Part 1: Espionage, sabotage and persons acting for foreign powers Espionage etc Section 3: Assisting a foreign intelligence service
Section 3 makes provision for two offences of assisting a foreign intelligence service.
An offence is committed in subsection (1) where a person engages in conduct which they intend will materially assist a foreign intelligence service in carrying out UK-related activities.
	An offence is committed in subsection (2) where a person engages in conduct that is likely to materially assist a foreign intelligence service in carrying out UK-related activities, and knows or, having regard to other matters known to them, ought reasonably to know that the conduct is likely to materially assist a foreign intelligence service. An example of materially assisting a foreign intelligence service could include being an undeclared intelligence officer carrying out intelligence activities in the UK.
Subsection (3) provides that conduct which may be likely to materially assist a foreign intelligence service includes providing, or providing access to: goods, for example supplying surveillance and recording equipment to a foreign intelligence service, with the intention of materially assisting their activities; services, for example providing IT services knowing this would materially assist a foreign intelligence service; financial benefits, for example providing ready access to cash to support UK-related activities; information, such as personal details, that could be used as compromising material, which is useful to a foreign intelligence service, about an individual.
Example (1): where the person intends to benefit a FIS under section 3(1)
Person D has two acquaintances, Person E and Person F. D knows that E is a foreign intelligence officer based in the UK, and that F is an influential businessperson in a sector which is relevant to E’s foreign intelligence work. D is known to be sympathetic to E’s country. E asks D to make arrangements for them to meet F in the UK. D introduces E to F and D knows this introduction would be beneficial to the foreign intelligence service . D is likely to be guilty of intentionally assisting a foreign intelligence service. F is unlikely to be guilty of assisting a foreign intelligence service unless F knew, or having regard to other matters known to them ought reasonably to have known, that their conduct was likely to materially assist a foreign intelligence service in carrying out UK-related activity.
Example (2): an offence committed under section 3(2)
Person A sets up a shell company for an acquaintance, whom he suspects works at an embassy, asking no questions. The purpose of the shell company is to provide funds to another company which is acting as cover for a foreign intelligence service. Based on everything A knows about this acquaintance, A ought reasonably to know that A’s conduct is likely to assist the foreign intelligence service in carrying out activities in the UK.
Example (3): where the material assistance includes information gathering under section 3(2)
Person B is being paid by Person C to carry out surveillance activities in the UK, including monitoring sensitive sites and buildings owned by the Security Services. B should know that C is an undeclared intelligence officer running a covert UK-based operation and is associated with a foreign intelligence service. B should be aware that their surveillance is likely to be used by that intelligence service. Both B and C have committed an offence.
	Subsection (4) defines "UK-related activities" as activities which take place in the UK or activities taking place outside the United Kingdom which are prejudicial to the safety or interests of the UK. Subsection (5) says that, when considering whether an offence may have been committed under subsection (1) or (2), it is not necessary to identify a particular foreign intelligence service. This enables the offence to accommodate circumstances in which someone has been misled and believes they are materially assisting one particular foreign intelligence service but are instead materially assisting another, or where a person seeks to sell information to any foreign intelligence service and is shopping around for a buyer.
	Subsection (6) states that subsections (1) and (2) apply to conduct outside the United Kingdom, but only where the person engaging in the conduct is a UK person (defined in section 2) or a person who acts for or on behalf of, or holds office under, the Crown, or is in Crown employment (whether or not they engage in the conduct in that capacity). The references to the Crown are necessary to ensure subsections (1) and (2) can be applied to those working in or with British embassies overseas.
	Subsection (7) and subsection (8) together provide for a number of defences.
Subsection (7) provides for defences to ensure that certain conduct is not caught by the offences. A person may raise a defence under this section if the person engages in the conduct in question in any of the circumstances set out at subsection (7)(a) – (d). These are: conduct in compliance with a legal obligation under the law of the United Kingdom, excluding obligations under private law (subsection (7)(a)); in the case of a person having functions of a public nature under the law of the United Kingdom, conduct for the purposes of those functions (subsection (7)(b); conduct as a lawyer carrying on a legal activity (subsection (7)(c)); or conduct that is in accordance with, or in relation to, UK-related activities carried out in accordance with an agreement or arrangement. The agreement or arrangement must be one to which either the United Kingdom was a party, or any person acting for or on behalf of, or holding office under, the Crown was (in that capacity) a party (subsection (7)(d)).
	Subsection (8) provides that the burden of proof in relation to the defences in subsection (7) is an evidential one.
	Subsection (9) sets out the maximum penalty for the offence. The offence is triable only on indictment, and the maximum penalty is a term of imprisonment not exceeding 14 years or a fine (or both). The inclusion of a fine is in recognition that the offence can be committed by bodies corporate or other similar entities (see section 33).
	Subsection (10) defines terms used in section 3 (many of which are also used in section 17). Subsection (10) defines a foreign intelligence service as any person whose functions include carrying out intelligence activities for or on behalf of a foreign power. The Government expects this to include an intelligence agency of a foreign state, or the military intelligence branches of a foreign army. However, this may also include a private contractor who is employed to provide security and intelligence services for a foreign power.