(This ruling appears to establish a defence of necessity to breaches of the Official Secrets Act, although it does not find that Shayler can rely on that defence.)
Case No: 2001/02869/S4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MR JUSTICE MOSES
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Friday 28 September 2001
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON. MR JUSTICE WRIGHT
THE HON. MR JUSTICE LEVESON
– – – – – – – – – – – – – – – – – – – – –
– and –
David Michael Shayler
Edward Fitzgerald QC and Keir Starmer (instructed by Liberty & Birnberg Peirce for the Appellant)
Nigel Sweeney QC and Jason Coppel
(instructed by the Crown Prosecution Service for the Respondent)
Michael Tugendhat QC
(instructed by Alastair Brett for the Times Newspapers Ltd)
– – – – – – – – – – – – – – – – – – – – –
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Woolf CJ:
This is the judgment of the Court, on an appeal by David Michael Shayler from a judgment of Moses J. which was given after a preparatory case management hearing under section 29 of the Criminal Procedure and Investigations Act 1996 (“a section 29 hearing”) in relation to his forth coming trial on three counts charging offences under the Official Secrets Act 1989 (“the OSA”). The first and third counts allege that as a former member of the Security and Intelligence Services (“the Services”) he disclosed documents relating to security or intelligence without lawful authority contrary to section 1(1) of the OSA. The second count alleges that he disclosed information obtained under warrants issued under the Interception of Communications Act 1985 (“the IOCA”).
- The appeal raises a number of issues of importance which we would identify as follows:
Whether the offences with which Mr Shayler is charged are offences that are subject to a defence of duress or necessity of circumstances and, if so, whether that defence is capable of applying to the type of situation which Mr Shayler has, so far indicated he relies upon as justifying the disclosure which he made. (The Defences of Duress and Necessity Issue)
- Whether those offences are not committed if, or are subject to a defence that:
the disclosure was necessary in the public interest to avert damage to life or limb or serious damage to property or
- to expose serious and pervasive illegality or iniquity in the obtaining of warrants and surveillance of suspected persons either at common law or as a result of the coming into force of the Human Rights Act 1998 (“the HRA”). (The Freedom of Expression Issue)
- The circumstances in which it is appropriate for a judge to make rulings on a Section 29 hearing which will define the issues which can be the subject of evidence at a forthcoming trial. (The Section 29 Hearing Issue)
- The position of the media when the disclosure, which is relied upon as amounting to offences, is made to the press, as is the case with offences with which Mr Shayler is charged. (The Press Issue)
- In relation to fourth issue which we have identified we allowed seven national newspapers to intervene in the proceedings and received written and oral submissions which we found extremely helpful from Mr”Tughandat Q. C. on behalf of the press. The press are particularly concerned that if the offences with which Mr Shayler is charged are as absolute as the prosecution contend, this could affect their freedom to obtain information which is of public interest and even could result in their members being charged with being parties to the crimes with which Mr Shayler has been charged.
- Mr Shayler was a member of the Security Service (“MI5”) from November 1991 to October 1996. At the outset of his service he signed an OSA declaration acknowledging the confidential nature of documents and other information relating to security or intelligence, defence or international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose, without authority, any information that came into his possession by virtue of his employment. On leaving the service he signed a further OSA declaration acknowledging that the provisions of the Act continued to apply to him notwithstanding the termination of his appointment, and that the same requirements of confidentiality continued to apply to any information, documents or other articles relating to security or intelligence, defence or international relations which might have come into his possession as a result of his previous employment.
- By about August 1997 Mr Shayler was in contact with journalists from The Mail on Sunday newspaper. It appears that he handed over to the newspaper a collection of documents that had been removed from the Service. Some 30 different documents were returned by the newspaper to the Treasury Solicitor in March 1998; the bulk of them appeared to relate to security or intelligence matters and were classified at levels ranging from “classified” up to and including “Top Secret”. Certain of the documents included material obtained by or relating to the interception of communications in obedience to warrants issued by the Secretary of State under section 2 of the IOCA.
- On the 24th August 1997, the Mail on Sunday published an article written by Mr Shayler himself (according to the by-line) and a number of other articles by journalists purporting to be based upon information given by him. For these activities he was paid a substantial sum of money by the Mail. The prosecution contends that the information contained in and referred to in such articles relate to matters of security and intelligence about which the defendant could only have had access by reason of his employment with the service.
- On the day before these articles were published, the defendant left this country for Holland. On 21st August 2000 Mr Shayler voluntarily returned from France and was arrested on his arrival in this country at Dover. He was cautioned and made no reply. He was not interviewed at any stage, but was taken to London and charged at Charing Cross Police Station that same afternoon and said in reply:
“I have been living in Paris for 3 years and I have decided voluntarily to return to Britain to face charges under the Official Secrets Act. I have done this to clear my name and to allow a jury of 12 of my fellow citizens to judge me. I have also returned to challenge the cover-ups and complacency that have followed my disclosures. I admit that as an officer of the security service I was a Crown servant from November 1991 to October 1996. However I do not admit making any disclosures which were contrary to the criminal law. Any disclosures made by me were made in the public and national interests. In my defence I will rely on my right of freedom of expression as guaranteed by the Common Law, the Human Rights Act and Article 10 of the European Convention on Human Rights.”
- Mr Fitzgerald QC who represents Mr Shayler criticises the suggested failure of the police to interview Mr Shayler. However, it is not clear to us what could have been achieved by following such a course. Mr”Shayler’s explanation and alleged justification for what he had done was set out in extenso in the newspaper articles of which complaint is made. Further, in the circumstances of this case it is at least arguable that no such interview could or should properly have taken place, in the light of paragraph 16.1 of code C of the Codes of Practice. The police, at the material time, plainly had in their possession sufficient evidence to prosecute Mr Shayler and that evidence at least was sufficient for a prosecution to succeed.
- On the 16th May 2001, in the course of a preparatory hearing under section 29 of the 1996 Act, Moses J, the nominated trial judge ruled:-
Section 1(1) and section 4 of the OSA do not permit a defendant to raise a defence that his disclosure was necessary in the public interest to avert a threat to life or limb or serious damage to property.
The legislation does permit disclosure which may be in the public interest either to those identified in section 12(1) of the OSA or disclosure to others with the authority of those so identified.
- A refusal of authority may be challenged in a court exercising the jurisdiction of judicial review.
The imposition of criminal sanctions in support of the restrictions contained in section 1(1) and section 4(1), without the possibility of raising such a defence, are necessary in a democratic society. They are no wider than necessary to achieve the legitimate aim of protecting national security. They are not disproportionate. The reasons advanced by the prosecution convincingly establish relevant and sufficient justification for the restriction.
In those circumstances the provisions of section 1(1) and 4(1) are compatible with Article 10 of the ECHR.
- Moses J also ruled that while the offences were subject to the common law defence of duress in its original limited form, the development of the defence to cover necessity of circumstance is excluded by the OSA.
- Moses J ruled that all that the prosecution is required to prove to obtain a conviction in the present case is:-
That the defendant has been a member of the security and intelligence services;
- That he disclosed documents relating to security or intelligence which were in his possession by virtue of his position as a member of those services (Count 1) or information obtained by reason of warrants issued under section 2 of the IOCA (Count 2) or information relating to security or intelligence which was in his possession by virtue of his position as a member of those services (Count 3)
- That he made such disclosure without lawful authority.
- If this ruling stands it appears probable there will be no disputes of facts which a jury will have to resolve before finding Mr Shayler guilty and it is against that ruling that the defendant now appeals.
- Central to the issues on this appeal are the terms of the OSA. Moses J, in his detailed and admirably clear and thorough judgment, recognised that the interpretation of those terms was illuminated by the legislative history of the OSA. For a prolonged period of time prior to 1989 there had been sustained criticism of the extremely broad or “catch all” terms of section 2 of the OSA. The OSA left intact section 1 of the 1911 Act which made it an extremely serious offence to perform an act for any purpose prejudicial to the safety or interests of the State, but replaced section 2. There was active debate as to what would be the appropriate replacement. The primary problem was how to achieve the needs of national security without unnecessarily restricting freedom of information.
- The White Paper which preceded the OSA made it clear that it should be an objective of the proposed replacement to clearly define the circumstances in which the disclosure of information “needs to be criminal”. No one should be in doubt as to the position. In addition, the law should be able to be enforced without an undue burden being placed on the prosecution or defence (paragraph 14 and 26 of the judgment).
- A distinction was proposed between information disclosed by members and former members of the security services and information disclosed by others. The White Paper indicates the then government’s belief that all disclosure by members of those services is harmful unless the disclosure is authorised. The qualification, as to authorisation, was a critical part of the proposal. Without the qualification the restriction would be draconian. If there was an adequate system of authorisation this means that the extent of the restriction would be more acceptable.
- There are reasons which justify singling out members and former members of those services. They include the need for the members of those services to be able to communicate freely among themselves, the facts that disclosure by them has an increased credibility because it is made by such members and that disclosure would breach the obligations which they undertake on becoming members of the services, the difficulty for the government in challenging the accuracy of the disclosure, the problems which could arise in prosecuting offences, if the prosecution was required to prove the damaging nature of the disclosure (because it could involve revealing more sensitive information than the offences had revealed) which could make some offences not capable of being prosecuted.
- By contrast to the position in relation to members and former members of the secret and intelligence services, in the case of other Crown servants and contractors it was accepted there was a need to show that the information alleged to have been disclosed would or was likely to cause damage. It would be sufficient if the information was of a class or description, the disclosure of which was likely to cause damage.
- The White Paper firmly rejected a possible defence that the disclosure was in the public interest. Among the objections to such a defence was the fact that it would interfere with the clarity of the legislation proposed. During its passage through Parliament an amendment to the bill inserting a public interest defence was defeated.
- The terms of section 1 of the OSA are important and are as follows:
“1(1) a person who is or has been –
(a) a member of the Security and Intelligence Services; or
(b) a person notified that he is subject to the provisions of this sub-section,
is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.
[The criteria for notification include close and regular contact lending to intimate knowledge of the work and structure of the services (28 Jan 1989 HC OR Col 1128-29)]
(2) the reference in sub-section (1) above to disclosing information relating to security or intelligence includes a reference to making any statement that purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.
(3) a person who is or has been a Crown servant or Government contractor, is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such, but otherwise than is mentioned in sub-section (1) above.
(4) for the purposes of sub-section 3 above, a disclosure is damaging if –
(a) it causes damage to the work of, or any part of, the security and intelligence services or
(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles, the unauthorised disclosure of which would be likely to have that effect.
(5) it is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, documents or articles in question related to security or intelligence or in the case of an offence under sub-section (3), that the disclosure would be damaging with the meaning of that sub-section.
(9) In this section “security or intelligence” means the work of, or in support of, the security and intelligence services or any part of them and references to information relating to security or intelligence, include references to information held or transmitted by those services or by persons in support of, or of any part of, them.”
- Section 4 has the rubric “Crime and Special Investigation Powers”. It provides:-
“4(1) a person who is or has been a Crown servant or Government contractor is guilty of an offence if, without lawful authority, he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such.
(2) This section applies to any information, document or other article –
the disclosure of which –
(i) results in the commission of an offence; or
(ii) facilitates an escape from legal custody; or
(iii) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or
(b) which is such that its unauthorised disclosure would be likely to have any of those effects.
(3) This section also applies to: –
(a) any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985, any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception and
(b) any information obtained by reason of action authorised by a warrant issued under section 3 of the Security Service Act 1989…..
(4) It is a defence for a person charged with an offence under this section in respect of a disclosure falling within sub-section (2)(a) above to prove that at the time of the alleged offence, he did not know, and had no reasonable case to believe, that the disclosure would have any of the effects there mentioned.
(5) It is a defence for a person charged with an offence under this section, in respect of any other disclosure to prove that at the time of the alleged offence, he did not know, and had no reasonable cause to believe, that the information, document or article in question was information or a document or article to which this section applies. ”
- Section 7 has the rubric “authorised disclosures”. It provides:-
“7(1) for the purposes of this Act, a disclosure by –
(a) a Crown servant; or
(b) a person not being a Crown servant or Government contractor in whose case a notification for the purposes of section 1(1) above is in force,
is made with lawful authority if, and only if, it is made in accordance with his official duty.
(3) For the purposes of this Act, a disclosure made by any other person is made with lawful authority if, and only if, it is made –
(a) to a Crown servant for the purposes of his functions as such; or
(b) in accordance with an official authorisation.
(4) It is a defence for a person charged with an offence under any of the foregoing provisions of this Act to prove that at the time of the alleged offence he believed that he had lawful authority to make the disclosure in question and had no reason or cause to believe otherwise.
(5) In this section “official authorisation” and “official restriction” mean, subject to sub-section (6) below, an authorisation or restriction duly given or imposed by a Crown servant or Government contractor or by or on behalf of prescribed body or a body of a prescribed class.”
- Section 12 contains the definition of Crown Servant. Section 12(1) provides:-
“12(1) in this Act “Crown Servant” means-
(a) a Minister of the Crown;
(b) a person appointed under section 8 of the Northern Ireland Constitution Act 1973….;
(c) any person employed in the Civil Service of the Crown….
(d) any member of a Naval, Military or Air Forces of the Crown…..
(e) any Constable and any other person employed or appointed in or for the purposes of any police force…..
(f) any person who is a member or employee of a prescribed body or a body of a prescribed class and either is prescribed for the purposes of this paragraph or belongs to the prescribed class of members of employees of any such body;
(g) any person who is the holder of a prescribed office or who is an employee of such a holder and either is prescribed for the purposes of this paragraph or belongs to a prescribed class of such employees.”?
- Section 9 requires a prosecution for the offences with which Mr Shayler is charged to be brought with the consent of the Attorney General. This requirement provides a protection for a defendant since the decision to give or decline his consent is taken by the Attorney General in his role as the guardian of the public interest and not in his role as legal advisor to the government. If the AG gave his consent in a case in which it was perverse to do so this decision, today, would probably be reviewable on an application for judicial review. This is notwithstanding the decision to the contrary by the House of Lords in Gouriet v Union of Post Office Workers  AC 435. (The point was conceded by counsel for Mr”Gouriet) AUTHORISING DISCLOSURE
- We have drawn attention already to the importance of the fact that it is unauthorised disclosure with which Mr Shayler is charged. Mr Shayler does not accept that there are effective steps which he could have taken by making complaints through official channels to ensure that action would, in turn, be taken to address his concerns or result in his being authorised to make the extensive disclosures which he did to the press. (Being realistic there must be doubt as to whether authority would ever have been forthcoming to make the disclosures which were made to the press.) However, that there were channels for his complaints is not in dispute.
- Thus, as Moses J observed, a former member of the Services is entitled to make disclosure to a Crown servant for the purposes of his functions as such. Furthermore, as he went on to say:
“The Act permits not only disclosure to those identified by section 12(1) but also authorisation by those identified to make disclosure to others (“Official authorisation: see section 7(3)(b) and section 7(5)). Where a former member of the Security Services seeks to make a disclosure to those other than those identified in section 12, he may seek official authorisation which may be given by any of those identified as Crown Servants under section 12. “
- Moses J went on to consider what relief would be available in the event that authorisation was declined by, for example, a Minister of the Crown. Before analysing that issue, however, it is important to identify to whom such disclosures might be made and, given Mr Shaylers’s stated concerns that those responsible for impropriety or illegality will cover their tracks and mislead any investigator, the status of such persons. Quite apart from Ministers of the Crown, civil servants and police officers (to whom disclosure can be made without authority but who are all thought, whether justifiably or not, to be either involved in impropriety – police officers – or capable of being misled – Ministers and civil servants – there are others who have a legitimate (and statutorily justifiable) interest in these matters whose independence of mind and gullibility is not challenged by Mr Shayler.
- A provision for supervision and oversight was provided by the IOCA following the decision of the European Court of Human Rights (“ECtHR”) in Malone v UK (1984) 7 EHRR 14 which criticised the lack of a clear statutory framework within which telephone tapping could take place. We return to this legislation below; it is more appropriate however, to analyse the Security Services Act 1989 (“the SSA”) which received Royal Assent on 27th April 1989 two weeks before the OSA (on 11th May 1989). Given that these Acts were proceeding in tandem, the checks and balances in the former must have been apparent when consideration was given to the latter. The SSA places the Security Service on a statutory footing identifying the functions of the service (section 1 of the Act) and providing for the appointment of a Director General responsible for controlling operations (section 2). It then deals in some detail with the grant and review of warrants (as to which Mr”Shayler makes serious allegations). Although later amended by the Intelligence Services Act 1994 (“the ISA”), we set out the original provisions which were as follows:
3. -(1) No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section.
(2) The Secretary of State may on an application made by the Service issue a warrant under this section authorising the taking of such action as is specified in the warrant in respect of any property so specified if the Secretary of State –
(a) thinks it necessary for the action to be taken in order to obtain information which –
(i) is likely to be of substantial value in assisting the Service to discharge any of its functions; and
(ii) cannot reasonably be obtained by other means; and
(b) is satisfied that satisfactory arrangements are in force under section 2(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that the information obtained under the warrant will be subject to those arrangements.
(3) A warrant shall not be issued under this section except –
(a) under the hand of the Secretary of State; or
(b) in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed on it, under the hand of an official of his department of or above Grade 3.
(4) A warrant shall, unless renewed under subsection (5) below, cease to have effect –
(a) if the warrant was under the hand of the Secretary of State, at the end of the period of six months beginning with the day on which it was issued;
(b) in any other case, at the end of the period ending with the second working day following that day.
(5) If at any time before the day on which a warrant would cease to have effect the Secretary of State considers it necessary for the warrant to continue to have effect for the purpose for which it was issued, he may by an instrument under his hand renew it for a period of six months beginning with that day.
(6) The Secretary of State shall cancel a warrant if he is satisfied that the action authorised by it is no longer necessary
- As is apparent from its terms the SSA provides very important safeguards both for the public and the Secretary of State designed specifically to provide independent overview. Section 4 of the Act deals with the appointment of the Security Service Commissioner in these terms:-
“(1) The Prime Minister shall appoint as a Commissioner for the purposes of this Act a person who holds or has held high judicial office.
. . .
(3) In addition to his functions under the subsequent provisions of this Act the Commissioner shall keep under review the exercise by the Secretary of State of his powers under section 3 above.
(4) It shall be the duty of every member of the Service and of every official of the department of the Secretary of State to disclose or give to the Commissioner such documents or information as he may require for the purpose of enabling him to discharge his functions.
(5) The Commissioner shall make an annual report on the discharge of his functions to the Prime Minister and may at any time report to him on any matter relating to his discharge of those functions.
(6) The Prime Minister shall lay before each House of Parliament a copy of each annual report made by the Commissioner under subsection (5) above together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7) below.
(7) If it appears to the Prime Minister, after consultation with the Commissioner, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Service, the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.
(8) The Secretary of State may, after consultation with the Commissioner and with the approval of the Treasury as to numbers, provide the Commissioner with such staff as the Secretary of State thinks necessary for the discharge of his functions.”
- The Act then provided, by section 5, for the appointment of a Tribunal for the purpose of investigating complaints about the Service although it is clear that the remit of the Tribunal was confined to complaints by a person aggrieved by anything which he believes the Service has done in relation to him or to any property of his (paragraph 1 of Schedule 1 to the Act); this section (and the Schedule) also placed additional responsibilities on the Commissioner.
- Within the definition of “Crown Servant” included in section 12(1) of the OSA (to whom disclosures may lawfully be made for the purposes of their functions as such), there is included the Tribunal set up under section 5 of the SSA as a consequence of the OSA (Prescription) Order 1990, SI 1990 No 200 (as amended by SI 93 No 847). On the face of it, it may appear surprising that the Act did not include the Commissioner within the categories of persons to whom disclosure can be made in his own capacity so that a former member of the Services is expressly authorised to disclose information to the Commissioner. However, the Commissioner has a dedicated secretariat of civil servants to whom disclosure can be made. Given that the primary function of the Commissioner is to keep under review the exercise by the Secretary of State of his powers to issue warrants, any disclosure or ‘whistle blowing’ which criticises the propriety of what is occurring within his remit would obviously concern him.
- No challenge is made to the integrity or dedication to his duties of the Commissioner. He is required to be a person who holds or has held high judicial office and, with the assistance of whatever information has been disclosed to him, he should be well placed to root out impropriety and illegality, if such there be. Furthermore, even if someone such as Mr”Shayler was sufficiently sceptical to believe that the civil servants within the Commissioner’s secretariat might be prevailed upon not to pass information which they have received on to the Commissioner, this could be addressed since, as the Crown accepts, a decision by a Minister or civil servant to refuse authority to disclose information directly to the Commissioner could be challenged by way of judicial review. As to that prospect, Moses J observed:
“Thus, if a refusal of authorisation was unlawful or outwith the statutory purposes for which the power to give official authorisation was conferred, or irrational, the Court could intervene. Since October 2000, a refusal to give authority must itself comply with the Convention. If it was not compatible with Article 10, the Court, on a judicial review, should say so”
- Mr Fitzgerald QC attacks this conclusion. He points out the HRA was not in force when the disclosure was made. He argues that whatever the position after the enactment of the HRA, at the time of the passing of the Act and up to the late 1990s, where a threat to national security was given as the reason for denying or restricting individual rights the courts were unwilling to intervene by examining the strength of that justification. He argued that national security has been treated as “the exclusive responsibility of the executive” (per Lord Donaldson MR in R v Home Secretary ex parte Cheblak  1 WLR 890 at 902), it was “par excellence a non-justiciable question” (per Lord Diplock in Council of Civil Service Unions ex parte Minister for the Civil Service  AC 374 at 412).
- We will return to this argument when dealing with an application for judicial review of a decision to refuse permission to speak to the press but, in this context, the argument misses the point. There could be no question of arguing that a threat to national security justified refusal to allow a former security and intelligence officer to disclose what he asserted was evidence of wrongdoing in connection with the grant of warrants under the SSA to the Commissioner charged under the same legislation with the function of overseeing and reviewing the exercise of by the Secretary of State of the very power which is the subject of complaint. The whole point of the structure of the Act is to provide some measure of transparency (albeit to an independent Commissioner) of the exercise of these powers. To deprive him of information which might the more effectively enable him to exercise his function would be to drive a coach and horses through the Act.
- The responsibilities of the Commissioner appointed under the SSA cover the issue of warrants under that Act. The IOCA sets up a similar scheme in relation to telephone tapping. The IOCA had its own Commissioner of similar status with the same powers. Furthermore, subsequent to the OSA equivalent provisions have also been put in place in relation to the Services. These are set out in the ISA which deals, among other things, with the functions of GCHQ. It is this Act which amended the SSA by bringing into this legislation the power which enables the Secretary of State to issue a warrant to the Security Service, the Intelligence Service and to GCHQ. In the same form as the other legislation, section 8 creates the post of Commissioner who, similarly, must hold or have held high judicial office. His functions include reviewing the Secretary of State’s powers to issue warrants (other than in relation to the Security Service which remained covered by the SSA) with parallel duties on every member of the Intelligence Service, of the GCHQ and official of the Home Office to make disclosure to the Commissioner for the purpose of his functions. Thus, assuming the necessary authorisation, complaints of the type which Mr Shayler makes about the legality of operations at GCHQ could have been considered by him.
- The ISA also provides another significant avenue available to those, like Mr Shayler, who wish to make far reaching allegations of what might be described as “institutional” or widespread illegality and abuse of power. Section 10 of the Act creates the Intelligence Security Committee. This consists of Members of the House of Commons and the House of Lords who are not Ministers of the Crown; this remit is to examine the expenditure, administration and policy of the Security Service, the Intelligence Service and GCHQ: (see section 10(1)). Schedule 3 imposes duties of disclosure upon the Director General of the Security Service, the Chief of the Intelligence Service or the Director of GCHQ subject only to statutory restrictions where the Secretary of State has determined that it should not be disclosed (although by paragraph 3(4) the Secretary of State cannot make such determination on the grounds of national security alone) or because it is sensitive information. “Sensitive information” is defined in paragraph 4 of the Schedule and includes information which might lead to identification of sources, about particular operations or which has been provided by another agency. Although that restriction could limit overview of a specific operation, it would not prevent a full investigation of the policy and efficiency of the secret services. In Spycatcher (No. 2)  1 AC 109, Sir John Donaldson MR, referring to the Security Commission, said (at 188A):
“Although technically the function of the commission is to undertake investigations into the efficiency and proper working of the service at the request of the Prime Minister, I find it difficult to conceive of the members failing to take appropriate action if convincing evidence of wrongdoing was submitted to them.”
- This would be the situation where it was suggested that statutory controls were being overridden. Again, this Committee has a secretariat of civil servants to whom disclosure is authorised; if the relevant material was not passed on, judicial review would be available.
- Thus, three Commissioners each of whom holds or has held high judicial office (with all the independence of mind which such an appointment brings) together with members of the legislature not involved in government are all available to consider concerns such as Mr Shayler advances. Each has a duty to provide an annual report to the Prime Minister and “may at any time report to him on any matter relating to the discharge of those functions”. The annual report is laid before Parliament: see sections 4(5) and (6) of the SSA; sections 10(5) and (6) of the ISA and sections 8 (7) and (8) of the IOCA.
- We have not dwelt upon the other gateways set out in section 12(1) of the OSA any one of which would be available to a former security and intelligence officer (in particular, Minister of the Crown, civil servant and police officer). It is not because we dismiss them but rather because Mr”Shayler contends that they can be subverted from their duty. However, taken individually and collectively, they demonstrate that there are further potential mechanisms available to review the conduct of the Security and Intelligence Services.
- In October 2000, the Regulation Investigatory Powers Act 2000 substituted new provisions in relation to unlawful and authorised interception providing for one Commissioner holding or having held high judicial office (in the place of the two Commissioners who previously supervised the warrants issued in relation to the security services and the intelligence services); there remains a separate Commissioner in relation to telephone intercept warrants. Further, one tribunal takes the place of the three set up under the earlier legislation. Thus, significant checks and balances remain in place and are available to investigate and, to such extent as the holders of those utterly independent offices consider appropriate, make public. Disclosure does not depend on the view (however well intentioned) of a single disenchanted agent.
- In addition to the statutory overview, there is an additional, non-statutory, channel giving members and former members of the Security Service official authorisation to communicate confidentially outside their line management. This is to the “Staff Counsellor”. He is a high-ranking civil servant who reports to the Prime Minister and the Secretary of State. His role is best described by reference to what the Prime Minister told the House of Commons (HC Debs., 2 November 1987, col. 312):
“The House will wish to know that Sir Philip Woodfield KCB, CBE has been appointed as a staff counsellor for the security and intelligence services. He will be available to be consulted by any member of the security and intelligence services who has anxieties relating to the work of his or her service which it has not been possible to allay through the ordinary processes of management-staff relations. He will have access to all relevant documents and to any level of management in each service. He will be able to make recommendations to the head of the service concerned. He will also have access to the Secretary to the Cabinet if he wishes and will have the right to make recommendations to him. He will report as appropriate to the heads of the services and will report not less frequently than once a year to me and to my right hon. Friends the Foreign and Commonwealth Secretary and the Home Secretary as appropriate on his activities and on the working of the system.”
This was, of course, before the passing of the OSA (which established authorisation to communicate with any civil servant). Furthermore, the mechanism was not overlooked when that Act was being debated. During the discussion on the Bill, the then Home Secretary stated in the House of Commons (HC Debs. 22 February 1989, col. 1033):
“The staff counsellor is to provide members and former members of the services with someone who is not a member of the services with whom he or she can discuss concerns and anxieties about their work which it has not been possible to allay through staff channels.”
- In his skeleton argument, Mr Fitzgerald submitted that the terms of reference of the staff counsellor were “not clear” and that his effectiveness as an alternative avenue for complaint was “highly disputed”. He goes on to say that if permitted Mr Shayler will adduce evidence that he was specifically warned not to raise issues of concern with the Staff Counsellor. The terms of the observations in Hansard could not be clearer: even if it be right that Mr”Shayler was warned not to take advantage of the system, such warnings could hardly bite after he had left the service.
- In addition, as has already been indicated, there is the role of the courts in relation to judicial review. Moses J is criticised by Mr Fitzgerald and Mr Tugendhat for attaching importance to this. Mr Fitzgerald relies on the fact that there are well known statements demonstrating the reluctance of the courts to review decisions purportedly taken by the executive in the interests of national security. This is undoubtedly correct though in appropriate situations to day the court may be prepared to adopt a more critical approach. However, in general, the matters of which Mr Shayler wished to complain were gross incompetence, unlawfulness, inefficiency and irresponsibility. If those whose responsibility it would be to address these issues failed to do so and ignored Mr Shayler’s complaints in breach of their duty this is a matter which could be the subject of judicial review. This would not require the court to review policy decisions taken purportedly in the interests of national security. The point which Moses”J made, with justification, was that in considering the merits of the sections under which Mr Shayler was charged, there must be taken into account the avenues of redress which the OSA provides, and the fact that the courts are in a position to supervise those whose responsibility it is to police the statutory scheme. The value of the safeguards could differ depending on the circumstances but that there are safeguards cannot be disputed.
THE DEFENCES OF DURESS AND NECESSITY ISSUE
- In the case of the great majority of statutory criminal offences the common law defences of necessity and duress are available. Those defences have in recent years been extended by the courts to cover what is usually described as duress or necessity of circumstances. Mr”Fitzgerald submits that the developments which have already taken place should be allowed to continue. They would then be available to his client at his forthcoming trial. The jury at the trial, having examined the evidence, should decide whether he was entitled or at least might have believed he was entitled to take the action that he did. He would be entitled to do so because he may have believed the circumstances made this necessary in the public interest to avert a threat to life or limb or serious damage to property.
- Moses J decided that duress and necessity were defences in their original form which could be raised by a defendant. However, the extended defences were not available to a defendant as a defence to the charges under sections 1(1) and 4(1) of the OSA 1989. It was Moses J’s opinion that these defences in their extended form were excluded “by the express terms of the OSA”. In his judgment there is “no room for the common law further to augment the opportunities for avoiding the peril by permitting circumstances of disclosure out with the provisions of section 7 and 12”.
- The approach of Moses J is strongly supported by Mr Nigel Sweeney QC who appears on behalf of the prosecution. We found difficulty with the distinction drawn by Moses J. If the restricted defence is available what justification is there for excluding the defence in its extended form as it has been developed by the courts? Mr Sweeney argued that this case demonstrated why it was necessary to make a distinction. As we accept, if Mr Fitzgerald is correct, this case would be virtually untriable. This is because it would involve conducting an examination of a very substantial part of the activities of MI5 during the period Mr Shayler was a member before the jury. The trial would cease to be a trial of Mr Shayler and would become a trial of MI5. Further, the disclosures which have already been made, if they were to be challenged, would have to be met by further disclosure. On the other hand the position would be very different from the situation where a defence of duress in its original form was raised. This would require no more than an examination of the event which is said to have given rise to the duress or necessity: an example would be whether the defendant made the disclosure because his life was threatened.
- We understand this concern but we feel whether the concern is of substance depends on the width of the defence as it has developed and it may conceivably develop in the foreseeable future. It is this issue which we now address in the context of Mr Shayler’s attempt to rely on the defence.
THE LIMITS TO THE DEFENCE OF DURESS AND NECESSITY.
- Any attempt at a definition of the precise limits of the defence is fraught with difficulty because its development has been closely related to the particular facts of the different cases which have come before the courts. Whilst acknowledging the existence of necessity as a general defence in the criminal law in 1958, Professor Glanville Williams said that the:
“peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision.”
- Nevertheless, attempts at a broad definition have been made. That given by Sir James Stephen in 1887 was repeated in the leading case of R v Martin (1989) 88 Cr App R 343 by Simon Brown J. It does help to identify the core ingredients of the defence and has managed not only to survive for well over a hundred years but to provide the basis for the extended defence of necessity recently relied upon in R. v Abdul-Hussain and others  Crim LR 570. Three years after the decision in R. v Dudley and Stephensth
(1884) 14 QBD 273, Stephens described the doctrine, in his Digest of the Criminal Law of England (4 Ed., 1887), in the following terms:
“An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body.”
- In Martin (1989) 88 Cr App R 343 at 345, Simon Brown J (as he then was), giving the judgment of the Court of Appeal, restated the general principles in these terms:
“First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused’s will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances.'”
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result. Secondly, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted. If the answer to both those questions was yes, then the jury acquit: the defence of necessity would have been established.
- This definition was described by Rose VP in Abdul-Hussain as “the clearest and most authoritative guide to the relevant principles and appropriate discretion in relation to both forms of duress.” From both descriptions we extract the following ingredients as being required if the defence of necessity to be relied on:
the act must be done only to prevent an act of greater evil;
- the evil must be directed towards the defendant or a person or persons for whom he has responsibility or, we would add, persons for whom the situation makes him responsible;
- the act must be reasonable and proportionate to the evil avoided.
We make the addition to (ii) to cover, by way of example, the situation where the threat is made to set off a bomb unless the defendant performs the unlawful act. The defendant may have not have had any previous connection with those who would be injured by the bomb but the threat itself creates the defendant’s responsibility for those who will be at risk if he does not give way to the threat.
- We will analyse each of these three limbs further later. Before doing so, however, reference to the restatement of the law in Abdul-Hussain is necessary. The trial judge in Abdul-Hussain had withdrawn the defence of necessity from the jury because he found that there was no “sufficient connection between the danger feared by the defendants and their families on the one hand and the criminal act of hijacking the aircraft on the other”. The Court of Appeal found in a judgment given by Rose VP that:
“… although the judge was right to look for a close nexus between the threat and the criminal act, he interpreted the law too strictly in seeking a virtually spontaneous reaction. He should have asked himself, in accordance with Martin, whether there was evidence of such fear operating on the minds of the defendants at the time of the hijacking as to impel them to act as they did and whether, if so, there was evidence that the danger they feared objectively existed and that hijacking was a reasonable and proportionate response to it. Had he done so, it seems to us it that he must have concluded that there was evidence for the jury to consider.”
- Rose VP added that the relevant authorities on duress and necessity led to 11 propositions. These were that:
Unless Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason.
- The courts have developed the defence on a case-by-case basis, and its scope remains imprecise.
- Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress.
- The peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will, and this is essentially a question for the jury.
- But the execution of the threat need not be immediately in prospect.
- The period of time which elapses between the inception of the peril and the defendant’s act, and between that act and execution of the threat, are relevant but not determinative factors.
- All the circumstances of the peril, including the number, identity and status of those creating it, and the opportunities (if any) which exist to avoid it are relevant, initially for the judge, and, in appropriate cases, for the jury, when assessing whether the defendant’s mind was affected as in (iv) above.
- As to (vi) and (vii), if Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door.
- There is no reason of principle or authority for distinguishing the two forms of duress in relation to the elements of the defence which we have identified.
- The judgment in Martin, at 345 to 346 affords the clearest and most authoritative guide to the relevant principles and appropriate direction in relation to both forms of duress.
- Clauses 25 and 26 of the Law Commission’s draft Criminal Law Bill do not represent the present law. Accordingly, reference to those provisions is potentially misleading.
- The decision in Abdul-Hussain provides useful clarification of the earlier three pronged definition of necessity and elaborates on the operation of the requirement of imminence. It also reflects other decisions which have treated the defence of duress and necessity as being part of the same defence and the extended form of the defence as being nothing more than different labels for essentially the same thing, see e.g. R. v Conway  3 All ER 1025 at 1029 where it was said :
“As the learned editors point out in Smith and Hogan, Criminal Law (6th edn, 1988) p 225, to admit a defence of ‘duress of circumstances’ is a logical consequence of the existence of the defence of duress as that term is ordinarily understood, i.e. ‘do this or else’. This approach does no more than recognise that duress is an example of necessity. Whether ‘duress of circumstances’ is called ‘duress’ or ‘necessity’ does not matter. What is important is that, whatever it is called, it is subject to the same limitations as the ‘do this or else’ species of duress.” (Woolf LJ)
- However, it has been argued that there are differences between duress of circumstances and necessity. In his thorough-ranging review of the development of the law on necessity in Re. A. (children) (conjoined twins: surgical separation)  4 All ER 961, Brooke LJ said, at page 1047-1048:
“I have described how, in modern times Parliament has sometimes provided ‘necessity’ defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity.
They do not, however, cover exactly the same ground. In cases of pure necessity the actor’s mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified.”
- In the 9th Edition of Smith & Hogan on Criminal Law (p.244, 1999), the authors suggest one possible argument in relation to this difference is as follows:
“Duress is an excuse, but necessity is a justification. It is quite inappropriate to talk of a surgeon’s will being ‘overborne’ when he decides that it is necessary to carry out a sterilisation or other operation, as in the West Berkshire case ([1989 2AER 545]), on a person who is unable to consent. The surgeon is making a reasoned and reasonable decision. Lord Brandon thought that not only would it be lawful, but that it would be the doctor’s duty to operate. There is no question of excusing ‘human frailty’.”
- None the less the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts. Apart from some of the medical cases like West Berkshire the law has tended to treat duress of circumstances and necessity as one and the same. For instance, Archbold says at 17-124:
“There has in recent years developed the expression ‘duress of circumstances’. The use of the word ‘duress’ in this contest is misleading. Duress, whether in criminal law or civil law, suggests pressure being brought to bear by one person on another person to persuade that other person to do something which he is unwilling to do. ‘Duress of circumstances’ has nothing to do with one person being told to commit a crime ‘or else’: it relates to a situation where a person is driven to commit a crime by force of circumstances. Accordingly, duress of circumstances is more conveniently dealt with under the heading of ‘necessity’ … Indeed, it may be that duress, strictly so called, should itself be regarded as a form of the defence of necessity: see per Lord Hailsham LC in R. v Howe and others …”
- Two of the recent authorities on the defence of necessity, Martin and R. v Pommell  2 Cr App R 607, fail to distinguish between necessity and duress of circumstances and Abdul-Hussain, was described by the Court of Appeal as a duress of circumstances case.
- The authorities speak of imminent or immediate threat of a greater harm occurring as being central to the defence of necessity. This indicates that it is insufficient for the defendant to believe that at some uncertain point in the future harm will occur if he does not act to avoid it; he must reasonably believe he has to act now to avert harm in the imminent future. He must believe the harm he seeks to prevent would otherwise happen, if not immediately, then at least before it could be prevented by his or others legal action. Abdul-Hussain makes clear the harm threatened need not be immediate but it should be imminent. In this sense he has no alternative to yielding to the pressure in order to prevent imminent harm.
- This takes us to the next issue to be dealt with under this head. Does the alleged harm that the defendant seeks to avoid have to be as to a danger to life or serious injury, or can it simply be harm greater than the act done which seeks to avoid it? As the authors of Smith & Hogan say (9th ed p 247):
“There are some cases where what was in substance a defence of necessity was allowed without identifying a threat to life or serious injury. In Gillick’s case one of the conditions stated of the lawfulness of the contraceptive advice or treatment given to a girl under sixteen was that, unless she receives it, ‘her physical or mental health or both are likely to suffer’. In F. v West Berkshire Health Authority it was held that it was lawful to carry out a sterilisation operation on a women who lacked the mental capacity to consent because otherwise there would be a grave risk to her of her becoming pregnant which would be a disaster from a psychiatric point of view.”
- However, any extension of the defence here is slight: protection of the physical and mental well-being of a person from serious harm is still being required. In any event Mr Shayler argues his defence based on the conventional test, ie that his revelations were necessary to prevent death or serious injury to others. He does have a separate argument based on the illegal conduct of MI5. However here the matters relied on by Mr”Shayler, for example illegal monitoring of telephone calls, do not satisfy the requirements of the defence, although this of no practical significance in view of the other allegations he makes.
- It is also necessary to consider in greater detail the nature of the responsibility and the category of persons to whom the defendant must owe the responsibility for the purposes of the defence. Mr Shayler contends that, as a member of the government secret services, he owed a responsibility to the general public at large. His acts were necessary to protect a yet to be identified group from among the public for whose protection MI5 had responsibilities who would inevitably suffer because of MI5’s incompetence.
- In Wright  Crim L.R. 510 this issue arose in relation to an appeal against a direction concerning the need for a relationship of sufficient proximity between the defendant and a person he claimed to have responsibility over for the purposes of the defence of duress. The person was the defendant’s boyfriend. Kennedy LJ said, at paragraphs 22-23 of the judgment:
“The authorities clearly show that the threat need not be made to the defendant himself or herself. It can be made, as the judge said, to another member of the defendant’s immediate family or, as the judge might have said, if he had followed the Judicial Studies Board specimen direction, ‘to some other person, for whose safety the defendant would reasonably regard herself as responsible.’
On the facts of this case there were good reasons for thinking that the boyfriend would fall within one or other of those formulations.”
- A difficulty arises in relation to Pommell. In that case, the defendant was allowed to rely on the defence of necessity or duress of circumstances where he was found with a loaded gun under his bed. He claimed he had taken it from a friend who he feared would kill various people. There does not appear to have been any discussion on the appeal about the person to whom the defendant owed responsibility for the purposes of the defence. The decision can possibly be justified by reference to the fact that, although yet unidentified, unless the defendant intervened there could be an identifiable body of the friend’s victims and it is to this body that he owed a duty. This would be within the gloss we have placed earlier upon the requirement of responsibility.
- So in our judgment the way to reconcile the authorities to which we have referred is to regard the defence as being available when a defendant commits an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody for whom he reasonably regards himself as being responsible. That person may not be ascertained and may not be identifiable. However if it is not possible to name the individuals beforehand, it has at least to be possible to describe the individuals by reference to the action which is threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant has responsibility for them because he is placed in a position where he is required to make a choice whether to take or not to take the action which it is said will avoid them being injured. Thus if the threat is to explode a bomb in a building if defendant does not accede to what is demanded the defendant owes responsibility to those who would be in the building if the bomb exploded.
- The next requirement is proportionality. This has two elements. The act done should be no more than is reasonably necessary to avoid the harm feared and the harm resulting from the act should not be disproportionate to the harm avoided.
THE EXTENT TO WHICH MR SHAYLER’S DEFENCE COULD FALL WITHIN THE DOCTRINE OF NECESSITY
- The difference between Mr Shayler’s case and any other case where this defence has been regarded as being available is that Mr Shayler is not in a position to identify any incident which is going to create a danger to the members of the public which his actions were designed to avoid. Instead he is blowing the whistle on the past conduct of individuals members of and MI5 as a whole. He is in effect seeking to have MI5 reformed so that it can play its role of protecting the public properly. He contends he intervened because unless he did so MI5 would continue to operate as he alleges it has in the past and this inevitably would create a danger of the public.
- Mr Shayler’s justification for his disclosure in our judgment could be the basis for a general public interest defence if such a defence was available but in our judgment it provides no foundation for the invoking the extended defence of duress or necessity. The characteristics of the extended defence may, despite the efforts of the courts to inject greater precision, still be imprecise, but it is inherent in the defence that it has ingredients which Mr Shayler is not in a position to establish. He cannot identify the action by some external agency which is going to create the imminent (if not immediate) threats to the life and limb of members of the general public as a result of the security services alleged abuses and blunders. This is a fundamental ingredient of the defence. Without it, it is impossible to test whether there was sufficient urgency to justify the otherwise unlawful intervention. It is also impossible to apply the proportionality test. Further more, if it is possible to identify the members of the public at risk this will only be by hindsight. This creates difficulty over the requirement of responsibility. Mr Shayler’s justification for what he did lacks the required degree of precision. There is no close nexus between his disclosure and the possible injury to members of the public. Putting it simply there was no necessity or duress as those words are ordinarily understood.
- To an extent the issue is a matter of degree. At one end of the spectrum is the example of a spy who is kidnapped and told his wife or child will be murdered if he does not disclose top-secret information. At the other end of the spectrum is the disillusioned agent who claims that someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, ie the general public as a whole. The first is a situation where almost certainly a defendant would be able to rely on the defence of necessity. The second position is one where a defendant can not possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum. On his case as revealed so far there is no possibility of his being entitled to rely on the defence. A study of his description of events, which he has placed before the court and runs to 111 pages, only emphasises the correctness of this view.
THE APPLICATION OF THE DOCTRINE OF NECESSITY TO THE OFFICIAL SECRETS ACT
- It has been argued and accepted by Moses J that in any event the doctrine of “extended necessity” does not apply to the OSA for the reasons we have explained earlier. However having examined the ingredients of the extended defence we see no justification for making a distinction between the unextended and extended defence. Nor do we see any need to extend the list of offences to which it does not apply. On our approach to the defence there has to be an incident which gives rise to both forms of defence and we see no insuperable difficulty to the prosecution disproving the defence if it is raised in extended form by a defendant.
- Parliament has not given any clear indication that the extended defence is excluded and we do not consider we should infer it is excluded. If a defendant might have been acting because of duress or necessity of circumstances (within the parameters the courts have placed on the defence) it would be unjust if he were to be convicted. However as a matter of practice whether the defence in its extended form is or is not excluded is of no significance since we cannot envisage circumstances in which it would apply.
- We therefore do not consider that it is necessary to do more than follow the approach of the Court of Appeal in Abdul-Hussain and the proposition that:
“Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason (R v Pommell  2 Cr App R 607 at 615C).”
The defence therefore applies to the OSA.
THE FREEDOM OF EXPRESSION ISSUE
- Mr Fitzgerald and Mr Tugendhat QC, on behalf of the press, naturally rely on the fact that even prior to the HRA coming into force, freedom of expression was a common law value that is given special protection in this jurisdiction. In general in order to justify restraining the publication of governmental information it is necessary to establish that not only is the information confidential, it is also to show that it is in the public interest that it should not be published. Lord Keith of Kinkel observed in Spycatcher that:
“A communication about some aspect of government activity which does no harm to the interests of the nation cannot, even where the original disclosure has been made in breach of confidence, be restrained on the ground of a nebulous equitable duty of confidence serving no useful practical purpose,”
citing A-G v Jonathan Cape Ltd  QB 752 (DC); and Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485 (High Court of Australia).
- We accept that such an approach could be said to create a presumption as to the existence of a public interest defence which must be rebutted by the public authority if it wishes to restrain publication on a blanket basis. This general approach at common law as now buttressed by the HRA has been encapsulated by Lord Bingham of Cornhill and Lord Steyn in their speeches in McCartan Turkington Breen v Times Newspapers Ltd  3 WLR 1670.
- However, it has always been accepted that members of the security services are in a special situation and Article 10(2) of the Convention recognises the need to treat national security issues differently when it provides that the exercise of the right to freedom of expression may be subject to such conditions and restrictions as are “prescribed by law and are necessary in a democratic society, in the interests of national security…”. In support we refer to AG v Guardian Newspapers Ltd No 2  AC 109 and the passages from the speeches in that case appropriately cited by Moses J in his judgment in the court below, and the speech of Lord Nicholls of Birkenhead in AG v Jonathan Cape Ltd  3 WLR 625 at 640 also cited by Moses J (the point which we have to confront being referred to by Lord Nicholls but not decided).
- We also accept that it is well established in the jurisprudence of the EctHR that the dangers inherent in prior restraint are such that it calls for the most careful scrutiny: see Observer and Guardian v United Kingdom (1991) 14 EHRR 153, paragraph 60 (ECtHR). The ECtHR has repeatedly stated that there must be “a pressing social need” for any restriction on free speech, because it is incumbent on the press to impart information and ideas on matters of public interest; not only does the press have the task of imparting such information and ideas; the public has the right to receive them; were it otherwise, the press would be unable to play its vital role of public watchdog.
- The HRA provides special protection in section 12 (3) by providing that no relief is to be granted so as to restrain publication unless the court is satisfied that the applicant is likely to establish (i.e. at trial) that publication should not be allowed. Section 12 (4) provides that the Court:
“must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic … material (or to conduct connected with such material) to:
the extent to which ?
it is, or would be, in the public interest for the material to be published….
- We therefore fully acknowledge the importance of the principles on which Mr”Fitzgerald relies. Mr Fitzgerald draws our attention to the features of sections 1 and 4 of the OSA which mean that unless their language is qualified by the courts the sections have a particularly draconian effect. They do not bite on the content of the disclosure but the status of the person making the disclosure. They make no provision for a public interest defence other than that based on duress or necessity. There is no question of the courts having to assess the issue of proportionality. We accept that these are telling points which require careful consideration. We also note that in relation to other crown servants the OSA does not adopt quite the same stifling approach.
- However, prior to coming into force of the HRA, while the courts when interpreting a statute did not ignore the constitutional principles such as freedom of expression the courts still had to give primacy to the language of the statute and where even freedom of expression was involved the courts did not and could not ignore the intention of the legislation were the language used by the statute was clear. Here the language is clear. The two limbs of justification on which Mr Shayler relies (the need to protect the public from grave risks to life or limb and to disclose the illegality which he alleges has occurred) are inconsistent not only with language of sections 1 and 4 but also with the structure of the OSA. So far as guilt is concerned Mr Shayler’s justification for his conduct has no role to play. If it is to have any role at the trial it would be as to sentence only: in that event, security considerations might require any hearing to be in camera.
- The position after the coming into force of the HRA is different and as Mr Shayler’s trial is post the Act he is entitled to the protection of freedom of expression provided by Article 10. The issues as we see it boil down to a question as to whether the prosecution can justify the blanket ban provided by sections 1 and 4 applying the well developed jurisprudence as to freedom of expression. It is here, as it seems to us, that the structure of the OSA and other legislation is so important. It makes the blanket ban subject to the protection for the defendant provided by his ability to obtain authorisation for disclosure and to make his voice heard not only by his superiors but by those of undoubted integrity and independence.
- It is not difficult to understand the reason Parliament adopted the approach that it did. The object of sections 1 and 4 is to deter members of the security forces disclosing secrets which could be damaging to national security. The ability to prosecute after disclosure has occurred is to lock the stable door after the horse has bolted. If damage will be caused by disclosure that damage will be done once disclosure has taken place and the prosecution, even if successful, will not undo the damage. Instead it could give rein to even greater damage. The culture the OSA is designed to support is one where members and former members do not disclose except with prior authority or to persons authorised to receive disclosure. This avoids the grave disadvantage of an individual member having to make a decision, perhaps on partial information, based on his understanding of where the public interest lies.
- To an extent the issue is one of proportionality. The principle of proportionality requires that, when determining whether a limitation is arbitrary or excessive, the court has to ask itself whether the means used to impair a right or freedom are no more than is necessary to accomplish an important and legitimate objective: see R v Secretary of State for the Home Department, ex parte Daly  2 WLR 1622, at 1634c-1636c, per Lord Steyn; 1634a-b, per Lord Bingham; (Lord Cooke of Thorndon, Lord Hutton and Lord Scott of Foscote agreeing); applying de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 (PC), at 80, per Lord Clyde.
- We have already stressed the scale of the interference with freedom of expression which sections 1 and 4 involve. On the other side of the equation has to be placed the fact that what the OSA is designed to protect is national security. Balancing the public interest in this field is notoriously difficult and not ideally suited to a trial by jury. It can be a task which just cannot be performed by a jury trial. It can result in a trial being impossible because it would involve the disclosure of further secret information. The blanket restraint is confined to a relatively small class; the members and former members of the security services who need to be able to communicate to their colleagues, confident that the information will not be disclosed. Members and former members of the security services will inevitably have information for which the press will be prepared to pay handsomely, as happened here. The commercial realities mean it would be preferable that the decision whether to disclose or not to disclose should be in more objective hands. Of course there will be a danger that protection the OSA provides will prove ineffective. However this danger is reduced by the availability of judicial review and the ability of the Attorney General to refuse permission to prosecute.
- Finally there is the fact that sections 1 and 4 are the attempt of the democratically elected legislature to square the circle. In an area as sensitive as this it does appear to us appropriate to show a degree of deference to the legislators’ decision. We do not consider that the solution which does not involve the individual assessment by a court but by others of the appropriateness of disclosure or the need for action is necessarily inconsistent with Article 10. So far as the members or past members are concerned our conclusion is that the restriction on freedom of expression is justified.
THE SECTION 29 HEARING ISSUE
- Mr Fitzgerald questions whether even if Moses J judgment was correct as a matter of law it was appropriate for him to make the rulings that he did. This issue is of general importance in an area where there is as yet little guidance. It is not an issue which was canvassed before Moses J. and it requires detailed consideration of the relevant provisions of the 1996 Act. That Act was intended to achieve for the criminal trial some of the benefits which case management can provide for complex civil litigation. Section 1 paints the landscape with which the provisions are concerned. It provides:
(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing?
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2),
he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held.
(2) The purposes are those of:
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge’s management of the trial.
(3) No order may be made under subsection (1) where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity as is mentioned in section 7(1) of the Criminal Justice Act 1987 (preparatory hearings in cases of serious or complex fraud).
(4) A judge may make an order under subsection (1):
(a) on the application of the prosecutor,
(b) on the application of the accused or, if there is more than one, any of them,
(c) of the judge’s own motion. ”
- Pausing at section 29 this does appear to be a case where making the order which Moses J made could be said to fall within each of the purposes identified in subsection (2). It is next necessary to refer to section 31 which gives extensive powers to the judge conducting the hearing. It provides:
(1) At the preparatory hearing the judge may exercise any of the powers specified in this section.
(2) The judge may adjourn a preparatory hearing from time to time.
(3) He may make a ruling as to?
(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case.
(4) He may order the prosecutor:
(a) to give the court and the accused or, if there is more than one, each of them a written statement (a case statement) of the matters falling within subsection (5);
(b) to prepare the prosecution evidence and any explanatory material in such a form as appears to the judge to be likely to aid comprehension by the jury and to give it in that form to the court and to the accused or, if there is more than one, to each of them;
(c) to give the court and the accused or, if there is more than one, each of them written notice of documents the truth of the contents of which ought in the prosecutor’s view to be admitted and of any other matters which in his view ought to be agreed;
(d) to make any amendments of any case statement given in pursuance of an order under paragraph (a) that appear to the judge to be appropriate, having regard to objections made by the accused or, if there is more than one, by any of them.
(5) The matters referred to in subsection (4)(a) are:
(a) the principal facts of the case for the prosecution;
(b) the witnesses who will speak to those facts;
(c) any exhibits relevant to those facts;
(d) any proposition of law on which the prosecutor proposes to rely;
(e) the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).
(6) Where a judge has ordered the prosecutor to give a case statement and the prosecutor has complied with the order, the judge may order the accused or, if there is more than one, each of them?
(a) to give the court and the prosecutor a written statement setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution;
(b) to give the court and the prosecutor written notice of any objections that he has to the case statement;
c) to give the court and the prosecutor written notice of any point of law
(including any point as to the admissibility of evidence) which he wishes to take, and any authority on which he intends to rely for that purpose.
(7) Where a judge has ordered the prosecutor to give notice under subsection (4)(c) and the prosecutor has complied with the order, the judge may order the accused or, if there is more than one, each of them to give the court and the prosecutor a written notice stating:
a) the extent to which he agrees with the prosecutor as to documents and other matters to which the notice under subsection (4)(c) relates, and b) the reason for any disagreement.
(8) A judge making an order under subsection (6) or (7) shall warn the accused or, if there is more than one, each of them of the possible consequence under section 34 of not complying with it.
(9) If it appears to a judge that reasons given in pursuance of subsection (7) are inadequate, he shall so inform the person giving them and may require him to give further or better reasons.
(10) An order under this section may specify the time within which any specified requirement contained in it is to be complied with.
(11) An order or ruling made under this section shall have effect throughout the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it.
It is important to note the implicit power of the judge to vary or discharge the order under section 31(11). A similar power exists in the case of rulings made under section 40 (subsection 4). We refer to the terms of section 40:
Section 40 power to make rulings
(1) A judge may make at a pre-trial hearing a ruling as to:
(a) any question as to the admissibility of evidence;
(b) any other question of law relating to the case concerned.
(2) A ruling may be made under this section:
(a) on an application by a party to the case, or
(b) of the judge’s own motion.
(3) Subject to subsection (4), a ruling made under this section has binding effect from the time it is made until the case against the accused or, if there is more than one, against each of them is disposed of; and the case against an accused is disposed of if :
(a) he is acquitted or convicted, or
(b) the prosecutor decides not to proceed with the case against him.
(4) A judge may discharge or vary (or further vary) a ruling made under this section if it appears to him that it is in the interests of justice to do so; and a judge may act under this subsection:
(a) on an application by a party to the case, or
(b) of the judge’s own motion.
(5) No application may be made under subsection (4)(a) unless there has been a material change of circumstances since the ruling was made or, if a previous application has been made, since the application (or last application) was made.
(6) The judge referred to in subsection (4) need not be the judge who made the ruling or, if it has been varied, the judge (or any of the judges) who varied it.
(7) For the purposes of this section the prosecutor is any person acting as prosecutor, whether an individual or a body.
- These provisions encourage a judge to make rulings where there are good case management reasons for doing so. It is important the courts use the powers when they will achieve the statutory objectives. This includes making a ruling that a defence is not available to a defendant when this can be done as a matter of law. Among the advantages of doing so is the opportunity which it gives for the ruling to be challenged as in this case on appeal. There is little case law on the operation of these provisions but they are based on the similar provisions for serious or complex fraud cases under the Criminal Justice Act 1987.
- According to Re Gunawardena, 91 Cr. App. R. 55, CA, decided under the 1987 Act, the purpose of the parallel provisions was limited to those in section 7(1)(a) to (d) of the 1987 Act, which is the same as section 29(2)(a) to (d) of the CPIA. Similarly the provisions in section 31(3)(a) and (b) of the CPIA (parallel to section 9(3) of the 1987 Act) and section 40 (1)(a) and (b) should be treated as being subordinate to the above provisions. The position is almost certainly the same under both Acts.
- However, while there is no reason to artificially limit the powers of the judge at a preliminary hearing, the judge must always have at the forefront of his mind that he must not interfere with a defendants’ fundamental right to be tried by a jury. In particular the judge must not trespass on the jury’s role as the judges of fact. The judge must also bear in mind that until the defence has called its evidence it may be inappropriate to make a ruling. But in this case to clarify the law was highly desirable. The consequence will be to limit the evidence the jury would have to consider. It will help counsel as to the issues on which they should ask questions. It will avoid the need to consider issues of public interest immunity which could otherwise complicate the trial. A judge should during a hearing not allow irrelevant questions and by making rulings clarifying the law before the hearing the trial will be able to conducted more smoothly.
- Of course if the circumstances change the judge must be prepared to use his powers to vary a ruling. However, these powers do not mean that a judge may make a ruling without having sufficient material on which to make it. A judge cannot stop a defendant pursuing a defence merely because it is weak. Before he makes a ruling withdrawing a defence he has to be satisfied on the material available and likely to be available it cannot succeed.
- In this case Moses J was certainly entitled to make the rulings he did. On the defence of duress and necessity we give different reasons from the judge. We conclude the defence of necessity duress could be available. The defence is one which has to be raised by a defendant before it becomes the duty of the prosecution to rebut it. The defence has placed material before the court indicating the nature of the matters which Mr”Shayler relies on and they do not meet the requirements of the defence for the reasons we have explained. As to his arguments based on freedom of expression and Article 10 we have explained why they are not relevant. If it should happen, which is most unlikely, that the circumstances change then the judge will have to deal with this at the trial. We consider this case is a very good example of the value of section 29 hearings.
- This approach is compatible with a defendant’s right to a fair trial at common law and in accordance with Article 6 of the European Convention because it guarantees that a defendant will be able to rely on a defence if and when he provides any evidence upon which he could do so, and because judicial discretion is preserved, blanket bans on defences from the outset of a trial are avoided.
- In this particular case, the fact that so much material has been placed before the court explaining why Mr Shayler considers he was justified to do what he did means that it is not difficult (as it might otherwise be) to make a general ruling about the defences he is able to rely on. The material makes it clear he was not as a matter law acting under duress or necessity of circumstances. As a matter of law sections 1 and 4 are not subject to a public interest defence. We say this not withstanding the comments of Lord Browne Wilkinson in Barrett v Enfield  3AER 193 at p. 197. While this case involves developing areas of the law the developments would not benefit Mr”Shayler.
- Mr Sweeney correctly pointed out that in relation to the appeal the press do not have the status of being victims for the purposes of the HRA. If he was intending to suggest this meant that the court should not be prepared to give weight to their submissions we do not agree. The courts have a discretion as to who should entitled to be heard and on an issue concerning freedom of expression the press has an interest to protect and may be able provide the court with an insight as to what is at stake which cannot be provided by the parties. In this case the court found the submissions of Mr Tugendhat of assistance and they resulted in no time being wasted.
- Mr Sweeney also, understandably, was concerned at the broad approach the press adopted in their argument; taking examples of different situations from those that feature in this case. This in fact is not objectionable since we are considering the interpretation of the OSA after the implementation of the HRA. If we had come to the conclusion that sections 1 and 4 were in conflict with Article 10 adopting a traditional approach to interpretation of the sections then it would have been necessary for the court to fulfil its duty under section 3 of the HRA. Although it would have impaired the effectiveness of the section, if it was necessary to do this, we have no reason to think this is a case in which the court would be required to grant a declaration of incompatibility. Adopting a suitably muscular approach to interpretation as required by section 3, relatively simply, we could have made the sections compatible. The interpretation we then adopted, if correct, would not only apply to this case it would apply generally and it is because of this that the approach of the press was correct.
- It is nonetheless important to recognise the difference between the position of the press and Mr Shayler. Subject to what we say hereafter the legislation does not make it an offence for the Press to receive information where it is disclosed in breach of sections 1 and 4. If the press does so then the usual remedy of the State is to bring proceedings for an injunction to prevent publication. In deciding whether to grant an injunction the court will consider a wide range of factors which are irrelevant on the question of Mr Shayler’s guilt. All the cases referred to by counsel involving the exercise of discretion to grant injunctions would become directly relevant instead of being as here background to the issues with which we are directly concerned. (See here Lord Templeman’s speech in Lord Advocate v The Scotsman  1 AC 812.)
- Section 5 of the OSA would then also be applicable and the press could in the appropriate circumstances be prosecuted under that section but that section does not create a blanket ban and it provides protection for the press which is not available to Mr Shayler. In fact we suspect, even then, it would only be in an exceptional case that the Attorney General would authorise a prosecution.
- Section 5 is not easy to interpret and we do not seek to say anything about its interpretation. However, Mr Tugendhat was concerned in case a journalist could instead of being prosecuted under section 5 be charged with inciting an offence under section 1. He says allegations as to this have been made in this case. These may have arisen because the Daily Mail paid Mr Shayler ?37,000 for his revelations which they published. As Professor Birkinshaw makes clear in his admirable work, Freedom of Information, this area is a mine field and we feel unable to say more in relation to the submissions that we have heard than:
(1) It would have to be an extreme case on the facts for a prosecution for incitement to be justified having regard to the structure of the OSA which attaches such importance to the status of the individual charged.
(2) Judicial review could have a significant role to play in this area and if for example, before disclosure the matter was already fully in the public domain it is difficult to identify what would be the rational justification for not granting authorisation for disclosure or authorising a prosecution.
- We dismiss this appeal.