Page 271 - Law and the Media

Law and the Media
disclosure falls into. For example, in the case of a member of the security services, all the
prosecution would need to prove is the disclosure itself. In the case of a crown servant or
government contractor, the prosecution needs to prove that the disclosure was, or was likely
to be, damaging. In the case of a person in the third category, the prosecution must establish
that he was aware of the protected nature of the information disclosed, knew that it came
from a ‘classified’ source, and envisaged that the disclosure was or would be damaging. This
requires the greatest amount of evidence.

It can be seen that the first four Sections of the 1989 OSA cover only Crown or government
employees and contractors. Section 5 has direct application to journalists or anybody else
who, having received the sort of information or material described in Sections 1 to 4, goes
on to make unlawful and damaging disclosure of it.

In the future, each of these provisions must be interpreted in accordance with the provisions
of the Human Rights Act 1998.

Section 1: Security and intelligence matters
Section 1 applies to ‘any information, document or other article relating to security or
intelligence’ which is disclosed without lawful authority by any person who is or has
been:

A member of the security or intelligence services, or a person who has been
notified by a Minister of the Crown that he is subject to Section 1 as if he were a
member of those services
A Crown servant or government contractor.

An unauthorized disclosure by a person within the first category is automatically an offence.
The only available defence (with the exception of ‘necessity’, see part 15.3.2 above) is to
establish that the accused ‘did not know and had no reasonable cause to believe’ that the
material disclosed related to security or intelligence. This defence will be available only
infrequently.

Those within the second category will commit an offence if the unauthorized disclosure is
‘damaging’ within the meaning of the 1989 OSA, in other words if a person causes or is
likely to cause damage to the work of, or any part of, the security and intelligence services.
As with the first category, it is a defence for the accused to prove that he did not know or
have reasonable cause to believe that the information related to security or intelligence. It is
also a defence for the accused to show that he neither knew nor had reasonable cause to know
that the disclosure would be damaging.

Section 2: Defence
This section only applies to Crown servants and government contractors, both past and
present. As with security and intelligence, unauthorized disclosure of any information,
document or other article ‘relating to defence’ is a criminal offence if it is damaging.
234