Application Official Secrets Act 1989

S.1(1) OSA: makes it an offence for any person ‘for any purpose prejudicial to the safety or interests of the state’ to:

•   Approach or enter a prohibited place; OR
•  Make a sketch or plan etc. calculated or intended to be, or which might be, useful to an enemy; OR
•  Obtain, publish or communicate to any other person any sketch, documents or info which is calculated to be, might be or is intended to be useful to an enemy
• S.1(2) OSA 1911: If a person is acting without permission it will be presumed they are doing it for purposes prejudicial to the safety or interests of the state

Structure for Essays:  Introduce the law, and name all sections.  Then select appropriate sections; then describe the section of least numerical value, and apply.

Crown Officers or Government Contractors

Generally disclosure of info must originate from Crown Officer or government contractor.

S.12 OSA 1989: Definition of Crown Officer/government contractor:

Includes:

• A person fulfilling a contract issued by the state e.g. a cleaner in a government facility
• Civil Servant
• M.P
• Police Officer
• Members of the Armed Forces

e.g. Security services, MI5, MI6 

First issue; who made the disclosure?

Members of Security and Intelligence Services and Those notified they are covered by S.1

A member of security and intelligence services= an actual spy; MI6/MI5 Agent

Such a person will be guilty of an offence under S.1(1) if, without lawful authority:

·         They have info in their possession of virtue of their position or in the course of their work; AND

·         Disclose info/documents/other articles relating to security and intelligence

There is no need for the info to be damaging

R v Shayler: Shayler argued right to defence of duress and necessity.

Defence of duress and necessity: allows disclosure of otherwise prohibited material where:

• Disclosure was made to prevent a greater evil; AND
• The evil must be directed towards the defendant or a person for whom defendant has responsibility.

Further defined by judge in Shayler case:

• The defence is only available where the defendant committed an otherwise criminal act to avoid imminent danger to himself or people defendant responsible for.
• The people the defendant’s responsible for don’t need to be known at the time of danger, but you should be able to list their names after.
• To be responsible for them, the defendant must be in a position where the decision to do or not do something affects whether the people died or were injured.

Proportionality; the disclosure of information must not lead to a greater evil than the evil the disclosure was made to prevent.

Defence is available for anyone for every section of OSA 1989

Person with this job commits offence under S.1(3) if, without lawful authority they:

• Have info relating to security and intelligence due to their position; AND
• Make a damaging disclosure

S.1(4)(a)+(b): the info will be damaging if:

• It causes damage to the work of the security and intelligence services; OR
• It is info or a document or other article that is likely to cause such damage

S.1(5): defence:

•  At time of offence, the defendant didn’t know/hadn't reasonable cause to believe that the info or article in question related to security/intelligence [can be used as defence for both S.1(1) and S.1(3)]; OR
•  The defendant didn’t know/didn’t have reasonable cause to believe that disclosure would be damaging [only available for S.1(3)]
• Defence of duress and necessity also available.

S.2(4): category of defence includes:

·   (a)   Information about the armed forces (RAF, Navy etc.)

·   (b)  Information about the weapons and equipment of the armed forces

·   (c)   Information about the policy and strategy of the armed forces

·         Information about action in time of war

S.2(1): It is an offence for a Crown Servant/government contractor to, without lawful authority:

·         Have info, documents, or other articles relating to defence which they have due to their position; AND

·         Make a damaging disclosure

S.2(2): Disclosure will be damaging if:

• It damages the capability of the armed forces to carry out their task, leads to loss of life or injury to members of those forces, leads to serious damage to the equipment or installation of those forces; OR
• It endangers the interests of the UK abroad, seriously obstructs the promotion/ protection of interests by the UK or endangers the safety of UK citizens abroad; OR
• It is likely to have any of these effects

S.2(3): There is a defence, if it can be proved:

•  At the time of the offence, the defendant didn’t know or had no reasonable cause to believe the information related to Defence
• The defendant didn’t know/hadn’t reasonable cause to believe it would be damaging.
• There is also the defence of duress and necessity.

s.3(1):Offence for Crown Servant/Govmnt contractor to:Make unlawful disclose of:

•  Any info, document or other article relating to international relations
• Any confidential info, document/article obtained from state other than UK/interntnl org
• Where that info has been gained due to their position. 
• S.3(2): A disclosure will be damaging if:
• It endangers the interests of the UK abroad
• It seriously obstructs promotion/protection of UK’s interests abroad by UK
• It endangers the safety of UK citizens
• It is likely to have any of these effects
• S.3(4): A defence exists where it can be proved: (defence of duress/necess too)
• Defendant didn’t know/hadn’t reasonable cause to believe info related to interntnl relations; OR Defendant didn’t know/hadn’t reasonable cause to believe damaging.

S.4(1): Defendant is guilty of an offence if: They disclose info that they have due to their position, which is covered by this section, without lawful authority

S.4(2):Info covered by S.4(1) as well as consequences of the disclosure

Disclosure which:

• Results in the commission of an offence; OR
• Facilitates escape from legal custody/the doing of any other act prejudicial to safekeeping of persons in legal custody; OR
• Impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; OR
• The unauthorised disclosure of the info is likely to have any of these effects

The impact of the disclosure is what determines if there is a criminal offence.  S.4 is mainly focused on info gained through phone tapping

S.4(4): Defence exists where it can be proved:

·         The defendant didn’t know or hadn’t reasonable cause to believe the disclosure would have any of the aforementioned effects

S.4(5): Defence exists where it can be proved:

·         The defendant didn’t know or hadn’t reasonable cause to believe that the info, document or article was such that it falls under this section.

There is also the defence of duress and necessity

Applies to disclosures made by people other than Crown servants/government contractors

S.5(1): Covers the type of information and how it came into the defendant’s possession

• Disclosed (to defendant or another) by a Crown Servant/government contractor without lawful authority
•  Entrusted to the defendant by a Crown Servant/Government contractor on the basis it should be kept confidential
• Disclosed (to the defendant or another) without lawful authority by a person who should have kept it confidential

S.5(2): It is an offence to:

Disclose without lawful authority information knowing or having reasonable cause to believe it is protected.

S.5(3): In order for an offence to be committed the following must occur:

·         The disclosure made is damaging (in exam, refer to the damage of the disclosures prior to this)

·         The disclosure is made when it is known or the defendant has reasonable cause to believe it would be damaging

Whether the info is damaging depends on the category the info belongs to: e.g. S.2 info requires the S.2(2) test to see if the disclosure is damaging

The defence of duress and necessity is available

If a person was given authorisation to disclose information then it is not a criminal offence.  If information is disclosed as part of a job or with permission from a person with authority to allow the disclosure then it is covered by this section; this is a defence.

To use this defence; it must be proved that the defendant had no reasonable cause to believe that they didn’t have lawful authority.

If a person is given permission to disclose information, but the person reasonable believes they shouldn’t disclose the information, and discloses the information and was right to believe they shouldn’t disclose the info, then the person cannot use the defence.

S.1(5): defence:

•  At the time of the offence, the defendant didn’t know and had no reasonable cause to believe that the info or article in question related to security or intelligence [can be used as a defence for both S.1(1) and S.1(3)]; OR
•  The defendant didn’t know and didn’t have reasonable cause to believe that the disclosure would be damaging [this only available for S.1(3)]
• Defence of duress and necessity also available.