Limitation to Article 10 on the
grounds of national security
Criminal prosecution, so R v
(Name)
Currently 4 Acts: 1911, 1920,
1939 and 1989 (main Act)
Other Acts still in force - 1911-1939
Acts for spying, i.e. spies from
foreign countries and traitors
1989 Act removed the 'public
interest' defence from 1911 Act and
to amend the wide criminal liability
under Section 2 1911
1989 Act - maximum
sentence = 2 years and
unlimited fines
1989 Act - each section creates an
offence overing a specific area of
information
Cases always go to
Westminster
Magistrates' Court
If government cannot keep people quiet
using the OSA, then Attorney-General can
step in under Breach of Confidence
(different to normal BOC) and claim an
injunction to stop publication of secret
information
Official Secrets 1911-1939
S1 OSA 1911 - maximum
of a life sentence
Use this section where the
villain is a member of the
armed forces, or is sending
secret messages to an enemy
Offence for any person 'for any reason prejudicial
to the safety or interests of the state to (a)
approach or enter a prohibited place; (b) make a
sketch or plan that might be useful to the enemy;
(c) obtain, publish or communication any sketch,
etc. which could be useful to the enemy
S3 - 'prohibited place' includes any
defence works, arsenal, naval, or air
force station, or any camp, ship or
aircraft belonging to the Crown
Section 1(2) if the person is acting without
permission, it is presumed that he is doing it for
reasons prejudicial to the state
Chandler v Director of Public
Prosecutions 1964 - conspiring to
damage aircraft that carried nuclear
bombs; not up to individuals to decide
what is prejudicial to the state
R v James 2008 - betrayed Britain by passing coded
messages to Iranian military in Afghanistan
R v Devenney 2012 - collected
information from the submarine
he worked on
OSA 1920
S2 - communication with a foreign agent is evidence of obtaining or
attempting to obtain information which could be useful to an enemy,
contrary to S1 OSA 1911
S1(1) - offence to (i) wear an unauthorised uniform; (ii) make a
false declaration; (iii) forge a permit; (iv) impersonate a government
official, for the purpose of ganging admission to a prohibited place
S3 - no person 'in the vicinity' of a prohibited place shall obstruct/interfere with
military or police guard
Adler v George 1968 -
menas 'in or in the
vicinity of'
S7 - offence to attempt to
commit offences under the
1911 or 1920 Acts, or to do any
preparatory act towards it
OSA 1939 - Section 6 makes an amendment to the 1911,
allowing a chief officer of police to require a suspect to give
information in connection with a S1 1911 offence, with the
permission from the Secretary of State
1989 Act overview
Offences under S1(1); S1(3); S2(1); S3(1);
S4(1) and S5(2)
S1(1) for members of security services
Other offences for Crown Servants
and Government contractors
S5 offence for everyone else, e.g.
journalists who receive information and
publish, or pass it on, etc.
S8(1) - offence to hold onto secret
information beyond the need to do
so
Strict liability offences
Section 1 OSA 1989 - Security and Intelligence
Section 1(1) - offence for a person who is/has been a member of the
security and intelligence services, or a person notified he is subject to the
provisions of this subsection to disclose information without lawful
authority any information, document or other article relating to security
and intelligence, and which is in his possession by virtue of his position
MI5, National Crime
Agency, MI6, SAS, GCHQ
R v Shayler 2001
R v Catherine Gun
(successfully used
defence of duress)
Covers info
including secrets,
technology,
equipment,
information on
spies, information
on the infiltration
of terrorist
groups, secret
plans,
movements,
personnel, etc.
Section 1(3) - a person who is or has been a Crown
Servant or government contractor is guilty of an
offence if, without lawful authority, they make a
damaging disclosure of any information, document
or other article relating to security or intelligence,
and has come into his possession by virtue of his
position
S12 - defines Crown
Servant/government
contractor
Section 1(4)(a) and (b) say a
disclosure will be damaging if 'it
causes damage to the work of
the security and intelligence
services, or its disclosure would be
likely to have this effect'
Section 1(5) defence - did not know and had no
reasonable cause to believe that the information
related to security or intelligence, and that it's
disclosure would be damaging
Section 2 OSA 1989 - Defence of the Realm
S2(1) - offence for a Crown Servant or
government contractor to make a
damaging disclosure of any information,
article or other document relating to
defence, which has come into their
possession by virtue of their position
S2(4) says 'defence'
information includes (a)
the size, shape, order of
battle, deployment and
training of the armed
forces; (b) weapons,
equipment, invention and
development of such
equipment; (c) defence
policy and strategy; (d)
plans to maintain
supplies that would be
needed in the time of
war
S2(2) a disclosure is damaging if (a) it damages the
capability of the armed forces or leads to injury/loss
of life or damage to equipment; (b) endangers the
interests of the UK abroad, or UK citizens abroad; (c)
disclosure would be likely to have these effects
S2(3) a defence for anyone caught - did not
know and had no reasonable cause to believe
that the information related to defence, and that
its disclosure would be damaging
Crown
Servant/government
contractor defined
under S12
Section 3 OSA 1989 - Disclosure of information gained from
international relations (unlikely to be tested)
Section 3(1) - offence for a Crown Servant/government
contractor to make an unlawful damaging disclosure of (a)
any information, document or other article relating to
international relations, or (b) any confidential information
which was obtained from a State other than the UK or
international organisation where that information has been
gained in virtue of his position
Section 3(2) - a disclosure will be damaging if (a) it endangers the interests
of the UK abroad, or UK citizens abroad, or (b) its disclosure would be likely
to have this effect
S3(4) defence to prove that he did not know and did not have
reasonable cause to believe that the information related to
international relations, or that its disclosure would be damaging
Section 4 OSA 1989 - Crime and Special Investigative
Powers
Section 4(1) - offence for a Crown
Servant/government contractor to
make an unlawful damaging
disclosure of any information,
document or other article which
relates to crime and special
investigative powers, and got the
information as a result of his
position
Section 4(2)(a) - the information to which Section
4(1) applies has the following the consequences if
disclosed: (i) results in the commission of an offence;
(ii) facilitates an escape from custody; (iii) impedes
the prevention/detection of offences; (iv) its
unauthorised disclosure would be likely to have these
effects
Therefore it is the effect of the disclosure that
creates a criminal offence
Defences under S4(4) and S4(5) - did not know and did
not have reasonable cause to believe that the disclosure
would have that effect; or did not know and did not have
reasonable cause to believe that the information was
information to which this section applies
Section 5 - Disclosure of information received in
confidence
Partial strict liability offence
Aimed at preventing disclosure by other
people, e.g. press, roommates, etc.
S5(1) defines the type of information that falls
into this section and how it came into the person's
possession
(i) Disclosed to him by a Crown Servant or
government contractor without lawful authority
(ii) Entrusted to him by a CS/GC on the terms
that it be held in confidence
(iii) Disclosed to him without lawful authority by
a person to whom is was entrusted as
mentioned in S5(1)(ii)
S5(2) Offence to disclose information without lawful
authority, or having reasonable cause to believe that it is
protected against disclosure
S5(3) To commit an offence, the following
has to occur: disclosure made is damaging
and he makes it knowing, or having
reasonable cause to believe that it would
be damaging
Therefore, could be a defence if D can prove he did
not know/have reasonable cause to believe it
would be damaging
Common law defence of duress and necessity
Duress - D under threat of death/physical
harm to himself or another, and D commits a
specifically stated crime (lesser of two evils)
Necessity - Threat of death/physical harm because of the
emergency situation the D is in, e.g. a fire forces someone to
smash a window of a house
Test from R v Martin 1989 - did the D act the way they did
because they had reason to fear that death/injury would result
and would a reasonable person, with the characteristics of the D,
have acted in the same way?
R v Shayler 2001 -
unsuccessful as
could not identify
those he saved
R v Catherine Gun - successful
as she could identify who she
saved
OSA Breach of Confidence
Goes back to AG v Jonathan Cape
1976
Latest case - (Scottish) Lord Advocate v
Scotsman Publications
Different test to normal BOC
from Campbell v MGN
Step 1 - is the publication a BOC?
Information is confidential and it was
disclosed
Newspapers bound - reasonable man would have
realised the information should have been kept
confidential
Step 2 - does the public interest require that the
information be restrained?
Articles produce 'harm' -
against the public
interest to allow
publication
Lord Advocate v
Scotsman Publications
1990 - allowing
publication by a former
member of the security
services would always
be contrary to the public
interest
Step 3 - is there a greater public
interest that requires disclosure?
E.g. Sunday Times in Spycatcher cases -
even though against public interest to
allow publication, argued there was a
greater public interest to publish
If confidential information is revealed to expose the
wrongdoing of others, then it may justify disclosure
Spycatcher Cases
- 1987-88
Section 7 - Authorised disclosures
A defence
S7(1) - if disclosure is made in
accordance with his duty, he is not
committing an offence
S7(2) If disclosure is made as part of their job with the permission of a
person with authority to allow disclosure - not committing an offence
S7(4) However, have to prove that they believed they had
lawful authority, or had no reasonable cause to believe
that they did not have lawful authority