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SECURITY SERVICES, LEAKS AND THE PUBLIC INTEREST

Once upon a time, the Crown faced almost no difficulties in securing convictions for breaches of the Official Secrets Act 1911, particularly section 2. After the somewhat embarrassing decision to proceed had been taken, it was like shooting fish in a barrel. Occasionally, the jury revolted, as they did in Ponting [1985] Crim. L.R. 315, producing something like a perverse verdict in the face of the judicial direction that it was no defence that the defendant believed himself to be acting in the public interest. That decision, and the ruling of the House of Lords in the Spycatcher litigation [1990] 1 A.C. 109 to the effect that the former security service agent Peter Wright did not commit an actionable breach of confidence by making his allegations of improper practices within the services, prompted the government of the day to promote legislation that purported to impose life-long obligations of confidence upon members and former members of the security intelligence services. “Purported” because, with the enactment of the Human Rights Act 1998, it is now open to the courts inter alia to declare that Parliament has acted incompatibly with one of the rights protected by that Act.