Keogh v R.

The appellant is charged with breach of sections 2 and 3 of the Official Secrets Act 1989 (‘the Act’). On 15 December 2006 Aikens J gave rulings on a number of issues of law that had been canvassed in a Preliminary Hearing. The appellant appeals to this court, with permission granted by the judge, in relation to his ruling on one of those issues. That issue is this. Sections 2 and 3 of the Act, on their natural meaning, each reverse the legal burden of proof in respect of the mental element of the offence. Is this reversal compatible with Article 6 of the European Convention on Human Rights (‘Article 6’)? The judge held that it is. If it is not, then it is common ground that the meaning of the sections can and should be ‘read down’ so as to treat the burden of proof that they impose on a defendant as no more than an evidential burden. Where, in this judgment, we use the phrase ‘burden of proof’ we shall use it as meaning the legal burden of proof.

To set the issue in a factual context we will very shortly state the nature of the case made against the appellant. In April and May 2004 the appellant was a Crown servant, employed in the communications centre in Whitehall. He acquired possession of a highly confidential record in the form of a letter of a meeting on 16 April 2004 between the Prime Minister and the President of the United States. The meeting was primarily concerned with UK and US policy in Iraq. The discussions concerned current political, diplomatic and defence issues of a highly sensitive nature. For obvious reasons we propose to say no more about the contents of the letter than that. The appellant photocopied the letter and showed it to Mr O’Connor, who is a co-defendant of the appellant, charged with breach of section 5 of the Act. Mr O’Connor was employed as a political researcher to Mr Anthony Clarke, who was then the Labour Member of Parliament for Northampton South and a strong opponent of the Iraq war. Mr O’Connor placed the photocopy in Mr Clarke’s papers. Mr Clarke discovered it on 28 May 2004. He reported this to No 10 Downing Street and the photocopy was delivered to the Metropolitan Police on the following day.

We shall follow the example of the judge in setting out the relevant provisions of the Act, which are both lengthy and complex:

Defence cases have been served. These suggest that there is unlikely to be any dispute as to the potential consequences if the contents of the letter had come into the public domain. The basic issue is likely to be whether those consequences would have been ‘damaging’, as defined by the Act. In setting out to prove that the disclosure by each of the defendants was damaging, the prosecution will rely on the consequences that could naturally be expected to follow the disclosure of the letter. On the facts as they now appear, provided that the prosecution discharges the burden of proving that the disclosure was damaging they are likely, incidentally, to satisfy the jury that each of the defendants knew or had reasonable cause to believe that disclosure of the information would be damaging.

The duty of the court to read and give effect to primary legislation in a way which is compatible with the rights set out in the ECHR is set out in section 3 of the Human Rights Act 1998. That provides:

“(1)

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention Rights.

(2)

This section-

(a)

applies to primary legislation and subordinate legislation whenever enacted…”

To require a defendant to prove anything, whether positive or negative, in order to prove that he is not guilty of a crime might, on the face of it, appear to conflict with the presumption of innocence required by Article 6. To interpret Article 6 in this way would, however, conflict in some areas with the requirements of an effective criminal law and the Strasbourg Court has not so interpreted the Article. We do not propose to embark on our own analysis of the Strasbourg authorities to see in what circumstances a reverse burden of proof is compatible with Article 6, for that task has already been undertaken by the House of Lords and it is to the House that this court should look for guidance, as did Aikens J. We propose to consider the same three decisions that he considered: R v Lambert [2002] 2 AC 545; R v Johnstone [2003] 1 WLR 1736 and Sheldrake v DPP [2004] UKHL 43; [2005] 1 AC 264.

In Lambert the House of Lords considered whether it would be compatible with Article 6(2) to interpret provisions of the Misuse of Drugs Act 1971 as imposing on a defendant the burden of proving that he was unaware that the contents of a bag in his possession were prohibited drugs. They decided that it would not. What is significant for present purposes is that all members of the House expressed the view that the presumption of innocence required by Article 6(2) was not absolute but that a departure from that presumption must be justifiable. The House derived support for this view from the decision of the Strasbourg court in Salabiaku v France (1988) EHRR 379. Lord Steyn commented at paragraph 34:

“a legislative interference with the presumption of innocence requires justification and must not be greater than necessary. The principle of proportionality must be observed.”

Lord Hope of Craighead observed at paragraph 88:

“as the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification of the right pursues a legitimate aim and whether it satisfies the principle of proportionality…It is now well settled that the principle which is to be applied requires a balance to be struck between the general interests of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute”

Lord Clyde at paragraph 150 and Lord Hutton at paragraph 186 expressed similar views. Lord Slynn at paragraph 17 inferentially agreed that Article 6(2) was qualified and that a test of proportionality had to be applied to any departure from its requirement.

In Johnstone the House of Lords held that a reverse burden of proof imposed by Article 9(2) of the Trade Marks Act 1994 was compatible with Article 6(2). In the leading speech Lord Nicholls of Birkenhead, after citing Salabiaku, observed at paragraph 47 that the derogation from the presumption of innocence required justification. He continued at paragraph 50:

“A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4^th) 481, 493. This consequence of a reverse burden of proof should colour one’s approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.”

In SheldrakeLord Bingham of Cornhill reviewed both the Strasbourg and the domestic authorities and summarised their effect at paragraph 21 as follows:

“From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

The essential effect of the authorities is summarised by Lord Bingham at paragraph 31:

“The task of the court is never to decide whether a reverse burden should be placed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence.”

After citing from the relevant authorities, Aikens J turned to consider the objects of the 1989 Act. He concluded that the overall purpose of the Act was to make it an offence to give unauthorised disclosure of information concerning the state’s security, intelligence, defence and international relations and that the object of sections 2 and 3 was to make it an offence for Crown servants (and contractors) to give unauthorised disclosure of information of a certain nature when the disclosure was damaging (paragraph 85)

The judge concluded that sections 2 and 3 created offences of ‘strict liability’, save that the prosecution had to prove intentional disclosure. To these offences there were statutory defences which did impose a ‘reverse burden of proof’. Because these defences were closely linked with the state of the defendant’s mind and with the moral blameworthiness of his actions, they infringed the presumption of innocence. He concluded that this was justifiable for the following reasons:

“98…

(7)

However, it is legitimate and proportionate for Parliament to impose on the defendants a legal, persuasive burden to prove both his lack of knowledge as to the nature of the document and the effect of its unauthorised disclosure and also his lack of belief as to its nature and the effect of its unauthorised disclosure. There is “moral blameworthiness” in a Crown servant intentionally disclosing without authority a document which in fact relates to defence, or international relations or is from another state, when the disclosure is, in fact, “damaging”. This is so even if there is doubt as to whether the Crown servant knows the nature of the document or doubt as to whether he knows or believes its unauthorised disclosure would be damaging. That is because the state cannot take chances with the unauthorised disclosure of documents covered by sections 2 and 3. Moreover, a responsible Crown servant should and would, before he intentionally makes an unauthorised disclosure, consider the nature of the document he is about to disclose and whether its unauthorised disclosure would be damaging. Therefore it is reasonable that he should have to prove his state of mind when he intentionally disclosed the document without authority to show that he was not acting irresponsibly and he is not ‘morally blameworthy’.

(8)

If the position were otherwise, then it would be easy for a maverick Crown servant to make unauthorised disclosure of documents covered by sections 2 and 3 and assert he had not committed an offence. Taking an offence under section 2, he would simply need to assert, in evidence, “I did not know or believe the document I disclosed without authority related to defence; nor did I know or believe that its disclosure would be damaging.”. It would then be for the prosecution to disprove, beyond reasonable doubt, that this was not the state of mind of the defendant when he made the unauthorised disclosure. That would be a very difficult task indeed.”

The judge described the nature of the burden of proof on the defendant as follows:

“ 94. But in order to establish his defence under section 2(3), a defendant must also prove (on a balance of probabilities) that he “had no reasonable cause to believe that the [document]…would be damaging [as defined]”. That means that he must show that he did not, in fact, believe, that unauthorised disclosure would be damaging. To do that it seems to me that the defendant would have to show one of two things. First, that he had considered all the ways that an unauthorised disclosure might be damaging, within the statutory definition. Having considered them he had come to the conclusion, or belief, that disclosure would not be damaging (in any of the defined senses) and also that it was not likely it would be damaging. Therefore he had “reasonable cause to believe” that the disclosure would not be damaging in the defined sense. Secondly, he had relied on someone else’s assessment of whether an unauthorised disclosure was or was likely to be damaging; on the basis of what he was told, he believed that it would not be damaging (within the definition).”

95.

I accept Mr Ellison’s point that Crown servants can be expected to have some knowledge of the possible consequences of unauthorised disclosure of documents. But the wording of section 2(3), taken literally, would (in one situation at least) require the defendant to prove a high level of thought and consideration before he can establish his defence under this section. The defendant may well not have ready access to information that would enable him to conclude: “having considered all reasonable possibilities, I believe that disclosure of this document relating to defence would not be damaging; nor would it be likely to be so”.

Mr Tedd QC for the appellant submitted that the offences under sections 2 and 3 were made up of both the acts of disclosure and the mental element that the defendant had to disprove. The gravamen of the offence lay, not so much in disclosing the information, but in doing so when knowing or having reasonable cause to believe that it would be damaging. He submitted that the reverse burden imposed on the defendant was arduous, relying on the judge’s description of this burden that we have set out in the previous paragraph. There was no justification for imposing this burden on the defendant when all the relevant facts were more readily accessible to the prosecution than to the defendant.

Mr Perry QC, for the Crown, submitted that the gravamen of the offence lay in the intentional and damaging disclosure without lawful authority of a document relating to defence or international relations. Subject to this, the offences might be described as offences of strict liability. Such disclosure involved a high degree of moral blameworthiness, even if the servant was in doubt as to the nature of the document disclosed or as to whether it would be damaging. An intentional unauthorised disclosure would constitute, and would be known to constitute, a grave breach of trust. Moreover, a Crown servant could be expected to know the nature of the document he handled, the potential consequences of its disclosure or that he might not be equipped to understand these and that the damage caused might be irreparable. In such circumstances it was justifiable to place on the defendant the burden of proving that he was not blameworthy.

Mr Perry added that, if the legal burden of proof was imposed on the prosecution, they would have difficulty in disproving, beyond reasonable doubt, an assertion by the defendant that he did not know or have reasonable cause to believe that the document disclosed was of a particular nature or would be damaging.

Assuming intentional disclosure, the question is whether section 2 and section 3 offences are committed regardless of any other aspect of the defendant’s state of mind. Manifestly they are not. In reality the offence will not be committed if the defendant did not know or have reasonable cause to believe in the existence of the ingredients of the offence as defined in sections 2(3) and 3(4) respectively. In practice therefore the analysis of the defendant’s alleged criminality requires attention to be given to his state of mind at the moment when the intentional disclosure took place. In the words of sections 2(3) and 3(4) his knowledge, or whether he has reasonable cause to believe the features identified in these sections, will almost inevitably, or at least very often, be in issue. Yet sections 2(3) and 3(4) place the burden on the defendant of proving lack of knowledge or absence of reasonable cause to believe.

Thus, if the construction for which Mr Perry contends were correct, the defendant would be required to disprove a substantial ingredient of the offence. It is plain that this would constitute a significant infringement of the presumption of innocence. It would not be fanciful to conceive of a situation in which the jury, conscientiously following judicial directions crafted in accordance with Mr Perry’s submissions, would find a defendant guilty of an offence under section 2 despite entertaining reasonable doubt as to whether the defendant knew or had reasonable cause to believe that the document in question related to defence, or that its disclosure would be damaging. The same considerations apply in relation to a charge based on an alleged infringement of section 3.

There are two matters that support our conclusion that the offence includes the mental element that the defendant is required to disprove. The first is the manner in which the Act deals with those who are not Crown servants or government contractors, whom we will call ‘outsiders’. Section 5 of the Act creates an offence in circumstances where damaging disclosure is made by an outsider. In that section, knowledge of the material elements of the offence, or reasonable cause to believe that they exist, is unquestionably made an ingredient of the offence. The difference between sections 2 and 3 and section 5 is that, in the case of section 5, the burden is plainly on the prosecution to prove that there was knowledge of, or reasonable cause to believe in, the existence of the other ingredients of the offence.

The other matter that supports our conclusion is the following passage in the White Paper, 1988 Cm 408, on Reform of Section 2 of the Official Secrets Act 1911, which deals with the mischief that the provisions with which we are concerned was enacted to address.

“55.

However, although the justification for applying the criminal law in this area is the harm that disclosure may cause, it would not be right to make disclosure criminal except where the discloser knows or can reasonably be expected to know that the disclosure would be likely to cause harm.”

This makes it plain that there was no intention to make disclosure criminal unless the discloser knew, or could reasonably be expected to know, that the disclosure would cause harm.

The White Paper goes on to attempt to justify reversing the burden of proof of the mental element of the offence in the case of Crown servants and government contractors. On analysis this is essentially that a Crown servant or government contractor can be expected to appreciate the consequences of disclosure and that it is reasonable to expect him to demonstrate that this was not the case. This is not enough to provide an affirmative answer to the question that the court has to consider, as identified by Lord Bingham in the passage set out at paragraph 12 above.

Aikens J, in paragraphs 94 and 95 of his judgment, held that in order to prove that he had ‘no reasonable cause to believe’ that disclosure would be damaging, as defined, a defendant would have to show that he had considered all reasonable possibilities of damage, obtained information in relation to them, and satisfied himself that disclosure would not be damaging. In short he equated having no reasonable cause to believe that disclosure would be damaging with having reasonable cause to believe that disclosure would not be damaging. We question this reasoning and Mr Perry did not seek to support it. We do not consider that sections 2(3) and 3(4) require the Crown servant or government contractor to do more than show that there was nothing he knew or should have been aware of in the course of his duties and service to the Crown that should have alerted him to the likelihood that disclosure would be damaging. The question is whether it was justifiable to impose this burden on him.

It seems to us that the most critical question is whether the reverse burden of proof is a necessary element in the effective operation of sections 2 and 3. If it is not, we cannot see how placing such a burden on the defendant can be justified. Is it practicable to require the prosecution to prove that the defendant knew or had reasonable cause to know of the nature of the information and of the fact that disclosure was likely to be damaging? To answer this question it is necessary to consider how the two sections will operate in practice.

The starting point is that the prosecution have the burden of proving that the material disclosed related to defence or international relations and that its disclosure was ‘damaging’, which by definition includes ‘likely to be damaging’. In many cases, of which this may be one, the prosecution will seek to do this by relying on natural inferences to be drawn from the subject matter disclosed itself. In those circumstances they will, as we have already remarked, probably prove at the same time that the defendant knew or ought to have known the nature of the information and the fact that it was likely to be damaging.

There may be other cases where the prosecution have to rely upon extrinsic facts to establish the nature of the information or that its disclosure was likely to be damaging. In those circumstances the prosecution will have to establish the facts in question. Can they then be expected to prove that the defendant had the necessary mens rea? If the mental element to be proved were simply ‘knowledge’ of the material facts we can see that in some circumstances this might present a problem, although in most cases we would expect the prosecution to be able to show, if such was the case, that the defendant had knowledge of the facts. In this context, the comment of Lord Bingham in Kebilene at page 345 is apposite:

“Whenever a criminal intention is an essential ingredient of a crime the defendant is better placed to prove his intention that anyone else, but this does not relieve the prosecution of the need to prove criminal intention against him in the overwhelming majority of cases”

The prosecution will have, however, an easier task than proving knowledge. It will suffice to prove that the defendant had ‘reasonable cause to believe’ that the information had the relevant characteristics and that its disclosure would be likely to be damaging. That is a question of objective fact that does not depend upon the subjective knowledge of the defendant. The prosecution will have access to details of the defendant’s service as a Crown servant or government contractor. We consider that this should enable the prosecution to prove that the defendant had reasonable cause to appreciate the relevant facts, where this is the case.

Looking at the matter from a practical viewpoint, even if the defendant were under a burden to show that he had no reasonable cause to believe that information related to defence or to international relations, or that its disclosure was likely to be damaging, one would expect the prosecution to advance a positive case in relation to these. The same is true if an evidential burden lies on the defendant. It would completely unbalance the trial if the prosecution were to wait to until the defendant had given evidence before advancing a positive case in relation to the defendant’s mens rea. Procedurally, the trial is likely to proceed as if the burden of proof of mens rea lies from the outset upon the prosecution.

There are two further points. The first is that the prosecution undoubtedly have the burden of proving a similar mens rea in the case of section 5. It seems to us that this is likely to confront them with a more difficult task that when the defendant is a Crown servant or government contractor.

The second point is that the Terrorism Act 2000 contains a number of sections that appear to reverse the burden of proof. When drafted they were intended to do so. As a result of comments of the Court of Appeal and the House of Lords in Kebiline as to the effect of the Human Rights Act on the reverse burden provision in that case, the following clause was added to that Act:

“118 –(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.

(2)

If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”

Mr Tedd argued, with some reason, that if the prosecution could discharge the burden of proof in respect of the matters covered by the sections to which section 118 (5) referred, it was not easy to see why they could not do the same in respect of the offences with which this court is concerned.

For these reasons, we have concluded that the Act can operate effectively without the imposition of the reverse burdens that sections 2(3) and 3(4) of the Act would impose according to their natural meaning. To accord them that meaning would be disproportionate and unjustifiable. Because those subsections, if given their natural meaning, are incompatible with Article 6 of the Convention, they should be ‘read down’ by applying a similar interpretation to that achieved by section 118 of the Terrorism Act 2000. The appeal is allowed on that basis.