Lord Bingham of Cornhill said that the white paper "Reform of Section 2 of the Official Secrets Act 1911" (Cm. 408) (June 1988) was the immediate precursor of this Act and that its recommendations bear directly on the interpretation of this Act.[3]
General information
Capacity
The offences under sections 1(3), 2(1), 3(1) and 4(1) can be committed only by persons who are or have been, and the offence under section 8(1) can be committed only by persons who are, Crown servants or government contractors.
The offences under the Act, that can be committed only by persons who, as the case may be, are or have been Crown servants, government contractors, or members of the security and intelligence services, can be committed only where the information, document or other article in question is or has been in the possession of the person in question by virtue of their position as such.[4]
The offences under sections 5(2), 5(6), 6(2), 8(4), 8(5) and 8(6) can be committed by any person.
Requirement that the disclosure be "damaging"
Sections 1(3), 2(1), 3(1), 5(3)(a) and 6(2) provide that the disclosures to which they apply are not an offence unless they are "damaging". Section 4(2) is similar.
Extraterritorial jurisdiction
Offences under any provision of the Act, other than sections 8(1) or 8(4) or 8(5), committed by any person in the United Kingdom, the Isle of Man, the Channel Islands, or in any colony, or committed by British citizens or Crown servants in any place, are cognisable as offences under the law of the United Kingdom.[5]
Arrest and mode of trial
In England and Wales, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified as arrestable offences, initially by virtue of sections 24(1)(c) and (2)(bb)[6] of the Police and Criminal Evidence Act 1984, and then by virtue of sections 24(1)(c) and (2)[7] of, and paragraph 18 of Schedule 1A[8] to, that Act.
The offences under sections 8(1), (4) and (5) are triable only summarily; the others are triable either way.
Prescribed bodies and persons
Sections 7(5), 8(9), 12 and 13(1) confer powers on the Secretary of State to "prescribe" bodies and persons for certain purposes. These powers have been exercised by the following instruments:
Official Secrets Act 113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of duress of circumstance in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated "authorisation to disclose" procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall.[9]
Specific provisions of this Act
Section 1 - Security and intelligence
Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence.
It can be committed by any person who is or has been a member of the security and intelligence services, or who is or has been a person notified that he is subject to the provisions of section 1(1).
Cases under this section:
R v. Shayler [2002] UKHL 11, [2002] All ER 477 (21 March 2002)[10]
R v. Shayler [2001] EWCA Crim 1977, [2001] WLR 2206 (28 September 2001)[11]
Section 2(1) creates an offence of disclosing information, documents or other articles relating to defence. This section applies only to Crown servants and government contractors.
Section 3 - International relations
Section 3(1)(a) creates an offence of disclosing information, documents or other articles relating to international relations. This includes confidential information, documents or other article from a State other than the United Kingdom or an international organisation. This section applies only to crown servants and government contractors.
Section 4 - Crime and special investigation powers
This section relates to disclosure of information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.
Section 5 - Information resulting from unauthorised disclosures or entrusted in confidence
This section relates to further disclosure of information, documents or other articles protected from disclosure by the preceding sections of the Act. It allows, for example, the prosecution of newspapers or journalists who publish secret information leaked to them by a crown servant in contravention of section 3. This section applies to everyone.
Section 6 - Information entrusted in confidence to other States or to international organisations
This section needs expansion. You can help by adding to it. (July 2011)
Section 6 creates an offence of making a "damaging disclosure" which "relates to security or intelligence, defence or international relations" where that information was provided in confidence "by or on behalf of the United Kingdom to another State or to an international organisation" where that person obtained it without that State or organization's authorization, and where no other offence under the earlier sections of this Act applies. Lawful authority and prior authorized disclosure are defences against this offence.
Section 7 - Authorised disclosures
Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied.
Section 7(4) provides a defence.
Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction".
Section 8 - Safeguarding of information
This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obliges them to properly protect secret information from accidental disclosure.
Section 9 - Restriction on prosecutions
Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of the Director of Public Prosecutions, or in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Section 9(1) provides that no prosecution for any other offence under this Act may be instituted, in England and Wales, except by or with the consent of the Attorney General, or in Northern Ireland, except by or with the consent of the Advocate General for Northern Ireland.
This section provides the penalties and mode of trial for offences under the Act.
Section 10(2) provides that a person guilty of an offence under section 8(1) or 8(4) or 8(5) is liable on summary conviction to imprisonment for a term not exceeding three months, or to a fine not exceeding level 5 on the standard scale, or to both.
Section 10(1) provides that a person guilty of any other offence under the Act is liable, on conviction on indictment to imprisonment for a term not exceeding two years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.
The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) by paragraph 39 of Schedule 26 to the Criminal Justice Act 2003.
Section 12 - Definition of Crown servant and government contractor
Section 12(1) defines the expression "Crown servant" for the purposes of this Act.
Sections 12(2) and (3) define the expression "government contractor" for the purposes of this Act.
Section 13 - Other interpretation provisions
This section defines the words and expressions "disclose", "disclosure", "international organisation", "prescribed" and "State" for the purposes of the Act.
Section 14
This section provides the procedure for making orders under the Act.
Section 15 - Acts done abroad and extent
Section 15(1)(a) provides that any act done by a British citizen or Crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
This is intended to cover espionage (where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a newspaper.
Section 15(1)(b) provides that any act done by any person in any of the Channel Islands, or in the Isle of Man, or in any colony, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
Section 15(3) confers a power on The King to extend, by Order in Council, any provision of the Act, subject to any exceptions, adaptations or modifications specified in the Order, to any of the Channel Islands, or to the Isle of Man, or to any colony.
Section 16(5) provides that the repeals of parts of the Official Secrets Act 1911 and the Official Secrets Act 1920 in Schedule 2 do not extend to any of the territories mentioned in section 15(3), subject to any Order made under section 15(3). The said territories mentioned in section 15(3) are the Channel Islands, the Isle of Man and all colonies. Such an Order was made in relation to Hong Kong (see above).
This section also provides for consequential amendments, repeals, a revocation, and commencement.
Clive Ponting – British civil servant, whose acquittal under the Official Secrets Act 1911 and subsequent book is said to have led to tightening of the law.
Richard Tomlinson – former MI6 agent imprisoned in 1997 for breaking the 1989 Act, by attempting to publish a book detailing his career.
Katharine Gun – former GCHQ translator arrested under the Act whose case was later dropped by the government.
An Official Secrets Act (OSA) is legislation that provides for the protection of state secrets and official information, mainly related to national security. However, in its unrevised form, it can include all information held by government bodies.
A public interest defence is a defence in law that allows a defendant who disclosed classified or protected information to avoid criminal or civil liability by establishing that the public interest in disclosure of the information outweighs the public interest in nondisclosure.
The Campaign for Freedom of Information is an advocacy group that promotes and defends freedom of information in the UK. It seeks to strengthen the public's rights under the Freedom of Information Act 2000 and related laws and opposes attempts to weaken them. It does this through campaigning, the publication of briefings and other reports and research. The Campaign also provides advice to the public and assistance to people challenging unreasonable refusals to disclose information, and runs training courses on freedom of information.
The Public Interest Disclosure Act 1998 is an Act of the Parliament of the United Kingdom that protects whistleblowers from detrimental treatment by their employer. Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life, the bill was introduced to Parliament by Richard Shepherd and given government support, on the condition that it become an amendment to the Employment Rights Act 1996. After receiving the Royal Assent on 2 July 1998, the Act came into force on 2 July 1999. It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation act, the Offences Against the Person Act 1828, incorporating subsequent statutes.
The Rehabilitation of Offenders Act 1974 of the UK Parliament enables some criminal convictions to be ignored after a rehabilitation period. Its purpose is that people do not have a lifelong blot on their records because of a relatively minor offence in their past. The rehabilitation period is automatically determined by the sentence. After this period, if there has been no further conviction the conviction is "spent" and, with certain exceptions, need not be disclosed by the ex-offender in any context such as when applying for a job, obtaining insurance, or in civil proceedings. A conviction for the purposes of the ROA includes a conviction issued outside Great Britain and therefore foreign convictions are eligible to receive the protection of the ROA.
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland. Large portions of the act were repealed and replaced by the Sentencing Act 2020.
The Official Secrets Act 1911 was an Act of the Parliament of the United Kingdom. It replaced the Official Secrets Act 1889.
The Fraud Act 2006 is an Act of the Parliament of the United Kingdom which affects England and Wales and Northern Ireland. It was given royal assent on 8 November 2006, and came into effect on 15 January 2007.
The Criminal Law Act 1967 is an act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.
The Crown Proceedings Act 1947 is an act of the Parliament of the United Kingdom that allowed, for the first time, civil actions against the Crown to be brought in the same way as against any other party. The act also reasserted the common law doctrine of Crown privilege but by making it, for the first time, justiciable paved the way for the development of the modern law of public interest immunity.
The Digital Switchover Act 2007 is an Act of the Parliament of the United Kingdom that allows social security information to be passed to the BBC and related parties to help with the digital television switchover in the United Kingdom.
The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law crime of incitement with a statutory offence of encouraging or assisting crime, makes provision as to disclosure and information sharing in order to prevent fraud, and abolishes the Assets Recovery Agency creating a new regime for the recovery of the proceeds of crime.
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland. In particular, it changes the law relating to custodial sentences and the early release of prisoners to reduce prison overcrowding, which reached crisis levels in 2008. It also reduces the right of prison officers to take industrial action, and changed the law on the deportation of foreign criminals. It received royal assent on 8 May 2008, but most of its provisions came into force on various later dates. Many sections came into force on 14 July 2008.
The Criminal Law (Consolidation) (Scotland) Act 1995 is an Act of the Parliament of the United Kingdom passed to consolidate certain enactments creating offences and relating to the criminal law of Scotland.
Attorney General v Blake[2000] UKHL 45, [2001] 1 AC 268 is a leading English contract law case on damages for breach of contract. It established that in some circumstances, where ordinary remedies are inadequate, restitutionary damages may be awarded.
The Official Secrets Act 1920 was an Act of the Parliament of the United Kingdom.
In the United Kingdom and other Commonwealth countries such as Canada, a crown servant is a "person employed by the Crown". Although the term is not consistently defined, generally all executive officials and their staffs, civil servants, police officers, judicial officials, and members of the armed forces are crown servants.
The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.
The National Security Act 2023 is an act of the Parliament of the United Kingdom which introduced new measures intended to strengthen United Kingdom national security against espionage, interference in the political system, sabotage, and assassination.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
