Theresa May refuses to defend journalists’ right to publish leaks

Downing Street has refused to stand up for the right of journalists to publish leaked official documents in the public interest after police warned last week that editors could face prosecution if they reveal any further diplomatic cables from the British ambassador to the US, Kim Darroch.

No 10 declined to say that the police should not be telling journalists what they can print, with Theresa May’s official spokeswoman only saying that she believed in a free press.

Neil Basu, the Met assistant commissioner, was criticised on Friday by Tory leadership hopefuls and others for warning owners, editors and publishers not to publish any leaked diplomatic cables because it could be a breach of the Official Secrets Act (OSA).

He partially retreated on Saturday, saying the force “respects the rights of the media and has no intention of seeking to prevent editors from publishing stories in the public interest in a liberal democracy”.

However, he added: “We have also been told the publication of these specific documents, now knowing they may be a breach of the OSA, could also constitute a criminal offence and one that carries no public interest defence.

“We know these documents and potentially others remain in circulation. We have a duty to prevent as well as detect crime and the previous statement was intended to alert to the risk of breaching the OSA.”

Related: Kim Darroch saga ‘is part of assault on civil service’

Boris Johnson, who is expected to be chosen by the Conservatives as the new prime minister next week, said that stopping newspapers printing such documents would represent “an infringement on press freedom and have a chilling effect on public debate”.

His rival, Jeremy Hunt, tweeted that the leaks had “damaged UK/US relations & cost a loyal ambassador his job, so the person responsible MUST be held fully to account. But I defend to the hilt the right of the press to publish those leaks if they receive them & judge them to be in the public interest: that is their job”.

Sadiq Khan, the Labour London mayor who is responsible for policing in the capital, told the Daily Telegraph on Monday: “Free speech is a vital cornerstone of our democracy. We are rightly the envy of the world. The media must not be told what they can and can’t publish.”

However, May’s spokesman refused to comment on the row after repeated questioning at No 10’s regular daily briefing for journalists.

“The Met have issued two statements, both of which are a matter for them and I won’t be commenting on either,” he said.

“As the the prime minister has said the leak was completely unacceptable and the person who leaked the documents should now face the consequences. I’m not going to comment on an ongoing investigation and it’s important the police are now able to get on with their work. The police’s investigation to identify the leaker has the government’s full support.

“On press freedom, the prime minister’s views are very well known. As she has said, a free press is one of the foundations on which our democracy rests.”

Who is liable for prosecution under the Official Secrets Act?

Most of the offences covered by the legislation affect crown servants and government contractors. Any unlawful disclosure relating to security or intelligence by a member of MI5, MI6 or GCHQ is an offence. Officials do not need to sign the act to be bound by its provisions. The maximum punishment for leaking documents is two years in prison or an unlimited fine.

What must be proven to convict a public servant?

An official is guilty of a crime if he or she 'without lawful authority makes a damaging disclosure' of information about international relations between states, defence, law enforcement, or which falls into a class of information likely to damage the security services’ work. Leaks are deemed to be damaging if, among other consequences, they 'endanger the interests of the United Kingdom abroad'. There is a defence for any leaker that they released the material not knowing it would be damaging. 

How often do leaks result in a trial?

Prosecutions under the Official Secrets Act are rare. Recent cases have included that of the MI5 agent David Shayler in 2002. He was jailed for six months. In 2007, a Scotland Yard civilian employee, Thomas Lund-Lack, was sentenced to eight months for leaking information on planned al-Qaida operations in Britain to a Sunday Times journalist.

A number of cases have involved civil servants who mislaid sensitive information. At least one, Richard Jackson, a Cabinet Office official, was fined £2,500 under the act after he left classified papers relating to al-Qaida and Iraq on a train. 

Owen Bowcott, Legal affairs correspondent

The police are investigating who leaked Darroch’s memos to the Mail on Sunday, which published more revelations from the ambassador’s memos at the weekend, after Basu’s warning that official documents should be handed back to the government.