Who could be prosecuted over leaked diplomatic emails? | Law

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The person or people who leaked Kim Darroch’s emails to the Mail on Sunday might be liable for prosecution under the Official Secrets Act.

Who is liable for prosecution under the 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. That safeguard is, however, highly unlikely to apply in this case where it appears the leak was aimed at inflicting acute political embarrassment.

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 for handing information to the Mail on Sunday. 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. Katherine Gun, a former translator for the GCHQ monitoring agency, leaked details of an operation to bug United Nations offices before the 2003 invasion of Iraq. She escaped prosecution after lawyers used the argument of necessity. She has since called for a public interest to be introduced into the act.

Will the law be changed?

In 2017, the Law Commission published proposals to change the law that would result in whistleblowers and journalists being imprisoned for revealing documents that can be obtained through freedom of information requests. The plans caused a furore and were widely criticised.

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