Regina v Shayler: CACD 28 Sep 2001

Duress as Defence not closely Defined

The defendant had been a member of MI5. He had signed the Official Secrets Act, but then disclosed various matters, including material obtained by interceptions under the Interception of Communications Act. He claimed that his disclosures were made in the public interest. He appealed against a judgment that the Official Secrets Act permitted him no defence of disclosure for the public good, and and that nor was the defence of duress in the particular form of necessity of circumstance, available under the Act. The legislation singled out members and former members of the security services, and the possibility of a defence of public good had been discussed and rejected in the parliamentary process of passing the Act. The defendant had several proper means of disclosure, however inadequate he judged them, and that avenue provided the appropriate balance under the Human Rights Act.
Held: Any definition of the precise limits of the defence of duress and necessity was fraught with difficulty, because its development had been closely related to the particular facts of the different cases which had come before the courts. The central elements were set out in Martin, and in Abdul-Hussain. There was no purpose in making a distinction between the Official Secrets Act and others as regards the defence of necessity, and the particular sensitivities of the work of the intelligence services meant that the provisions did balance the need for freedom of expression. The defendant challenged the power of the judge at a preparatory hearing to rule on propositions of law in these circumstances, under section 29 of CPIA 1996. However there is a need to apply case management considerations to criminal practice, and whilst the defendant’s rights must be preserved, the section should not be interpreted restrictively. The position of the Press in considerations such as these and the Human Rights Act, is not that of a victim.

Lord Woolf, The Lord Chief Justice Of England And Wales, The Hon. Mr Justice Wright, And The Hon. Mr Justice Leveson
Times 10-Oct-2001, Gazette 18-Oct-2001, [2001] EWCA Crim 1977, [2001] 1 WLR 2206
Human Rights Act 1998, Official Secrets Act 1989 2 4, Interception of Communications Act 1985, Security Services Act 1989, Intelligence Services Act 1994, Criminal Procedure and Investigations Act 1996 29
England and Wales
CitedRegina v Pommell CACD 16-May-1995
The defendant appealed against his conviction for possessing a loaded shotgun. He had wished to advance a defence to the effect that on the previous evening he had taken it ‘off a geezer who was going to do some damage with it’ in order to stop him. . .
CitedMcCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
CitedRegina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .

Cited by:
Appeal fromRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
See alsoRegina v Shayler CACD 29-Jul-2003
The defendant appealed against his conviction, saying the restrictions placed upon him in conducting his defence because the fact that he had been a member of the secret services, meant that he had been unable to conduct his defence properly, with . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedQuayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedRegina v CS CACD 29-Feb-2012
The defendant appealed against the refusal of the judge to allow her defence of necessity in answer to a charge under section 1 of the 1984 Act. She said that it had been necessary to prevent the child being sexually abused.
Held: The appeal . .

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Updated: 01 November 2021; Ref: scu.166220