| CRIME — Official secrets — Damaging disclosure — Lack of knowledge or reasonable belief that disclosure relating to defence or international relations and damaging — Whether reverse legal burden of proof compatible with presumption of innocence — Whether to be read down as imposing evidential burden only — Official Secrets Act 1989, ss 2, 3 — Human Rights Act 1998, Sch 1, Pt I, art 6(2)
R v Keogh
CA: Lord Phillips of Worth Matravers CJ, Sir Igor Judge P and David Clarke J: 7 March 2007
The reverse legal burden of proof in ss 2 and 3 of the Official Secrets Act 1989, which required a defendant to prove that he did not know and had no reasonable cause to believe that his disclosure related to defence or international relations or that it would be damaging, was incompatible with the presumption of innocence and should be read down so as to impose an evidential burden only.
The Court of Appeal, Criminal Division so held in allowing an interlocutory appeal by a defendant, David Keogh, pursuant to s 35(1) of the Criminal Procedure and Investigations Act 1996, against a ruling made by Aikens J on 15 December 2006 at the Central Criminal Court that the reverse legal burden of proof in ss 2 and 3 of the Official Secrets Act 1989 was not incompatible with the presumption of innocence guaranteed by art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The defendant was charged as a Crown servant under s 2(1) of the 1989 Act with making a damaging disclosure of a document relating to defence without lawful authority and under s 3(1) with making a damaging disclosure of a document relating to international relations without lawful authority.
Under ss 2(3) and 3(4), it was a defence to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the document in question related to defence or international relations or that its disclosure would be damaging.
LORD PHILLIPS CJ, giving the judgment of the court, said that, assuming intentional disclosure, the question was whether ss 2 and 3 offences were committed regardless of any other aspect of the defendant’s state of mind. Manifestly they were not. In reality the offences would 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 ss 2(3) and 3(4) respectively. In practice therefore the analysis of the defendant’s alleged criminality required attention to be given to his state of mind at the moment when the intentional disclosure took place. Yet ss 2(3) and 3(4) placed the burden on the defendant of proving lack of knowledge or absence of reasonable cause to believe. Thus the defendant would be required to disprove a substantial ingredient of the offence. That would constitute a significant infringement of the presumption of innocence. The question was whether the reverse burden of proof was a necessary element in the effective operation of ss 2 and 3. If it was not, placing such a burden on the defendant could not be justified. The prosecution had the burden of proving that the material disclosed related to defence or international relations and that its disclosure was “damaging”, which by definition included “likely to be damaging”. In many cases, the prosecution would seek to do that by relying on natural inferences to be drawn from the subject matter disclosed itself. In those circumstances they would 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 might be other cases where the prosecution had 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 would have to establish the facts in question. Could they then be expected to prove that the defendant had the necessary mens rea? The prosecution would have an easier task than proving knowledge. It would 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 was a question of objective fact that did not depend upon the subjective knowledge of the defendant. The prosecution would have access to details of the defendant’s service as a Crown servant. That should enable the prosecution to prove that the defendant had reasonable cause to appreciate the relevant facts, where that was the case. The Act could operate effectively without the imposition of the reverse burdens that ss 2(3) and 3(4) would impose according to their natural meaning. To accord them that meaning would be disproportionate and unjustifiable. They should be “read down” so as to treat the burden of proof that they imposed on a defendant as no more than an evidential burden.
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