Obtaining or Disclosing Protected Information
The National Security Act 2023 (‘the Act’), which received Royal Assent in July 2023 and came into force on 20 December 2023, is designed to cope with the constantly evolving security threats faced by the United Kingdom. The Act repeals the Official Secrets Acts of 1911, 1920 and 1939.
It creates offences covering espionage, prohibited places, sabotage, foreign interference, obtaining benefit from foreign intelligence services alongside new powers of arrest and detention and search and seizure.
John Veale of KANGS comments upon sections 1 & 31 of the Act.
The National Security Act 2023
The intent of the Act is to render it far harder for those states which seek to conduct hostile activity against the UK, such as espionage, interference in our political system, sabotage, and assassination and it introduces an offence of foreign interference.
This offence makes it illegal to engage in any form of conduct which seeks to interfere with fundamental rights, such as voting and freedom of speech.
The new Foreign Influence Registration Scheme increases the transparency of foreign power influence in UK democracy and politics and provides greater assurance around the activities of those foreign powers.
Part 1 Espionage, sabotage and persons acting for foreign powers
Section 1: Obtaining or disclosing protected information
This section provides that:
A person commits an offence if the person obtains, copies, records or retains protected information, or discloses or provides access to protected information where:
- the person’s conduct is for a purpose that they know, or having regard to other matters known to them ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom, and
- the foreign power condition is met in relation to the person’s conduct if as specified by section 31 of the Act.
Protected information means any information, document or other article where, for the purpose of protecting the safety or interests of the United Kingdom:
- access to the information, document or other article is restricted in any way, or
- it is reasonable to expect that access to the information, document or other article would be restricted in any way.
The section applies whether the person’s conduct takes place in the United Kingdom or elsewhere.
A person retains protected information if the person retains it in their possession or under their control.
Disclosure includes parting with possession.
Section 31: The foreign power condition
This section provides that:
The foreign power condition is met in relation to a person’s conduct if:
- the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and
- the person knows, or having regard to other matters known to them ought reasonably to know, that to be the case.
The conduct in question, or a course of conduct of which it forms part, is in particular to be treated as carried out for or on behalf of a foreign power if:
- it is instigated by a foreign power,
- it is carried out with financial or other assistance provided by a foreign power for that purpose, or
- it is carried out in collaboration with, or with the agreement of, a foreign power.
- it is under the direction or control of a foreign power,
The conduct in question, or a course of conduct can be a direct or indirect relationship between the conduct, or the course of conduct, and the foreign power (for example, there may be an indirect relationship through one or more companies).
A person’s conduct may form part of a course of conduct engaged in by the person alone, or by the person and one or more other persons.
The foreign power condition is also met in relation to a person’s conduct if the person intends the conduct in question to benefit a foreign power. It is not necessary to identify a particular foreign power.
The foreign power condition may be met in relation to the conduct of a person who holds office in or under, or is an employee or other member of staff of, a foreign power, as it may be met in relation to the conduct of any other person.
Consequences of Conviction
Section 1 offences are indictable only, meaning that they can only be tried before a Crown Court.
Upon conviction the court may impose a fine, imprisonment for life or both.
Official Comment
MI5 Director General, Ken McCallum is quoted as saying:
"The National Security Act is a game changing update to our powers. We now have a modern set of laws to tackle today’s threats."
Who Can I Contact for Advice & Help?
As will be seen, conviction for an offence under the Act may carry extremely serious consequences. Accordingly, if you are arrested for an alleged offence under the Act, you should seek immediate professional advice.
The Team at KANGS Solicitors offers a wealth of experience in serious criminal investigations gained from supporting and advising clients over many years and is available to assist you.
We welcome new enquiries by:
Telephone: 0333 370 4333
Email: info@kangssolicitors.co.uk
Our Team of criminal litigation specialists is available to meet at our offices in London, Birmingham or Manchester or, alternatively, we are happy to arrange an initial no obligation meeting via telephone or video conferencing.
