Human Rights – Criminal Law – Article 10 – Freedom of Expression – prosecution under the the Official Secrets Act 1989 – whether the OSA is compatible with article 10 of the ECHR
Mr Shayler, a former member of the Security Service, was charged with three offences under the Official Secrets Act 1989. Under sections 1 (1), 4 (1), and 4 (3) of the Act, he was accused of disclosing information and/or documents relating to his time in the service without lawful authority.
Whether the sections under which the Defendant was charged afforded him a public interest defence. If not, whether those sections were compatible with Article 10 of the European Convention on Human Rights; and if not, whether a declaration of incompatibility should be issued, or whether the sections could be read in conformity with the Convention.
Whilst the sections were a prima facie restriction on Shayler’s right to freedom of expression, the restriction was prescribed by law and directed to the objectives specified in Article 10 (2) of the Convention. The question was whether the restriction was proportionate or not. As the ban under the Act was not absolute, but provided for disclosure with lawful authority provided the correct procedures were followed, sufficient and effective safeguards to satisfy Article 10 (2) of the Convention had been provided.
Article 10 recognises exceptions to freedom of expression to protect national security. The House of Lords found that the restrictions imposed by the Official Secrets Act were proportionate and necessary in a democratic society.