Court of Appeal, Criminal Division
Published July 1, 2009
Regina v James (Daniel)
Before Lord Judge, Lord Chief Justice, Mr Justice Collins and Mr Justice Owen
Reasons June 25, 2009

A member of the Armed Forces, however junior, serving abroad in a theatre of military operations, who chose to disclose information which might be of use to an enemy of the United Kingdom, or prejudicial to the interest and safety of his colleagues serving in a war zone, must expect a lengthy sentence for deterrence and punishment, even if the information disclosed was not proved to have caused any actual damage.

The Court of Appeal, Criminal Division, so stated in a reserved judgment giving reasons for its dismissal, on June 11, 2009, of an appeal by Daniel James against a 10-year prison sentence imposed by Mr Justice Roderick Evans at the Central Criminal Court on November 28, 2008 following his conviction for communicating information that was calculated to be or might be or was intended to be directly or indirectly useful to an enemy, contrary to section 1 of the Official Secrets Act 1911.

The communications were contained in e-mail exchanges between the appellant and the Iranian military attaché in Afghanistan.

Mr Clive Nicholls, QC, assigned by the Registrar of Criminal Appeals, for the appellant; Ms Sarah Whitehouse for the prosecution.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the appellant held both British and Iranian nationality. He had joined the Territorial Army and had signed the Official Secrets Act 1911.

In 2006 he was sent to serve in Afghanistan as an interpreter with the British forces attached to the International Security Assistance Force. He acted as an interpreter for General Richards, the commanding officer of that force who was based in Kabul.

His role was to act as interpreter at meetings and to translate documents and speeches. He did not have direct access to the most sensitive of General Richards’ work but he was in a unique position to overhear operational and strategic information.

The crucial feature of his conviction was that he was trusted to work in a highly sensitive environment, while serving abroad in the context of an active and continuing armed conflict which involved this country, the men and women who served in its Armed Forces, and this country’s allies. That context provided the significant aggravating feature of the offence.

The appellant had believed that the information that he was giving to the military attaché would be useful to him. The information was imprecise and general. The appellant appeared to have had a rather exaggerated sense of his own importance and in the result no actual damage to operations was caused.

However, in R v Smith (Michael) ([1996] 1 Cr App R (S) 202, 205) Lord Taylor, Lord Chief Justice, said: “Anyone who is prepared to betray his country must expect that he will receive a long sentence ... . Treachery is treachery. It must be deterred and it must be punished.”

Their Lordships endorsed those observations in relation to any case where a member of the Armed Forces, however junior, serving abroad in a theatre of military operations, chose to disclose information to anyone which might be of use, directly or indirectly, to an enemy of this country or prejudicial to the interest and safety of his colleagues and companions serving in a war zone and at daily risk of death or serious injury.

The element of intended betrayal of serving colleagues made this a very serious offence indeed. Fortunately, such cases were very rare. When they did occur, there must be no doubt that even if the information disclosed was not proved to have caused any actual damage, and was brought to a halt before any such damage might have occurred, the deterrent element in the sentence was absolutely fundamental.

In fact, although no individual serving soldier was directly affected by the appellant’s activities, they did have a direct impact on the military relationships between Nato forces and the Afghan Government, and that alone might well have made the task of serving soldiers lengthier and more hazardous.

The court had a duty to those members of the Armed Forces risking life and health and safety through loyal service to the interests of this country to provide such protection as could be provided in the fortunately very rare cases indeed of possible treachery from those working alongside them and who were treated as trusted colleagues.

The 10-year sentence was not manifestly excessive. It properly reflected the deterrent element which necessarily must govern every sentencing decision in cases of treachery.

Solictors: Crown Prosecution Service, Headquarters.

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