'Bolting horses'?: media constrained after OSA convictions

Last week saw the conviction of two men - one a civil servant and the other an MP's researcher - for breach of the Official Secrets Act 1989 (1,2,3). The pair were imprisioned for six and three months respectively. In 2005, the first defendant had passed a four page memo of discussions between Tony Blair and George Bush in the Oval Office to the second defendant in the hope that its contents would be made more widely known (it was hoped that the details would encourage support for Mr Bush's Democrat challenger John Kerry). The second defendant had slipped the memo into the papers of his MP employer. On finding it, the MP promptly returned the memo to the government.

In addition to sentencing the two defendants, the judge imposed a permanent injunction against publication of details of the leaked memo or of comments made by one defendant in court. This was notwithstanding the fact that such information was either stated in open court or had previously been reported and was therefore already in the public domain. In an almost farcical concession, the judge - Mr Justice Aikens - accepted that the public domain information could be republished, but only if this was done without reference to the immediate proceedings.

The case highlights two things. First, the absence of any public interest defence to the OSA. This was confirmed by the House of Lords in the Shayler case (for Shayler's own take on the saga which culminated in this way, see Spies, Lies and Whistleblowers). Whether he is considered to have been roguish, misguided or heroic, the first defendant was acting in accordance with his conscience: constitutional patriot or criminal?

The second point of interest is the extent to which British judges seem intent on trying to hold back the incoming tide in respect of the control of information already in the public domain. The NGO Article XIX commented that the "gagging order is illegitimate and defies common sense, since the basis for [the allegation based on the released information] has previously been widely reported and continues to be reported by foreign media which are freely accessible online. It recalls the 1991 Spycatcher case, in which the European Court of Human Rights found the United Kingdom in breach of the right to freedom of expression for imposing an injunction on the memoirs of a former agent, when the book was already freely available in the United States, rendering the injunction inutile". See also, Peter Preston in the Guardian commenting on the decision to prosecute, and the Observer comment on John Humphreys' Today programme ambush of the Attorney General on the same question (Nov 2005).

There is also a faint echo of the famous Ponting case - a 'perverse verdict' in which a defendant who was clearly guilty was exonerated by the jury hearing his case - the convictions were achieved only by majority verdict. This means that one or possibly two of the jurors considered the defendants not guilty.