Regina v Shayler (On Appeal from the Court of Appeal (Criminal Division))

A member or former member of the security and intelligence services charged under sections 1(1) or 4(1) and (3) of the Official Secrets Act 1989 has no public interest defence to an unauthorised disclosure. The statutory scheme is compatible with article 10 because it permits disclosure to specified Crown servants and applications for official authorisation, followed by judicial review of any refusal.

Any refusal must receive rigorous proportionality review. The court must consider the importance of freedom of expression, whether secrecy answers a pressing social need, and whether the restriction goes no further than necessary. A former member must use those procedures and cannot defend a prosecution by asserting that disclosure or authorisation would have been ineffective.

The appellant, a former Security Service member, faced three counts of unauthorised disclosure under sections 1 and 4 of the Official Secrets Act 1989. At a preparatory hearing, Moses J ruled that the Act provided no public interest defence and was compatible with article 10 of the Convention. The Court of Appeal (Criminal Division) upheld those rulings in [2001] 1 WLR 2206.

The appellant challenged the use of the preparatory-hearing procedure, the exclusion of a public interest defence and the compatibility of the statutory scheme with freedom of expression. Questions of necessity and duress of circumstances had also been discussed below, although the appellant's asserted case did not raise them.

Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Hope, Lord Hutton and Lord Hobhouse agreed with his reasons. Lord Scott also agreed, subject only to a reservation concerning part of Lord Hutton's separate reasoning.

1. Per Lord Bingham, sections 1(1)(a) and 4(1) and (3)(a) of the Official Secrets Act 1989, read naturally and in their statutory context, provide no defence that an unauthorised disclosure was, or was believed to be, in the public or national interest. Parliament deliberately imposed no damage requirement for those disclosures and supplied specific, limited defences.

2. The restrictions pursued legitimate objectives identified in article 10(2) and were prescribed by law. Security and intelligence work depends upon secrecy, mutual confidence, protection of sources and continued confidence among foreign intelligence partners. The special duties of members and former members justified a bright-line rule against unauthorised disclosure.

3. The rule was not an absolute prohibition. Section 7 permitted a former member to report concerns to Crown servants acting within their functions and to seek official authorisation for wider disclosure. A decision-maker considering authorisation must assess the particular material, the statutory objective, any security harm, freedom of expression, pressing social need and proportionality.

4. A refusal of authorisation was subject to rigorous judicial review informed by article 10. The reviewing court could assess the balance struck and the relative weight of competing interests, rather than applying only traditional rationality review. Legal advice and appropriate protective procedures, including special counsel where necessary, could preserve fairness without compromising sensitive information. The statutory safeguards were therefore sufficient and effective, and sections 1(1) and 4(1) and (3) were compatible with article 10.

5. The appellant had to use the statutory procedures. He could not answer a prosecution by asserting that disclosure to an authorised recipient would have produced no action or that authorisation would have been refused.

6. The preparatory hearing was properly ordered under section 29 of the Criminal Procedure and Investigations Act 1996. The judge's power under section 31(3)(b) extended only to questions of law relating to the case. Necessity and duress of circumstances did not arise on the appellant's case, and the courts below should not have ventured into those issues.

1. House of Lords: Dismissed the appeal unanimously and upheld the rulings that there was no public interest defence under the Official Secrets Act 1989 and that the relevant provisions were compatible with article 10.
2. Court of Appeal (Criminal Division): In [2001] 1 WLR 2206, upheld the use of the preparatory-hearing procedure, the absence of a public interest defence and compatibility with article 10. It differed from the judge on the law of necessity and duress of circumstances but found no factual basis for either defence.
3. Crown Court: At a preparatory hearing, Moses J ruled that sections 1 and 4 of the Official Secrets Act 1989 provided no public interest defence and were compatible with article 10. He accepted that conventional duress was theoretically available but rejected necessity and duress of circumstances.