Practice and Procedure


PUBLISHED July 31, 2003

During the conduct of a trial necessary and proportionate restrictions could be placed upon the conduct of the defence case and the identity of witnesses could be protected without the trial becoming unfair to the defendant.Renewed application for leave to appeal against conviction for offences against the Official Secrets Act 1989. The appellant contended that the conviction was unsafe because the trial was conducted in breach of Art.6 of the European Convention on Human Rights, because the cumulative restrictions imposed upon the defendant deprived the proceedings of the character of an adversarial criminal trial and/or unfairly discriminated against him because he had chosen to defend himself. The appellant was a member of the Security Services. At the beginning and at the end of his service he signed an Official Secrets Act 1989 declaration. In August 1997, without having alerted the security services the applicant wrote articles for a Sunday paper. On 23 August 1997 the applicant left the country and on the following day paper published a series of articles by him. On 30 August and 4 September 1997 injunctions against the applicant and the publishers of paper, preventing further disclosures, were granted. On 4 November 2002 in the Central Criminal Court the applicant was convicted of offences in breach of the Official Secrets Act 1989. The trial judge held a preparatory hearing during which he ruled that: (i) the defence of duress or necessity of circumstance was not open to the defendant, having been excluded by implication by the 1989 Act; nor (ii) could the defendant argue at common law or as a result of the coming into force of the Human Rights Act 1998 that his disclosures were necessary in the public interest. The House of Lords, in part upheld the trial judge's rulings (R v David Michael Shayler (2002) 2 WLR 754). On 20 September 2002 the Crown gave notice of an application made pursuant to s.8(4) Official Secrets Act 1920, s.11(4) of the 1989 Act and R.24A Crown Court Rules 1982 SI 1982/1109. The prosecution proposed that: (a) certain witnesses should give evidence from behind screens without being named; and (b) the defendant, if he wanted to raise certain matters in evidence, should give prior notice in writing to the Crown in relation to such matters. The judge considered the submissions he emphasised that if that openness was to be curtailed the judge had to be satisfied by the evidence adduced in support of the application that the departure from open justice was justified in the interests of the administration of justice. The judge was satisfied that to disclose the identity of the witnesses would give rise to "a real risk to the safety of those individuals". However, as the judge noted, the applicant maintained his stance that there were matters about which he wanted to cross-examine that did not touch on the simple issue that the jury would have to decide, whether it was he who disclosed the matters to which the indictment referred.HELD: (1) The judge was careful to evaluate and to give weight to any possible prejudice, and cross-examination by the applicant was only restricted in accordance with well established principle and to the extent that it would have been restricted if the applicant had been represented by counsel. (2) There was no reason to conclude that the judge failed to have regard to the cumulative effect of his decisions, and the contention that the regime which he imposed was disproportionate was rejected. (3) The court was satisfied that no unfairness resulted in the instant case.Application for leave to appeal dismissed.

[2003] EWCA Crim 2218