Darroch cables: Fallon says press should be subject to Official Secrets Act

The foreign secretary, Jeremy Hunt, has defended the right of the press to publish leaked diplomatic dispatches sent by Sir Kim Darroch while he was the British ambassador to the US.

The Metropolitan police has launched a criminal investigation into the leak of messages, which were sent to the Mail on Sunday. The UK’s largest police force threatened the media with prosecution for publishing the dispatches, which critics say would flout press freedom.

George Osborne and other editors accused Scotland Yard of encroaching on press freedom. The inquiry by the Met counter-terrorism command, which is responsible for investigating breaches of the Official Secrets Act, was announced in a statement attributed to the assistant commissioner Neil Basu.

Hunt, who is running for leader of the Conservative party, wrote on Twitter: “These leaks damaged UK/US relations and cost a loyal ambassador his job, so the person responsible must be held fully to account. But I defend to the hilt the right of the press to publish those leaks if they receive them and judge them to be in the public interest: that is their job.”

Earlier, the former defence secretary Michael Fallon suggested journalists should be subject to the Official Secrets Act.

Speaking on BBC Radio 4’s Today programme on Saturday, Fallon welcomed the Met investigation, describing the leak as a “clear breach of the Official Secrets Act” and “damaging to diplomatic efforts”.

He added: “As soon as we find who did it, we should have them investigated and prosecuted.” Fallon said the advice to newspapers about not publishing the material was “quite logical”.

Who is liable for prosecution under the Official Secrets Act?

Most of the offences covered by the legislation affect crown servants and government contractors. Any unlawful disclosure relating to security or intelligence by a member of MI5, MI6 or GCHQ is an offence. Officials do not need to sign the act to be bound by its provisions. The maximum punishment for leaking documents is two years in prison or an unlimited fine.

What must be proven to convict a public servant?

An official is guilty of a crime if he or she ‘without lawful authority makes a damaging disclosure’ of information about international relations between states, defence, law enforcement, or which falls into a class of information likely to damage the security services’ work. Leaks are deemed to be damaging if, among other consequences, they ‘endanger the interests of the United Kingdom abroad’. There is a defence for any leaker that they released the material not knowing it would be damaging. 

How often do leaks result in a trial?

Prosecutions under the Official Secrets Act are rare. Recent cases have included that of the MI5 agent David Shayler in 2002. He was jailed for six months. In 2007, a Scotland Yard civilian employee, Thomas Lund-Lack, was sentenced to eight months for leaking information on planned al-Qaida operations in Britain to a Sunday Times journalist.

A number of cases have involved civil servants who mislaid sensitive information. At least one, Richard Jackson, a Cabinet Office official, was fined £2,500 under the act after he left classified papers relating to al-Qaida and Iraq on a train. 

Owen BowcottLegal affairs correspondent

He added: “If they are receiving stolen material then they should give it back to the rightful owner and should be aware of the huge damage done and potential greater damage by further breaches of the Official Secrets Act.”

Fallon was then asked by the presenter, John Humphrys, whether journalists should comply with the act. He responded: “I don’t think anyone can entirely absolve themselves of the need to avoid damage to this country.

“We have press freedom … but we also have laws. We have the Official Secrets Act and it is important that law is upheld.”

When news of the Met police inquiry broke, Osborne, the former chancellor and now editor of the Evening Standard, appeared to suggest the statement, which called for any leaked documents to be returned to the government, was written by a junior officer and showed a lack of understanding of press freedom.

The statement said: “The publication of leaked communications, knowing the damage they have caused or are likely to cause, may also be a criminal matter.

“I would advise all owners, editors and publishers of social and mainstream media not to publish leaked government documents that may already be in their possession, or which may be offered to them, and to turn them over to the police or give them back to their rightful owner, Her Majesty’s government.”

In the cables allegedly leaked to the Mail on Sunday, the UK’s outgoing ambassador to Washington, Sir Kim Darroch told his bosses in London that:

  • He did not believe the Trump administration would “become substantially more normal; less dysfunctional; less unpredictable; less faction riven; less diplomatically clumsy and inept”.
  • Trump may have been indebted to “dodgy Russians”.
  • There were bitter divisions within the Trump White House, saying euphemistically that administration officials would get into “knife fights”.
  • The Trump presidency could “crash and burn” and that “we could be at the beginning of a downward spiral … that leads to disgrace and downfall”.
  • The US president’s approach to global trade could wreck the system on which it depends.
  • Trump could attack Iran.

Osborne described the statement as “ill-advised”, saying: “If I were the Metropolitan police commissioner, and I wanted to maintain my credibility and the credibility of my force, I would quickly distance myself from this very stupid and ill-advised statement from a junior officer who doesn’t appear to understand much about press freedom.”

Tim Shipman, the Sunday Times political editor, criticised the “sinister, absurd, anti-democratic statement this evening threatening journalists with arrest for printing government leaks”, and asked the Met on Twitter: “Do you have any comprehension of a free society? This isn’t Russia.” The Liberal Democrat MP Norman Lamb said the remarks suggested a “slippery slope to a police state”.

Darroch announced he was resigning on Wednesday, saying his position had become “impossible” following the leak of dispatches in which he described Donald Trump’s White House as “inept” and “dysfunctional”.

The comments drew a furious response from the US president, who said the White House would no longer deal with Darroch.

In the House of Commons on Thursday, the Foreign Office minister Alan Duncan said an internal Whitehall inquiry had found no evidence the leak was the result of computer hacking.

Instead, he told MPs the focus was on finding “someone within the system who has released illicitly these communications”.

The chair of the foreign affairs select committee, Tom Tugendhat, questioned whether journalists who published such material were committing an offence. “I doubt it is a crime to publish. The ability to have a free press is essential,” he said.


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