R v Shayler [2001] EWCA Crim 1977   Court of Appeal

Shayler was a member of MI5 and had signed a declaration under the Official Secrets Act. In breach of this he had provided journalists with 30 documents which he had obtained through his position and which related to national intelligence and security issues. During a case management hearing the judge ruled that the defence of duress of circumstances was not available to Shayler. He appealed against this ruling contending that the disclosure was necessary to safeguard members of the public.

Held:

Appeal dismissed

Whilst the defence of duress could be raised in offences under the Official Secrets Act, there was insufficient precision in Shayler’s claims. He could not identify the action that was going to create imminent threats to life, nor could he identify the potential victims or establish that he had responsibility for them.

Lord Woolf CJ

“At one end of the spectrum is the example of a spy who is kidnapped and told his wife or child will be murdered if he does not disclose top-secret information. At the other end of the spectrum is the disillusioned agent who claims that someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, ie the general public as a whole. The first is a situation where almost certainly a defendant would be able to rely on the defence. The second position is one where a defendant cannot possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum.”

Back to lecture outline on the defence of duress in criminal law