Law Relating to Official Secrecy - Essay Example

LAW RELATING TO OFFICIAL SECRECY al Affiliation) Key words: UK, official secrecy A prominent UK counselor once remarkedthat the task of balancing the public right to receive information, and the interest of the government to withhold it, is not easy. The material often relate to matters of national security. Whistleblowers are often hailed as national heroes. However, such information may fall into the wrong hands and hence jeopardize the wellbeing of the entire nation. It is under the official secrets Act 1989 that the balancing of these conflicting interests exists. The Act outlaws the disclosure of particular information, regardless of its insignificance. The official secrets Act (1989) regulate the information disclosure action of both the former and the current state officials. The state officials range from security and intelligence agents, military personnel, and the civil service. In addition, it regulates disclosure by ordinary citizens (Florini, 1998, p.55). The Act provides a variety of punishments to various individuals that leak state information. The official secrets act is problematic on the face value and in its applicability. Under the act, it is hard to determine the criminal culpability. In addition, the scope of the Act applicability is broad. It prohibits military personnel and ordinary state official from unauthorized disclosure of information crucial to the national security. The Act provides limited defenses. It is not a defense that the information disclosed is non-confidential or untrue, or that it was meant to meet the interest of the public. The statute does not require the trial to establish the damage in cases involving ordinary state officials (Jowel & Oliver, 2011, p.33). The act invokes inquiries that do not result in charges that are eventually determined as unfounded and flawed. The justification of the official secrets Act is that the national security may be compromised in case certain state information are disclosed. For instance, in time of armed conflict, if a senior state officer were to leak military information, the entire country would be at risk. Edward Snowden was an agent in the National Security Agency in US. He leaked information regarding how the US through the agency he was working for was spying on the German Chancellor. Such disclosure is punishable in the UK based on the provision of the official secrets Act of 1989. The fact that such information would jeopardize the relation between the countries is enough proof for a conviction. The UK Act does not require proof of damage for a prosecution to proceed. In the US, for an ordinary state official to be penalized for disclosing confidential information, the prosecution must first establish the damages it is likely to cause (Lancey 2010, p.201). The disclosure process in the UK is more burdensome and discretionary than in the US. In the US, former employees must first seek permission from the publication review board to publish articles and other scholarly work. The board provides a more neutral process than the one that exist in the UK. The official secret Act requires certain state information to remain secret. However, it does not observe the tension that center on the Act. A good example would be when in the best interest of the public that certain information is leaked. The best-known case was the Clive pointing in the 1985 who disclosed information from the department of defense. The leak involved an Argentinean cruise ship that was sunk by the British navy (Best, 2001, p.18). The state claimed that the cruise ship was endangering the lives of British nationalities. However, the information that Clive Pointing disclosed reported the facts the ship was within the zone. The facts revealed by Clive pointing contradicted the government belief that the ship was endangering British lives. The court acquitted Clive Pointing of any criminal charges despite the fact that his action contravened the provision under the UK official secrets Act. The court ruled that the defendant’s action served the best interest of humanity. According to the official secret act of 1989, a state official can only disclose information in accordance with their official obligations. The official authorization should be sought before a state official can communicate certain information. In addition, it is also an offence for a state official to fail to take reasonable care to avert attempt of leaking state information. A crown servant should not retain documentation of state information. Based on the provision of the official secrets act, such actions may results in a maximum penalty of 3 months imprisonment or a fine not exceeding five thousand sterling pounds (Jowel & Oliver, 2011, p.45). The official secret Act has been in the limelight recently. The metropolitan police attempted to force the Guardian newspaper to disclose information relating to a phone-hacking scandal. The Metropolitan Police Commissioner called for tougher rules on disclosure of state information. The police seized several documents that were linked to Edward Snowden, a former US intelligence whistleblower. According to the commissioner, state secrets are vital in the war against terrorist. Therefore, their disclosure would have devastating effects on the country. The Police Commissioner advocated for the review of the laws on official secret since the threat from international terrorism was changing gradually. The issue of official secrecy is complex. Individual’s intent for disclosure of information may vary. In a particular situation, information leaked may serve the best interest of the public. However, it may risk the wellbeing of the public in other situations. A state official may have seen an evidence of the corrupt dealings of an institution. Due to the inability of the management or the government to deal with the issue, the person is faced with the difficulty of deciding on the next cause of action. A good example of such scenario relates to the Medibank case. An employee of Medibank leaked information to the media concerning the fraudulent activities of Medibank. In such a situation, the whistleblower is not liable for any wrongdoing since the actions served the best interest of the public. Relevant cases under the Official Secret Act In the case involving David Shayler versus the State, David was charged with three counts of disclosing information to the media in the mid-1997. The information contained grave accusation against the secret services. The French court declined the request by the British government to extradite the accused. However, David Shayler was later deported to British and was prosecuted based on the provision provided in the official secrets Act of 1989. The accused was found guilty and was convicted for a jail term of six months. The House of Lords studied the defence available to David and determined that the 1989 official secrets Act did not provide a defence based on public interest. In addition, it was clear that the accused contravened the provision that prohibited unauthorized disclosure of information. David Shayler appealed against his conviction with a defense argument that was based on the doctrine of necessity (Best, 2001, p.34). The court of appeal ruled that the defense of necessity is applicable if the illegal act was motivated by the desire to avert an imminent danger that could cause serious harms or death. In the case of Katherine Versus GCHQ, the accused was an employee at GCHQ, a British Intelligence Agency. She admitted to disclosing information regarding a confidential email. The attorney general declared that the case against Katherine would not continue. The defence of Katherine was based on the legal doctrine of necessity. According to the doctrine of necessity, an individual is compelled to commit an illegal act due to the pressure of the situation. In the case of David Keogh and Leo O’Connor versus the state, both defendants were found guilty of the contravening the official secrets act. They were accused of leaking a classified letters from the office of the Prime Minister. The court ruled that the reckless act of both defendants jeopardized the lives of British nationalities. Their actions were termed a gross breach of trust of their position as state officials. In the case of Derek Pasquill versus the State, Derek was accused of disclosing confidential documents to the media. The report contained the state assessment on the CIA rendition flights and their contacts with Islamic groups. The case did not proceed as the prosecution ruled out that the documents presented to the court would have undermined the case that the leaks were injurious. Another case relating to the subject of official secrecy involved a senior state official who was convicted for eight months for disclosing information regarding an imminent terror attack. The accused admitted to the breach of trust of his position as a Crown servant. The court ruled out that such disclosure was subject to the immediate custody of the accused. The court further argued that the disclosed information was a matter of national security and conviction required no amount of hesitation. A number of state officials have been convicted between 2007 and 2010 for misplacing government documents that contained sensitive information. A top government official was fined an amount of three thousand sterling pound for leaving material containing the operation of Al-Qaeda in a train. The court stated the recklessness of the official jeopardized the security operation against terror groups. After the conviction of Shayler, Lord Bingham explained the importance of the right to freedom of expression. In addition, he emphasized the role of the media in exposing the malpractices that exist in public offices (Best, 2010, p.43). Lord Bingham observed three precautions provided in the 1989 official secrets Act. First a previous or a present intelligence officer concerned can disclose information to a state official or the relevant security committee which can take further action section 12(1). Secondly, they should request permission from respective authorities to disclose the information. In case permission is denied, the judiciary can review the decision. Information regarding the prosecutions under the Official Secrecy Act is only undertaken with authorization from the attorney general. Such information is considered delicate and sensitive and ought to be handled with diligence (Feur, 2015, p.150). References Best, K. 2001. Control of Official Information: Implications of the Shayler Affair, The. JCL, 6, 18. Feuer, K. 2015. Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act. BC Intl & Comp. L. Rev., 38, 91-159. Florini, A. 1998. The end of secrecy. Foreign policy, 50-63. Jowell, J., & Oliver, D. (Eds.). 2011. The changing constitution. Oxford University Press. Lacey, H. M. 2010. Government Secrets, National Security and Freedom of the Press: The Ability of the United States to Prosecute Julian Assange. 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