Page 269 - Law and the Media

Law and the Media
In R v Shayler (2001) the Court of Appeal also confirmed that the usual defence of
‘necessity’ applies to the 1989 OSA. It will not be a criminal offence if a disclosure is
necessary to prevent:

. . . the imminent (if not immediate) threats to the life and limb of members of the
general public as a result of the security services’ alleged abuses and blunders.

However, there must be a close nexus between the disclosure and possible injury to members
of the public.

The maximum penalty under the 1989 OSA is two years’ imprisonment. A number of civil
servants, police officers and military personnel have been convicted and have received
sentences of up to one year in prison. No journalist or member of the media has ever been
convicted under the 1989 OSA.

Tony Geraghty, the author of The Irish War, was prosecuted under the 1989 OSA, but before
the case proceeded to trial the Attorney General discontinued the prosecution. No reasons
were given. The evidence against Geraghty was as strong (or as weak) as the evidence
against Nigel Wylde, a computer consultant employed by the Ministry of Defence, who was
prosecuted for supplying him with information. It has to be assumed that the prosecution was
discontinued because the Attorney General did not want to be seen to continue a prosecution
against an author in the face of increasing criticism from others in the media. The prosecution
of Nigel Wylde was subsequently discontinued just before his trial when Duncan Campbell,
the ‘C’ in the ‘ABC’ case, gave expert evidence on behalf of the defence team that all the
information was already in the public domain.

15.3.3 Impact of the Human Rights Act 1998

The Human Rights Act 1998 may change the way the 1989 OSA is interpreted. The Human
Rights Act 1998 incorporates the Article 10 European Convention on Human Rights right to
freedom of expression into English law. Any interference with the Article 10 freedom of
expression can only be justified if the interference is regulated by law, is a ‘proportionate’
response, and is for the purpose of:

. . . national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.
(Article 10(2))

As a result, the 1989 OSA cannot create a criminal offence that restricts freedom of
expression unless it is a proportionate response to any damage caused or any threat to
national security. When considering whether an offence has been committed, the court must
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