Finch, R. v (Solicitor General's Reference) (Rev 1)

Sentencing for offences involving official secrets must give pre-eminent weight to national security, deterrence and the actual or potential harm caused. Once sensitive material is deliberately recorded and distributed insecurely, harm may be assessed on the basis that it may have reached hostile hands, even without proof of receipt by an enemy. Personal grievance or claimed moral justification ordinarily provides little mitigation. Where autism or another developmental disorder is present, the court should first assess culpability under the relevant offence guideline and then ask whether a sufficient connection reduces it. A disorder explaining grievance does not necessarily materially reduce responsibility for planned, deliberate offending. Totality may justify concurrency for interrelated offences, although failure to provide encryption keys may often warrant a consecutive term.

The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988 after the defendant pleaded guilty to recording information prejudicial to the interests of the State under the Official Secrets Act 1911, making a damaging disclosure under the Official Secrets Act 1989, and failing to comply with a disclosure notice under the Regulation of Investigatory Powers Act 2000.

Following a trial at the Central Criminal Court, Whipple J imposed an aggregate sentence of four and a half years. The reference challenged the sentence as unduly lenient. The central issues were the gravity and harm of the secrets offending, the effect of the defendant’s autistic features on culpability, the relevance of his personal grievances, and the application of totality to the continuing failure to provide encryption keys.

The application was granted. The sentence was unduly lenient and was quashed and substituted.

1. Seriousness, harm and deterrence. The offending involved highly classified information concerning an operational missile system. The information had been deliberately recorded over many months and sent through insecure channels to unauthorised recipients. The court endorsed the approach in R v Shayler [2003] 1 AC 247 concerning the vital need to preserve secrecy. National security and deterrence were pre-eminent considerations. The assessment of harm included actual harm from insecure transmission, potential compromise of the system, risks to lives, mitigation costs and reputational damage. The authorities could thereafter proceed on the assumption that the material had fallen into the wrong hands.
2. Motivation and suggested defences. The defendant’s personal grievances and claimed moral justification did not materially reduce the seriousness of the offending. The damage to the national interest and the need for deterrence were not materially altered by whether the motivation was grievance, ideology, financial reward, pressure or another cause. The suggested defences of necessity and duress of circumstances were fanciful. Following R v Shayler [2003] 1 AC 247, the defendant was not within measurable distance of such a defence.
3. Autism and culpability. The court considered the Sentencing Guideline on offenders with mental or developmental disorders. The proper approach was first to assess culpability under any relevant offence-specific guideline and then to determine whether there was a sufficient connection between the impairment and the offending to reduce culpability. The defendant’s autistic features helped explain his strongly held grievances but did not compel the offending or render him delusional. His conduct was carefully planned and deliberate, so the impairment had only a relatively slight effect on overall responsibility.
4. Relationship between the counts and totality. The court agreed that count 1 was more serious than count 2 because the recording had been undertaken with a purpose prejudicial to the interests of the United Kingdom and in preparation for disclosure. Following trial, counts 1 and 2 should have attracted at least ten years in total. The culpability for count 3 was also high, but the three offences were significantly interrelated. Applying totality, the sentence for count 3 was therefore made concurrent in this case, although the court observed that consecutive sentences would often be necessary.
5. Orders. The court substituted six and a half years’ imprisonment on count 1, eighteen months consecutive on count 2, and two and a half years concurrent on count 3, making a total of eight years. The other orders remained in force, with credit for time served on remand.

1. Court of Appeal (Criminal Division): In [2021] EWCA Crim 377, the Solicitor General’s reference was granted. The sentences were quashed and substituted, increasing the total sentence to eight years’ imprisonment.
2. Central Criminal Court: Following guilty pleas after the trial judge ruled that no defence arose, Whipple J imposed an aggregate sentence of four and a half years’ imprisonment, together with ancillary orders.