International Law

Daniel Houghton - neither the prosecution nor the defence lawyers have sufficient security clearance, even for a bail hearing ?

Neither the Defence nor the Prosecution lawyers have sufficient security clearance !

The Magistrates Court bail hearing hearing is adjourned until Thursday 25th March 2010.

The Western Morning News (which covers the West of England, including Devon, where Daniel Houghton's family is based) reports:

Spy case delay over secrets clearance
Saturday, March 13, 2010, 10:00

A FORMER MI6 spy charged with trying to sell top secret files to a foreign country has not been able to brief his lawyers because they do not have security clearance to speak to him.

Daniel Houghton, whose family live in Holne, near Ashburton, Devon, and who studied graphic design in Exeter, remains in custody and cannot apply for bail until lawyers are given clearance.

Houghton, 25, is accused of attempting to sell confidential electronic files, including memory sticks and a laptop hard drive detailing MI5's intelligence-gathering techniques.

However, his lawyers and the legal team prosecuting him, found they would be in breach of the Official Secrets Act and could be charged with breaking the law themselves if they went ahead with the case.

This is suspiciously odd.

Previous Official Secrets Act trials have not needed specially cleared defence and prosecution lawyers.

Surely a Judge can be trusted to decide what secret evidence to include or exclude from an Official Secrets trial ?

Prosecutions under the Official Secrets Act need the consent of the Attorney General, so has she changed the rules, without any Parliamentary scrutiny or debate ?

Why are Crown Prosecution Service lawyers chosen for an Official Secrets Act case somehow not to be trusted ? Perhaps this media report is a bit misleading

"security cleared" lawyers are not necessary for the more serious charge (with a longer potential prison sentence) against Daniel Houghton under the Theft Act.

[...]

Piers Arnold, prosecuting, outlined the dilemma during a brief hearing at City of Westminster Magistrates' Court.

He said: "What the joint proposal is today is that the matter be put off for a period of two weeks with a view to carrying out the relevant security clearance procedures for the defence so they are in a position to take full and mindful instructions from their client."

Michael O'Kane, defending, said: "In order to get instructions from Mr Houghton with a view to ascertaining whether a full bail application can be made, we would be falling foul of the Official Secrets Act and exposing him to further offences as well as ourselves."

District Judge Timothy Workman adjourned the case until Thursday March 25, when a bail application is expected to be made.

[...]

How can the defence lawyers be prosecuted under the Official Secrets Act, when their conversations with their client are supposedly Legally Privileged ?

Why do the lawyers, on either side, need full access to all the secret information allegedly being sold, simply for a bail hearing ?

Who will security vet the Judge in the case ?

"security vetting", is obviously no guarantee of any sort, since many other accused spies in the past have had a very high "security clearance", which proved to be worthless.

There is no legal basis, under the Official Secrets Act 1989, for any exemptions from prosecution for anybody, even if they actually do have a "security clearance", something which is not mentioned at all in the wording of the Act.

There is still no mention of why Houghton is not being prosecuted under the Terrorism Act section 58.

There is still no mention of which country's intelligence agency Houghton is accused of thinking that he was selling the top secrets to.

Full post as published by Spy Blog on March 13, 2010 (boomark / email).