Saturday, 17 September 2011

Is the Official Secrets Act about to be used to gag journalism?

Update Tuesday 20th September -
It has been announced that the Met. Police has decided, for the time being, NOT to seek The Guardian's sources of information.  

See the Met. Police News ReleaseThis decision was taken after consultation with the CPS and other lawyers.  The application would have been under PACE 1984. 

See The Guardian's article - published late on the evening of 20th September - "Met Police drop action against The Guardian."

Update - Monday 19th September - This post also appeared as a Guest Post on the UK Human Rights Blog.   Please also see UK Human Rights blog - "Official Secrets and the powerful disinfectant" and Inforrm's Blog - "Opinion: Met's application against The Guardian: time to define the public interest."

see also Legal Week 19th September

The original post:

Nine years ago, in March 2002, Amanda "Milly" Dowler (aged 13) was on her way home from school.  She was kidnapped and murdered and her body was found in September 2002.  In June 2011, Levi Bellfield was convicted of her murder and sentenced to a "whole life" tariff.  When Milly went missing, journalists of the News of the World newspaper "hacked" into her voicemail.  The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.  The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this "extraordinary demand to the utmost" - see The Guardian 17th September - "Hacking: Met use Official Secrets Act to demand Guardian reveals sources."

Clearly, the media have, of necessity, to use "sources" of information and such information is usually given only on the basis that the journalist will not reveal the source.  If the authorities were able to readily demand that sources be revealed then it is likely that sources of information would dry up.  That could lead to the end of investigative journalism with the result that a great deal of iniquity would remain hidden from the public eye.  The European Court of Human Rights clearly recognised this in the case of Goodwin v United Kingdom (1996) 22 EHRR 123.   In para. 39 the Court stated:

"Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest."

Thus, in these cases, Article 10 (Freedom of Expression) is heavily engaged and
the Human Rights Act 1998 s.3 applies - "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

In looking at this, it will be necessary to consider the precise terms of Article 10:
  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 
 Clearly, there are a number of potential exceptions to freedom of expression including "the prevention of ... crime" or "information received in confidence."  However, it is also vital to note that any "formalities, conditions, restrictions or penalties" must be prescribed by law and must be necessary in a democratic society.  The revelation of iniquity - such as the hacking of a dead child's phone - is clearly vital in any democratic society.  It follows that, in all but very exceptional situations, the balance ought to lie in favour of the journalist who seeks to protect the source which has led that journalist to reveal the iniquity.

Turning to the phrase "prevention of crime", if particular material was actually protected by the Official Secrets Acts then it could be an offence to disclose that information - see Official Secrets Act 1989 section 4 and section 5.   Prosecutions usually require the consent of the Attorney-General - see OSA 1989 s.9  Constables (and others employed or appointed by Police Forces) are Crown Servants for the purposes of the OSA 1989 - see. s.12(1)(e)   One of the aims of the Act is to penalise disclosure (without lawful authority) of information held by Police Forces.

Suppose that a disclosure order is made and the journalists refuses to comply.  This could amount to a contempt of court but the journalist would be able to argue section 10 of the Contempt of Court Act 1981.

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

This is a serious development and is worrying for freedom of speech generally and, of course, for the journalists in question.  It sounds ill in the mouths of the Metropolitan Police to be bringing the case given their very dilatory investigations into phone hacking.  Since it is unclear how this case will actually be argued before the court, we must now await developments.

For further on this, please see the article in The Guardian by Geoffrey Robertson QC - "Threat to press freedom" - Friday 16th September.   Se also the Guardian's editorial of 16th September and the article "Journalists' right to act as eyes and ears of the public interest must not be put at risk."

Jack of Kent blog 16th September -  "Today's Met Statement"

Case law which may be of some relevance:

X v Morgan Grampian [1991] 1 AC 1 - interpretation of "interests of justice" in the Contempt of Court Act 1981 s.10

Secretary of State for defence v Guardian Newspapers [1984] 2 WLR 268 - "national security" in Contempt of Court Act 1981 s.10

Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 - "prevention of disorder or crime" - Contempt of Court Act 1981 s.10

R v Shayler [2002] UKHL 11 and also see UK Human Rights Blog for consideration of this important case

Interbrew SA v Financial Times [2002] EWCA Civ 274 - disclosure - public interest

Ashworth Hospital Authority v MGN [2002] UKHL 29 - whether public interest in disclosure outweights media interest in protection of sources


  1. R v Shayler (link in the post) is a formidable obstacle in the way of arguing Art 10 in UK courts. Reading of that case is crucial. Shayler was charged under OSA 1989 sections 1 and 4. The House of Lords, deciding an appeal on prelimnary issues raised before the trial judge (Moses J), held that the OSA 1989 was compatible with Article 10.

    The OSA 1989 does not contain any defence of acting in the public interest. This was deliberately not included by Parliament. There are certain statutory defences included in the various sections of the Act.

    It is worth noting that Scotland Yard's Operation Weeting was set up in January 2011 to investigate allegations of phone hacking. This is a wide-ranging investigation and it is alleged that the phones of many prominent people were hacked. It emerged in July 2011 that some 11,000 pages of notes had been kept by Glen Mulcaire who was imprisoned in 2007 for hacking. It is said that the notes reveal that Milly Dowler's phone was hacked.

    It will be interesting to see how this matter develops.

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  3. 'R v Shayler is a formidable obstacle in the way of arguing Art 10 in UK courts'

    Ay, there's the rub...

    Mr Shayler's exploits since he 'left' the security services makes an interesting study...