22 March 2002: See the court's full judgment:

http://cryptome.org/hmg-v-shayler4.htm

22 March 2002. Thanks to DR.
Source: http://www.thetimes.co.uk/article/0,,12-243659,00.html

The Times (UK)

March 22, 2002

Public interest defence not available in secrets prosecution

HOUSE OF LORDS

Regina v Shayler

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote

Speeches March 21, 2002

A former member of the Security Service who was prosecuted under the Official Secrets Act 1989 for unauthorised disclosure of information and documents which he had acquired by virtue of his position as a member of the service was not entitled to rely on the defence that the disclosure was made in the public or national interest.

The provisions of the 1989 Act which restricted members and former members of the Security Service and Secret Intelligence Service from disclosing such information did not contravene their right to freedom of expression guaranteed by article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The House of Lords so held, dismissing an appeal by the defendant, David Michael Shayler, from the dismissal by the Court of Appeal (Lord Woolf, Chief Justice, Mr Justice Wright and Mr Justice Leveson) (The Times October 10 2001; (2001) 1 WLR 2206) of his appeal from a decision dated May 16, 2001 of Mr Justice Moses who, in the course of a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, ruled that he was not entitled, on charges under the

1989 Act, to raise the defence that the disclosure, without lawful authority, of documents relating to security and intelligence, was necessary in the public interest.

Mr Geoffrey Robertson, QC, who did not appear below, and Mr Keir Starmer for Mr Shayler; Mr Michael Tugendhat, QC and Miss Sapna Jethani for The Times, The Sunday Times, The Observer, The Guardian, The Mirror, Sunday People, The Mail on Sunday, The Independent, The Independent on Sunday, Channel 4, Channel 5 and the Newspaper Society, intervening; Mr Nigel Sweeney, QC, Mr Jason Coppel and Mr Jonathan Laidlaw for the Crown; Mr Jonathan Crow for the Home Secretary.

LORD BINGHAM said that the defendant was a member of the Security Service from November 1991 to October 1996.

At the outset of his service he signed a declaration acknowledging the confidential nature of documents and other information relating to security and intelligence, defence or international relations that might come into his possession, and that he was under a contractual obligation not to disclose, without lawful authority, any information that came into his possession by virtue of his employment.

On leaving the service he signed a further acknowledgement that the same requirements of confidentiality continued to apply. He made a written declaration that he had surrendered all information, whether classified or not, made or acquired by him owing to his official position.

Before August 1997 he disclosed at least 29 different documents to journalists from The Mail on Sunday, most of which appeared to relate to security and intelligence matters at levels ranging from "Classified" up to and including "Top Secret".

On August 24, 1997 The Mail on Sunday published an article written by the defendant himself and several articles by other journalists purporting to be based on information disclosed by the defendant.

The prosecution alleged that the defendant was paid a substantial sum of money by the newspaper and that the information in the articles related to matters to which he could only have had access by reason of his employment with the Security Service.

At the preparatory hearing the first issue was whether, in law the defendant would be entitled to be acquitted of the charges if, as he asserted on his arrest, the disclosures had, or might have been made in the public and national interest.

The judge, having concluded that the defence was not available to the defendant, went on to consider the common law defences of necessity and duress of circumstances, and accepted that a conventional defence of duress was in theory open to a former member of the service, but could not accept that a a defence of necessity or duress of circumstances was open.

The Court of Appeal took a different legal view on the latter issue, to which much of its judgment was directed, but it was of the opinion that there was no material before the court to suggest that a defence of necessity or duress of circumstances was open to the defendant on the facts.

Section 29(1) of the 1996 Act conferred powers on a crown court judge to order a preparatory hearing where it appeared to him that an indictment revealed a case of such complexity, or a case whose trial was likely to be of such length, that substantial benefits were likely to accrue from a preparatory hearing so as to expedite the proceedings before the jury.

In such cases the procedure could be highly beneficial. The process of disclosure could be conducted and the marshalling of evidence prepared with direct reference to the live issues in the case.

Jurors and witnesses could be spared hours or days of frustrating inaction while issues of law were argued in their absence.

If there was an issue on the proper interpretation of a section or the correct directions to be given to the jury, it might be better to resolve the question sooner rather than later.

The judge's decision to order a preparatory hearing in this case was entirely sound. The test of complexity was comfortably satisfied, and the likely length of the trial in large measure depended on how the main legal issue was resolved.

It was however important to stress that the judge's power under section 31(1)(b) of the 1996 Act was limited to ruling on questions of law "relating to the case". That limitation must be strictly observed.

The issues of law before the judge in this case were whether the sections under which the defendant was charged, on a proper construction, afforded him a public interest defence; whether if not, those sections were compatible with article 10 of the Human Rights Convention; and whether, if they were not, they could or should be read conformably with the Convention or a declaration of incompatibility made.

The defendant's case before the judge did not raise any question of necessity or duress of circumstances. It was a little unfortunate that the judge ventured into that vexed and uncertain territory not "relating to the case", and that the Court of Appeal followed him into it.

His Lordship was not to be taken to accept all that the Court of Appeal said on those difficult topics, but in his opinion it was unnecessary to explore them in this case.

The defendant's case, put very broadly, was 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 those 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.

That omnibus contention might or might not afford him a defence under the 1989 Act, depending on whether a public interest defence was available, but it was not within measurable distance of affording him a defence of necessity or duress of circumstances.

In his Lordship's opinion it was plain, giving sections 1(1)(a) and 4(1) and (3)(a) of the 1989 Act their natural and ordinary meaning, and reading them in the context of that Act as a whole, that a defendant prosecuted under those sections was not entitled to be acquitted if he showed 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 concluded that it might have been or that the defendant might have believed it to be in the public or national interest to make the disclosure in question.

The sections imposed no obligation on the prosecution to prove that the disclosure was not in the public interest and gave the defendant no opportunity to show that the disclosure was in the public interest or that he thought it was. The sections left no room for doubt and the intention of Parliament was clear beyond argument.

Despite the high importance attached to it, the right to freedom of expression was never regarded in domestic law as absolute.

Publication could render a party liable to civil or criminal penalties or restraints on several grounds including libel, breach of confidence, incitement to racial hatred, blasphemy and disclosure of official secrets.

The Human Rights Convention similarly recognised that the right was not absolute and the broad language of article 10.1 which guaranteed the right to freedom of expression was qualified by article 10.2 which provided that the exercise of the right was subject to restrictions "as are presecribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, ... for preventing the disclosure of information received in confidence..." It was plain from the language of article 10.2, and the European Court of Human Rights had repeatedly held, that any restriction on freedom of expression could be consistent with article 10.2 only if it was prescribed by law, was directed to one or more of the objectives specified in the article and was shown by the state concerned to be necessary in a democratic society.

"Necessary" had been strongly interpreted. It was not synonymous with "indespensible" neither had it the flexibility of expressions such as "admissible", "ordinary", "useful", "reasonable", or "desirable".

One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it were relevant and sufficient under article 10(2).

In the present case, there could be no doubt that the sections under which the defendant had been prosecuted restricted his prima facie right to freedom of expression.

There could equally be no doubt that the restriction was directed to objectives specified in article 10.2.

The restriction on disclosure was prescribed with complete clarity.

A member or former member of the 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 refer the request to higher authority.

It was common ground that the restriction was prescribed by law. It was on the question of necessity, pressing social need and proportionality that the real issue between the parties arose.

There was much domestic authority pointing to the need for a security or intelligence service to be secure. The commodity in which such a service dealt was secret information.

If the service was not secure those working against the interests of the state, whether terrorists, other criminals or foreign agents, would be alerted and able to take evasive action.

The service's own agents might be unmasked; members of the service would feel unable to rely on each other; those upon whom the service relied as sources of information would feel unable to rely on their identity remaining secret; and foreign countries would decline to entrust their own secrets to an insecure recipient.

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, had been recognised by the European Commission and Court in relation to complaints made under article 10 and other articles under the Convention.

The thrust of those decisions and judgments had not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction did not exceed what was necessary to achieve the end in question.

The acid test was whether, in all the circumstances, the interference with the individual's convention right as prescribed by national law was greater than was required to meet the legitimate object which the state sought to achieve.

The 1989 Act imposed a ban on disclosure of information or documents relating to security or intelligence by a former member of the service.

But it was not an absolute ban. It was a ban on disclosure without lawful authority. It was open to a former member of the service to seek authorisation.

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.

One would also 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. In that situation the former member was entitled to seek judicial review of the decision to refuse, a course which the 1989 Act did not seek to inhibit.

In any application for judicial review alleging a violation of a Convention right the court would conduct a much more rigorous and intrusive review than was once thought to be permissible.

The defendant contended that judicial review was in practice an unavailable means since private lawyers were not among those to whom disclosure could lawfully be made and a former member of the service could not be expected to initiate proceedings for judicial review without legal advice and assistance.

His Lordship accepted that the right to a fair hearing guaranteed by article 6.1 of the Convention must ordinarily carry with it the right to seek legal advice and assistance from a lawyer outside the government service.

But that was a matter to be resolved by seeking official authorisation. The service would, at that stage,depending on the nature of the material sought to be disclosed, be fully entitled to limit its authorisation to material in a redacted or anonymised or schematic form, to be specified by the service.

Circumstances could not be envisaged in which it would be proper for the service to refuse its authorisation for any disclosure at all to a qualified lawyer from whom the former member wished to seek advice.

If it became necessary for the court to examine material said to be too sensitive to be disclosed to the former member's legal advisers, special arrangements could be made for the appointment of counsel to represent the member's interests.

The special position of those employed in the security and intelligence services, and the special nature of their work imposed duties and responsibilities on them within the meaning of article 10.2.

If a person who had given a binding undertaking of confidentiality sought to be relieved, even in part, from that undertaking he must seek authorisation and, if so advised, challenge any refusal. If that refusal was upheld by the courts, it must, however reluctantly, be accepted.

Sections 1(1) and 4(1) and (3) of the 1989 Act were compatible with article 10 of the Convention.

Submissions had been made on behalf of the press but this appeal called for decision of no issue directly affecting them and it would be undesirable to attempt to give guidance in the context of this appeal.

Lord Hope and Lord Hutton delivered concurring opinions; Lord Hobhouse agreed with Lord Bingham; Lord Scott agreed with Lord Bingham, Lord Hope and Lord Hutton.

Solicitors: Liberty and Birnberg Peirce & Partners; Mr Alastair Brett, Wapping; Crown Prosecution Service, Ludgate Hill; Treasury Solicitor.