28.11.03

Necessary Breach did e-mail leaks breach Official Secrets Act?

In scenes reminiscent of David Shalyer's trial, the latest intelligence officer to let their conscience get the better of them has been put on trial.

29 year old Katharine Gun worked as a translator at the Government's central snooping station GCHQ. In the course of her work and in the run up to war in Iraq, she heard about plans for US intelligence services to tap phones and spy on members of the UN Security Council.
The 'dirty tricks' campaign was intended to produce information that could be used as leverage to presuade council members towards a vote in favour of the war in Iraq.

Mrs Gun leaked the e-mails in what she says was a bid to save lives and what her counsel Ben Emmerson QC described as a "sincere attempt to prevent what she believed to be an unlawful war and to save livesof British servicemen and women and Iraqi citizens".

She was charged under Section 1 of the Official Secrets Act which makes it an offence to divulge 'any information' without official permission.She was subsequently sacked from her job at GCHQ.

Appearing in Bow Street Magistrates Court with supporters including David Shayler himself, she did not deny having leaked the e-mails but did deny having breached the Official Secrets Act. Her denial is based on a defence of Necessity. Naturally her actions failed to stop the war in Iraq but that doesn't mean her defence may not be valid.

The House of Lord's judgment in David Shayler's case could yet prove instrumental in shaping arguments in Katharine Gun's trial. The trial itself (which will not take place until after further commital proceedings in January next year) is likely to be complex and raise some human rights issues - GCHQ has gagged Gun in relation to what she can dislose to her own lawyer.

In Shayler's case the House of Lords ruled that the Official Secrets Act contains no hint of a 'public interest' defence. Lord Hope said that the freedom of expression right under the European Convention and Human Rights Act would be upheld through intelligence officers or others bound by the Official Secrets Act being able to seek their employer's permission to disclose information. If permission to disclose of information was unreasonably denied then the individual would have the right to appeal to the courts for judicial review of that decision.

Whether the imminent threat of war (and evidence to suggest the UN Security Council that was meant to be responsible for ratifying such war was being targeted by an intelligence service 'dirty tricks' campaign) would be sufficient ground for a public interest defence to be constructed remains to be tested. The respective judgments in the House of Lords and previously in the Court of Appeal give some scope for shaping the argument either way.

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