David Shayler had no defence in law in disclosing information to the public, but in his defence he claimed that his disclosures revealed that MI5 had in the past acted incompetently and that he needed to reveal this information so that MI5 would be forced to improve their working practices so that they would effectively protect the public in the future. Mr Shayler subsequently fled to France, but had chosen to return to England to face charges. In his defence he argued that he had acted out of necessity, in order to prevent death or serious injury to others.
The Court of Appeal ruled that the defence was available when a defendant committed an otherwise criminal act in order to avoid the imminent peril of danger to life or serious injury to himself or towards somebody to whom he was responsible. The person for whom he was responsible might not he ascertained and might not be identifiable. However, it was not possible to identify an individual so it had to be possible to describe the individuals by reference to the action which it had threatened would be taken that would make them victims unless preventative action was taken by the defendant.
He argued that he was responsible for those who would be injured if he did not take preventative action. On the face of the case, Mr Shayler could not identify any potential imminent danger to members of the public as a result of the security services alleged abuse and blinders. Therefore, it was decided by the courts that this defence could not apply. The Court of Appeal also made the ruling that that duress of circumstances could not be considered in this case.
Mr Shayler represented himself in court as he felt that because of the PII in place he would be able to fight the case and knew what information he could put forward in his defence that was not covered by the Official Secrets Act. However, he was not allowed by the court to put his case forward in a fair manner, nor was he allowed to cross-examine any witnesses or allowed to speak openly on his views of the matter in general, everything had to be vetted therefore the judge was not privileged to all the facts of the case.
This was not a case of justice for the individual but a case controlled by immunities in the interest of the Security Service. Other areas of concerns were the arguments of the Crown over duties of confidence, barrister Geoffrey Robertson for the Mail on Sunday argued that the paper was entitled to rely upon article 10 of the European Convention on Human Rights11, guaranteeing freedom of the press 12 (Dichand and others v. Austria13 and Unabhi?? ngige Initiative Informationsvielfalt v. Austria14) but Mr Justice Keene took an even-handed approach in his judgment.
Much of what had already been published; he argued was very general and did not pose any harm to the public. 15 However he thought some of the material in the case of 'Case that made me Quit' might be of use to a hostile power. He concluded that an injunction would cause no great harm to the public. This was continued by Mr Justice Hooper on 4 September 1997. It also included an undertaking that all documents and other records should be handed over, this was argued in front of judge Inman at Middlesex Guildford crown court on 8 September.
Inmann agreed that the junction was too wide and discharged it. He replaced it with one that required the newspaper to provide within 7 days any documents covering 'payments made to Shayler. ' 16 A fair trial requires all evidence to be scrutinised in open court with witnesses being cross-examined. As King (1981)17 pointed out in his Justice and Due Process Models' the defendant must be safeguarded against the exercise of arbitrary power by the state, he is provided with legal protection'.
But the Service has relied upon various immunities, exclusion orders and Public Interest Immunity Certificates (ministerial gagging orders) to prevent its operations be examined. As Lord Justice Simon Brown stated: 'The very words of national security have acquired an almost mystical significance …. Which instantly discourages the court from satisfactorily fulfilling its normal role in deciding where the balance of public interest lies'18 Dame Stella Rimington claims it is wrong to make too sharp a distinction between police detectives and spy.
There are essential differences MI5 officers are not adept to collecting evidence, they tend to keep suspects in place rather than have them arrested and take detailed statements. The officers regard analysis and comprehensive statements more important than preventing or solving a crime. For MI5 to play a role in criminal investigations it needs to be accountable. An independent centralised agency staffed by MI5, police and special branch would be welcome by many, free of old prejudices and bureaucratic restraints.
The government have hidden behind a smokescreen of security as repeat players19 instead of confronting the problems that surround the security service they have been able to prevent legal change. One of the serious considerations in the aftermath of these cases should be the re-examination of PII, already circumscribed following the Scott Inquiry into the Matrix-Churchill case20. The current PII system has, so far, survived challenge under the Human Rights Act.
However, the judge has a difficult task in trying to identify defence interests in the absence of any detailed knowledge of the defence instruction or tactics, while only hearing the argument from the prosecution. The government should seriously consider giving the judges the opportunity to appoint an advocate similar to those appointed at special immigration appeals commission. In turn these advocates would have the role of consulting with the defence and advise the judge on an informed basis when the proposed excluded material is examined.
Another area for examination is the true relationship between the police and the Crown Prosecution Service. When the Crown Prosecution Service was established, the attorney general emphasised its role as being an independent prosecution service. The Crown Prosecution Service has complete power on cases in whether they should be altered dropped or continue with the charges as set out. This screening should reduce the weak cases. 21 This role can sometimes prove to be hard to maintain especially in high profile cases policed by 'elite' squads of offices.
This is an area that needs to be examined by the Crown Prosecution Service Inspectorate and their protocols and training as their role of vetting and prosecuting are both on the 'same side', the prosecutor. Therefore, they can not remain totally independent from other agencies as they are one of the requisite agencies required in bringing a case to trial. Police officers like all other enforcement agencies in adversarial settings will try to construct a case that is favourable in the court.
Police therefore frequently construct cases and therefore the screening of the case is obligatory the role of the Crown Prosecution Service who do not have the capability to reconstruct accounts of cases that they are given and weigh it against the 'probability of conviction' as shown in the Burrell case with a skilfully constructed case, the Crown Prosecution Service will see no-lines of re-investigation as there are no loose ends, the version on offer is of course the manipulated version of events as constructed by the police and may not be the true course of events. This leads to the call for fairer investigation and decision making.
McConville suggests that the only way forward is to open the files firstly to the defence and would be liable to be challenged, but would expect it to be productive. The criminal justice system has many benchmarks against which it can be tested – its openness is one of the most important. Until the criminal justice system and its demands are fully considered there will always be an inequality between the prosecution agencies, the 'repeat player' and the 'one-shotter'. The media will continue to bring high profile cases to the public attention and the government will continue to hide behind a smokescreen.