Recriminalising the leaking of official information

Letters, The Times
4 December 2008

Sir, The Damian Green case and the unsuccessful prosecution of the journalist Sally Murrer raise the question of whether the offence of misconduct in public office is now being used as a way of recriminalising the leaking of official information.

For many years any leak of official information on any subject — damaging or innocuous — was an offence under Section 2 of the 1911 Official Secrets Act. The 1989 Official Secrets Act changed this. It limited the offence to unauthorised and damaging disclosures relating to the work of the security and intelligence services, defence, international relations and law enforcement or to the obtaining of information under certain warrants, for example to intercept communications.

The 1988 White Paper that announced the reform made clear that disclosures that were merely “undesirable, a betrayal of trust or an embarrassment to the Government” would not be punishable by the criminal law. Introducing the new legislation Douglas Hurd, then the Conservative Home Secretary, explained that it “will remove the protection of the criminal law from the great bulk of sensitive and important information — including policy documents, Cabinet discussions on education, on health and on social security, and economic information and budget preparations. None of them will any longer have the protection of the criminal law.” Such disclosures might lead to disciplinary action — but not prosecution.

The disclosures that the Home Office civil servant are alleged to have made not only fall within the broad class of information deliberately removed from these criminal sanctions but in some cases are likely to be disclosable under the Freedom of Information Act. How has the clock been turned back to make such disclosures the subject of police investigations, arrests and possible prosecutions?

Maurice Frankel

Director, Campaign for Freedom of Information