Official Secrets Act.

The Official Secrets Act: Unauthorised Disclosure of Government Information.

The Official Secrets Act 1989 protects certain types of sensitive government information from unauthorised disclosure. It applies mainly to current and former Crown servants, members of the security and intelligence services and government contractors.

In some circumstances, it can also apply to another person who receives protected information and passes it on without lawful authority.

The Act does not make every government document secret and does not mean that every unauthorised disclosure is automatically a criminal offence. The prosecution must establish the particular requirements of the relevant section.

Which Official Secrets Acts Are Still in Force?

The Official Secrets Acts 1911, 1920 and 1939 previously contained many of the UK's espionage offences. They were repealed when the National Security Act 2023 came into force.

The Official Secrets Act 1989 remains in force. Its main purpose is to control the unauthorised disclosure of specified categories of official information.

The National Security Act 2023 now separately covers matters including:

• Obtaining or disclosing protected information for or on behalf of a foreign power
• Obtaining or disclosing trade secrets for a foreign power
• Assisting a foreign intelligence service
• Sabotage connected with a foreign power
• Foreign interference
• Harmful activity at prohibited places

The correct legislation therefore depends on whether the allegation concerns an official leak, espionage, a foreign power or another form of hostile-state activity.

Who Is Covered by the Official Secrets Act 1989?

The Act applies particularly to people who are or have been:

• Civil servants
• Government ministers
• Members of the Armed Forces
• Police officers in specified circumstances
• Members of the security and intelligence services
• People formally notified that special secrecy provisions apply to them
• Government contractors and their employees

Former employees and contractors can remain subject to the Act after their employment or contract has ended. Leaving government service does not create a right to disclose information obtained during that service.

Do You Have to Sign the Official Secrets Act?

People are often asked to sign a declaration confirming that they understand their obligations, but the declaration is not what creates the law.

A person who falls within the Act can be bound by it whether or not they remember signing a form. Signing normally records that the obligations have been explained.

What Information Is Protected?

Security and Intelligence

The Act protects information, documents and other material relating to security or intelligence.

Members of the security and intelligence services, and people formally notified under the Act, are subject to particularly strict rules. An unauthorised disclosure of security or intelligence information by such a person can be an offence without the prosecution having to prove the same form of damage required in many other cases.

For other Crown servants and government contractors, the prosecution will generally need to establish that the disclosure was damaging within the meaning of the Act.

Defence

Protected defence information can include material concerning:

• The Armed Forces
• Military equipment
• Defence policy and strategy
• Military planning and intelligence
• Defence installations
• Plans for essential supplies and services in wartime

An unauthorised disclosure is not necessarily criminal merely because the document carries a security marking. The prosecution must prove the legal requirements of the offence, including damage where required.

International Relations

The Act protects specified information relating to the United Kingdom's international relations.

This can include confidential information received from another country or an international organisation. A damaging disclosure may affect diplomatic relations, international cooperation, negotiations or the protection of UK interests abroad.

Crime and Special Investigation Powers

It may be an offence for a Crown servant or government contractor to make an unauthorised disclosure of information that is likely to:

• Result in the commission of an offence
• Assist someone to escape legal custody
• Prevent or obstruct the prevention or detection of crime
• Impede an investigation
• Reveal information obtained through specified investigatory powers

This could include warning a suspect about an impending search or revealing confidential methods used by investigators.

What Is an Unauthorised Disclosure?

A disclosure can include communicating information verbally, in writing or electronically. It may involve:

• Giving documents to another person
• Sending emails or messages
• Posting information online
• Providing photographs or copies
• Discussing information during an interview
• Allowing someone to inspect protected material
• Publishing information through the media

A disclosure is made with lawful authority where it is made in accordance with the person's official duties or has been properly authorised.

An employee cannot usually authorise themselves to disclose information simply because they believe publication would be beneficial.

What Does "Damaging" Mean?

For many offences under the Act, the prosecution must prove that the disclosure was damaging as legally defined.

The meaning varies according to the category of information. Damage may include:

• Harm to the work of the security or intelligence services
• Prejudice to the capability of the Armed Forces
• Loss of life or injury to service personnel
• Serious obstruction of military operations
• Damage to UK interests abroad
• Serious obstruction of international relations
• Assisting crime or interfering with an investigation

In some cases, it may be sufficient that the information was of a type likely to cause the relevant harm. The prosecution may not have to establish that the feared consequence actually occurred.

Can a Journalist or Member of the Public Commit an Offence?

The Official Secrets Act is not limited entirely to government employees.

A person may commit an offence by making a further disclosure of protected information where:

• The information resulted from an earlier unauthorised disclosure
• It was entrusted to that person in confidence by a Crown servant or government contractor
• The further disclosure was made without lawful authority
• The relevant damage requirements are satisfied
• The person knew, or had reasonable cause to believe, that the information was protected and that disclosure would be damaging

This means journalists, publishers and other recipients of leaked information can potentially fall within the Act. However, criminal liability is not established merely because someone receives or reports information described as confidential.

The prosecution must prove each element of the particular offence. Prosecutions require the consent specified by the Act.

Is There a Public-Interest Defence?

The Official Secrets Act 1989 does not contain a general defence allowing an unauthorised disclosure merely because the defendant believed that publication was in the public interest.

This is controversial because a disclosure could expose alleged wrongdoing, misconduct or danger while still falling within the wording of the Act.

A person's motives and the public interest may be relevant to decisions about investigation, prosecution and sentence. Still, they do not automatically provide a legal defence.

Employees handling sensitive material should use authorised reporting procedures where possible. These may include:

• Internal whistleblowing arrangements
• A departmental security officer
• A prescribed regulator
• The Civil Service Commission where applicable
• An inspector or oversight body
• Legal advice from a solicitor with appropriate experience

The ordinary whistleblowing protections available under employment law do not give employees a general right to disclose classified information publicly.

Can Classified Information Be Disclosed to a Solicitor?

Anyone subject to secrecy obligations should take care before providing protected information to a legal adviser.

Legal advice may be essential, but the method by which information is shared can matter. A person should contact a solicitor experienced in national security law and explain that the matter may involve classified material before sending documents or detailed information.

Copying, downloading or removing documents for the purpose of seeking advice can itself create legal and security issues.

What About Lost Documents and Poor Security?

The Act also contains offences relating to the safeguarding of protected information.

A Crown servant, government contractor or other person entrusted with protected material may commit an offence by failing to take reasonable care of it where that failure results in unauthorised disclosure.

Examples could include:

• Leaving documents in a public place
• Using an unauthorised personal email account
• Losing an unencrypted device
• Allowing an unauthorised person to access files
• Failing to return official documents when required
• Keeping protected material after authority to hold it has ended

Depending on the facts, the same conduct may also breach employment duties, data protection law, security policies or other criminal legislation.

Does the Act Apply Outside the UK?

The Official Secrets Act has provisions allowing it to apply to certain conduct committed outside the United Kingdom.

Its overseas reach depends on factors including the person's nationality, status and the section under which the allegation is made.

British Crown servants and government contractors should not assume that disclosing information while abroad avoids UK law.

How Are Official Secrets Act Allegations Investigated?

An investigation may begin following:

• The publication of leaked information
• A report from a government department
• An internal security investigation
• Monitoring of official systems
• The loss of documents or equipment
• Information received from an intelligence or law-enforcement agency

Investigators may examine:

• Access logs showing who opened a document
• Email and messaging records
• Download and printing histories
• Telephone and communications data
• Security-clearance records
• Entry and exit records
• Computers, phones and storage devices
• Witness accounts
• Contacts between a suspected source and recipient

The investigation may seek to establish who had access to the information, who communicated it, what the recipient knew and what harm the disclosure caused or was likely to cause.

Search, Arrest and Interview

Depending on the suspected offence and available evidence, the police may use statutory powers to arrest a suspect, search premises and seize devices or documents.

A person interviewed under caution has the right to legal advice. National security investigations can involve complex issues concerning classified evidence, disclosure, and closed material, so specialist representation should be sought immediately.

Who Decides Whether to Prosecute?

Proceedings for substantive disclosure offences under the Official Secrets Act require the consent of the Attorney General or, in Northern Ireland, the Advocate General for Northern Ireland.

This requirement is additional to the usual assessment of whether there is sufficient evidence and whether prosecution is in the public interest.

What Are the Penalties?

Most substantive disclosure offences under the Official Secrets Act 1989 carry a maximum sentence of two years' imprisonment, a fine or both following conviction on indictment.

Less serious offences involving the safeguarding, return or handling of documents may be dealt with summarily and carry lower maximum penalties.

The sentence in an individual case will depend on matters including:

• The sensitivity of the information
• The actual or potential harm caused
• Whether disclosure was deliberate
• The defendant's position and level of trust
• The intended recipient
• Whether money or another benefit was received
• The scale and duration of the conduct
• Any attempt to conceal or destroy evidence

Conduct amounting to modern espionage or assistance to a foreign power may instead be prosecuted under the National Security Act 2023, which provides substantially higher maximum sentences for its most serious offences.

The National Security Act 2023

The National Security Act modernised the law dealing with espionage and hostile activity by foreign states. It replaced the Official Secrets Acts 1911, 1920 and 1939 but did not repeal the Official Secrets Act 1989.

Obtaining or Disclosing Protected Information

A person may commit an offence by obtaining, copying, recording, retaining or disclosing protected information where the statutory foreign-power and prejudice requirements are met.

This offence is aimed at espionage and conduct intended to benefit a foreign power rather than an ordinary workplace leak.

Trade Secrets

The Act creates an offence concerning the unauthorised obtaining or disclosure of a UK trade secret for, on behalf of or with the intention of benefiting a foreign power.

Assisting a Foreign Intelligence Service

It can be an offence to engage in conduct intended materially to assist a foreign intelligence service in activities connected with the UK.

Contact with a foreign organisation is not automatically criminal. The detailed statutory conditions must be established.

What Should Employees Handling Official Information Do?

Anyone handling sensitive government material should:

• Access information only where there is a genuine need to know
• Follow the applicable classification and handling requirements
• Use authorised systems and devices
• Avoid forwarding material to personal accounts
• Check recipients before sending information
• Report lost devices or documents immediately
• Use authorised reporting channels for concerns
• Seek specialist legal advice before making an external disclosure

Information does not cease to be protected because it is politically embarrassing, appears inaccurate or concerns conduct with which the employee disagrees.

What Should You Do If You Are Accused of an Unauthorised Disclosure?

Obtain legal advice immediately. Do not delete messages, destroy documents or attempt to contact other people to coordinate accounts.

Preserve relevant evidence, including:

• Employment and security policies
• Authorisations to access or communicate information
• Emails and messages
• Records showing how the information was obtained
• Evidence of authorised reporting
• Details of who else had access

Do not discuss sensitive facts through unsecured communications or publish details of the investigation online.

Speak to a Criminal or National Security Solicitor

Official Secrets Act and National Security Act investigations can involve serious criminal allegations, extensive digital evidence and highly sensitive material.

A solicitor can advise on the precise offence, police powers, interview procedure, handling of classified information and whether the prosecution can establish unauthorised disclosure, damage, knowledge or a relevant foreign-power connection.

Disclaimer: Solicitors.com is not a firm of solicitors. Content on this site is provided for general information about UK law and is not legal advice. National security law is complex, and the legal position depends on the precise facts and statutory provisions involved. You should obtain advice from a regulated solicitor about your circumstances. Although we aim to keep information accurate and up to date, legislation and procedure can change. Use of this site does not establish a solicitor-client relationship.

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