29 September 2001. Thanks to Owen Boswarva.
THE HON. MR JUSTICE WRIGHT
THE HON. MR JUSTICE LEVESON
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL
CORRECTIONS)
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This is the judgment of the Court, on an appeal by David Michael Shayler
from a judgment of Moses J. which was given after a preparatory case management
hearing under section 29 of the Criminal Procedure and Investigations Act
1996 ("a section 29 hearing") in relation to his forth coming trial on three
counts charging offences under the Official Secrets Act 1989 ("the OSA").
The first and third counts allege that as a former member of the Security
and Intelligence Services ("the Services") he disclosed documents relating
to security or intelligence without lawful authority contrary to section
1(1) of the OSA. The second count alleges that he disclosed information obtained
under warrants issued under the Interception of Communications Act 1985 ("the
IOCA").
-
The appeal raises a number of issues of importance which we would identify
as follows:
-
Whether the offences with which Mr Shayler is charged are offences that are
subject to a defence of duress or necessity of circumstances and, if so,
whether that defence is capable of applying to the type of situation which
Mr Shayler has, so far indicated he relies upon as justifying the disclosure
which he made. (The Defences of Duress and Necessity
Issue)
-
Whether those offences are not committed if, or are subject to a defence
that:
-
the disclosure was necessary in the public interest to avert damage to life
or limb or serious damage to property or
-
to expose serious and pervasive illegality or iniquity in the obtaining of
warrants and surveillance of suspected persons either at common law or as
a result of the coming into force of the Human Rights Act 1998 ("the HRA").
(The Freedom of Expression Issue)
-
The circumstances in which it is appropriate for a judge to make rulings
on a Section 29 hearing which will define the issues which can be the subject
of evidence at a forthcoming trial. (The Section 29 Hearing Issue)
-
The position of the media when the disclosure, which is relied upon as amounting
to offences, is made to the press, as is the case with offences with which
Mr Shayler is charged. (The Press Issue)
-
In relation to fourth issue which we have identified we allowed seven national
newspapers to intervene in the proceedings and received written and oral
submissions which we found extremely helpful from Mr Tughandat Q. C.
on behalf of the press. The press are particularly concerned that if the
offences with which Mr Shayler is charged are as absolute as the prosecution
contend, this could affect their freedom to obtain information which is of
public interest and even could result in their members being charged with
being parties to the crimes with which Mr Shayler has been charged.
THE BACKGROUND
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Mr Shayler was a member of the Security Service ("MI5") from November 1991
to October 1996. At the outset of his service he signed an 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.
-
By about August 1997 Mr Shayler was in contact with journalists from The
Mail on Sunday newspaper. It appears that he handed over to the newspaper
a collection of documents that had been removed from the Service. Some 30
different documents were returned by the newspaper to the Treasury Solicitor
in March 1998; the bulk of them appeared to relate to security or intelligence
matters and were classified at levels ranging from "classified" up to and
including "Top Secret". Certain of the documents included material obtained
by or relating to the interception of communications in obedience to warrants
issued by the Secretary of State under section 2 of the IOCA.
-
On the 24th August 1997, the Mail on Sunday published an article written
by Mr Shayler himself (according to the by-line) and a number of other
articles by journalists purporting to be based upon information given by
him. For these activities he was paid a substantial sum of money by the Mail.
The prosecution contends that the information contained in and referred to
in such articles relate to matters of security and intelligence about which
the defendant could only have had access by reason of his employment with
the service.
-
On the day before these articles were published, the defendant left this
country for Holland. On 21st August 2000 Mr Shayler voluntarily returned
from France and was arrested on his arrival in this country 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 and said in reply –
"I have been living in Paris for 3 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 made 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."
-
Mr Fitzgerald QC who represents Mr Shayler criticises the suggested failure
of the police to interview Mr Shayler. However, it is not clear to us what
could have been achieved by following such a course. Mr Shayler's
explanation and alleged justification for what he had done was set out in
extenso in the newspaper articles of which complaint is made. Further, in
the circumstances of this case it is at least arguable that no such interview
could or should properly have taken place, in the light of paragraph 16.1
of code C of the Codes of Practice. The police, at the material time, plainly
had in their possession sufficient evidence to prosecute Mr Shayler and that
evidence at least was sufficient for a prosecution to succeed.
-
On the 16th May 2001, in the course of a preparatory hearing under section
29 of the 1996 Act, Moses J, the nominated trial judge ruled:-
-
Section 1(1) and section 4 of the OSA do not permit a defendant to raise
a defence that his disclosure was necessary in the public interest to avert
a threat to life or limb or serious damage to property.
-
The legislation does permit disclosure which may be in the public interest
either to those identified in section 12(1) of the OSA or disclosure to others
with the authority of those so identified.
-
A refusal of authority may be challenged in a court exercising the jurisdiction
of judicial review.
-
The imposition of criminal sanctions in support of the restrictions contained
in section 1(1) and section 4(1), without the possibility of raising such
a defence, are necessary in a democratic society. They are no wider than
necessary to achieve the legitimate aim of protecting national security.
They are not disproportionate. The reasons advanced by the prosecution
convincingly establish relevant and sufficient justification for the restriction.
-
In those circumstances the provisions of section 1(1) and 4(1) are compatible
with Article 10 of the ECHR.
-
Moses J also ruled that while the offences were subject to the common law
defence of duress in its original limited form, the development of the defence
to cover necessity of circumstance is excluded by the OSA.
-
Moses J ruled that all that the prosecution is required to prove to obtain
a conviction in the present case is:-
-
That the defendant has been a member of the security and intelligence
services;
-
That he disclosed documents relating to security or intelligence which were
in his possession by virtue of his position as a member of those services
(Count 1) or information obtained by reason of warrants issued under section
2 of the IOCA (Count 2) or information relating to security or intelligence
which was in his possession by virtue of his position as a member of those
services (Count 3)
-
That he made such disclosure without lawful authority.
-
If this ruling stands it appears probable there will be no disputes of facts
which a jury will have to resolve before finding Mr Shayler guilty and it
is against that ruling that the defendant now appeals.
THE OSA
-
Central to the issues on this appeal are the terms of the OSA. Moses J, in
his detailed and admirably clear and thorough judgment, recognised that the
interpretation of those terms was illuminated by the legislative history
of the OSA. For a prolonged period of time prior to 1989 there had been sustained
criticism of the extremely broad or "catch all" terms of section 2 of the
OSA. The OSA left intact section 1 of the 1911 Act which made it an extremely
serious offence to perform an act for any purpose prejudicial to the safety
or interests of the State, but replaced section 2. There was active debate
as to what would be the appropriate replacement. The primary problem was
how to achieve the needs of national security without unnecessarily restricting
freedom of information.
-
The White Paper which preceded the OSA made it clear that it should be an
objective of the proposed replacement to clearly define the circumstances
in which the disclosure of information "needs to be criminal". No one should
be in doubt as to the position. In addition, the law should be able to be
enforced without an undue burden being placed on the prosecution or defence
(paragraph 14 and 26 of the judgment).
-
A distinction was proposed between information disclosed by members and former
members of the security services and information disclosed by others. The
White Paper indicates the then government's belief that all disclosure by
members of those services is harmful unless the disclosure is authorised.
The qualification, as to authorisation, was a critical part of the proposal.
Without the qualification the restriction would be draconian. If there was
an adequate system of authorisation this means that the extent of the restriction
would be more acceptable.
-
There are reasons which justify singling out members and former members of
those services. They include the need for the members of those services to
be able to communicate freely among themselves, the facts that disclosure
by them has an increased credibility because it is made by such members and
that disclosure would breach the obligations which they undertake on becoming
members of the services, the difficulty for the government in challenging
the accuracy of the disclosure, the problems which could arise in prosecuting
offences, if the prosecution was required to prove the damaging nature of
the disclosure (because it could involve revealing more sensitive information
than the offences had revealed) which could make some offences not capable
of being prosecuted.
-
By contrast to the position in relation to members and former members of
the secret and intelligence services, in the case of other Crown servants
and contractors it was accepted there was a need to show that the information
alleged to have been disclosed would or was likely to cause damage. It would
be sufficient if the information was of a class or description, the disclosure
of which was likely to cause damage.
-
The White Paper firmly rejected a possible defence that the disclosure was
in the public interest. Among the objections to such a defence was the fact
that it would interfere with the clarity of the legislation proposed. During
its passage through Parliament an amendment to the bill inserting a public
interest defence was defeated.
-
The terms of section 1 of the OSA are important and are as follows:
"1(1) a person who is or has been -
(a) a member of the Security and Intelligence Services; or
(b) a person notified that he is subject to the provisions of this sub-section,
is guilty of an offence if without lawful authority he discloses any information,
document or other article 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 or in the course of his work while the notification is or
was in force.
[The criteria for notification include close and regular contact lending
to intimate knowledge of the work and structure of the services (28 Jan 1989
HC OR Col 1128-29)]
(2) the reference in sub-section (1) above to disclosing information relating
to security or intelligence includes a reference to making any statement
that 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.
(3) a person who is or has been a Crown servant or Government contractor,
is guilty of an offence if without lawful authority he makes a damaging
disclosure of any information, document or other article relating to security
or intelligence which is or has been in his possession by virtue of his position
as such, but otherwise than is mentioned in sub-section (1) above.
(4) for the purposes of sub-section 3 above, a disclosure is damaging if
-
(a) it causes damage to the work of, or any part of, the security and
intelligence services or
(b) it is of information or a document or other article which is such that
its unauthorised disclosure would be likely to cause such damage or which
falls within a class or description of information, documents or articles,
the unauthorised disclosure of which would be likely to have that effect.
(5) it is a defence for a person charged with an offence under this section
to prove that at the time of the alleged offence he did not know, and had
no reasonable cause to believe, that the information, documents or articles
in question related to security or intelligence or in the case of an offence
under sub-section (3), that the disclosure would be damaging with the meaning
of that sub-section.
............
(9) In this section "security or intelligence" means the work of, or in support
of, the security and intelligence services or any part of them and references
to information relating to security or intelligence, include references to
information held or transmitted by those services or by persons in support
of, or of any part of, them."
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Section 4 has the rubric "Crime and Special Investigation Powers". It
provides:-
"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.
(2) This section applies to any information, document or other article -
the disclosure of which -
(i) results in the commission of an offence; or
(ii) facilitates an escape from legal custody; or
(iii) impedes the prevention or detection of offences or the apprehension
or prosecution of suspected offenders; or
(b) which is such that its unauthorised disclosure would be likely to have
any of those effects.
(3) This section also applies to: -
(a) any information obtained by reason of the interception of any communication
in obedience to a warrant issued under section 2 of the Interception of
Communications Act 1985, any information relating to the obtaining of information
by reason of any such interception and any document or other article which
is or has been used or held for use in, or has been obtained by reason of,
any such interception and
(b) any information obtained by reason of action authorised by a warrant
issued under section 3 of the Security Service Act 1989.....
(4) It is a defence for a person charged with an offence under this section
in respect of a disclosure falling within sub-section (2)(a) above to prove
that at the time of the alleged offence, he did not know, and had no reasonable
case to believe, that the disclosure would have any of the effects there
mentioned.
(5) It is a defence for a person charged with an offence under this section,
in respect of any other disclosure to prove that at the time of the alleged
offence, he did not know, and had no reasonable cause to believe, that the
information, document or article in question was information or a document
or article to which this section applies. "
-
Section 7 has the rubric "authorised disclosures". It provides:-
"7(1) for the purposes of this Act, a disclosure by -
(a) a Crown servant; or
(b) a person not being a Crown servant or Government contractor in whose
case a notification for the purposes of section 1(1) above is in force,
is made with lawful authority if, and only if, it is made in accordance with
his official duty.
................
(3) For the purposes of this Act, a disclosure made by any other person 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.
(4) It is a defence for a person charged with an offence under any of the
foregoing provisions of this Act to prove that at the time of the alleged
offence he believed that he had lawful authority to make the disclosure in
question and had no reason or cause to believe otherwise.
(5) In this section "official authorisation" and "official restriction" mean,
subject to sub-section (6) below, an authorisation or restriction duly given
or imposed by a Crown servant or Government contractor or by or on behalf
of prescribed body or a body of a prescribed class."
-
Section 12 contains the definition of Crown Servant. Section 12(1)
provides:-
"12(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....;
(c) any person employed in the Civil Service of the Crown....
(d) any member of a Naval, Military or Air Forces of the Crown.....
(e) any Constable and any other person employed or appointed in or for the
purposes of any police force.....
(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 the prescribed class of members of 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 9 requires a prosecution for the offences with which Mr Shayler is
charged to be brought with the consent of the Attorney General. This requirement
provides a protection for a defendant since the decision to give or decline
his consent is taken by the Attorney General in his role as the guardian
of the public interest and not in his role as legal advisor to the government.
If the AG gave his consent in a case in which it was perverse to do so this
decision, today, would probably be reviewable on an application for judicial
review. This is notwithstanding the decision to the contrary by the House
of Lords in Gouriet v Union of Post Office Workers [1978] AC 435.
(The point was conceded by counsel for Mr Gouriet)
AUTHORISING DISCLOSURE
-
We have drawn attention already to the importance of the fact that it is
unauthorised disclosure with which Mr Shayler is charged. Mr Shayler
does not accept that there are effective steps which he could have taken
by making complaints through official channels to ensure that action would,
in turn, be taken to address his concerns or result in his being authorised
to make the extensive disclosures which he did to the press. (Being realistic
there must be doubt as to whether authority would ever have been forthcoming
to make the disclosures which were made to the press.) However, that there
were channels for his complaints is not in dispute.
-
Thus, as Moses J observed, a former member of the Services is entitled to
make disclosure to a Crown servant for the purposes of his functions as such.
Furthermore, as he went on to say:
"The Act permits not only disclosure to those identified by section
12(1) but also authorisation by those identified to make disclosure
to others ("Official authorisation: see section 7(3)(b) and section 7(5)).
Where a former member of the Security Services seeks to make a disclosure
to those other than those identified in section 12, he may seek official
authorisation which may be given by any of those identified as Crown Servants
under section 12. "
-
Moses J went on to consider what relief would be available in the event that
authorisation was declined by, for example, a Minister of the Crown. Before
analysing that issue, however, it is important to identify to whom such
disclosures might be made and, given Mr Shaylers's stated concerns that those
responsible for impropriety or illegality will cover their tracks and mislead
any investigator, the status of such persons. Quite apart from Ministers
of the Crown, civil servants and police officers (to whom disclosure can
be made without authority but who are all thought, whether justifiably or
not, to be either involved in impropriety – police officers – or
capable of being misled – Ministers and civil servants), there are others
who have a legitimate (and statutorily justifiable) interest in these matters
whose independence of mind and gullibility is not challenged by Mr Shayler.
-
A provision for supervision and oversight was provided by the IOCA following
the decision of the European Court of Human Rights ("ECtHR") in Malone
v UK (1984) 7 EHRR 14 which criticised the lack of a clear statutory
framework within which telephone tapping could take place. We return to this
legislation below; it is more appropriate however, to analyse the Security
Services Act 1989 ("the SSA") which received Royal Assent on 27th
April 1989 two weeks before the OSA (on 11th May 1989). Given
that these Acts were proceeding in tandem, the checks and balances in the
former must have been apparent when consideration was given to the latter.
The SSA places the Security Service on a statutory footing identifying the
functions of the service (section 1 of the Act) and providing for the appointment
of a Director General responsible for controlling operations (section 2).
It then deals in some detail with the grant and review of warrants (as to
which Mr Shayler makes serious allegations). Although later amended
by the Intelligence Services Act 1994 ("the ISA"), we set out the original
provisions which were as follows:
3. -(1) No entry on or interference with property shall be unlawful
if it is authorised by a warrant issued by the Secretary of State under this
section.
(2) The Secretary of State may on an application made by the Service issue
a warrant under this section authorising the taking of such action as is
specified in the warrant in respect of any property so specified if the Secretary
of State -
(a) thinks it necessary for the action to be taken in order to obtain information
which -
(i) is likely to be of substantial value in assisting the Service to discharge
any of its functions; and
(ii) cannot reasonably be obtained by other means; and
(b) is satisfied that satisfactory arrangements are in force under section
2(2)(a) above with respect to the disclosure of information obtained by virtue
of this section and that the information obtained under the warrant will
be subject to those arrangements.
(3) A warrant shall not be issued under this section except -
(a) under the hand of the Secretary of State; or
(b) in an urgent case where the Secretary of State has expressly authorised
its issue and a statement of that fact is endorsed on it, under the hand
of an official of his department of or above Grade 3.
(4) A warrant shall, unless renewed under subsection (5) below, cease to
have effect -
(a) if the warrant was under the hand of the Secretary of State, at the end
of the period of six months beginning with the day on which it was issued;
(b) in any other case, at the end of the period ending with the second working
day following that day.
(5) If at any time before the day on which a warrant would cease to have
effect the Secretary of State considers it necessary for the warrant to continue
to have effect for the purpose for which it was issued, he may by an instrument
under his hand renew it for a period of six months beginning with that day.
(6) The Secretary of State shall cancel a warrant if he is satisfied that
the action authorised by it is no longer necessary
-
As is apparent from its terms the SSA provides very important safeguards
both for the public and the Secretary of State designed specifically to provide
independent overview. Section 4 of the Act deals with the appointment of
the Security Service Commissioner in these terms:-
"(1) The Prime Minister shall appoint as a Commissioner for the purposes
of this Act a person who holds or has held high judicial office.
. . .
(3) In addition to his functions under the subsequent provisions of this
Act the Commissioner shall keep under review the exercise by the Secretary
of State of his powers under section 3 above.
(4) It shall be the duty of every member of the Service and of every official
of the department of the Secretary of State to disclose or give to the
Commissioner such documents or information as he may require for the purpose
of enabling him to discharge his functions.
(5) The Commissioner shall make an annual report on the discharge of his
functions to the Prime Minister and may at any time report to him on any
matter relating to his discharge of those functions.
(6) The Prime Minister shall lay before each House of Parliament a copy of
each annual report made by the Commissioner under subsection (5) above together
with a statement as to whether any matter has been excluded from that copy
in pursuance of subsection (7) below.
(7) If it appears to the Prime Minister, after consultation with the
Commissioner, that the publication of any matter in a report would be prejudicial
to the continued discharge of the functions of the Service, the Prime Minister
may exclude that matter from the copy of the report as laid before each House
of Parliament.
(8) The Secretary of State may, after consultation with the Commissioner
and with the approval of the Treasury as to numbers, provide the Commissioner
with such staff as the Secretary of State thinks necessary for the discharge
of his functions."
-
The Act then provided, by section 5, for the appointment of a Tribunal for
the purpose of investigating complaints about the Service although it is
clear that the remit of the Tribunal was confined to complaints by a person
aggrieved by anything which he believes the Service has done in relation
to him or to any property of his (paragraph 1 of Schedule 1 to the Act);
this section (and the Schedule) also placed additional responsibilities on
the Commissioner.
-
Within the definition of "Crown Servant" included in section 12(1) of the
OSA (to whom disclosures may lawfully be made for the purposes of their functions
as such), there is included the Tribunal set up under section 5 of the SSA
as a consequence of the OSA (Prescription) Order 1990, SI 1990 No 200 (as
amended by SI 93 No 847). On the face of it, it may appear surprising that
the Act did not include the Commissioner within the categories of
persons to whom disclosure can be made in his own capacity so that a former
member of the Services is expressly authorised to disclose information to
the Commissioner. However, the Commissioner has a dedicated secretariat of
civil servants to whom disclosure can be made. Given that the primary
function of the Commissioner is to keep under review the exercise by the
Secretary of State of his powers to issue warrants, any disclosure or 'whistle
blowing' which criticises the propriety of what is occurring within his remit
would obviously concern him.
-
No challenge is made to the integrity or dedication to his duties of the
Commissioner. He is required to be a person who holds or has held
high judicial office and, with the assistance of whatever information has
been disclosed to him, he should be well placed to root out impropriety and
illegality, if such there be. Furthermore, even if someone such as
Mr Shayler was sufficiently sceptical to believe that the civil servants
within the Commissioner's secretariat might be prevailed upon not to pass
information which they have received on to the Commissioner, this could be
addressed since, as the Crown accepts, a decision by a Minister or civil
servant to refuse authority to disclose information directly to the Commissioner
could be challenged by way of judicial review. As to that prospect, Moses
J observed:
"Thus, if a refusal of authorisation was unlawful or outwith the statutory
purposes for which the power to give official authorisation was conferred,
or irrational, the Court could intervene. Since October 2000, a refusal to
give authority must itself comply with the Convention. If it was not compatible
with Article 10, the Court, on a judicial review, should say so"
-
Mr Fitzgerald QC attacks this conclusion. He points out the HRA was not in
force when the disclosure was made. He argues that whatever the position
after the enactment of the HRA, at the time of the passing of the Act and
up to the late 1990s, where a threat to national security was given as the
reason for denying or restricting individual rights the courts were unwilling
to intervene by examining the strength of that justification. He argued that
national security has been treated as "the exclusive responsibility of the
executive" (per Lord Donaldson MR in R v Home Secretary ex parte Cheblak
[1991] 1 WLR 890 at 902), it was "par excellence a non-justiciable question"
(per Lord Diplock in Council of Civil Service Unions ex parte Minister
for the Civil Service [1985] AC 374 at 412).
-
We will return to this argument when dealing with an application for judicial
review of a decision to refuse permission to speak to the press but, in this
context, the argument misses the point. There could be no question of arguing
that a threat to national security justified refusal to allow a former security
and intelligence officer to disclose what he asserted was evidence of wrongdoing
in connection with the grant of warrants under the SSA to the Commissioner
charged under the same legislation with the function of overseeing and reviewing
the exercise of by the Secretary of State of the very power which is the
subject of complaint. The whole point of the structure of the Act is to provide
some measure of transparency (albeit to an independent Commissioner) of the
exercise of these powers. To deprive him of information which might the more
effectively enable him to exercise his function would be to drive a coach
and horses through the Act.
-
The responsibilities of the Commissioner appointed under the SSA cover the
issue of warrants under that Act. The IOCA sets up a similar scheme in relation
to telephone tapping. The IOCA had its own Commissioner of similar status
with the same powers. Furthermore, subsequent to the OSA equivalent provisions
have also been put in place in relation to the Services. These are set out
in the ISA which deals, among other things, with the functions of GCHQ. It
is this Act which amended the SSA by bringing into this legislation the power
which enables the Secretary of State to issue a warrant to the Security Service,
the Intelligence Service and to GCHQ. In the same form as the other legislation,
section 8 creates the post of Commissioner who, similarly, must hold or have
held high judicial office. His functions include reviewing the Secretary
of State's powers to issue warrants (other than in relation to the Security
Service which remained covered by the SSA) with parallel duties on every
member of the Intelligence Service, of the GCHQ and official of the Home
Office to make disclosure to the Commissioner for the purpose of his functions.
Thus, assuming the necessary authorisation, complaints of the type which
Mr Shayler makes about the legality of operations at GCHQ could have been
considered by him.
-
The ISA also provides another significant avenue available to those, like
Mr Shayler, who wish to make far reaching allegations of what might be described
as "institutional" or widespread illegality and abuse of power. Section 10
of the Act creates the Intelligence Security Committee. This consists of
Members of the House of Commons and the House of Lords who are not Ministers
of the Crown; this remit is to examine the expenditure, administration and
policy of the Security Service, the Intelligence Service and GCHQ: (see section
10(1)). Schedule 3 imposes duties of disclosure upon the Director General
of the Security Service, the Chief of the Intelligence Service or the Director
of GCHQ subject only to statutory restrictions where the Secretary of State
has determined that it should not be disclosed (although by paragraph 3(4)
the Secretary of State cannot make such determination on the grounds of national
security alone) or because it is sensitive information. "Sensitive information"
is defined in paragraph 4 of the Schedule and includes information which
might lead to identification of sources, about particular operations or which
has been provided by another agency. Although that restriction could limit
overview of a specific operation, it would not prevent a full investigation
of the policy and efficiency of the secret services. In Spycatcher (No.
2) [1990] 1 AC 109, Sir John Donaldson MR, referring to the Security
Commission, said (at 188A):
"Although technically the function of the commission is to undertake
investigations into the efficiency and proper working of the service at the
request of the Prime Minister, I find it difficult to conceive of the members
failing to take appropriate action if convincing evidence of wrongdoing was
submitted to them."
-
This would be the situation where it was suggested that statutory controls
were being overridden. Again, this Committee has a secretariat of civil servants
to whom disclosure is authorised; if the relevant material was not passed
on, judicial review would be available.
-
Thus, three Commissioners each of whom holds or has held high judicial office
(with all the independence of mind which such an appointment brings) together
with members of the legislature not involved in government are all available
to consider concerns such as Mr Shayler advances. Each has a duty to provide
an annual report to the Prime Minister and "may at any time report to him
on any matter relating to the discharge of those functions". The annual report
is laid before Parliament: see sections 4(5) and (6) of the SSA; sections
10(5) and (6) of the ISA and sections 8 (7) and (8) of the IOCA.
-
We have not dwelt upon the other gateways set out in section 12(1) of the
OSA any one of which would be available to a former security and intelligence
officer (in particular, Minister of the Crown, civil servant and police officer).
It is not because we dismiss them but rather because Mr Shayler contends
that they can be subverted from their duty. However, taken individually and
collectively, they demonstrate that there are further potential mechanisms
available to review the conduct of the Security and Intelligence Services.
-
In October 2000, the Regulation Investigatory Powers Act 2000 substituted
new provisions in relation to unlawful and authorised interception providing
for one Commissioner holding or having held high judicial office (in the
place of the two Commissioners who previously supervised the warrants issued
in relation to the security services and the intelligence services); there
remains a separate Commissioner in relation to telephone intercept warrants.
Further, one tribunal takes the place of the three set up under the earlier
legislation. Thus, significant checks and balances remain in place and are
available to investigate and, to such extent as the holders of those utterly
independent offices consider appropriate, make public. Disclosure does not
depend on the view (however well intentioned) of a single disenchanted agent.
-
In addition to the statutory overview, there is an additional, non-statutory,
channel giving members and former members of the Security Service official
authorisation to communicate confidentially outside their line management.
This is to the "Staff Counsellor". He is a high-ranking civil servant who
reports to the Prime Minister and the Secretary of State. His role is best
described by reference to what the Prime Minister told the House of Commons
(HC Debs., 2 November 1987, col. 312):
"The House will wish to know that Sir Philip Woodfield KCB, CBE has been
appointed as a staff counsellor for the security and intelligence services.
He will be available to be consulted by any member of the security and
intelligence services who has anxieties relating to the work of his or her
service which it has not been possible to allay through the ordinary processes
of management-staff relations. He will have access to all relevant documents
and to any level of management in each service. He will be able to make
recommendations to the head of the service concerned. He will also have access
to the Secretary to the Cabinet if he wishes and will have the right to make
recommendations to him. He will report as appropriate to the heads of the
services and will report not less frequently than once a year to me and to
my right hon. Friends the Foreign and Commonwealth Secretary and the Home
Secretary as appropriate on his activities and on the working of the system."
This was, of course, before the passing of the OSA (which established
authorisation to communicate with any civil servant). Furthermore, the mechanism
was not overlooked when that Act was being debated. During the discussion
on the Bill, the then Home Secretary stated in the House of Commons (HC Debs.
22 February 1989, col. 1033):
"The staff counsellor is to provide members and former members of the services
with someone who is not a member of the services with whom he or she can
discuss concerns and anxieties about their work which it has not been possible
to allay through staff channels."
-
In his skeleton argument, Mr Fitzgerald submitted that the terms of reference
of the staff counsellor were "not clear" and that his effectiveness as an
alternative avenue for complaint was "highly disputed". He goes on to say
that if permitted Mr Shayler will adduce evidence that he was specifically
warned not to raise issues of concern with the Staff Counsellor. The terms
of the observations in Hansard could not be clearer: even if it be right
that Mr Shayler was warned not to take advantage of the system, such
warnings could hardly bite after he had left the service.
-
In addition, as has already been indicated, there is the role of the courts
in relation to judicial review. Moses J is criticised by Mr Fitzgerald and
Mr Tugendhat for attaching importance to this. Mr Fitzgerald relies on the
fact that there are well known statements demonstrating the reluctance of
the courts to review decisions purportedly taken by the executive in the
interests of national security. This is undoubtedly correct though in appropriate
situations to day the court may be prepared to adopt a more critical approach.
However, in general, the matters of which Mr Shayler wished to complain were
gross incompetence, unlawfulness, inefficiency and irresponsibility. If those
whose responsibility it would be to address these issues failed to do so
and ignored Mr Shayler's complaints in breach of their duty this is a matter
which could be the subject of judicial review. This would not require the
court to review policy decisions taken purportedly in the interests of national
security. The point which Moses J made, with justification, was that
in considering the merits of the sections under which Mr Shayler was charged,
there must be taken into account the avenues of redress which the OSA provides,
and the fact that the courts are in a position to supervise those whose
responsibility it is to police the statutory scheme. The value of the safeguards
could differ depending on the circumstances but that there are safeguards
cannot be disputed.
THE DEFENCES OF DURESS AND NECESSITY ISSUE
-
In the case of the great majority of statutory criminal offences the common
law defences of necessity and duress are available. Those defences have in
recent years been extended by the courts to cover what is usually described
as duress or necessity of circumstances. Mr Fitzgerald submits
that the developments which have already taken place should be allowed to
continue. They would then be available to his client at his forthcoming trial.
The jury at the trial, having examined the evidence, should decide whether
he was entitled or at least might have believed he was entitled to take the
action that he did. He would be entitled to do so because he may have believed
the circumstances made this necessary in the public interest to avert a threat
to life or limb or serious damage to property.
-
Moses J decided that duress and necessity were defences in their original
form which could be raised by a defendant. However, the extended defences
were not available to a defendant as a defence to the charges under sections
1(1) and 4(1) of the OSA 1989. It was Moses J's opinion that these defences
in their extended form were excluded "by the express terms of the OSA". In
his judgment there is "no room for the common law further to augment the
opportunities for avoiding the peril by permitting circumstances of disclosure
out with the provisions of section 7 and 12".
-
The approach of Moses J is strongly supported by Mr Nigel Sweeney QC who
appears on behalf of the prosecution. We found difficulty with the distinction
drawn by Moses J. If the restricted defence is available what justification
is there for excluding the defence in its extended form as it has been developed
by the courts? Mr Sweeney argued that this case demonstrated why it was necessary
to make a distinction. As we accept, if Mr Fitzgerald is correct, this case
would be virtually untriable. This is because it would involve conducting
an examination of a very substantial part of the activities of MI5 during
the period Mr Shayler was a member before the jury. The trial would cease
to be a trial of Mr Shayler and would become a trial of MI5. Further, the
disclosures which have already been made, if they were to be challenged,
would have to be met by further disclosure. On the other hand the position
would be very different from the situation where a defence of duress in its
original form was raised. This would require no more than an examination
of the event which is said to have given rise to the duress or necessity:
an example would be whether the defendant made the disclosure because his
life was threatened.
-
We understand this concern but we feel whether the concern is of substance
depends on the width of the defence as it has developed and it may conceivably
develop in the foreseeable future. It is this issue which we now address
in the context of Mr Shayler's attempt to rely on the defence.
THE LIMITS TO THE DEFENCE OF DURESS AND NECESSITY.
-
Any attempt at a definition of the precise limits of the defence is fraught
with difficulty because its development has been closely related to the
particular facts of the different cases which have come before the courts.
Whilst acknowledging the existence of necessity as a general defence in the
criminal law in 1958, Professor Glanville Williams said that the:
"peculiarity of necessity as a doctrine of law is the difficulty or impossibility
of formulating it with any approach to precision."
-
Nevertheless, attempts at a broad definition have been made. That given by
Sir James Stephen in 1887 was repeated in the leading case of R v Martin
(1989) 88 Cr App R 343 by Simon Brown J. It does help to identify the core
ingredients of the defence and has managed not only to survive for well over
a hundred years but to provide the basis for the extended defence of necessity
recently relied upon in R. v Abdul-Hussain and others [1999] Crim
LR 570. Three years after the decision in R. v Dudley and Stephens
(1884) 14 QBD 273, Stephens described the doctrine, in his Digest of the
Criminal Law of England (4th Ed., 1887), in the following terms:
"An act which would otherwise be a crime may in some cases be excused if
the person accused can show that it was done only in order to avoid consequences
which could not otherwise be avoided, and which, if they had followed, would
have inflicted upon him or upon others whom he was bound to protect inevitable
and irreparable evil, that no more was done than was reasonably necessary
for that purpose, and that the evil inflicted by it was not disproportionate
to the evil avoided. The extent of this principle is unascertained. It does
not extend to the case of shipwrecked sailors who kill a boy, one of their
number, in order to eat his body."
-
In Martin (1989) 88 Cr App R 343 at 345, Simon Brown J (as he then
was), giving the judgment of the Court of Appeal, restated the general principles
in these terms:
"First, English law does, in extreme circumstances, recognise a defence of
necessity. Most commonly this defence arises as duress, that is pressure
upon the accused's will from the wrongful threats or violence of another.
Equally, however, it can arise from other objective dangers threatening the
accused or others. Arising thus it is conveniently called 'duress of
circumstances.'
Secondly, the defence is available only if, from an objective standpoint,
the accused can be said to be acting reasonably and proportionately in order
to avoid a threat of death or serious injury.
Thirdly, assuming the defence to be open to the accused on his account of
the facts, the issue should be left to the jury, who should be directed to
determine these two questions: first, was the accused or may he have been,
impelled to act as he did because as a result of what he reasonably believed
to be the situation he had good cause to fear that otherwise death or serious
physical injury would result? Secondly, if so, may a sober person of reasonable
firmness, sharing the characteristics of the accused, have responded to that
situation by acting as the accused acted? If the answer to both those questions
was yes, then the jury acquit: the defence of necessity would have been
established."
-
This definition was described by Rose VP in Abdul-Hussain as "the
clearest and most authoritative guide to the relevant principles and appropriate
discretion in relation to both forms of duress." From both descriptions we
extract the following ingredients as being required if the defence of necessity
to be relied on:
-
the act must be done only to prevent an act of greater evil;
-
the evil must be directed towards the defendant or a person or persons for
whom he has responsibility or, we would add, persons for whom the situation
makes him responsible;
-
the act must be reasonable and proportionate to the evil avoided.
We make the addition to (ii) to cover, by way of example, the situation where
the threat is made to set off a bomb unless the defendant performs the unlawful
act. The defendant may have not have had any previous connection with those
who would be injured by the bomb but the threat itself creates the defendant's
responsibility for those who will be at risk if he does not give way to the
threat.
-
We will analyse each of these three limbs further later. Before doing so,
however, reference to the restatement of the law in Abdul-Hussain
is necessary. The trial judge in Abdul-Hussain had withdrawn the defence
of necessity from the jury because he found that there was no "sufficient
connection between the danger feared by the defendants and their families
on the one hand and the criminal act of hijacking the aircraft on the other".
The Court of Appeal found in a judgment given by Rose VP that:
"... although the judge was right to look for a close nexus between the threat
and the criminal act, he interpreted the law too strictly in seeking a virtually
spontaneous reaction. He should have asked himself, in accordance with
Martin, whether there was evidence of such fear operating on the minds
of the defendants at the time of the hijacking as to impel them to act as
they did and whether, if so, there was evidence that the danger they feared
objectively existed and that hijacking was a reasonable and proportionate
response to it. Had he done so, it seems to us it that he must have concluded
that there was evidence for the jury to consider."
-
Rose VP added that the relevant authorities on duress and necessity led to
11 propositions. These were that:
-
Unless Parliament provides otherwise, the defence of duress, whether by threats
or from circumstances, is generally available in relation to all substantive
crimes, except murder, attempted murder and some forms of treason.
-
The courts have developed the defence on a case-by-case basis, and its scope
remains imprecise.
-
Imminent peril of death or serious injury to the defendant, or those to whom
he has responsibility, is an essential element of both types of duress.
-
The peril must operate on the mind of the defendant at the time when he commits
the otherwise criminal act, so as to overbear his will, and this is essentially
a question for the jury.
-
But the execution of the threat need not be immediately in prospect.
-
The period of time which elapses between the inception of the peril and the
defendant's act, and between that act and execution of the threat, are relevant
but not determinative factors.
-
All the circumstances of the peril, including the number, identity and status
of those creating it, and the opportunities (if any) which exist to avoid
it are relevant, initially for the judge, and, in appropriate cases, for
the jury, when assessing whether the defendant's mind was affected as in
(iv) above.
-
As to (vi) and (vii), if Anne Frank had stolen a car to escape from Amsterdam
and been charged with theft, the tenets of English law would not have denied
her a defence of duress of circumstances, on the ground that she should have
waited for the Gestapo's knock on the door.
-
There is no reason of principle or authority for distinguishing the two forms
of duress in relation to the elements of the defence which we have identified.
-
The judgment in Martin, at 345 to 346 affords the clearest and most
authoritative guide to the relevant principles and appropriate direction
in relation to both forms of duress.
-
Clauses 25 and 26 of the Law Commission's draft Criminal Law Bill do not
represent the present law. Accordingly, reference to those provisions is
potentially misleading.
-
The decision in Abdul-Hussain provides useful clarification of the
earlier three pronged definition of necessity and elaborates on the operation
of the requirement of imminence. It also reflects other decisions which have
treated the defence of duress and necessity as being part of the same defence
and the extended form of the defence as being nothing more than different
labels for essentially the same thing, see e.g. R. v Conway [1988]
3 All ER 1025 at 1029 where it was said :
"As the learned editors point out in Smith and Hogan, Criminal Law (6th edn,
1988) p 225, to admit a defence of 'duress of circumstances' is a logical
consequence of the existence of the defence of duress as that term is ordinarily
understood, i.e. 'do this or else'. This approach does no more than recognise
that duress is an example of necessity. Whether 'duress of circumstances'
is called 'duress' or 'necessity' does not matter. What is important is that,
whatever it is called, it is subject to the same limitations as the 'do this
or else' species of duress." (Woolf LJ)
-
However, it has been argued that there are differences between duress of
circumstances and necessity. In his thorough-ranging review of the development
of the law on necessity in Re. A. (children) (conjoined twins: surgical
separation) [2000] 4 All ER 961, Brooke LJ said, at page 1047-1048:
"I have described how, in modern times Parliament has sometimes provided
'necessity' defences in statutes and how the courts in developing the defence
of duress of circumstances have sometimes equated it with the defence of
necessity.
They do not, however, cover exactly the same ground. In cases of pure necessity
the actor's mind is not irresistibly overborne by external pressures. The
claim is that his or her conduct was not harmful because on a choice of two
evils the choice of avoiding the greater harm was justified."
-
In the 9th Edition of Smith & Hogan on Criminal Law (p.244,
1999), the authors suggest one possible argument in relation to this difference
is as follows:
"Duress is an excuse, but necessity is a justification. It is quite inappropriate
to talk of a surgeon's will being 'overborne' when he decides that it is
necessary to carry out a sterilisation or other operation, as in the West
Berkshire case ([1989 2AER 545]), on a person who is unable to consent.
The surgeon is making a reasoned and reasonable decision. Lord Brandon thought
that not only would it be lawful, but that it would be the doctor's duty
to operate. There is no question of excusing 'human frailty'."
-
None the less the distinction between duress of circumstances and necessity
has, correctly, been by and large ignored or blurred by the courts. Apart
from some of the medical cases like West Berkshire the law has tended
to treat duress of circumstances and necessity as one and the same. For instance,
Archbold says at 17-124:
"There has in recent years developed the expression 'duress of circumstances'.
The use of the word 'duress' in this contest is misleading. Duress, whether
in criminal law or civil law, suggests pressure being brought to bear by
one person on another person to persuade that other person to do something
which he is unwilling to do. 'Duress of circumstances' has nothing to do
with one person being told to commit a crime 'or else': it relates to a situation
where a person is driven to commit a crime by force of circumstances.
Accordingly, duress of circumstances is more conveniently dealt with under
the heading of 'necessity' ... Indeed, it may be that duress, strictly so
called, should itself be regarded as a form of the defence of necessity:
see per Lord Hailsham LC in R. v Howe and others ..."
-
Two of the recent authorities on the defence of necessity, Martin
and R. v Pommell [1995] 2 Cr App R 607, fail to distinguish between
necessity and duress of circumstances and Abdul-Hussain, was described
by the Court of Appeal as a duress of circumstances case.
-
The authorities speak of imminent or immediate threat of a greater harm occurring
as being central to the defence of necessity. This indicates that it is
insufficient for the defendant to believe that at some uncertain point in
the future harm will occur if he does not act to avoid it; he must reasonably
believe he has to act now to avert harm in the imminent future. He must believe
the harm he seeks to prevent would otherwise happen, if not immediately,
then at least before it could be prevented by his or others legal action.
Abdul-Hussain makes clear the harm threatened need not be immediate
but it should be imminent. In this sense he has no alternative to yielding
to the pressure in order to prevent imminent harm.
-
This takes us to the next issue to be dealt with under this head. Does the
alleged harm that the defendant seeks to avoid have to be as to a danger
to life or serious injury, or can it simply be harm greater than the act
done which seeks to avoid it? As the authors of Smith & Hogan say
(9th ed p 247):
"There are some cases where what was in substance a defence of necessity
was allowed without identifying a threat to life or serious injury. In
Gillick's case one of the conditions stated of the lawfulness of the
contraceptive advice or treatment given to a girl under sixteen was that,
unless she receives it, 'her physical or mental health or both are likely
to suffer'. In F. v West Berkshire Health Authority it was held that
it was lawful to carry out a sterilisation operation on a women who lacked
the mental capacity to consent because otherwise there would be a grave risk
to her of her becoming pregnant which would be a disaster from a psychiatric
point of view."
-
However, any extension of the defence here is slight: protection of the physical
and mental well-being of a person from serious harm is still being required.
In any event Mr Shayler argues his defence based on the conventional test,
ie that his revelations were necessary to prevent death or serious injury
to others. He does have a separate argument based on the illegal conduct
of MI5. However here the matters relied on by Mr Shayler, for example
illegal monitoring of telephone calls, do not satisfy the requirements of
the defence, although this of no practical significance in view of the other
allegations he makes.
-
It is also necessary to consider in greater detail the nature of the
responsibility and the category of persons to whom the defendant must owe
the responsibility for the purposes of the defence. Mr Shayler contends that,
as a member of the government secret services, he owed a responsibility to
the general public at large. His acts were necessary to protect a yet to
be identified group from among the public for whose protection MI5 had
responsibilities who would inevitably suffer because of MI5's incompetence.
-
In Wright [2000] Crim L.R. 510 this issue arose in relation to an
appeal against a direction concerning the need for a relationship of sufficient
proximity between the defendant and a person he claimed to have responsibility
over for the purposes of the defence of duress. The person was the defendant's
boyfriend. Kennedy LJ said, at paragraphs 22-23 of the judgment:
"The authorities clearly show that the threat need not be made to the defendant
himself or herself. It can be made, as the judge said, to another member
of the defendant's immediate family or, as the judge might have said, if
he had followed the Judicial Studies Board specimen direction, 'to some other
person, for whose safety the defendant would reasonably regard herself as
responsible.'
On the facts of this case there were good reasons for thinking that the boyfriend
would fall within one or other of those formulations."
-
A difficulty arises in relation to Pommell. In that case, the defendant
was allowed to rely on the defence of necessity or duress of circumstances
where he was found with a loaded gun under his bed. He claimed he had taken
it from a friend who he feared would kill various people. There does not
appear to have been any discussion on the appeal about the person to whom
the defendant owed responsibility for the purposes of the defence. The decision
can possibly be justified by reference to the fact that, although yet
unidentified, unless the defendant intervened there could be an identifiable
body of the friend's victims and it is to this body that he owed a duty.
This would be within the gloss we have placed earlier upon the requirement
of responsibility.
-
So in our judgment the way to reconcile the authorities to which we have
referred is to regard the defence as being available when a defendant commits
an otherwise criminal act to avoid an imminent peril of danger to life or
serious injury to himself or towards somebody for whom he reasonably regards
himself as being responsible. That person may not be ascertained and may
not be identifiable. However if it is not possible to name the individuals
beforehand, it has at least to be possible to describe the individuals by
reference to the action which is threatened would be taken which would make
them victims absent avoiding action being taken by the defendant. The defendant
has responsibility for them because he is placed in a position where he is
required to make a choice whether to take or not to take the action which
it is said will avoid them being injured. Thus if the threat is to explode
a bomb in a building if defendant does not accede to what is demanded the
defendant owes responsibility to those who would be in the building if the
bomb exploded.
-
The next requirement is proportionality. This has two elements. The act done
should be no more than is reasonably necessary to avoid the harm feared and
the harm resulting from the act should not be disproportionate to the harm
avoided.
THE EXTENT TO WHICH MR SHAYLER'S DEFENCE COULD FALL WITHIN THE DOCTRINE OF
NECESSITY
-
The difference between Mr Shayler's case and any other case where this defence
has been regarded as being available is that Mr Shayler is not in a position
to identify any incident which is going to create a danger to the members
of the public which his actions were designed to avoid. Instead he is blowing
the whistle on the past conduct of individuals members of and MI5 as a whole.
He is in effect seeking to have MI5 reformed so that it can play its role
of protecting the public properly. He contends he intervened because unless
he did so MI5 would continue to operate as he alleges it has in the past
and this inevitably would create a danger of the public.
-
Mr Shayler's justification for his disclosure in our judgment could be the
basis for a general public interest defence if such a defence was available
but in our judgment it provides no foundation for the invoking the extended
defence of duress or necessity. The characteristics of the extended defence
may, despite the efforts of the courts to inject greater precision, still
be imprecise, but it is inherent in the defence that it has ingredients which
Mr Shayler is not in a position to establish. He cannot identify the action
by some external agency which is going to create the imminent (if not immediate)
threats to the life and limb of members of the general public as a result
of the security services alleged abuses and blunders. This is a fundamental
ingredient of the defence. Without it, it is impossible to test whether there
was sufficient urgency to justify the otherwise unlawful intervention. It
is also impossible to apply the proportionality test. Further more, if it
is possible to identify the members of the public at risk this will only
be by hindsight. This creates difficulty over the requirement of responsibility.
Mr Shayler's justification for what he did lacks the required degree of
precision. There is no close nexus between his disclosure and the possible
injury to members of the public. Putting it simply there was no necessity
or duress as those words are ordinarily understood.
-
To an extent the issue is a matter of degree. At one end of the spectrum
is the example of a spy who is kidnapped and told his wife or child will
be murdered if he does not disclose top-secret information. At the other
end of the spectrum is the disillusioned agent who claims that someone,
somewhere, might one day suffer if he does not make such disclosures and
that he has responsibility for all such persons, ie the general public as
a whole. The first is a situation where almost certainly a defendant would
be able to rely on the defence of necessity. The second position is one where
a defendant can not possibly rely on the defence. Mr Shayler falls squarely
within the second position on the spectrum. On his case as revealed so far
there is no possibility of his being entitled to rely on the defence. A study
of his description of events, which he has placed before the court and runs
to 111 pages, only emphasises the correctness of this view.
THE APPLICATION OF THE DOCTRINE OF NECESSITY TO THE OFFICIAL SECRETS ACT
-
It has been argued and accepted by Moses J that in any event the doctrine
of "extended necessity" does not apply to the OSA for the reasons we have
explained earlier. However having examined the ingredients of the extended
defence we see no justification for making a distinction between the unextended
and extended defence. Nor do we see any need to extend the list of offences
to which it does not apply. On our approach to the defence there has to be
an incident which gives rise to both forms of defence and we see no insuperable
difficulty to the prosecution disproving the defence if it is raised in extended
form by a defendant.
-
Parliament has not given any clear indication that the extended defence is
excluded and we do not consider we should infer it is excluded. If a defendant
might have been acting because of duress or necessity of circumstances (within
the parameters the courts have placed on the defence) it would be unjust
if he were to be convicted. However as a matter of practice whether the defence
in its extended form is or is not excluded is of no significance since we
cannot envisage circumstances in which it would apply.
-
We therefore do not consider that it is necessary to do more than follow
the approach of the Court of Appeal in Abdul-Hussain and the proposition
that:
"Unless and until Parliament provides otherwise, the defence of duress, whether
by threats or from circumstances, is generally available in relation to all
substantive crimes, except murder, attempted murder and some forms of treason
(R v Pommell [1995] 2 Cr App R 607 at 615C)."
The defence therefore applies to the OSA.
THE FREEDOM OF EXPRESSION ISSUE
-
Mr Fitzgerald and Mr Tugendhat QC, on behalf of the press, naturally rely
on the fact that even prior to the HRA coming into force, freedom of expression
was a common law value that is given special protection in this jurisdiction.
In general in order to justify restraining the publication of governmental
information it is necessary to establish that not only is the information
confidential, it is also to show that it is in the public interest that it
should not be published. Lord Keith of Kinkel observed in Spycatcher
that:
"A communication about some aspect of government activity which does no harm
to the interests of the nation cannot, even where the original disclosure
has been made in breach of confidence, be restrained on the ground of a nebulous
equitable duty of confidence serving no useful practical purpose,"
citing A-G v Jonathan Cape Ltd [1976] QB 752 (DC); and Commonwealth
of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485 (High Court
of Australia).
-
We accept that such an approach could be said to create a presumption as
to the existence of a public interest defence which must be rebutted by the
public authority if it wishes to restrain publication on a blanket basis.
This general approach at common law as now buttressed by the HRA has been
encapsulated by Lord Bingham of Cornhill and Lord Steyn in their speeches
in McCartan Turkington Breen v Times Newspapers Ltd [2000] 3 WLR 1670.
-
However, it has always been accepted that members of the security services
are in a special situation and Article 10(2) of the Convention recognises
the need to treat national security issues differently when it provides that
the exercise of the right to freedom of expression may be subject to such
conditions and restrictions as are "prescribed by law and are necessary
in a democratic society, in the interests of national security...".
In support we refer to AG v Guardian Newspapers Ltd No 2 [1990] AC
109 and the passages from the speeches in that case appropriately cited by
Moses J in his judgment in the court below, and the speech of Lord Nicholls
of Birkenhead in AG v Jonathan Cape Ltd [2000] 3 WLR 625 at 640 also
cited by Moses J (the point which we have to confront being referred to by
Lord Nicholls but not decided).
-
We also accept that it is well established in the jurisprudence of the EctHR
that the dangers inherent in prior restraint are such that it calls for the
most careful scrutiny: see Observer and Guardian v United Kingdom (1991)
14 EHRR 153, paragraph 60 (ECtHR). The ECtHR has repeatedly stated that there
must be "a pressing social need" for any restriction on free speech,
because it is incumbent on the press to impart information and ideas on matters
of public interest; not only does the press have the task of imparting such
information and ideas; the public has the right to receive them; were it
otherwise, the press would be unable to play its vital role of public
watchdog.
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The HRA provides special protection in section 12 (3) by providing that no
relief is to be granted so as to restrain publication unless the court is
satisfied that the applicant is likely to establish (i.e. at trial) that
publication should not be allowed. Section 12 (4) provides that the Court:
"must have particular regard to the importance of the Convention right to
freedom of expression and, where the proceedings relate to material which
the respondent claims, or which appears to the court, to be journalistic
... material (or to conduct connected with such material) to:
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the extent to which –
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it is, or would be, in the public interest for the material to be published....
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We therefore fully acknowledge the importance of the principles on which
Mr Fitzgerald relies. Mr Fitzgerald draws our attention to the features
of sections 1 and 4 of the OSA which mean that unless their language is qualified
by the courts the sections have a particularly draconian effect. They do
not bite on the content of the disclosure but the status of
the person making the disclosure. They make no provision for a public interest
defence other than that based on duress or necessity. There is no question
of the courts having to assess the issue of proportionality. We accept that
these are telling points which require careful consideration. We also note
that in relation to other crown servants the OSA does not adopt quite the
same stifling approach.
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However, prior to coming into force of the HRA, while the courts when
interpreting a statute did not ignore the constitutional principles such
as freedom of expression the courts still had to give primacy to the language
of the statute and where even freedom of expression was involved the courts
did not and could not ignore the intention of the legislation were the language
used by the statute was clear. Here the language is clear. The two limbs
of justification on which Mr Shayler relies (the need to protect the public
from grave risks to life or limb and to disclose the illegality which he
alleges has occurred) are inconsistent not only with language of sections
1 and 4 but also with the structure of the OSA. So far as guilt is concerned
Mr Shayler's justification for his conduct has no role to play. If it is
to have any role at the trial it would be as to sentence only: in that event,
security considerations might require any hearing to be in camera.
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The position after the coming into force of the HRA is different and as Mr
Shayler's trial is post the Act he is entitled to the protection of freedom
of expression provided by Article 10. The issues as we see it boil down to
a question as to whether the prosecution can justify the blanket ban provided
by sections 1 and 4 applying the well developed jurisprudence as to freedom
of expression. It is here, as it seems to us, that the structure of the OSA
and other legislation is so important. It makes the blanket ban subject to
the protection for the defendant provided by his ability to obtain authorisation
for disclosure and to make his voice heard not only by his superiors but
by those of undoubted integrity and independence.
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It is not difficult to understand the reason Parliament adopted the approach
that it did. The object of sections 1 and 4 is to deter members of the security
forces disclosing secrets which could be damaging to national security. The
ability to prosecute after disclosure has occurred is to lock the stable
door after the horse has bolted. If damage will be caused by disclosure that
damage will be done once disclosure has taken place and the prosecution,
even if successful, will not undo the damage. Instead it could give rein
to even greater damage. The culture the OSA is designed to support is one
where members and former members do not disclose except with prior authority
or to persons authorised to receive disclosure. This avoids the grave
disadvantage of an individual member having to make a decision, perhaps on
partial information, based on his understanding of where the public interest
lies.
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To an extent the issue is one of proportionality. The principle of
proportionality requires that, when determining whether a limitation is arbitrary
or excessive, the court has to ask itself whether the means used to impair
a right or freedom are no more than is necessary to accomplish an important
and legitimate objective: see R v Secretary of State for the Home Department,
ex parte Daly [2001] 2 WLR 1622, at 1634c-1636c, per Lord Steyn;
1634a-b, per Lord Bingham; (Lord Cooke of Thorndon, Lord Hutton and
Lord Scott of Foscote agreeing); applying de Freitas v Permanent Secretary
of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC
69 (PC), at 80, per Lord Clyde.
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We have already stressed the scale of the interference with freedom of expression
which sections 1 and 4 involve. On the other side of the equation has to
be placed the fact that what the OSA is designed to protect is national security.
Balancing the public interest in this field is notoriously difficult and
not ideally suited to a trial by jury. It can be a task which just cannot
be performed by a jury trial. It can result in a trial being impossible because
it would involve the disclosure of further secret information. The blanket
restraint is confined to a relatively small class; the members and former
members of the security services who need to be able to communicate to their
colleagues, confident that the information will not be disclosed. Members
and former members of the security services will inevitably have information
for which the press will be prepared to pay handsomely, as happened here.
The commercial realities mean it would be preferable that the decision whether
to disclose or not to disclose should be in more objective hands. Of course
there will be a danger that protection the OSA provides will prove ineffective.
However this danger is reduced by the availability of judicial review and
the ability of the Attorney General to refuse permission to prosecute.
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Finally there is the fact that sections 1 and 4 are the attempt of the
democratically elected legislature to square the circle. In an area as sensitive
as this it does appear to us appropriate to show a degree of deference to
the legislators' decision. We do not consider that the solution which does
not involve the individual assessment by a court but by others of the
appropriateness of disclosure or the need for action is necessarily inconsistent
with Article 10. So far as the members or past members are concerned our
conclusion is that the restriction on freedom of expression is justified.
THE SECTION 29 HEARING ISSUE
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Mr Fitzgerald questions whether even if Moses J judgment was correct as a
matter of law it was appropriate for him to make the rulings that he did.
This issue is of general importance in an area where there is as yet little
guidance. It is not an issue which was canvassed before Moses J. and it requires
detailed consideration of the relevant provisions of the 1996 Act. That Act
was intended to achieve for the criminal trial some of the benefits which
case management can provide for complex civil litigation. Section 1 paints
the landscape with which the provisions are concerned. It provides:
"Section 29
(1) Where it appears to a judge of the Crown Court that an indictment reveals
a case of such complexity, or a case whose trial is likely to be of such
length, that substantial benefits are likely to accrue from a hearing—
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2),
he may order that such a hearing (in this Part referred to as a preparatory
hearing) shall be held.
(2) The purposes are those of—
(a) identifying issues which are likely to be material to the verdict of
the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge's management of the trial.
(3) No order may be made under subsection (1) where it appears to a judge
of the Crown Court that the evidence on an indictment reveals a case of fraud
of such seriousness or complexity as is mentioned in section 7(1) of the
Criminal Justice Act 1987 (preparatory hearings in cases of serious or complex
fraud).
(4) A judge may make an order under subsection (1)—
(a) on the application of the prosecutor,
(b) on the application of the accused or, if there is more than one, any
of them,
or
(c) of the judge's own motion. "
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Pausing at section 29 this does appear to be a case where making the order
which Moses J made could be said to fall within each of the purposes identified
in subsection (2). It is next necessary to refer to section 31 which gives
extensive powers to the judge conducting the hearing. It provides:
(1) At the preparatory hearing the judge may exercise any of the powers specified
in this section.
(2) The judge may adjourn a preparatory hearing from time to time.
(3) He may make a ruling as to—
(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case.
(4) He may order the prosecutor—
(a) to give the court and the accused or, if there is more than one, each
of them a written statement (a case statement) of the matters falling within
subsection (5);
(b) to prepare the prosecution evidence and any explanatory material in such
a form as appears to the judge to be likely to aid comprehension by the jury
and to give it in that form to the court and to the accused or, if there
is more than one, to each of them;
(c) to give the court and the accused or, if there is more than one, each
of them written notice of documents the truth of the contents of which ought
in the prosecutor's view to be admitted and of any other matters which in
his view ought to be agreed;
(d) to make any amendments of any case statement given in pursuance of an
order under paragraph (a) that appear to the judge to be appropriate, having
regard to objections made by the accused or, if there is more than one, by
any of them.
(5) The matters referred to in subsection (4)(a) are—
(a) the principal facts of the case for the prosecution;
(b) the witnesses who will speak to those facts;
(c) any exhibits relevant to those facts;
(d) any proposition of law on which the prosecutor proposes to rely;
(e) the consequences in relation to any of the counts in the indictment that
appear to the prosecutor to flow from the matters falling within paragraphs
(a) to (d).
(6) Where a judge has ordered the prosecutor to give a case statement and
the prosecutor has complied with the order, the judge may order the accused
or, if there is more than one, each of them—
(a) to give the court and the prosecutor a written statement setting out
in general terms the nature of his defence and indicating the principal matters
on which he takes issue with the prosecution;
(b) to give the court and the prosecutor written notice of any objections
that he has to the case statement;
c) to give the court and the prosecutor written notice of any point of law
(including any point as to the admissibility of evidence) which he wishes
to take, and any authority on which he intends to rely for that purpose.
(7) Where a judge has ordered the prosecutor to give notice under subsection
(4)(c) and the prosecutor has complied with the order, the judge may order
the accused or, if there is more than one, each of them to give the court
and the prosecutor a written notice stating—
a) the extent to which he agrees with the prosecutor as to documents and
other matters to which the notice under subsection (4)(c) relates, and b)
the reason for any disagreement.
(8) A judge making an order under subsection (6) or (7) shall warn the accused
or, if there is more than one, each of them of the possible consequence under
section 34 of not complying with it.
(9) If it appears to a judge that reasons given in pursuance of subsection
(7) are inadequate, he shall so inform the person giving them and may require
him to give further or better reasons.
(10) An order under this section may specify the time within which any specified
requirement contained in it is to be complied with.
(11) An order or ruling made under this section shall have effect throughout
the trial, unless it appears to the judge on application made to him that
the interests of justice require him to vary or discharge it.
It is important to note the implicit power of the judge to vary or discharge
the order under section 31(11). A similar power exists in the case of rulings
made under section 40 (subsection 4). We refer to the terms of section 40:
Section 40 power to make rulings
(1) A judge may make at a pre-trial hearing a ruling as to—
(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case concerned.
(2) A ruling may be made under this section—
(a) on an application by a party to the case, or
(b) of the judge's own motion.
(3) Subject to subsection (4), a ruling made under this section has binding
effect from the time it is made until the case against the accused or, if
there is more than one, against each of them is disposed of; and the case
against an accused is disposed of if —
(a) he is acquitted or convicted, or
(b) the prosecutor decides not to proceed with the case against him.
(4) A judge may discharge or vary (or further vary) a ruling made under this
section if it appears to him that it is in the interests of justice to do
so; and a judge may act under this subsection—
(a) on an application by a party to the case, or
(b) of the judge's own motion.
(5) No application may be made under subsection (4)(a) unless there has been
a material change of circumstances since the ruling was made or, if a previous
application has been made, since the application (or last application) was
made.
(6) The judge referred to in subsection (4) need not be the judge who made
the ruling or, if it has been varied, the judge (or any of the judges) who
varied it.
(7) For the purposes of this section the prosecutor is any person acting
as prosecutor, whether an individual or a body.
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These provisions encourage a judge to make rulings where there are good case
management reasons for doing so. It is important the courts use the powers
when they will achieve the statutory objectives. This includes making a ruling
that a defence is not available to a defendant when this can be done as a
matter of law. Among the advantages of doing so is the opportunity which
it gives for the ruling to be challenged as in this case on appeal. There
is little case law on the operation of these provisions but they are based
on the similar provisions for serious or complex fraud cases under the Criminal
Justice Act 1987.
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According to Re Gunawardena, 91 Cr. App. R. 55, CA, decided under
the 1987 Act, the purpose of the parallel provisions was limited to those
in section 7(1)(a) to (d) of the 1987 Act, which is the same as section 29(2)(a)
to (d) of the CPIA. Similarly the provisions in section 31(3)(a) and (b)
of the CPIA (parallel to section 9(3) of the 1987 Act) and section 40 (1)(a)
and (b) should be treated as being subordinate to the above provisions. The
position is almost certainly the same under both Acts.
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However, while there is no reason to artificially limit the powers of the
judge at a preliminary hearing, the judge must always have at the forefront
of his mind that he must not interfere with a defendants' fundamental right
to be tried by a jury. In particular the judge must not trespass on the jury's
role as the judges of fact. The judge must also bear in mind that until the
defence has called its evidence it may be inappropriate to make a ruling.
But in this case to clarify the law was highly desirable. The consequence
will be to limit the evidence the jury would have to consider. It will help
counsel as to the issues on which they should ask questions. It will avoid
the need to consider issues of public interest immunity which could otherwise
complicate the trial. A judge should during a hearing not allow irrelevant
questions and by making rulings clarifying the law before the hearing the
trial will be able to conducted more smoothly.
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Of course if the circumstances change the judge must be prepared to use his
powers to vary a ruling. However, these powers do not mean that a judge may
make a ruling without having sufficient material on which to make it. A judge
cannot stop a defendant pursuing a defence merely because it is weak. Before
he makes a ruling withdrawing a defence he has to be satisfied on the material
available and likely to be available it cannot succeed.
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In this case Moses J was certainly entitled to make the rulings he did. On
the defence of duress and necessity we give different reasons from the judge.
We conclude the defence of necessity duress could be available. The defence
is one which has to be raised by a defendant before it becomes the duty of
the prosecution to rebut it. The defence has placed material before the court
indicating the nature of the matters which Mr Shayler relies on and
they do not meet the requirements of the defence for the reasons we have
explained. As to his arguments based on freedom of expression and Article
10 we have explained why they are not relevant. If it should happen, which
is most unlikely, that the circumstances change then the judge will have
to deal with this at the trial. We consider this case is a very good example
of the value of section 29 hearings.
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This approach is compatible with a defendant's right to a fair trial at common
law and in accordance with Article 6 of the European Convention because it
guarantees that a defendant will be able to rely on a defence if and when
he provides any evidence upon which he could do so, and because judicial
discretion is preserved, blanket bans on defences from the outset of a trial
are avoided.
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In this particular case, the fact that so much material has been placed before
the court explaining why Mr Shayler considers he was justified to do what
he did means that it is not difficult (as it might otherwise be) to make
a general ruling about the defences he is able to rely on. The material makes
it clear he was not as a matter law acting under duress or necessity of
circumstances. As a matter of law sections 1 and 4 are not subject to a public
interest defence. We say this not withstanding the comments of Lord Browne
Wilkinson in Barrett v Enfield [1993] 3AER 193 at p. 197. While this
case involves developing areas of the law the developments would not benefit
Mr Shayler.
THE PRESS
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Mr Sweeney correctly pointed out that in relation to the appeal the press
do not have the status of being victims for the purposes of the HRA. If he
was intending to suggest this meant that the court should not be prepared
to give weight to their submissions we do not agree. The courts have a discretion
as to who should entitled to be heard and on an issue concerning freedom
of expression the press has an interest to protect and may be able provide
the court with an insight as to what is at stake which cannot be provided
by the parties. In this case the court found the submissions of Mr Tugendhat
of assistance and they resulted in no time being wasted.
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Mr Sweeney also, understandably, was concerned at the broad approach the
press adopted in their argument; taking examples of different situations
from those that feature in this case. This in fact is not objectionable since
we are considering the interpretation of the OSA after the implementation
of the HRA. If we had come to the conclusion that sections 1 and 4 were in
conflict with Article 10 adopting a traditional approach to interpretation
of the sections then it would have been necessary for the court to fulfil
its duty under section 3 of the HRA. Although it would have impaired the
effectiveness of the section, if it was necessary to do this, we have no
reason to think this is a case in which the court would be required to grant
a declaration of incompatibility. Adopting a suitably muscular approach to
interpretation as required by section 3, relatively simply, we could have
made the sections compatible. The interpretation we then adopted, if correct,
would not only apply to this case it would apply generally and it is because
of this that the approach of the press was correct.
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It is nonetheless important to recognise the difference between the position
of the press and Mr Shayler. Subject to what we say hereafter the legislation
does not make it an offence for the Press to receive information where it
is disclosed in breach of sections 1 and 4. If the press does so then the
usual remedy of the State is to bring proceedings for an injunction to prevent
publication. In deciding whether to grant an injunction the court will consider
a wide range of factors which are irrelevant on the question of Mr Shayler's
guilt. All the cases referred to by counsel involving the exercise of discretion
to grant injunctions would become directly relevant instead of being as here
background to the issues with which we are directly concerned. (See here
Lord Templeman's speech in Lord Advocate v The Scotsman [1990] 1 AC
812.)
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Section 5 of the OSA would then also be applicable and the press could in
the appropriate circumstances be prosecuted under that section but that section
does not create a blanket ban and it provides protection for the press which
is not available to Mr Shayler. In fact we suspect, even then, it would only
be in an exceptional case that the Attorney General would authorise a
prosecution.
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Section 5 is not easy to interpret and we do not seek to say anything about
its interpretation. However, Mr Tugendhat was concerned in case a journalist
could instead of being prosecuted under section 5 be charged with inciting
an offence under section 1. He says allegations as to this have been made
in this case. These may have arisen because the Daily Mail paid Mr Shayler
£37,000 for his revelations which they published. As Professor Birkinshaw
makes clear in his admirable work, Freedom of Information, this area
is a mine field and we feel unable to say more in relation to the submissions
that we have heard than:
(1) It would have to be an extreme case on the facts for a prosecution for
incitement to be justified having regard to the structure of the OSA which
attaches such importance to the status of the individual charged.
(2) Judicial review could have a significant role to play in this area and
if for example, before disclosure the matter was already fully in the public
domain it is difficult to identify what would be the rational justification
for not granting authorisation for disclosure or authorising a prosecution.
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We dismiss this appeal.