'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎97v] (199/523)

2. But the injnriousness of the publication, though not material on the question whether
an offence has been committed or not, is material as regards the degree of punishment which
the offender is to receive. Judges are reluctant to inflict heavy sentences in cases where the
publication, though technically contrary to the Acts, has been quite innocuous, while, on the
other hand, in cases where serious harm has been done, a greater degree of punishment may
be deserved. For these reasons Government Departments may be asked to give evidence as to
the degree of injury which has been caused. Such evidence may be called for by the prosecution
where the case is a serious one, or it may be called for by the defence where the publication
was, in fact, innocuous and there is hope of obtaining a light sentence on that ground.
3. Government Departments cannot refuse to give the required evidence in such cases,
whether it is wanted by the prosecution or by the defence, and a responsible official having
knowledge of the question, or some other official who has been properly instructed, if necessary
in a letter from the Minister or permanent head of the Department which he can take with him
to the court, must attend and give evidence. In considering whether the publication of any
given document is injurious or not there may be a tendency on the part of Government Depart
ments to conclude that any unauthorised publication is ipso facto injurious because it is
unauthorised. This point of view is, however, not correct, and may result in serious injustice
being done. The Official Secrets Acts are drawn in very wide terms purposely with the object ^
of covering, if the occasion should arise, a wide range of cases; but it is well known that in
point of fact the publication, even without authority, of a number of official documents cannot
cause any harm. There is, indeed, a class of documents which, although official and marked
" confidential," is, in fact, not confidential at all, inasmuch as the documents have been made
public elsewhere. Of this kind are League of Nations documents.
4. For the purpose, therefore, of answering questions concerning the degree of
injuriousness involved in publishing documents without authorisation, it is not sufficient to
assume that an unauthorised publication is ipso facto injurious. It is necessary to consider the
actual document, and to state whether, in the opinion of the Department, its publication has,
in fact, caused, or is likely to cause, actual injury or not. In this connexion it should be noticed
that Departments need only answer yes or no to the question whether publication is injurious
or not. They cannot be cross-examined or asked to stale the reasons for their answer, or to go
into any details. Sometimes, of course, it is impossible to consider one document by itself. It
may well form part of a series, the publication of which as a whole is injurious, although certain
individual documents in the series are innocuous. In such cases it is legitimate to hold that
the publication of the latter was injurious if it took place as part of the publication of a series.
Except in such cases, however, it is necessar} 7 to consider each document separately, and to
give an answer as to whether it has actually caused injury or not.
5. The best recent illustration of the above principles was afforded by the proceedings
brought under the Official Secrets Acts against Mr. Compton Mackenzie (see L 5905/5905/402).
The minutes on that paper set out clearly the principles applicable. The Compton Mackenzie
case was in part concerned with the unauthorised disclosure of certain facts, and in part with
the unauthorised publication of official documents. That part of the case which related to the
documents, however, proved to be of secondary importance, not because an offence had not
been committed in respect of them, since their publication was, in fact, unauthorised, but
because the Department concerned gave evidence that their publication had not, in fact, caused^
any injury. Had the Foreign Office been consulted before the proceedings were commenced
(which it was not) this part of the case would probably never have been embarked upon. It
was also made clear from the final observations of the judge that in giving Mr. Compton
Mackenzie a comparatively light sentence he was partly influenced by the fact that the
publication of the documents had admittedly caused no injury. It is probable that if the
Department involved had stated that injury had been caused, his sentence would have been
heavier, and might have involved imprisonment instead of a fine.
ANNEX VI.
Duncan v. Cammell Laird and Co., Ltd., 58 T.L.R. 242 (House of Lords).
The Plaintiffs were the personal representatives of civilian employees of the Defendant
company, who had lost their lives when the submarine Thetis, built by the Defendant company
for the Admiralty, sank in Liverpool Bay in 1939 during trials. The Plaintiffs were suing for
damages under the Fatal Accidents Act. In the course of the proceedings, a list of documents
in the possession of the Defendant company, which the Plaintiffs desired to inspect, was
submitted to the First Lord of the Admiralty, who directed the Defendant company to refuse
inspection on the grounds that their production would be contrary to the public interest. These
documents came into the possession of the Defendants in their capacity as contractors for the
Admiralty. The objection to their production was set out, first of all in a letter from the