R v Shayler Court of Appeal, Criminal Division (2001) The Times, 10 October

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Blowing the whistle, 'I felt I had to do it!'

R v Shayler

Court of Appeal, Criminal Division (2001) The Times, 10 October

Defence of necessity; Official Secrets Act 1989; breach of right to freedom of expression; European Convention on Human Rights, Art. 10; national security; disclosure of information; Interception of Communications Act 1985

The statute

Official Secrets Act 1989, s. 1:

(1) A person who is or has been

(a) a member of the security and intelligence services; or

(b) a person notified that he is subject to the provisions of this subsection,

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

(2) The reference in subsection (1) above to disclosing information relating to security or intelligence includes a

reference to making any statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.

(3) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above.

(4) For the purposes of subsection (3) above a disclosure is damaging if

(a) it causes damage to the work of, or of any part of, the security and intelligence services; or

(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.

(5) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.

The facts

Shayler was a member of the Security Service, MI5, from November 1991 to October 1996. He signed an Official Secrets Act declaration acknowledging the confidential nature of documents and other information relating to security or intelligence, defence or international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose without authority any information that came into his possession by virtue of his employment.

On leaving the service he signed a further Official Secrets Act declaration acknowledging that the provisions of the 1989 Act continued to apply to him notwithstanding the termination of

his appointment, and that the same requirements of confidentiality continued to apply to any information which might have come into his possession as a result of his previous employment. By about August 1997 Shayler was in contact with journalists from the Mail on Sunday. It appeared that he handed over to the newspaper a collection of documents that had been removed from the service. On 24 August 1997, the Mail on Sunday published an article written by Shayler himself, according to the by-line, and a number of other articles by journalists purporting to be based upon information given by him.

The prosecution contended that the information contained, and referred to, in such articles related to matters of security and intelligence about which Shayler could have had access only by reason of his employment with the service. On the day before the articles were published, Shayler left the country. On 21 August 2000 he voluntarily returned and was arrested and charged under the Secrets Act 1989.

In the course of a preparatory hearing under s. 29 of the Criminal Procedure and Investigations Act 1996, Mr Justice Moses ruled that all that the prosecution was required to prove to obtain a conviction was that Shayler had been a member of the Security and Intelligence Services; that he disclosed documents relating to security or intelligence which were in his possession by virtue of his position as a member of those services (count 1), or information obtained by reason of warrants issued under s. 2 of the 1989 Act (count 2), or information relating to security or intelligence which was in his possession by virtue of his position as a member of those services (count 3); and that he made such disclosure without lawful authority. If that ruling stood it appeared probable there would be no disputes of facts that a jury would have to resolve before finding Shayler guilty.

Official Secrets Act

Central to the issues on the appeal were the terms of the 1989 Act. The point which Mr Justice Moses made, with justification, was that in considering the merits of the sections under which Shayler was charged, there must be taken into account the avenues of redress that the Act provided, and the fact that the courts were in a position to supervise those whose responsibility it was to police the statutory scheme.

The value of the safeguards could differ depending on the circumstances but that there were safeguards could not be disputed.

Defence of duress and necessity

In the great majority of statutory criminal offences the common-law defence of necessity and duress was available. Those concepts had in recent years been extended by the courts to cover what was usually described as duress or necessity of circumstances. Mr Justice Moses had decided that duress and necessity were defences in their original form which could be raised by a defendant. However, the extended defences were not available to a defendant as a defence to charges under ss 1(1) and 4(1) of the 1989 Act.

Limits to defence of duress and necessity

Any attempt at a definition of the precise limits of the defence was fraught with difficulty because its development had been closely related to the particular facts of the different cases before the courts. Nevertheless, attempts at a broad definition had been made and their Lordships extracted the following ingredients as being required if the defence of necessity was to be relied on:

1. The act must be done only to prevent an act of greater evil.

2. The evil must be directed towards the defendant, or a person or persons for whom he had responsibility, or, their Lordships would add, persons for whom the situation made him responsible.

3. The act must be reasonable and proportionate to the evil avoided.

It had been argued that there were differences between duress of circumstances and necessity. Nonetheless the distinction had, correctly, been by and large ignored or blurred by the courts. Shayler argued that his revelations were necessary to prevent death or serious injury to others. As a member of the government secret services, he owed a responsibility to the general public at large. His acts were necessary to protect a yet-to-be-identified group from among the public for whose protection MI5 had responsibilities who would inevitably suffer because of MI5's incompetence.

In their Lordships' judgment, the defence should be regarded as being available when a defendant committed an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody for whom he reasonably regarded himself as being responsible. That person might not be ascertained and might not be identifiable. However, if it was not possible to name the individuals beforehand, it had

at least to be possible to describe the individuals by reference to the action which was threatened would be taken which would make them victims absent avoiding action being taken by the defendant.

The defendant had responsibility for them because he was placed in a position where he was required to make a choice whether to take or not to take the action which it was said would avoid their being injured. Thus if the threat was to explode a bomb in a building if the defendant did not accede to what was demanded, the defendant owed responsibility to those who would be in the building if the bomb exploded.

The next requirement was proportionality. The act done should be no more than was reasonably necessary to avoid the harm feared and the harm resulting from the act should not be disproportionate to the harm avoided.

Shayler's defence

The difference between Shayler's case and any other case where that defence had been regarded as being available was that Shayler was not in a position to identify any incident which was going to create a danger to the members of the public that his actions were designed to avoid. Instead he was blowing the whistle on the past conduct of individual members of MI5 and of MI5 as a whole. He was, in effect, seeking to have MI5 reformed so that it could play its role of protecting the public properly.

He contended he intervened because unless he did so MI5 would continue to operate as he alleged it had in the past and that inevitably would create a danger to the public. Shayler's justification for his disclosure could be the basis for a general public interest defence if such a defence was available but it provided no foundation for invoking the extended defence of duress or necessity. The characteristics of the extended defence might, despite the efforts of the courts to inject greater precision, still be imprecise, but it was inherent in the defence that it had ingredients that Shayler was not in a position to establish. He could not identify the action by some external agency that was going to create the imminent, if not immediate, threats to the life and limb of members of the general public as a result of the security service's alleged abuses and blunders. That was a fundamental ingredient of the defence. Without it, it was impossible to test whether there was sufficient urgency to justify the otherwise unlawful intervention. It was also impossible to apply the proportionality test.

Furthermore, if it was possible to identify the members of the public at risk that would only be by hindsight. That created difficulty over the requirement of responsibility. Shayler's justification for what he did lacked the required degree of precision. There was no close nexus between his disclosure and the possible injury to members of the public. Putting it simply, there was no necessity or duress as those words were ordinarily understood.

To an extent the issue was a matter of degree. At one end of the spectrum was the example of a spy who was kidnapped and told his wife or child would be murdered if he did not disclose top-secret information. At the other end of the spectrum was the disillusioned agent who claimed that someone, somewhere, might one day suffer if he did not make such disclosures and that he had responsibility for all such persons, namely the general public as a whole. The first was a situation where almost certainly a defendant would be able to rely on the defence of necessity. The second position was one where a defendant could not possibly rely on the defence. Shayler fell squarely within the second position.

Application of doctrine of necessity to Official Secrets Act

Their Lordships saw no justification for making a distinction between the unextended and extended defence, nor any need to extend the list of offences to which it did not apply. On their Lordships' approach, there had to be an incident which gave rise to both forms of defence and their Lordships saw no insuperable difficulty to the prosecution disproving the defence if it was raised in extended form by a defendant. Parliament had not given any clear indication that the extended defence was excluded and their Lordships did not consider they should infer it was excluded.

If a defendant might have been acting because of duress or necessity of circumstances, within the parameters the courts had placed on the defence, it would be unjust if he were to be convicted. However, as a matter of practice whether the defence in its extended form was or was not excluded was of no significance since their Lordships could not envisage circumstances in which it would apply.

Freedom of expression

Even prior to the Human Rights Act 1998 coming into force, freedom of expression was a common-law value that was given special protection in this jurisdiction. However, it had always

been accepted that members of the security services were in a special situation and article 10.2 of the European Convention on Human Rights recognised the need to treat national security is sues differently.

Counsel for the Crown had drawn attention to the features of ss 1 and 4 of the 1989 Act which meant that unless their language was qualified by the courts the sections had a particularly Draconian effect. They did not bite on the content of the disclosure but the status of the person making the disclosure. They made no provision for a public interest defence other than that based on duress or necessity. There was no question of the courts having to assess the issue of proportionality.

Their Lordships accepted that those were telling points which required careful consideration. In relation to other crown servants the 1989 Act did not adopt quite the same stifling approach. Shayler was entitled to the protection of freedom of expression provided by article 10. The question was whether the prosecution could justify the blanket ban provided by ss 1 and 4, applying the well-developed jurisprudence as to freedom of expression. It was here that the structure of the 1989 Act and other legislation was so important. It made the blanket ban subject to the protection for the defendant provided by his ability to obtain authorisation for disclosure and to make his voice heard not only by his superiors but by those of undoubted integrity and independence. It was not difficult to understand the reason Parliament adopted the approach that it did. The object of ss 1 and 4 was to deter members of the security forces from disclosing secrets that could be damaging to national security.

The ability to prosecute after disclosure had occurred was to lock the stable door after the horse had bolted. The prosecution, even if successful, would not undo the damage. Instead it could give rein to even greater damage. The culture the 1989 Act was designed to support was one where members and former members did not disclose except with prior authority or to persons authorised to receive disclosure. That avoided the grave disadvantage of an individual member having to make a decision, perhaps on partial information, based on his understanding of where the public interest lay. To an extent the issue was one of proportionality. When determining whether a limitation was arbitrary or excessive, the court had to ask itself whether the means used to impair a right or freedom were no more than was necessary to accomplish an important and legitimate objective.

Their Lordships had already stressed the scale of the interference with freedom of expression which ss 1 and 4 involved.

On the other side of the equation had to be placed the fact that what the 1989 Act was designed to protect was national security. Balancing the public interest in that field was notoriously difficult and not ideally suited to a trial by jury. It could be a task which just could not be performed by a jury trial. It could result in a trial being impossible because it would involve the disclosure of further secret information. The blanket restraint was confined to a relatively small class: the members and former members of the security services who needed to be able to communicate to their colleagues, confident that the information would not be disclosed. Members and former members of the security services would inevitably have information for which the press would be prepared to pay handsomely. The commercial realities meant it would be preferable that the decision whether to disclose or not to disclose should be in more objective hands.

Of course, there would be a danger that the protection the 1989 Act provided would prove ineffective. However, that danger was reduced by the availability of judicial review and the ability of the Attorney-General to refuse permission to prosecute. Finally, there was the fact that ss 1 and 4 were the attempt of the democratically elected legislature to square the circle. In an area as sensitive as that, it was appropriate to show a degree of deference to the legislators' decision.

Their Lordships did not consider that the solution, which did not involve the individual assessment by a court but by others of the appropriateness of disclosure or the need for action, was necessarily inconsistent with article 10. So far as the members or past members were concerned the restriction on freedom of expression was justified.

THE DECISION

A member or former member of the Security Service charged with disclosing documents or information without lawful authority could rely on the defence of duress or necessity of circumstances only where the disclosure was made in order to avoid an imminent peril of danger to life or serious injury to himself or somebody for whom he reasonably regarded himself as being responsible. That defence was not available to an agent who claimed that someone, somewhere, might one day suffer if he did not make disclosures and that he had responsibility for any such person. The restriction on the freedom of expression of members or past members of the Security Service was justified in view of the importance of the protection of national security and the safeguards which existed to enable them to ventilate their concerns without imperilling national security.

The Court of Appeal, Criminal Division, so held, dismissing an appeal by Shayler, a former member of the Security Service, against rulings made by Mr Justice Moses on 16 May 2001 at a preparatory hearing under s. 29 of the Criminal Procedure and Investigations Act 1996 prior to the commencement of his trial on two counts of disclosing documents relating to security or intelligence without lawful authority, contrary to s. 1(1) of the Official Secrets Act 1989, and one count of disclosing information obtained under warrants issued under the Interception of Communications Act 1985, contrary to s. 4(1) of the 1989 Act.

Comment

Does motive matter?

In 1972, David Bingham, a lieutenant in the Royal Navy, was convicted, inter alia, of communicating to a foreign power, for a purpose prejudicial to the safety or interests of the state, information that was calculated to be or might be or was intended to be directly or indirectly useful to an enemy, contrary to s. 1 of the Official Secrets Act 1911.

If any person for any purpose prejudicial to the safety or interests of the State . . . (c). . 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; he shall be guilty of [an offence].

(His wife was also charged under s. 7 of the Official Secrets Act 1920, which was described as doing an act preparatory to the commission of an offence under the Official Secrets Act 1911.)

Any person who attempts to commit any offence under the principal Act or this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence under the principal Act or this Act, shall be guilty of [an offence].

This David and I joined the Royal Navy about the same time, after training. As the years went by, we both had access to important information: he was in the Anti-submarine Branch and I was in Radar. He gave away secrets to the Russians, I didn't. The nearest I came to Russians was seeing them around Portsmouth in 1956 when two of their ships visited the port. They seemed more interested in purchasing lingerie for their wives from C&A.

What the two Davids have in common is that they both seem to have thought their actions necessary: this is where we have to be careful about words, because the defence raised by the latest David is 'necessity of circumstances'. 'Necessary' and 'necessity' are not the same.

In Liversidge v Anderson (1942) AC 206, the words in question were, 'If the Secretary of State has reasonable cause to believe'. The majority of the House of Lords thought the words were ambiguous since they might mean that the Secretary of State has reasonable cause to believe, OR that he thinks that he has reasonable cause to believe. Lord Atkin knew of only one authority that might justify the suggested method of construction:

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less.' `The question is,' said Alice, 'whether you can make words mean different things.' `The question is,' said Humpty Dumpty, 'which is the master, that's all?' (Through the Looking Glass, Chapter VI).

Necessity

For some time it has been unclear whether a general defence of necessity existed in English law. Recently courts have started to recognise a defence of duress of circumstances that would achieve many of the same results.

Necessity differs from duress in that it is generally conceived of not as a concession to human frailty, i.e. as an excuse, but rather as a justified choice between two evils: the evil represented by committing the offence is outweighed by the greater evil that would ensue if the offence were not to be committed.

They ate the cabin boy

The leading case of Dudley (1884) 14 QBD 273, [1881-5] All ER Rep 61 is a good example. The two accused were adrift in a small boat on the high seas with another man and the young

Cabin boy. They had had virtually no food or water for 20 days and had been reduced to drinking their own urine. Finally they killed and ate the cabin boy, who was likely anyway to have been the first to die. probably they themselves would not have survived the further four days that elapsed before they were rescued. In rejecting any defence of necessity the jury had found that there was no greater necessity for killing the boy than any of the others.

Thereafter, English courts have generally rejected a defence of necessity even where the balance of evils points much more clearly in favour of committing the offence.

Fire appliances and red lights

Buckoke and others v Greater London Council [1971] 2 All ER 254

By statute, failure to obey traffic lights was an absolute offence and drivers of fire engines were under the same obligation at law as the drivers of other vehicles to obey the traffic lights. In practice the police did not prosecute fire-engine drivers for crossing against the red lights except where there had been an accident involving carelessness.

The chief officer of the London Fire Brigade with the support of the defendants, the Greater London Council, issued brigade order 144/8 which pointed out that brigade drivers were obliged at law to obey traffic lights but stated, in effect, that a brigade driver responding to an emergency call could proceed against the red light provided he took certain specified precautions. The order stated that the onus of avoiding an accident was on the driver. Drivers who passed a red traffic light without taking the precautions laid down in the order were disciplined. Conformity with the order reduced the risk of drivers' committing traffic offences.

The Fire Brigades Union, which objected to the order on the ground that it encouraged drivers to break the law, told some 20 firemen (the plaintiffs) in the London Fire Brigade to refuse to travel as crewmen with brigade drivers unless the drivers gave an assurance that they would never cross the red lights. The drivers refused to give that assurance, and the plaintiffs refused to obey orders to travel with the drivers. Disciplinary proceedings were taken against the plaintiffs under the Fire Services (Discipline) Regulations 1948 for disobeying, or without sufficient cause failing to carry out, a lawful order. The plaintiffs brought an action against the defendants claiming both a declaration that order 144/8 was unlawful and injunctions requiring the defendants to countermand the order and restraining them from continuing with the disciplinary proceedings.

Held

(i)The plaintiffs were not entitled to the declaration or to an injunction countermanding order 144/8 because

(a) order 144/8 was a lawful order: it was a justifiable administrative step taken in the public interest for the chief officer to instruct his men that no disciplinary action would be taken against them for crossing the red lights on an emergency call so long as they took the necessary precautions, and the court should back it by judicial decision; the order did not confer on drivers a discretion to break the law but limited that discretion which they individually exercised, and if the order were withdrawn, the likelihood of drivers disregarding traffic signals in circumstances involving risk of accident would increase.

(b) (per Sachs 1_,J) the plaintiffs had no material interest in the legality of order 144/8 such as would entitle them to claim the declaration they sought.

(ii) An injunction restraining the disciplinary proceedings would not be granted because

(a) as order 144/8 was lawful, the orders given to the plaintiffs to travel with drivers observing order 144/8 were lawful orders and the plaintiffs had no sufficient cause for failing to carry them out for they would not be submitting to danger by travelling with a driver who observed order 144/8.

(b) although the courts had power to interfere if a disciplinary tribunal did not act fairly, there was no reason to suppose that the firemen's disciplinary tribunal would not do what was just and, normally, the courts would not intervene before service disciplinary proceedings were heard and where there existed, as under the 1948 regulations, a code of procedure providing for a carefully regulated hearing;

(c) (per Sachs LJ) as the plaintiffs had no material interest in order 144/8, they could not make its existence a ground for claiming an injunction to restrain the disciplinary proceedings.

(Decision of Plowman J [1970] 2 All ER 193 affirmed.)

Lord Denning accepted as correct the proposition that a driver would have no defence if he proceeded through a red light to save a man in imminent peril in a blaze 200 yards away (regulations passed since would now permit this). He said, `nevertheless such a man should not be prosecuted, he should be congratulated'.

Duress of circumstances: road traffic cases

The early authorities on the defence of duress of circumstances were a series of cases dealing with road traffic offences, but in Pommel! [1995] 2 Cr App R 607, CA; (1995) The Times, 22 May the Court of Appeal confirmed that the defence applies to all crimes except murder, attempted murder and some forms of treason. Pommel]. was found lying in bed with a loaded gun in his right hand.

The first case was Willer (1986) 83 Cr App R 225, CA; (1986) The Times, 10 March (reckless driving), where the accused drove his car on to the pavement and into (and back out of) a shopping precinct to escape from a gang of youths bent on attacking himself and his passengers. They were shouting, 'I'll kill you.' The trial Judge ruled that no defence of necessity was available. The Court of Appeal thought that 'a very different defence', that of duress, should have been available. According to Watkins LJ the question then would be:

whether or not upon the outward or the return journey, or both, the appellant was wholly driven by force of circumstance into doing what he did and did not drive the car otherwise than under that form of compulsion.

Willer was followed and applied in Conway [1989] QB 290, another reckless driving case, in which the Court of Appeal quashed the conviction, saying 'it is still not clear whether there is a general defence of necessity' and 'necessity can only be a defence to a charge of reckless driving where the facts establish "duress of circumstances"'.

Unmarked police car driver going through a red light

See Director of Public Prosecutions v Harris 158 JPN 896; (1994) The Times, 16 March for discussion of whether 'necessity of circumstances' can be a defence to a charge of driving without due care and attention for a police driver going through a red light. He was on a covert operation following armed robbers. It was held that there was no scope for the doctrine of the defence of necessity of circumstances in the situation as here. Such defence as necessity as existed was set out in regulation 33 of the Traffic Signs Regulations and General Directions 1994.

Driving while disqualified

In Martin (1989) 88 Cr App R 343, duress of circumstances was recognised as a potential defence to driving while disqualified. The defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

[F]irst, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?

The crucial question is not so much whether the accused was justified as whether he can be excused on the grounds that a reasonable person would have felt impelled to act in the same way.

Driving with excess alcohol

Duress of circumstances has also been allowed by the Divisional Court on a charge of driving with excess alcohol in DPP v Bell [1992] RTR 335, where the accused, because of his terror of his pursuers, ran back to his car and drove off some distance down the road. The fact he did not continue to drive all the way home supported the finding that he was driving because of his fear and not because of any prior intention to use his car to get home even if intoxicated. This contrasted with the earlier case of DPP v Jones [1990] RTR 33 where a similar defence failed because the accused drove the two miles home without even bothering to check whether he was still being pursued. DPP v Davis DPP v Pittaway [1994] Crim LR 600 is to similar effect. Now driving without due care and attention can be added to the list of offences for which this defence is available

Rob Jerrard

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