The Court of Appeal in England and Wales has upheld a Human Rights challenge to the Official Secrets Act (the Act). In an interesting and important judgement, the Court agreed with the appellant that the Crown's interpretation of Sections 2 and 3 of the Act was incompatible with the principle, enshrined in Article 6 of the European Convention on Human Rights, that an accused is "innocent until proven guilty". In brief, the background was as follows. The appellant, Mr Keogh, had been a Crown civil servant, employed at the Government's communication centre in Whitehall. Mr Keogh had obtained a copy of a confidential letter, recording a meeting in April 2004 between the Prime Minister and the President of the United States. It is understood that the letter related to the UK and US policy in Iraq and was of a highly sensitive nature. The appellant apparently photocopied the letter and provided a copy to a colleague, who in turn placed the copy amongst the papers of Mr Anthony Clarke, the then Labour Member of Parliament for Northampton South and well known opponent of the Iraq war. Having discovered the letter, the matter was reported by Mr Clarke to No 10 Downing Street, and was thereafter referred to the Metropolitan Police. Mr Keogh and his colleague were both charged with disclosure offences under the Official Secrets Act 1989.
In essence, the appellant, Mr Keogh, had been charged with making a damaging disclosure of a document relating to defence and/or international relations for the purposes of sections 2 and 3 of the Act. It was accepted that, in order to obtain a conviction, the Crown would require to prove, beyond reasonable doubt, that there had been a relevant disclosure by the appellant which was, or would be likely to have been, "damaging" for the purposes of the Act. Having heard parties, the Court agreed with the appellant that the state of the accused's mind at the relevant time was additionally a requisite ingredient of the commission of the offence. It required to be established, not only that there had been a damaging disclosure, but that the accused had intended, or had reasonable cause to believe, that a damaging disclosure would arise for the purposes of the Act. The element of intention was, in the Court's view, an essential ingredient of the offence.
The issue arose because of the wording of the Act, which appears (as contended by the Crown) to place the onus on the appellant to establish that he had not at the relevant time had the requisite intention, or reasonable grounds of belief.
Mr Keogh cried "foul", arguing that it was for the Crown to prove its case, "beyond reasonable doubt" and that this included proof of the requisite intention. Placing the onus upon him to "disprove" this aspect of the offence, would amount, he argued, to a breach of his rights and in particular of his right to the presumption of innocence under the Human Rights Act.
A senior bench of three, including the Lord Chief Justice, concluded, in line with recent case-law, that the right to be presumed innocent until proved guilty was not absolute or unqualified, however any variation from that principle required to be justifiable as both necessary and proportionate in all of the circumstances. The Court was not however persuaded that a reverse burden of proof was necessary for the effective operation of the relevant provisions of the Official Secrets Act; the appellant was right in the circumstances that this would be unfair.
The Court of Appeal did not however feel obliged to go so far as to make a formal Declaration of Incompatibility, considering instead that the Official Secrets Act could be read as it stood in such a way as to render it Human Rights compliant. The relevant provisions should be read, the Court stated, such as to allow the accused to put in issue the question as to whether he had had the relevant state of mind or reasonable grounds for belief; in which case, once raised, it would be presumed that the requisite state of mind/reasonable grounds for belief were not present, unless and until the Crown proved to the contrary, beyond reasonable doubt. The burden rested with the Crown to prove the essential elements of the offence, to the criminal standard. Mr Keogh's rights would thus be preserved.
The case is of wider interest in providing a further example of the Court's perhaps increasing willingness to adopt an interventionist approach in its supervisory role under the Human Rights legislation.