(back to preceding text)

    83. It is plain that these two alternatives are not exactly two sides of the same coin. One system of control depends ultimately on judicial review of decisions taken beforehand by administrators. Control under the other system would depend ultimately on decisions taken after the event by judges and juries in the criminal process. There is a choice to be made, and it seems to me that the choice of a system which favours official authorisation before disclosure subject to judicial review on grounds of proportionality is within the margin of discretion which ought to be accorded to the legislature.

    84. In favour of that choice there are a number of important factors. However well intentioned he or she may be, a member or former member of the security or intelligence services may not be equipped with sufficient information to understand the potential impact of any disclosure. It may cause far more damage than the person making the disclosure was ever in a position to anticipate. The criminal process risks compounding the potential for damage to the operations of these services, if the prosecution have to prove beyond reasonable doubt the damaging nature of the disclosures.

    85. As Mr Crow for the Secretary of State pointed out, there is for this reason a serious risk that disclosures of security and intelligence material would go unprosecuted if the strict controls of section 1(1) and 4(1) of the 1989 Act were not in place. This is not a new point, as it was mentioned in the White Paper: see para 39. And it has to be borne in mind that a successful prosecution will do nothing to remedy the damage that a disclosure of security or intelligence information may have caused. Damage already done may well be irreparable, and the gathering together and disclosure of evidence to prove the nature and extent of the damage may compound its effects to the further detriment of national security. I think therefore that there is in the end a strong case for insisting upon a system which provides for the matter to be addressed by requiring that official authorisation be obtained by former members of the security and intelligence services, if necessary after judicial review of any refusal on grounds of proportionality, before any disclosures are made by them other than to Crown servants of information, documents or other articles to which sections 1(1) and 4(1) of the Act apply.

    86. For these reasons, and for those given by my noble and learned friend, Lord Bingham of Cornhill, with which I agree, I would hold that the provisions of the 1989 Act under which Mr Shayler has been charged are not incompatible with his article 10 Convention right. I would dismiss the appeal.

LORD HUTTON

My Lords,

    87. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. For the reasons which he gives I agree that the judge, Moses J, was fully entitled to hold a preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996 and that the judge acted within his powers in the course of that hearing. I further agree that on ordinary principles of construction sections 1 and 4 of the Official Secrets Act 1989 do not permit a defendant to raise a defence that the information which he disclosed without lawful authority was disclosed by him in the public interest when those sections are considered without regard to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

    88. Therefore I turn to consider the principal issue which arose before your Lordships, which is whether this construction infringes the provisions of article 10. Article 10(1) provides:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

    89. The appellant submitted that the prohibitions imposed by sections 1 and 4 and his prosecution under those sections infringe his right to impart information about the Security Service of which he was formerly a member without interference by public authority. He further submitted that the infringement is the more serious because the information which he disclosed was given by him to the press, and the freedom of the press to receive information of public interest and to publish it is one of the great bulwarks of democracy.

    90. I commence the consideration of these submissions and the submissions of the Crown by observing, as did Bingham LJ in Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, 213 (the Spycatcher Case), that they represent a clash between two competing aspects of the public interest. On the one hand there is the assertion by the appellant of the public interest in freedom of speech and the exercise of that freedom by those who give information to the press so that the press may publish it and comment on it for the public benefit. On the other hand there is the reliance by the Crown on the public interest in the maintenance of the secrecy of the work of the Security Service so that it can operate effectively to protect national security. Both interests are valid and important and it is for the courts to resolve the clash of interests and to decide how the balance is to be struck.

    91. In carrying out this function in the present case the courts must look for guidance to the terms of article 10 and also to the decisions of the European Court of Human Rights in applying that article to the cases which have come before it.

    92. Article 10 itself recognises in express terms that there will be clashes between the right to impart information without interference by public authority and the interests of national security and that in some circumstances the interests of national security must prevail and article 10(2) provides:

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

    The wording of article 10(2) directs attention to a number of matters and requirements and I propose to consider them in turn.

    93. Article 10(2) recognises that the exercise of the freedoms set out in article 10(1) carries with it duties and responsibilities which may give rise to restrictions. It is clear that in its decisions determining whether restrictions on the freedom of expression are justified under article 10(2) the European Court recognises that the particular position which a person holds and the work which he carries out may impose special duties and responsibilities upon him. In Engel v Netherlands (No 1) (1976) 1 EHRR 647 the European Court found there had been no violation of article 10. In that case two soldiers had been committed to a disciplinary unit for having taken part in the publication and distribution of a writing tending to undermine discipline. The court stated, at para 100 of its decision:

"The court doubtless has jurisdiction to supervise, under the Convention, the manner in which the domestic law of the Netherlands has been applied in the present case, but it must not in this respect disregard either the particular characteristics of military life (para 54 in fine above), the specific 'duties' and 'responsibilities' incumbent on members of the armed forces, or the margin of appreciation that article 10(2) like article 8(2), leaves to the Contracting States."

And at para 102-103 the court stated:

"Mr Dona and Mr Schul allege a dual breach of articles 10 and 14 taken together. They stress that a civilian in the Netherlands in a comparable situation does not risk the slightest penalty. In addition, they claim to have been punished more severely than a number of Netherlands servicemen, not belonging to the V.V.D.M., who had also been prosecuted for writing or distribution material likely to undermine military discipline.

On the first question, the court emphasises that the distinction at issue is explicable by the differences between the conditions of military and of civil life and, more specifically, by the 'duties' and 'responsibilities' peculiar to members of the armed forces in the field of freedom of expression."

    94. In Hadjianastassiou v Greece (1993) 16 EHRR 219 the applicant, a serving officer, was in charge of a project for the design and production of a guided missile and he submitted a report to the air force on the missile on which he had been working. The following year he communicated to a private company another technical study on guided missiles which he had prepared himself. He was convicted and sentenced for having disclosed military information relating to the design and produce of guided missiles to a private company. The domestic court concluded that although the disclosed study differed from the one used by the air force, nonetheless some transfer of technical knowledge had inevitably occurred. The European Court found that there had been no violation of article 10.

At paras 46 and 47 of its decision the court stated:

"It is also necessary to take into account the special conditions attaching to military life and the specific 'duties' and 'responsibilities' incumbent on the members of the armed forces. The applicant, as the officer at the KETA in charge of an experimental missile programme, as bound by an obligation of discretion in relation to anything concerning the performance of his duties.

In the light of these considerations, the Greek military courts cannot be said to have overstepped the limits of the margin of appreciation which is to be left to the domestic authorities in matters of national security. Nor does the evidence disclose the lack of a reasonable relationship of proportionality between the means employed and the legitimate aim pursued ."

    95. In the present case also there were special conditions attached to life in the Security Service and there were special duties and responsibilities incumbent on the appellant whereby, unlike the great majority of other citizens, he was prohibited by statute from disclosing information about his work or about the actions of others engaged in the same work. Moreover these duties and responsibilities were specifically acknowledged and accepted by the appellant. The agreed statement of facts in the present case states:

"The appellant was a member of the Security Service ('the Service') from November 1991 to October 1996. At the outset of his service he signed an Official Secrets Act 1989 ('OSA') declaration acknowledging the confidential nature of documents and other information relating to security or intelligence, defence or international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose, without authority, any information that came into his possession by virtue of his employment. On leaving the Service he signed a further OSA declaration acknowledging that the provisions of the Act continued to apply to him notwithstanding the termination of his appointment, and that the same requirements of confidentiality continued to apply to any information, documents or other articles relating to security or intelligence, defence or international relations which might have come into his possession as a result of his previous employment."

Therefore in considering whether the restrictions contained in sections 1 and 4 of the 1989 Act were permissible under article 10(2) it is relevant to take into account that the appellant was subject to particular duties and responsibilities arising from his membership of the Security Service.

    96. In my opinion the restrictions and penalties to which the appellant was subject are prescribed by law. The terms of sections 1 and 4 of the 1989 Act are clear. Each section prohibits the disclosure of information "without lawful authority" and section 7(3) of the Act provides:

"For the purposes of this Act a disclosure made by any other person [which includes a former member of the Security Service] is made with lawful authority if, and only if, it is made—

(a)  to a Crown servant for the purposes of his functions as such; or

(b)  in accordance with an official authorisation."

Section 12(1) defines who is a "Crown servant":

"(1)  In this Act 'Crown servant' means—

(a)  a Minister of the Crown;

(b)  a person appointed under section 8 of the Northern Ireland Constitution Act 1973 (the Northern Ireland Executive etc);

(c)  any person employed in the civil service of the Crown, including Her Majesty's Diplomatic Service, Her Majesty's Overseas Civil Service, the civil service of Northern Ireland and the Northern Ireland Court Service;

(d)  any member of the naval, military or air forces of the Crown, including any person employed by an association established for the purposes of [Part XI of the Reserve Forces Act 1996];

(e)  any constable and any other person employed or appointed in or for the purposes of any police force (including a police force within the meaning of the Police Act (Northern Ireland) 1970);

(f)  any person who is a member or employee of a prescribed body or a body of a prescribed class and either is prescribed for the purposes of this paragraph or belongs to a prescribed class of members or employees of any such body;

(g)  any person who is the holder of a prescribed office or who is an employee of such a holder and either is prescribed for the purposes of this paragraph or belongs to a prescribed class of such employees."

Section 13(1) defines the meaning of "prescribed":

"'prescribed' means prescribed by an order made by the Secretary of State."

And section 7(5) defines the meaning of 'official authorisation':

"In this section 'official authorisation' and 'official restriction' mean, subject to subsection (6) below, an authorisation or restriction duly given or imposed by a Crown servant or government contractor or by or on behalf of a prescribed body or a body of a prescribed class."

It is also relevant to note that the declaration which the appellant signed on leaving the Security Service stated that in order to obtain the official sanction of the Service to publish any material two copies of the manuscript of the work containing such information should be submitted to the Director General.

    97. The judgments of the European Court have established that these words contain two requirements. First, the restrictions on the imparting of information must pursue a legitimate aim and, secondly, the requirements must be necessary in a democratic society. In addition the reasons given by the national authority to justify the restrictions must be relevant and sufficient under Article 10(2): see The Sunday Times v United Kingdom (1979) 2 EHRR para 62, Barthold v Germany (1985) 7 EHRR 383 para 55 and Lingens v Austria (1986) 8 EHRR 407 para 39.

    98. The function of the Security Service is to protect national security against threats from espionage, terrorism and sabotage and from actions intended to overthrow or undermine parliamentary democracy (see section 1 of the Security Service Act 1989). In order to carry out this function effectively I consider it to be clear that the Security Service must operate under and be protected by a cloak of secrecy. This view is in conformity with the judgment of the European Court in Vereniging Bluf Weekblad v The Netherlands (1995) 20 EHRR 189 which related to the restriction on a publication of a report prepared by the BVD, the internal security service of the Netherlands. The court stated, at paras 35 and 36 of its decision:

"The court recognises that the proper functioning of a democratic society based on the rule of law may call for institutions like the BVD which, in order to be effective, must operate in secret and be afforded the necessary protection. In this way a state may protect itself against the activities of individuals and groups attempting to undermine the basic values of a democratic society.

In view of the particular circumstances of the case and the actual terms of the decisions of the relevant courts, the interferences were unquestionably designed to protect national security, a legitimate aim under article 10(2)."

Therefore I consider that the restrictions imposed by sections 1 and 4 of the 1989 Act were imposed for a legitimate aim.

    99. As regards the second requirement, the judgments of the European Court have also established that a restriction which is necessary in a democratic society must be one which is required by a pressing social need and is proportionate to the legitimate aim pursued. On these issues the appellant advanced two principal arguments. One argument was that whilst there are many matters relating to the work of the Security Service which require to be kept secret in the interests of national security, there are other matters where there is no pressing need for secrecy and where the prohibition of disclosure and the sanction of criminal punishment are a disproportionate response. An example of such a matter would be where a political figure in the United Kingdom had been under surveillance for a period a considerable number of years ago. It was submitted that the disclosure of such information could not constitute any impairment of national security or hinder in any way the efficient working of the Security Service.

    100. I am unable to accept this submission. It has been recognised in decisions in this jurisdiction that the disclosure of any part of the work or activities of the Security Service by a member or past member would have a detrimental effect upon the Service and its members because it would impair the confidence of the members in each other and would also impair the confidence of those, whether informers or the intelligence services of other states, who would entrust secret information to the Security Service of the United Kingdom on the understanding and expectation that such information would never be revealed to the outside world. As Lord Nicholls of Birkenhead stated in Attorney General v Blake [2001] 1 AC 268, 287E:

"It is of paramount importance that members of the service should have complete confidence in all their dealings with each other, and that those recruited as informers should have the like confidence. Undermining the willingness of prospective informers to co-operate with the services, or undermining the morale and trust between members of the services when engaged on secret and dangerous operations, would jeopardise the effectiveness of the service. An absolute rule against disclosure, visible to all, makes good sense."

    101. Moreover the appellant's submission is advanced on the basis that it would be for the individual member or past member of the Security Service who wished to make public a particular piece of information to decide himself whether its disclosure would or would not be damaging to the work of the Service. But such a decision could not safely be left to that individual because he may not have a full appreciation of how that piece of information fits into a wider picture and of what effect the disclosure might have on other aspects of the work of the Service of which he is unaware or of which he lacks a full appreciation. Moreover there is the risk that on some occasions the individual making the decision may be motivated in varying degrees by desire for money or by spite or by some similar emotion.

    102. The second submission advanced by the appellant was that the restrictions contained in sections 1 and 4 of the 1989 Act were too wide and were therefore disproportionate because they prevented a member or past member of the Security Service from revealing to the public through the press or other sections of the media information that the Security Service had engaged in illegal activities or that its work was conducted in an incompetent and disorganised way. The appellant submitted that the disclosure of such matters was required in the public interest, because unless such matters were disclosed the public would be unable to demand that steps should be taken to stop such conduct and to ensure that the work of the service was lawfully and competently carried out.

    103. In answer to this submission the Crown made the reply that under section 7(3)(a) there are a considerable number of senior and responsible Crown servants to whom the appellant could have gone with his concerns and with a request that the conduct of which he complained should be investigated and that, if established, appropriate steps should be taken to punish it or to stop it. If he were concerned about unlawful activity he could have given information to the Attorney General, the Director of Public Prosecutions or the Commissioner of the Metropolitan Police. If he were concerned about incompetence or maladministration he could have brought his concerns to any one of the wide range of Crown servants, including Government ministers and senior civil servants who are listed in section 12(1) of the 1989 Act.

    104. The appellant's response to this reply by the Crown was that if members of the Security Service have deliberately carried out illegal actions (it may be with the approval of their superior officers) which they consider to be necessary to further the work of the Service it is probable that complaints to law enforcement officers or to senior civil servants or to a Government minister would not be acted upon or would be met by the eventual response that the activities complained of had been investigated and that no wrongdoing had been discovered. He also submitted that senior civil servants or ministers might be reluctant to investigate complaints of incompetence or maladministration.

    105. In my opinion these arguments should be rejected. In Klass v Federal Republic of Germany (1978) 2 EHRR 214, where the applicants claimed that surveillance of letters and telephone conversations constituted a violation of article 8, the State claimed that the surveillance was necessary in a democratic state in the interests of national security and for the prevention of disorder and crime, and that the administrative procedures in place were designed to ensure that surveillance was not ordered improperly. The applicants advanced the argument, similar to the argument advanced by the present appellant, that the safeguards were inadequate because they did not provide protection against dishonesty or negligence on the part of the supervising officials. The European Court rejected this submission stating, at para 59:

"Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of article 8(2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the court's present review are the likelihood of such action and the safeguards provided to protect against it.

The court has examined above (at paras 51 to 58) the contested legislation in the light, inter alia, of these considerations. The court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the court must assume that, in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue."

    106. In the present case there is no suggestion in the agreed statement of facts that the appellant sought to place his concerns before the Director General of the Security Service or before the Home Secretary or any other Crown servant. Therefore there is no evidence that the persons to whom the appellant could have made complaints would not have considered and, if necessary, investigated them in an honest and proper way and taken steps to remedy any wrongs revealed. Accordingly there is no basis for concluding that the safeguard provided by the ability to make such complaints are inadequate to protect the public interest. In my opinion the reasoning of Moses J, at para 54 of his judgment, was correct and fully in accordance with the judgment of the European Court in Klass [1978] 2 EHRR 214:

"I accept that, in general, a restriction on disclosure cannot be justified as being proportionate without regard to the public interest in the particular disclosure. However, that proposition must be considered in the context of the statutory scheme in the instant case. There is no blanket ban on disclosure by a former member of the Security services. Where a former member of a security service seeks to expose illegality or avert a risk of injury to persons or property, he is entitled to approach any Crown servant identified in section 12(1) of the OSA 1989 for the purposes of that Crown servant's functions (see section 7(3)). It is not therefore correct to say that a restriction is imposed irrespective of the public interest in disclosure. If there is a public interest in disclosure, it is, at the very least, not unreasonable to expect at least one of the very large number identified to recognise the public interest, if it is well founded, and to act upon it."

    107. Moreover, if complaints to Crown servants were to prove fruitless and the appellant considered that the public interest required that he should disclose the information in his possession about alleged wrongdoing or incompetence to the press or other sections of the media the Crown argued that he would have another course open to him. This would be to apply, pursuant to section 7(3)(b), for official authorisation to disclose the information to the public. If his complaints to official quarters had been fruitless and if official authorisation were not granted, the appellant could apply to the High Court for a judicial review of the refusal to give official authorisation.

    108. The appellant submitted that such an application would be fruitless. He argued that in order to present his case in an effective way to the High Court it would be necessary for him to make disclosure to his own lawyers and to the judge of the information which he wished to bring to the attention of the public, but the refusal of official authorisation (which was the subject matter of his complaint) would prevent such disclosure.