CRIMINAL

Disclosing documents without lawful authority - blanket ban on unauthorised disclosure justified - defence of necessity of circumstances availableR v Shayler: CA (Lord Chief Justice Woolf, Mr Justice Wright and Mr Justice Leveson): 28 September 2001The defendant, a former member of the security service, was charged with disclosing documents or information without lawful authority, contrary to sections 1 and 4 of the Official Secrets Act 1989.Prior to the start of the trial, Mr Justice Moses ruled that he could not rely on the defence of duress or necessity of circumstances since that defence was by implication excluded by the 1989 Act.

The judge also ruled that the blanket ban on disclosure contained in sections 1 and 4 did not contravene the right to freedom of expression in article 10 of the Convention for the Protection of Human Rights, as scheduled to the Human Rights Act 1998.

The defendant appealed.Edward Fitzgerald QC and Keir Starmer (instructed by Birnbergs Peirce & Partners) for the defendant.

Nigel Sweeney QC and Jason Coppel (instructed by Crown Prosecution Service, Ludgate Hill) for the Crown.

Michael Tugendhat QC (instructed by Alastair Brett) for the press.Held, dismissing the appeal, that the defence of duress or necessity of circumstances did apply to offences contrary to sections 1 and 4 of the 1989 Act and was available when a defendant committed an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or to individuals for whom he reasonably regarded himself as being responsible; that those individuals need not be ascertained or identifiable but had to be capable of description by reference to the threatened action which would make them victims, absent of avoiding action being taken by the defendant; that it was necessary to show that the defendant had responsibility for them because he was placed in a position where he was required to make a choice whether to take the action which it was said would avoid them being injured; that 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; that the defendant's justification for the disclosures he had made lacked the required degree of precision and, therefore, on his case as revealed so far, there was no possibility of him being entitled to rely on the defence of duress or necessity of circumstances; and that the blanket ban on disclosure without lawful authority provided by sections 1 and 4 was a justified interference with the right of members or former members of the security service to freedom of expression having regard to the importance of the protection of national security, the safeguards which existed to enable them to ventilate their concerns without endangering national security, the availability of judicial review to supervise those whose responsibility it was to police the statutory scheme and the power of the Attorney-General to refuse permission to prosecute.

(WLR)