Toby Cadman, Barrister at the Chambers of Anthony Berry QC, at 9 Bedford Rown London, and founder of the International Forum for Democracy and Human Rights, has authored a report on the UK legislation concerning penalties for unauthorized disclosures of public information. The report is part of an amicus curiae coordinated by the Open Society’s Justice Initiative that has been submitted to the US Army Court of Criminal Appeals in PFC Chelsea Manning’s case.

Open Society sought the assistance of a group of experts who contributed research for the amicus curiae brief. The brief presents a comparative analysis of the sentence that PFC Chelsea Manning would have received if she had been judged outside the United States, under equivalent jurisdictions.

PFC Chelsea Manning was found guilty of disclosing hundreds of thousands of documents that had been either ‘classified’ or were deemed otherwise ‘sensitive’ given their relevance to United States military operations. The information in question included videos of airstrikes, diplomatic cables, and other military reports that were published by several media outlets, in particular WikiLeaks, over the preceding months. Chelsea Manning was tried before a US military court and sentenced to 35 years’ imprisonment.

The contribution of Mr Cadman focused on the regulation of penalties for unauthorized disclosures of public information in the United Kingdom, in particular, covering the 2006 Armed Forces Act, the 1989 Official Secrets Act, the 1968 Theft Act and the 1990 Computer Misuse Act.

The report concluded that Chelsea Manning could have been found guilty under Section 17(1) of the 2006 Armed Forces Act, for “disclosing information useful to an enemy”; and under the 1989 Official Secrets Act, although under the latter Act the Prosecution would have needed to prove that the disclosed information was “damaging”. Both acts punish their prohibited actions with up to 2 years’ imprisonment.

Taking into account that Ms. Manning did not intend to prejudice either the safety or the interests of the United States, it is unlikely that she would have been found guilty under Section 1(c), of the 1911 Official Secrets Act, which entails a penalty of 14 years in prison.

There are reasons to consider that Chelsea Manning could have been found guilty under the 1968 Theft Act and the 1990 Computer Misuse Act as well.

It is difficult to assess the likely sentence that would have been imposed if the matters had been dealt with by the UK Courts, however, it is unlikely that it would have been comparable to the 35 years deemed appropriate by the US Courts and accordingly, significantly less.

The principle finding of Mr Cadman’s contribution to the brief is that a sentence of 35 years’ imprisonment is clearly disproportionate for the crimes Chelsea Manning committed. She would have not received such harsh sentence if she were a British soldier, and the Justice Initiative’s submission demonstrates that the same can be concluded for most comparable jurisdictions. The US Army Court of Criminal Appeals must take these findings into account and reduce her sentence accordingly.

Given the specifics of this case, and the analysis conducted internationally, there is merit to the argument that there is now a need to open a national discussion on whether the UK regulation on State secrets should widen its scope to include a public interest defence when soldiers have access to information indicative of international crimes and grave violations of human rights.

The following is the summary of argument of the Justice Initiative’s brief, which exposes the conclusion of their global research:

The U.S. Supreme Court and lower courts have long referenced international law and the law and practice of other countries in assessing whether a penalty for a crime is unduly harsh. The Justice Initiative has researched the laws and case-law of more than 30 countries, including the U.S.’s closest allies, concerning penalties for unauthorized disclosures. This research shows that in at least 12 countries, penalties for the unauthorized public disclosure of national security information are limited to five or fewer years’ imprisonment absent proof of espionage, treason, delivery to a foreign state, or intent to prejudice the country’s security or defense. The laws of most other countries surveyed provide for maximum penalties of up to 10 years’ imprisonment, except for Canada’s law, which authorizes penalties of up to 14 years but includes a public interest defense. Recent cases, including for multiple disclosures that caused grave harm, have resulted in penalties of less than 10 years where the state did not prove that the defendant intended to harm the security of the state. Moreover, international law recognizes that high public interest in unauthorized disclosures, even if they cause some harm to national interests, should be considered as a factor that mitigates the penalty. Although many of the documents that Manning disclosed were of no or little public interest, many others clearly were. The public interest value of some of the disclosures justifies mitigation of the sentence and reinforces a finding that Manning’s overall motive was to advance the public interest.

Accordingly, we respectfully request that this honorable Court take into consideration that the sentence imposed upon PFC Manning by the trial court is far higher than the penalties that our closest allies would consider proportionate in light of the evidence regarding her motive and intent, and the public interest value of some of the disclosures”.

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