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Open Secrets 22 BACK PAGE LAW STORIES 15 January 2021 | www.newlawjournal.co.uk Open secrets In a tribute to John Le Carré, Athelstane Aamodt reflects on the operation & enforcement of official secrets laws © Kirsty Wigglesworth/AP/Shutterstock ne of the things that nearly communication of information’ under (the have. Further, the House of Lords’ decision everyone knew about the late now-abolished) s 2 of the Official Secrets most likely caused sales of the book to John Le Carré was that he had Act 1911. The basis for prosecuting them increase, thereby making things even Oworked in British Intelligence, was an article that they had written in the worse. The House of Lords eventually first for MI5 (domestic counter- magazine Time Out about the intelligence saw sense and in A-G v Guardian intelligence) and then for MI6 (foreign services. One of the photographs that had Newspapers Ltd (No 2) [1988] 3 All ER 545 intelligence). His life as an intelligence featured in the article was a photograph discharged the interim injunction on the officer provided ample inspiration for of the Post-Office Tower. The trial was a basis that the worldwide dissemination his many novels. For years, the British cause célèbre, with the first trial being of the book had already caused the Government would not even acknowledge abandoned after it was discovered that, harm that the British government had the existence of MI5 and MI6. MI5 was among other things, the security services complained about. Unsurprisingly, the first mentioned in parliament in 1952 and had been vetting the jury. The second UK government’s conduct in this matter was recognised in law in 1989. MI6 (as trial ended in a conviction on one charge was held to have been in breach of Art 10 well as GCHQ (signals intelligence)) were because the journalists technically had of the European Convention on Human only formally acknowledged in 1994. Since no defence. The sentences that the judge Rights in The Observer and Guardian v then, things have changed remarkably: imposed were exceptionally mild and non- United Kingdom (1991) 14 EHRR 153. Stella Rimmington, a former director- custodial. The trial and the evidence from ‘Prior restraint’, as it is often called, general of MI5, and the first to be publicly the security services were widely ridiculed is not something that official secrets’ identified as such, published her memoirs and it was perceived to be evidence of legislation grants; the offence of in 2001. MI5 now has a website. Richard an intelligence establishment fanatically communicating information is only Moore, the chief of MI6, has a Twitter obsessed with secrecy for its own sake. punishable after the event, with the account. We all know a great deal more The trial, in effect, had collapsed. government having to rely on civil causes about what the intelligence services do. Even more preposterous than the of action such as breach of confidence and Some things, however, we do not know, ABC prosecution was the ‘Spycatcher’ copyright, which unlike serious criminal and we probably never will. The various affair. Peter Wright, a former MI5 officer charges, are not judged by juries. iterations of the Official Secrets Act (five who had retired to Tasmania, decided However, once an injunction is granted, Acts since 1889) prevent people from to write a memoir called ‘Spycatcher’ any breach can be punished by contempt. divulging highly sensitive government about his experiences working for the information by punishing such divulgence intelligence services. A great many things Comment with fines and/or imprisonment. People were revealed in the book, not least the The government appears to be taking who work with sensitive intelligence revelation that the intelligence services a slightly more relaxed approach about information are often described as ‘signing had been conspiring against former prime official secrets breaches; in 2000 the the Official Secrets Act’. In reality, the minister, Harold Wilson. When Wright newspaper that published information Act—like any law—operates without a first published his memoirs in 1985, the gleaned from the ex-MI5 employee David statement being signed, and people signing government immediately applied for Shayler was not prosecuted for revealing a statement about official secrets is for (and was granted) an interim injunction that politicians such as Peter Mandelson symbolic purposes only. on the basis that the publication was and Harriet Harman had MI5 files. a breach of confidence. This proved to Shayler was prosecuted however. Official secrets be a fairly useless measure because the In the age of the internet, and as a The operation and enforcement of injunction that was granted only applied result of a change in the law (the Official official secrets laws has not always been to England and Wales. The book was Secrets Act 1989 is a slight improvement satisfactory. For instance, the Post-Office published in other parts of the world, not on the notorious and hastily-drafted Tower (now called the BT Tower) was least in Scotland, where readers south of 1911 Act) trials of the kind that we saw considered (bizarrely) for many years to the border could easily go and buy a copy. at the end of the 20th century are far less be an official secret. This was despite the Despite that, the House of Lords in A-G v likely. GCHQ now appears (labelled) on fact that it is 189m high, visible for miles Guardian Newspapers Ltd [1987] 3 All ER Google Maps. around, and a famous London landmark. 316 upheld the interim injunction, despite Perhaps the era of Smiley’s People The absurdity of all this was revealed the fact that the book was by this stage is over? NLJ during the ‘ABC’ trial in 1978 (the letters being widely published elsewhere. The stand for the surnames of the defendants), basis for this appeared to be an objection Athelstane Aamodt, group legal when three journalists went on trial to an ex-MI5 employee making profits by advisor, Associated Newspapers Limited for—among other things—the ‘wrongful revealing information that he should not (www.dmgmedia.co.uk)..
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