Law Reform: Bar Council and Criminal Bar Association jointly respond to the Law Commission Protection of Official Data plans

4 May 2017

In February 2017, the Law Commission issued a consultation paper advocating reform of the various offences under the Official Secrets Acts of 1920 and 1989. It generated considerable publicity as all sections of the media volubly opposed both the suggestion of remodelled offences which did not incorporate the defence of making a disclosure of information which is in the public interest and the mooted increase in the maximum sentences. 

The Bar Council's Law Reform Committee (LRC) regularly responds to consultations issued by the Law Commission and government departments, where appropriate in collaboration with specialist bar associations. On 2 May the LRC and the Criminal Bar Association (CBA) submitted a joint response

The consultation document was more thoughtful and wide-ranging than reported in the press. Its core proposals, that much of the terminology in the various pre-war Official Secrets Acts is archaic and should be replaced and that the scheme of the 1989 Act is in need of reform, make good sense. Many of the detailed proposals are to be welcomed. 

However, the LRC and CBA do not agree with some of the key features of the proposed new legislation. 

Firstly, the Law Commission suggests that the remodelled offences should no longer require the prosecution to prove that the disclosure of the relevant state secrets (or 'data') should have resulted in actual or potential damage to the national interest. The rationale is that the imposition of such a burden requires the prosecution effectively to reveal the very secrets which the defendant is charged with unlawfully disclosing. We take the view that the gravamen of the offencesisthe damage to the state and that without at least the potential for damage there should be no basis for a prosecution. 

Categories of damage to the national interest could be prescribed in the legislation and there need be no requirement to prove specific harm resulting from the disclosure at issue (eg. that a particular covert operation had been compromised). It is also preferable for the jury to determine by its verdict what will constitute the principal aggravating feature of the offending, rather than a judge alone at the sentencing hearing.  

In the alternative, in the absence of a requirement to prove objective damage, we agree that the prosecution should have to establishmens reain respect of the resultant damage or potential damage from the disclosure. There are though problems with the proposed formulation of 'knowledge' and 'reasonable grounds to believe', not least that a jury may well have to grapple with the concept of the defendant's knowledge of damage or a risk of damage which did not in fact exist (and a route to verdict which would excite first year philosophy students). We suggest that instead 'intention' and recklessness' should be adopted, in line for example with the result elements of the offences of criminal damage and arson. 

Secondly, there is the issue of what reporting structure should be in place in order for a member of the intelligence services (or similar) to reveal abhorrent official conduct on the part of the state, short of making unauthorised disclosures through the media with the risk of prosecution. Such a regime should be Article 10 ECHR compliant - which is particularly important if there is to be no public interest defence - and be sufficiently robust to gain the confidence of the public. We suggest an enhanced role for the Investigatory Powers Commissioner similar to the role of the judicial commissioners appointed under the Investigatory Powers Act 2016. There could be a fast track review procedure involving an adversarial hearing and, if necessary, the appointment of special counsel to deal with sensitive material. 

The contentious issue of whether there should be a public interest defence ultimately comes down to a question of policy. We take the view that some of the objections to the defence which will inform the policy decision have been overstated in the consultation document. For example, the suggestions that the defence is insufficiently clear to enable citizens lawfully to regulate their behaviour, that it will be impossible for a jury justly to evaluate the defence and that the defence may be confused with the public interest test in the Code for Crown Prosecutors which is applied in making the decision to bring a prosecution. 

No doubt the Law Commission will have received many responses to this consultation. The LRC and the CBA stand by ready constructively to engage with the Commission prior to the publication of its final report.

Robert O'Sullivan QC is a barrister at 5 Paper Buildings and a member of the Bar Council's Law Reform Committee