Regina v Shayler

The House of Lords held that, on ordinary principles of construction, sections 1(1) and 4(1) of the Official Secrets Act 1989 do not permit a defendant who is or has been a member of the security and intelligence services to rely on a general "public interest" defence to unauthorised disclosures. The court concluded that those provisions, read as a statutory scheme together with the authorisation routes in section 7, the prosecutorial safeguard of Attorney General's consent and the possibility of judicial review, are prescribed by law and compatible with Article 10(1)–(2) of the European Convention on Human Rights. The preparatory hearing under section 29 Criminal Procedure and Investigations Act 1996 was appropriate to resolve the legal issues. The appeal was dismissed.

Background and facts.

The appellant, a former member of the Security Service from 1991 to 1996, was indicted on three counts alleging unlawful disclosure of information and documents relating to security or intelligence contrary to sections 1 and 4 of the Official Secrets Act 1989. He had disclosed classified material to a newspaper and publicly asserted that any disclosures were made in the public and national interest to expose illegality and misconduct within the Service. He was arrested after returning to the United Kingdom. At a preparatory hearing ordered under section 29 of the Criminal Procedure and Investigations Act 1996, Moses J ruled that no public interest defence was available under sections 1 and 4 and that those sections were compatible with Article 10 of the European Convention. The Court of Appeal upheld those rulings and the appellant appealed to the House of Lords.

Nature of the claim / relief sought.

• The appellant sought to establish, as a defence to the criminal charges, that his disclosures were in the public interest and thus lawful or excused.
• He also challenged the compatibility of sections 1 and 4 of the Official Secrets Act 1989 with Article 10 ECHR.

Issues framed by the court.

• Whether sections 1(1) and 4(1) of the Official Secrets Act 1989, properly construed, permit a public interest defence.
• If not, whether those provisions are compatible with Article 10(1) and (2) of the Convention and, if incompatible, whether they can be read so as to conform with the Convention or whether a declaration of incompatibility was required.
• Whether the preparatory hearing power under section 29 CPIA 1996 and the judge’s rulings under section 31 were appropriate.

Reasoning and subsidiary findings.

• The House read the statutory text and the government materials and found that sections 1(1) and 4(1) impose offences for unauthorised disclosures by members or former members of the intelligence services without any statutory public interest defence; the only statutory defences are limited knowledge‑based defences in subsections such as section 1(5) and section 4(5).
• Article 10 analysis: the restrictions are "prescribed by law"; they pursue legitimate aims (national security); and the court must consider necessity and proportionality. The statutory scheme was found to contain safeguards sufficient to meet Article 10(2): disclosure routes to Crown servants, the official authorisation procedure under section 7, the ability to seek judicial review of a refusal, and the Attorney General's consent to prosecution under section 9(1).
• The House rejected the submission that judicial review would be ineffective in practice; it accepted that courts applying proportionality can conduct an appropriately intensive review and devise procedures (for example closed hearings or special counsel) to protect genuinely sensitive material.
• The trial judge and Court of Appeal were entitled to decide the legal issues at a preparatory hearing under section 29 CPIA 1996; Moses J had erred in venturing into necessity/duress of circumstances beyond the appellant's pleaded case, but that did not affect the main rulings.

Conclusion. The statutory scheme, read with its safeguards and with the availability of effective judicial review, met Article 10 requirements and no public interest defence was to be read into sections 1 and 4. The appeal was dismissed.

Appeal dismissed. The House held that sections 1(1) and 4(1) of the Official Secrets Act 1989, properly construed, do not permit a general public interest defence to unauthorised disclosures by members or former members of the security and intelligence services; however, those provisions are compatible with Article 10 ECHR because the statutory scheme provides prescribed routes for lawful disclosure (section 7), the Attorney General's consent to prosecution and the availability of judicial review applying proportionality, which together are sufficient safeguards.

Preparatory hearing before Moses J under section 29 Criminal Procedure and Investigations Act 1996; Moses J ruled that no public interest defence was available and that sections 1 and 4 OSA 1989 are compatible with Article 10. Appeal to the Court of Appeal (Criminal Division) which upheld Moses J: [2001] 1 WLR 2206. Appeal to the House of Lords: [2002] UKHL 11 (dismissed).