What will happen to the next whistleblower?
A potential change to the law could serve almost no deterrence.
Spying is not what it used to be. Long gone are the days of John le Carré novels where an agent would enter an enemy building under the cover of darkness. Nowadays much more can be found out from the press of a few buttons and that is the subject of a recent government consultation.
One of the most significant changes being proposed by the Law Commission is for the maximum sentence to be increased for unauthorised disclosure offences. Currently that stands at two years but the concern is that this does not truly reflect the severity of the crime. After all this is no longer shoving a few A4 pieces of paper into a briefcase but could be a massive transfer of data from government servers.
The problem is that criminal law also requires intent and arguably it is not really fair to compare the intent of an unauthorised disclosure with actual espionage. While spying carries a mens rea whereby the information “is intended to be directly or indirectly useful to an enemy”, unauthorised disclosures often happen because someone feels the need to whistleblow on illegal or immoral activity.
In its response the government emphasises the cost and destruction that unauthorised disclosures can cause in the modern age. If a leak is dumped online then the information becomes available to a range of actors including foreign governments and terror organisations. When that leak then exposes various assets, the effect can be to nullify key operations or even endanger the lives of agents.
Unfortunately I think this misses the point. In a broad sense the outcomes for murder and manslaughter are the same but murder carries a greater penalty because of the increased culpability of the defendant; the sentence reflects society’s moral judgment. However unauthorised disclosure is not as morally bad as spying and the government is instead trying to use sentencing as a deterrent to stop whistleblowers in the future. Of course whistleblowers already know what they are doing is wrong and will likely end them up in prison but they carry on anyway because it is (in their view) the right course of action to take. The idea that someone in that position will be put off because of a higher sentence is, at best, unlikely and, at worst, laughable.
The Law Commission seeks to address this in part by proposing that a public interest defence be introduced alongside a Commissioner who would help adjudicate on incidents of whistleblowing. However the government are not keen on this idea because of the difficulties when it comes to striking a balance between what is an unacceptable threat to public security and what truly is in the public interest.
In a small sense that is fair but only because no one can really know what the consequences of an unauthorised disclosure will be until after the fact. However it is not right to suggest that the internal government mechanisms are the best way forward and it is naïve to think that the government will make a judgment in the public interest when it is very often their own secrets that they are hiding from the public.
Whistleblowing has the potential to be very costly but it is also a healthy part of any democracy. Human rights law establishes freedom of expression as a qualified right with exceptions built in for national security. Most whistleblowers do not leak information as a first port of call but do so because they feel they have exhausted all other options. Raising the sentence will not change that fact.
In this week’s episode of the podcast we have a special double edition. Any student who has suffered (I mean, studied) tort law before will be aware of the SAAMCO case in the context of negligent advice or information. Here the Supreme Court had a chance to revisit that decision and add a bit more nuance.
Episode link: http://uklawweekly.com/2021-uksc-20-2021-uksc-21/
Make a difference today,
Marcus