Article 23 and Official Secrets

1
Article 23 and Official Secrets

• Prof Johannes Chan, SC
• Dean, Faculty of Law,
• The University of Hong Kong

2
The Context

• Open and transparent government
• No legal right of access to information
• The law is to restrict access and disclosure of
  official information
• The issue is not how many prosecutions have been
  taken out, but what chilling effect the law has,
  especially when the law is unclear, vague or
  complex
• Ambiguity enhances self-censorship

3
How it all started?

• The Spycatcher
• Worldwide injunction
• Life-long duty of confidentiality on the part of
  secret agents

4
Introduction The Existing Law

• Official Secrets Act 1911
• Official Secrets Ordinance 1997 which is modelled
  after the Official Secrets Act 1989
• Spying and related offences (ss 3-6)
• Unlawful disclosure of security or intelligence
  information by members of the security and
  intelligence services (s 13)
• Unlawful and damaging disclosure of prohibited
  information by a public servant or a government
  contractor (ss 14-17)

5
Different categories of persons

• Current or past members of the security services
• Current or past Crown servants or government
  contractors
• Persons who are not and never have been members
  of the security services, Crown servants or
  government contractors

6
Different degrees of restrictions

• Security force or a member so notified mere
  disclosure without lawful authority no need to
  prove any actual or likely consequence of that
  disclosure defence if no knowledge of or
  reasonable cause to believe the nature of the
  information s 13
• Public servants and government contractors
  damaging disclosure without lawful authority
  defence if no knowledge and no reasonable cause
  to believe the nature of the information and the
  damaging effect of disclosure

7
Different degrees of restrictions II

• Persons who are neither members of the security
  force or public servants and government
  contractors damaging disclosure without lawful
  authority knowing or having reasonable cause to
  believe that (1) information is protected and
  (2) information comes into possession by an
  unauthorized disclosure and (3) disclosure would
  be damaging
• Defence if no knowledge and no reasonable cause
  to believe the nature of the information and the
  damaging effect of disclosure

8
What is protected information?

• Security and intelligent information
• Defence information
• Information relating to international relations
• Information relating to relations between the
  Central Authorities of the PRC and the HKSAR
• Information relating to commission of offences
  and criminal investigations

9
The Proposals

• Unlawful and damaging disclosure of information
  on relations between the Central Authorities of
  the PRC and the HKSAR by public servants and
  government contractors
• Unauthorized and damaging disclosure of protected
  information obtained directly or indirectly by
  illegal access

10
Elements of the new offence

• Unauthorized or Illegal access to protected
  information
• Unauthorized disclosure of such protected
  information
• Knowledge or reasonable cause to believe that the
  information is protected and obtained by
  unauthorized or illegal means
• Damaging disclosure of protected information
• Knowledge or reasonable cause to believe that the
  disclosure would be damaging

11
Illegal Access

• Unauthorized access to computer by
  telecommunications
• Access to computer with criminal or dishonest
  intent
• Burglary
• Bribery
• Unauthorized disclosure by Public servants and
  government contractors includes former public
  servants and government contractors

12
Source or nature?

• Information relating to relations between the
  Central Authorities and the HKSAR a broad or
  narrow test?
• Which organ falls within the meaning of central
  authorities? (NPC, NPCSC, State Council, all
  central government bureaus and ministries,
  President and Ministers, procutorate, National
  Political Consultative Committee, local
  delegates, HK Macao Office, China Liaison Office,
  Communist party?)
• Commercial or economic information covered?
  (increased exit visas, air services agreement,
  surrender of fugitive offenders from the Mainland)

13
Damaging Disclosure

• Information of such a nature that its disclosure
  is likely to endanger national security
• No explanation of damaging disclosure in the
  context of information relating to the relations
  between the central authorities of the PRC and
  the HKSAR
• On international relation, disclosure is
  damaging if it endangers the interests of the
  state elsewhere
• Endanger the interests of the central authorities
  in the mainland and overseas?

14
Damaging Harm Test I

• Nature or content? Information belonging to a
  category the disclosure of which would be likely
  to cause harm trivial information which cannot
  by itself cause harm will be covered
• Harm is likely to flow from disclosure of a
  specific document

15
Damaging Harm Test II

• In central/HKSAR relations, disclosure appears to
  be damaging if it causes damage to the area of
  government operation covered by the category.
• The only safe approach would be non-disclosure of
  almost all relevant information.

16
Damaging Harm Test III

• Lord Advocate v Scotsman Publications Ltd 1990
  1 AC 812 (necessary to show a strong likelihood
  that harm will arise and the nature of the harm
  must be specified)
• No further harm could generally be done if there
  is prior publication further undermining
  confidence in the government by further
  publication is insufficient to satisfy the harm
  test

17
Unauthorized Access

• What is unauthorized access? Note that there is
  no legal right of access to any official
  information
• A commits an offence by damaging disclosure of
  protected information he obtains from B if B
  obtains such information by unauthorized or
  illegal access. Why should A, who has no
  obligation of confidence, be liable to criminal
  prosecution?
• Chilling effect powerful disinfectant of
  publicity
• Right not to disclosure the source of information
  presumption of unauthorized access if access is
  not explained?

18
Defence I

• Need to prove
• Damaging disclosure
• Knowledge or reasonable cause to believe that the
  information is protected (category of prohibited
  information) and obtained by unauthorized and
  illegal means (cant turn a blind eye to it)
• Knowledge or reasonable cause to believe that
  the disclosure would be damaging
• No defence if one genuinely and honestly but not
  reasonably believes that the information is not
  protected or disclosure is not damaging (criminal
  liability on objective mens rea)

19
Defence II

• No public interest defence
• R v Shayler 2002 2 WLR 754
• No prior publication defence

20
Amendments on 8 July 2003

• A limited form of public interest defence
  limiting to s 18 only.
• Disclosure revealing any unlawful activity abuse
  of power, serious neglect of duty or other
  serious misconduct by any public officials
• Integrity? Fitness for office short of
  miscconduct? Mismanagement? ExCo paper (film
  censorship event?) Public authority? Information
  not directing to any particular official?

21
Amendments on 8 July 2003 II

• Disclosure revealing a serious threat to public
  order, public security or the health or safety of
  the public
• Disclosure does not exceed the extent that is
  necessary for revealing the matter (how could a
  journalist judge?
• Having regard to all the circumstances, the
  public interest served by the disclosure
  outweighs the public interest served by not
  making that disclosure

22
Proposals I

• Protected information should be defined by
  content and not by source
• Damaging disclosure should require proof of a
  strong likelihood of specified harm or clear and
  present danger of harm
• Once information has been made generally
  available, by whatever means, whether lawful or
  not, no further justification to prohibit
  disclosure from the public

23
Proposals II

• Introduce a defence of public interest no
  offence if the public interest in knowing the
  information outweighs the harm from disclosure
• Clearly define unauthorized access and confine it
  to the hacker situation
• Protection of national security should not be
  used as a reason to compel a journalist to reveal
  a confidential source

24
Proposals III

• Subjective mens rea be required so that it would
  be a defence if one honestly believes the
  information is not protected or its disclosure is
  in the public interest and the information is
  lawfully acquired.
• All offences should be prosecuted within 6 months
• Jury trial be required (right to choose)
• Access to Official Information Ordinance?

25
Where do we go from here?

• Crisis after crisis
• Election year
• Economy on the recovery
• Political reform/election of CE wider agenda
  being pursued?

26
R v Shalyer 2002 3 WLR 754, per Lord Bingham,
at para 21

• Modern democratic government means government of
  the people by the people for the people. But
  there can be no government by the people if they
  are ignorant of the issues to be resolved, the
  arguments for and against different solutions and
  the facts underlying those arguments. The
  business of government is not an activity about
  which only those professionally engaged are
  entitled to receive information and express
  opinions. It is, or should be, a participatory
  process. But there can be no assurance that
  government is carried out for the people unless
  the facts are made known, the issues publicly
  ventilated.

27
R v Shalyer 2002 3 WLR 754, per Lord Bingham,
at para 21

• Sometimes, inevitably, those involved in the
  conduct of government, as in any other walk of
  life, are guilty of error, incompetence,
  misbehaviour, dereliction of duty, even
  dishonesty and malpractice. Those concerned may
  very strongly wish that the facts relating to
  such matters are not made public. Publicity may
  reflect discredit on them or their predecessors.
  It may embarrass the authorities. It may impede
  the process of administration. Experience
  however shows, in this country and elsewhere,
  that publicity is a power disinfectant. Where
  abuses are exposed, they can be remedied. Even
  where abuses have already been remedied, the
  public may be entitled to know that they
  occurred. The role of the press in exposing
  abuses and miscarriages of justice has been a
  potent and honourable one. But the press cannot
  expose that of which it is denied knowledge.