R v David Michael Shayler
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy |
| Judgment Date | 29 July 2003 |
| Neutral Citation | [2003] EWCA Crim 2218,[2001] EWCA Crim 1977 |
| Docket Number | Case No: 2002/6948/Z3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 2003 |
[2003] EWCA Crim 2218
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Mr Justice Cresswell and
Mr Justice Bennett
Case No: 2002/6948/Z3
Geoffrey Robertson QC for the applicant
This is a renewed application for leave to appeal against conviction, leave having been refused on paper by the single judge. Only grounds 1 to 3 of the Grounds of Appeal are now pursued, the remaining grounds having been abandoned, and, as Mr Geoffrey Robertson QC on behalf of the applicant explains in the first paragraph of his written submissions, the three grounds of appeal which remain can be combined into one general ground, namely –
"That the conviction is unsafe because the trial was conducted in breach of Article 6 of the European Convention on Human Rights, because the cumulative restrictions imposed upon the defendant deprived the proceedings of the character of an adversarial criminal trial and/or unfairly discriminated against him because he had chosen to defend himself."
It is clear from the surviving grounds of appeal and from the written submissions that we are concerned only with certain rulings made by the trial judge on the 8 th, 14 th and 30 th October 2002. There is no other criticism of the proceedings, and thus in this judgment we do not have to concern ourselves with, for example, the details of the evidence, or the content of the summing-up. But the background to the proceedings and to the rulings now being challenged is of some importance.
Background.
The applicant was a member of the Security Services between November 1991 and October 1996. At the outset of his service he signed an Official Secrets Act 1989 declaration acknowledging the confidential nature of documents and other information relating to security, intelligence, defence and 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. When initially employed he was trained in the secure handling of classified information. He worked in the vetting section first, carrying out checks for other government departments. He then joined the branch concerned with "counter-subversion" followed by the section responsible for countering Irish Republican terrorism. Lastly, he was posted to the section responsible for countering Middle Eastern terrorism, where he remained for two years until he resigned.
When he resigned he signed a further declaration under the 1989 Act acknowledging that the provisions of the Act continued to apply to him, and that the same requirements of confidentiality continued to apply to any information, documents, or other articles relating to security, intelligence, defence or international relations which might have come into his possession as a result of his previous employment.
By August 1997, without having alerted the Security Services of his intentions, the applicant was in contact with journalists from the Mail of Sunday, and was paid to write articles about his period of employment and to voice criticisms of the services. Thirty documents, including four classified as "top secret" and eighteen as "secret", with the balance being classified or unclassified, were handed to journalists of the Mail on Sunday. About two thirds of that documentation came from the Middle Eastern counter terrorism section, and the applicant was the author of about half of the documents.
On 23 rd August 1997 the applicant left the country and on the following day the Mail on Sunday published a series of articles by him. On 30 th August and 4 th September 1997 injunctions against the applicant and the publishers of the Mail on Sunday were granted to the Attorney General, to prevent further disclosures. The documents passed by the applicant to the newspaper were returned to the Treasury Solicitor in March 1998.
In August 2000 the applicant returned voluntarily from France and was arrested. He was not interviewed but did state that he was relying in his defence on his "right to freedom of expression as guaranteed by the common law, the Human Rights Act and Article 10 of the European Convention on Human Rights".
The indictment which he faced contained three counts, namely –
(1) Disclosure of documents, contrary to section 1(1) of the 1989 Act.
(2) Disclosure of information obtained by interception of communications, contrary to section 4(1) of the Act.
(3) Disclosure of information purporting to relate to security or intelligence contrary to section 1(1) of the Act.
The wording of count 3 was amended, but nothing now turns on that.
On 4 th November 2002 in the Central Criminal Court the applicant was convicted of all three offences, and received a sentence of six months imprisonment on each count concurrent.
Public Interest as a Defence?
The two statutory provisions relied upon in the indictment, so far as relevant, read as follows –
"1(1) a person who …. has been –
(a) a member of the security and intelligence services … is guilty of an offence if without lawful authority he discloses any information, 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 …
(2). The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.
4(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such."
Subsection (2) applies the section to information, documents and other articles which are not relevant for present purposes and section 4 continues –
"(3) this section also applies to –
(a) any information obtained by reason of the interception of any communication in obedience to a warrant …"
The trial judge held a preparatory hearing during which he ruled that (1) the defence of duress or necessity of circumstance was not open to the defendant, having been excluded by implication by the 1989 Act, nor (2) could the defendant argue at common law or as a result of the coming into force of the Human Rights Act 1998 that his disclosures were necessary in the public interest to avert damage to life or limb or serious damage to property. The Court of Appeal upheld both of the judge's rulings ( [2001] 1 WLR 2206). In the House of Lords the first ruling was said to be premature, but the second ruling was upheld ( [2003] 1 AC 247). Lord Bingham said at page 266 paragraph 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 House of Lords gave its decision on 21 st March 2002, and the trial judge, Moses J, then resumed control of the case as preparations were made for the trial which was arranged to take place in October and November 2002. That brings us to the period during which the rulings with which we are concerned were made. During the summer of 2002, as Mr Robertson told us, the appellant decided that he would represent himself. He continued to have the services of a solicitor to advise him, and of a member of the bar, Miss Holdsworth, to take a note. In relation to some matters he chose to instruct Mr Robertson or Miss Holdsworth to make representations on his behalf. Mr Robertson told us that it was because of the appellant's decision to represent himself that the prosecution decided to seek those orders made on 14 th October 2002 of which complaint is now made. But before we deal with those orders we look first at the ruling made on 8 th October 2002.
Certain witnesses to be screened and not named: Ruling of 8 th October 2002.
On 20 th September 2002 the Crown gave notice of an application made pursuant to section 8(4) of the Official Secrets Act 1920, section 11(4) of the 1989 Act and Rule 24A of the Crown Court Rules 1982 that "any part of the trial process which touches, or purports to touch, whether directly or indirectly, upon any sensitive operational techniques of the Security and Intelligence Services, and in particular upon their sources of information, including the identity of any officer, contact, or agent (to) be held in camera."
Section 8(4) of the 1920 Act enables the prosecution to apply for all or any portion of the public to be excluded during any...
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