The arrest in March of a parliamentary researcher and a second man accused of spying for China is a last gasp of the 1911 Official Secrets Act, an archaic and poorly drafted piece of legislation that has nevertheless been the cornerstone of the criminalisation of espionage for more than a century.
Drafted at a time of rising public concern about a possible German seaborne invasion of Britain, section one of the 1911 act refers to sketches, plans and “any secret official code word” and talks only of enemies – the language of war – to whom potentially useful information should not be passed.
It had been obvious for some time, and not just in intelligence circles, that the legislation needed updating – and it was supplemented by the National Security Act in July. But prior to that, when the duo were quietly arrested, only the old legislation applied, meaning that any prosecution may have to rely on it.
Former intelligence insiders describe the 1911 act as “notoriously flaky” and say police and prosecutors are reluctant to use it if alternatives are available. But it remained the core legislation to deal with general offences of espionage, despite the fact section one only refers to spying in its title, not the wording.
Partly for these reasons, Official Secrets Act prosecutions have historically been rare – “fewer than one a year”, according to a review written in 2017, although the other reason is that espionage cases can be so politically loaded that juries have been reluctant to convict, or a full trial simply too controversial for the state to bear.
The Official Secrets Action against Katharine Gun, a translator working for GCHQ, collapsed dramatically in 2004 when her lawyers had threatened to use her case to put the legal basis of the Iraq war itself on trial. Gun had leaked to the Observer a dirty tricks memo, a request to obtain information on the voting intention of UN security council members to “give the US an edge” in generating support for the invasion.
Nearly two decades earlier, in 1985, a jury sensationally acquitted the civil servant Clive Ponting, who had sent documents about the sinking of the Argentine ship the General Belgrano during the Falklands War to a Labour MP, demonstrating it was not sailing towards an exclusion zone as the Thatcher government had maintained.
Ponting argued disclosure was in the public interest, a defence the trial judge insisted did not exist in law, but one with which the civilians judging the case agreed.
Alex Bailin KC, a barrister specialising in official secrets cases at Matrix Chambers, said as a result “cases picked for prosecution tend to be pretty strong. The last thing the security services want is to pick a borderline case, like Gun’s, and risk public embarrassment or something similar.”
A review of recent cases by Bailin records two convictions in a little over a decade. Simon Finch, a defence contractor, admitted in 2020 that he had emailed details of a top secret missile system to eight people, including an MP, saying he had become disillusioned with the British authorities for failing to investigate homophobic attacks he had reported. He was sentenced to eight years.
A Royal Navy submariner, Edward Devenney, angry that his career had stalled, tried to pass secrets of the movements of Trident-bearing nuclear submarines to the Russians in late 2011 and 2012, but in fact was dealing with MI5 agents. Pleading guilty to section one offences, he was jailed by an Old Bailey judge for eight years.
The parliamentary researcher, who the Guardian is not naming for legal reasons, insists he is “completely innocent” and complained of “extravagant news reporting”. The next step in his case is when he reports in person to police on his bail date in early October, more than six months after his original arrest.
If there is a decision to charge him, as with all official secrets cases, the decision will rest, ultimately, with a politician: the attorney general, Victoria Prentis.
