Shayler, R v.

Factual and Procedural Background

The Appellant is a former member of the Security Service who, between 1991 and 1996, had access to highly-classified material. Prior to joining, and again on leaving, the Appellant signed declarations under the Official Secrets Act 1989 (“OSA 1989”) and contractual confidentiality undertakings. Before August 1997 the Appellant supplied journalists with approximately twenty-nine classified documents, many bearing classifications up to “Top Secret,” and authored or contributed to articles published by a national newspaper on 24 August 1997. Shortly before publication the Appellant left the jurisdiction; an extradition attempt from France failed, but the Appellant returned voluntarily on 21 August 2000 and was arrested at Dover.

An indictment containing three counts was preferred: two under section 1(1) OSA 1989 (unauthorised disclosure relating to security or intelligence) and one under section 4(1) & (3)(a) OSA 1989 (unauthorised disclosure of material obtained by interception). The Appellant pleaded not guilty.

Judge [Bingham] (sitting at first instance) ordered a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996. At that hearing Judge [Moses] ruled that:

• no “public interest” defence was available under sections 1 or 4 of the OSA 1989; and
• those provisions were compatible with Article 10 of the European Convention on Human Rights (“ECHR”).

The Court of Appeal (Criminal Division) upheld those rulings. The present appeal was brought to the House of Lords, which also received written and oral submissions from media organisations and from the Home Secretary.

Legal Issues Presented

1. Whether sections 1(1) and 4(1)/(3)(a) of the OSA 1989 can be construed so as to admit a common-law or statutory “public interest” defence.
2. If no such defence exists, whether those provisions are nevertheless compatible with Article 10 ECHR (freedom of expression).
3. Whether the rulings made at the preparatory hearing fell within the scope of sections 29–31 of the Criminal Procedure and Investigations Act 1996.

Arguments of the Parties

Appellant's Arguments

• The statutory wording should be read, pursuant to section 3 of the Human Rights Act 1998, as allowing disclosure in the public or national interest, or at least as requiring the Crown to disprove public-interest justification.
• Absent such an interpretation, the blanket prohibition on disclosure is disproportionate and not “necessary in a democratic society” under Article 10 (2) ECHR; judicial-review remedies are too weak because applicants cannot reveal the very material needed to found their challenge.
• Internal and ministerial channels for raising concerns are ineffective in practice; therefore an external disclosure to the press was the only viable route to secure accountability.

Respondent's Arguments

• The statutory language is unequivocal: members and former members of the security and intelligence services who disclose without authorisation commit an offence, subject only to the defences expressly provided.
• Parliament deliberately rejected a public-interest defence during enactment; the court should not re-introduce one by construction.
• The statutory scheme is proportionate: (i) internal disclosure routes under section 7(3)(a); (ii) the possibility of official authorisation under section 7(3)(b); (iii) judicial review of any refusal; and (iv) the Attorney General’s consent to prosecution operate as sufficient safeguards.
• Requiring the prosecution to prove “damage,” or opening a public-interest defence at trial, would itself risk further sensitive disclosures and undermine national security.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Statutory construction. Giving the ordinary meaning to sections 1(1) and 4(1)/(3)(a) OSA 1989, the House held that Parliament intended to impose criminal liability for any unauthorised disclosure by members or former members of the security and intelligence services, subject only to the limited knowledge-based defences expressly set out. The 1988 White Paper, parliamentary debates and the deliberate rejection of a public-interest defence were legitimate aids confirming that intention.

2. Compatibility with Article 10. The provisions clearly interfered with the Appellant’s prima-facie right to freedom of expression, but the interference was “prescribed by law” because the obligation of secrecy and the procedures for authorisation were accessible and foreseeable. The central question was proportionality.

3. Pressing social need. The House accepted extensive domestic and Strasbourg authority that an effective intelligence service must remain secure; any disclosure by an insider risks (a) alerting hostile actors; (b) compromising agents; (c) undermining mutual confidence with foreign services; and (d) deterring future sources.

4. Safeguards rendering the scheme proportionate. The OSA 1989 does not impose an absolute ban. Two cumulative safeguards exist: (i) disclosure to specified Crown servants for the purposes of their functions (s 7(3)(a)); and (ii) the possibility of seeking “official authorisation” for wider disclosure (s 7(3)(b)). A refusal of authorisation is amenable to rigorous, Convention-compliant judicial review, including the possible use of closed material and special counsel. Further, no prosecution can be brought without the Attorney General’s consent, who must consider the public interest.

5. Alternative remedies argued inadequate. The Appellant’s contention that judicial review is ineffective was rejected. Modern proportionality-based review, as recognised in R (Daly), furnishes an “intense” scrutiny capable of protecting Article 10 rights.

6. Necessity & duress of circumstances. Both lower courts had discussed these common-law defences; the House found them irrelevant because the factual allegations were far removed from any recognised necessity or duress.

7. Preparatory-hearing jurisdiction. Given the legal complexity and potential trial length, Judge [Moses] had acted within the Criminal Procedure and Investigations Act 1996 when ruling on these legal issues prior to jury empanelment.

Holding and Implications

APPEAL DISMISSED.

The House affirmed that (1) no public-interest defence is available under sections 1 or 4 of the OSA 1989; (2) those sections are compatible with Article 10 ECHR; and (3) the preparatory-hearing rulings were properly made. The immediate consequence is that the Appellant must stand trial on the indictment without any public-interest defence. More broadly, the decision confirms that members and former members of the United Kingdom’s intelligence community remain subject to a strict secrecy regime, and that challenges to refusal of disclosure must proceed through the internal pathways and judicial-review framework endorsed by the court; the judgment does not create new precedent for the media but clarifies existing limits on insider disclosures.