Page 270 - Law and the Media

Official Secrets
weigh up the damage caused against the public interest in disclosure. It seems unlikely that
the offence under Section 1 of the 1989 OSA will satisfy this balancing test because of the
absence of the requirement of proof of damage.

However, in R v Shayler (2001) the Court of Appeal held that Section 1 and Section 4 of the
1989 OSA were compatible with Article 10. In that case, it was alleged that David Shayler,
who worked for MI5, had disclosed information about his previous work to the Mail on
Sunday. A series of stories was published by the newspaper in August 1997. Shayler left for
Europe and spent four months in prison in France, but the attempt to extradite him failed. He
returned to England voluntarily in August 2000, where he was arrested and prosecuted.
Although both he and the newspaper were subject to an injunction and a claim for damages,
the journalists were never arrested or prosecuted.

Although the court accepted that it was necessary to scrutinize the reason for imposing
criminal sanctions on the disclosure of information, it held that Shayler could not rely on the
public interest in disclosure. The court took the view that the alternative remedies available
to Shayler, including disclosing malpractice to the police, meant that disclosure to the press
was not necessary for the purposes of Article 10. At the time of writing, Shayler is awaiting
judgment from the House of Lords.

15.3.4 Protected categories of information

The six areas of information covered by the 1989 OSA are:

1. Security and intelligence matters
2. Defence
3. International relations
4. Information useful to criminals
5. Interception and phone-tapping
6. Information entrusted in confidence to other states or international organizations.

The 1989 OSA broadly applies to three categories of person who has disclosed information:

1. Those in the security and intelligence services whose primary function is to keep secrets
(MI5, MI6 and GCHQ)
2. Crown servants and government contractors who from time to time deal with sensitive
information
3. Those who have received protected information from someone who belongs to either of the
first two categories – in other words someone not connected to the government, for example
the media.

In order to establish criminality Sections 1 to 6 of the 1989 OSA lay down a complicated
sliding scale of culpability, which is contingent upon which of the three categories the
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