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Decision to Charge

Once the Police have completed their investigations, they will refer the case to the Crown Prosecution Service for advice on how to proceed. We will then make a decision on whether a suspect should be charged, and what that charge should be.

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CPS decision not to prosecute Richard Tomlinson under the Official Secrets Act 1989

14/03/2007

The Crown Prosecution Service has informed the Metropolitan Police that it has decided not to prosecute Richard Tomlinson, a member of the British Secret Intelligence Service (SIS) between 1991 and 1995, for alleged offences committed under the Official Secrets Act 1989. The CPS has also decided not to prosecute alleged offences of blackmail in relation to threats to disclose information.

The CPS decided that in respect of some of the alleged offences there is not a realistic prospect of conviction. In those cases where there is a realistic prospect of conviction, the CPS, informed by the views of the SIS, has decided that it would not be in the public interest to prosecute.

The allegations against Mr Tomlinson were that, on various dates between 1998 and 2002, and then in 2005, 2006 and 2007, in breach of S.1(1) of the Official Secrets Act 1989, he made, without any lawful authority, various disclosures of information relating, or purporting to relate, to security and intelligence which was in his possession by virtue of his position as a member of the SIS. These disclosures were made variously in newspapers, a book and on the internet. It was also alleged that he had committed offences of blackmail by threatening to make further disclosures if the Metropolitan Police did not return to him computer equipment legitimately seized from him in France in 2006.

Prosecutions under the Official Secrets Act 1989 are governed by the normal tests applied by the CPS when considering any prosecution. The Code for Crown Prosecutors requires that the CPS first considers the sufficiency of the evidence - evidence to make out the case and evidence to rebut any defence which might be available and which might be raised. If the CPS does not consider that there is sufficient evidence for a realistic prospect of conviction, it will not take any further action.

If the CPS does consider that there is a realistic prospect of conviction - that is, that it is more likely than not that a jury would convict - it then considers the public interest test. That test is whether there are public interest factors tending against prosecution that clearly outweigh those tending in favour. The Official Secrets Act 1989 stipulates that the consent of the Attorney General is required.for any prosecution under S1(1).

In this case, the CPS decided that, on a review of the evidence available, in respect of some of the disclosure offences there was not a realistic prospect of conviction. In respect of other disclosure offences and the blackmail allegations, the CPS, assisted by advice from independent counsel, decided that the evidence did afford a realistic prospect of conviction. However, informed by the views of the SIS, its view was that it would not be in the public interest to prosecute.

The Attorney General carefully considered all the issues in this case. He consulted the SIS about the national security implications of bringing Mr Tomlinson to trial for these offences. He has been advised by counsel that any prosecution has the potential for disclosure during the trial process of sensitive matters. He has been told by the SIS that this has national security implications. In addition, the SIS has identified a risk to the safety of a number of its staff from exposure as a result of any trial.

For these reasons, the Attorney General has informed the CPS that he agrees that it would not be in the public interest to prosecute Mr Tomlinson for these offences.

  1. On 23 September 1991 Richard Tomlinson joined the British Secret Intelligence Service. He was given notice of dismissal on 22 May 1995. On joining the SIS he was made aware of the secret nature of his work, which involved issues of national security. He was aware that he was bound by the Official Secrets Act 1989, both during the period of his employment and at all times thereafter. He signed standard Official Secrets Act 1989 declarations concerning this. Mr Tomlinson has lived in France for a number of years.
  2. On 18 December 1997 at the Central Criminal Court in London, Richard Tomlinson was sentenced to 12 months’ imprisonment for an offence contrary to S.1(1) of the Official Secrets Act 1989. He pleaded guilty. The offence concerned the disclosure of information relating to security or intelligence in the form of the synopsis of a prospective book.
  3. On 26 July 2001 the High Court granted a permanent injunction against him. This injunction remains in place. If Mr Tomlinson returns to England, action can be taken against him for any breaches of this injunction and against any third parties publishing his unauthorised disclosures.
  4. Media enquiries to CPS Press Office on 020 7796 8106.