A Tale of Two Leaks
Gavin Williamson, Sir Kim Darroch, and the Official Secrets Act 1989
Introduction
One side-effect of our current political turmoil seems to be an increase in leaks of sensitive government information. In May 2019, Prime Minister Theresa May sacked her Defence Secretary, Gavin Williamson, after cabinet disagreements about the role of Huawei in the UK 5G network were leaked to the press. And in July 2019, the leak of diplomatic cables containing Her Majesty’s Ambassador to the United States Sir Kim Darroch’s frank views about the Trump administration led to his resignation.[1] This was followed by a backlash against the Metropolitan Police when Assistant Commissioner Neil Basu suggested that journalists who published further leaked cables might be prosecuted. Our new Prime Minister, Boris Johnson, said at the time that while the leaker should be “hunted down and prosecuted” it would be wrong to prosecute a journalist who published such material.
These leaks have also served as a reminder that there is a good deal of confusion about who is bound by the Official Secrets Act 1989, and to what extent. This article gives an overview of the law and also the approach the authorities take to the investigation and prosecution of unauthorised disclosures of sensitive information.
What information is protected by the Official Secrets Act 1989?
The Official Secrets Act 1989 criminalises the unauthorised disclosure of certain categories of protected information, including:
- Security and intelligence (section 1)
- Defence (section 2)
- International relations (section 3)
- Crime and special investigatory powers (section 4)
- Diplomatic communications between states (section 6)
Who is bound by the Official Secrets Act 1989?
The 1989 Act applies to everyone, but to differing extents. The Act creates three categories of person:
- Current and former members of the security and intelligence services or notified persons
- Current and former Crown servants or government contractors
- Everybody else (including the media)
Current and former members of the security and intelligence services, and notified persons
As far as leaks of security and intelligence material is concerned, this group is held to the highest standard. Current and former members of the security and intelligence services, and notified persons, commit an offence contrary to section 1(1) of the Official Secrets Act 1989 if they make an unauthorised disclosure of information relating to security and intelligence. It is not necessary to show that the leak was damaging to the national interest in any way.
The term “notified person” relates to a person who has been officially informed that they are subject to section 1(1) Official Secrets Act 1989. This includes classes of person, such as members of the Intelligence and Security Committee of Parliament, and some individuals who might be given access to sensitive material as part of their work, such as lawyers.
Current and former Crown servants or government contractors
This group is much larger than those bound by section 1(1) of the Official Secrets Act 1989. It includes civil servants, members of central and devolved governments, the police and the military, plus various private individuals. Generally, members of this group will only commit an offence contrary to the Official Secrets Act 1989 if they leak information which is damaging to the national interest in some way.
The differing positions of this group and those bound by section 1(1) of the Act can be illustrated as follows:
If a civil servant in the Department for Work and Pensions disclosed material relating to security and intelligence without authority, they would only commit an offence if the disclosure was damaging.
By contrast, if a member of MI6 disclosed the same information without authority, they would commit an offence regardless of whether the disclosure was damaging.
Everyone else (including the media)
It is quite common for people to talk about “signing the Official Secrets Act”. It is true that some officials are asked to sign documents acknowledging they are aware of the provisions of the Act. But a person who does not sign such an acknowledgment is still subject to the law.
Furthermore, any person can commit an offence contrary to section 5 of the Official Secrets Act 1989 if they make a damaging disclosure of information protected by sections 1 – 4 of the Act. For example, if a member of the public found protected information about security and intelligence on the pavement outside a government building they risk committing an offence if they pass that information on to a third party. This applies equally to the media. So if a civil servant passes protected information to a journalist, the journalist risks committing an offence if they pass that information on, including by publishing it.
When Assistant Metropolitan Police Commissioner Neil Basu warned that journalists who published leaked material risked committing an offence he was presumably referring to section 5 of the Official Secrets Act 1989. It would appear that the original leaker of the information may have committed an offence under section 3 of the Official Secrets Act 1989.
How are leaks investigated?
It can be difficult to distinguish damaging leaks from those that are merely embarrassing. A leak might become more damaging over time, or less so. The damage from a leak of information can be far more difficult to assess (and prove) than damage to property or injury to a person. Where Members of Parliament are or may be involved, the question of parliamentary privilege will need to be considered. Furthermore, the need to prove damage to the criminal standard can make prosecutions in this sensitive area very unattractive and difficult.
Since at least 2010 a protocol has been in place to assess suspected leaks and determine which are so serious as to amount to potential criminal conduct. This might help to explain why the investigation into the Huawei leaks were treated as a Cabinet Office matter, whereas the Sir Kim Darroch leaks appear to have been passed to the police.
How are leakers prosecuted?
No prosecution under the Official Secrets Act 1989 may be brought without the consent of the Attorney General or the Attorney General for Northern Ireland. The only exception is a prosecution under section 4(2) – unauthorised disclosure of information disruptive to criminal justice. This offence can be prosecuted with the consent of the Director of Public Prosecutions/the Director of Public Prosecutions for Northern Ireland.
The CPS guidance on assessing public interest in cases affecting the media is relevant where a leak has been published. The guidance recognises that there are likely to be heightened freedom of expression considerations in relevant cases, whilst stressing that “neither journalists nor those who interact with them are afforded special status under the criminal law.”
Is the law compatible with the right to freedom of expression?
There is no ‘public interest’ defence to offences under the Official Secrets Act 1989, though it is often argued that there should be.
The closest the courts have come to considering this question was in the case of David Shayler. Mr Shayler, a former MI5 agent, passed a number of highly sensitive documents to the Mail on Sunday. Articles were published which purported to be based on these documents. Mr Shayler was prosecuted under the Official Secrets Act 1989. He argued, unsuccessfully, that the prosecution was incompatible with his rights to freedom of expression. The House of Lords dismissed his case.[2] It is notable that whilst Mr Shayler was prosecuted for sharing the information, nobody at the Mail on Sunday was prosecuted for publishing it.
What other offences may be relevant to leaks of official information?
A number of other criminal offences may be relevant where official information is leaked. This includes offences under the Data Protection Act 2018 and the Computer Misuse Act 1990. The common law offence of misconduct in public office may also be appropriate, as may a large number of relatively narrowly-focused criminal offences. For example, section 11 of the Atomic Energy Act 1946 criminalises the unauthorised disclosure of information relating to atomic energy production.
It should also be noted that there is some overlap between the Official Secrets Act 1989 and the Official Secrets Act 1911, the main statute criminalising espionage. For example, a person commits an offence under section 1(c) of the Official Secrets Act 1911 if they obtain, collect, record, publish, or communicate information of potential use to an “enemy”. A more detailed discussion of the 1911 Act can be found in the Law Commission’s 2017 consultation paper, Protection of Official Data.
Conclusion
This is just an overview of a complicated and sensitive area of law. Opinions differ as to the extent to which the law strikes the right balance between security and freedom of expression. Many consider the law to be in need of reform, though few agree as to what direction the law should take.
Zubair Ahmad QC
Amy Woolfson
[1] It has never been suggested that Sir Kim was the source of the leaks, merely that he authored the cables.
[2] R v Shayler [2002] UKHL 11
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