalists should beware of the security and intelligence services flexing their muscles in other ways.

For example, journalists’ sources might more readily be subjected to prosecution than they are themselves.

Sources might also be subjected to civil claims, including actions for breach of contract, confidence and data protection as well as infringement of copyright. Such claims might also oblige journalists to disclose their sources.

For example, the case of Secretary of State for Defence v Guardian Newspapers in 1985 concerned a leak of information by a young clerk employed in the Foreign Secretary’s Private Office.

Under the national security exception to section 10 of the Contempt of Court Act 1981, which ordinarily permits journalists to withhold the identity of sources, disclosure of the relevant documentation was ordered and the decision upheld by the House of Lords.

The Official Secrets Acts might also be relied on in obtaining injunctions against publication, as has happened in the case of disclosures by former members of the SAS.

Before publication, editors should also consider the five current Defence Advisory Notices (D Notices) of the Press and Broadcasting Advisory Committee (www.dnotice.org.uk). These set out agreed guidelines between the media and the Government on matters of national security.

Although the threat to journalists of prosecution under the Official Secrets Acts is in most circumstances unlikely to be acted upon, its usefulness to the security services in silencing journalists, in conjunction with other legal rights, should not be ignored.

James Damon is a solicitor in the media and entertainment department at Charles Russell

James Damon

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