Policy paper

Preparatory conduct: National Security Bill factsheet

Updated 12 February 2024

Summary/key points

• The Bill criminalises preparatory conduct that acts as a precursor to state threats offences and other serious acts.
• It is vital that this type of conduct can be caught before it culminates in more serious and potentially irreversible damage to the safety and interests of the UK.
• Reform of this existing offence under the Official Secrets Act 1920 will provide a key disruptive tool for policing, thus strengthening our ability to counter the threats posed by states and in turn making the UK an even more hostile operating environment.

Background

The existing provisions

Under Section 7 of the Official Secrets Act 1920, it is an offence to attempt to commit any offence under the Act, solicit or incite or endeavour to persuade another person to commit an offence, to aid or abet, or do any act preparatory to the commission of any offence under the Official Secrets Acts of 1911 and 1920.

Reasons for reform

• It is essential to retain and modernise the preparatory act element of the existing offence through this Bill to ensure that law enforcement agencies can intervene where there is evidence that a person is conducting preparatory activity with an intention that they or someone else will go on to carry out state threats activity.
• Reform is also essential for ensuring this offence captures the wide range of harmful activities tackled by this Bill (as opposed to just that currently covered by the 1911 and 1920 Acts) as well as in cases where the intended state threats activity involves serious violence or creates a serious threat to life or to public safety.
• With the exception of the preparatory act aspect, the other offences in section 7 of OSA 1920 (to attempt, aid or abet etc) are now provided by other statutory provisions or by the common law (for example section 1 of the Criminal Attempts Act 1981 or the provisions of the Serious Crime Act 2007 that provide the offence of assisting or encouraging other offences). There is therefore no need for specific provisions to replace these aspects of the previous legislation.

How does the offence work?

• In order to commit a preparatory conduct offence, an individual must intentionally engage in conduct in preparation for the commission of one or more of the following:
  • Any acts that constitute the following offences – obtaining or disclosing protected information; obtaining or disclosing trade secrets; entering a prohibited place for a purpose prejudicial to the UK; or sabotage.
  • Any acts for or on behalf of, or with the intention to benefit a foreign state and which involve serious violence against another person; endanger the life of another person; or create a serious risk to the health or safety of the public or a section of the public.
• Preparatory acts can also be committed with the intention that another person will commit the above acts. For example, intentionally conducting reconnaissance of a protected site and purchasing technical intelligence devices to supply to a Foreign Intelligence Service that intends to use this information to conduct espionage.

Key facts

• The Law Commission, in their Protection of Official Data report, note that the offence of doing an act preparatory to espionage should be retained. Save for that, section 7 of the Official Secrets Act 1920 should be repealed. We agree that this aspect of the existing power should be retained. We will also be updating the offence to apply to the modern-day state threats activities.
• The Court of Appeal considered the meaning of the term “act preparatory to the commission of an offence” in R v Bingham [1973] QB 870, finding that an individual will commit an offence under section 7 of the Official Secrets Act 1920 if he or she does an act that “opens the door to the commission of an offence”.

What about cases where it is unclear what act will follow?

• This offence recognises that where preparatory conduct has been successfully disrupted by law enforcement agencies, it may not be clear exactly which specific outcome was intended (i.e. sabotage or obtaining protected information), owing to the early stage at which the person was caught.
• There may also be cases where a person does not themselves know what the ultimate outcome of their preparatory activity may be, but they nonetheless have the intention to carry out the relevant hostile acts.
• As is the case with the equivalent terrorism offence, this offence captures those preparing to carry out a relevant act, with the necessary intention, but without the need to demonstrate which specific act would follow.

What are the safeguards?

• A preparatory conduct offence can only be committed where an individual has an intention to commit a relevant act and where that intention can be evidenced beyond reasonable doubt.
• Anyone who engages in such conduct without the intention that one of the relevant acts will result will therefore not be caught under this offence.
• Consent of the Attorney General is required to launch a prosecution.

What are the penalties?

• The offence carries a maximum penalty of life imprisonment.
• Preparatory conduct can cover a wide range of activities and the sentencing range provided will enable the courts to apply the most appropriate sentence (e.g. it may decide to apply a life sentence in a case where the preparatory conduct is to state sponsored murder).
• This approach will ensure that the courts are afforded flexibility to select the most appropriate penalty when dealing with the range of preparatory conduct.

Case studies

Case study 1 (hypothetical)

Person X is an employee of an MOD contractor. They hold security clearance and have extensive knowledge of a British National Security and Defence programme. As a response to being passed over for promotion, they decide to share sensitive information with a foreign state. They engage in the following acts:

• Researching foreign diplomats in London;
• Making contact with a foreign diplomat and offering sensitive information in exchange for money; and
• Arranging to meet their foreign contact.

Person X is subsequently arrested for what would be a preparatory conduct offence. Had X not been stopped by law enforcement they could have shared information which would have provided the foreign state a detailed understanding of the UK’s defence capabilities, and an insight into the UK’s future intentions on its ability to operate them. This would undermine the capabilities’ effectiveness and increase risk to the safety of both the employees, and the UK population in general.  The impact on UK national security, had the offence not been disrupted at the preparatory stage, would have been substantial and enduring.

Case study 2 (real)

Two foreign nationals came to the UK in the early 1980s. Following investigation, their house (rented under a false name) was searched, and a considerable quantity of spying equipment was found. This included forged identity documents, radio equipment capable of receiving signals from their home country and an escape kit concealed in a secret compartment of a holdall which included forged passports and cash. Although they couldn’t be proved to have engaged in spying or attempted spying, taken together, the possession of all these items was compelling evidence of preparatory acts. The defendants were convicted under section 7 of the OSA 1920 for acts preparatory to espionage and sentenced to 10 years’ imprisonment. This demonstrates the value of preserving and extending the existing acts preparatory offence.