R v David Michael Shayler

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE
Judgment Date21 Mar 2002
Neutral Citation[2002] UKHRR 603,[2002] UKHL 11

[2002] UKHL 11

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Hutton

Lord Hobhouse of Wood-borough

Lord Scott of Foscote

Regina
and
Shayler
(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

LORD BINGHAM OF CORNHILL

My Lords,

1

Mr David Shayler, the appellant, is a former member of the Security Service. He has been indicted on three counts charging him with unlawful disclosure of documents and information contrary to sections 1 and 4 of the Official Secrets Act 1989. Moses J, exercising a power conferred by section 29(1) of the Criminal Procedure and Investigations Act 1996, ordered that a preparatory hearing be held before him. At that hearing the judge ruled under section 31(3)(b) of that Act that no public interest defence was open to the appellant under those sections, which he held to be compatible with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The appellant appealed to the Court of Appeal (Criminal Division) against those rulings, and also questioned whether it had been appropriate for the judge to make rulings under the 1996 Act. The Court of Appeal held that the judge had been entitled to make rulings under the 1996 Act, and upheld his rulings both on the absence of a public interest defence and on the compatibility with article 10 of the European Convention of sections 1 and 4 of the Official Secrets Act 1989: [2001] 1 WLR 2206. The appellant now challenges these rulings of the judge and the Court of Appeal before the House. At the hearing of this appeal the House had the benefit of submissions on behalf of media interests and the Home Secretary.

The facts

2

The appellant faces trial on indictment and his right to a fair trial must of course be protected. No evidence has yet been called and no facts proved. In summarising the facts giving rise to the appeal it is appropriate to rely very heavily on the statement of facts agreed between the parties.

3

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. He made a written declaration that he had surrendered any and all information in material form (whether classified or not) made or acquired by him owing to his official position, save such as he had the written authority of the service to retain.

4

Before August 1997, the appellant disclosed a number of documents to journalists from The Mail on Sunday. Some 29 different documents were later returned by the newspaper to the Treasury Solicitor in March 1998. Most of them appeared to relate to security and intelligence matters and were classified at levels ranging from "Classified" up to and including "Top Secret". The prosecution allege that certain of the documents included material obtained by or relating to the interception of communications in obedience to warrants issued under section 2 of the Interception of Communications Act 1985.

5

On 24 August 1997, The Mail on Sunday published an article written by the appellant himself (according to the by-line) and a number of other articles by journalists purporting to be based on information disclosed by the appellant. The prosecution allege that the appellant was paid a substantial sum of money by the newspaper for these activities. The prosecution also allege that the information contained in and referred to in the articles relates to matters of security and intelligence to which the appellant could only have had access by reason of his employment with the service.

6

Just before the articles were published, the appellant left the country and a subsequent attempt to extradite him from France failed. He returned on 21 August 2000 and was arrested on his arrival at Dover. He was cautioned and made no reply. He was not interviewed at any stage, but was taken to London and charged at Charing Cross Police Station that same afternoon. In reply to the charge he said:

"I have been living in Paris for three years and I have decided voluntarily to return to Britain to face charges under the Official Secrets Act. I have done this to clear my name and to allow a jury of 12 of my fellow citizens to judge me. I have also returned to challenge the cover-ups and complacency that have followed my disclosures. I admit that as an officer of the Security Service, I was a Crown Servant from November 1991 to October 1996. However, I do not admit making any disclosures which were contrary to the criminal law. Any disclosures made by me were in the public and national interests. In my defence I will rely on my right of freedom of expression as guaranteed by the common law, the Human Rights Act and Article 10 of the European Convention on Human Rights."

7

The first count in the indictment against the appellant alleges that, on or before 24 August 1997, being a person who had been a member of the security and intelligence services, he disclosed documents relating to security or intelligence without lawful authority contrary to section 1(1) of the OSA 1989. The second count alleges that, on or before 24 August 1997, being a person who had been a crown servant, he without lawful authority disclosed information obtained by reason of warrants issued under the Interception of Communications Act 1985, contrary to section 4(1) of the OSA 1989. The third count alleges that on 24 August 1997, being a person who had been a member of the security and intelligence services, he without lawful authority disclosed information relating to security or intelligence, contrary to section 1(1) of the OSA 1989. The appellant has pleaded not guilty to these charges.

8

At the preparatory hearing before the judge the first issue was whether, in law, the appellant would be entitled to be acquitted of the charges against him if (as he asserted on his arrest) his disclosures had (or, one should add, might have) been made in the public and national interest. In his judgment Moses J referred to the assertion made by the appellant on his arrest and quoted the written submission made on the appellant's behalf:

"Any disclosures made by him were intended to draw attention to the illegal, unlawful and inefficient workings of the security and intelligence services, which, on occasion risked, and continued to risk, life and limb."

The judge, at para 4, recorded the appellant as seeking

"to contend that his disclosures were necessary to expose serious illegality by the security and intelligence services, and, in particular such disclosure was necessary to avert threat to life or limb or serious damage to property."

The judge's conclusion expressed at the end of his judgment, was unequivocal:

"Section 1(1) and section 4 of the Official Secrets Act 1989 do not permit a defendant to raise a defence that his disclosure was necessary in the public interest to avert damage to life or limb or serious damage to property."

The judge developed at some length his reasons for holding that the sections as so construed were not incompatible with article 10 and at paragraph 82 of his judgment, under the heading "Extending the common law" said:

"Were I to have concluded that the absence of any public interest offence is incompatible with the Convention, Mr Fitzgerald QC's argument that the common law principle of necessity should be developed in the light of Article 10 seems to me to afford a more fruitful basis for the courts to permit such a defence"

He then went on to consider the common law defences of necessity and duress of circumstances. He was prepared to accept that a conventional defence of duress was in theory open to a former member of the service, but could not accept that a defence of necessity or duress of circumstances was open. The Court of Appeal took a different legal view on this 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 appellant on the facts.

The Official Secrets Act 1989

9

Section 2 of the Official Secrets Act 1911, enacted in great haste, was the subject of sustained criticism over many years. Its excessive scope had proved an obstacle to its effective enforcement. For this reason, and in fulfilment of a pledge to get rid of unnecessary secrecy, a departmental committee under the distinguished chairmanship of Lord Franks was established in 1971 to consider and recommend an effective and enforceable alternative. The committee reported in 1972 (Cmnd 5104). The committee recognised in paragraph 1

"the concern of democratic governments to see that information is widely diffused, for this enables citizens to play a part in controlling their common affairs. There is an inevitable tension between the democratic requirement of openness, and the continuing need to keep some matters secret"

The committee went on to observe on pp...

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