Katrin Ivanova & Ors v R

For an offence under section 1(1) of the Official Secrets Act 1911, the prosecution must identify a purpose for which the defendant acted. That inquiry is subjective and may concern an immediate purpose even where a different ultimate purpose is asserted. Whether that identified purpose was prejudicial to the safety or interests of the State is a separate, objective question.

In a statutory conspiracy, the objective descriptor “prejudicial” is part of the mechanism defining the offence’s mental element. It is not a fact or circumstance which must itself be intended or known under section 1(2) of the Criminal Law Act 1977. An “enemy” may include a state posing a current threat to United Kingdom national security, subject to the jury’s assessment on the evidence.

Six defendants were charged with conspiracy to spy, contrary to section 1(1) of the Criminal Law Act 1977, by conspiring to obtain or communicate information intended to be useful to an enemy for a purpose prejudicial to the safety or interests of the State. The alleged recipient was an agent of the Russian Federation.

At a preparatory hearing, Hilliard J ruled that the prejudicial-purpose element in section 1 of the Official Secrets Act 1911 was objective, that statutory conspiracy did not require intention that the purpose be prejudicial, and that “enemy” was not confined to a state with which armed conflict was foreseeable. The defendants appealed with leave under section 35 of the Criminal Procedure and Investigations Act 1996.

The central questions were the meaning of “for any purpose prejudicial to the safety or interests of the State”, the effect of section 1(2) of the Criminal Law Act 1977, and the meaning of “an enemy”.

1. Appeal dismissed. The judge’s ruling was upheld. Chandler and ors v DPP [1964] AC 763 remained binding and correctly decided.
2. Under section 1(1) of the Official Secrets Act 1911, the prosecution proceeds in two stages. It must first identify a purpose for which the defendant acted. That is a subjective inquiry into why the defendant acted, and the prosecution may rely on an immediate purpose even if an ultimate purpose was also pursued. It must then prove objectively that the identified purpose was prejudicial to the safety or interests of the State. It need not prove that the defendant intended to prejudice those interests.
3. Section 1(2) of the Official Secrets Act 1911 was evidential. It enabled proof of a relevant purpose through circumstances, conduct and character where no particular act tending to show prejudice was proved. It did not alter the objective character of whether an identified purpose was prejudicial.
4. Section 1(2) of the Criminal Law Act 1977 did not require a conspirator to know or intend that the identified purpose was prejudicial. Although statutory conspiracy requires knowledge or intention concerning all constituent facts or circumstances, “prejudicial” was not such a fact or circumstance. It was the objective descriptor determining whether the purpose identified as part of the mental element sufficed.
5. “Enemy” was not restricted to a state with which the United Kingdom was at war or foreseeably would be at war. The term could include a state presenting a current threat to United Kingdom national security. Whether the description was established was for the jury on the evidence; friendly powers fell outside it.

• Court of Appeal (Criminal Division) Dismissed the interlocutory appeal and upheld the preparatory-hearing ruling: [2024] EWCA Crim 808.
• Central Criminal Court Hilliard J ruled at a preparatory hearing on 31 May 2024 on the ingredients of the alleged conspiracy offence.