Criminalising leaks

Stuart Weir (London, Democratic Audit): The Damian Green case and the prosecution of the journalist Sally Murrer – a more serious and ominous case – has raised suspicions that the common law offence of misconduct in public office is now being used to re-criminalise the leaking of official information. It wouldn’t be the first time that the authorities rummaged in the common-law ragbag to nab people or discourage conduct otherwise out of their reach.

Maurice Frankel, director of the Campaign for Freedom of Information, has raised the issue in a letter to The Times on 4 December (that coincided with a salvo from Vernon Bogdanor in his spat with William Rees-Mogg over the arrest of Damian Green).

Frankel points out that the 1889 Official Secrets Act 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 made it clear that under the 1989 Act disclosures that were merely embarrassing (as in the Damian Green case) or undesirable would not be punishable by the criminal law. Frankel quotes Douglas Hurd, the then Home Secretary, as telling the House of Commons that the great bulk of important and sensitive documents, including economic policy and budget preparations, would no longer be protected by the criminal law.

Frankel comments: “The disclosures that the Home Office official is 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 have been disclosable under the FOI Act. How has the clock been turned back to make such disclosures the subject of police investigations, arrests and possible prosecutions?”

Sally Murrer was of course prosecuted. But perhaps Gordon Brown or Jacqui Smith, or perhaps Jack Straw, could be asked similar questions by a select committee some time soon?