TNAG-2651-FCO40-3844-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 29

HKD 384/1

INDE

03 MAR 1992

OFFICER

PA

:

GISTRY

Action Takan

14

RECF

CONFIDENTIAL

From:

Date:

CC:

F D Berman

Legal Adviser

5 February 1992

PS/Lord Caithness PS/PUS

Sir J Coles

Mr Burns

Mr Yaghmourian, SEAD Security Department Mr Parker

Mr Ricketts, HKD

1.

We should not of course mislead ourselves into thinking that, once a cat like this is out of the bag, there is any ideal way of handling the situation. I think that there is all the same a straightforward course of action which would meet the conflicting considerations you draw attention to. This would be to hand the papers over to the Director of Public Prosecutions, so that all further decisions on what to do or what not to do became his, not ours.

2.

The advantages of this course are obvious. It could in any case be said that it is our public duty, once a deliberate release of classified material has taken place, in an area which is still subject to the criminal sanctions of the Official Secrets Act under the reformed Section 2, to report the matter to the proper authorities. It is of course the case that, under the reformed Section 2, a prosecution will only be possible if the disclosure satisfies the "damage test". But this judgement, and the judgement as to whether a prosecution would or would not be in the public interest, are ones which only the Director of Public Prosecutions can make. They are certainly not judgements which it is proper for us to purport to make. If the DPP needs policy guidance, he will seek it from the Attorney General whose consent is in any case required for charges to be brought under the Act.

3.

It follows equally, and we must recognise this fact, that matters will take their course thereafter. There will be no opening for us to influence whether a prosecution is brought, nor should there be. The Crown Prosecution Service would however, in the normal course, take into account the availability of evidence and whether documents required by the prosecution or sought by the defence could or could not be released on grounds of public interest immunity.

attached to this are papers in

appendix.

1

CONFIDENTIAL