Law: Whistle blowers, secrets and spies

The recent David Shayler case has raised the question: who is really protecting the public interest?
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The Independent Culture
ONE PERSON'S whistle-blowing is another person's betrayal or, in the case of former MI5 employee David Shayler, breach of national security. Shayler's claims of bureaucratic inefficiency in the security services and allegations of an unauthorised plot to assassinate President Gaddafi of Libya have landed him in a Paris prison and facing charges under the Official Secrets Act.

His solicitor John Wadham, who is also the director of the civil rights group Liberty, is in Paris again this week seeing his client and trying to organise a hearing for bail in the next couple of weeks.

Mr Wadham says: "All whistle-blowers have to break a set of rules when they give out certain information, and some will break the law in one way or another. The key question is what then happens to them. There obviously needs to be an assessment whether there is justification for disclosing secrets, and that should be and will be a matter for the courts."

While Mr Shayler has been interviewed by journalists under secret arrangements that might have impressed Mr Shayler's former employers in the security services, lawyers here have been speculating on how the Government may fail in its attempts to persuade the French authorities to extradite Mr Shayler for trial on charges under the Official Secrets Act. The hearing on the extradition of Mr Shayler, under the European Convention on extradition, will probably be in October.

Mr Wadham adds that "one of the interesting things is that the French process is quasi-judicial and quasi-political - the judges make a recommendation to the relevant Government minister, and it then goes to the President for the final decision. What is relevant in this case is that those accused of political offences are not extraditable; and there is also the matter of reciprocity - the UK Government will have to show that the offence is replicated by the same offence in France."

Another lawyer who has been involved in extradition cases, Robert Roscoe at Victor Lissack & Roscoe, says that "the French Government may not consider an alleged offence under the UK Official Secrets Act as a legitimate extraditable offence."

And this raises the more general point of whether whistle-blowers in the security services should be allowed to plead the public interest as a defence. Mr Wadham points in particular to the fact that there is a public interest defence in the French equivalent of the Official Secrets Act (whereas there is no such defence under the UK Act), and that is likely to be relevant in fighting the extradition application.

Parallels have been drawn with the Spycatcher case, but in that case, there were no attempts to extradite Peter Wright from Australia. David Hooper, a partner at the law firm Biddle, who acted for Wright in that case, considers that the then UK Government might have realised that the Australian authorities might not have co-operated. "In any event," adds Mr Hooper, "using criminal law as a subsidiary remedy for what is a civil law offence is clearly unsatisfactory."

But if the extradition application for Shayler succeeds, there will then be a trial in the UK. Again, parallels have been drawn with the case of Clive Ponting in 1985, the former assistant secretary at the Ministry of Defence who was prosecuted under the Official Secrets Act for leaking documents showing that Conservative Ministers had misled the House of Commons about the sinking of the Belgrano during the Falklands War. Despite a direction by the judge to the jury to convict Mr Ponting, they acquitted him.

Similarly, in 1991, as one commentator said, "a jury rose above the law to dispense justice" - the jury acquitted Patrick Pottle and Michael Randle when they were prosecuted at the Old Bailey when they helped Soviet agent George Blake escape after he broke out of Wormwood Scrubs in 1966. Mr Wadham says it is recognised that the jury has the power to acquit in cases where strictly applying the law would lead to an unjust result.

Despite the recent publicity about the protection of whistle-blowers under the Public Interest Disclosure Bill, which is due to come into law next year, and the Freedom of Information White Paper, which now seems to have been stalled as the minister responsible for it was sacked in the reshuffle and responsibility for the paper is now with the Home Office. But neither of these covers the security and intelligence services.