Policy paper

New espionage offences: factsheet

Updated 12 February 2024

Summary/key points

• The Official Secrets Act 1911 criminalises espionage by prohibiting certain conduct that is carried out with a purpose prejudicial to the safety of interests of the UK, including obtaining or disclosing information which would be ‘useful to an enemy’.
• Technological developments have changed the nature of espionage and modernised the targets and vectors through which espionage can be conducted.
• Espionage is now addressed by 3 offences in the Bill: obtaining or disclosing protected information; obtaining or disclosing trade secrets; and assisting a foreign intelligence service. The Bill repeals the Official Secrets Acts 1911, 1920 and 1939, which contain the existing provisions.
• Creating separate offences captures the harmful activity in a way that is designed for a modern world, without inadvertently criminalising a wider range of activity.
• An offence of assisting a foreign intelligence service will reduce the ability of such agencies to carry out a range of hostile activities against the UK, extending beyond espionage activity.
• Reforming the existing offence increases our ability to tackle the modern espionage threat, make the UK a harder operating environment for state threats actors and, in turn, better protect national security.

Background

• In 2015, the Cabinet Office commissioned the Law Commission to undertake a review of the Official Secrets Acts (OSAs) as part of a broader review of the Protection of Official Data and identified key areas for reform in the OSAs 1911, 1920 and 1939, including in relation to espionage by information gathering/disclosure – the Law Commission recommended that “a new statute, containing modern language and updated provisions, should replace the Official Secrets Acts 1911, 1920 and 1939”.
• The existing espionage provisions within the OSAs 1911, 1920 and 1939 criminalise activity conducted by an individual intending to collect or disclose information with a purpose prejudicial to the safety or interests of the State also known as “spying”. Although the nature of the espionage threat has evolved over the last century, the risks posed by espionage remain.
• The modern espionage threat endangers the safety and security of the UK and its citizens and, at its worst, can cause loss of life or serious damage to our economic wellbeing. UK assets and information with a commercial, economic or industrial value are a target for state actors, and we must make it as difficult as possible for states to attack the UK.
• New technologies have created new opportunities and vectors through which the UK can be attacked, lowering the cost and risk to states to conduct espionage and enabling the activity to take place abroad. The UK, therefore, must be able to continue to counter acts of espionage to keep the country safe.
• The government is updating and modernising the existing espionage provisions to ensure that law enforcement partners, our intelligence agencies and the courts have a set of offences with enhanced utility to keep the UK safe, and improve our ability to detect, prevent and respond to state threats.

Key facts

• Espionage is already a criminal offence, but the relevant law is contained in the OSA 1911 and is therefore over 100 years old.
• There is no current criminal offence specifically designed to protect the UK and its interests from the illicit acquisition of trade secrets conducted by foreign states.
• Foreign intelligence services run networks of agents overseas, including in the UK, with the purpose of furthering their own objectives and damaging the UK’s national security. Often, the most damaging state threats activity is conducted by foreign intelligence services.

Key quotes

• Following their analysis of the existing provisions, the Law Commission’s Protection of Official Data report recommended that “a new statute – containing modern language and updated provisions – should replace the Official Secrets Acts 1911-1939”.
• The Government’s Integrated Review of Security, Defence, Development and Foreign Policy noted that ‘the distinction between economic and national security is increasingly redundant’.

New offences capturing “espionage” activity

• In a modern, interconnected world it is right that the legislation moves away from binary concepts of a country being an “enemy” and covers the wide range of threats and harms that constitute espionage today.
• The creation of three separate offences ensures that the legislation captures the harmful activity the Government cares about whilst ensuring a wider range of activity is not criminalised.
• Each offence has been constructed with legal tests appropriate to the relevant activtity. In particular the offences will only apply if the person is acting for, on behalf of, or with the intention to benefit a foreign power or intends that conduct will, or knows their conduct may, materially assist a foreign intelligence service.
• To pursue a prosecution under any of the new offences, the consent of the Attorney General (or Advocate General in Northern Ireland) must be obtained.

Differences between obtaining and disclosing “protected information” and “trade secrets”

• The offence of obtaining or disclosing protected information criminalises espionage activity in relation to the government’s sensitive information (including information such as defence information or the work of our intelligence agencies). An offence can only be committed where the person is acting for, on behalf of, or with the intent to benefit a foreign power and knows, or ought reasonably to know, that their acts would prejudice the safety or interests of the UK.
• The offence of obtaining or disclosing trade secrets criminalises espionage in relation to information that has existing or potential commercial, economic, or industrial value, such as a new technology developed in the UK. In contrast to the first offence this does not require a person to know they are prejudicing the safety or interests of the UK, although in many cases that condition may be met. Instead the person’s conduct must be unauthorised. This offence reflects the inherent wrongness of states seeking to acquire our trade secrets and recognises the wider harm to the UK and our industries that flows from such activity.

What activity does assisting a foreign intelligence service capture?

The provisions on assisting a foreign intelligence service will, for the first time, criminalise being an undeclared intelligence officer in the UK. This means that someone who is working covertly for a foreign intelligence service, including those who support that work, could face prosecution. It also covers a range of harmful activities that constitute espionage beyond the obtaining or disclosing of protected information or trade secrets, such as following a member of our security and intelligence agencies to obtain and then disclose personal information about them to a foreign intelligence service.

Case studies

Obtaining and disclosing protected information (real life)

Between late 2011 and early 2012, Royal Navy Petty Officer Edward DEVENNY collected sensitive information on the UK nuclear deterrent and made determined efforts to volunteer as an agent of a foreign power by contacting the Russian embassy. His attempts to volunteer were thwarted by MI5 officers posing as members of the Russian Intelligence Services. DEVENNY pleaded guilty to offences under S1 of OSA 1911 (maximum sentence at present, 14 years) and received an 8-year sentence. The offence in clause 1 (obtaining or disclosing protected information) criminalises obtaining, retaining and other conduct in relation to protected information where this is conducted for, on behalf of, or with intent to benefit a foreign power for a purpose prejudicial to the safety or interests of the UK and increases the maximum penalty to life.

Obtaining and disclosing trade secrets (hypothetical)

Person A is approached by Person B, who works for a foreign power. At B’s request, A intentionally discloses a trade secret relating to sensitive artificial intelligence technology, known only by a few people in their company, to B. The information is highly sought after by foreign powers and A is not permitted to disclose the information under the terms of their employment. A knows that B is being directed by a foreign power to obtain this company’s trade secrets and, in disclosing the trade secret, intends for this information to benefit the foreign power in question.

Assisting a foreign intelligence service (hypothetical)

A person (person X) has a longstanding business connection to a foreign embassy in the UK. X is asked by someone within the embassy to provide what X knows to be a type of surveillance software. X is also aware of reporting in the press which implicates the intelligence services from that country in the covert surveillance of dissidents in the UK which has recently been disrupted. X is offered cash by the embassy representative and is subsequently paid more in order to remain quiet about the arrangement. The nature of their dealings leads X to suspect strongly that the embassy representative is in fact an intelligence officer. In the circumstances, X knows or at least ought reasonably to know that the provision of the surveillance software could materially assist foreign intelligence service activity in the UK.

Annex - further information on new offences

Obtaining or disclosing protected information

• For or on behalf of, or with the intention to benefit, a foreign power.
• Where the person knows, or ought reasonably to know, the purpose of their conduct would prejudice the safety or interests of the UK.
• “Protected information” is information where, for the purposes of protecting the safety or interests of the UK, access to it is restricted or it is reasonable to expect that access to it is restricted (for example a sensitive document in a government building). It is not limited to classified material and is dependent on whether restrictions on access are needed to protect the safety or interests of the UK.
• Can be committed in the UK or abroad, and by any individual, whatever their nationality.
• Maximum penalty of life imprisonment.
• Prosecution requires the consent of the Attorney General, or Advocate General in the case of Northern Ireland.

Obtaining or disclosing trade secrets

• For or on behalf of, or with the intention to benefit, a foreign power.
• Where a person’s conduct is unauthorised and the person knows, or ought reasonably to know that their conduct is unauthorised.
• A “trade secret” is information which is not generally known to people in the relevant field; has actual or potential economic, commercial, or industrial value that would be affected by it becoming more broadly known; and could be reasonably be expected to be subject to measures to prevent it becoming more broadly known.
• Can be committed in the UK or abroad. Where the conduct is wholly abroad, it is an offence only if the trade secret is held by a UK person.
• Maximum penalty of 14 years’ imprisonment.
• Prosecution requires the consent of the Attorney General, or Advocate General in the case of Northern Ireland.

Assisting a foreign intelligence service

• These provisions criminalise conduct that is:
  • Intended to materially assist a foreign intelligence service in carrying out activities in the UK, or activities outside the UK which may prejudice the safety or interests of the UK.
  • Of a kind that is reasonably possible may materially assist a foreign intelligence service in carrying out activities in the UK, or activities outside the UK which may prejudice the safety or interests of the UK.
• Conduct which may materially assist a foreign intelligence service includes providing information, access to information, goods, services, or financial benefits such as money or money’s worth. Money’s worth could include a gift with a monetary value.
• Can only be committed wholly outside the UK where the person undertaking the activity is a UK person or acts for, or is employed by, the Crown, such as someone working at UK embassy overseas.
• Maximum penalty of up to 14 years.
• Prosecution requires the consent of the Attorney General, or Advocate General in the case of Northern Ireland.