|Judgments - Regina v Shayler (On Appeal From The Court of Appeal (Criminal Division))
14. The Security Service Act 1989 was enacted, very shortly before the OSA 1989, to put the service on a statutory basis. Its functions are defined in section 1 (as amended):
Under section 2 (as amended), the Director General is to be responsible for the efficiency of the service and it is to be his duty to ensure:
The preparatory hearing
15. Section 29(1) of the Criminal Procedure and Investigations Act 1996 confers powers on a judge of the crown court to order a preparatory hearing where it appears to him that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing before the jury are sworn for any of the purposes listed in subsection (2). These purposes are those of
The order may be made on the application of the prosecutor or the defendant or of the judge's own motion, and at the hearing the judge may under section 31(3) make a ruling as to (a) any question as to the admissibility of evidence or (b) any other question of law relating to the case. An appeal lies to the Court of Appeal, with leave, against any ruling given: section 35(1).
16. As section 29 makes clear, resort to this procedure is only permissible where the case appears complex or likely to lead to a lengthy trial. But in such cases the procedure can be highly beneficial. The process of disclosure can be conducted, and the marshalling of evidence prepared, with direct reference to the live issues in the case. Jurors and witnesses, summoned to court for the trial, can be spared hours or days of frustrating inaction while issues of law are argued out in their absence. The risk of sudden adjournments to deal with unforeseen contingencies can be reduced. And, perhaps most important of all, the risk that the trial will be conducted on what an appellate court later rules to be a mistaken legal basis, leading to the necessarily undesirable consequence of a retrial, can be minimised if not eliminated. If there is an issue on the proper interpretation of a section or the correct direction to be given to a jury, it may be better to resolve the question sooner rather than later: R v Carass (Court of Appeal (Criminal Division), (unreported), 19 December 2001, para 22).
17. The judge's decision to order a preparatory hearing in this case, not challenged at the time, was entirely sound. Substantial benefits were indeed likely to accrue. It was faintly suggested in argument before the House that the case did not meet the statutory criteria of complexity and likely length. But the legal argument occupied four days before the judge, three days in the Court of Appeal and three days before the House. There are eight substantial bundles of authorities before the House. The test of complexity is comfortably satisfied, and the likely length of the trial in large measure depended on how the main legal issue was resolved. It is however important to stress that the judge's power under section 31(3)(b) is limited to ruling on questions of law "relating to the case". This limitation must be strictly observed. Here, the issues of law before the judge were whether the sections under which the appellant was charged, on a proper construction, afford him a public interest defence; whether, if not, those sections are compatible with article 10 of the European Convention; and whether, if they are not, they can or should be read conformably with the convention or a declaration of incompatibility made. The appellant's case before the judge did not raise any question of necessity or duress of circumstances, and it is a little unfortunate that the judge ventured into this vexed and uncertain territory not "relating to the case". It is a little unfortunate, for the same reason, that the Court of Appeal followed him into it. I should not for my part be taken to accept all that the Court of Appeal said on these difficult topics, but in my opinion it is unnecessary to explore them in this case. The appellant's case, put very broadly, is 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 these 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. This omnibus contention may or may not afford him a defence under the OSA 1989, depending on whether a public interest defence is available; but it is not within measurable distance of affording him a defence of necessity or duress of circumstances.
Construction of section 1(2) and 4(1) of the OSA 1989
18. Section 1(1)(a) of the OSA 1989 imposes criminal liability on a member or former member of the security and intelligence services if, without lawful authority (as defined in section 7), he discloses any information or document relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services. The only defence expressly provided is, under subsection (5), that at the time of the disclosure he did not know and had no reasonable cause to believe that the information or documents in question related to security or intelligence. As already demonstrated, a member or former member of the security and intelligence services is treated differently under the Act from other persons, and information and documents relating to security and intelligence are treated differently from information and documents relating to other matters. Importantly, the section does not require the prosecution to prove that any disclosure made by a member or former member of the security and intelligence services was damaging to the interests of that service or the public service generally.
19. Section 4(1), read in conjunction with section 4(3)(a), imposes criminal liability on a serving or former crown servant if, without lawful authority (as defined in section 7), he discloses any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985 which has been in his possession by virtue of his position as a serving or former crown servant. The only defence expressly provided is, under subsection (5), that at the time of the disclosure he did not know and had no reasonable cause to believe that any information or document disclosed was information or a document to which the section applied. In a prosecution under the subsections referred to the prosecution do not have to prove damage or the likelihood of damage (as required under section 4(2)) and a limited defence based on lack of knowledge that damage would be caused (as provided under section 4(4)) does not apply.
20. It is in my opinion plain, giving sections 1(1)(a) and 4(1) and (3)(a) their natural and ordinary meaning and reading them in the context of the OSA 1989 as a whole, that a defendant prosecuted under these sections is not entitled to be acquitted if he shows 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 conclude that it may have been or that the defendant may have believed it to be in the public or national interest to make the disclosure in question. The sections impose no obligation on the prosecution to prove that the disclosure was not in the public interest and give the defendant no opportunity to show that the disclosure was in the public interest or that he thought it was. The sections leave no room for doubt, and if they did the 1988 white paper quoted above, which is a legitimate aid to construction, makes the intention of Parliament clear beyond argument.
The right to free expression
21. The fundamental right of free expression has been recognised at common law for very many years: see, among many other statements to similar effect, Attorney General v Guardian Newspapers Ltd  1 WLR 1248, 1269B, 1320G; Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 178E, 218D, 220C, 226A, 283E; R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 126E; McCartan Turkington Breen v Times Newspapers Ltd  2 AC 277, 290G-291B. The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one. But the press cannot expose that of which it is denied knowledge.
22. Despite the high value placed by the common law on freedom of expression, it was not until incorporation of the European Convention into our domestic law by the Human Rights Act 1998 that this fundamental right was underpinned by statute. Article 10(1) of the Convention, so far as relevant, provides:
Section 12 of the 1998 Act reflects the central importance which attaches to the right to freedom of expression. The European Court of Human Rights for its part has not wavered in asserting the fundamental nature of this right. In paragraph 52 of its judgment in Vogt v Germany (1995) 21 EHRR 205 the court said:
It is unnecessary to multiply citations to the same effect. Thus for purposes of the present proceedings the starting point must be that the appellant is entitled if he wishes to disclose information and documents in his possession unless the law imposes a valid restraint upon his doing so.
23. Despite the high importance attached to it, the right to free expression was never regarded in domestic law as absolute. Publication could render a party liable to civil or criminal penalties or restraints on a number of grounds which included, for instance, libel, breach of confidence, incitement to racial hatred, blasphemy, publication of pornography and, as noted above, disclosure of official secrets. The European Convention similarly recognises that the right is not absolute: article 10(2) qualifies the broad language of article 10(1) by providing, so far as relevant to this case:
24. In the present case there can be no doubt but that the sections under which the appellant has been prosecuted, construed as I have construed them, restricted his prima facie right to free expression. There can equally be no doubt but that the restriction was directed to objectives specified in article 10(2) as quoted above. It was suggested in argument that the restriction was not prescribed by law because the procedure for obtaining authorisation was not precisely specified in the OSA 1989, but I cannot accept this. The restriction on disclosure is prescribed with complete clarity. A member or former member of 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 no doubt refer the request to higher authority. It was common ground below, in my view, rightly, that the relevant restriction was prescribed by law. It is on the question of necessity, pressing social need and proportionality that the real issue between the parties arises.
25. There is much domestic authority pointing to the need for a security or intelligence service to be secure. The commodity in which such a service deals is secret and confidential information. If the service is not secure those working against the interests of the state, whether terrorists, other criminals or foreign agents, will be alerted, and able to take evasive action; its own agents may be unmasked; members of the service will feel unable to rely on each other; those upon whom the service relies as sources of information will feel unable to rely on their identity remaining secret; and foreign countries will decline to entrust their own secrets to an insecure recipient: see, for example, Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 118C, 213H-214B, 259A, 265F; Attorney General v Blake  1 AC 268, 287D-F. In the Guardian Newspapers Ltd (No. 2) case, at p 269E-G, Lord Griffiths expressed the accepted rule very pithily:
As already shown, this judicial approach is reflected in the rule laid down, after prolonged consideration and debate, by the legislature.
26. 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 has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100-103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45-47; Esbester v United Kingdom (1993) 18 EHRR CD 72, CD 74; Brind v United Kingdom (1994) 18 EHRR CD 76, CD 83-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual's convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.
27. The OSA 1989 imposes a ban on disclosure of information or documents relating to security or intelligence by a former member of the service. But it is not an absolute ban. It is a ban on disclosure without lawful authority. It is in effect a ban subject to two conditions. First of all, the former member may, under section 7(3)(a), make disclosure to a Crown servant for the purposes of his functions as such:(1.)
The former member may make disclosure to the staff counsellor, whose appointment was announced in the House of Commons in November 1987 (Hansard (HC Debates) 2 November 1987, written answers col 512), before enactment of the OSA 1989 and in obvious response to the grievances ventilated by Mr Peter Wright in Spycatcher. The staff counsellor, a high ranking former civil servant, is available to be consulted:
If the former member has concerns about the lawfulness of what the service has done or is doing, he may disclose his concerns to (among others) the Attorney General, the Director of Public Prosecutions or the Commissioner of Metropolitan Police. These officers are subject to a clear duty, in the public interest, to uphold the law, investigate alleged infractions and prosecute where offences appear to have been committed, irrespective of any party affiliation or service loyalty.(3.)
If a former member has concerns about misbehaviour, irregularity, maladministration, waste of resources or incompetence in the service he may disclose these to the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or Scotland, the Prime Minister, the Secretary to the Cabinet or the Joint Intelligence Committee. He may also make disclosure to the secretariat, provided (as the House was told) by the Home Office, of the parliamentary Intelligence and Security Committee. He may further make disclosure, by virtue of article 3 of and Schedule 2 to the Official Secrets Act 1989 (Prescription) Order 1990 (SI 200/1990) to the staff of the Controller and Auditor General, the National Audit Office and the Parliamentary Commissioner for Administration.
28. Since one count of the indictment against the appellant is laid under section 4(1) and (3) of the OSA 1989, considerable attention was directed by the judge and the Court of Appeal to the role of the commissioners appointed under section 8(1) of the Interception of Communications Act 1985, section 4(1) of the Security Service Act 1989 and section 8(1) of the Intelligence Services Act 1994. The appellant submits, correctly, that none of these commissioners is a minister or a civil servant, that their functions defined by the three statutes do not include general oversight of the three security services, and that the secretariat serving the commissioners is, or was, of modest size. But under each of the three Acts, the commissioner was given power to require documents and information to be supplied to him by any crown servant or member of the relevant services for the purposes of his functions (section 8(3) of the 1985 Act, section 4(4) of the 1989 Act, section 8(4) of the 1994 Act), and if it were intimated to the commissioner, in terms so general as to involve no disclosure, that serious abuse of the power to intercept communications or enter premises to obtain information was taking or had taken place, it seems unlikely that the commissioner would not exercise his power to obtain information or at least refer the warning to the Home Secretary or (as the case might be) the Foreign Secretary.
29. One would hope that, if disclosure were made to one or other of the persons listed above, effective action would be taken to ensure that abuses were remedied and offenders punished. But the possibility must exist that such action would not be taken when it should be taken or that, despite the taking of effective action to remedy past abuses and punish past delinquencies, there would remain facts which should in the public interest be revealed to a wider audience. This is where, under the OSA 1989 the second condition comes into play: the former member may seek official authorisation to make disclosure to a wider audience.
30. As already indicated, it is open to a former member of the service to seek authorisation from his former superior or the head of the service, who may no doubt seek authority from the secretary to the cabinet or a minister. Whoever is called upon to consider the grant of authorisation must consider with care the particular information or document which the former member seeks to disclose and weigh the merits of that request bearing in mind (and if necessary taking advice on) the object or objects which the statutory ban on disclosure seeks to achieve and the harm (if any) which would be done by the disclosure in question. If the information or document in question were liable to disclose the identity of agents or compromise the security of informers, one would not expect authorisation to be given. If, on the other hand, the document or information revealed matters which, however, scandalous or embarrassing, would not damage any security or intelligence interest or impede the effective discharge by the service of its very important public functions, another decision might be appropriate. 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.
31. One would, again, 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 for refusal, or at any rate where the former member firmly believed that no adequate justification existed. In this situation the former member is entitled to seek judicial review of the decision to refuse, a course which the OSA 1989 does not seek to inhibit. In considering an application for judicial review of a decision to refuse authorisation to disclose, the court must apply (albeit from a judicial standpoint, and on the evidence before it) the same tests as are described in the last paragraph. It also will bear in mind the importance attached to the convention right of free expression. It also will bear in mind the need for any restriction to be necessary to achieve one or more of the ends specified in article 10(2), to be responsive to a pressing social need and to be no more restrictive than is necessary to achieve that end.
32. For the appellant it was argued that judicial review offered a person in his position no effective protection, since courts were reluctant to intervene in matters concerning national security and the threshold of showing a decision to be irrational was so high as to give the applicant little chance of crossing it. Reliance was placed on the cases of Chahal v United Kingdom (1996) 23 EHRR 413 and Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, in each of which the European Court was critical of the effectiveness of the judicial review carried out.