Page 268 - Law and the Media

Official Secrets
to rely upon the Civil Service disciplinary code or upon the civil law of confidence to protect
its interests.

15.3.2 General principles

The criminal law in relation to official secrets under the 1989 OSA now applies to six clearly
defined categories of information only. Other classes of official information, such as Cabinet
documents and advice to ministers, will not be specifically protected. The White Paper
stated:

Documents of this kind will be protected by the proposals if their subject matter
merits it, but their coverage en bloc would fuel suspicions that information was being
protected by the criminal law merely for fear of political embarrassment.

Under the 1989 OSA, liability for disclosure falls on those who improperly disclose
information in one of the six categories provided for in Sections 1 to 6 of the 1989 OSA
‘knowing or having good reason to know that to do so is likely to harm the public interest’.
With the exception of Section 1, which regulates security and intelligence matters, and Section
4, which regulates special investigation powers, the prosecution also has to prove that the
disclosure was in fact damaging. Section 5 of the 1989 OSA is most relevant to the media. The
prosecution has to prove that the person who disclosed the information knew that harm to
the public interest was likely to result. The question is ultimately one for the jury.

The possible defence of disclosure in the public interest was rejected by the legislators and
is not found in the 1989 OSA. It was considered that the question of criminality should not
depend on motivation but instead on the nature and degree of harm caused by the defendant.
The defence of disclosure after some prior publication was also rejected because it was said
that newspaper or broadcast stories may carry little weight in themselves but could be
damaging if they were confirmed by a government official. However, in R v Shayler (2001)
the Court of Appeal suggested that if the material was already in the public domain, a
prosecution should not ordinarily be authorized.

The usual criminal law concepts apply to the 1989 OSA. For example, a member of the
media who incited, encouraged or paid a government official to disclose secrets might also
be prosecuted for the offence of inciting or aiding and abetting an offence under Section 1
of the 1989 OSA, even if the disclosure never resulted in publication. A member of the media
found guilty of such an offence would be in the same position as the government official, and
would not have recourse to the statutory defence under Section 5 of the 1989 OSA. However,
in R v Shayler (2001) the Court of Appeal suggested that:

It would have to be an extreme case on the facts for a prosecution for incitement
to be justified having regard to the structure of the [1989 Act] which attaches such
importance to the status of the individual charged.
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