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Dec 22, 2023 · In particular, laws that are broad and lack clarity have the capacity to capture conduct that should not be criminalised – in the espionage context, for example, the conduct of journalists, whistleblowers, academics and researchers.
Jul 13, 2023 · In its Protection of Official Data report, the Commission made a number of recommendations to ensure that the law governing espionage is fit to counter threats to the UK’s national security from...
- Summary/Key Points
- Background
- Key Facts
- Key Quotes
- New Offences Capturing “Espionage” Activity
- What Activity Does Assisting A Foreign Intelligence Service Capture?
- Case Studies
- Annex - Further Information on New Offences
The Official Secrets Act 1911 criminalises espionage by prohibiting certain conduct that is carried out with a purpose prejudicial to the safety of interests of the UK, including obtaining or discl...Technological developments have changed the nature of espionage and modernised the targets and vectors through which espionage can be conducted.Espionage is now addressed by 3 offences in the Bill: obtaining or disclosing protected information; obtaining or disclosing trade secrets; and assisting a foreign intelligence service. The Bill re...Creating separate offences captures the harmful activity in a way that is designed for a modern world, without inadvertently criminalising a wider range of activity.In 2015, the Cabinet Office commissioned the Law Commission to undertake a review of the Official Secrets Acts (OSAs) as part of a broader review of the Protection of Official Data and identified k...The existing espionage provisions within the OSAs1911, 1920 and 1939 criminalise activity conducted by an individual intending to collect or disclose information with a purpose prejudicial to the s...The modern espionage threat endangers the safety and security of the UK and its citizens and, at its worst, can cause loss of life or serious damage to our economic wellbeing. UK assets and informa...New technologies have created new opportunities and vectors through which the UK can be attacked, lowering the cost and risk to states to conduct espionage and enabling the activity to take place a...Espionage is already a criminal offence, but the relevant law is contained in the OSA 1911 and is therefore over 100 years old.There is no current criminal offence specifically designed to protect the UK and its interests from the illicit acquisition of trade secrets conducted by foreign states.Foreign intelligence services run networks of agents overseas, including in the UK, with the purpose of furthering their own objectives and damaging the UK’s national security. Often, the most dama...Following their analysis of the existing provisions, the Law Commission’s Protection of Official Data report recommended that “a new statute – containing modern language and updated provisions – sh...The Government’s Integrated Reviewof Security, Defence, Development and Foreign Policy noted that ‘the distinction between economic and national security is increasingly redundant’.In a modern, interconnected world it is right that the legislation moves away from binary concepts of a country being an “enemy” and covers the wide range of threats and harms that constitute espio...The creation of three separate offences ensures that the legislation captures the harmful activity the Government cares about whilst ensuring a wider range of activity is not criminalised.Each offence has been constructed with legal tests appropriate to the relevant activtity. In particular the offences will only apply if the person is acting for, on behalf of, or with the intention...To pursue a prosecution under any of the new offences, the consent of the Attorney General (or Advocate General in Northern Ireland) must be obtained.The provisions on assisting a foreign intelligence service will, for the first time, criminalise being an undeclared intelligence officer in the UK. This means that someone who is working covertly for a foreign intelligence service, including those who support that work, could face prosecution. It also covers a range of harmful activities that cons...
Obtaining and disclosing protected information
Between late 2011 and early 2012, Royal Navy Petty Officer Edward DEVENNY collected sensitive information on the UK nuclear deterrent and made determined efforts to volunteer as an agent of a foreign power by contacting the Russian embassy. His attempts to volunteer were thwarted by MI5 officers posing as members of the Russian Intelligence Services. DEVENNY pleaded guilty to offences under S1 of OSA 1911 (maximum sentence at present, 14 years) and received an 8-year sentence. The offence in...
Obtaining and disclosing trade secrets
Person A is approached by Person B, who works for a foreign power. At B’s request, A intentionally discloses a trade secret relating to sensitive artificial intelligence technology, known only by a few people in their company, to B. The information is highly sought after by foreign powers and A is not permitted to disclose the information under the terms of their employment. A knows that B is being directed by a foreign power to obtain this company’s trade secrets and, in disclosing the trade...
Assisting a foreign intelligence service
A person (person X) has a longstanding business connection to a foreign embassy in the UK. X is asked by someone within the embassy to provide what X knows to be a type of surveillance software. X is also aware of reporting in the press which implicates the intelligence services from that country in the covert surveillance of dissidents in the UK which has recently been disrupted. X is offered cash by the embassy representative and is subsequently paid more in order to remain quiet about the...
Obtaining or disclosing protected information
1. For or on behalf of, or with the intention to benefit, a foreign power. 2. Where the person knows, or ought reasonably to know, the purpose of their conduct would prejudice the safety or interests of the UK. 3. “Protected information” is information where, for the purposes of protecting the safety or interests of the UK, access to it is restricted or it is reasonable to expect that access to it is restricted (for example a sensitive document in a government building). It is not limited to...
Obtaining or disclosing trade secrets
1. For or on behalf of, or with the intention to benefit, a foreign power. 2. Where a person’s conduct is unauthorised and the person knows, or ought reasonably to know that their conduct is unauthorised. 3. A “trade secret” is information which is not generally known to people in the relevant field; has actual or potential economic, commercial, or industrial value that would be affected by it becoming more broadly known; and could be reasonably be expected to be subject to measures to preven...
Assisting a foreign intelligence service
1. These provisions criminalise conduct that is: 1.1. Intended to materially assist a foreign intelligence service in carrying out activities in the UK, or activities outside the UK which may prejudice the safety or interests of the UK. 1.2. Of a kind that is reasonably possible may materially assist a foreign intelligence service in carrying out activities in the UK, or activities outside the UK which may prejudice the safety or interests of the UK. 2. Conduct which may materially assist a f...
Sep 1, 2020 · Espionage offences. The Russia report, published by the Intelligence and Security Committee of Parliament in July 2020, has highlighted the need for reform of the 1911 Official Secrets Act to...
Oct 19, 2022 · j) Espionage offences should be able to be prosecuted when they occur overseas provided the defendant has a “significant link” with the UK (not only British nationality). 7. The majority of the Law Commission’s Report focussed on unauthorised disclosure offences in OSA 1989.
Mar 30, 2018 · The discussion of spy treatment during wartime by international law suggests an implied legitimacy to the practice; however, it is still not explicitly declared legal and the application to peacetime espionage is essentially negligible due to the supremacy of state sovereignty.
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Does international law prohibit espionage?
International humanitarian law (IHL) does not declare espionage outright illegal. However, as with any war practice, it does not condone it either. IHL places great importance on transparency of the affiliation of combatants and the status of other participants in war.
