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Members of the Security Services
A person who is or has been a member of the security and intelligence services, or a person notified that he or she is subject to the provisions of the 1989 Act, is guilty of an offence if, without lawful authority, he or she discloses any information, document or other article relating to security or intelligence which has been in his or her possession by virtue of his or her position as a member of the security and intelligence services or in the course of his or her work. There is no requirement that the disclosure should be damaging or have harmed the State.
A person who is or has been a Crown servant or government contractor is guilty of an offence if, without lawful authority, he or she makes a ‘damaging disclosure’ of any information, document or other article relating to:
Under the 1989 Act, a person who is or has been a Crown servant or government contractor, is guilty of an offence if, without lawful authority, he or she discloses any information, document or other article, the disclosure of which:
The 1989 Act also restricts the activities of Crown servants or government contractors, but it also extends to others including journalists. It is an offence to disclose without lawful authority any information, document or other article protected by disclosure under the 1989 Act which has been disclosed to him or her by a Crown servant or government contractor without lawful authority, or entrusted to him or her by a Crown servant or government contractor in confidence.
It must also be proved that the disclosure was damaging, the defendant disclosed the information knowing, or having reasonable cause to believe, that it would be damaging, and he or she disclosed the information knowing, or having reasonable cause to believe, that it was protected against disclosure by the 1989 Act and that it had come into his or her possession as a result of an unauthorised disclosure.
None of these offences provides for a defence of public interest or moral duty.
In 2001, during the trial of the ex-MI5 agent David Shayler, the Court of Appeal held that the defence of duress or necessity was available under the 1989 Act when a defendant committed an otherwise criminal act to avoid an imminent peril of danger to life or serious injury. In 2002 the House of Lords held that a defendant prosecuted under the 1989 Act was not entitled to be acquitted if he or she showed that it was, or that he or she believed that it was, in the public or national interest to the make the disclosure in question.
More recently, charges brought under Section 1 of the 1989 Act against former GCHQ employee Katharine Gun were dropped after the Crown Prosecution Service (CPS) offered no evidence against her. Ms Gun had been charged after she had disclosed to The Observer newspaper that the United States had asked the United Kingdom to spy on other members of the United Nations Security Council prior to the Iraq war in 2003. She admitted that she had made the disclosure, but offered the defence of necessity on the basis that she had been obliged to act in order to prevent an illegal war in which many soldiers and civilians would die. While the defence was never tried in court, the CPS said that the case against Ms Gun was dropped due to insufficient evidence, suggesting that her claim of necessity was taken seriously by those prosecuting.
A person who is or has been a Crown servant or government contractor is guilty of an offence if, without lawful authority, he or she makes a ‘damaging disclosure’ of any information, document or other article relating to:
- Security or intelligence
- Defence.
- International relations.
Under the 1989 Act, a person who is or has been a Crown servant or government contractor, is guilty of an offence if, without lawful authority, he or she discloses any information, document or other article, the disclosure of which:
- Results in the commission of an offence.
- Facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody.
- Impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders.
The 1989 Act also restricts the activities of Crown servants or government contractors, but it also extends to others including journalists. It is an offence to disclose without lawful authority any information, document or other article protected by disclosure under the 1989 Act which has been disclosed to him or her by a Crown servant or government contractor without lawful authority, or entrusted to him or her by a Crown servant or government contractor in confidence.
It must also be proved that the disclosure was damaging, the defendant disclosed the information knowing, or having reasonable cause to believe, that it would be damaging, and he or she disclosed the information knowing, or having reasonable cause to believe, that it was protected against disclosure by the 1989 Act and that it had come into his or her possession as a result of an unauthorised disclosure.
None of these offences provides for a defence of public interest or moral duty.
In 2001, during the trial of the ex-MI5 agent David Shayler, the Court of Appeal held that the defence of duress or necessity was available under the 1989 Act when a defendant committed an otherwise criminal act to avoid an imminent peril of danger to life or serious injury. In 2002 the House of Lords held that a defendant prosecuted under the 1989 Act was not entitled to be acquitted if he or she showed that it was, or that he or she believed that it was, in the public or national interest to the make the disclosure in question.
More recently, charges brought under Section 1 of the 1989 Act against former GCHQ employee Katharine Gun were dropped after the Crown Prosecution Service (CPS) offered no evidence against her. Ms Gun had been charged after she had disclosed to The Observer newspaper that the United States had asked the United Kingdom to spy on other members of the United Nations Security Council prior to the Iraq war in 2003. She admitted that she had made the disclosure, but offered the defence of necessity on the basis that she had been obliged to act in order to prevent an illegal war in which many soldiers and civilians would die. While the defence was never tried in court, the CPS said that the case against Ms Gun was dropped due to insufficient evidence, suggesting that her claim of necessity was taken seriously by those prosecuting.
