3 August 2003. Court of Appeal dismissal of Shayler's appeal:
9 November 2002. Add law reports on prior judgments of 21 March 2002 and 28 September 2001, and links to Cryptome files on Shayler. News report of the Shayler trial and sentencing of 6 November 2002:
7 November 2002. Thanks to Anonymus.
IN THE CENTRAL CRIMINAL COURT
DAVID MICHAEL SHAYLER
CERTIFICATE OF THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
1. I am her Majestys Secretary of State for the Home Department. I make this Certificate to assist the Court in determining the prosecutions application that any part of the trial process which touches, or purports to touch, whether directly on indirectly, upon any sensitive operation technique of the security and intelligence services, and in particular upon their sources of information, including the identity of any officer, contact or agent be held in camera.
2. I am aware of the proceedings in R -v- David Michael SHAYLER in which the Defendant is charged with disclosing documents contrary to Section 1(1) of the Official Secrets Act 1989, disclosing information contrary to Section 1(1) of the Official Secrets Act 1989 and disclosing information obtained by reason of the interception of communications contrary to Section 4 (1) of the Official Secrets Act 1989. I am advised that in connection with this prosecution attempts may be made by the defendant to make statements during the course of the proceedings or put into evidence material which relates to certain security and intelligence matters
3. I have formed the view that certain such statements or evidence, if received in open court, would be prejudicial to national security. I make this Certificate for the purpose of assisting the Court to determine the questions that arise in determining whether to exercise its power pursuant to s.8(4) Official Secrets Act 1920, s11(4) Official Secrets Act 1989 and R.24A of the Crown Court Rules 1982 to sit in camera to avoid damage to national security
Damage to national security
4. The reason why publication of certain statements or evidence would be prejudicial to national security is that they include information of one or more of the following kinds:
a. Information relating to methods, techniques or equipment deployed by the security and intelligence services, disclosure of which would reduce or risk reducing the value of the method, technique or equipment in current or future operations;
b. Information relating to methods, techniques or equipment deployed by the security and intelligence services, disclosure of which would endanger or risk endangering the persons concerned or other persons or would impair or risk impairing their ability to continue providing information or assistance, or the ability of the security and intelligence services to obtain information and assistance from the person concerned or other persons;
c. Information relating to operations and the capabilities of the security and intelligence services disclosure of which would jeopardise present and future intelligence gathering operations and capabilities;
d. Information relating to the identity, appearance, deployment or training of current and former members of the security and intelligence services, disclosure of which would endanger or risk endangering them or other individuals or would impair or risk impairing their ability to operate effectively as members of the security and intelligence services or the ability of those services to recruit and retrain staff in the future;
e. Information received in confidence by the security and intelligence services from foreign liaison sources, disclosure of which would jeopardise or risk jeopardising the provision of such information in the future;
f. Other information likely to be of use to those of interest to the security and intelligence services in pursuit of its functions including terrorists and other criminals, disclosure of which would impair or risk impairing the services performance of their functions.
5. The general nature of those concerns needs little elaboration. They are aimed both at protecting the integrity of security and intelligence operations and at protecting the safety and usefulness of those who work for the security and intelligence services or provide information to them, including intelligence gathering organisations outside the United Kingdom. Publication of information of the kinds referred to would be likely to assist those whose purpose it is to injure the security of the United Kingdom and whose actions in the past have shown that they are willing to kill innocent civilians both inside and outside of the United Kingdom in pursuance of their aims. As regards the provision of intelligence to the security and intelligence services by third parties, this relies on those third parties having confidence that the information, and their part in assisting the agencies, will not be published. To disclose in breach of such confidentiality creates a serious risk that such information will be less readily forthcoming in the future. In addition, anything that might lead in identification could result in grave danger to the persons concerned.
6 It is not possible for me to be more specific in this Certificate about the information for which non-publication is sought, or the precise harm that publication would cause, since my doing so would be liable to cause the very damage that the Certificate seeks to avoid. Full details are, however given for the benefit of the Court in the sensitive schedule to the Certificate. Home Office officials have read this Schedule and informed me of its contents. With the benefit of advice from my officials and from the Security Service I have satisfied myself that publication of information of the type identified in the Schedule would cause damage to national security of the type the Schedule identifies. Accordingly, I have signed this Certificate.Although this certificate is being made available to the defendant, the sensitive Schedule is a highly classified document that is being provided only to the Court.
The decision to sit in camera
In making this Certificate, I accept that the Court has sole responsibility for determining applications to sit in camera. I am making this Certificate and the sensitive schedule available to the Court to assist it in determining the prosecutions application that the public be excluded during any part of the hearing which touches, or purports to touch, whether directly or indirectly, upon any sensitive operational techniques of the security and intelligence services, and in particular upon their sources of information, including the identity of any officer, contact or agent. If the Court requires further assistance from me in order to reach its determination, I am ready to provide it.
Signed (David Blunkett)
Her Majestys Secretary of State for the Home Department
CRIME Official secrets Disclosure without lawful authority Former member of security service prosecuted for unlawfully disclosing information Whether compatible with right to free expression Whether entitled to defence that disclosure necessary in public interest Official Secrets Act 1989, ss 1(1), 4(1) Human Rights Act 1998, Sch I, Part 1, art 10
R v Shayler
HL: Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote: 21 March 2002
The restrictions imposed by the Official Secrets Act 1989 ("OSA") on members
and former members of the security and intelligence services in relation
to the disclosure of information and documents acquired in the course of
their employment were compatible with their right to freedom of expression
guaranteed by art 10 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms ((1953) (Cmd 8969). On a prosecution for
such disclosure the defendant was not entitled to argue as a defence that
he had acted in the public or national interest.
The House of Lords so held, dismissing an appeal by the defendant, David Michael Shayler, from the Court of Appeal ( 1 WLR 2206) which had dismissed his appeal from rulings given by Moses J on 16 May 2001 at a preparatory hearing under the Criminal Procedure and Investigations Act 1996 that sections 1 and 4 of the OAS were compatible with the Convention and that no public interest defence was available to the defendant.
The defendant was employed as a member of the security service from 1991 to 1996. On entering the service and again on leaving he signed declarations under the OSA acknowledging his contractual obligation not to disclose, without lawful authority, any information that was in his possession by virtue of his employment with the service. In 1997 he disclosed documents relating to security matters to a national newspaper. He was charged with offences contrary to ss 1 and 4 of the OSA.
LORD BINGHAM OF CORNHILL said that it was plain, giving ss 1(1)(a) and 4(1)
and (3)(a) of the OSA their natural and ordinary meaning and reading them
in the context of the OSA as a whole, that a defendant prosecuted under those
sections was not entitled to be acquitted if he showed that it was, or that
he believed that it was, in the public or national interest to make the
disclosure in question or if the jury concluded that it might have been,
or that the defendant might have believed it to be, in the public or national
interest to make the disclosure. The sections imposed no obligation on the
prosecution to prove that the disclosure was not in the public interest and
gave the defendant no opportunity to show that the disclosure was in the
public interest or that he thought it was. The sections left no room for
doubt and Parliament's intention was clear beyond argument. The broad language
of art 10(1) which guaranteed the right to freedom of expression was qualified
by art 10(2). There could be no doubt that the sections under which the defendant
had been prosecuted restricted his prima facie right to freedom of expression
and that the restriction was directed to objectives specified in art 10(2).
The ban imposed by the OSA on disclosure of information and documents relating
to security was not absolute, but was a ban on disclosure without lawful
authority. The refusal of a request for official authorisation to disclose
information could be challenged by an application for judicial review. The
special position of those employed in the security and intelligence services,
and the special nature of their work imposed duties and responsibilities
on them within the meaning of art 10(2). If a person who had given a binding
undertaking of confidentiality sought to be relieved, even in part, from
that undertaking he must seek authorisation and, if so advised, challenge
any refusal. If that refusal was upheld by the courts, it must, however
reluctantly, be accepted. Ss 1(1) and 4(1) and (3) of the OSA were compatible
with art 10 of the Convention.
LORD HOPE OF CRAIGHEAD and LORD HUTTON agreed with LORD BINGHAM and delivered concurring opinions.
LORD HOBHOUSE OF WOODBOROUGH agreed with LORD BINGHAM.
LORD SCOTT OF FOSCOTE agreed with LORD BINGHAM, LORD HOPE and LORD HUTTON.
Appearances: Geoffrey Robertson QC (who did not appear below) and Keir Starmer (Liberty and Birnberg Peirce & Partners) for the defendant; Michael Tugendhat QC and Sapna Jethani (Solicitor, Times Newspapers Ltd) for the press; Nigel Sweeney QC, Jason Coppel and Jonathan Laidlaw (CPS) for the Crown; Jonathan Crow (Treasury Solicitor) for the Home Secretary.
Reported by: Shiranikha Herbert, barrister.
CRIME Official secrets Disclosure without lawful authority Whether defence of necessity of circumstances possible Whether blanket ban on disclosure breaching right to freedom of expression Official Secrets Act 1989, ss 1(1), 4(1) Human Rights Act 1998, Sch I, Pt I, art 10
R v Shayler
CA: Lord Woolf CJ, Wright and Leveson JJ: 28 September 2001
A member or past member of the security service who was prosecuted for disclosing
documents or information without lawful authority could rely on the defence
of duress or necessity of circumstances, but only if the disclosure was made
to avoid an imminent peril of danger to life or serious injury to himself
or somebody for whom he reasonably regarded himself as being responsible.
The blanket ban on disclosure by members or past members of the security service was a justified interference with their right to freedom of expression in view of the importance of the protection of national security and the safeguards which existed to enable them to ventilate their concerns without endangering national security.
The Court of Appeal, Criminal Division, so held in dismissing an appeal by the defendant, David Shayler, a former employee of the security service, against rulings made by Moses J on 16 May 2001 at a preparatory hearing under s 29 of the Criminal Procedure and Investigations Act 1996 prior to the commencement of his trial on two counts of disclosing documents without lawful authority contrary to s 1(1) of the Official Secrets Act 1989 and one count of disclosing information contrary to s 4(1).
LORD WOOLF CJ, giving the judgment of the court, said that the defence of duress or necessity of circumstances should be regarded as being available when a defendant committed 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 regarded himself as being responsible. That person might not be ascertained and might not be identifiable. However if it was not possible to name the individuals beforehand, it had at least to be possible to describe the individuals by reference to the action which was threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant had responsibility for them because he was placed in a position where he was required to make a choice whether to take or not to take the action which it was said would avoid them being injured. The act done should be no more than was reasonably necessary to avoid the harm feared and the harm resulting from the act should not be disproportionate to the harm avoided. Mr Shayler had not been in a position to identify any incident which was going to create a danger to the members of the public which his actions were designed to avoid. There was no necessity or duress as those words were ordinarily understood. As to the application of the doctrine of necessity to the 1989 Act, their Lordships saw no justification for making a distinction between the unextended and extended defence, nor any need to extend the list of offences to which it did not apply. Parliament had not given any clear indication that the extended defence was excluded and their Lordships did not consider they should infer it was excluded. However as a matter of practice whether the defence in its extended form was or was not excluded was of no significance since their Lordships could not envisage circumstances in which it would apply. Mr Shayler was entitled to the protection of freedom of expression provided by art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998. The question was whether the prosecution could justify the blanket ban provided by ss 1 and 4 of the 1989 Act, applying the well developed jurisprudence as to freedom of expression. It was here that the structure of the 1989 Act and other legislation was so important. It made 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. When determining whether a limitation was arbitrary or excessive, the court had to ask itself whether the means used to impair a right or freedom were no more than was necessary to accomplish an important and legitimate objective. What the Act was designed to protect was national security. Balancing the public interest in that field was notoriously difficult and not ideally suited to a trial by jury. The blanket restraint was confined to a relatively small class; the members and former members of the security services. Of course there would be a danger that the protection the Act provided would prove ineffective. However that danger was reduced by the availability of judicial review and the ability of the Attorney General to refuse permission to prosecute. Finally there was the fact that ss 1 and 4 were the attempt of the democratically elected legislature to square the circle. In an area as sensitive as this it was appropriate to show a degree of deference to the legislators' decision. Their Lordships did not consider that the solution was necessarily inconsistent with art 10. So far as the members or past members were concerned the restriction on freedom of expression was justified.
Appearances: Edward Fitzgerald QC and Keir Starmer (Birnbergs Peirce & Partners) for the defendant; Nigel Sweeney QC and Jason Coppel (CPS, Ludgate Hill) for the Crown; Michael Tugendhat QC (Solicitor, Times Newspapers Ltd) for Times Newspapers Ltd, Guardian Newspapers Ltd, Mirror Group Newspapers, Associated Newspapers and the Independent.
Reported by: Jill Sutherland, barrister.
Cryptome files on David Shayler
Qadahfi Assassination Plot, 14 February 2000
Public Friend No. 1, 16 February 2000
Libyan Intelligence Service Activity in the UK, 14 April 2000
Why Prosecute David Shayler?, 28 August 2000
Judgment in Steen v. HMG in OSA-Shayler Case, 21 March 2001
Shayler v. Court of Appeal - Judgement, 29 September 2001
MI6 Plot to assassinate Colonel Gaddafi, 11 November 2001
House of Lords - Regina v Shayler (On Appeal From The Court of Appeal (Criminal Division)), 22 March 2002
UK Bans News of MI Assassination Plots, 16 October 2002