ABSTRACT

Section 2 of the Official Secrets Act 1911 was repealed and replaced by the 1989 Act. Rather than the catch-all section 2 of the 1911 Act, the 1989 Act created offences directed to specific groups of people and information. In relation to most areas, the prosecution must prove both that the information has been unlawfully transmitted and that the disclosure of the information is ‘damaging’. The concept of ‘damaging disclosure’ has, however, not been incorporated into section 1 which relates to security and intelligence matters. With this exception, there is a presumption of harm built into the Act. A further exception relates to those who are not Crown servants or government contractors in relation to whom the prosecution will have to prove – in addition to the harm test – that the defendant knew or had good reason to know that the specific harm was likely to have been caused. In relation to such information, the disclosure in itself is an offence. There is no longer a defence of ‘public good’ which applied under section 2 of the 1911 Act.