The Official Secrets Act; a defence of public interest would offend the public interest. Jo Morris.

The campaign for a defence of public interest to be available for breaches of the Official Secrets Act is misguided.  Concerns that a rogue Government may use criminal prosecutions to prevent scrutiny are ill founded, the perceived injustice of the punishment of a Crown servant who made disclosures for the good of all, misconceived. 

Breaches of the Act are capable of imperilling the national interest.  Some people do make disclosure for altruistic reasons, but that does not detract from the harm that their actions are capable of bringing about.  Offences under the Act are judged primarily upon the damage they cause rather than the motives of the culprit.

A general defence of public interest would create the danger of misguided disclosures.  It would encourage everybody with vision of protected information to search their conscience over whether it should or should not be kept confidential.  Where the public interest lies cannot properly be assessed by Crown servants in command of limited information. 

Further, Crown servants who are troubled by protected information are not unable to shine light upon the actions of a Government.  The Act does not place an absolute ban upon disclosure.  It demands only that lawful authority has been gained.  If such authority is unreasonably refused, then that can be challenged by way of judicial review.  In this way, the public interest can be more safely ascertained than leaving it up to the judgement of an individual who may be a disgruntled civil servant.

Neither are the offences in the Act of strict liability.  A whistle blower offends only if the disclosures are “damaging”.  It is a defence to each of the offences in ss1-3 for a defendant to prove that he did not know and had no reasonable cause to believe that the information related to a protected category and that its disclosure would be “damaging”. 

Whether a disclosure serves the good of the UK requires a judgement call that can only be safely assessed by fully informed minds.  Crown servants entrusted with confidential information should not be encouraged to breach that confidence to further what they perceive as the public interest.  To do so endangers the security of the UK.  A defence of public interest would create a cloak of piety for those responsible. 

Jo Morris
This article was published in The Times on 28 January 2021 available here.