Page 273 - Law and the Media

Law and the Media
In relation to the general ‘of use to criminals’ category, criminal liability is incurred if the
unauthorized disclosure:

Results in the commission of an offence
Facilitates an escape from legal custody, or prejudices the safekeeping of persons
in legal custody
Impedes the prevention or detection of offences or the apprehension or prosecution
of suspected offenders
Is likely to have any of the above consequences.

A person charged with unlawful disclosure of such information will establish a valid defence if
he can prove that he neither knew nor had reasonable cause to believe that the disclosure would
have any such effect.

The second leg of Section 4 makes it an offence to disclose without lawful authority:

Any information obtained through a telephone-tap or other form of interception
authorized by a warrant issued under the Regulation of Investigatory Powers Act
2000
Any information obtained through actions that are authorized by a warrant issued
under Section 3 of the Security Service Act 1989
Any information, document or other article relating to the telephone-tap or other
form of interception under either of the two Acts above.

In order to protect both the effectiveness of the interception and the security of that which is
being intercepted, the OSA 1989 protects the practice – in other words the person who is being
‘bugged’ and how the person is being bugged – as well as the content.

Alongside security and intelligence matters, this class of information is given the highest level
of protection by the 1989 OSA. In order to secure a conviction, the prosecution need prove only
an unauthorized disclosure (but see ‘necessity’ at part 15.3.2 above). The only defence then
available to the accused is that he did not know and had no reasonable cause to believe that the
information disclosed fell within the protected category.

Section 5: Information resulting from unauthorized disclosure
The first four Sections of the 1989 OSA are aimed at those employed by or contracted to the
crown or the government. It is considered to be a fundamental principle of state and military
security that public servants entrusted with sensitive information honour the commitment to
confidentiality and/or secrecy that is a part of their contract of employment. Sections 1 to 4
serve, where appropriate, to add the sanction of the criminal law to that contractual
commitment.

However, where protected information has been passed on without authority and used to the
detriment of the state, the criminal sanction extends beyond the public servant who breached
security to the person who received the information. For such a person, a specific offence is
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