The Official Secrets Act; defence of public interest

Jo Morris
Charter Chambers

Gavin Hood’s “Official Secrets” is a howl of protest at the perceived injustices of the Official Secrets Act 1989.  Dramatizing the prosecution of the GHCQ translator, Katharine Gun, when she leaked a top-secret memo to the Observer, the complaint is that Crown servants who disclose confidential information cannot rely upon the defence that it is in the public interest to do so.  This complaint is misconceived.

The four Official Secrets Acts seek to protect the UK from espionage, terrorism and treason.  Breaches thereof imperil the national interest in the most corrosive way.  A general defence of public interest would create leniency and uncertainty.  Of course, some people who make authorised disclosures do so for altruistic reasons but that does not detract from the fact that they serve a foreign power.  The absence of desire for personal gain does not lesson the very significant harm that their actions are capable of causing to this country.  It is a principle of law of long-standing that criminality should be judged primarily upon the nature and degree of harm caused by actions rather than the motives of the actor. 

Further, such a defence would risk opening the floodgates to wholesale disclosures.  It would encourage everybody subject to the legislation to examine their conscience when deciding whether they should or should not keep protected documents confidential.  Where the public interest lies is a judgement best reached by fully informed minds.  Danger lies in allowing Crown servants in modest positions with limited information to think that they owe the UK their best judgement not their obedience.

A Crown servant is not enslaved to a rogue State, unable forever to reveal its dark secrets.  The Act does not place an absolute ban upon disclosure.  It restricts disclosure unless lawful authority has been gained.  If authorisation is refused unreasonably, that refusal can be challenged by way of judicial review.  The Supreme Court found that this did not amount to an unreasonable interference with freedom of expression when the prosecution of David Shayler, the former security service member, was considered.

A whistle blower only offends if the unauthorised disclosure is “damaging”.  Whether a disclosure is “damaging” is defined in the Act and includes things such as endangering the armed forces or the interests of the UK abroad. “Damaging” is a nebulous term but it is clear that Parliament did not intend it to extend to shining light upon a Government that is acting in bad faith.

Whether a disclosure serves the public interest depends upon the balance of risk against gain. This cannot be safely assessed by individuals who lack full vision of the situation.  Those entrusted with information of national importance place the UK at risk when they make unauthorised disclosures and cannot hide behind a cloak of piety to escape punishment.