Crime, intelligence, security, nuclear secrets, international relations, terrorism and defence are creatures of official secrecy. Such ‘secrets’ are guarded by a panoply of legal provisions that restrain writers in the name of national security, territorial integrity and public safety. Prosecutions under these provisions are rare. Their purpose is to create a climate of secrecy around Whitehall that deters ministers, civil servants and writers from disclosing sensitive information. Writers would be wise to remember that when they are genuinely investigating possibly corrupt or reprehensible activities by a public authority, compelling evidence would be needed to justify the suppression of their work.
The Terrorism Acts of 2000 and 2006 contain provisions to police the links between terrorism and the written word.
Under the Terrorism Act 2000 it is an offence for a person to collect or record information likely to be of use to terrorists. Samina Malik, the ‘lyrical terrorist’, was found guilty of this offence in 2007. Her conviction was overturned a year later when the Court of Appeal held that her poetry, although theological and propagandist, was of no practical use to terrorists. However, publications such as the Al Qaida Manual, the Terrorist’s Handbook, the Mujahideen Poisons Handbook and the Anarchist’s Cookbook have been deemed useful to terrorists.mina
It is an offence to elicit support for groups proscribed by the Terrorism Act 2000 (see Schedule 2 for the full list). Currently these groups include the Tamil Tigers, the Workers’ Party of Kurdistan (the PKK), the IRA and Al Qaida. The European Court of Human Rights upheld a Turkish writer’s conviction for eliciting support for terrorism when he made a claim in a national newspaper that the PKK had killed women and children by mistake.
It is also an offence to arrange a meeting with any of the proscribed organisations. A meeting is defined as three or more people. Rather absurdly, this means that a journalist interviewing a member of a proscribed organisation is only safe from prosecution if there is no one else there. It should also be remembered that payment for an interview may infringe the prohibition on providing money for the purposes of terrorism. Infiltration of proscribed groups by investigative journalists is made all the more difficult by the fact that anyone who has information which might be of assistance in preventing an act of terrorism or in securing the arrest, prosecution or conviction of someone for terrorism, commits an offence if the information is not immediately disclosed to a police officer.
The Terrorism Act 2006 was passed in the wake of the 7 July 2005 London bombings. Under the 2006 Act it is an offence to publish a statement that intends to encourage members of the public to commit acts of terrorism, or that glorifies terrorism. It is irrelevant whether anyone is in fact encouraged to commit a terrorist act. The maximum penalty is seven years imprisonment. There have been very few prosecutions of this offence. In 2006 the song writer Aki Nawaz was threatened with prosecution when he released his album All is War (The Benefits of G-Had) that contained the lyric “I’m strapped-up ‘cross my chest, bomb belt attached, deeply satisfied with the pain I hatched” but charges were never brought.
The Official Secrets Act 1989 (“OSA”) regulates the publication of sensitive matters of state. Prosecutions under the OSA are relatively rare; the aim of the legislation is to deter disclosure.
Under section 5 it is an offence for journalists, editors and writers to publish information that they know is protected by the legislation. The categories of protected information are dealt with below. In order to prosecute this offence it must be shown that the writer or publisher had reason to believe that the publication would be damaging to the United Kingdom’s interests, that it relates to one of the protected categories of information, that it originated from a government employee, and that it was disclosed without authority. If a writer receives information relating to an official secret but refrains from publishing it, no liability arises. It is a defence if the writer or publisher can prove that she did not know that the information concerned official secrets, or that she did not know that the information might cause damage. The maximum penalty is two years imprisonment or an unlimited fine.
No journalist has yet been brought to trial under the OSA; Tony Geraghty faced charges in connection with his book The Irish War published in 1998, but they were dropped after considerable public outcry.
Security and Intelligence
People who are or have been members of the security and intelligence services commit an offence if they disclose any information relating to security or intelligence that they have acquired through of their work. The information need not be secret and nor must its disclosure be likely to cause harm. Theoretically this means that all information, no matter how trivial, is covered. There is no public interest defence available for members of the security and intelligence services who disclose information. In 2003 David Shayler, an ex-MI6 agent, was successfully prosecuted when he disclosed intelligence documents to the Mail on Sunday that suggested that MI6 had been involved in a plot to assassinate Colonel Gaddafi.
Other government employees are prohibited from making a damaging disclosure of information relating to security or intelligence. Damage has the somewhat circular definition of “damage to the work of or any part of the security and intelligence services”. It is enough for the prosecution to show that damage is likely to be caused, there is no need to show that damage wasactually caused.
It is an offence for government employees to disclose information obtained through their work that concerns defence. The prosecution must show that damage is likely to arise upon disclosure. In another somewhat opaque definition, damage in this context means damage to the capability of any part of the armed forces, loss of life or injury to its members, serious damage to its equipment or installations, or jeopardy to British interests or citizens abroad.
It is an offence for government employees to disclose any information that would be likely to result in the commission of a criminal offence, facilitate the escape of a detained person, or impede the prevention or detection of crime. Under this category there is no need for the prosecution to show that the information is likely to cause damage. It was under this provision that the Metropolitan police considered trying to force journalists at the Guardian to reveal their sources from the phone hacking scandal. After outcry from politicians, journalists and the public, this course of action was dropped.
It is an offence for government employees to disclose information relating to international relations or confidential information obtained from another state. The prosecution must prove that it is likely that British interests abroad will be jeopardised by disclosure.
Disclosure or publication of information about atomic energy processes or plants can be prosecuted under the Atomic Energy Act 1946 if it can be shown that the information is important to defence. Similarly, the Anti-Terrorism, Crime and Security Act 2001 prohibits the disclosure or publication of any information that puts the security of any nuclear site or nuclear material at risk. The maximum penalty for these offences is seven years imprisonment.
Ministerial memoirs are rarely the subject of prosecution. Traditionally the Cabinet Secretary and Prime Minister act as the censors of their colleagues’ memoirs, although they have no legal power to prevent publication. In 2002 the Cabinet Office attempted to censor Mo Mowlam’s diaries but she refused to submit and no prosecution was brought.
Civil servants’ memoirs have historically been the subject of prosecutions. In 1926 the Governor of Pentonville Prison was fined for publishing his biography in the Evening Standard. However, so long as ex-civil servants avoid discussing defence or intelligence, prosecution is unlikely. Leslie Chapman’s Your Disobedient Servant, for example, went un-sanctioned in spite of his revelations of waste and inefficiency in Whitehall.
NATIONAL SECURITY AND HUMAN RIGHTS
There is potential for major conflict between the right to freedom of expression guaranteed by the European Convention on Human Rights and the need for a state to protect itself and its citizens from seditious forces. The Wikileaks disclosure exposes the fault lines at their most fractious; it goes to the heart of the interest of the citizen in acquiring information and the interest of the state in withholding it. The European Court of Human Rights takes a careful approach. If a state can demonstrate a link between the suppressed material and a threat to national security, the European Court will be reluctant to find a violation of the right to free speech.
Next week: The Prevention of Disorder and Crime
Last reviewed: April 2012
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