OPINION Official secrets

Those streaming in self-isolation might turn to Gavin Hood’s whistleblower drama Official Secrets, with a critical eye, and ponder its portrayal of well-known characters from the Bar; Ralph Fiennes as Ben Emmerson QC, Indira Varma as Shami Chakrabarti, Jeremy Northam as Ken Macdonald QC, Tamsin Greig as Elizabeth Wilmshurst and Kenneth Cranham as Judge Hyam.

The film is based on the book The Spy Who Tried to Stop a War: Katharine Gun and the Secret Plot to Sanction the Iraq Invasion by Marcia and Thomas Mitchell. Readers will be aware of the true-life events behind the story. On the eve of war in 2003, the Blair government was keen to achieve a United Nations sanction for the American led invasion of Iraq. Gun was employed as a Mandarin translator at GCHQ. She was copied into a classified memo sent by a senior figure in the US National Security Agency. This was a top-secret request to monitor the private communication of UN delegates for information that could be used to ‘give the US an edge’ in leveraging support for the invasion. Gun leaked the memo to the Observer and was subsequently prosecuted for breaches of the Official Secrets Act.

The principal protest in the film is that Crown servants who disclose confidential information cannot rely upon the defence that it is in the public interest to do so; the implication being that the legislation provides a cover for governmental malpractice. This complaint is without merit.

The four Official Secrets Acts restrict the spread of information hostile to the interests of the UK. Protecting us from the forces of espionage and terrorism and safeguarding national security, economic wellbeing and diplomatic relations, the law brings right and reason to this land. Those who make unauthorised disclosures endanger country and citizen alike. Of course, it may be true that they have an altruistic motive but that does not remove the very significant harm that their actions may cause. The fact that an offender does not himself lay violent hands upon another does not mean that he is not a substantial cause of atrocities.

A general defence of public interest would open the floodgates to breaches. It would render the issue of whether confidentiality should be maintained moot. Everybody subject to the legislation would be encouraged to search their conscience to decide whether they should or should not make disclosures of protected documents. Where the public interest lies is a decision best made by fully informed minds. Allowing Crown servants in modest positions to think that they owe the UK their best judgment, not their obedience, is to invite danger.

The implication of the film is that the Official Secrets Act 1989 is an oppressive instrument capable of use to suppress the dark secrets of a rogue State. In fact, the 1989 Act was an attempt to reduce the range of circumstances in which an authorised disclosure would constitute a criminal offence by adding the requirement that a disclosure must be ‘damaging’ as s 2 of the Official Secrets Act 1911 criminalised the disclosure of any information entrusted to Crown servants.

It is true that none of the disclosure offences in the Act include a public interest defence. To create one would be contrary to the entire aim of the Act which was to clarify which on authorised disclosures would be criminalised. Criminal offences do not generally contain a public interest exemption because it is not expected that what is or is not in the public interest should be left up to the view of the offender. Other disclosure offences contain only narrow public interest exemptions rather than defences. Examples include s 20 of the Commission for Revenue and Customs Act 2005 and s 3 of the Agriculture Statistics Act 1979. In neither case is the public interest left as a question of fact for the discloser. Without any wish to trivialise breaches of either statute, they do not risk national security.

A Crown servant is not silenced by a miscreant State. The Act does not place an absolute ban upon disclosure. It restricts disclosure only until lawful authority has been granted. If authorisation is refused unreasonably then that refusal can be challenged by way of judicial review. This was considered by the House of Lords in the case of David Shayler, the former security service member, and it was found not to amount to an unreasonable interference with freedom of expression.

Neither are the offences ones of strict liability. As a result of the amendment in the 1989 Act, each of the offences in ss 1-3 contain defences if the defendant proves 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 related to a protected category of information and that its disclosure would be damaging. This defence was scrutinised in the case of Keogh [2007] EWCA Crim 528. It was held that it was for the prosecution to prove beyond reasonable doubt that the defendant knew or had a reasonable cause to believe that the information in question fell within a protected category and that its disclosure would be damaging. What is ‘damaging’ is dependent upon facts. However, it is clear that this legislation cannot be used to prevent whistleblowers shining light upon governmental impropriety.

Whether a disclosure serves the public interest is a balance of risk against gain. It can only properly be assessed by individuals who have the full vision of the situation; those who leak information of national importance endanger Queen and country and cannot escape punishment by hiding behind claims of misjudged public interest.