R v Shayler [2001] 1 WLR 2206

Criminal law – Defence – Necessity


Shayler was a member of MI5. Before starting employment with the service, he signed a confidentiality declaration in accordance with the Official Secrets Act 1989 and was therefore under a contractual obligation not to disclose information that came into his possession by way of his employment. When he left the MI5, he signed a further declaration acknowledging its lasting effects. Around a year after signing the documentation, Shayler disclosed documents to a national newspaper relating to national security and shortly afterward left the country. Upon his return a couple of years later, he was charged with disclosing this information without permission under the Criminal Procedure and Investigations Act 1996, section 29.


The issue at hand was whether or not the defence of necessity was open to Shayler in the circumstances. Shayler argued that the defences were available to him on the basis of public interest, in order to avert damage to life and to expose serious illegality. Shayler also argued that he could rely on the right to freedom of expression under the European Convention on Human Rights 1950.


The appeal was dismissed. It was held that as Shayler was a former member of the security service, he could not rely on the defence of necessity or duress in relation to the Official Secrets Act 1989. Also, the court believed that Shayler was not in a position to identify any external threat to the general public. Further to this, the restriction on Shayler’s freedom of expression was justified in order to protect national security.