Official Secrets Act 1989
Encyclopedia
The Official Secrets Act 1989 (c. 6) is an Act
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 of the Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...

 of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

. It repeals and replaces section 2 of the Official Secrets Act 1911
Official Secrets Act 1911
The Official Secrets Act 1911 is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889....

. It is said to have removed the public interest defence created by that section.

Lord Bingham said that the white paper "Reform of Section 2 of the Official Secrets Act 1911" (Cm. 408) (June 1988) was the immediate precursor of this Act and that its recommendations bear directly on the interpretation of this Act.

It is not a defence under the Act that the disclosure is in the national or public interest.

Capacity

The offences under sections 1(3), 2(1), 3(1) and 4(1) can be committed only by persons who are or have been, and the offence under section 8(1) can be committed only by persons who are, crown servants or government contractors.

The offences under the Act, that can be committed only by persons who, as the case may be, are or have been crown servants, government contractors, or members of the security and intelligence services, can be committed only where the information, document or other article in question is or has been in the possession of the person in question by virtue of their position as such.

The offences under sections 5(2), 5(6), 6(2), 8(4), 8(5) and 8(6) can be committed by any person.

Requirement for "damage"

Sections 1(3), 2(1), 3(1), 5(3)(a) and 6(2) provide that the disclosures to which they apply are not an offence unless they are "damaging". Section 4(2) is similar.

Extra-terriotorial jurisdiction

Offences under any provision of the Act, other than sections 8(1) or 8(4) or 8(5), committed by any person in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...

, the Channel Islands
Channel Islands
The Channel Islands are an archipelago of British Crown Dependencies in the English Channel, off the French coast of Normandy. They include two separate bailiwicks: the Bailiwick of Guernsey and the Bailiwick of Jersey...

, or in any colony, or committed by British citizens or Crown servants in any place, are cognisable as offences under the law of the United Kingdom.

Arrest

In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified as arrestable offence
Arrestable offence
Arrestable offence is a legal term now obsolete in English law and the legal system of Northern Ireland, but still used in the legal system of the Republic of Ireland. The Criminal Law Act 1967 introduced the category to replace the ancient term felony...

s, initially by virtue of sections 24(1)(c) and (2)(bb) of the Police and Criminal Evidence Act 1984
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...

, and then by virtue of sections 24(1)(c) and (2) of, and paragraph 18 of Schedule 1A to, that Act.

Prescribed bodies and persons

Sections 7(5), 8(9), 12 and 13(1) confer powers on the Secretary of State to "prescribe" bodies and persons for certain purposes. These powers have been exercised by the following instruments:

Proposed revisions

The Intelligence and Security Committee
Intelligence and Security Committee
The Intelligence and Security Committee is a committee of parliamentarians appointed by the Prime Minister to oversee the work of the Intelligence machinery of the United Kingdom...

 (ISC) annual report for 2005–2006 on UK intelligence services states:

"Official Secrets Act
113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of ‘duress of circumstance’ in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated ‘authorisation to disclose’ procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall."

The full report can be found here:
http://www.cabinetoffice.gov.uk/publications/reports/intelligence/annualir0506.pdf

Section 1 - Security and intelligence

Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence.

It can be committed by any person who is or has been a member of the security and intelligence services, or who is or has been a person notified that he is subject to the provisions of section 1(1).

Cases under this section
  • R v. Shayler [2002] UKHL 11, [2002] All ER 477 (21 March 2002)
  • R v. Shayler [2001] EWCA Crim 1977, [2001] WLR 2206 (28 September 2001)


Section 2 - Defence

Section 2(1) creates an offence of disclosing information, documents or other articles relating to defence. This section applies only to crown servant
Crown servant
In the United Kingdom, a Crown servant is an officer of HM Government employed under the Crown whose duties of employment are of a public nature and whose salaries are paid out of public funds.-The Official Secrets Act 1989:...

s and government contractor
Government contractor
A government contractor is a private company that produces goods or services under contract for the government. Often the terms of the contract specify cost plus – i.e., the contractor gets paid for its costs, plus a specified profit margin. Laws often require governments to award contracts...

s.

Section 3 - International relations

Section 3(1)(a) creates an offence of disclosing information, documents or other articles relating to international relations. This section applies only to crown servants and government contractors.

Section 4 - Crime and special investigation powers

This section relates to disclosure of information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.

Section 5 - Information resulting from unauthorised disclosures or entrusted in confidence

This section relates to further disclosure of information, documents or other articles protected from disclosure by the preceding sections of the Act. It allows, for example, the prosecution of newspapers or journalists who publish secret information leaked to them by a crown servant in contravention of section 3. This section applies to everyone.

Section 6 - Information entrusted in confidence to other States or to international organisations

Section 7 - Authorised disclosures

Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied.

Section 7(4) provides a defence.

Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction".

Section 8 - Safeguarding of information

This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidental disclosure.

Section 9 - Restriction on prosecutions

Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of the Director of Public Prosecutions
Director of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...

, or in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland
Director of Public Prosecutions for Northern Ireland
The Director of Public Prosecutions is the head of the Public Prosecution Service of Northern Ireland, and is appointed by the Attorney General for Northern Ireland. The current DPP is Sir Alasdair Fraser CB QC.-See also:*Director of Public Prosecutions...

.

Section 9(1) provides that no prosecution for any other offence under this Act may be instituted, in England and Wales, except by or with the consent of the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...

, or in Northern Ireland, except by or with the consent of the Advocate General for Northern Ireland
Advocate General for Northern Ireland
The Advocate General for Northern Ireland is the chief legal adviser to the UK Government on Northern Ireland law and the post is held by the Attorney General for England and Wales by virtue of that office...

.

The words "Advocate General for Northern Ireland", in section 9(1), were substituted for the words "Attorney General for Northern Ireland
Attorney General for Northern Ireland
The Attorney General for Northern Ireland is the chief legal adviser to the Northern Ireland Executive for both civil and criminal matters that fall within the devolved powers of the Northern Ireland Assembly....

" by sections 28 and 87 of, and paragraph 32 of Schedule 7 to, the Justice (Northern Ireland) Act 2002, on 12 April 2010.

Section 10 - Penalties

This section provides the penalties and mode of trial for offences under the Act.

Section 10(2) provides that a person guilty of an offence under section 8(1) or 8(4) or 8(5) is liable on summary conviction to imprisonment for a term not exceeding three months, or to a fine not exceeding level 5 on the standard scale
Standard scale
The standard scale is a system whereby financial criminal penalties in legislation have maximum levels set against a standard scale. Then, when inflation makes it necessary to increase the levels of the fines the legislators need to modify only the scale rather than each individual piece of...

, or to both.

Section 10(1) provides that a person guilty of any other offence under the Act is liable, on conviction on indictment to imprisonment for a term not exceeding two years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.

The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) by paragraph 39 of Schedule 26 to the Criminal Justice Act 2003
Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....

.

Section 11(1)

Section 11(1) inserted section 24(2)(bb) into the Police and Criminal Evidence Act 1984
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...

. It also omitted the reference to the Official Secrets Act 1911
Official Secrets Act 1911
The Official Secrets Act 1911 is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889....

 in section 24(2)(b) of that Act.

It was repealed on 1 October 2002.

The repeal was consequential on the replacement of section 24(2) of the Police and Criminal Evidence Act 1984 with a new Schedule 1A to that Act.

Section 11(3)

Section 11(3) extends section 9(1) of the Official Secrets Act 1911
Official Secrets Act 1911
The Official Secrets Act 1911 is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889....

 (which relates to search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

s).

Section 12 - Definition of Crown servant and government contractor

Section 12(1) defines the expression "Crown servant
Crown servant
In the United Kingdom, a Crown servant is an officer of HM Government employed under the Crown whose duties of employment are of a public nature and whose salaries are paid out of public funds.-The Official Secrets Act 1989:...

" for the purposes of this Act.

Sections 12(2) and (3) define the expression "government contractor
Government contractor
A government contractor is a private company that produces goods or services under contract for the government. Often the terms of the contract specify cost plus – i.e., the contractor gets paid for its costs, plus a specified profit margin. Laws often require governments to award contracts...

" for the purposes of this Act.

Section 13 - Other interpretation provisions

This section defines the words and expressions "disclose", "disclosure", "international organisation", "prescribed" and "State" for the purposes of the Act.

Section 15 - Acts done abroad and extent

Section 15(1)(a) provides that any act done by a British citizens or crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.

This is intended to cover espionage
Espionage
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...

 (where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a newspaper.

Section 15(1)(b) provides that any act done by any person in any of the Channel Islands
Channel Islands
The Channel Islands are an archipelago of British Crown Dependencies in the English Channel, off the French coast of Normandy. They include two separate bailiwicks: the Bailiwick of Guernsey and the Bailiwick of Jersey...

, or in the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...

, or in any colony, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.

Section 15(3) confers a power on the Queen to extend, by Order in Council, any provision of the Act, subject to any exceptions, adaptations or modifications specified in the Order, to any of the Channel Islands, or to the Isle of Man, or to any colony.

This power was exercised by the Official Secrets Act 1989 (Hong Kong) Order 1992 (S.I. 1992/1301).

Section 16 - Citation, commencment, amendments, repeals and revocation

Section 16(1) authorises the citation of this Act by a short title
Short title
The short title is the formal name by which a piece of primary legislation may by law be cited in the United Kingdom and other Westminster-influenced jurisdictions , as well as the United States. It contrasts with the long title which, while usually being more fully descriptive of the...

.

Section 16(2) authorises the citation of this Act and the Official Secrets Acts 1911 to 1939 by a collective title.

Section 16(5) provides that the repeals of parts of the Official Secrets Act 1911
Official Secrets Act 1911
The Official Secrets Act 1911 is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889....

 and the Official Secrets Act 1920
Official Secrets Act 1920
The Official Secrets Act 1920 is an Act of the Parliament of the United Kingdom.-Section 1 - Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents:Sections 1 and provide:...

 in Schedule 2 do not extend to any of the territories mentioned in section 15(3), subject to any Order made under section 15(3). The said territories mentioned in section 15(3) are the Channel Islands
Channel Islands
The Channel Islands are an archipelago of British Crown Dependencies in the English Channel, off the French coast of Normandy. They include two separate bailiwicks: the Bailiwick of Guernsey and the Bailiwick of Jersey...

, the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...

 and all colonies. Such an Order was made in relation to Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...

 (see above).

This section also provides for consequential amendments, repeals, a revocation, and commencement.

See also

  • Official Secrets Act
    Official Secrets Act
    The Official Secrets Act is a stock short title used in the United Kingdom, Ireland, India and Malaysia and formerly in New Zealand for legislation that provides for the protection of state secrets and official information, mainly related to national security.-United Kingdom:*The Official Secrets...

  • Richard Tomlinson
    Richard Tomlinson
    Richard Tomlinson is a New Zealand-born British former MI6 officer who was imprisoned during 1997 for violating the Official Secrets Act 1989 by giving the synopsis of a proposed book detailing his career in the Secret Intelligence Service to an Australian publisher...

    , former MI6
    Secret Intelligence Service
    The Secret Intelligence Service is responsible for supplying the British Government with foreign intelligence. Alongside the internal Security Service , the Government Communications Headquarters and the Defence Intelligence , it operates under the formal direction of the Joint Intelligence...

     agent imprisoned in 1997 for breaking the 1989 Act, by attempting to publish a book detailing his career.
  • Katharine Gun
    Katharine Gun
    Katharine Teresa Gun is a former translator for Government Communications Headquarters , a British intelligence agency...

    , former GCHQ
    Government Communications Headquarters
    The Government Communications Headquarters is a British intelligence agency responsible for providing signals intelligence and information assurance to the UK government and armed forces...

     translator arrested under the Act whose case was later dropped by the government.
  • O'Connor - Keogh official secrets trial
    O'Connor - Keogh official secrets trial
    In November 2005, Civil servant David Keogh was charged with offences under section 3, and parliamentary researcher Leo O'Connor under section 5, of the Official Secrets Act 1989 in the United Kingdom. Both men were of Northampton, England....

  • Al Jazeera bombing memo
    Al Jazeera bombing memo
    The Al Jazeera bombing memo is an unpublished memorandum made within the British government which purports to be the minutes of a discussion between United States President George W. Bush and Prime Minister Tony Blair. The Daily Mirror published a story on its front page on 22 November 2005...

  • Espionage Act of 1917
    Espionage Act of 1917
    The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

     (US law)

External links

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