FOR YOUR EYES ONLY ‘They that can give up essential liberties to obtain a little temporary safety deserve neither liberty nor safety’ Benjamin Franklin

SPIES AND JOURNALISTS ‘Diplomats and intelligence agents, in my experience, are even bigger liars than journalists, and the historians who try to reconstruct the past out of their records are, for the most part, dealing in fantasy.’ ‘Secrecy is as essential to Intelligence as vestments and incense to a Mass, or darkness to a spiritual séance, and must at all costs be maintained, quite irrespective of whether or not it serves any purpose.’

SOME OFFICIAL SECRETS LEGISLATION Official Secrets Acts 1911 &1989 Regulation of Investigatory Powers Act 2000 (RIPA) Security Service Act 1989 as amended in 1996 The Intelligence Services Act 1994

RIPA Wire tapping law regulates communications interception, use of informants & other surveillance. Since 2003 more organisations have been given power to engage in activities covered by Act - NOT newspapers! Role of Commissioners – tribunal – ‘3 blind mice’

SOME BACKGROUND Requirement for security workers to sign the OSA ‘Whistle blowing’ laws exclude security service workers Criticism of Acts – ‘chilling effect’, no public interest defence, no ‘necessity’ defence Unusual to prosecute journalists but is threatened – use of civil actions e.g. breach of confidence

HISTORY OF OS ACTS 1911 Act passed in one afternoon – perceived threat of war with Germany S.1 creates offence of ‘espionage’ S.2 very wide & related to disclosure of official information – very vague A lot of criticism of s.2 – ‘Clive Ponting’ case was spur for new legislation in1989

1911 ACT S.1 It is an offence if: Any person for any purpose prejudicial to the safety or interests of the state – a. approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act; or b. makes any sketch, plan model or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or c. section most likely to apply to journalists

1911 ACT s.1 c c. obtains, collects, records or publishes or communicates to any other person any secret official code word or pass word, or any sketch, plan, model, article or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy

1989 ACT Introduced to replace notorious s.2 1911 Act Deals with disclosure of information and divides material and individuals into different categories. The burden on the prosecution varies depending on the material & category of individual involved

6 types of information Security & intelligence matters Defence International relations Information useful to criminals Interception & phone tapping Information entrusted in confidence to other states or international organisations

Categories of individuals 1. Intelligence services – primary function to keep secrets 2. Crown servants and government contractors Those who have received protected information from someone in categories 1 & 2

BURDEN ON PROSECUTION The higher the category of person the less there is to prove e.g. If person in category 1 discloses information then prosecution only need show disclosure If person in category 3 then…..

Category 3 …prosecution MUST establish that he was aware of protected nature of the information, knew it came from a classified source and realised that the disclosure was or would be damaging. Covered by s.5 – applies to journalists!

HUMAN RIGHTS ASPECT Is there compatibility between OSA and HRA? Look at comments in Shayler trial especially from HL - acceptance that there needs to be compatibility but assertion that there is. Should there be a Public Interest defence? Calls for re-examination of law.

R v Keogh & O’Connor 2007 Not a media prosecution BUT there was fallout for the media - see McNae. Much of trial heard ‘in camera’. Restrictions on reporting and even ‘speculation’ about contents of memo at heart of the prosecution case. See comments by Fenwick & Tim Crook

DEREK PASQUILL CASE Charges under s.3 OSA 1989 Dropped after internal email appeared that had not been disclosed by Foreign Office Pasquill leaked more than 40 bundles of documents to Observer & New Statesman This case initiated open discussion about public interest and FO policy.

THE SNOWDEN LEAKS Consequences of the law for journalists/media organisations No prosecution of Guardian Hard drives at London office destroyed at insistence of security services Criticism of Guardian by DA committee

DEFENCE ADVISORY NOTICES Voluntary, informal method of controlling information Role of Defence Press & Broadcasting and Advisory committee Scrutiny of DA Notices See website for information on those in force See McNae online chapter for more detail.