31 March 2006
This may be the first publication of a Court Summing-Up from a major UK espionage trial. More than half of this material was spoken in secret court sessions ("in camera") and so it was never intended to be seen in public.
[Two original documents, Part I, 62 pages, and Part II, 47 pages, converted
from DOC to HTML by Cryptome.]
Order No. 94 / 898 / S1
IN THE CENTRAL CRIMINAL COURT
Old Bailey,
London E.C.4
Monday, 15th November 1993
BEFORE:
THE HONOURABLE MR. JUSTICE BLOFELD
REGINA
- v -
MICHAEL SMITH
_____________
MR D. SPENCER Q.C. (Solicitor General)
MR J. NUTTING and MR J. KELSEY-FRY
appeared on behalf of the prosecution.
MR R. TANSEY Q.C. and MR G. SUMMERS
appeared on behalf of the defendant.
_____________
Transcript of the palantype notes of D.L. Sellers
(Official Shorthand Writers to the Court)
10 High Street, Leatherhead, Surrey KT22 8AN
SUMMING-UP I
Monday, 15th November 1993
SUMMING-UP
MR JUSTICE BLOFELD: Members of the jury, we are now coming to the last lap of this case, but this particular lap is going to be quite a long one, and I am afraid you may find it a little tedious, because hearing the voice of one person for quite a long time becomes quite a strain. So I will try and have breaks. I will go into camera when I turn to deal with the tradecraft and when I turn to deal with the scientific matters, but the rest of my summing-up will be in open court.
Let me start by telling you what our respective functions are. I have had to control the trial as it went along day by day. I now have two functions left. I have to give you directions on the law, and you must abide by my directions and apply the law to the facts. My province is to deal with the law. I have a further duty which is to remind you of such issues of fact as I think will be helpful to you in doing that. I do not have the duty slavishly to repeat every word of the evidence. If that were the case we would be here for a very long time indeed.
In reminding you of such issues of fact as I think will help you, there is a process of selection going on in my mind. By that very process of selection it means that you may come to the conclusion that I am forming a view about either the whole of this case or about certain issues in this case. I am fully entitled to form a view about anything to do with the facts in this case. I am fully entitled to let you know what my view is, but please bear in mind that your task is to decide the facts. That is your task and yours alone. It is not my task. It consequently follows that, if you think I am expressing a view about any of the facts, if your view happens to agree with what you consider mine is, no harm has been done. If your view is different from what you think mine is, please remember at all times that it is not only your right but it is actually your duty to disagree, because I do not decide this case on the facts; you do.
I should say this, that obviously in dealing with the issues of facts I will try and encapsulate them. It may well be that I am not actually expressing a view of my own in any event. I am simply trying to encapsulate the facts as I see them so as to present them for you to consider. So be very cautious of, at a later stage when you are discussing it, saying “The judge seemed to think this or that”, because it may well be that I have no view whatever on the particular facts; I am simply trying to help you concentrate on what seem to me to be the issues. Let me make it absolutely clear that it is not my task to express strong views about the facts on one side or the other, and I do not intend to do so. You have heard two excellent speeches, and I am not saying that as a matter if rote. They were both excellent speeches from the Crown and the defence. They have both set out their arguments as they see them from their standpoint.
My task now is to stand back. I am not here either to support the prosecution or to support the defence. My task is to stand back and effectively take you down the road in the middle between the two outsides, the two extremes, because that seems to me much more likely to help you than to be argumentative about it. But obviously there may be points I shall stress, which I think are pointers, that seem to help the Crown case or seem to help the defence case, or that I think you should consider because you may think that they help either the Crown or the defence. If I say the Crown or the prosecution they are one and the same thing; they are two simple words. So do not think that I am saying anything other than the Crown or the prosecution; it means nothing. Equally the defence -- I shall sometimes call Mr Smith “Mr Smith”. He will have to forgive me if I sometimes just call him “Smith”. It is not trying to be discourteous. I shall also refer to him as the defendant.
Now let me tell you next this: the Crown bring this case; the Crown have the burden of proving the guilt of this defendant. That burden never shifts. The defence at no stage in this case have to prove anything whatever to you. Before you can convict the defendant on any of the counts, the Crown have to satisfy you so that you are sure that he is guilty of that count. If you are sure you convict him; if you are not you acquit him. That is all there is to it.
In the course of my summing-up, I may well say to you, “Are you satisfied about this?” That is shorthand for the phrase “satisfied so that you are sure”. That is the standard and remains the standard throughout.
There are four counts in this indictment. It is open to you to return different verdicts on each. There are counts 1, 2, 3, and 4. So that is a matter entirely for you, because there are different evidential considerations in relation to each count. Whether at the end of the day in common sense you think that in fact you are likely to return different verdicts on each of the four counts is a matter for you, bearing in mind that the crux of this case -- and I will come to the law in a moment, although there are other factors as well -- the crux of this case is: have the Crown satisfied you that the defendant in fact was dealing with a Russian, whom he knew to be a Russian, or somebody acting on behalf of the Russians? That is the crux of the case.
Would you like to get your copy of the indictment out please, and turn at once to count 4. The Crown must prove that this defendant obtained or collected sketches, plans, models, articles or notes or other documents or information - the relevant words here are “articles”, that is the devices that are shown in your photograph page 1 (and that I am calling folder 1, so it is 1,1) and notes and sketches and plans.
It is accepted by the defence that this defendant took all these with him from HRC, so there is no issue about whether he obtained them; he did obtain them.
Next the Crown have to satisfy you that at least some of them were calculated to be or might have been or were intended to be directly or indirectly useful to an enemy. That is set out in very wide words. The Crown do not have to satisfy you that all the sketches, plans, notes, articles were in this category.
You have heard from a number of Crown witnesses, including particularly Dr Cundy who runs the HRC establishment and Dr Weatherley who was at the material time senior scientific advisor at the Ministry of Defence. They have given evidence that some of this information in their view was clearly useful to an enemy. You have heard from other witnesses to the same effect. You have also heard from Dr Maher, who has said that some of the information, but a very small amount, was useful to an enemy.
I turn now to the meaning of the word “enemy”. We are not of course at war. We have not been at war at any time during the relevant period, with either the Soviet Union or its successor body Russia; and I propose from now on throughout to refer to that land mass as Russia. We are all well aware that it has gone through all sorts of vicissitudes, and it was the Soviet Union, but I am not going to specify, because it means a cut-off date. So I am going to call it Russia; it is simpler.
I am equally, while dealing with it, not going to go into the successor bodies of the KGB, the RIS and the other matters. I am going to call them KGB throughout. It is shorthand for Russian Intelligence Services as far as I am concerned in this summing-up.
Turning back to the definition of “enemy”, as we have never been at war with them, in that sense Russia is not and has never been an enemy. The word “enemy” in this indictment and in the Act is directed to the supplying of information to anyone who, whether friendly or hostile at the moment, if they should become an enemy, would find the information of use. In other words “enemy” means “potential enemy”. This is clearly common sense because otherwise it would mean that nobody could commit this offence except at the time of war, and that is not the law.
Thirdly, the Crown have to satisfy you that this defendant obtained or collected these articles and/or documents for a purpose: for a purpose prejudicial to the safety or interests of the state. “Purpose” is an ordinary English word; give it its ordinary natural meaning. The word “prejudicial” simply means harmful or damaging. So the phrase can be expressed: for a purpose harmful or damaging to the safety or interests of the state. The word “state” means this country, the United Kingdom. Another word is the “realm”, the realm of the United Kingdom. It does not mean the Government for the time being, nor the executive.
No defendant charged under this Act is entitled to be acquitted because the safety or interests of the state in fact were not actually prejudiced, that is harmed or damaged. The point that you have to concentrate on is whether this defendant had any of these items for a purpose prejudicial to the safety or interests of the state.
The Official Secrets Act with which we are concerned gives you guidance as to how you should approach this task of considering whether a particular defendant had this purpose. At one point it says it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the state and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the state.
Consequently, in deciding whether the defendant had this purpose, you must take into account all the matters, drawing all these matters that I have referred to -- drawing such inferences from them as you think proper, that is the circumstances of the case, the relevant conduct and character of this defendant. These include, turning to his conduct and character, his early membership of the Communist Party and the fact that he severed his links with them as he did with the Young Communist League in the 1970s; all that ceased some months before he was employed on secret work by EMI in July 1976.
You will also have to consider the defence contentions that, at that time, he was a man of perfectly good character. The defence say that many people dabble in politics while young but grow out of it. You will also consider the defence case, which is that he was never in contact with a member of the Russian Intelligence Services but with a man called Harry Williams, whom he understood to be either a commercial rival or acting for a commercial competitor. In other words his case is that he was involved in industrial espionage only.
I should make it clear to you that, unless you are satisfied in respect of each and every one of the four counts that you are considering that the person to whom the defendant either handed over the information, that is counts 1 and 2, or intended to hand over information or make sketches or notes for the purpose of handing over, either handing them over themselves or handing over the information contained in them, was a member of the Russian Intelligence to his, the defendant’s knowledge, you should acquit.
The case for the Crown is not about industrial espionage, but about espionage that is prejudicial to the safety and interests of the state. If the person with whom the defendant was dealing in your view was or might have been merely a commercial competitor, or if the defendant may have thought the person was a commercial competitor or obtaining information on behalf of a commercial competitor, then the Crown would not have satisfied you that the defendant had a purpose prejudicing the interests or safety of the state.
I turn back to count 3, although some of what I have said applies clearly to count 3 already. Count 3 relates to the notes at pages 176-187. All my references are going to be to the blue bundle unless I specifically say so. Again the Crown have to prove that this defendant made these notes; that is not in dispute. He did make them; he said so. Then the Crown have to prove that some parts, not necessarily all of them but some parts of these notes were -- some of them there are sketches, graphs on the notes -- some parts of these sketches or notes were calculated to be or might be or were intended to be directly or indirectly useful to an enemy. The same direction that I have just given you on count 4 applies to these notes, in precisely similar words.
Finally the Crown on count 3 have to satisfy you that the defendant made these sketches or notes for a purpose prejudicial to the safety or interests of the state. Again the direction I have just given you about that on count 4 applies to count 3.
Turning to counts 1 and 2, here we have no documentation before us at all. They are two specimen counts relating to the period when the defendant was receiving payment from somebody. It is the Crown case that this defendant communicated to another information calculated to be directly or indirectly useful to an enemy for a purpose prejudicial to the safety or interests of the state.
The wording is identical in each of the two counts save for the dates. The dates are specimen dates. They are simply to break it up so that there is no question, if you should convict him of one or other, that you convict him of the same offence twice over. But they are specimens relating to any two payments, one really in the year 1990, which effectively on the Crown case starts after 24th September, the date of the Williams letter.
The remaining words mean precisely the same in these two counts as in the other two counts about enemy, usefulness, purpose and prejudicial. I do not propose therefore to repeat what I have just said about them. Again it is, on counts 1 and 2 as it is in counts 3 and 4, the defence contention that this defendant handed over information to a commercial competitor, and he never had the purpose of prejudicing the safety or interests of the state. The Crown’s contention is that he handed them over to a Russian for precisely that purpose. They say that is evidenced by the payment he received and by the fact that the Russian came back time and again, and they say was still coming back and prepared to come back on the date of his arrest. So much for the indictment.
You have heard some evidence about the classification of documents in this case. In the red bundle at page 553 is a document which gives guidance to civil servants who have the difficult exercise of deciding what documents to classify. That is helpful, but that document is not part of the law of this country. It is guidance to civil servants. You can make such use of it as you wish; you are not bound by them. Classification is done by civil servants acting on guidelines issued by the relevant ministry, like page 553. You do not decide this case on those guidelines. They are not part of our law; they are only guidelines. You have to concentrate on the words in the indictment which you have just been looking at. You can however pay attention and give weight to the markings on the individual documents in our blue bundle, and you can give weight to the evidence you have heard about classification if you wish to, if you consider that it helps you.
The defendant’s case is that he never considered that anything he gave or intended to give to another, namely to Harry -- and he had nothing in his possession that he intended to give at the time of his arrest because he was not giving him any more after April 1992 -- he says that none of that could possibly be prejudicial to the safety or interests of the state. None of the material he gave Harry had any military significance, only commercial significance. Unless a document was classified, that is bore the word “Restricted” or “Secret” or “Confidential”, he never considered that it could by itself, or in combination with other non-classified documents, be prejudicial to the interests of the state. The documents that he handed over to Harry might have been commercially sensitive, but they were not prejudicial to the interests of the state.
The Crown says that it must have been obvious to the defendant that the documents on a particular subject were together -- that is altogether -- clearly prejudicial, and that the defendant handed them over; and, in relation to the documents in his car, intended to hand them over for the purpose of prejudicing the interests of the state.
Again the Crown say in a nutshell that, if you are satisfied that the defendant was dealing with the Russians, as they say you should be on the evidence, then it is straightforward and obvious that -- if this defendant was handing over and intending to hand over further documents to the Russians knowing they were Russians, it is obvious that his purpose in doing so was to prejudice the safety and interests of the state. Why else would the Russians be interested? Why else would he be handing them over? If he knew he was dealing with a Russian, the Crown say it follows as night follows day that he knew perfectly well that they would be interested in documentation that prejudiced the interests and safety of the state, and he had that purpose in handing them over. That is why at the heart of this case the decision for you is: who was he dealing with?
So that it is absolutely clear, in case this case has to be considered elsewhere at any stage, count 3 relates to documents made in the defendant’s handwriting. They are the notes on Rugate filters, micro-machining project, quasi-optical car radio(sic), micron valve project and olfactory research project.
As far as count 4 is concerned, that relates to all the documentation in the blue bundle excepting the tradecraft notes, that is 271-276.
As far as the single page that was in a plastic container underneath the carpet in the well of the car, the Crown case about that is that they are not in the least concerned whether in fact the defendant was actually going to hand that over, or whether in fact these were notes that he made so that he knew what notes he could abstract, if he had the opportunity to do so without being detected, while he was at HRC. They do not mind if it was in fact an aide memoire for his own use or whether he in fact was going to hand it over. So with regard to that note, that particular single document, they say it is immaterial whether he was going to hand that note over, and you concentrate therefore on the documents in the holdall, which are now in the blue bundle from page 1-269 inclusive. 269, as you know, runs to a large number of pages, because we use all the letters of the alphabet and indeed it has got sub-numbers of 269/1 onwards.
One matter to get completely out of the way is this. It has never been part of the evidence in this case that this defendant was to his knowledge dealing with a Russian but was deceiving the Russian by handing over useless information. That is not his defence; there is no evidence to support it. If that thought crosses your mind dismiss it, because there is no evidence about it at all. So I mention it simply to get it out of way.
You will consider the Official Secrets Act. You will bear in mind that the defendant signed the Official Secrets Act twice: he signed it for EMI and he signed it more recently on 15th July 1986, a few months after he started work at HRC. It is at the red bundle, page 277. I do not propose to read it; it has been read and you can look at it if you want to.
It is perfectly clear, by looking at the second page of that document, that all the evidence points to HRC being a prohibited place. A prohibited place simply, in the circumstances of this case, is a place which takes part in Government/Defence contracts directly or indirectly. The unchallenged evidence is that some of the contract work that HRC did was directly with the Government and directly connected with Defence. That does not go to the heart of this case. The defendant, insofar as he gave evidence about it, indicated that he was not aware that HRC was a prohibited place. Members of the jury, you do not decide his guilt or innocence on whether HRC was a prohibited place; you decide it on the wording of the indictment following the directions in law I have just given you.
I turn now to another matter of law. The defendant has never been convicted of a criminal offence. When you consider his interviews with the police and the evidence he has given in this court, bear this in mind in his favour when considering the question of his credibility. But you will obviously remember that he disclosed according to him, in his later interviews and in his evidence, that he has regularly been stealing documents from HRC since 1990 and selling them for money to a man called Harry. You will obviously wish to take this into account when you consider how much weight to give to his good character, because you may come to the conclusion that, on his own admissions, the effect of his good character has been somewhat tarnished. You take that into account and give it such weight as you think fit.
Further, a person of good character is always entitled to put forward the argument that their previous history of good character does not indicate a propensity to commit crimes of the nature of which he is now charged. So the defendant can come here and say, “Well, I am not likely to be guilty of spying because I have never been convicted of any offence in the past, let alone one of spying.” Take that into account in his favour, but once again bear in mind that he has admitted selling his company’s secrets to a commercial rival. If you think that tarnishes the effect of his good character to some extent, you are entitled to say you will not give quite such weight to his good character when considering the question of propensity as you otherwise would.
The defendant has admitted that he lied to the police. You must consider why he lied. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons: for example, to bolster a true defence; to protect someone else; to conceal disgraceful conduct of his short of the commission of these offences; or out of panic or confusion. If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them. But if you are sure that this defendant did not lie for some such or other innocent reason, then his lies in his interviews can be evidence going to prove his guilt.
The Crown case is that he initially lied during the first part of his lengthy interviews because he did not want to disclose his dealings with the Russians. The defence say he initially lied because he did not want to disclose his dealings with Harry. The Crown say, be that as it may; once he had mentioned Harry there was no need for him to tell any more lies.
The fact that he still told lies: not giving Harry’s surname of Williams; not saying that it was Harry’s letter at page 271, the Williams letter; describing the meeting places where he met Harry falsely; saying that the tradecraft notes 273-276 had nothing to do with Harry, effectively, or indeed anything to do with tradecraft, are significant lies and are important in this case.
They say they are important because there was no good reason for him to tell these lies, except that he had been passing information and was intending to pass more information to the Russians. The defence case is that, by the time he mentioned Harry in these interviews, he had been interviewed for a long time; he was under stress; he thought that if Harry was found it might make more trouble for him, although at one stage he indicated he wanted Harry found, but in the stress he was ambivalent about it. He therefore says that his lies to the police are wholly understandable and they are in no way indicative of his guilt. You have to consider them on the basis I have just directed you.
You have heard in this case from a variety of experts. Some experts have dealt with tradecraft, some with handwriting, some with military matters, but the majority have dealt with the scientific matters. In this country we do not have trial by experts but trial by jury. That is yourselves. This means that you are entirely free to accept or reject expert evidence as you feel inclined. You will of course pay attention to the qualifications of the experts, and every one of the experts had excellent qualifications. You will not of course decide the case on numbers, saying that, because the Crown have called far more experts than the defence, that is a good reason for accepting the Crown evidence and rejecting the defence evidence.
You will consider in the case of each expert how they gave their evidence. You will have to decide for yourselves whether you found them to be doing their best to help you. You will have to decide whether you thought they were being objective. You will have to decide if you thought they were doing their best to make themselves clear to you.
You have to reach a decision on the evidence you have heard. Do not let yourself be frightened by the technicalities of the evidence. You must not approach the expert and technical evidence on the basis of, “Well, I don't fully understand what was happening so I can't make up my mind about this”. You may think that an expert who is really an expert will take great pains to make himself clear. Obviously, if you come to the conclusion that any expert in your view was deliberately trying to mislead you, you will reject his evidence out of hand. If you should do that, do not let the fact that you consider his evidence is tainted rub over and say that, because his evidence is tainted, any other evidence called by whichever side it is also tainted; that would be wrong. You have to decide on all the evidence, drawing such inferences from it as you think appropriate. So much for the law.
The rest of what I have to say to you is dealing with fact. I propose to deal with it by giving you a short synopsis, that is a precis effectively, of both the prosecution case and the defence case. By reason of its being a precis, it is going to leave out bits. I then propose after that to deal with the various different aspects. I shall deal with the defendant’s evidence as a whole at the conclusion, right at the end of my summing-up. I am going to weave in his evidence into the other bits but, when I am dealing with the witnesses called by the defence, I am going to weave them in with the prosecution witnesses, because I think it will help you more if, when I deal with the tradecraft evidence for example, in fact I deal with Mr P’s evidence immediately after dealing with Mrs C’s and Mr Gordievsky’s evidence.
Equally again, when I deal with the scientific evidence, I think it is going to help you more if I deal with Dr Maher’s evidence again immediately after the scientific evidence called by the prosecution. What I am going to do with the scientific evidence is I shall give you a general overview of the generalities both from the scientific evidence called by the Crown and Dr Maher, general scientific background; and then, when we deal with the individual subjects, I will deal with Dr Maher at the conclusion of each subject. I am going to deal with the scientific evidence at the very end of my summing-up, apart from the defendant’s evidence, which I will take as I say in one and in full.
The precis for the prosecution is approximately this. The prosecution say that the background of communism is the initial reason why this defendant should spy. They say that the coincidence of the presence of Viktor Oshchenko in London in the mid to late 1970’s as a KGB controller indicates that he was concerned with recruiting the defendant. They say that you have to work backwards with Viktor Oshchenko. They say that you have to consider the telephone conversation of 8th August where Viktor’s name was mentioned, and you have then to link back what is known of Viktor Oshchenko’s movements, because their case is that it is likely that this defendant was recruited by Viktor Oshchenko.
Members of the jury, whether he was or not is not the main issue in this case. The main issue is: was he supplying or intending to supply to a Russian? So whether it is Viktor Oshchenko in the background, as the Crown contend, may be a strong plank in their case -- it may be not such a strong plank -- but it is not at the heart of their case.
They say that he went to EMI, was engaged in secret work. They do not express any view, the Crown, as to whether or not he was spying for EMI. There is not a shred of evidence to show that he was. They say that some time in the 1970’s -- 1977 is the date his passport shows he went -- he went to Portugal, and that what he did there was a test to see whether he would work for the KGB. They say that for some reason or other he was put on ice. He then received in September 1990 the Williams letter, and that activated him, and they concentrate their case on what happened after the Williams letter.
They say that the tradecraft notes and the defendant’s forced admissions, which they say are half lies because he was doing his best to get out of an impossible situation but never did tell the complete truth, demonstrate that there were regular meetings from September/October 1990; substantial sums of money were passed over and from those sums you can easily draw the inference that the information handed over by the defendant to the Russians was both useful to them, and that the defendant knew it was useful or might be useful, intended it to be useful and had the purpose of prejudicing the interests or safety of the state.
The Crown say that the tradecraft documents are at the very heart of this case. They say the detailed fall-back arrangements shown in these documents strongly indicate that the defendant was passing information to somebody on whom the British Intelligence Services would be trying to keep a close eye. That could only be a potential enemy. In all the circumstances, it would only be somebody from behind the Iron Curtain but, as tension had relaxed because of the political upheaval in Russia and behind the Iron Curtain, and as the other countries had withdrawn from spying, in reality it could only have been the Russians.
They say that it simply is nonsense to suggest that those tradecraft notes, with their detailed fall-back arrangements and detailed provisions for meeting, could relate to an industrial spy, because the Intelligence Services of this country would have no reason to keep any eye on anybody who was concerned with industrial espionage. It is not their remit; they have no duty to catch people who may be indulging in industrial espionage. Consequently there is absolutely no reason that somebody who wants to commit industrial espionage cannot ask somebody to his house. He is not going to have the Intelligence Services observing him. He is not going to have somebody from HRC -- they are not going to have teams of people looking out for industrial spies. They could meet at a pub; they could meet at a restaurant; they could ring each other up.
Then you come, say the Crown, to the final few days before the defendant’s arrest. They say that in fact, on 25th July, Viktor Oshchenko defects. He has been a KGB controller for many years in France, running a network of agents in France. He comes to England and, on 31st July, the Russians, having made enquiries of the French, make enquiries of the English and discover that he is in England. That would alert the Russians, so the Crown say, that he would be giving or had already given information to the English about his contacts in England. They dare not contact this defendant, the Crown say, because it would be too risky.
They say that Smith goes to a meeting on 6th August, a meeting set up well before Oshchenko’s defection. He is not met by a Russian. The next day there should be a fall-back arrangement. He is anxious, and he does have a row with his wife because he is anxious to keep that fall-back meeting. He dare not disclose to his wife the reason, and he goes with his wife reluctantly for a jaunt to the seaside because he cannot get out of it.
Then as chance would have it -- because you must bear in mind that the British Intelligence Services on the evidence had not the faintest idea that the defendant had arranged a meeting on 6th August at which no-one had turned up, and had no idea that on 7th August, because of his wife’s plans, he could not keep a fall-back plan -- on 8th August the telephone call, by the sheerest chance, comes at a moment when this defendant would be anxious because he has not been able to be in touch with his Russian controllers, they say. Consequently the telephone call with the bait on it, like the worm on the fisherman’s hook, might have been rejected but, as it happened, because of that particular background, they say that the defendant swallowed it, left the house and went to the telephone box because he was anxious to get in touch, for all that he may have had some suspicions because it may have been a somewhat odd scenario for him. But they say his movements point irresistibly to his guilt.
They say that his remark in the car and then his lies in the interview confirm that he knows that he is guilty but he is wriggling, trying to find a way out and trying to explain the evidence as it is presented to him. They say that he knew perfectly well the papers he took from HRC would be useful to the Russians and prejudicial to our interests. They may not all of them have been of the greatest importance; he may not have fully appreciated the importance of all of them, but he took them quite deliberately and his purpose was to give them to the Russians.
He took them, and he took as many as he did, because those were the subjects that the Russians wanted to know about. He knew perfectly well, they say, that they particularly related to Rapier, the Rapier documents, the delay lines, and he could infer clearly that the SAW documents also were of military significance.
They say that his answers on 8th August telephone call indicate he knew quite sufficient to know what was happening, as his movements show, as I have already said. So that in a nutshell is their case.
The defence say that this is nonsense. They say that many young people get involved with politics or for that matter extreme religions, sects, cults; it is experimentation; it is part of growing up; you grow out of it. It does not mean once a communist always a communist. People are perfectly entitled to have a brush with communism and then grow out of it.
They say that there is no evidence whatever to suggest that that map of Portugal suggests he was there with the KGB. They say that is so far-fetched as to be ridiculous. They say that his attempts to get his classification renewed to do secret work is an indication that points to him being in no way connected with the Russians.
Members of the jury, may I say straight away that you want to consider that because that seems something you should consider. Whether of course at that stage [1979-82] he was in contact with the Russians we do not know, because the defence case is that he has never been in contact with the Russians. The Crown case is that he was reactivated in 1990 or activated. When he ceased, as it were, when he was put on ice, the Crown are not able to say.
They say that it may be unfortunate that Harry rang him up, and it may be unfortunate that he was prepared to hand over documentation from HRC to Harry but that, when you stand back and look at it, his movements are consistent with his dealing with Harry and not with the Russians. It is entirely consistent that he should have a meeting in March, a meeting in April, not hand over any documents, and then get a letter from Williams in September as a result of which he starts to hand over documentation. They say that the evidence of his severing a relationship with Harry in April 1992 is entirely credible, and indeed there is no evidence called by the Crown to refute it.
Then he got his notice of redundancy in May. It was perfectly understandable for him to make lecture notes because he was interested and he was working for HRC. As to the notes, the other notes from pages 176-187 which were not lecture notes, he made those to help his successor, Mr Nott, who then did not take over so, when he was bundling up his notes, he took them with him. But he had a very busy last day; he took most of the documents in a hurry, although he took two of them -- that is pages 1-49 and the two documents at page 269, the flow chart -- because he thought they would be of use to him when he got a job next as a quality assurance engineer, because they were useful blue prints which he could use if he had to do work in the future.
He says that his movements on 6th August were entirely explicable; that he did indeed go to buy Keyboard magazine and furthermore that, because of Harry, it was not unreasonable for him to go out of curiosity to the bench by the church and sit down. He was not really expecting to meet Harry but, as it had been a fall-back arrangement, he went just on the off chance. They say that to receive a telephone call on 8th August out of the blue, when it is relatively early in the morning -- it is nine o’clock; you have been having a private domestic life -- he had been in bed with his wife; he had brought her a cup of tea; she is a nervy woman -- his movements and his answers are entirely explicable and, if he is a bit more curious than the next man about the telephone call, well there is nothing sinister about that.
But when he was interviewed he did not like the superintendent’s manner. He lied because he thought there was nothing in it; and then he was under stress, as I have already indicated, in the latter half of the interview. He says that the vast majority of the information that is contained in the papers that he took on his last day is of no importance whatever; it is old; it is out of date; it would not help any enemy; it would not help any competitor. It ties in with his explanation that he was not going to hand it over to anybody. It was pure chance it was in the car.
He says that Dr Maher was a cogent and expert witness, who explained it in great detail clearly to you, and you should accept his evidence. He says that Mr P, the American tradecraft man, was entirely convincing, and he effectively pooh-poohs the fact that those tradecraft notes are Russian tradecraft notes. So he says those two experts bolster his defence and effectively, with his account, they in fact demolish the prosecution case.
You have a chronology, do you not, in front of you? Can we pick it up at 1990. You need not bother to find it unless you can find it easily. That is one of the few documents I am going to refer you to. You see it starts with September and the Williams letter. It is in fact September 24th that it is dated, arriving the next day, he said, September 25th. In May 1992 he gets informal notice of redundancy, on May 14th, and formal notice on 28th. The other notes deal with the final concluding dates. I do not propose to refer to it, because I have referred virtually to all the dates already, but you may find when you are carrying on your discussions that this is quite a useful document to have, because it is quite easy to get muddled about dates. So I can pass over that quickly.
I am now going to go straight away to Saturday 8th May [August] 1992, because I am to a large extent going to deal with this case in the way that it developed. So we start on Saturday, 8th May [August] with the telephone call.
The defendant and his wife are in his house in the bedroom. At 9.02 the telephone call is made. You have listened to the tape on a number of occasions. If you want to, you can listen to it again. I am not going to ask for it to be played during my summing-up. You have a transcript of it at page 553 [552] of the red bundle. It mentions Viktor; it makes a plan to go to a telephone box. The caller is a member of the British Intelligence Services. He, the defendant, in fact leaves the house about 17 or 18 minutes after the telephone call. He gets to the phone box about 9.18 or 9.19. I beg your pardon; he gets to the telephone box about 9.23. He leaves at 9.20. Mr B, who is pretending to be George, after ringing the defendant’s home telephone number, rang the phone box at 9.19, but that was before the defendant got there.
The photographs show that the defendant goes partly inside the box. You have now got the new sequence because some photographs, the ones that he the defendant was shown in his interviews, were not in your original bundle; they are now. He walks away a few yards. He returns to the phone box. He then walks away and goes up the road away from home. He comes back at 9.25. He returns to the phone box and he says that he sits on the wall beside it for a short time.
There were two police officers who said he sat on the wall. Woman Police Constable Plummer initially said -- and I say initially; she was not recalled -- that he sat there for seven minutes. She is obviously totally wrong. The photographs which had a time on them show that. He sat there just for a short time, half a minute or so. There is not in fact a photograph of him sitting on the wall; there does not seem to be anything particularly sinister about that: he went back; he sat on the wall. You will have to consider whether there is anything sinister about the whole of that operation.
You have now seen the photographs. The defence contention is that it may be the prosecution were trying to bolster up their case initially. Against that is the fact that two of the photographs that they did not put in show him rather more inside the phone box than the ones you already had. If it is just a mistake, well then there is nothing in it from one side or the other, but if it is sinister that is a factor on the defendant’s side.
He then though goes back towards his home. He buys a paper in his local newsagent, and he is arrested. He struggles. He is put into an unmarked police car and he is driven off towards Kingston. He got to a road where there is a fork -- one road goes to Kingston the other road goes to central London -- and they do not go down the Kingston road. The defendant, who has been struggling, is handcuffed and says it is very uncomfortable. He shouts out, “You are not the police. I know who you are. I am being kidnapped. Help me; I am being kidnapped”.
The Crown say that “I know who you are” is a curious remark to make. Does it mean that he thought he was being kidnapped by the KGB, or taken to a meeting, or does it mean something else, or is there nothing in it at all? The defence say there is nothing in it at all.
He started to struggle. The Special Branch ring for uniform police; uniform police turn up. Once he sees that there are uniform police, he is taken off and he goes to Paddington Green Police Station; and there we will leave him for the moment while we go back to his house.
Over the next few days his house and his car were searched. So was his wife’s car. His wife’s car was found but nothing of any interest whatever was found in it. In his car, a Datsun, was found a blue sports bag. You have a photograph of it but we do not want to look at it again. We have seen it once, and a blue sports bag looks like a blue sports bag. Inside the blue sports bag were plastic bags and inside those plastic bags were some documentation, the documentation we have -- it is in our blue bundle. The plastic bags are shown outside the blue holdall in the photographs we have. They are ordinary plastic shopping bags. In the Datsun, in the well on the driver’s side, in a plastic bag, was the document 270, the list.
His house was searched. When the bedroom was searched, in a drawer in a table by the window was found a brown envelope. In it were the tradecraft documents and the Williams letter, all together. The fact that they were all together the Crown say is significant: in the same drawer but not in the same envelope. Although it was wrongly put by Superintendent McLeod, who obviously misunderstood the situation when he was interviewing him, that the money and the tradecraft notes were in the same envelope, they were not; they were in the same drawer but not in the same envelope.
Also was found a map of Portugal -- you have got that -- and also other documents showing a sketch map of the camp site. But it is the map of the centre of Oporto which is the only one of significance. His computer was seized. Nothing that came out of the computer is in the slightest bit relevant except for one letter, again in the red bundle. There is a letter that he wrote in May 1992, suggesting that he would like to change his job, because there was a query about whether in fact he might change his job and remain on in HRC.
On him was found three £50 notes. The £2,000 in £50 notes was found in the drawer. Now, let us turn to money. Detective Constable Say went through the defendant’s financial affairs with a fine tooth comb. He has produced a detailed schedule. Would you mind getting this one out, because it has not been looked at very much, and I would like to point out one or two things to you for your consideration. Detective Constable Say listed the defendant’s bank accounts and his Abbey National Building Society account. He also lists certain purchases which he has been able to list from receipts found in the defendant’s flat. From all these documents he has prepared this lengthy schedule. He in fact analysed it and I can take it quite shortly.
There are unexplained cash purchases -- that is in the middle of page -- which total £10,653.70. Dates may or may not be of interest. The defendant says that, after Harry’s telephone call in January, possibly early February 1990, he had a meet in March and was paid £500. He did not hand over any information. They had another meet in April and he was paid over another £500. He did not hand over any information. This schedule shows no unexplained cash purchase before 17th October 1990.
The Williams letter is dated 24th September. The Crown say that it is significant that all unexplained cash purchases and all unexplained variations of his normal way of living come after the receipt of the Williams letter. So they say that that confirms their contention that the Williams letter is not a letter from Harry but it is a letter from the Russians, because there is no sign of the two payments of £500.
Cash was also deposited into the Abbey National, total £1,925. The first time cash was put into the Abbey National was on 19th February 1991. The last time was 8th June 1992, that date being after April 1992 when the defendant said he had his last meeting with Harry.
He paid for his groceries, as the first page shows, regularly, by going to Sainsbury’s, but the last cheque that he paid in such a way is 7th November 1990, shortly after the Harry letter but quite a few months after the two payments of £500. But of course the two payments of £500, you could say, were not in themselves sufficiently large necessarily to show up on this schedule.
There were automatic cash withdrawals, but they ceased in August 1991. So if in fact you add to the amount of £10,653 and the £1,925 the amount that he was not spending on groceries, which comes to £3,370; and the fact that he was not having automatic cash withdrawals for his own petty cash at £44 a week, that is another £2,640; with the cash found in his home of £2,000 it all adds up to £20,588.70.
The defendant said in evidence that he got about £20,000 from Harry, so the total that Detective Constable Say analyses in this document ties up with what is now the defendant’s account. But of course, when Detective Constable Say was doing this analysis, the only evidence that the Crown at that stage had was the evidence in the interviews, when the top figure was approximately £12,000. Detective Constable Say’s analysis, without knowing what the defendant was going to say in evidence in this case, has turned out to be spot on.
Do you draw an inference from the fact that there are no cash payments before the Williams letter? Is that significant or are they too small? Is the cash being paid in up to June 1992 of significance, or is that just the fact that somebody might not have paid it in until later? Just like the £2,000; might he have had it several months or does the £2,000 there -- is it a pointer that in fact the defendant is not telling you the truth, when he says he has not been in touch with the person to whom he has been supplying information since April 1992? That is for you to consider. So much for that document.
Now I am going to turn to tradecraft and so I am going to ask if the gentlemen of the press would mind leaving. While that is happening, let us have a break.
(Short Adjournment)
(In Camera)
(SUMMING-UP continued)
MR JUSTICE BLOFELD: The Crown called really two witnesses who dealt with tradecraft in general and other witnesses who dealt with specific matters. Mrs C, who has a lifetime in the United Kingdom Intelligence Services, and Mr Gordievsky who started life in the KGB and is a defector, both gave you information broadly about tradecraft and then specific evidence. When I said “information” I meant evidence about the tradecraft documents.
Both told you that a controller should always make sure that an agent does not make notes or at any rate destroys them after he has memorised them. Mrs C, who of course has mainly seen the evidence of KGB in this country directly, not overseas, although she has no doubt been in touch with people in America and elsewhere, told you that in her experience agents do not always destroy notes. That is really saying no more than, if we talk about criminals in general, if criminals were sensible they would never leave any evidence that would convict them. The experience of these courts shows that people who commit crimes do make mistakes; they should not, but they do.
Mr Gordievsky points out that KGB controllers are sometimes hesitant to insist that agents destroy notes because, by harping on that subject, it implants into the agent’s mind that there is a serious risk that their activities may be discovered and, if their activities are discovered by the country whose citizen they are, the results will be disastrous for them; and that, by harping on the disastrous side of it, it might deter them from taking the risks that the KGB would like them to take.
A word at this stage about agents: If you like to just think about it -- but this is just common sense -- no intelligence service can pick its agents. You do not advertise in the paper: “Agent wanted for KGB controller; preferably with direct information about X, Y and Z”. You pick your agents where you find them. If you are lucky enough to find someone, you have to take him warts and all.
Some may be amenable to discipline; some may be eccentrics. It may be that those who are prepared to spy against their own country tend to be a bit of an oddity by the very fact that they are prepared to do it. They may be opinionated; they may not be amenable to total control by their Russian controller; they may have a mind of their own; they may think that they are clever; they may think that they will never be found out. But, if they are in a position to supply useful information, unless the risks are too great, obviously a foreign intelligence service will consider closely whether the pluses for them outweigh the minuses. If they happen to have the necessary qualifications, which might mean then or in the future they will actually give good information, it may be that the intelligence service will say, “Well, we do not actually really much like his approach; he does not really listen to us; he does not actually necessarily bring us the documentation we want. But he is the only man we happen to have, and we cannot get anybody who actually knows exactly what goes on in this or that crucial research establishment or government office or whatever it may be.”
Turning to the pages 273-276, both Mrs C and Mr Gordievsky were confident that the majority of the wording related to tradecraft. Members of the jury, pause and consider this at the moment. As far as both those witnesses are concerned, when they came to look at those documents, they had no way of knowing that it would be this defendant’s case, now in court, that there are matters in these documents that relate to tradecraft, relating to the transfer of information from HRC to somebody, Harry as the defendant says. At any rate Mrs C and Mr Gordievsky were right about that: they do relate to tradecraft. They could not know what the defendant was going to say because in his interview he denied that these related to anything to do with Harry.
Mr Gordievsky says that the letter at page 272 looks like a letter written by a KGB case officer to activate an agent who has been put on ice and not been contacted for some time. Curiously enough, the defendant says he was activated not by the KGB but by Harry after a gap from April. So the broad contention that Mr Gordievsky gave in evidence turns out to be accurate. Mr Gordievsky, looking at pages 272 the letter, described the wording as being familiar to him and similar in its slightly enigmatic language to the language that KGB case officers are taught to use.
There is now, as I said, no dispute that these notes relate to tradecraft. However, it is still strongly denied that the map of Oporto has anything whatever to do with tradecraft. The defence case now is that these pages do not in any way indicate that the tradecraft is specifically orientated towards Russia.
As far as the map of Oporto is concerned, both Mrs C and Mr Gordievsky said it could relate to tradecraft but they both were at pains to say they do not regard it in any way as conclusive. It might; it might not.
Mrs C joined the service in 1969. She is head of her section. She has studied methods and techniques of hostile powers particularly Russia. She has met a number of defectors. She said the tradecraft is an indication of an intelligence gathering service. She agreed that other intelligence gathering services use tradecraft. She said that these notes have the hallmarks of the KGB working in this country. She said that as far as she was aware in the United Kingdom only Russia and the Warsaw Pact countries use this type of tradecraft. The security services, she said, do not deal with industrial espionage.
Dealing with the map of Oporto, she said the marks could be interpreted as tradecraft but they could be innocent. She was criticised for not knowing about buses and bus stops, but you must remember that the defendant when he gave his explanation said they related to places of tourist interest, so when she went to Oporto she was not looked [looking] out for bus stops. We have heard that part of the interview and you have the index of the interview and we will deal with that in its proper place.
She said that Russia regards the United Kingdom as a hostile environment in which to operate and she pointed out -- I think it was she; it may have been Mr Gordievsky -- that there is a limitation from the embassy; they can only can only go within I think it is 25 miles of the Russian Embassy so they cannot go all over the country.
Portugal was nothing like such a hostile environment. It was a good place to meet an agent because obviously you could meet an agent without somebody seeing you were meeting an agent so you could have long confidential chats with him. You could go through what he had to do. You could debrief him. I think he had been giving you information that you could assess him, get to know him, make suggestions to him, all the things that somebody might want to do if they were running an agent. You could equally put him through a test to see if he was reliable. Well, you will have to consider her evidence.
She was recalled in fact and she said, turning to the letter at page 272, that, if the KGB wished to write a letter, they would not do it themselves, because they would suspect that their handwriting was known, and they would suspect that their fingerprints might well be known too because they would have signed visas and documentation on coming into the country and, in order to do that, their fingerprints might have been on the paper when they were signing the documents and so this document might be traceable. So what they do is get a clerk in the office to write it.
She said that it was not her experience, in this country at any rate, for the KGB to give an English agent an escape plan. If they were dealing with illegals, they would give them an escape plan. An illegal is, in a Russian case, a Russian who is masquerading as an Englishman, so he is not betraying his own country; he is doing a job of work for what is actually his own country Russia. He is pretending to be an Englishman and he is passing information to his own mother country; and of course, as he wants in due course to end up back at his home which would be Russia, there is an escape plan for an illegal but not for an Englishman who is not a Russian at all.
She said that she had been involved in certain cases and said yes, it is quite right that Blake, who was an Englishman spying for Russia, did escape, but he did in fact escape after he had been convicted; after he had been in prison he in fact escaped from prison. She said there was no escape plan. Another one she mentioned was a man called Vassall, the Admiralty spy.
She gave us the dates relating to Mr Oshchenko’s defection, which are in the chronology so I need not refer to those.
Let us turn now to Mr Gordievsky. Bear in mind that Mr Gordievsky has been strongly criticised. The defence say that you should not believe anything he says for a number of different reasons. They say first of all he has been paid by this Government after his defection, and so he is quite prepared to say something to continue being paid. They say that, by reason of being a KGB controller, he has been practising lying for many years; it is part of his make-up, in order to be a successful KGB controller. So it would be remarkably difficult for you to decide whether he is lying or not, and there is a real risk that once a liar always a liar. They say he quite clearly is also exaggerating, in order to boost his own self-importance, what he discovered in these documents.
They say he is to be criticised because he did not appear to take any part to help dissidents get rid of communism, to which his reply was, “Well, I was busy supplying information in fact to the allied countries at that stage. To draw attention to myself as a member of the KGB by helping dissidents would have been a crazy thing to do.
Then it is said he mentioned in the final bit of his cross-examination a number 6 bus stop, and said that he mentioned number 6 because it went past his house. It is said that he must have talked effectively to Mrs C about it, and you must make what you will of that matter. So it is said that he is not in fact here to tell you the truth; he has exaggerated and he is ingratiating himself. So when you are dealing with him as an expert, as well as examining his actual expertise -- after all those years in the KGB probably no-one is criticising that he has the experience to be an expert -- but they are not saying he has got it wrong, because he is an expert; they are saying he has got it wrong because by his very character he is an untrustworthy witness. That is the defence contention.
Now let us consider what he actually said. He said he joined the KGB in 1962. I am not going to go through all his early history. He was trained in the usual way. He said that sadly in Russia you have to lie in order to survive, because otherwise you just cannot survive. He told you about those matters. He worked in Denmark. In 1974 he contacted British Intelligence, and he was acting as a double agent effectively until the KGB found out 11 years later in 1985. He was in the United Kingdom from 1982 to 1985, and was acting head of the KGB in this country for a period in 1985. He had active operating experience of running agents while in Britain and while he was with the KGB in Denmark. In May 1985 he was recalled at short notice to Moscow, and he was there rigorously interrogated on suspicion that he was passing information to British Intelligence. He was given some sort of truth drug, but he said that he did not in fact admit he had been disclosing information, which seems abundantly clear because he would never have been released if he had, and he was released and he made his way by an undisclosed route and succeeded in making his way out of Russia and coming back to the West. In his absence the death sentence has been passed upon him and, if he ever sets foot on Russian soil, then, as that sentence has not been revoked, it still stands.
He described what he knew and was relevant to this case about the workings of the KGB in England. Their two main buildings are in Kensington Palace Gardens, where the diplomatic service work, and the trade delegation which has its headquarters in Highgate Hill.
The Russians meet their agents mainly in the North and the West of Greater London, frequently in park areas. Roxeth and Horsenden are known to him as places where they meet. Elaborate arrangements are required for a meet, first of all because it is known that British Security Services follow known KGB officials, and so all KGB officials have to work on the basis they are being followed, and have to shake off any follower whether they have got one or not. This has been referred to as laundering or dry-cleaning. They have to be certain they are not being followed. This may involve other agents who are watching their backs to see if they are being followed. They listen to short wave radio. They have got a big transmitter so they can hear if the security forces -- in this country, the police and such like -- are running any operation which might be targeted on them.
He said that a number of KGB officials live, when they are in England, in a house in Edith Road. We will come back to that. He looked at the letter at page 272 and he said it was similar in formulation to the way that KGB officials are taught to phrase a letter, in its slightly enigmatic language. It looked to him like a letter written by a KGB case officer. He then dealt with page 275. You can look at it if you want -- it is entirely up to you -- but I am not going to get it out and go through it in detail, although I shall refer you to one or two documents in a moment or two. He said there are indications that are indicative of Soviet tradecraft: the mention of, as it were, the Saturday of every month; the visual signals; meeting place and fall-back meeting place, Horsenden Hill, well known and used by KGB agents for contact break; is classical KGB behaviour.
Document 274 he found extremely interesting. He said that KGB case officers are trained not to be too blunt with their agents but to use a phrase like “I suggest”. He said that the area of Harrow/Perivale/Sudbury is an area used by the KGB technological branch. They are interested in getting technological and scientific information. He emphasised that the KGB is always asking about access as they want further information from the agent.
Then he turned to 276 and said that was a note that he, when he was working for the KGB would like to have had, and he would have put it into a handbook for training potential KGB controllers; that this one, he said, in his view contained a shopping list for information for delivery, that is biosensors and that list running down to HTSC, high temperature semi-conductors.
MR KELSEY-FRY: Superconductivity.
MR JUSTICE BLOFELD: Thank you very much. It indicates the agent is being asked to be a talent spotter -- that is part of the KGB’s way of working -- Karl Gehring. Then the KGB, if he was mentioned by a talent spotter as somebody who possibly might be approached for various different reasons, or might have access to important information -- well worth knowing his name -- he would be asked his address and telephone number; and, he says, there is “Get Karl’s address and telephone number”.
It has the vertical and horizontal signs. It has the reference to Abbotsbury Road/Melbury Road, and he considered that important, and it is something you will have to consider very carefully. It is well-known to him because that is an area very close to Edith Road where KGB officers live, and an agent who wishes to contact his case officer can leave a sign like an empty coca cola can so that the case officer can see it as he drives past.
I want to stress that it is not the case officer leaving a sign for the agent; it is the agent who can then indicate that he wants the case officer to get in touch with him.
He regarded that, as I say, of considerable importance. He says that his experience with the British Intelligence Services indicates that, with the best will in the world, they simply do not have enough personnel to follow every KGB case officer all the time.
He said that the map of Oporto may have a tradecraft significance. He is struck by where the crosses are placed. The circle drawn on the map round the crosses, you will remember, may indicate the route to be taken. You will note these are all ‘mays’ and ‘coulds’; he is not being positive about it. He looked at the photographs of the area and he said they are all parts (where the crosses are) which are suitable for an agent to be watched so that, unbeknown to the agent, it could be seen whether he could be relied on to carry out instructions -- to see if he is going to prove competent and useful -- because one of the difficulties if you have an agent who is a maverick, who will not obey instructions, not only will he not give you any information but he could disclose to the Intelligence Services the identity of the KGB officers, and that is the last thing they would want.
He described the last meeting(sic), that is the one where there is the museum and the restaurant, as a nice place for a meeting place, but he said that this map is what he called a “fragmentary piece of evidence”.
He said at the start of his cross-examination that he was trying to be fair and impartial. He said he had not exaggerated his evidence. He gave details of his pension, which he wrote down on paper; you saw it. He said, when pressed, that he did feel, as a former KGB officer, that he had not the slightest doubt that these notes 273-276 were dictated by a KGB case officer. He said individually they had weight but they had more weight when you looked at them in combination. He said he saw no reason why he should lie to a British court of law. He said he took no part in supporting liberal demonstrations; I have dealt with that. He said KGB tradecraft essentials were founded some 70 years ago and were found to be extremely efficient.
He was not impressed by the children’s book, even though he did not know it had the name Viktor in it at the time, because it was not put to him; and not impressed by descriptions of tradecraft in novels. He agreed that tradecraft and many details of tradecraft are known in the public: they are in books; they are in novels; indeed you have got a document which has been prepared by the defence listing various novels by John Le Carre, Ted Allbeury and others, drawing attention to the fact that they are in many books. I am not going to refer to it again but it is there and you can read it and make of it what you will.
He agreed that it is perfectly possible for another country to set up a false flag, in other words for another country to use KGB tradecraft so that it looks as though it is the KGB having an operation when it is not. Members of the jury, is that what we are talking about in this case? It looks as though -- though it is a matter for you -- it is either an English trade competitor or it is the Russians. It is not another foreign country.
He agreed that industrial espionage is a major activity worldwide. He had heard of some of the examples that were put to him and not of others. He said however that there was one important difference between industrial espionage and espionage for a foreign country: the British Intelligence Services do not follow those who are searching for industrial secrets, so elaborate plans for meeting and avoiding being traced are wholly unnecessary.
He said he had never seen the combination of elements that he found in all the documents 273-276 in other intelligence services. He was asked about French Intelligence and said he had experience of it, and gave us details of one operation about French Intelligence.
He said he had read a large number of factual books about the matter but did not seem to have much time for, or to be very impressed by spy novels.
He said the vertical and horizontal marks were common pieces of tradecraft used worldwide by all sorts of different intelligence agencies or by individuals. They could vary from country to country.
He stressed on many occasions that he was looking at the whole picture. He was taken through each page by the defence and he agreed that each individual element in isolation could well relate to another country or to an ex-agent from the KGB or another source who was trying to obtain information for industrial espionage, but he still maintained that the picture taken as a whole pointed to the KGB. He emphasised strongly the importance of Abbotsbury Road/Melbury Road being near Edith Road, and he said that the shopping list on page 276 was something that he relied on as a pointer. He said about notes that agents should get rid of them but they sometimes do not.
Members of the jury, you also heard from Mr E. Mr E, you may think, is on the fringes of this case. He was a U.S. citizen. He served back in the -- well, prior to 1975, in the U.S. Navy, in the ranks, as a petty officer. He came to this country some time in the 1970s. He was working, after 1975 that is, in a hi-fi shop in Tottenham Court Road. A man came in. He identified him from photographs as Viktor Oshchenko. He talked about hi-fi. He was going to go back to Russia and wanted to take a good hi-fi system back to Russia. They talked about hi-fi. He came twice at least to the shop.
They had several meetings in restaurants. Viktor paid him money from time to time. Viktor was trying to persuade him to give information to him. He told Viktor that he had been a radar technician while in the U. S. Navy. After a length of time Viktor called a man who was called George, so at any rate those two Russian controllers that Mr E was seeing actually called themselves by their first names, Viktor and George, according to him. Then, after George came on the scene, there were one or two meetings with Viktor and George and Mr E. Then Viktor returned to Russia and George continued to take him out.
In July 1979, Mr E went for two days to Portugal. George gave him an envelope sealed to hand over to a contact. He stayed in a hotel, got a phone call and handed over the envelope. He saw George on his return to this country and reported. Later he saw George and George accused him of opening the envelope that he handed over. Mr E said he had not opened it. There were still meetings after that with George, but they tailed off and he never saw him much more. In the end he never gave him any information.
He said he was uncertain about dates it was also long ago. The two dates that are hard, because they are not in dispute, are the date of his trip to Portugal, which we can get from stamps in his passport July 1979; and the other recorded fact is that he went and reported on this to the U.S. Intelligence in May 1980.
In his evidence to start with he said he first met Viktor in 1977. He was shown a statement that he made to the police about this last year. In it he wrote, “I wish to indicate that, about three months after meeting Viktor, my suspicions were aroused. Next day I went to the U.S. embassy.” The defence say that the way that is phrased means that he went to the U.S. embassy three months after his meeting with Viktor. That clearly cannot be accurate because his passport shows that he went to Portugal in May [July] 1979. Mr E says that was at the Russians’ request, and he did not report, as we know, to the U.S. Intelligence till 1980. He said that, when he made his original statement – which actually is not the one that he was referred to, because that was a longer one and the one he was referred to was a short statement amplifying it -- he had not actually got his passport there in front of him and so he could not remember the precise date of his visit to Portugal, and so he got confused about it, because we are now in 1993 and this is back in 1979. The defence say that that confusion of dates makes Mr E unreliable.
They say that in evidence he said he got about a hundred pounds a time from Viktor or George, and he did say that. In his statement he said he could not remember the amounts of money, but on one occasion he got £35. So they say there again he is inaccurate and unreliable.
He also in his statement said that it was George who arranged for him to go to Portugal. In his evidence he was not certain whether it was Viktor or George, so whether it is because his memory is playing him up, whether it is because he wishes to be unreliable or whether it is just that he is by nature unreliable, the defence say that you cannot pay much attention to Mr E.
Well, in the circumstances, whether the defence contentions are right, as I have indicated to you, here is a rare occasion where I do express my own view: I cannot see that Mr E takes the case a great deal further one way or the other. You can place reliance on him if you want. The furthest it goes to is that the Russians do use Portugal to train their agents, but we have heard that from other sources as well. So consider it if you think it helps you, either for the Crown or the defendant.
As to Oporto, well again I am going to take that quite shortly. There are 4 crosses. The only one that could be a tourist area is the one near the river at the bottom. Site 1 is on a street; site 2 is the main square; site 3 is near a grassy bank and there are shops and an area in which you can have a meal, which we cannot see in the photograph, behind the grassy bank; and then there is the museum in site 4.
We had Mr Moreira, a Portuguese who knows all about the buses in Oporto, and he agrees that site 1 is where a bus among other buses would come to from the camp site where the defendant was staying. It does not go back to site 1 on its return journey because of the one-way system, or because it is routed differently. Of the other two buses that go from the site, one goes from near site 3 and near site 2, so they could all relate to buses. Certainly there is a correlation between the camp site and buses going to and from the camp.
The defendant however in interview said two things. He first of all said they used their car in Oporto, and then he gave a more detailed description and said that these crosses were points of interest. He was being asked in 1992, after his arrest, about matters that took place in 1977, 15 years ago. You all of you can use your common sense. You have all of you I am sure had holidays 15 years and more ago. It is not surprising, you may think, that anyone cannot remember the details of what he did 15 years ago on holiday, unless something particularly remarkable stood out, and whether in fact you went by car or by bus to see some sights, whether it was in Oporto or somewhere else, may not strike you as being the most distinctive thing. If you had an absolutely major row with your wife or your girlfriend, which ended with one of you going home, that is the sort of thing that might stand out in your mind.
What the Crown say is significant is the defendant’s now apparent recollection that they relate to bus signs. It is extraordinary after 15 years, if he first of all thought it related to tourist places that, after thinking about it, he could suddenly remember they relate to bus signs. They say that is absolute nonsense; he in fact has made that up because he realises that the prosecution evidence demonstrates they are not places of tourist interest.
So they say, although on its own it is only a straw in the wind, if you come to the conclusion that the defendant’s evidence on this is simply not credible, then it does fortify the Oporto incident; and if it does fortify the Oporto incident and if you say he is lying about it, why is he lying? Is it because he is just lying compulsively about it, or is it because in fact he knows there is something that connects him with the Russians? If and only if that is the case would Oporto be of help to you.
We heard from Mr Avery, who looked at pages 271 and 272. Mr Avery and Dr Johnson both know and respect each another. Mr Avery specialises in teaching Russian and in training interpreters. He did not consider that either the envelope or the letter was written by an Englishman. He noticed the use of capital R’s and capital N’s as lower case letters. Upper case are capitals; lower case are ordinary writing. That might be an indication that this was a letter not written by an Englishman. It might be an Englishman who was pretending to be a foreigner, but that did not seem to him likely because you would then have expected him to maintain the capitals R’s and N’s throughout the letter as well as on the envelope because, if he were trying to deceive somebody, you would have thought he would have kept the deception up. After all it is not a very long letter.
He said that the phrase “in the nearest future” is a direct translation of the Russian equivalent. He said the Spanish is another language which would be a direct translation of the equivalent. He said the word “recreation” by itself was of some interest because there is no precisely comparable word in Russian.
He said the signature of plain Williams was, as he put it, worth pointing out, because Russians do sometimes write their name like that; he has seen it. Dr Johnson had not ever seen it, and it was not the strongest point Mr Avery was making.
He said these documents could be written by a Russian; they could be written by an Englishman; they could be written by a person of another nationality.
Dr Johnson is director of language studies at the London School of Economics, fluent in Russian, properly an expert in the interpretation of documents relating to the Russian language. He found it extremely difficult to make any categorical pronouncement. He considered the capital Ns and capital Rs. He could not say they were necessarily characteristic of a Russian writer. He agreed that the phrase “in the nearest future” complied with Russian and Spanish grammar. The words “after our latest appointment” did not. But then of course if the “latest” was indeed a precise word to alert the recipient that it was in fact the word that showed it was written from his source, it would be put in whether it was good grammar or not.
He said that normally the Russians spell the month with a lower case letter so, if they are writing January/February through to October, they would not write it with a capital as we are all taught to do, and the fact that it is written with a capital is a contrary indication to its being a Russian writer.
He said a lot of Russians write their D in a particular way, and produced a page of Ds. He said that, because he is now so used to Russians, he writes with Russian Ds, and he said the D in these two documents is a straight D. He agreed that it would appear that the mother tongue of the writer of this letter was not English, unless of course he was masquerading and pretending he was not an Englishman. It could be written by a foreigner, but he could not say particularly which nationality. There does not seem to be much difference between him and Mr Avery really.
Mrs Marsh was called by the defence. She is a handwriting expert; she is not an expert in interpreting the Russian language. She could not call herself an expert in Russian writing. You will remember there was a mildly amusing exchange between Mr Tansey and me, because there was part of an objection that she should not be asked whether it was written by a Russian. Mr Tansey got his way eventually and she said it was not. She was not really qualified to give the answer but nevertheless, as there is no other evidence that it is definitely by a Russian, take her evidence into account. She is obviously extremely expert in handwriting. She has obviously dealt with the Russian language and, if you think it helps, by all means put that into the scales on the side of the defence, because it is a little bit of evidence and perfectly understandable. She really said that she could not say who wrote this letter. There is no indication of who it is written by at all.
We heard about the Irish R. Apparently some of the Irish write a capital R and it is known, if you happen to be in handwriting circles, as the Irish R. But she could not say really very much about it at all. So really the evidence from her and from Dr Johnson and Mr Avery seems to be really rather negative evidence. No-one can really say one way or another what it is.
Just dealing with one other matter while we are on it, we never did hear anything about the money so it does not look as though there was any possibility of the money being traced as to where it came from, even though some of the notes were in sequence.
As it arises out of page 276, I deal with Dr Gehring. Dr Gehring’s name is on the top and then “Ask Karl” for his name and address. Dr Gehring said he did not know the defendant socially. He thought he had last met him at his work in 1991. He has never given the defendant his home address or his telephone number. He was in charge of the high temperature superconductivity department with that superconductivity HTSC.
It is possible to make an extremely technical magnetic detector which can be used to detect submarines. HRC had eight scientists working on this project but by the spring of 1993 that number had declined. It is at the leading edge of that highly technical form of technology. He left in May 1992 because of ill health; he had the misfortune to have hepatitis and clearly was not capable of being able to do his work, or the stamina to do his work.
We heard from Mr Ball who keeps W.H. Smith’s at Harrow. He does stock Keyboard. He did have Keyboard in, in August. He thought it was likely to be on sale. Whether it was displayed or whether somebody picked up a magazine, as I think I suggested, and tucked it in front because they decided they did not want it, because it could not be readily seen, he simply does not know. Certainly, the only point about Keyboard -- it may be that the defendant did indeed kill two birds with one stone: he went to Harrow to get Keyboard as well as do other things.
Then we come to Mr P. He has served for many years with the CIA, rising to be chief of a geographical division with that intelligence agency. He has served mainly in Africa and Asia but from time to time he has been involved in individual short missions in various European countries.
He took his bar exams in 1986, after his retirement, and is now a consultant. He is assisting one branch of the CIA by going through papers relating to the assassination of President John F Kennedy. Apparently after so many years the United States then releases these documents into the public domain, in exactly the same way as happens in this country; documents are released into the public domain unless they are particularly sensitive after a certain number of years. He is going through that exercise in relation to the assassination which is now many many years ago.
His overall view is that, looking at the tradecraft documents and having read what he has of the case -- which includes a summary of the defendant’s interviews and the cross-examination of Mr Gordievsky and Mrs C, and a note of their evidence in chief, and some other documentation -- he says that his view is that, while it is possible that the documents in this case indicate that the defendant was being run by a KGB controller, it is unlikely. He considered that the tradecraft shown in the tradecraft notes 273-276 could have come from many foreign intelligence agencies.
He was unable to help about industrial espionage because he said he knew nothing whatever about it, so he was unable to give you any assistance as to why an industrial spy should take such elaborate precautions. He said that he personally has come across virtually all the different aspects of tradecraft mentioned in these documents. Some, like the vertical and horizontal marks, he has used himself, with chalk marks. He has seen others use some of them. Some he has read about in the literature. He said the one rule in all intelligence agencies is that there are no rules. But, although there are no rules, he says that his view from his experience is that these documents do not indicate to him that they are KGB inspired documents.
He listed 14 points. He said he considered it unlikely that the KGB would recruit somebody from a communist past. He quoted from one of Mr Gordievsky’s own books, saying they would only do so in exceptional circumstances. Well, we did not have the advantage of hearing Mr Gordievsky say what exceptional circumstances he had in mind, because that passage was not pointed out to him when he was in the witness box.
He said that the tradecraft in these documents in his view was very basic. If there had been more sophisticated tradecraft he would expect the notes to have shown it because, if the tradecraft was written down as it was, it showed that Mr Smith wanted to remember it, even though in his view it was basic tradecraft; so, if it had been more sophisticated, it would follow that he would also want to write that down, for fear that he would forget that too.
He placed reliance on the fact that no paraphernalia was found. No spy camera was found. He said there was a roll-over camera which you roll over a document, and it makes a sort of photostat of the document; or a minox camera, which is minute in itself and takes minute photographs, and can take up to 150 different exposures. He said that he knew that other spy cases in this country had involved the use of cameras some years ago.
He did not know anything at all about the degree of security at HRC, as to whether therefore it would be practicable for somebody who wished to spy to take documents out. Well, we know from the defendant’s own account that not only was it practicable to take documents out without being discovered but he did so. On his own case he did so; he supplied Harry for 18 months or so, on his own account, from October 1990 to April 1992.
He would have expected not only to have found a spy camera but he would have expected to find some hiding place in Mr Smith’s house or a false bottom to some container like a suitcase. He would not have expected an agent to keep notes. He would have expected him to have been instructed to destroy them.
He did not like the letter shown at page 271. He would not have expected such a letter to be written by a KGB controller. It should not have been necessary. You do not write one paragraph like that. He would have expected it to have an address and a date. He would have expected, if they wanted to recall an agent, for the information to be put either in a business letter or in a bill. He said that the KGB are extremely professional. He said, referring to the envelope which uses Street then Road, that indicates a degree of amateurism which is totally contrary to what he knows about the KGB.
He dealt with the coke can, but he dealt with that first of all saying that the Russians would not place a coke can. It was only in cross-examination that he appreciated that it was in fact Mr Gordievsky’s contention that it would be the agent who placed the coke can to alert his control. Members of the jury, whether that means that he did not read Mr Gordievsky’s notes of his examination-in-chief and cross-examination in quite the detail he should have done, or whether it was just a mistake anybody can make, is a matter entirely for you. He still did not consider it professional because he thought the British Intelligence Services would get on to it.
He referred to the time of 12.45, mentioned in Mr Gordievsky’s evidence as a good time for meeting. He said that was unprofessional; you would not make a meeting to meet an agent at the same time on a regular basis. So there he is criticising Mr Gordievsky’s expertise. Whether it is a material point or not again you must consider.
He said that no intelligence controller in his experience would use such a loose word as “suggest”; an agent wants clear directions. Again Mr Gordievsky says that the word “suggest” was a word that would be used by the KGB. Again whether that is right or not, the defendant said in evidence that the word “suggest” was the word that was mentioned to him by Harry.
He said that Mr Gordievsky’s tradecraft was the tradecraft used till he defected in 1985. He would not expect the same tradecraft to continue into the 1990s. He said that in his experience, when an agent ceased to be an agent or be involved in the intelligence services, his usefulness went down at the rate of two per cent per month. On that basis both Mr Gordievsky and Mr P have long passed their “sell by date”!
He said he would only expect the KGB to use a telephone in an emergency. He would expect the KGB to organise an escape route for an agent. He said no sensible intelligence agency would pay substantial quantities of large denomination notes as in his view they might be traced. Well, I have dealt with that.
He said that, as the times show a coming together of minds between the East and the West, it would be unlikely the KGB would be running agents at this time. He did not consider that Smith would be in the category of those who would be productive enough to continue running him in such times, but he was not of course a scientific expert.
He said that, even if an escape plan were not in operation (which he expected) he would at the very least have expected him to be warned so that he could destroy all incriminating evidence. He did not like the use of the letter to re-contact agents in any event.
I have gone through the 14 points. I hope you think I have covered them. Also you heard him, you saw him and you will take his evidence into consideration, and give it careful consideration.
I turn now to the background of Soviet Union and Russia. Mrs C gave evidence about the recent history of Russia, and you will find it in the red bundle at page 548. I am going to look it up because I have not made a note of it in my notes. There is no need for you to unless you want to. She told you that she prepared that list which is in the document.
She agreed that in October 1989 the Warsaw Pact abandoned the Brezhnev Doctrine by which the USSR had the right to interfere with the government of other Warsaw Pact countries. In November 1989 the Berlin Wall came down, a highly important development. In March 1990, the USSR agreed with Hungary and Czechoslovakia to remove their troops by the end of July 1991.
She agreed that, in June 1990, Mrs Thatcher said of the Warsaw Pact countries, “Communism has crumbled and we no longer think of them as potential enemies and as a wider threat to our way of life.” That was said by Mrs Thatcher at a NATO Council when she was prime minister. She agreed that, on 5th August 1990, Mrs Thatcher said, “We do not now see the Soviet Union as an enemy but as a country groping its way towards freedom. The Cold War is over.” Those quotations you heard in full when Mr Tansey addressed you.
The Crown do not say that Russia is an enemy at the moment. They say that life is uncertain, and an analogy which they do not use but which springs to mind could be Mr Chamberlain and Munich before the last war. Mr Chamberlain came back from meeting Mr Hitler and said, “There's no possibility of war”. We all know how wrong he was. The Crown say, “You cannot look into a crystal ball. Mrs Thatcher may be saying that. Can we say that Russia is not a potential enemy?”
Mr Primakov says they are still getting information from agents. Mrs C says that, whereas the other ex-Warsaw Pact countries have already reformed their intelligence and security services, and given information to the West that they would no longer spy against them and are not spying against them, the USSR are carrying on in the same way.
She described how the Russians had divided their intelligence services now into three parts. You have got the diagram on page 550. She says there is an espionage threat. What is the point of an espionage threat for military information, if they are not still a military threat or perceive themselves to be a military threat, or that some of them who might come to power might be a military threat?
Mr Primakov is head of the MBR, the successor body of the KGB. She says Russia is now more careful in its operations. It has now reduced its number of KGB officers, after a good deal of pressure by western countries, but they are still working to gain political, military and scientific advantages. The money available for use by their intelligence service was not reduced early on, after the failed coup, but has now been reduced. That is the Gorbachev coup.
Her view was that the threat presented by the Russian intelligence gathering services is prejudicial to this country’s interests. It is not necessarily limited to classified material.
She said that intelligence gathering is like doing a jigsaw. You never know how valuable one piece of information is until you get the whole picture. One small piece of information may help to complete a jigsaw, even though in itself it may be of little importance, and only the Russians know what pieces of their own jigsaw in relation to a particular subject they already have; the agent does not know the full picture. By receiving information, it may help the Russians to use that information. It may also enable the Russians to know the lines along which the United Kingdom is itself progressing in a particular field, and that may give them clues which they otherwise would not have, either to assess how far ahead or how far behind their own scientific and military research that of the United Kingdom is.
The defence say that Mrs Thatcher’s remarks, from the prime minister, demonstrate that it could not possibly be said that the USSR or its successor body Russia could be considered to be potential enemies. Well, members of the jury, that is so much for that matter.
As it is nearly one o’clock, I am not going to start on the next subject but, if it is any comfort to you, we are getting through reasonably well, but we have got a long way to go yet.
(Luncheon Adjournment)
SUMMING-UP continued
MR JUSTICE BLOFELD: Mr Tansey, I am sitting in open court again.
(In open court)
I turn now to deal with Mr Smith and communism. You know that he had been involved because I have dealt with it. He was a member of the Young Communist League and the Communist Party in the early 1970s. This is now dealing with the defendant and how he tried to get his security clearance back again, so I pick up the story in 1978.
He had been working from July 1976 till April 1978 at EMI on defence work, he having given up his contacts with the Communist Party at about the very end of 1975, possibly just into 1976. In April 1978 he moved to work at EMI Medical. That was in fact called a promotion. He did earn a bit more money, he told us in his evidence, but it was not the job he wanted to do.
He approached Mr McMichael, who is the security officer for EMI, about his security clearance on 12th November 1979, as he had by then heard rumours that his security had been cancelled. Mr McMichael had had a lengthy interview with him, which unbeknown to the defendant he taped at the time. That interview is in the red bundle at page 350. In it the defendant said at page 354 that he had never subscribed to a political party. That was clearly untrue, and accepted to be untrue.
Shortly after that he was in touch with a Mr Taylor of the Ministry of Defence. Mr Taylor asked him to fill in a detailed questionnaire about his background so that he could consider whether to give him security clearance. That document starts at 281. He was asked if he was a member of a political party at 285. He said he was not, again a lie. He then added some further notes of explanation at the end of that document, which is page 287, which at any rate if not direct lies were certainly not the whole truth.
He signed the document at page 288. It was under the superscription saying that he understood that, if there was any false statement, he was unlikely to get his security clearance back. Having done that he went for an interview with a man who gave evidence before us in court using the letter of the alphabet D. When he was seen by the defendant, he was in fact calling himself Mr Malony, but that is not his real name.
He had a lengthy interview with the defendant and after that he prepared a report for his superiors. In it the defendant totally denied any involvement with the Communist Party. This is a document I want to refer to briefly and it is going to take me a moment to get it. Members of the jury, needless to say it is the one document out of all the papers I thought I set out. It is not. It does not matter. I can get on perfectly well without it because I can remember it.
In it eventually it was disclosed by Mr D to him that he knew he had been in the Communist Party. The defendant admitted it but not until it was put to him direct.
At the end of that document(sic), Mr D passed on his comments for his superiors to consider whether it was appropriate to grant him his security clearance back. He said that he considered that the defendant’s account was plausible and not untypical of many young men who join the Communist Party and then give it up as they mature. He said that he doubted if Mr Smith was of the stuff of which long term communists were made. He also formed the view that it might be that Mr Smith was telling him the truth now because the information he gave largely tallied with the information they knew. They did not know all the details but he certainly told them nothing that clashed with what they already knew.
He also however formed the view, as he wrote in the note, that when he lied Mr Smith showed no embarrassment or shame at having to lie. It was therefore difficult to avoid the conclusion that lying came easily to him when his own interests were affected. So that was his view about it.
Now we come back to his police interviews because, after his arrest, we then went to his house and his car which was searched, and I have now commented on everything that came from those searches, which is why I dealt with tradecraft because they came from the documents that were found in his house; and, as the witnesses who dealt with tradecraft also found the money, I dealt with the money; and, as Mrs C who dealt with tradecraft dealt with the background of Russia and Soviet Union, I dealt with that. It then seemed logical to go on to communism, which seemed to come logically after one was dealing with the background of Russia. So all this time as it were, metaphorically, the defendant has been languishing in the Paddington Green Police Station.
So I am now going with you to the interviews. You have now the index, and I am not going to refer you in great detail to the interviews, because we heard all of them for many hours and you have them and, as you have the index, if you wish to you can look up the relevant parts.
I am going to go through it really very briefly. The important thing from the defence point of view to emphasise to you is that, whatever else he may have said at all times during his interviews he denied ever having handed over any information to the Russians, or intending to do so. He never had any contact with the Russians at all. He has never come across Viktor Oshchenko. The only Victor he knows is a small child, a 14-year old now, of a friend of his who has absolutely nothing whatever to do with the Viktor the Crown are suggesting. He has never been to Oporto to lie(sic). He did however, as he said in evidence, tell a large number of lies during the interviews.
After his arrest and in his interview -- and it is for the first 31 pages -- he was interviewed without a solicitor. After that, at the end of that first interview, he was pressed by the interviewing officers that he should have a solicitor to look after his interests, and he agreed. For all the rest of the hours of interviews his own solicitor sat in with him.
So you can at least consider this. It may well be that Superintendent McLeod in asking him questions was being forceful, assertive, and may not have seemed particularly pleasant to the defendant. After all, he was trying to do his job to try and discover if the criminal offences had been committed. The defendant was denying that anything had been committed and throughout he was not telling what he considered to be the complete truth. The defendant said he did not like his manner and that accounts to some extent for the answers he gave. Certain it is that at no time did his solicitor intervene on his behalf to say there was anything actually unfair about the questioning, but whether the defendant in his mind thought there might have been something unfair is something you consider.
He was asked first of all in his first interview -- that is pages 1-31 -- about the events of 8th August. He said, “This has taken me by surprise. I have just been down the shop to get a newspaper. I thought you were kidnapping me.” He was asked what he meant by his comment in the car and he said, “God knows who you were.” He said he had seen people looking at his house and he thought they were suspicious. He refused to discuss his jobs because he did not think those interviewing him had the necessary clearance. He said that, when he lied about being a member of the Communist Party back in the 1970s, “That is the last time I have been untruthful”.
In the next interview he repeated, “I was going to get a newspaper. I can’t describe the route I took”. Well, it is perfectly clear that was a lie. “I didn’t take a direct route, if that is what you mean. I’d better not comment on (the route I took(sic)). It’s your turn to give me some information before I co-operate with you. I didn’t do anything. I didn’t talk to anybody.”
Then he was asked about the telephone call and he said it was the wrong number. “I told (my wife) a cock and bull story” -- about a phone call from a man called George at the lab. “I didn't think the phone call important; that is why I didn’t mention it. I can’t remember details of phone conversations.”
Then he talked about the Victor he knew, the son of the friend of his. “On the phone call I wasn’t asked to do anything. I can’t remember much about the call.” Well, I am not going to make comments as to whether they are true or not because you know enough of the background of the evidence now to decide for yourselves whether they are truthful or not.
He said the man on the telephone “sounded like he was in trouble. Could I meet him or something like that.”
He said, “It wasn’t a conversation, for fuck’s sake.” “Was the name Viktor mentioned?” “It might have been. I don’t remember.” Asked about the walk, “I do not remember anything happening on that walk; absolutely nothing happened on that walk.”
Then we go on, and I am by now on the fourth interview, because I do not propose to take you through it all. There were quite a number of places in these interviews when it could really reasonably be described that both were jockeying for position. Detective Superintendent McLeod was trying to get the defendant to answer questions; the defendant was saying he did not want to answer questions unless more information was put on the cards(sic) [table] by Detective Superintendent McLeod. There is no point in going over that because it does not get you anywhere.
At page 119 he said that he listened to the tape. He said after listening to it that he did not think he had lied about what he had said. He said, “I didn't act on (George’s) instructions. I didn’t go anywhere near Durlston Road.” He was asked if he had. He said, “I am saying that it didn’t happen.”
He said he was never recruited by the KGB as an agent. Then he agreed he had been to Russia, when he was shown the pass -- I beg your pardon, he had been to Russia in the 1970s. He said, “I was disillusioned with what was being presented to me.”
He agreed he had signed the Official Secrets Act. He said he never passed any information classified or unclassified while working at EMI. He then returned to the telephone call and said he was quite used to receiving calls from foreigners. “We have an Indian friend. It’s not unusual.” He mentioned some other nationalities.
He then was asked about when he was in the Communist Party. He said he had met a Russian in Surbiton but did not know who he was. He said that he did in fact work with the Russians in the Young Communist League and the Communist Party, but it was all a very long time ago and it was fairly small beer.
He said at page 296, that about his time at EMI he has never passed any information to anybody outside the workplace. There was no suggestion that he ever has. He was asked then more generally at page 276, and said he had never passed information except possibly a pub conversation, not knowingly. This was all of course before he mentioned the presence of Harry. He repeated -- and we have got up to page 324 -- that he had never carried out any work for the Russian Intelligence Services.
Then he was asked about the computer. That is the first major expense that we see on the schedule showing his finances. He said he paid about £4,000 for the computer. By then they had received documents from his flat showing he had spent over £10,000, and he said first of all he never received that document and then he said that £4,800 “is money I had saved up. I collected it over a period of a couple of years. I’d been saving up over a period of years. I’ve done some evening work.”
Then they went back to the phone call, and he said at 377, “When you were asking me questions about it before, it wasn’t the right time to discuss the phone call. George asked for me by name. I do not know if there is a road called Cardinal Avenue”.
He was then asked about the money in his house. He said, “I usually keep about £1,000 pounds there.” The £2,000 that had then been found “is usually withdrawn from my account”. He was asked if it was on the same occasion or on separate occasions, and he said it was on separate occasions. On one occasion he said it was on one occasion but he then reverted to saying it was on separate occasions.
He was asked about the Williams letter 272. “I don’t know who Williams is.” He was asked about the list that was found under the rug in the well of his car and he said, “I do not know why I kept this. I find it hard to believe it was under the mat in front of my car. It could have been there for five years for all I know.”
He was asked about the money again and he said, “I think you are trying to make too much of it.” He said he had earned money playing the guitar in a school in Lillie Road; that was his explanation. Then he said, “It’s my money. It was received as part of my employment; indirectly it all came from GEC. You will come to the point where you are prying into my private financial affairs.” He said about the money that he had personally counted it out to make sure it came to around £2,000.
He was asked about his movements for the week up to 8th August. He was taken through day by day. This was to some extent a device so that he was not alerted as to which particular day no doubt that they were really interested in, which was Thursday, 6th August. So I will not trouble you with what happened on Sunday, Monday, Tuesday, Wednesday, save to say that on Monday he went to try and find the magazine Keyboard but could not get it because they had not got it in Kingston, which is an agreed fact.
On Thursday he went to Basingstoke for an induction course for his new temporary job. “On the way back I decided to go to Harrow town centre. I parked my car on the edge of Harrow. The reason I went to Harrow was nostalgia”, and he later added “to get Keyboard”, and possibly to go to this place where he thought Harry might turn up. “After buying some newspapers, I went back to my car. I spent about ten minutes looking through the job adverts in The Telegraph.”
“I may have sat near the phone kiosk at the corner of this” -- I am going back to 8th August because Mr McLeod went on dodging backwards and forwards which makes it a little confusing. He said, “I may have sat near the phone box at the corner of Durlston Road/Cardinal Avenue. I really didn’t have a clue this was the particular location. I think I did enter the phone box, yes.” Then he said a little later, “I went to the phone box to try to sort out what I felt was part of a continuing plan of surveillance of my house.”
He was shown the Portugal map and he said, “The crosses on the map are restaurants and places of interest.”
Then at 553 which is quite a long way into the interviews, he for the first time mentioned Harry and he gave details of the telephone call: how Harry telephoned him at work; they met in the pub; how he demurred, and how he then agreed that he would supply Harry with information. “He never on any occasion gave me any real information about who he was.” He said that his relationship with Harry ended in April 1992.
Then he said where he had met, and said they met at Sudbury Station; they met in the Harrow shopping area; they met near Honeypot Lane for reasons which I do not think we ever really discovered; he never said in the interviews. They would meet at Roxeth or Horsenden.
He was asked about the Friday, that is the day after the day he went to Harrow-on-the-Hill, 7th August. “Pam” -- that is his wife, Pam - “and I had arranged to go down to the South coast on Wednesday or Friday. We arranged it on the Tuesday. I was quite happy to go on the Friday. My wife and I had a disagreement on the Friday morning.”
He was taken back to the day before. He said about Harrow, “I think I sat on the bench and took in the sunshine for about ten minutes.”
One of the questions you might just want to ask yourselves is: were there certain times, reading it, where you may have got the impression that he thought that Mr McLeod and his team knew more than Mr McLeod was letting on, and one of the subjects he might have known more about was that he actually had photographs? Of course he had got photographs of him going to the phone box and, when he is dealing with Harrow, it may have crossed your mind as to whether the defendant was thinking, “Well, I wonder whether he’s got photographs of me going to Harrow. So I have got to disclose a bit more or I am going to get caught out in a downright lie.” The defendant said that was not the case, but it is something you ought to ask yourselves at any rate.
He was asked, “Were you expecting to meet anyone there?” There was an admirable position for saying, “Yes, I was going to meet Harry”, but the answer was, “No, why should I? I mean, I don’t have anything to hide on that front. There’s a bench in the church and it’s exposed to the sun. I didn’t particularly choose that bench, I might add.” Well, you will have to consider all that because, having mentioned Harry, why not go on to tell rather more about Harry? Because, although it might be trouble for Harry if he was found, it would give him a complete let out on any accusation of spying with the Russians.
Then he was shown the document 270 and the tradecraft documents and, when he looked at page 273, which has the words, “Copy John’s contract list”, he said “I am trying my pen out.” He then gave more details about Harry and said, “Harry got in touch with me January/February 1990. I was in touch with Harry till April 1992. We mutually agreed there was no further point continuing our relationship. I took the papers, that is the papers found in my car, on the day I left because I hadn’t had time to sort everything out. Harry definitely had an English accent. Harry only asked for commercial information -- specifically interested in micro-electronics, silicon chip type of activity. The documents I gave him were all in the public domain. Harry was becoming increasingly frustrated with me for not giving him more useful information. That is what terminated our relationship. I wasn’t under any pressure from him. I never saw any documentation on trident.”
When it was pointed out that the documents relating to delay lines were Rapier documents, he said, “I have never heard of Rapier. Harry and I”, he said, “on one of these meetings met at Greenford. Harry always turned up. I gave him information concerning obsolete projects. There’s not much I can give him. I think that is why he ended the relationship. It was money for old rope.” The meetings stopped about April 1992. He said, “I do not believe any of the documentation I gave him had any classification on it except for Company Confidentiality”; this is page 570.
He said he took the documents out in his briefcase. “I have had a lot of documents in my drawer which I have had for some years since I started at Hirst.”
So he said that that ended. He thought it was a good time to stop. “I didn’t give him any military classified documents. I gave him commercially confidential documents. No contingency plans to see him again.”
Then he said, “I thought maybe you may have found some of these scraps of paper” -- that is a reference to the tradecraft notes, which he said he had bundled up in a hurry on the day he left his work and put into a manilla envelope with the Williams letter. So it was chance they were all there together. “I took some devices home with me. I gave no samples of these to Harry. I was not working for the KGB.”
Then he was referred to his handwritten notes, that is 176-187, and he said, “I would not give those to Harry. I didn’t consider that that is appropriate to give to Harry.” He said that they were sensitive; they could have been restricted. So that you will have to consider.
He was asked about one of the tradecraft pages, 273. He said, “it does not mean anything. I do not know what I have written there.” Of 276, he said, “Harry didn’t ask me about these matters.” That is the list of biosensors and the other matters. “I wasn’t aware that any of the material that I gave to Harry falls within the Official Secrets Act. The documents that were recovered from my car were not intended for Harry.”
Well, that is very much a bird’s eye view, members of the jury, of nearly 12 hours of interview. I do it that way because it does not seem to me that you are really going to be helped by going through it in greater detail than that.
So we come on from that to the scientific evidence. The scientific evidence is going to take a bit of time but I cannot help that, because it occupied us for a long time. But in the end may I just remind you that it is not your task to evaluate the minute details of the scientific evidence. Do not forget all the time that you are not having to decide whether any of this information was in fact damaging, prejudicial, capable of damaging the safety or interests of the state in a military sense. You are having to consider first of all whether it was calculated to be or might have been or was intended to be directly or indirectly useful to an enemy; as I have already told you, wide words. Secondly, are you sure that this defendant handed them over to a Russian for a purpose prejudicial to the safety or interests of the state? So it is immaterial whether they were actually prejudicial.
Can I in fact explain by way of illustration: somebody who is spying for a potential enemy has no defence because in fact the documents he is handing over turn out to be of no value because the Russians have got them all already. So are not looking at the contents. You are deciding what was in his mind. Did he have the purpose of damaging the safety or interests of the state? Were the documents calculated to be or might have been or intended to be directly or indirectly useful to an enemy? That is why in the end the details, you may think, are not of such great importance.
It was for that reason that I think Mr Tansey, as he said in his speech, felt that I had been trying to stop Dr Maher. Well, if I did, blame me; do not let it rub off on the defence, because that would be quite wrong. But it is the purpose that you have to keep your eye on, not the precise details.
It may well be that among the 11 of you that now remain there are not very many scientists who knew very much about any of the subjects we are dealing with before you came into the jury box. So I think we have all been working on the basis that probably these subjects were ones you left behind at school, with a certain amount of relief, many years ago.
With that background, let me come to the scientific evidence, and let me stress that you consider each of the expert witnesses separately, and you bear in mind they are all extraordinarily well qualified. If you think that any of them have a purpose to serve of their own which affects their probity, that is effectively their objectivity, obviously you would downgrade that particular scientist, because scientists and experts come here in order to be dispassionate -- they are meant to be above the fray -- to give you their independent views. So with any scientist, any expert, from whichever side he comes, if at any stage you think he is trying to bat for his side and not been independent, that in fact may well in your view be a black mark against him. But it would not prevent you saying, despite that, there are aspects of his evidence that you accept.
But the independence is always a useful test. It is for you to say whether it is the only test or not. Obviously accuracy is another test. I have been through the other matters when dealing with how you should approach expert witnesses.
I start with Dr Weatherley. Dr Weatherley was the scientific adviser to the Ministry of Defence for all matters relating to land warfare, until December 1992 when he retired. He told us that much modern warfare is based on electronics. He explained ----
MR NUTTING: Your Lordship did indicate there were two matters upon which you were going to go into camera.
MR JUSTICE BLOFELD: You are absolutely right. I do not know if there is anybody from the public, or are we effectively in camera? If not we ought to go into camera.
(In camera)
MR JUSTICE BLOFELD: He explained to us that much modern warfare was based on electronics. He explained that electro-optics play a substantial part. Electro-optics are a mechanical means of seeing, so that mechanically you reproduce the human eye and then effectively attach it to a telescope and that transcribes what it sees.
In the period 1990 to May 1992, which this case is concerned about, information relating to “Smart” weapons and directed energy weapons would be prejudicial to United Kingdom interests if it had been given to the Russians. A “smart” weapon is a weapon which as well as carrying a warhead has a detective device and a sealed computer that can bring it onto its target and then destroy it. The directed energy weapon is effectively a laser or radio frequency weapon with a very high energy beam. He put it a different way: he said it was a volume effect device which aims to fill a volume of atmosphere with a high energy field so that when it hits its target it disrupts, interferes with or even destroys its targets.
The most significant area deals with space based systems. They are weapon systems going into the upper atmosphere before descending to earth again. These weapons are particularly susceptible to radiation disruption by directed energy weapons. Because if in fact one can disrupt the pulses by which the warhead latches onto its target, it does not hit its target. So on the one hand you have the warheads which are accurately pinpointed to fix on a target and blow it up, and then you have the others that fix onto the platforms which carry the warheads -- that is probably the aeroplanes carrying the missiles -- and they in fact muck up their signals, to put it crudely, so that they cannot travel down and hit their target. In the best possible scenario they actually blow up the platform but, if they cannot do that, they distort the waves so that they cannot work properly; so that effectively the warhead, if you compare it with the a wireless, never actually hears a station; it never latches onto a station. All it gets is a lot of atmospherics and then it cannot hit the place the warhead is going to.
He explained, did Dr Weatherley, as did others, that the control of information is done by classification into various degrees of secrecy. You have seen that government document because I have referred to it. In addition to this there is the Co-ordinating Committee in Paris, shortly called COCOM, and that committee decides what defence-based information can properly be released to other countries which are not friendly powers. It takes into account the fact that, if such information is released, some other countries might use that information against western powers, and that the COCOM committee does not necessarily release documentation that is not bearing a classified marker on it.
Dr Weatherley dealt, as I shall deal when we come to the individual subjects, with all the matters that are contained in our blue bundle, all the different aspects. He had general scientific expertise. He had no precise detailed expertise about any one of them; that is not his job. His job, as I reminded you a moment or two ago, is that he was scientific adviser to the Ministry of Defence for all matters relating to land warfare.
The thrust of the defence questioning of Dr Weatherley is that, in respect of each of the scientific areas that these documents cover, there is information published in various different papers and in various different journals which are in the public domain. Broadly Dr Weatherley agreed that some information is indeed available on all these subjects in these journals, but he considered that, either by reason of the number of documents on any one subject or in certain cases by the specific document themselves, these documents would not have been shown to a potential enemy, because it would be contrary to western interests to do so and therefore contrary to our country's interests to do so.
He further maintained when he went through each of them how far he regarded each of them as being potentially useful to an enemy and potentially damaging to our interests. I will come to that as I go through them one at a time, but I am dealing with it in general at the moment.
We heard general evidence also from Dr Cundy. Dr Cundy runs HRC. He has an impressive academic and administrative record. GEC has three research centres of which HRC is one. HRC has a high international reputation. About 75 per cent of its work comes from other GEC companies. They do some direct contract research for the Ministry of Defence and some indirect work for the Ministry of Defence. It is on that evidence that I informed you that it appears that HRC is a prohibited place, because that evidence was not challenged; and one definition of prohibited place is a place that does government work for munitions of war, and some of these are fitted into munitions of war, which means any weapon effectively.
He told us that the defendant was cleared to the lowest grade of security, which is to Confidential. I think it goes Restricted, Confidential, so it is the second grade. Then it goes Secret, then Top Secret. Each person at HRC has access to documentation only on a need-to-know basis. Just because you may have top security, you cannot go wandering around looking at anything that does not concern you. Nobody at HRC is allowed unlimited access. It is only if you need to know the information because of the particular project or projects on which you are working.
He told us that the HRC annual or biannual report is Company Confidential. It is supplied widely inside HRC and to all the subsidiary companies of GEC, and you have a list now which is before you showing that, as there are many subsidiary companies, so it has quite wide circulation. But it may be of interest that, at no time, however wide its circulation, certainly Dr Maher, who clearly from his research bundles was indefatigable in running to earth a lot of information, could only get these reports by applying to the prosecution for them. That is how he got them, so obviously they are not all that easy to obtain, though it may be that others could obtain them; one does not know.
Tech Briefs of course, as they are issued by GEC, are in the public domain, although they are supplied of course to potential customers on the general matters of science.
You should also consider Dr Maher. He has two scientific degrees and is a Doctor of Philosophy. He worked at Plesseys as senior scientist, and then as a principle scientist and, from 1985 to 1990 at Malvern as group leader and project leader. He has taken out nine patent applications, published a number of articles in learned magazines -- I call them magazines. I hope that is not being denigrating; I do not mean it that way -- journals. He has worked on projects in conjunction with the Ministry of Defence.
He told you that you can find out a mass of scientific information from various sources. There is a wealth of scientific articles published in the western world and other countries. There is a computer base for these articles which can be tapped into. There are also other ways of discovering who has written about what subjects. You can look up the authors and see what they have written about. You can look up the subject in the same way as you can with any other information in any other technology. You can also refer to the patent offices in the different countries. Patents are filed. These patents can be inspected by a member of the public once they have been granted, and patent applications are public knowledge in this country six months after they have been filed. All patents that are in fact granted have to disclose how the project or process is carried out, so you can glean information from that.
Turning to specific publications, he confirmed that the GEC Journal -- that is the GEC Journal which is not to be confused with the HRC annual or biannual report -- is in the public domain, and there is no dispute about that. Dr Cundy told us the same, I think. Then the Tech Briefs he agreed were in the public domain, and the HRC annual reports he agreed are Company Commercial(sic). But he made the point that it was a very large organisation.
He said commercial competitors in the West have access to all literature in the public domain, and he said Eastern Bloc countries have access to all published articles, because all they have to do through their trade delegations is to go to libraries and look at them and then they have got the information. So, even if it is not sent to Russia, they can find it out. They may find it, he says, slightly more difficult to get hold of Tech Briefs because, if in fact they are writing off under their own name, it might be HRC might be hesitant to give Tech Briefs if in fact they received a letter headed Russian Embassy. But, as it is unlikely that they would receive it that way -- they would probably use an anonymous name, as it were, that looked all right -- they would be able to get them without really any difficulty.
Dr Maher went on to say that there was some information in his view which could be useful to a potential enemy. He had in mind information which had an association with weapon systems.
He also agreed that there are some matters relating to leading edge technology which might be useful to an enemy. He agreed that these matters could be useful because they might provide a piece of a jigsaw which would either complete it or make the jigsaw more complete. Further the information would amount to authoritative confirmation, because that information came from HRC, rather than from a publication. This would indicate that that particular subject was specifically being investigated at or by HRC.
He agreed, referring to the documents in the case, that there were two specific instances in the papers that fell into that category: one was the SAW devices and the other was the Rapier delay line. He said in addition that there was a very tenuous link with the micro-machining document.
He agreed that the disclosure of information about weapon systems might be useful to an enemy, because it might enable them if they were behind us in their technology to catch up, or if they were ahead to enable them to maintain their lead. He said he accepted those two propositions which were put to him. Actually, early on in cross-examination, he said that as a matter of principle he agreed those propositions were accurate.
Turning specifically to the Rapier delay line documents, he said that those might enable them at any rate to catch up. Turning to the SAW document, that is pages 51-59, he said that, as regards the anti-radar missile, that is the ALARM missile, it might enable the enemy to render it inoperative.
He did not know how many anti-radar missiles there were in operation in the United Kingdom defence. He did not know if the ALARM was the only anti-radar missile that we have. He accepted that it might well be there that was only the ALARM missile in this system in this field; he simply did not know. He clearly does not set himself up to be a military expert; he is a scientific expert.
He described the ALARM missile system, you may think, with a slight understatement to say that “it is a very useful gadget”. Indeed, we heard that it was because of the ALARM system that, in the Gulf War, Saddam Hussein switched off all his radar because, if he had kept it on, it would have been blown sky high.
Dr Maher agreed that, if the ALARM missile system was rendered negative, it would have been damaging to United Kingdom national interests. He said it would be prejudicial for an enemy to get hold of information which would enable them to jam the ALARM missile or might enable them to jam the ALARM missile.
As far as Rapier is concerned, he did not go so far. He said he considered the documents there were marginally more useful to an enemy than the information contained in the book Janes Weapons.
Turning to micro-machining, he said that the information about micro-machining might relate to a research programme which might come to fruition in 10-20 years and have an application to a weapon system. He considered Dr Perera’s cryogenic refrigeration as a very low performance product. He did not agree that the information about it would be prejudicial to United Kingdom interests but, after being pressed, he accepted that it might be. He accepted that, when he was approached to give evidence by those in charge of the defence in April 1993, although he was an expert on many of the subjects now before the court, he was not an expert in all of them. He said he has now had ample opportunity to consider all the matters carefully, has read a considerable amount of the relevant literature which has been published and is now sufficiently expert to give an expert opinion about all of them. It was not challenged that he had the scientific background to be enabled to do that, so you should approach him on the basis that he is now perfectly qualified to give expert evidence about every single one of these matters.
He said -- and again this is general -- that he was very significantly surprised by the experts called by the prosecution, and he said it in a tone of voice which made it perfectly clear that he was significantly surprised to their discredit. He was not encouraged by what they had said. He strongly criticised Professor Lewis.
He described the comments of Professor Lewis when he was dealing with pages 177 and 178, where you remember the curves that went up and down. He said they could be done either way. About Professor Lewis’s comments, he used the word “ludicrous”, which he repeated more than once. He then pointed out that Professor Lewis had written a paper about these matters which portrayed a graph showing the curves going either upwards or downwards, and he said on a number of occasions that he considered it strange that Professor Lewis had not said where he got his funding.
It was at that stage that he was asked in fact what he meant by that. Indeed I interrupted and I said that it was much better, rather than being nebulous about it, if we knew precisely what his criticisms were. You may have wanted to know if he meant “strange” or was implying something by way of more substantial criticism. It became clear he was criticising Professor Lewis more strongly. He said that Professor Lewis had not indicated who was sponsoring this research, and he did not accept the suggestion that that was because he was being careful because Professor Lewis thought it was sensitive if he linked Star Wars and Rapier together with these curves.
He said that he considered that the regulations made by the Co-ordinating Committee in France, which prevents the export of weapon systems and information about them to Iron Curtain countries, might well be responsible for Professor Lewis’s conclusions. He preferred to consider that Professor Lewis was toeing the line which is set down by the United States Department of Defence than considering that Professor Lewis was giving a false conclusion for other reasons. He said, “That is perhaps why he’s acting as he does in giving his opinions.” So he was clearly impugning Professor Lewis’s motives. He is saying about Professor Lewis that he is not in fact now absolutely independent; he is in fact toeing the line, so he is not giving you the benefit of his independent advice. He is in fact toeing the line which the COCOM committee in Paris has laid down.
Unfortunately that particular clear suggestion was never put to Professor Lewis, because it did not become clear until Dr Maher was being cross-examined in the box. So we do not know what Professor Lewis’s reaction to that would have been.
He was critical of one or two of the other witnesses. He was particularly critical of Dr Perera. His view was Dr Perera’a knowledge of cryogenic refrigeration was very poor.
He considered the evidence of Dr Hodge. She was the woman scientist who gave evidence about silicon-on-sapphire, and he said that he considered that she had incomplete expertise. He criticised her views and he also criticised her competence. He said that, when she was dealing with the specification at pages 269/33 to 269/36, all the matters there were in the public domain, and she was wrong when she said there were some that were not. He said in the witness box that he wished that Dr Hodge was there so that she could demonstrate and support her contention that there were matters in that specification which were not in the public domain. He had in fact reconsidered this matter in detail -- although he considered it because this was put to Dr Hodge, and she said there were matters that were not in the public domain -- but he had looked at it again after she left the witness box and so he said, on looking at it again, that he criticised her expertise and her competence. So much for those as general comments about scientific evidence.
Before I come to the individual subjects, I am going to take you now through the people with whom Mr Smith worked at HRC, and I start with Mr Barlow, who effectively was his group leader. Mr Barlow was in charge of the quality assurance department at HRC. Mr Smith worked in the quality assurance from 1985 to 1987 and then, from 1987 to May 1992, he was audit manager doing QA audits. The QA, quality assurance department, is effectively the customers’ agent at HRC. It is the QA’s job to check that the conditions of the customers’ contracts are fulfilled and that the customer gets what he asks for and what he expects. In order to check this it is necessary for the quality assurance personnel to see the details of the process being done or the product being made at different stages on a regular basis.
Mr Smith worked in an office with two others. He had filing cabinets in which to keep his papers, as did the other two. Any restricted, that is classified, document would be kept in an MoD locked cabinet. Company Confidential documents would be kept in the ordinary filing cabinet which he or his colleagues had; they each had one of their own. Restricted documents should be kept in an MoD filing cabinet, but Mr Barlow said that sometimes ones marked Restricted, although they should have been kept in the filed cabinet, no system is ever foolproof and sometimes they were not and they were kept in the individual filing cabinet.
Mr Barlow told us that Mr Smith was not entitled to take papers away with him from HRC. He was given two notebooks to keep notes in and he was entitled to make any entries he chose in those notebooks. There were official notebooks and personal notebooks. If, as a member of the Quality Assurance department and as audit manager, he wished to learn generally about any project for background information, or even if he was just curious, he was perfectly entitled to hear all about the background. He certainly could make notes for his own purposes if he wanted to. He could attend lectures that were relevant to his work or indeed if he had the time and he wanted to attend lectures; all the process that you might expect of self-education.
If you are working in a responsible job in a responsible organisation and you wish to take pains to educate yourself and keep up-to-date, of course you can go on and keep up-to-date and you can take such notice as will help you. It will help you, and the better you get the better you will do your work and the more the company will benefit; all thorough good common sense.
Work declined in the Quality Assurance and at HRC over the last year or two, no doubt due to the recession and, in March 1992, Mr Smith wrote to Mr Barlow about doing a different job. This is the one document that was retrieved and has been exhibited from his computer. It is in the third bundle at page 379. I am not going to ask you to look at it. Mr Barlow and Mr Smith then had a meeting and talked about a change of job, but nothing came of it and, on 14th May, as Mr Smith’s diary shows, Mr Barlow informed him informally that he was going to be made redundant and, on 28th May a fortnight later, he got his formal notice of redundancy. He left on 31st July.
Mr Barlow saw him late on that evening. He saw that Mr Smith was putting final details on his computer some time around six o’clock that evening, and that he had cleared his desk. Any papers that he left should have been left in his filing cabinet or handed over to one of his colleagues.
He then looked at the documents in this case. Looking at the handwritten documents, 176-189, he said these did not appear to him to be documents required for an audit. If they had been made for an audit then he would have expected them to have been filed with the audit reports, so that the next person doing the audit would have had the benefit of seeing them later on. If they were made for Mr Smith’s personal interest, he would have expected them to be made in his personal notebooks.
He did not accept they were made during an audit because they were printed in capitals and were set out in a form which must have taken some reasonably long time, and there would not have been time to do it in the audit. So, although initial notes might have been made, they would have had to have been written up afterwards to be in this format.
Originally -- this is absolutely no criticism of anybody, particularly not the defence and certainly not Mr Smith -- you will remember he was first cross-examined on the basis that those written notes, 176-189, were all relating to audit matters. But obviously there must have been a slight misunderstanding of the instructions, and it became perfectly clear that two of them related to lecture notes. That has been clear throughout the case and no point against Mr Smith should under any circumstances be taken against him for that misunderstanding. The ones on micro-machining and olfactory research, that is pages 179 and 187, were lecture notes.
Mr Barlow said he found all these notes puzzling because they appeared to be set out as if they were to give information to a third party whereas, if they were notes for Mr Smith himself, he would not expect them to be written in that way. He said for instance under quasi-optical car radar it mentions Peter Brigginshaw at HRC, and he asks the rhetorical question: why put HRC if these notes are for Mr Smith because Mr Smith would know Mr Brigginshaw worked for HRC?
You can ask yourself the same question now that you have heard Mr Smith’s explanation. He said he made these notes possibly for Mr Nott who was going to take over, but Mr Nott also worked at HRC and he too would know that Mr Brigginshaw worked at HRC, if he was working for the quality assurance. So it seems odd to put “at HRC” in the note.
Going back to Mr Barlow’s evidence, Mr Barlow said that the defendant did not work in an innovative unorthodox manner. He agreed that much of the documentation recovered from Mr Smith’s possession that is in our blue bundle was several years old, a great deal of it prior to 1985.
He was recalled a number of times, Mr Barlow. On one of his reappearances he said that, after the defendant’s arrest he looked in his filing cabinets in his room -- there were two. There was no evidence to indicate that Mr Smith had ever used cabinet B. Cabinet A -- there were several papers in the bottom drawer, and you now have in your black bundle some documentation which was put to you at a very late stage. The last document of all in that black bundle of course relates to Mr Tatham, and we will deal with that, but with the rest of the documentation in this black bundle you will have to do the best you can, because we have not really been through this in evidence, and so I do not feel that I am going to be able usefully to help you on any of the precise contents of that. You will remember that they were in his cabinet.
It may be that the only point being made is, as these are scientific papers, if he had wanted to take all the information he had available to take to hand over to somebody, there was more that he could have taken but he chose to leave some behind.
Document number 1 relates to SAWs and is dated June 1984. Document number 2 relates to delay lines. Documents 3 and 4 both relate to infra-red detectors. That is in this black bundle. Then there are two 1985 documents. One is a testing procedure for detectors and another is prepared by a Mr -- I think his name was Hellock of the Ministry of Defence.
We also heard from Mr Crighton who worked in the Quality Assurance with the defendant. He worked there from 1978 till he retired in 1990. He looked at the pages in our bundle, that is 2-175, relating to surface acoustic wave devices, what I am going to call SAWs. Mr Crighton did not recall ever having seen those documents.
He looked at the devices which we have photographs of on page 1, and the devices are mounted on the card. Some of them, he said, may have been kept at the office at some time. He knew Mr D T Lewis, Dewie Lewis. He retired before Mr Crighton did, and he also died before Mr Crighton left HRC, so nobody could possibly call Mr Lewis to give evidence. Mr Lewis used to work in the Micro Devices department, and came back part-time as a consultant. He then had office accommodation in quality assurance and he might have had this office accommodation. In addition he might have had a desk in his old department. That is relevant because the defendant’s case is that a substantial portion of those documents came from the bottom drawer of his desk, which was the desk that D T Lewis had been using.
We also heard from Mr Elson who is quality control manager for HRC. He was the defendant’s immediate superior. They saw each other every day and many times every day. He looked at the handwritten notes 176-189. He also said that they would not be needed to carry out audits. They might contain information the defendant had obtained probably at the beginning of an audit during preliminary chat. He could not think of a reason why the information should be recorded the way it is set out on these pages.
He produced some audit notes and they are written out but not in capital letters. At that time you had not of course heard the defendant's explanation as to how they came into existence, and so the prosecution did not know, as I say, what the position was.
He said Mr Smith never expressed an interest in the particular projects in the course of an audit, as far as he knew. Mr Smith indeed would comment to Mr Elson from time to time that Mr Elson was getting too involved in the details.
He looked at the devices and recognised them. Some had Mr Crighton’s writing on -- Mr Crighton was shown them too and he recognised some -- and might have been in Mr Crighton’s office. He had seen some of these devices around in the office. They go back some time. They are not the current state of the art; they are not this year’s devices.
Mr Elson looked at the Rapier documents. He told us that the defendant’s duty would not require him to have all those documents. He very much doubted if all of them would have been shown to Mr Smith in the course of an audit. He could not say where Mr Smith got them from.
He explained, looking at the document at page 269, the flow chart, that is the thermal imaging which we will come to again. He said this is the first issue of the flow chart, and he said that what you do with a flow chart is first of all the first issue. Then you might redraft and it becomes intermediate, and then you might do a second draft. That is sometimes called the final draft or sometimes, just to add confusion, it is called the numerical chart; they mean the same thing. He said he did not believe that the defendant had a hand in making that flow chart, but it would have been either made by the department that was making the device or it could have been made by Quality Assurance.
He agreed that the number of projects being done at HRC in 1990 onwards were limited because of the recession. He said that there had been some redundancies. He said that the Quality Assurance department was looking at different aspects of the HRC’s work on which to do their audit work. He said that Mr Smith did his audits in the normal way. He had seen lots of them. In 1990 Mr Smith prepared a new format for audit reports. It was not popular with other quality assurance managers, but it was in operation by most of them by May 1992, and he said Mr Smith used it himself.
So much then, members of the jury, for the generalities, and now I am going to start going on through the individual devices starting with the SAWs. So let us have five minutes before we go through that.
(Short Adjournment)
MR JUSTICE BLOFELD: Surface acoustic wave devices: Dr Weatherley dealt with this first of all. There were a large body of papers relating to this project, that is in our bundle pages 2-175. They refer to a technique of using what he calls a solid state device. This device consists of a piece of material on which a number of different sets of electrical fingers can be placed. The incoming information is received on one set of electrodes. This causes the device to vibrate and to send out a signal. By changing its form you can change the signal. With complicated devices you can bring in two signals and extract or multiply signals.
These devices are widely used in civil and military fields. They are used in radio and television transmitters. These documents that we have before us refer to fabrication techniques in material science. One page 96 particularly refers to a component for radar. Some documents are copied at least twice.
He considered that most of this material would have been of use to the Russians. In fact you will remember that these documents relate to two different types of SAW device: one is 120 MHz and the other is a 200 MHz device. You have the breakdown of the number of papers, that is pages that refer to each.
He emphasised that the Russians always have a problem of taking a design -- they can design something but they have the problem of taking the design and then actually turning it into a real device, so that the manufacturing side is what they find difficulty with. He considered it would have been prejudicial to our interests, United Kingdom interests that is, for the Russians to have this material. It might have enabled them to develop high performance devices with a performance comparable to our own.
He agreed in cross-examination that these pages gave no detail of the software but he said that the software information was well-known. He agreed that there were no manufacturing details but he said that manufacturing details are given by references on the diagrams, and he referred particular only to page 25 as an example. He said he is not aware of any companies providing proprietary processes like document 25 does.
He said that, if he had all these documents, he could not manufacture a specific device. He said that much of the key information for manufacture is missing but that what is there still remains in itself key information.
He said that SAWs have both civil and military uses. He agreed that papers on the subject of surface acoustic wave devices have been published, and he agreed that the information that is in the public domain is freely available. He added that the fact that it was known to an enemy that HRC itself was producing devices of this nature was in itself useful information to an enemy; in other words, that a prestige research establishment was devoting some of its resources to producing these would of itself be interesting and useful to an enemy.
Dr Lewis dealt with SAWs. He was with HRC and now works at Malvern with what I am going to call MoD. It has had a number of different names; it was RSRE and then DRA. I am going to call it MoD, Malvern. It does not matter what title it goes under. He said that these devices are effectively delay lines. There are bulk acoustic wave devices and surface acoustic wave devices.
The sound wave goes through the crystal in the bulk acoustic wave devices and in surface acoustic wave devices it goes along the surface. He has illustrated this by saying that the electrical impulse, the sound wave, in fact goes along the surface like the waves of the sea go along the top of the sea. By planting metal electrodes on the surface these impulses can be measured at various intervals, so you can work out the length that you want the delay line to be; the reason being that sound waves go slower than ordinary electrical impulses, so you can slow it up by the distance from the beginning that the electrode is planted. They are minute amounts of time, but that is what we are dealing with: we are dealing with minute amounts of time in this area of science.
He said that in many ways the surface acoustic wave devices are more sophisticated devices than the bulk acoustic wave devices. Surface acoustic wave devices do have a commercial application. He said that two, that is the 120 [MHz] and the 200 [MHz] one in our documentation 2-175, have a military purpose. The first document, that is 2-49, outlines the capabilities of HRC in relation to this SAW device. This document includes a flow chart which enables people to establish in outline how to process the procedures.
He said the Russians have a much lower capability than the United Kingdom does to make surface acoustic wave devices. This document could be quite helpful. They would know where the British have got to, that is how far down the road we have got, and this knowledge might enable them to advance their own capability. It is a document which is concerned with manufacture, and the manufacturing details are not in his view in the public literature, although the concept of surface acoustic wave devices is.
He accepted that all these documents do not provide full details of how to make a SAW device; the mask design is an example that is not there. Nor does it show you how to cut the crystal, and it is crucial to cut the crystal at the right angle in the right way; that is extremely important.
He described it as effectively like a book with several chapters missing. But it is still in his view of value and potentially useful. The defence suggested to him that there were so many chapters missing, it was so incomplete as to be worthless. He did not agree.
He drew attention to the fact that, as these were HRC documents, it demonstrated that HRC can produce radiation hard quartz which is not affected by nuclear radiation and, when he was giving evidence to stat with, Dr Lewis said he considered that fact sufficiently sensitive so that it should not be published. He was however referred by the defence to a Tech Brief, which in fact is in the first bundle of defence at page 5, and that Tech Brief, which came from HRC, which is in the public domain, does contain that very information. So when he saw that he said he was not aware that it had been published and he said that as a result, although he still felt that information was sensitive, it was nothing like so sensitive if it was at any rate in the public domain to that extent.
That is an illustration possibly of the public domain problems that we face in this case. It may be in the public domain. Does that make it totally unuseful to the Russians or might it be useful if nevertheless they get it knowing it comes direct from HRC? Whether the Russians have the capability to skim through every single document in the public domain from every single research establishment like HRC, read all the scientific journals and correlate all that they can, is something that -- it may be difficult; we have not heard any direct evidence about it.
He pointed out as an example that the glue used to stick certain of the components of the SAW device together is important because glues give out gases and the gases then in fact, as they become solid -- although not solid so we can see them to our eyes -- they form a thin layer on things and that thin deposit, minute deposit, prevents the proper working of these devices. It is therefore important to have the correct bonding material. He said that that single problem delayed his research for between 18 months and two years, and he said the fact that these documents indicated that HRC is using Dow Corning glue would save the Russians -- it might well save the Russians several months of trial and error using different glues. I come to what Dr Maher said about it because he did not agree, but I will come to that in due course.
Then we had Dr Lewis back again. He had been looking in more detail at the document at page 51-59, that is the restricted document. He said on reading it more closely he considered that this document related to an anti-radar missile, and he formed the view that it was likely to relate to the ALARM missile. In fact he rang up an expert in that field and his first question to him -- well, first relevant question -- was: “Is this for use in the ALARM missile?” and he got the answer yes, it was.
The ALARM missile is part of the United Kingdom defences. It was carried by aeroplanes in the Gulf War. It works on any radar that is sufficient to locate incoming platforms. It was not used in the Gulf War because the Iranians(sic) switched off their radar. As ALARM’s purposes is to destroy radar and prevent it working, if the enemy switches off radar, then the effect of the ALARM missile is to put the radar out of action because, if it is out of action, they cannot locate the incoming aeroplanes and so cannot stop them from bombing their targets or doing whatever they want to their targets.
These documents, 51-59, he said relate to a bandpass filter assembly, which is part of the radar receiver. You will remember in cross-examination we learned a certain amount about how an anti-radar missile works. Indeed we learned that this was acutely sensitive, and we were really rather discouraged from going into the details of it. It seemed ingenious, amazingly ingenious indeed. It picks up the pulse from the radar and thence follows that pulse and destroys the radar system that is emitting that pulse.
Dr Lewis said the information in this document was useful to an enemy. If the enemy could identify that it referred to an anti-radar missile, then -- I beg your pardon, he said that, if he personally had the expertise to identify that the information contained in this document referred to an anti-radar missile, then he believed there were other scientists, Russian scientists, high quality scientists, who could make this deduction just as well as he could. If they could make this deduction, this would be giving away very useful information. As he put it, it is very nice to know what weapons your enemy has, and the reference to the 120 MHz and the details might assist them in learning how to jam this missile.
It was suggested to him in cross-examination that a pulse at that wave length could never get through to jam the missile, because the pulse would not be strong enough to throw the missile off course. That became extremely complicated and I do not pretend to take you through the science of it. We did not get right to the bottom of it. It remains theoretically a possibility.
Having considered that, Dr Lewis remained firmly of the opinion that this information would in his view be useful to a potential enemy, namely he was considering the Russians as potential enemies.
You will recollect that Dr Lewis also dealt with the abstract of an article, that is defence bundle 1, page 417. The abstract had been put to him. That referred to bulk acoustic wave devices in water. At the time he said that the defence was not comparing like with like. He now had read the whole article. It confirmed the evidence and his immediate view when he was shown it for the first time, when he considered it off the cuff. It was perfectly clear, he said, that the device referred to was not reproducible. It only referred to one device having been made. Although it used the word “reproducible”, there was such a limited number that it was not effectively reproducible; he said that the claim was preposterous.
He said that scientists’ conclusions are awfully tentative and often optimistic. Scientists publish papers because they have had a good idea or a good experiment, and sometimes you can glean quite a lot of use from that, but it does not mean that everything they say is necessarily absolutely accurate. But it nevertheless may give useful information which may help other scientists to go further along the same road. So an exchange of information is extremely useful.
One of the aspects, he added, about the SAW device in this case, referring back to 1/51-59, was that it indicated this device could be reproduced by an English company; this would be useful information.
Dr Lewis was not in fact cross-examined about his views about the paper of which he had read an abstract. Dr Maher had not fully considered that at this stage. Dr Maher in due course maintained that paper did provide a useful analogy, so there is a difference of opinion there, but it does not seem particularly crucial whether one or another was accurate about that. It may well be that none of us, you or I, you have the necessary scientific experience to know who could be right about that.
Dr Cundy referred to SAWs but he did not express any opinion about pages 1/51-59 because he was not asked to give any. He simply, to get it out, pointed out that some of the pages appeared to come from ring binders. That was one of the matters that was not pursued, so does not seem now to have any significance.
Mr Barlow said that pages 51-175 all related to each other. They all bear dates from 1982 to 1984 so he is not surprised that they are found together. The capability exercise to which they refer finished, he thought, in about 1987 to 1989, but he said he had not checked it up; it could be as early as 1984. He said those could have all been papers that were used at one time by Dr [Mr] D.T. Lewis.
He did not know anything about the first paper, the Tatham paper. I will deal with Mr Tatham in due course but briefly, so you have it in context, the defendant’s case is that Mr Tatham lent him that paper or gave it to him, and he hung on to it because he wanted it as it was a good working blueprint if he ever had to do a capability document in the future.
Mr Tatham said it was in his drawer. He in fact never handed it to the defendant, does not know how the defendant got it and certainly did not hand it to him. The defence say that Mr Tatham’s memory of everything he did is clearly incomplete, because they have got this document at the back of this black bundle which shows a meeting about which he said he had absolutely no recollection about, and so the defence are saying, if he does not have any recollection about that, and that refers to audits, it could well be that, although he has now convinced himself he never handed it to the defendant, he simply has not got a memory about what would have been a very minute matter many years ago.
Dr Maher, dealing with the first document, that is pages 2-49, said this document is of possible use to an enemy or a commercial competitor. It indicates the rigour to which HRC goes to qualify their devices. Almost all of this information is in the public domain. Quality assurance methodology is very well established, particularly in Japan and the United States. If someone were setting up a manufacturing capability, then obviously a glimpse of HRC’s methods would be quite useful. There is no specific device information given, and there are a large number of gaps. There is no design information, no computer programmes, no information about mask design information, which he said is in the public domain, so I think he was saying that could be found out, but there are plenty of other gaps.
He turned to pages 51-59, the missile. The Alarm missile is not identified by name. He would not have been able to deduce it. He told you that knowing this device goes into the Alarm missile system is of use to an enemy because it allows a possible counter-measure scenario to be set up, i.e. it could possibly be jammed. It does not necessarily mean that an enemy must be able to jam it, if they get this information. “I consider this to be an unlikely scenario because it would be difficult to get a signal into the IF receiver which would effectively jam the use of the Alarm missile”. This is getting into a highly technical matter that Dr Lewis was asked about in cross-examination.
Then dealing with the remaining pages, 60-175, these indicate a great deal about SAW devices. They point to black wax being used to bond certain of the components. Dr Maher there disagrees with Dr Lewis who said it was important information that Dow Corning glue was used. Dr Maher said that that matter was in dispute, he thought some 20 years ago, and has been resolved now for many years. It may have taken 18 months or so to get it right 20 years ago, but now it is known. So he said that Dr Lewis’s point there had no validity.
He disagreed with Dr Lewis who said it gave information about how to make the substrate, that is the bottom of the device, rough with a hatching. He said that was not of any importance. All that a potential competitor or potential enemy needed to do would be to buy a commercial SAW device; they are freely and commercially available. He could examine the roughening on the bottom and copy it. So that is that. It does indicate that, if he could do that, maybe the point made by other witnesses that what they call reverse engineering is really no more than either looking at the device and learning from the device itself, because that gives you a clue in much the same way as if any of us looks at a car engine, if we have most of the techniques (which most of us have not got) one can make the part or learn how it is made. That is really what reverse engineering is. The further you break it down the more you can see how it is made, and you can copy it.
He was quite certain that none of these pages, 60-175, would be useful to an enemy or prejudicial to United Kingdom interests. That seems to be common ground among all the experts. The prosecution say that the crucial pages are 51-59 plus 2-49, because it shows how HRC goes about its job. So he is accepting that 51-59 would be useful to an enemy and prejudicial to United Kingdom interests.
In brief the Crown case is: well, that is it. Once he has accepted that, all we have to prove is that some of the information is capable of being useful to an enemy and capable of being prejudicial. Now all you are concerned with is what was in the defendant’s mind, was he handing it over to a Russian and what was his purpose? I am summarising at this stage.
The defence, as I understand it, are saying that it is not as simple as that because, really if this plus something on the Rapier is really all that is potentially prejudicial, potentially useful, it supports the defence’s case that all he has done is picked up a lot of papers in a hurry at the end of his time for his own use, in order to dispose of them, instead of leaving them in his office. Therefore it supports his case that he was not intending to hand them over to anybody.
Against that the Crown say: well, it is curious that the pages 2-49 which he took deliberately, with a much later date, a 1990 date, on it -- it is curious that that should tie up so precisely with pages 50-175, and they say that is not a coincidence. They say the same about the two pages at 269.
So we pass on to Rugate filters. That is the first of the handwritten notes at 176. Professor Lewis gave evidence about these and so did Mr Greenham. Mr Greenham works in the department at HRC which deals with Rugate filters. He looked at the notes. He said that in his view these notes contained information given verbally to the defendant by him during the audit which took place on 4th June 1992. The actual audit report is on a single sheet of paper, which simply says whether the department has passed the audit or not in relation to this specific process and, if it has not, indicating how the operation could be improved.
Mr Greenham said he would have expected to find these notes attached to the audit notes. Then it could have been referred to next time there was an audit on the same subject. He said the note contained some inaccuracies and it is incomplete. It would be of limited use to a third party. It did not have sufficient technical detail for someone to replicate the process.
Professor Lewis is in charge of the relevant Ministry of Defence office at Malvern. That office or branch is in the Optical Thin Film department. As a result of Strategic Defence Initiative, SDI, what has loosely been called Star Wars, the American Defence placed orders through Malvern for a contract to the value of $2.9 million. As a result various sub-contracts were placed, including one with HRC.
Very few companies have the specialised knowledge and equipment to deal with Rugate filters. There were a very few other British companies which were given other contracts on other aspects of this Defence contract but not the same contract. There is one in Geneva which uses a special plasma technique. All these techniques relating to Rugate filters are very limited in Western Europe.
Professor Lewis looked at document 176-179, and formed the view that, to an expert scientific eye, it discloses a link between Star Wars, Rugate filters and laser protection. He said the Ministry of Defence had taken a great deal of care to protect the concept of laser protection in terms of classification. The whole programme has been classified. He was concerned at the mention at 177 of notch filters being used at all in SDI. He said these matters were not published anywhere else as far as he is aware.
In cross-examination he was referred by the defence to bundle 1, 157C. This is a biannual report, has limited circulation and is a company document. He would have liked to have seen that document marked and classified by the word Restricted, because that did have information in it that concerned him. He was also referred to the journal SPIE, volume 82 in 1987. He said, although that does not link precisely the three concepts of Star Wars, Rugate filters and laser protection, he did remember seeing that before, and the U.S. Air Force was concerned about the information it contained, as this publication was clearly available to the public, and he said this information in that particular journal, which was an American publication, would not have been published in the United Kingdom.
He was referred to his own paper. That is the one that Dr Maher criticised. It did not show who sponsored and paid for it. That is defence bundle 3, 113A. He said he did not consider that disclosed anything sensitive. He accepted however that the concept of hardening sensors, that is hardening sensors against radiation so that they are not affected by radiation, is mentioned in some documents. He said he found this a matter of regret.
He confined his criticisms to the bottom of page 177 and page 178. He was not concerned about the rest. He said that there are no commercial applications for a 10-notch filter, which is mentioned on the last page, only military applications. The main application for such a filter would be the area of sensor protection relating to Star Wars, either a platform in the sky or to tactical.
He said if a competitor were working in this area, they would have access to classified not Company Confidential information. If the contents of 178 came into the hands of a third party, it would cause the MoD embarrassment, and might prejudice their relationship with the United States.
The defence pointed out much of the information has been published in various places, particularly in America, and suggested that Professor Lewis is placing far too much importance on the security aspects of this document, but Professor Lewis still expressed his reservations, and still said he considered the information, particularly that on 178, as being, as he put it, very very useful to the Russians.
Dr Weatherley said that Rugate filters are used in space based environments. They can be used in a military capacity. There is reference to a 10-notch filter and there is a further reference on 177 to work on nitride. These matters might give a clue to someone which would enable them to develop a better device or to know what research in England was going on to develop a better device. The paper does not give any solution. Dr Weatherley believes, if this information had been passed to a Russian, it could have been detrimental to United Kingdom interests. If the Russians had already got other information on this subject or could obtain other information on it, it could be detrimental to our interests, but he did say he could not say with certainty that it would be prejudicial. It simply might be. It was border line.
The concept of Rugate filters had been in the public domain for some time. He said they had both military and civil uses. He pointed out that the importance in the information in this paper, which was limited, was relating to material technology, a subject at which the Russians were bad.
It was about Rugate filters that Dr Maher was so disturbed about Professor Lewis’s evidence. He fundamentally disagreed with all of Professor Lewis's conclusions. He said the use of Rugate filters for SDI was well-known. He referred you to a number of documents. He referred to defence 3, 109A and 108M. He said that the idea of multi-notch filters was in the literature and pointed out 3, 118K which is a theoretical paper at which figure 8 shows a 3-notch filter. There was no mention in this paper of 10-notch filter but he said that the idea of multiple notches is well-known -- anybody with intelligence could deduce the connection with Rugate filters -- and said that by reference to this particular theoretical paper, where it is shown the United States Air Force is concerned with this subject because work is being done on it at the Wright Patterson Air Force base.
He did not only not agree with Professor Lewis’s views, he did not agree with Dr Weatherley’s views. He did not consider that any of the matters relating to Rugate filters were prejudicial or potentially prejudicial to our United Kingdom interests. “I cannot see these notes are of any use to a potential enemy. They are not prejudicial to United Kingdom interests. They are not even useful to a commercial competitor.”
He said that the concept of sensor protection was well-known in the public domain and so was the connection between sensor protection, Rugate filters and SDI. He said he thought direct reference to Rugate filters and SDI are in the public domain, but then he added, “But they are not actually in the bundles that you have in front of you”, and he made the point – and you may think it is a valid point -- that there is so much scientific evidence to go through, he really could not produce for your consideration even more papers on every single minute aspect of every single scientific subject. So much for Rugate filters.
Micro-machining: Dr Perera gave evidence about that. Micro-machines are extremely high accuracy, extremely small machines. They are so small that I think he said that one of them could fit inside a human hair. Whether he did or did not say that -- it seems to be of a mind-boggling smallness -- but that is how I heard it, unless I misheard.
On 10th June 1992, he gave a lecture to HRC staff. The defendant attended as he was entitled to. The notes 179-181 are notes of this lecture. All the information is background information on page 179. It has all been published and is available in the scientific press. The information on page 180 is specific to the project at HRC which Dr Perera leads.
So he is leader of that project. I only say that because clearly HRC consider him to have the qualifications and the expertise necessary to lead that project, but he is strongly criticised by Dr Maher as really being pretty incompetent.
He says that the drawing in the left-hand side of the bottom of page 180 relates to a spiral fluid diode and, at the time this diagram was made in June 1992, it had not been published. It was in fact published by him in July 1992, that is by Dr Perera, but it was not in the public domain literature at the time it was copied by Mr Smith.
Then he turned to the top of page 181 which refers to cryogenic refrigeration, that is quick refrigeration of a very small area by a minute refrigerating plant. This has a military and civil application. The figures relating to cryogenic refrigeration at the top of that page are Dr Perera’s. They are an advance he said on other methods of cryogenic refrigeration. In his view this information is very sensitive. It has never been published in any form anywhere. It is his private personal invention. If this information were disclosed, it would be sensitive in commercial terms. It would also be sensitive in enemy hands. The information could give potential enemies ideas for further lines of research.
He was recalled because he did undoubtedly first of all say in answer to one question -- although there was dispute between counsel, understandably in view of the fact that he was recalled, that either they misunderstood him or he misunderstood them; both quite easy to do when you are dealing with these subjects -- and the point was whether in fact his new machine could reduce the temperature by 19 degrees K -- this is a very very low temperature indeed -- in one second or whether it would go down to a bottom figure of 19 degrees K. He made it clear that the figures at the top of page 181 referred to the rate of change not the final temperature, save that he said the rate of change, which goes down by 19 degrees K per second, could go down to a final temperature of 19 degrees; not however if you were using nitrogen because nitrogen liquefies at 77 degrees K, but you can go down to the ultimate low figure of 19 degrees K if, instead of using nitrogen you use helium, because helium does not liquefy at the higher temperature that nitrogen does.
Mr Swallow looked at the defendant’s notes at page 176. He said the information was accurate as far as they went. He thought they were purely personal notes. He said that the defendant -- I beg your pardon, I think if you have -- no, that is right; it is on micro-machining -- he said in June the defendant did an audit on micro-machining, and that information in these pages is not inconsistent with that audit. He would have expected this note to be left in the file that relates to the particular audit. He agreed that, as this is dealing with a project for a pen -- if you call it that -- it is only a commercial project. It seems to put the sell-by date on the bottom of tins and, on a production line, they go past extremely quickly so it has to precisely mark each tin as it goes by; no doubt a highly technical piece of machining but wholly commercial.
Dr Lamberton dealt with cryogenic refrigeration. He said that, looking at the figures at the top of the page, they could have two interpretations: they either relate to the rate of reduction or ultimate temperature. If it were the former, it was in his view of no great significance but, if the latter, it would be outstanding. He said he did not have enough information.
He pointed out that nitrogen liquefied at 77 degrees K but said that was not conclusive. This is before Dr Perera was recalled, and so the query was whether it related to the final figure or the rate. He said it depended how the process worked and said he simply could not say.
Professor Elliott -- he is the man who invented the Sprite -- the TED is the other word -- detector at 269, that flow chart. He said that these figures indicate very rapid cooling. If it refers to an ultimate temperature, it would have many applications in military areas, as for example in missiles. It depended how that temperature reduction was made. If it could be put into a small piece of machinery, then it was significant.
Dr Weatherley said this document refers to a technology which is relevant to Defence, but there is nothing within it which would be prejudicial to United Kingdom interests, nor would it be prejudicial if the contents of this document were linked with other information from other sources. It has much commercial interest. The details are very detailed.
He said there is nothing in this subject of military interest, and he is the expert. You should consider that for two reasons. First of all on this basis: he says really you need not bother with it at all, and he is the man put forward as the expert on military matters; secondly -- the comment that can be made for you to think about -- that certainly, as adviser to the government as he was then on military matters, he is not saying all this information is useful to the enemy. He is differentiating between some of it and others of it. Whether that makes him a more or less convincing witness, you will have to ask yourselves.
Dr Cundy first of all dealt with the handwritten notes relating to micro-machining, quasi-optical car radio(sic), micron valve and olfactory research together, and he described them as a most disturbing set of documents. He thought long and hard when he saw them to consider whether they could be made for a legitimate purpose. In his view they did not fit into any. They are not notes. He could not come up with a legitimate purpose for their being made. They are so unusual that they made him bristle. They are a mixture of titbits of information and some scientific information that is pretty direct information. This information could give somebody a head start, he said. The fact that these notes disclosed work that was then being done at HRC would in itself be useful to a potential enemy.
He agreed that there were matters in the notes which were in the public domain. He agreed that the remarks, that is what is written about micro-machining which we are dealing with here, had no immediate military significance and he doubted if the specific -- well he agreed effectively that the specific micro-machining project, that is the pen, would be of interest to a commercial competitor. He said that a GEC subsidiary company holds 80 per cent of this market so he was only wondering which competitor could possibly be interested in this matter.
He said that quasi-optical car radar has substantial civilian applications. There are many competitors for this market and he said there are a whole cocktail of different potential solutions being tried out by the industry -- at least eight of them -- and what you are seeing is just one such trial; but a totally different scientific process may in the end turn out to be the winner.
Dr Maher said that the material about cryogenic refrigeration could possibly be of some use to the enemy and it certainly could be useful to a commercial competitor. He said the rate of change of temperature of 19 degrees K is not unique. He said the concept of cryogenic refrigeration is well established in public domain and that patents have been filed which indicate this. He did not consider that any of this information is prejudicial to the safety or interests of the United Kingdom, but would be useful to a competitor. So that is micro-machining.
I propose to do one more subject -- I may do two because I do not think there is much on the next -- and then we will break for the day. Quasi-optical car radar: Mr Brigginshaw. He has been working on this project for a substantial period; he has now retired from full-time work, but is a part-time consultant with HRC. He was put in the awkward situation of anybody who is a true expert by being asked if he was an expert in this field. He demurred, but we heard from other sources that he is undoubtedly a real expert in this field.
Dr Maher accepted Mr Brigginshaw was clearly an expert in this field. He therefore agreed with some reluctance that it might impress a potential enemy if they saw he personally was involved in the particular project. Quasi-optical car radar is -- I am going to call QOCR; it saves my mouth getting round it -- has civilian uses. It is used for cruise control on motorways and it is being developed to prevent motor car collisions.
Much of the information in these pages 182-4 is public knowledge. Some of the information is not technical stuff particularly top of page 184. The top diagram on 184 is subject to a patent application which was in fact filed in October 1992, the comment being that the defendant when he made these notes in June 1992 did not know it was going to be filed as a patent application in October 1992, so it is coincidental that it is now in the public domain. It was Company Confidential in the summer of 1992.
QOCR was developed from a background of military funding, because it could be used for seeker radar or missile guidance. On page 185, he said, there is a reference to beam swing scanning systems. This was a new way of swinging the beam by using magnetic devices rather than mechanical devices. This would be more efficient because mechanical devices break down more easily than magnetic devices. It could operate in all conditions.
He gave you the illustration of sand and grit getting into the working parts and mucking them up. If it has magnetic devices, there are no parts to get into. It certainly had a military significance. All Mr Brigginshaw knew about it was that it was for military technology. He did not give details to Mr Smith in May 1992; he spoke to him about it briefly during that audit. Mr Brigginshaw had never seen a document like these pages 182-185. It does not contain any reference to any of the audit work done by Mr Smith. It is all technical background material not audit material.
He agreed that QOCR is an unclassified project. It is Commercially Confidential. There are a large number of potential commercial competitors in this field. It is funded by commercial not by MoD backing. He was not asked questions in cross-examination about beam swing scanning.
Mr Deadman, also from MoD Malvern, said beam swing scanning would be useful to the Russians. If it had gone in a public domain document, he would have classified it or insisted the paragraph be deleted.
Mr Swallow said that the notes on QOCR were more detailed than one would need on an audit and it was not audit related. Dr Weatherley said this information might have been useful to the Russians but it could refer to just car radios(sic). It could however refer to Defence, particularly the navigation of remotely operated vehicles in a battle area. That means this subject is being pursued in the United Kingdom and other NATO nations in a military context.
He could not be certain if anything in the document itself would be prejudicial to the interests of the United Kingdom; it might have been. He was remarkably hesitant at that stage. He “seemed to think it probably would not have been”, was the note I made at the time, because he thought long and hard; “useful but not prejudicial”.
Dr Maher said that pointed out that Mr Brigginshaw took out a patent in October 1992. So he makes the comment that it could not be very secret if Mr Brigginshaw was bringing it into the public domain a few months afterwards, and he therefore considered it was irrelevant that this note of the defendant's was dated May 1992.
He said there had been a large number of articles about missile guidance in Janes Weapons, and there had been advertisement for them. The missile guidance systems are mentioned in literature in much more detail than in the pages that are in Mr Smith’s handwriting. He said these notes anyhow are concerned with use for car radio(sic).
He did consider this information was of potential use to an enemy, but he said he was then in the difficulty that it was of use to a potential enemy but then so was all the information in the public domain; and he said that reduced it to an absurdity, which cropped up more than once in the course of the case. He said that any information could be said to be of use but, if it is in the public domain, then you can get hold of it without referring to this, and he regarded it as of no use to the enemy. You may regard that as a perfectly valid test to adopt. His test was: if the matter was sufficiently in the public domain, he would not have said this information really could be of use to a potential enemy.
He then added that this information in this document just possibly could be useful to an enemy as part of a jigsaw, but he was very hesitant about that too. He said it could be useful to a competitor, and he felt all of it was in the public domain.
Micron valve project: Mr Deadman from MoD, Malvern gave evidence about this. These are minute valves. Valves produce power and the smaller and more efficient the valve is the better it works, the more use it can be put to; and the less weight it has the more it can be used, particularly in platforms in the air where weight is of crucial significance.
A beam of electrons is emitted by the tip. That is the power at the moment. It is not really known scientifically why or how the tip most efficiently emits electrons. It is not known therefore how: whether the shape of the tip or what precisely you make the tip of, what causes it most efficiently to emit electrons, but the tip is clearly a crucial part of the device.
Mr Deadman did not feel any of the information about micron valves should be classified. It does not refer to a particular piece of MoD equipment. He explained that, unless the information referred to a particular piece of equipment or project, the guidelines do not require the document to be classified. He agreed that this might mean that, if there was a new invention, that might turn out to be of considerable importance in a military context, it could not be classified until such time as it had been thought that it could be applied to a particular project or product, or was so applied. He agreed that there was that gap, as it were, but that is the way that he said they work. So he would not have classified this.
You have had read out to you in Mr Tansey’s closing speech part of his cross-examination which I have tried to summarise. I hope I have done it justice. He does his best on the guidelines which are over the page 583, which I have already referred you to.
He considered the information about micron valves might be useful to the Russians for industrial espionage. Well, we are not concerned with industrial espionage in this case. Then in re-examination he was asked if it might have military uses and he reflected and said yes, it might be useful for that purpose as well.
He in fact demonstrated that it is extremely difficult for him, exercising his undoubted skills as a high quality civil servant, to know precisely what to classify and what not to classify, but he does his best using the criteria his department lays down. That is why I gave you the direction earlier on that you have to consider this case under the terms of the Official Secrets Act, under the terms of this indictment, not under what is the classification system which is not part of the law. But they are, I repeat, guidelines, and you can make such use of them in coming to your conclusions as you think appropriate.
Mr Swallow also looked at these pages. He said the information was sketchy but accurate as far as it went. This is on micron valves. He said at the moment the project was only commercial; in future it could have military uses. He did not know if any of the information had been published. He said many teams in the States are doing similar work.
Dr Weatherley thought that this information could have been useful to the Russians because micron valves can be used for a number of Defence projects, and he says that, because of this, he believes this information would have been prejudicial to our interests if given to Russia. He said he was not aware whether published information emphasised the importance of the performance of the tip of the micron valve; nor was he aware that the last sentence -- which reads: “So far a maximum of 50 micro amps has been achieved from a single tip” -- was in the public domain.
He was then referred to an HRC report published in September 1992, which referred to this matter. This was at a time of the case when there was a certain amount of confusion about the words “public domain”, which became clear as the case went on. The words “public domain” were being used in cross-examination on the basis that the HRC annual and biannual reports were in the public domain. Strictly speaking they are not; they are Company Confidential, but as they are circulated widely the point for the defence remains that there is more chance that they could improperly get into the wrong hands.
But the fact that the document could improperly get into the wrong hands does not make it a public domain document. A public domain document is a document that people in the public can have as of right. If it is easy to steal it does not make it public domain, any more than my car is your car if I leave the key in it and it makes it easy for you to steal it.
Dr Maher says that these micron valves are an alternative technology which could lead in due course to devices that could better survive radiation damage. He pointed to a number of defence papers at volume 1, 362, 340 and 283. He said that the Russians have published papers on micron valves since the late 1960s. His belief if that the Russian scientists are far ahead of scientists in the West on this subject. This is an area where they have continued research whereas the West has looked at alternative methods of avoiding radiation damage; in other words we have gone into the silicon chip business more than the Russians. They have kept with micron valves, starting with the old-fashioned valve that ones grandmother used to have in her radio set, which she would call a wireless, and now getting down to micron valves; and they have kept with this and they do not get influenced by radiation. So there is quite a lot to be said for the Russians keeping the micron valves.
So they are in fact substantially ahead in his view of the U.K. He does not say how far they are, so he could not say whether they have this technology or not, but he suspects they have. He says valves can avoid radiation damage. He said he did not consider this information about micron valves was of any interest or use to an enemy or to a competitor or anyone. It is not prejudicial to the safety or interests of this country. It is of no use to a competitor.
Members of the jury, it is only quarter past four but, as I said, it is pretty difficult to listen to one voice. I have tried from time to time to lighten the atmosphere by bringing in what may be rather far-fetched analogies, because otherwise it gets turgid for you all. It does not prevent it from being an extremely serious subject both for the Crown and the defence throughout. It is merely in order to give you a moment of relief.
I would like you, if you could, to come back at ten o’clock tomorrow, please. I think I have about another hour and a half to go on my paging. It is slightly difficult to be accurate. Do not forget tomorrow you will certainly go out to consider your verdicts and consequently -- you do not know any more than I do how long you will be, so bring a precautionary overnight bag with you, and alert your family and friends that they may not see you because, once you go out to consider your verdict, our somewhat antiquated rules are that you have to stay together till you have considered that you have reached a verdict. Messages could be got to your family and friends. It is a two-way system but you are not allowed to talk to them directly. I am not going to go into the rights and wrongs of this somewhat antiquated system. It goes back a long long time. By the fact that I am using the word “antiquated”, you can deduce that I think it is time we had a change, but we are all bound by the rules at the moment.
I am going to ask you to go now because, dealing with these technical subjects, it is quite likely that I have made a few inadvertent mistakes. If that is right, I am going to give counsel an opportunity of putting me right and I will correct whatever I have said wrong tomorrow morning before I go on to the next bit of my summing-up.
(The jury retired from court)
MR JUSTICE BLOFELD: Is there anything either of you want to bring to my attention?
MR NUTTING: One very small thing: your Lordship said in summarising Mr Deadman most recently -- you emphasised that Mr Deadman had said that the document concerned would be valuable so far as industrial espionage was concerned, and you added as if by dismissal of all the issues in the case, “We are not of course concerned with industrial espionage.” My Lord, in the context of the defence “Commercial Harry”, that might be thought ....
MR JUSTICE BLOFELD: Sorry, yes all right. When I said that, I meant we are not concerned from the Crown point of view. I am just making a note of that.
MR TANSEY: My Lord, may I raise a few matters.
MR JUSTICE BLOFELD: Yes, do. I will get my notebook, yes.
MR TANSEY: Your Lordship said to the jury that it was the case for the prosecution that the defendant had a row with his wife on the Friday about going to the coast on the Friday.
MR JUSTICE BLOFELD: That is what he said in his interview.
MR TANSEY: Because he could not go to Harrow on that day, my Lord.
MR JUSTICE BLOFELD: No, not to Harrow; for the fall-back. If I said Harrow ----
MR TANSEY: My Lord, the position is in fact that is how it was basically put by the police officer when he was questioning him, but it is not the Crown’s case. The Crown’s case is that whatever he had the row with his wife about on Friday, it has got nothing to do with Harrow.
MR JUSTICE BLOFELD: I had thought the Crown case was that he should have met his Russian contact at Harrow on the Thursday, 6th. The Russians did not come because Oshchenko had defected and they thought it was risky therefore to keep that meeting. The defendant having not met the Russian on 6th August, where he had gone either to hand over what was in his car or to talk about handing it over, not having met his Russian opposite number, he would have expected to have his fall-back arrangement, which would have been the next day, which would not necessarily have been at Harrow.
MR TANSEY: In fact their case is not that he was expected to go to Harrow the next day or anything to do with that.
MR JUSTICE BLOFELD: Is it their case that there was not a fall-back arrangement for the next day? Maybe you can clear it up and let me know at five to ten tomorrow.
MR NUTTING: There could not have been a fall-back arrangement with reference to any marking in relation to 6th August because by definition, according to the allegation made by the Crown, nobody arrived at Harrow to make any marking at all.
MR JUSTICE BLOFELD: No, that is right.
MR NUTTING: So it would have been a fall-back arrangement, if there had been one, based on some agreement ----
MR JUSTICE BLOFELD: I thought ----
MR NUTTING: ---- of an older kind.
MR JUSTICE BLOFELD: I thought the Crown did not rely on any particular agreement but deduced, from the fact that there was a row, that this was because there would be likely to be a fall-back arrangement.
MR NUTTING: It must be inherent in the Crown case that that is a possibility. We cannot point to any specific document or note made in the case which has an inherent and necessary reference to that date and the next day.
MR JUSTICE BLOFELD: I will emphasise that there is nothing in 273-276 that deals specifically with fall-back arrangements but the Crown's theory is that there must inherently have been a fall-back arrangement.
MR NUTTING: The nature of the questions put by Mr McLeod were certainly based on the premise that the defendant would have been expecting something to happen on the Friday, by reference to the abortive meeting on the 6th.
MR JUSTICE BLOFELD: If there had been an abortive meeting, something would have happened and something did not happen, and the row may have been connected with that. If I have put it too strongly I will correct it tomorrow, Mr Tansey.
MR TANSEY: My Lord yes, thank you. That is number 1. Number 2: your Lordship I believe said, so far as Mr Brigginshaw is concerned, insofar as page 182 of the handwritten ----
MR JUSTICE BLOFELD: Is this quasi-optical?
MR TANSEY: Yes, it says at the top that Peter Brigginshaw was the project leader at HRC, and it is part of the Omega Prometheus project. Your Lordship said they must know that so why write it down? You may think it right to give the defendant’s explanation given in cross-examination. He was asked about this very point and he said the project in fact was being carried out ----
MR JUSTICE BLOFELD: Hold on a moment, yes.
MR TANSEY: ---- on two to three sites; it was a collaborative project, and that the project leader of this collaborative project was Mr Brigginshaw.
MR JUSTICE BLOFELD: Yes, he actually mentioned Marconi at Lincoln, did he not, on this one?
MR TANSEY: He may have done. I have not got it in my notes but ----
MR JUSTICE BLOFELD: But the reason I have not mentioned what the defendant said about it at the moment -- but I am making a note to elaborate on it; I was not going to precisely -- is because I did at the beginning of my summing-up say I would deal with what the defendant said at the end, so that they go out with his words ringing in their ears. So I have not given his explanation at the moment. I have from time to time jumped to gun but I have tried not to most of the time.
MR TANSEY: Yes, I am sorry.
MR JUSTICE BLOFELD: I will certainly give that when I come to it.
MR TANSEY: Yes, my Lord. There were three further matters.
MR JUSTICE BLOFELD: Yes.
MR TANSEY: One was about ex-intelligence officers being involved in industrial espionage by Mr P. He did give evidence so far as that was concerned, my Lord.
MR JUSTICE BLOFELD: I thought I mentioned that with somebody; was it not him?
MR TANSEY: Maybe your Lordship did; therefore I missed it.
MR JUSTICE BLOFELD: I certainly mentioned ex-intelligence officers with one of the experts -- which one it was ....
MR TANSEY: Certainly when you dealt with his evidence -- he was asked if could it be consistent with industrial espionage and the answer was, “I am not an expert.” I believe your Lordship stopped there but I am welcome to correction.
MR JUSTICE BLOFELD: Let me have a look. I am not sticking entirely to my notes. I certainly stopped there. I certainly dealt with ex-intelligence agents but whether it was your cross-examination ....
MR TANSEY: Mr Gordievsky -- I certainly put it in cross-examination.
MR JUSTICE BLOFELD: I have a feeling I dealt with it. Yes, here we are. He was taken through each page by Mr Tansey and agreed each individual element referred to some other country, or some ex-agent who was obtaining industrial information but still maintained the whole picture pointed to the KGB. I think I said that.
MR TANSEY: I believe that it was dealt with with Mr P. I have this sentence from Mr Summer’s note, when he said, “I am not an expert.” He went on then, “Many of those who practise industrial espionage would certainly want to use the same practices.”
MR JUSTICE BLOFELD: Yes, I think, Mr Tansey, that I am not going to give that at the moment. I did not see Mr P could have it both ways really. He cannot really make the point that -- well, I suppose he can make the point but, if he is saying, as he was saying, that anybody who is no longer an agent declines at the rate of two per cent a month and matters change, I cannot see he can, because this is clearly recent tradecraft. I think it is too confusing. I do not think I can put it in context. I do not think I am doing you an injustice. I went through it in detail.
MR TANSEY: The question of industrial espionage is obviously central to the defence in this case and the point, which is legitimately made, is, “Well, why should anybody need to use tradecraft in the framework of industrial espionage?” My Lord, it is in that framework.
MR JUSTICE BLOFELD: The difficulty I am in again is Mr P does not know how ex-agents who then go into industrial espionage work ----
MR TANSEY: My Lord, in the sense that neither does Mrs C nor anybody say they do not use it, it is a question of inference; the object is to avoid being caught, as he says.
MR JUSTICE BLOFELD: If you have got a witness who you are saying is hostile, which is Mr Gordievsky, agreeing with the proposition -- if you have got it from him and he is against you, I cannot see that it is reinforced by Mr P saying it. What do you want me to say? Would you like to write out a sentence or two and let me look at it by quarter to ten and I will consider whether to do it? But I am really not certain what you are wanting me to say. What I do not want to do -- which is really like character -- something which you think I should say favourable to the defence which I the feel I have to qualify, because I do not like making corrections that have a sting in the tail, which ends up worse than if I had said nothing. I never consider that is fair.
MR TANSEY: The only sentence I was going to ask your Lordship to put -- many of those who practise industrial espionage would certainly want to use the same practices.
MR JUSTICE BLOFELD: All Right. I cannot see how he can begin to say that he does not know about -- no, I am not going to say that. I am sorry, I am not going to say that. Once he says, “I know nothing about industrial espionage”, I have to qualify it.
MR TANSEY: He said, “I am not an expert in that area.”
MR JUSTICE BLOFELD: You can have another shot in writing tomorrow morning and let me think about it, but I can see it hedged around with too many difficulties.
MR TANSEY: That was his evidence on that particular matter. The second matter relates to the evidence of Mrs Marsh and her observation about the handwriting. Your Lordship did deal with it but may I say very swiftly.
MR JUSTICE BLOFELD: I did. I still cannot see that Mrs Marsh did more than prove a negative.
MR TANSEY: That is an important negative as far as we are concerned.
MR JUSTICE BLOFELD: I did say that.
MR TANSEY: Because the prosecution says is that this, in their opinion bears the hallmarks.
MR JUSTICE BLOFELD: No, I have already stressed that, as far as that letter is concerned, there is no clear evidence that it is written by a Russian at all.
MR TANSEY: My Lord, what I was going to ask you to say -- can I just remind you -- what I was going to ask you to say was that she said this: “I do not consider it”, that is the use of the R and N, “to be highly unusual. There's nothing unusual in the handwriting on the envelope and the letter. It could be a British writer or any other nationality; anyone could have written it.”
MR JUSTICE BLOFELD: It could be anybody in the whole wide world except probably the Chinese. So what?
MR TANSEY: “There is nothing in the letter writing that I have not seen before in British writing. There’s nothing specific that” ----
MR JUSTICE BLOFELD: When Mrs Marsh left the box I could not but think to myself: I cannot see why she has been called. I still cannot see why she has been called. You addressed the jury, as you were perfectly entitled to, about her, but I really think I have made it clear that the evidence about that letter really does not seem to me -- and I am not going to say anything about that anyhow is what it comes to.
MR TANSEY: I am just raising it for your Lordship.
MR JUSTICE BLOFELD: Kind of you!!
MR TANSEY: The third matter to remind the jury, my Lord, is that there is no evidence of any meetings or any sightings.
MR JUSTICE BLOFELD: Yes, I will certainly do that -- with Gordievsky (sic).
MR TANSEY: Mr Oshchenko, or any Russian at all.
MR JUSTICE BLOFELD: I think in fact -- well, I am going to limit it. The only one there was, in his interview, was being in the same room with some nebulous Russian at a Sutton village hall or something like that.
MR TANSEY: Yes.
MR JUSTICE BLOFELD: There is no evidence of meetings with Mr Oshchenko, meetings or sightings.
MR TANSEY: With Oshchenko or any member of the KGB.
MR JUSTICE BLOFELD: Or any Russian.
MR TANSEY: I am happy with the KGB for the purposes of this proposition.
MR JUSTICE BLOFELD: Any member of the KGB -- you can certainly have that. That is a point I should have put in and I did not, sorry.
MR TANSEY: Those are all the points. May I say tomorrow morning as well, Mr Nutting and myself may have to be in another court.
MR JUSTICE BLOFELD: Mr Nutting, as you know, with your agreement came to see me and - oh, I see and you have arranged that McCullock J. is sitting at ten, is he?
MR NUTTING: Sorry, I am not sure what time he is sitting but I know he expects -- well I cannot say he expects.
MR JUSTICE BLOFELD: I will be available at ten. If for some reason either of you want to be present and would prefer me to delay till you are ready, I will not come in till you either are both there or I get an indication that you are happy for me to continue without you. Quite frankly, I am doing extremely -- it is difficult to tell but I am up to page 140 and my notes go up to 197, so -- but I have done rather better than it would seem. On that basis I have got a half day but I have not because I am not adding anything to the scientific evidence. But I will still get them out by lunchtime so I am not particularly concerned. I just thought an extra half hour was useful.
MR NUTTING: May I say at once if Mr Tansey does want to deal with this matter with your Lordship, I will as it were hold the fort with McCullock J. and explain what has happened, but Mr Tansey and I were both anxious that the jury should not think we were abandoning this case.
MR JUSTICE BLOFELD: That is exactly what I think ----
MR NUTTING: If you would kindly say something.
MR JUSTICE BLOFELD: I have finished micron valve so I have got to start olfactory research. So it is fall-back arrangement, Oshchenko, and you are going to think -- for the moment I am certainly against you on Mrs Marsh. I will think about Mr P. I can formulate something.
MR NUTTING: And Mr Deadman the first point that I raised.
MR JUSTICE BLOFELD: Quite right.
MR NUTTING: It is clear from all ----
MR JUSTICE BLOFELD: I am not really certain that the Deadman point -- well, as it has been mentioned, I will put it right in case it can be misinterpreted.
MR NUTTING: Exactly; that is all I was concerned about. In the context of everything your Lordship said, of course there is no possibility of misinterpretation but it is just an elision.
MR JUSTICE BLOFELD: I think I put the issue fairly clearly to the jury but, as it has cropped, I suspect it is one of those points -- if you will forgive my saying so -- that you have raised because it actually happened that we had a break shortly afterwards. If it had been half two, by four o’clock you would not have thought it worth raising!
MR NUTTING: May I consider myself cautioned!
MR JUSTICE BLOFELD: No, no.
MR TANSEY: May I say tomorrow morning I am perfectly happy for your Lordship to start without myself being here at ten o’clock.
MR JUSTICE BLOFELD: I think in the circumstances of this case -- you and I know perfectly well Mr Smith’s interests are not going to be prejudiced by your not being here but, if Mr Smith feels he would like you here -- he is not experienced -- I do not want the defendant to have a sneaking feeling he might feel he was not being -- or the jury might feel he was not being represented, even though there is nothing you can do. If there is any question of that I will not sit till you are ready.
(The case was adjourned until the following day)
Order No. 94 / 898 / S1
IN THE CENTRAL CRIMINAL COURT
Old Bailey,
London E.C.4
Tuesday, 16th November 1993 to
Thursday, 18th November 1993
BEFORE:
THE HONOURABLE MR. JUSTICE BLOFELD
REGINA
- v -
MICHAEL SMITH
_____________
MR D. SPENCER Q.C. (Solicitor General)
MR J. NUTTING and MR J. KELSEY-FRY
appeared on behalf of the prosecution.
MR R. TANSEY Q.C. and MR G. SUMMERS
appeared on behalf of the defendant.
_____________
Transcript of the palantype notes of D.L. Sellers
(Official Shorthand Writers to the Court)
10 High Street, Leatherhead, Surrey KT22 8AN
INDEX II
SUMMING-UP continued
VERDICTS
MAJORITY DIRECTION
DISCUSSIONS re note from jury
VERDICTS
Tuesday, 16th November 1993
(In the absence of the jury)
MR TANSEY: Your Lordship will notice Mr Nutting is not here. With you Lordship’s leave, I will also request to leave this court to go to another court.
MR JUSTICE BLOFELD: You and Mr Nutting told me last night that unfortunately something else has been arranged. I do not know if it is the same case for both of you or different case.
MR TANSEY: Same case.
MR JUSTICE BLOFELD: It has been fixed for ten o’clock this morning. By sitting at ten o’clock suddenly, without clearing it with yourselves, it has put you in difficulties, but you are both satisfied that your juniors can ----
MR TANSEY: Certainly.
MR JUSTICE BLOFELD: ---- keep an eye on the situation while you are dealing with it.
MR TANSEY: I shall return soon.
MR JUSTICE BLOFELD: Your client’s interests are fully protected and it is no discourtesy to them; it is really my fault for not checking with you.
MR TANSEY: I shall return as quickly as I can.
MR JUSTICE BLOFELD: Right. I will let you go before I start is the easiest thing. (Mr Tansey leaves court)
(The jury came into court)
SUMMING-UP, continued
MR JUSTICE BLOFELD: Three matters, members of the jury, going back to yesterday, before I carry on, all of them short. The first one is, when I dealt with Viktor Oshchenko, I should have reminded you of course that there is no evidence whatever that Mr Smith ever met Viktor Oshchenko. The Crown do not call any evidence that he did. He says he never met him in his life and there is no evidence of any sighting of him either with Mr Oshchenko or with any member of the KGB, which of course the defence say indicates the Crown theory about his being recruited by Mr Oshchenko is nonsense. But of course it is all a very long time ago and, whether it would be capable of being photographed or, if it did take place, an Intelligence Agency man would ever have seen it, we simply do not know. But it is a factor in the defence’s favour that you should take into account.
Secondly, shortly before we rose yesterday, I said in relation to one matter that of course this case is not about industrial espionage. I think it was clear in the context that I meant by that that the Crown case is that they are not concerned with industrial espionage. It has always been the defence case that in fact Mr Smith was indulging in industrial espionage but that, I think, has been clear throughout. The issue is: was it genuine spying against the interests of this country, putting it briefly, for the purpose of prejudicing the safety and interests of the state, by handing over information to a Russian, or was it industrial espionage by handing over information to Harry?
The final matter to deal with is this. I dealt, early on when I was doing a synopsis of the prosecution case, with the events of 6th August, and I said that the Crown case was that the defendant went on 6th August to Harrow in order to meet up with his KGB controller, whoever he then may have been and failed to find him. Their theory is that, as they did not meet, there would inevitably have been a fall-back arrangement, there normally being fall-back arrangements, they say, in well organised intelligence services, which was likely to have taken place very quickly afterwards, very probably the next day. They point therefore to the questions put by Superintendent McLeod and the defendant’s answers in his interview about him having some form of fall-out or row with his wife, because he was anxious to keep the fall-back arrangements. I simply stress to you that that is theory. There is no direct evidence about it. Whether it makes sense to you or not is a matter entirely for you.
Those are the three matters I said I would raise and I now go straight on to where we left off last night. I turn over to olfactory research and I go on to that: again one of the defendant’s handwritten notes, you will remember.
Dr Weir gave evidence for the Crown. He was in charge of this project at HRC until he left in July 1992 to take up a new post somewhere else. He explained that olfactory research effectively is a mechanical smell device, and he says it has military uses. It can be used to detect minute quantities of gas. This is important because some gases, in particular nerve gases, he said, can kill or disable when they are in very small parts per million or billion parts of air. And, unless the device can detect those minute quantities, anyone who breathes them in would be either disabled or dead before they could take evasive action. And, by being able to detect such small parts in the air and also by the reason that they can detect humidity in the air, they are in that particular way more sensitive than the human nose is.
Now, on page 187 it says that these devices are reproducible. He pointed to that and said there are a number of matters in these pages which are specific and those bits of information are not public knowledge. He particularly referred to the reproducibility for use, in the second line, of 261 MHz which is in that document. We need not go happily into the precise relevance of it, but that bit of information, he said, was not public knowledge.
He also drew attention to spin-coating and kinetics, and he placed emphasis on the last two lines which showed that the devices were being developed now down to hundreds of parts per billion. That means to detect gases within hundreds of parts per billion.
We were told that there had been an audit relating to this olfactory research project in November 1991, which was carried out by Mr Smith and his immediate superior Mr Elson. Dr Weir said that the contents of page 187 had been explained then to those persons as background information, before they undertook the audit. Some of the information however, he said, on page 187 had been developed between the audit and the date May 1992 which is on the top of page 187. I am just going to turn to 187 for a moment.
He then went back to the figure of 261 -- I am not certain if it is KHz or -- it is MHz, and he said that is important because there are a whole variety of frequencies which scientists could use, and it is of interest that at any rate at HRC that is the one that they are using; they find it therefore suits them. And it would be of assistance for others to know that HRC was using this particular frequency. And by using that frequency on the face of this document, it enabled HRC to make reproducible devices.
He agreed that there were seminars held at HRC to inform those who worked at HRC, closed seminars for people working at HRC, and that some aspect of this project could be mentioned at those seminars. Of course the defendant said these are all lecture notes.
He said that this project at the moment did not have a military context or military funding, but it was under discussion. He indicated that the thinking as to why it was under discussion was that, if a reproducible device could be made which could detect very small quantities of gases, then the time could come when one of these was incorporated in the butt of every infantryman’s rifle, so that it would in fact show him if the -- I do not know whether it would turn a colour or emit a sound. He would then be able to put on his gas mask, or whatever it was, probably something far more sophisticated than a gas mask, because it would alert him that there were gases around that would enable him and make him unfit to fight. So it does in future have potential, if it can be fully developed to be of military use.
Dr Lewis -- he was the Lewis who gave evidence about surface acoustic wave devices, not the Professor Lewis who was so strongly criticised by Dr Maher perhaps; that was a different man -- was concerned about the line on page 187 which reads: “Fabrication of these devices is now reproducible”.
Dr Lewis said the principle of olfactory research has been known for many years but the incapability of reproducing these devices has prevented the project from getting under way properly, and that line suggests that HRC have succeeded in reproducing these devices. This, he said, would be useful to the Russians because it would indicate that, if they started on such a programme, they would know that apparently HRC had succeeded, and this might therefore cause them to continue to press on with any research they were doing, rather than for them to give up their programme.
You will remember that Dr Lewis was the one who was referred to the abstract of a paper about SAWs, and I have already dealt with that. That is when he had an abstract -- in case I am precising it too much – he had an abstract and came back saying he had read the paper. I dealt with that when I was dealing with his evidence on surface acoustic devices.
Dr Maher took a very different view. He said that the olfactory research project was a basic research project. He said that the concepts are well documented in the public domain. So far he is agreeing with what has been said. He said that page 187 does not refer to any specific cases, and that he said is a serious criticism of its use. It is no good having olfactory research unless one knows in respect of which gases it would be effective. He said it would however be of some use to a research scientist who wanted to know how far HRC had got.
He did not agree that the spin-coating was of any relevance as Dr Weir said. He said spin-coating is a well-known technique. He said you will not find other people involved in olfactory research necessarily using a 261 MHz SAW resonator; there are many other resonators which can usefully be used. He took the view that these written notes are not very good notes. They are much less valuable than what is already in the public domain. The fact that the devices are reproducible is already in the public domain, he considered.
He said that Dr Lewis had got it wrong; none of this information could be useful to an enemy and certainly is not prejudicial to United Kingdom interests. It could be useful to a competitor in the sense that it would indicate that HRC is not very advanced in this field. So there you have really a complete head-on clash between the two.
May I just pause there. The Crown say that it is unnecessary for their case for them to be concerned with each particular scientific project. They say that effectively, once Dr Maher has agreed, as he did agree in respect of the SAW device documentation or some of it, that it could be both useful to an enemy and prejudicial to our interests, they have then succeeded in showing that some at any rate of the papers in the holdall which was in the back of Mr Smith’s car were in fact capable of prejudicing U.K. interests. Therefore they say it may be extremely interesting to discover that there is a clash of views about matters like olfactory research between their experts and Dr Maher, but in the end it really does not matter because, once he has accepted there are some aspects that are prejudicial, then the rest of the matters are of very much less significance.
It is however relevant, as I say, on the basis that the Crown says that virtually the whole of this information that was in Mr Smith’s possession is in fact of very low grade. It is a curious by-blow of that though to some extent, because on Mr Smith’s evidence it was entirely by chance. For all he knew, the papers he was taking, on his account from his desk, that had been there put there by D.T. Lewis, could have been of high importance to a potential enemy. But of course he said he did not look at them before he took them, so it is not as though he deliberately selected low grade papers, because he says, apart from the two documents (that is the first two pages of 269 and the document 2-49) which he wanted in case he had another quality assurance job because they were useful blue prints, the rest of the documentation that came from the D.T. Lewis’s drawer he just took, and he had not as yet gone through it all.
Turning to Rapier; that is the next pages that start at page 188A. Mr Swallow gave evidence about that. He is divisional manager at HRC. He has been there for 35 years. He works with microwave devices. He says that these pages contain a complete brief on how to manufacture delay lines. This delay line is the one that is now being used in the Rapier missile. It is still current. The delay line has some small refinements from the ones that are disclosed in this documentation but those refinements effectively were virtually complete by the mid-1980s, so these are still ones that are actually in place in Rapier at the moment.
He said that, if this bundle fell into enemy hands, the enemy could use to it manufacture a delay line of the same type as that used in Rapier. He referred to the band frequency which is referred to particularly at pages 193 and 194, and he said that information might enable an enemy to jam the Rapier and to make its use in warfare ineffective, either ineffective or at any rate less effective.
It was pointed out to him by the defence that the information in the HRC annual and biannual reports referred to this frequency band, and Mr Swallow agreed with that -- that is the company confidential documents not a public domain document. He agreed that there is as much in those documents about band frequency as there is in the documents recovered from the holdall in Mr Smith’s car. He agreed that there are references to delay lines in the technical and scientific press, but he said these do not specifically refer to the Rapier frequency band.
He told us that various projects at HRC start with a military application and then it is discovered in the course of research that they also have a civil application, and he says the reverse happens too, as the olfactory project may show. It has at the moment a civil application but it may turn out to have a military application. It is not necessarily possible to say at any time whether a project will at some later stage have a military use or not. It depends how the research goes.
He said that the delay line on the Rapier is only a small part of the Rapier technique of engineering. You will remember that the Rapier missiles work by sending out impulses. If those impulses hit a platform then the pulses bounce back from that platform and the echoes return to be interpreted. It has an inbuilt IFF capability -- that is to identify a friend or foe -- and if it does not receive a friendly response, it fires.
One of the tests on the Rapier missile is something called OCF short for Operator’s Confidence Facility. The delay line which we are dealing with in these pages simulates the distance that the pulses travel from the Rapier to the target and enable the operator to discover whether the radar in the Rapier is working properly. You will remember he said that electrical impulses travel far faster than sound waves and, as the electrical impulses come into this delay line, they are transformed into sound waves; and therefore by travelling a very short distance, that simulates a much longer distance as electrical impulses, because, although they are both going at astronomically fast speeds, sound waves go a very very great deal slower than electrical impulses. Mr Swallow’s view was that it would certainly help a potential enemy to have the Rapier documents, both because they could manufacture the device and because it would enable them more easily to jam or try and jam the device.
Mr Weatherley gave evidence too, that is a different Mr Weatherley, not the military Dr Weatherley. This Mr Weatherley was programme manager for Cossor Electronics. They had placed the order with HRC; they were subcontracting to HRC because they were concerned with another contract with the Ministry of Defence about Rapier. He looked at these documents. He said that it is a set of documents describing the processes necessary to manufacture a delay line as drawn up by HRC. He said that the documents were very complete and included drawings. He said he could not comment in detail on whether they would enable him to make the device because he was not a manufacturer. He said the data contained within the documents of itself does not, in its own right, form any security problem. None of the documents are classified, but he was concerned at the completeness of the dossier and also at the indication of the wavebands. He said however that the wavebands indicated were fairly wide, so it is only of limited use to a potential enemy.
He said that his company Cossor sell to both military and civil aviation installations, and they export too. The defence suggested these documents might have been useful to a civil competitor and he accepted they might have been.
Dr Weatherly, that is the military man, dealt with these delay lines. He said that the information here, if it were available to the Russians, would be useful. He was taken through the various documents, and he was particularly shown the Janes Weapons page by the defence -- that is bundle 2 at page 447 -- which has the Possum on it, and we discovered that the Possum is a lower grade missile which the United Kingdom sell, and he pointed out that, although the Possum wave length is shown in Janes accurately, he said, when you look at Rapier, which is on the same page, the delay line, the wave length there is not included. So he was pointing out that clearly you could not pick it up from Janes.
That was something in due course that, although factually Dr Maher agreed that was the case, he said you could deduce it from Janes because, once you saw the wave length of Possum, you got a very strong clue that Rapier would be much the same. I will come to that in a moment.
We then had ex-Squadron Leader Bagley. He is now working in Oman. He has been a Rapier engineer for the last ten years. He was concerned about the disclosure of the waveband frequency. He said, if the frequency is known, it is possible to jam the operation of the missile. The narrower the band that is known the more the possibility of effective jamming arises.
He said that the overall content of these pages is giving away sensitive information about the Rapier system. He thought it would be useful to the Russians. He said there was a small amount of evidence about the weapon that would also be useful.
As far as he knew, the Rapier delay line used in the Operator’s Confidence Facility is no longer being made. We heard in fact from the first witness, Mr Swallow, that in fact none had been made for some years because there had been enough for Rapier, but in fact he said, as it happened, this very year they have received an order to make a few more; I think he said eight or ten more.
The Operator’s Confidence Facility is fitted to the Rapier systems and, while Rapier systems remain in use, that Operator’s Confidence Facility will be used, and it is still in current use. He said he was not aware of these further eight delay lines which were being manufactured. He said that the point which pointed to the importance of these papers was that this delay line is in current use by H.M. Forces.
He was then shown the Tech Brief which is in the public domain, although a little doubt remains as to whether in fact an Iron Curtain country could get the Tech Brief, but certainly they could get the Tech Brief probably through their trade delegation. It might mean a small element of deceit but it is reasonably in the public domain. I have dealt with that before. He said that does refer to the band being 3.1 to 3.4, and he would have preferred that document to be marked Restricted because it did disclose that information.
He was also referred to the details about Possum from Janes Weapons, and he made the point that Janes is an independent publication; it is in no way accepted by the Ministry of Defence. So it is not published either by the Ministry of Defence or with the Ministry of Defence’s blessing. So he said he made the distinction between information in a book and information that is in a complete dossier which comes from a respected research establishment like HRC. One might put you on the track but the other is much more authoritative in his view.
We heard from a Mr Gordon Smith who works in the Ministry of Defence. He considered they were prejudicial to the United Kingdom. He felt they gave an insight and could lead to counter-systems being set up, but he said he was not a specialist so he did not really take the matter any further.
So the prosecution case is that this is a complete dossier; it contains references to the bandwidth and they are therefore of more help coming from HRC than they would if they got it from Janes or any other source of a scientific journal or symposium. The defence say that the band is too wide to be of great use really; that was the way they were putting it in cross-examination. They say there are clues in the published literature, and so they were arguing it was not capable of being prejudicial to United Kingdom interests.
Dr Cundy said that he did not expect to see these documents outside the HRC. They are a complete specification for an OCF delay line. “I cannot think of a legitimate purpose for the defendant having them in his possession. There is no doubt that this information could enable anyone to whom it is given to reproduce the device”. He pointed out it was part of a weapon, the Rapier. It is a small component only but, he said, if you have a small component and you have an insight into how it works, it may well give a clue to how the whole Rapier works. He said that he certainly did not know how much information the Russians already had about the Rapier system, so he could not say whether this would give them a worthwhile clue or not.
Dr Maher said that HRC is not the only company that makes delay lines. He did not know now if there was any company making delay lines that could be used in the Rapier, but in the past there have been. He said now it is rather old technology. There are alternatives now currently being worked on. He believes that the Russians are very knowledgeable about wave devices. He cited a paper of theirs in 1968 and said that, if they were that advanced in 1968 -- this is how I understood it; he did not say precisely -- they would be bound to have gone on with the research, and consequently he thought they would now have progressed to be very sophisticated in knowing about the wave devices.
He said, if they have a lack of expertise it is on the fabrication of the surface science of these devices. He said most but not all the information contained in these pages is in the public domain. He placed reliance on Janes Weapons at page 447. He said you could deduce the wavelength from that information. He also relied on the HRC report, recognising of course that that was company confidential.
He said he believed the manufacturing information was of some use but there is more information in the public domain. The documents could be useful to a potential enemy because they are internal to HRC. “I would have to say that the information might be prejudicial to United Kingdom interests as part of a jigsaw. It is a very small component of the system but it does give a very good clue to the operating bandwidth of the Rapier.”
So that is the other subject from which it is clear that Dr Maher is saying that they are both potentially useful and potentially prejudicial.
Thermal Imaging: Dr Lamberton. Thermal imaging enables one to see at night. All objects apparently emit radiation, whether they are inanimate objects or alive. The infra-red radiation that they emit can be picked up by thermal imaging. This is done by a complicated and expensive procedure, but a clear picture can be formed. It is largely a military technology; thermal imaging machines are now mounted on tanks, aircraft and ships in the United Kingdom forces.
Professor Elliott invented the detector called the Sprite or TED in 1974, described by Dr Lamberton as a “brilliant discovery”. This allows the signal to be integrated. The current generation of thermal imagers in the United Kingdom are the most advanced in the world. America has some competition but it is not as good. Russia has few and rather poor ones. None are fitted on their tanks.
There was a recent conference at Birmingham, Dr Lamberton told us, which the Russians attended, where it was clear that their technology was not as good as ours by any means. Much of the general information about TI’s, that is thermal imagers, has been published, but details of performance and manufacture are classified.
The Sprite, TED, is only manufactured in the United Kingdom and under licence in the U.S. and in Japan. In both cases as part of the licence there are constraints on the sale of any TI’s they make. The Japanese for example can only sell to their own Ministry of Defence.
Detailed fabrication techniques are not available; they are sensitive and not released. He says the flow chart at 269/1 and 269/2 encapsulates GEC -- he really means HRC -- know-how, how to put these together. He has never seen such material published before. He was once, on a confidential basis, shown equivalent material in America. He was very surprised to see that particular chart 269/1 and /2 published. It gives an overview. It would not be in the interests of the United Kingdom if this document gets into the Russian hands.
He was referred in cross-examination to documents about the Sprite. He said that the documentation he was shown by the defence contained different information to the flow chart at 269/1 and /2. He agreed that there were many holes in that flow chart; for instance, it did not indicate how to grow CMT. Somebody will tell me what that stands for.
MR KELSEY-FRY: Cadmium-mercury-telluride.
MR JUSTICE BLOFELD: Thank you. I shall call it CMT! It is a flow chart however of all the steps in the manufacturing process. He says the fact that it shows the overall process is something that concerns him.
He was specifically asked about the casing of the device. For some reason the casing, the packaging, is called passivation. I do not know why. He pointed out that there were various ways in which the passivation can be carried out. This flow chart identifies a particular process, although it does not give you every bit of information of how to deal with it. By giving you a particular process it excludes a great many other possibilities. This would be extremely useful information, and it would save another person or country making different scientific tests to decide which is the correct process.
He said that the information in this flow chart would be useful to an enemy. He pointed out that the fact that it is a working document coming from HRC shows that this is how HRC makes these devices, and consequently it has to be distinguished from a theoretical document.
Professor Elliott, who was the one scientist effectively everybody from every side agreed was at the top of his tree, said that the most important information about 269/1 and /2 in his view was in the parts dealing with fabrication and polishing. He said this information would shorten the development time of anyone who was minded to make this device and who had not got that information already.
It would be useful to the Russians, he said; it is a clear pointer to the process. He gave you this analogy. He said that it not only tells you which chapters you need to read, it tells you which chapters you do not need to read in the public domain. So it saves a great deal of time potentially. This information means you do not have to waste time taking potentially wrong turnings.
In other words it gives you the route say from London to Birmingham, so you do not go off by way of Gloucester or Norwich or something. That is the sort of analogy he is giving; it does not tell you every single road you pass and it does not tell you precisely how to make the device, but he says it is useful. He says it is a clear pointer to a viable process.
Dr Weatherley, the military Dr Weatherley, said that these documents would have been useful to the Russians and prejudicial to United Kingdom interests. He was asked about TED or Sprite devices and he said that the TED devices describe a whole family of detectors. Restrictions on information depend upon whether one is referring to high or low performance detectors. It is common knowledge that thermal imaging is used for military purposes. These pages provide much detail on a specific part of cadmium-mercury-telluride technology which is not published elsewhere.
He was taken through the literature. He pointed out that the literature that he was shown does not show how to make these devices. The United Kingdom has an advanced TI capacity and Russia lacks this. If the Russians got hold of it they might be able to counteract our TI capacity and capability.
You will remember that Mr Tansey went through page 269 in detail pointing out that, when you came to every square or round or triangle, you could not make it without further information. Mr Weatherley broadly agreed that is absolutely right. He said they were pointers; it did not tell you the manufacturing process. He still maintained that despite the gaps it was a useful document. He agreed that without collateral information this document would not enable anyone to fabricate the device.
He pointed out that the document not only contained the steps to be taken in the correct order, which he said of itself was a matter of importance, it also referred by numbers and letters to the scientific papers which describe the techniques. These could give the Russians an indication, if they could get hold of those papers from a different source, they would then be further down the line. This of course might tie up with some of the evidence you heard about tradecraft. This came from Mr P, who said that sometimes KGB are highly specific about what they want their agents to obtain; and of course, if they knew the numbers of a paper, I suppose it is not impossible that they could say to an agent, if he was correctly placed, “could you try and get hold of AB/123”, or whatever the number was.
He said that the document shows both the thought process and the fabricating process going on at HRC.
Dr Cundy looked at the document about thermal imaging and said he was horrified, particularly about the two pages 269/1 and /2. These give the central view about it. He boosted the United Kingdom thermal imagers, which he said are some of the best in the world, and said, “HRC has been able to produce some of the most spectacular devices the MoD at Malvern have ever seen”. These pages provide very important information. The steps are not explained specifically but nevertheless this is a very good broad-brush appraisal.
He said our method of making thermal imagers is way ahead of the Americans; the Americans are going down another route. In other words they are not following the way we do it; they are doing something scientifically different. He said they are much more interested in their processes and there is a reluctance for them to take up a process which emanates from an invention from another country. I dare say the same applies that he may be reluctant to take up an invention that also emanates from a foreign country for all I know. He then lumped together thermal imaging, silicon-on-sapphire and gallium arsenide papers, and he said the defendant was not entitled to have these documents outside HRC.
Dr Maher dealt with thermal imaging. He specifically referred to the flow chart 269, which is at the crux of these documents. He said one could not reproduce a device from this alone. He pointed out that polishing is a very complicated process and there was no information about that. Somewhere there would be a document about polishing which would be required to be found before this device could be made. This document is of some use to someone who is producing very similar detectors. There was only one other company in the United Kingdom producing such detectors. That used to be Mullards, but Mullards was taken over by GEC so effectively there is no other company outside the GEC umbrella.
He accepted the United Kingdom did have a world lead in thermal imaging. He said there are companies outside the United Kingdom which are pushing the sales of infra-red detectors. He said the flow chart might be useful to a commercial competitor if they were prepared to infringe the patents. He pointed out that, at defence bundle 2, page 567, Agema -- they also produce kitchen stoves and sell detectors called Sprites. He did not know if the Sprites are the same as in this flow chart.
You will remember we did hear, as I have just reminded you, that there are high and low grade Sprites in fact, so there are different types of Sprites. Dr Weatherley said that TED devices describe a whole family of devices. He did not consider that if a Sprite was different it made any real difference, in other words if you could make one Sprite then theoretically you could make other types of Sprite.
He said the fact that the substrate was sapphire in a Sprite detector was published in 1988, bundle 2, page 557, and he said that the defence bundle at 575, which showed a patent application, also showed this. He said there were thousands of papers on thermal imaging. He said that these two pages 269 might possibly help a potential enemy to steer through the maze of papers on the subject already in the public domain; it might be part of the jigsaw. He did not agree with Dr Lamberton’s views or Dr Cundy’s views. He expressed a high regard for Professor Elliott. He said that the information could be of some use to an enemy but qualified it and said only of minor use.
Then in re-examination he qualified his view of Professor Elliott’s opinion. Despite not going back on his opinion that Professor Elliott was a brilliant man, he said nevertheless he did not wholly agree with Professor Elliott when he said the document read like an index. I think what he meant by that was that Professor Elliott said it read like a book with chapter headings. He said it was an internal working document. “It is not very useful to an enemy. It is not even necessary. I cannot see that this flow chart prejudices the interests of this country. It could be useful to a competitor.”
Silicon-on-sapphire: this was the woman scientist, Dr Hodge. She has worked for the Ministry of Defence at Malvern for many years. Silicon-on-sapphire is largely for military use; it is expensive. Apparently, if you put your silicon chip on a substrate of sapphire, it helps to prevent the silicon chip from being affected by radiation. It makes them what is called “radiation hard”, and consequently it is used where it might be exposed to radiation; that means in either missile systems or in space satellites.
She considered the pages on silicon-on-sapphire, 260/10-69, to be of no great consequence. She said pages 36-42 did not relate to silicon-on-sapphire at all but to epitaxial silicon chips. She said that pages 12-31 show the approximate state of the art in this field in April 1986. She said that the project was at least partly funded by the Ministry of Defence. She said the documents here can be related to open literature and potentially show what sort of capability the United Kingdom had at that date. She considered there was additional detail in these pages that was probably not disclosed in open literature. She made the point that HRC has an excellent reputation and therefore the nature of its own technology would be of interest.
She specifically referred to pages 32-36 which is a procurement specification for silicon-on-sapphire. She said this should not be released to a potential enemy. HRC put in a great deal of work to prepare this document. She pointed to such matters as the name of the supplier, a Japanese name, that is page 36, and she also pointed to the precise selection of the different dimensions of the silicon-on-sapphire. She said this takes years of work.
She was taken through the dimensions of the silicon-on-sapphire. She said that, although there were some similarities with the published literature, the specification gave more detail, what HRC has drawn together in its specification. You will not find their choices from other documents. Particularly critical factors, the factors of dislocation and the edge chips, it is significant that HRC have put in their specification in both cases.
Dr Cundy said the defendant was not entitled to have these documents outside the HRC. HRC had been spending up to five to six million pounds per annum on this technology. The information contained in these documents together with the actual devices -- he put weight on the fact that there are some devices, also shown on your photograph 1 -- would cut years out of the time required to make silicon-on-sapphire of the same type. He said, if they were handed over to a potential enemy or a commercial competitor, they would be of great financial benefit. He talked about reverse engineering of actual devices. That is all he said on that.
Dr Maher said that pages 10-69 are not just silicon-on-sapphire documents. Well, we have heard that already. He said, “In my view, any other manufacturer would have similar if not identical information. Nothing in these pages would be useful to an enemy nor prejudicial to United Kingdom interests.”
He referred specifically to pages 32-36 -- those are the pages Dr Hodge dealt with -- and criticised Dr Hodge. I have reminded you of his criticism of her when I was dealing with the general matters.
He said, “I can think of a scenario when this would be of use to a competitor.” He gave the example that it shows the source from which HRC buys its sapphire -- that is the Japanese company Kyocera. He said a competitor for example might buy up all the sapphire from Kyocera, so that either HRC would be put out of business because they could not get the sapphire to make their silicon-on-sapphire chips, or they would be required to buy all their sapphire through the person who bought it up from Kyocera. He said in that sense it could be useful to a competitor.
He said that nothing in this document is useful to an enemy. The specifications in these pages 32-36 are almost identical to the specifications for silicon wafers. “They are, as far as I can see, if not quite the same, so nearly the same that there is no significant difference. I was a bit alarmed that Dr Hodge said the specification was unique. I find it a standard specification.”
He then referred to bundle 3, 225E, F and G and said there are some additional details in our pages 2-36, but he said they are really of no consequence. He said he could go through them in detail but his invitation was not taken up. But you must take it that, if he said he could go through them in detail, he could have demonstrated that in his view they were almost exactly the same. He said in his view the specification at 32-36 is nothing out of the ordinary at all. All this information can be gleaned from public domain literature.
He dealt with the bow of the substrate, which is a specific matter that Dr Hodge had dealt with, and he said that the wafer is flat and not bowed. He did not agree either with Dr Hodge’s comments about chips on the edge of the sapphire. He said this problem is well-known; there is nothing significant in relation to edge chips. “I do not believe any of this information would be useful to an enemy.”
He disagreed with Dr Cundy. He said he did not believe that the information contained in these pages would shorten the development time if it came into the hands of an enemy. Much of the information, he said, was preliminary information, and he said that the final pages were in the public domain -- that is not in dispute -- from pages 43 onwards it is accepted by all sides, and those pages do not add anything.
Gallium Arsenide: Mr Allenson from the Ministry of Defence, Malvern gave evidence about this. These chips are for use in monolithic microwave integrated circuits, shortened to MMICs. All of the information here is information put out by the company in order to attract orders. It is not commercially sensitive; the information is freely available. So he said all that information is in the public domain.
Dr Cundy differed from his view. Dr Cundy very much doubted if other companies are selling radar gallium arsenide MMICs; they are too expensive for use for civilian applications. Each chip costs £50 to £100. I asked him -- I was not certain -- so that we could discover what their value was. He said, if you have a dish on the side of your house, the silicon chips there that enable you to receive Sky television, Sky B, cost about £3.50. If you had gallium arsenide chips, it might do a marginally better job, but each chip would cost £50 to £100, so it is out of the question. It simply theoretically has commercial use but, unless and until the price comes down enormously, no-one is going to pay for them.
He agreed that none of the documentation relating to gallium arsenide was restricted or classified, and he said that these particular MMICs for which these chips were made were for use in radar. He said that the gallium arsenide programme ran at the cost of about six to seven million pounds a year.
He was particularly concerned at these pages, together with the devices photographed on page 1. He says they in fact amount to a very intimate look at the gallium arsenide activity and what might appear in a few years in radar devices for military use. It is a defence development. For a potential enemy to know how radar is being structured is useful. It saves expense and helps him to counteract the devices used. If it reached the hand of an enemy, potentially it could knock out tens to hundreds of millions of pounds of work. So he was strongly critical of the gallium arsenide pages.
Dr Weatherley says that all the documents are preliminary information -- they are so headed -- but they would not be disclosed by GEC to Russia. Nor would COCOM allow this information to go to a potential enemy. So he pointed out that, although they are preliminary information that might go to a western competitor, they are not totally in the public domain. He said these documents are available to all who have reasonable reason for wanting them in the West. He said a large amount of this information is already published in the GEC journal which is a public document.
Dr Maher said all this is public domain documentation. It is all information that would be given to a competitor. Whether it would be given to an Eastern European competitor is a matter you will have to consider. In other words he did not know. He said his views were precisely the same as Dr Allenson’s, so this was a rare example where Dr Maher fully agreed with one of the experts called by the prosecution. It is not of use to an enemy, he said; it is not prejudicial.
He did not consider the papers combined with the devices could assist an enemy. He said such value as there is in them is much less than that which is already in the public domain. He said handing over these devices could not possibly prejudice the interests of this country. If he were a potential enemy, he would like to see later devices than these earlier devices, because these are some years old.
So much for the scientific evidence. The other document, page 270, that is the list of Mr Parker, that is John Parker – “Check John’s contracts list” is on the tradecraft documents. He had checked the handwritten list made by Mr Smith found in the well of his car. It sets out a selected number of contracts received from HRC from about April to about mid-September 1990. The dates kept changing and those dates are not quite hard; it could be a little later but it is about April; it might go through rather nearer November.
Every contract that comes in is on a register and those registers are freely available to quality assurance staff, and they do need to look at them from time to time, so it would be easy and perfectly permissible for Mr Smith to have gone to that register.
Dr Cundy had some difficulty in working out what the numbers were. The numbers down the left-hand side are apparently provisional contract numbers. He could think of no legitimate reason why this list was compiled. He said that many of the contracts in this list are leading edge technology; quite a lot of it is military technology. He pinpointed -- I can give you some numbers -- 9088/96, 9072/74, 9088, 89, 90 and 91. He said there were some that were non-military, and 9045 is one that is non-military.
It was said by Mr Tatham and others and Mr Barlow that they were thinking of expanding what they did with QA, their quality assurance, but the Crown evidence was that none of these contracts were in fact the subject of a quality assurance audit. Mr Smith said there was a great deal of talk about quality assurance audits and widening them, and he relies heavily on the document at the end of the new black bundle, and he says that Mr Tatham’s memory simply is not as complete as it might be. That is not a criticism as I understand it of Mr Tatham; simply that, out of the 101 things he has had to do, he has forgotten this one. He said that in fact this was a document -- he merely drew up some contracts because he thought it might be that they would come in handy for auditing. It was a time of change; there was this new algorithm turning up; and he did it for his own benefit.
He said -- I will deal with it as I am dealing with it now -- he really cannot for the life of him think how this document came to be in his car. He thinks that it came there because he took it by chance from his work. He threw it away -- he put it in a plastic bag with some sweet papers and other rubbish from his car. He then went to a rubbish bin, tipped out the plastic bag and this paper must have just not tipped out but clung to the side of the plastic bag. Then there was a storm, and there was some rust at the bottom of his door and water was getting in, and he put what he thought was an empty plastic bag in the well in order to stop the carpet from getting wet.
He was as surprised as anybody else would be to discover this document was in the plastic bag. He certainly had not put it there deliberately. He certainly had not hidden it. It was entire chance that it was there, and it was of no importance in any event.
Well, that is all I propose to say to you, although I have just dealt a little bit with the defence case in the last few moments, about the prosecution case.
The defendant. Now, before dealing with the defendant, let me just remind you of the eight defence contentions Mr Tansey put forward in his final speech, so that you can remember them as I go through the defendant’s evidence. He said that there was no real evidence that Oshchenko ever recruited or ever had any dealings with the defendant. You will obviously, as I read them out, think to yourselves that to some extent I have covered some of these.
There is no real evidence that the money in notes in the defendant’s house came from the KGB. There is no evidence at all they came from the KGB direct. No-one can say, “Ah yes, Barclays handed over that series of notes to Mr Vasilov”, or whatever his name might be, “who came from the Russian Embassy.” There is nothing of that sort at all.
There is no evidence that the Williams letter came from the KGB was his third point. The defendant was never seen in the company of any Russians was his fourth point. The defendant had no spying paraphernalia, the fifth point.
The activity of the defendant was of such low quality that it suggests he was not working for the KGB. As I understand it, both his methods of work and the type of documents he was extracting is what he is meaning.
Finally, Mr P’s evidence on tradecraft, that it was in his view unlikely that Smith was dealing with the KGB, is compelling evidence. Then he dealt with Dr Maher. I hope in Mr Tansey’s absence Mr Summers will forgive me if I say that, although he took those as his chapter headings, perfectly understandably when you got into the small print of the chapters he expanded them, and he dealt with a whole quantity of other things.
It is not my duty to remind you of everything that both counsel said in their final speeches. You can remember their speeches and I do not propose to say more about it. But, as he gave you those chapter headings at the beginning, I give them to you again so that you can remember them.
I turn to Mr Smith’s evidence. Now I have reminded you about Mr Smith’s character and how you can consider that it may assist in his credibility. Pay no attention to the fact that he has been sitting in the dock with a couple of officers, or three as it is now, around him. That happens to everybody. It does not mean he starts, when he goes into the witness box as it were, to use a tennis analogy, 15-love down; he does not. He starts exactly the same way as everybody else came in. Whether at the end of his evidence he remains the same or better or worse is for you to decide.
He told you that he is 45 years old. He says he has never spied with the KGB; he has never had any dealings with them. “Everything I have done has been to support the interests of the state. I would not be prepared to prejudice the interests of the state. I have never communicated any document to the Russians or drawn up any documents intending to communicate them to the Russians. I am not prepared to betray my country. I do not know Oshchenko. I have never had any dealings with him”.
He went through his history. He told us how he had been to university. Then he had a job in Birmingham for about six months. He did not like living in Birmingham. Then he worked for Rediffusion, from 1976-78 with EMI doing secret work, then he transferred to EMI Medical. He was on an MSc course. He was given a pay rise to move. From 1980-85 he was with EMI Datatech. He moved there because EMI Medical were moving to Radlett in North London/Hertfordshire way, which was too far away from his home. He was made redundant from EMI Datatech in 1985. He got a two-month temporary job, and then there was a job at Hirst Research Centre, where he remained until he was made redundant and left on 31st July. He was then arrested on 8th August.
He was not involved in politics at his university but, during one of the years when he was at university -- he had had a four-year course, including a year’s work experience, a common form of university degree -- he shared a flat with a Yugoslav, who was definitely Socialist, and most evenings they talked politics.
In his first job at Birmingham -- that is the short job -- he joined the trade union TASS. He used to go to Communist Party bookshops; there was one quite close to him, and he was intrigued and went in, and from that he went to meetings.
MR KELSEY-FRY: Sorry to interrupt, but I am just wondering whether your Lordship intends to remain in camera for this part of the summing-up?
MR JUSTICE BLOFELD: Thank you very much. No, I do not; quite right. We will be in open court, if the anybody wants to come in.
(In open court)
I am not going to repeat it for the benefit of the press, if the press have now turned up. I simply say that I have described his early days and his early career. He used to go to Communist Party bookshops and then meetings.
He said, “I think I probably did join the Communist Party when I was in Birmingham or shortly afterwards.” Then he moved back and lived in Surrey. He got involved with the Young Communist League in 1973/74. He was quite active. He was chairman of the local branch of TASS. In 1975 he went to Russia. When he went to Russia, he was disillusioned by what he saw. From then onwards this process of disillusionment continued and, by the end of 1975, he virtually severed his links with the party, although he never appears formally to have resigned; he just faded away.
He does not remember if he signed a form when he joined EMI, asking if he had ever been a member of a political party, particularly a communist one, but he said that, if there had been one asking him whether he had ever been a member of the Communist Party, he would have said no. He said he would have lied because otherwise he thought he would not have got the job. He says from the day he drifted away from the Communist Party, some time late 1975/early 1976, until the present day he has been totally uninterested in communism or left-wing politics. He has been straightforward, middle of the road, fairly uninterested in politics.
He then dealt specifically with Oporto. He had been to Oporto in 1977 for two nights with John Watson, who was a friend of his. John Watson had left-wing leanings but was not a communist. They stayed for two nights in a camp outside Oporto. The defendant was driving his own open car. He drove it down to Portugal. Although this holiday is now some 16 years ago, he says he now, having thought about it, remembers distinctly that, on the two days they were there, they both caught a bus into the middle of the Oporto and in the evening they caught a bus to go to the El Fado dance in the evening.
He agrees that he told the police in his interviews that they went to Oporto by car and used the car in Oporto; that is 362. And he agreed that he later said that the map which was found in his flat had been marked to show places of tourist interest. As I understand it, he says he was not lying when he said that; that is what he was trying to recollect and he was doing his best to recollect, but he then realised he had got it wrong. He said he thought about it since and now realised that this was inaccurate, and he said that the person at the camp had been marking bus routes.
The Crown say that this is his last desperate attempt to make sense of an incriminating document, but he says that it is very difficult indeed to think and remember exactly about something that has happened 15 years ago but, if you actually concentrate and sit down and think about it, particularly if you know that you are going to stand your trial -- is what he is by implication saying -- so it is of importance that you should really think about it, then things do come back to you and you can come up and get it right.
While working at HRC -- he said he liked it; the work was interesting and there was more money there than his previous jobs. He had his own desk, a bookcase and a filing cabinet. When he arrived at his desk, that is in 1985 -- he was there seven years -- his desk was full of papers left by the last occupant, that is Mr Dewie Lewis. In the course of his seven years at HRC he never succeeded actually in clearing out the desk completely. He cleared out some papers but there was still a nearly full bottom drawer by the time he came to leave on 31st July.
In January/February 1990, he received a telephone call out of the blue from Harry. He cannot remember if he gave the name Williams then or later. Harry asked him to meet in a local pub. He was curious and he did, and they went to the Preston, which is a pub round the corner. Well now, that is significant when you are considering all the fall-back arrangements and tradecraft because, on two occasions early on, Harry at any rate had no objection to showing himself close to HRC, in the local pub where other people of HRC went to on the defendant’s account.
“Harry was trying to persuade me to sell information from HRC. It was clear to me that he wanted me to behave dishonestly. I said, ‘I am sorry, I cannot get involved.’ Harry mentioned a sum of £10,000, which was very attractive, but nothing happened that was conclusive at that meeting.”
They met again at the same place a few days later. “Harry said he had a client who was interested in the work of the HRC. He said he had a client in the same business. I expected that client to be another commercial company. I was not then earning as much money as I would like and I accepted his propositions to supply him with information. I questioned with him whether £10,000 was enough. He said, ‘We will have to discuss this later.’
“He said that his client was especially interested in micro-electronics particularly processing information, and also interested in gallium arsenide and silicon-on-sapphire as well.
“Harry arranged to meet me at the Roxeth Recreation Ground in two to three weeks. I went to the Roxeth Recreation Ground and we had our first meeting in March 1992. I drove there in my car and I met Harry. He got into my car in the car park, and there we talked. He said he did not want me to get into any trouble with my company. He explained some methods in case our plans went wrong. He gave me a fall-back arrangement. I did not bring any documents to the meeting. He gave me £500 at this meeting. “I made some notes, that is 274.” I think we ought to look at that; we have not looked at it yet. “We arranged to meet again in April.” So it is in this first meeting that apparently that this “suggest” comes up. That is all he says to do with Harry, and Roxeth Rec is to do with Harry. He cannot help you much about South Harrow 2nd/3rd April, and he said that “When finished state of contract what is happening on them” is not to do with Harry at all. He said that the Harry notes were written, as he says, in March 1990. “We arranged to meet again in April. We had a second meeting. I made notes of this.” That is the next page 275. The first four lines down to “answer Michael” he says are nothing to do with Harry. Those notes were made either in December 1989 or January 1990. He cannot explain what “green the go” or “green line go” means or “answer Michael”.
He says that the “latest” bit -- those were made March/April 1990. Those were probably in March for the arrangement in April, but it was not quite clear because he referred to April, but it is the spring of 1990. “Latest” was the code word. Then he said “first Sat every month” was arrangements for regular meeting; that is what they could be. He read it as “standard” and then it has got “unintelligible” -- he read that as “data sheet” and he did not know why he had written “IQA journal” down. Then the next bit, “7-14 T next 1st” down to “19/26 November” crossed out is nothing to do with Harry; that is social; and the remaining bit is Harry and the same date.
He said he jotted down things Harry told him on bits of paper on which he also used to jot down social matters and also matters relating to his work. Well, again the Crown say you have to consider that with great care because it is curious, if he had in fact such a haphazard way of using bits of information and jotted them down, that they are the only tradecraft notes that have been produced. It is not suggested any more were found in his flat; the only ones were in the envelope with the Williams letter. So the Crown say that he is in fact not being truthful when he says that he was jotting them down at different times, and that becomes particularly important, they say, when we come to 276 which we will come onto a little later.
He said he got £500 at each of those two meetings, and I have dealt with money and do not propose to go back to that. He said he gave no information to Harry at that April meeting.
One matter you will have to consider: according to him, 275 was made at the second meeting, including “first Saturday every month”, but in fact he said the next contact he had with Harry Williams from April 1990 was when he received the Williams letter. “From that I deduced that our next meeting would be on 4th October at Roxeth Recreation Ground” because you will see there is reference to 4/15, so that is the 4th, so he went on 4th October.
“I took there with me some documents relating to gallium arsenide. These were processing documents which I took from my filing cabinet. They were documents of approximately 1986-87. I did not think they were of much use to Harry. I gave him 30 or 40 documents. He gave me £5,000. We agreed to meet again, and we met at Horsenden Hill in December. I gave him a further batch of documents on gallium arsenide. I think it very doubtful that any of them would be useful to an enemy. They were early drafts. Many had been found to be inaccurate.
“Harry was not very happy with the documents I had given him in October, but he gave me a further £4,000. I met him again in March, again at Horsenden Hill. I gave him some very old documents I had copied. They were about gallium arsenide and silicon. He was then rather unhappy with the documents I had given him in December but he gave me £3,000. He asked me for more interesting documents. He was looking for commercial secrets.
“We met again in June 1991 at Horsenden Hill. I gave him more documents and he gave me £2,000. Then we met in September 1991 at Harrow-on-the-Hill. I gave him silicon documents and he gave me £2,000. In December 1991 we again met at Harrow-on-the-Hill. I gave him further silicon documents and he paid me £1,000. Our final meeting was in April 1992 also at Harrow. I gave him a small quantity of silicon documents he gave me £2,000.
“He said that was the end of the relationship. There were no concrete plans to meet again. That was the last time I ever saw Harry. It never crossed my mind that Harry might be a member of the KGB. I would be very surprised if he was.”
He said he had lied constantly in his interviews with the police when describing his dealings with Harry. “I lied all the way through. I think this was because they were accusing me of something I had not done. I could not take it seriously at first. I did not like Mr McLeod’s manner. He seemed to judge me guilty and I felt I could not play along with this. I had been extremely dishonest with my company. I had something to hide. I thought I could get out of all this by telling a few lies and then I could go home.
“I did not tell them that Harry’s surname was Williams. I did not tell them that the Williams letter, that is 270, came from Harry. I did not tell them Harry had arranged fall-back plans. I did not tell them any of the tradecraft documents related to Harry. I told them the places I had met Harry were quite different from the actual places where I did meet him.”
You have to ask yourselves: why did he tell these lies? Was it for the reasons he has given or was he lying because in fact he knew, and knew all along, that he had in fact been dealing with the Russians?
He then described of course how he got his redundancy notice. He described about the contracts, and I have dealt with page 270. He described how there was talk of another job and it never came to anything. He described his redundancy. He described taking the lecture notes. I will come to that in due course because I will be taking you quickly through the scientific evidence that he dealt with. “I left HRC on 31st July. People came in constantly to say goodbye, so I was in a rush at the end of the day. When I left I took a number of documents. I was inclined to throw them away but I felt there might be something useful in them. I took my sports bag into work to pick up things in my office that belonged to me. In fact I filled it with the papers that were found by the police on arrest. I never took it from the car from the moment I put it in to the moment I was arrested.
“The devices in the photograph, page 1, all came from Mr Crighton’s cabinet. I took them out of sentiment as a record of what I had been involved in. I took the two documents 1-49 and the flow chart 269/1 and /2 because they might come in useful in the future. Mr Tatham definitely had given me the document 1-49”; that is what Mr Tatham firmly denied.
He then dealt with the documents. He said that he wanted 1-49 because it was a good example of a processing document and if he had to draw one up in future about a project this would be useful as a pro forma. He said then that the remaining SAW documents had been left in his desk by Mr Lewis. He said that, in his view, none of the documentation that he took and nothing in it could be useful to an enemy or could be prejudicial to the interests or safety of the state, and he said specifically -- which is what you have to consider, whether or not he said it specifically -- he made it clear that he is not guilty of these offences.
So he was effectively saying that certainly he never in fact communicated anything -- I am looking at count 1 -- for a purpose prejudicial to the safety or interests of the state. He never had that purpose and nothing he took was calculated to be or might have been or was intended by him to be directly or indirectly useful to an enemy. He said in his view it was neither useful to an enemy nor capable of being prejudicial.
He then turned to the individual documents. I took them in the order that he was taken through them, which is not in the order of the bundle. He first of all dealt with Rapier. He said, “These documents were left in my desk by Mr Lewis. I did not think they were of any use to anybody and I took them home.”
Then he dealt with thermal imaging. He said, “These documents arose from an audit I did with Alan Nott. He suggested we each have a copy of this flow chart” -- that is 269/1 and /2. “I then just left the document on my desk. I never intended to hand this document to anybody. The remaining thermal imaging documents were in the drawer in the desk, left there by Mr Lewis.”
Again the Crown say: is it just coincidence that the document 269/1 and /2 ties up nicely with the other thermal imaging document and the document 1-49 ties up nicely with the other documents which happen to be Lewis documents? The defence effectively say that is chance.
Silicon-on-sapphire: “These were some of the documents I considered giving to Harry but did not actually give to him.” So these are not Lewis documents; these are documents that the defendant got hold of while at HRC, thinking he might give them to Harry but decided not to. “They are all original documents. I took them the day I left. I had had them in my possession since early 1992. I had decided against giving them to Harry.
The gallium arsenide documents: “I collected these documents either at audits I had done or from people working in the area of gallium arsenide. As all this information is handed out to prospective customers and has copyright on it, I cannot see how it can be confidential. I did not intend to hand it over to anyone.”
Then he turned to the SAW documents which, as I said, from page 50-175 came from Lewis’s desk, which he took over. “These documents are incomplete. They are preliminary to preparing a capability set of documents. They apply to two different devices, the 120 and 200 MHz. There is no information on the design. Pages 1-50, in my view, have no connection with pages 51-175. They would not be of use to a potential competitor”, and he did say they would be of minor use to a potential enemy, and that was checked and he said he did not think they would be of use to a potential enemy; and you should take that on the basis he was not changing what he was saying but may well have slipped in a “not” by mistake. So you should not take that against him. It is easy to do. He said he did not look through the document 51-59, that is the Restricted document, while he was at HRC.
Then he dealt with the thermal imaging documents, 269, that is the flow chart. “I do not believe one can manufacture a device from this document. Each symbol involves a very complicated operation. It is of use to someone like myself. I would say it would have been of no use to a potential enemy or to a competitor.
The Rugate filters: “These notes were made by me as a result of an audit with Mr Tatham in June 1992. It is vital to have a feel about the background about the relevant area one is auditing. I made them because at that time” -- he put it this way – “I may have been intending to give them to Alan Nott who I thought was going to take over from me after I had been made redundant. Then I talked to him and I learned he was not going to take over from me.” He was mildly irritated by that and so they remained on his desk, and he took them home when he left.
“The micro-machining information came from a lecture note shortly before we did an audit. I was not intending to hand any of the information over. The quasi-optical car radio(sic) information came from Mr Brigginshaw while I was doing an audit. That also might have been handed over to Mr Nott but never was. The micron valve project was exactly the same; it came from an audit and might have gone to Mr Nott but actually did not because he never took over. The olfactory research project were lecture/seminar notes.” A seminar is only after all several lectures so they are really lecture notes, as are the olfactory research notes. Turning to olfactory research: “During the period when I left I had less and less work to do.”
Then he dealt with all the handwritten notes. “I wrote the handwritten notes to take my mind off my impending redundancy. I thought I would hand them over to Alan Nott, who I understood to be taking over from me. On Tuesday or Wednesday of my last week, he told me he was not taking over. I got a bit annoyed and swept them up with other papers when I left.
“Page 270 is a list of contracts. It is in my mind that I made it in late 1990. I talked to John. I thought the algorithm we were using was a bit hit and miss. I wrote these contracts down as areas where we should do audits. I do not know whether any contracts were in fact audited but the areas sometimes were.” He pointed in particular to the areas of biosensors and micro-machining.
Then he dealt with the severe thunderstorm and the plastic bag which I have already dealt with. I kept the money Harry Williams gave me in the filing cabinet at work. On the last day I put that in my briefcase. I brought a holdall with me to take my things home in. I took my personal possessions, desk diaries, papers in my desk and papers left by D.T. Lewis in my drawers with me. I was running out of time when I left and I gathered them up willy nilly.”
Let us just go down to page 176 to remind you of the dates he says he writes these. This you will have to consider again. The top bit, “Karl Gehring redundancies” he says he wrote in May 1991 and is nothing to do with Harry. The “Get old contract notes; biosensors” down to “HTSC high temperature superconductivity” he made for himself and reads, he says, like a list of requirements.
MR SUMMERS: It is 276; I see the jury looking.
MR JUSTICE BLOFELD: I beg your pardon; thank you, Mr Summers. Page 276, the last page of the whole bundle, that he said was just things he was doing, not a requirement list he was being told to get by Harry; still less was it a requirement list, being told what to get by a KGB agent. Then “Get Karl’s address and telephone number” probably does refer to Karl Gehring. That does refer to Harry; that does refer to notes he made about Harry. The date he jotted those down is September 1991.
So it is coincidence that the Karl Gehring at the top of that page is written because that has got nothing to do with Harry and was written in May 1991, some four months beforehand; all that down to “up and round Church Hill into church” is all there, and you can see at (2) “At elm tree” -- you will remember his cross-examination about that which is criticised by the prosecution. I am not going into that.
Then he says that the words “Prepare for next delivery in Sept. Date to be arranged in Aug.” was written in July 1991, after a talk with Mr Barlow. There again the Crown say that frankly, simply cannot be true, and he has to explain it because clearly, once he has agreed that 6th August is there and he went to Harrow on 6th August, it looks damningly as though he was going to continue giving information in September. So he has ingeniously thought out some reason. He says there is nothing ingenious about it at all; he wrote it on a different occasion.
Then he turns to the Thursday, 6th August and Friday, 7th. “I went to Basingstoke for an induction course for my new temporary job. On the way back I knew my wife would not be in so I decided to make a detour to go to Harrow. I wanted to buy the magazine called Keyboard. I had tried to buy Keyboard on Monday at the local W.H. Smith but had failed. I knew the Harrow W.H. Smith’s had it.
“I parked my car in Harrow at the bottom of Peterborough Road. I walked to W.H. Smith. I could not find Keyboard. I never made any enquiries to the staff to find out if it was in, although I saw they had the last number which was out of date. I then bought some newspapers, went back to my car to read them, looking for jobs. Then I walked up the hill and eventually sat on a seat by the church.
“I went there because the previous year Harry Williams had mentioned that this date, 6th August, was a fall-back date when he would be certain to be there. He said he would be there every year. Then I went to look to see if he would turn up. I was in the church yard for 15-20 minutes, 10 minutes in the garden and 10 minutes on the seat. I was there at about one o’clock.
Then later in cross-examination, being asked what would he do if Harry Williams had turned up, he said, “If Harry had turned up I would have told him that I did not want anything more to do with him”.
Then he said, “On Friday I went down to the coast with my wife. There was no fall-back arrangement. It was not really a row.” I have described what he said about it in the interview: it was simply an argument because she was slow at getting ready; she spent too long getting her clothes and getting properly dressed and tidy and putting make-up on. So it was no more than the most minimal form of matrimonial tiff.
Then he turned to 8th August. “I had been in bed with my wife”, and he described how they had made love, how he got a cup of tea -- all the routine domestic matters that may happen in thousands of households. “About 9 a.m. the telephone rang. My mind was elsewhere. My wife handed me the telephone. I did not recognise the voice. I only actually heard about half the conversation. It struck me as very curious. In the back of my mind I wondered if it was concerned with Harry Williams. I half thought it was a hoax; I half thought it could be serious, something important.
“I stayed in bed for five minutes and then got up and dressed. I told my wife the call was from a George I knew at work. This was a lie but I did not want her to be worried. Then I went out telling my wife I was going to get a newspaper. This was not the whole truth but again I did not want her to be worried. She can be very nervy.
“I went to the phone box on the corner of Cardinal Avenue. I jogged some of the way. This is not because I was late. I just jogged. I went into the phone box. I thought I had been some time away from home. I had 10p with me and I thought I would ring my wife. I put the 10p in the machine but I did not in fact make the telephone call.
“At some stage I sat on the wall by the telephone box for about half a minute. I went up the road” -- and it seems as though he left the telephone box, went further up the road away from home and then came back and sat on the wall, but it does not seem to matter very much. It was not wholly clear. “Then I went back towards my home. I went to the newsagents and bought a newspaper and then, before I got home, I was arrested.
“I was by no means certain that it was the police who had arrested me. They did not make themselves clear. When I got in the car, which was an unmarked police car, they handcuffed me, and it hurt, and I struggled. When they reached Kingston they did not take the right turn to go to Kingston, and I screamed and I struggled. Uniformed police arrived and, when I realised the people who were arresting me were police, I calmed down.
“I was taken to Paddington Green Police Station. I was interviewed for many hours. I lied all the way through. I think this was because they were accusing me of something I had not done. Also I felt the phone call was a trick. I did not take it seriously at first. I did not like Mr McLeod’s manner. He seemed to judge me guilty. I accepted in general terms that I had been paid” -- and the figure of £20,058, which is the figure that Detective Constable Say came to, he said he accepted in general terms that he had received that from Harry.
“I thought I could sort all this out with the police within a few hours and I could then go home. I thought I might have been sent to prison if I told them I had sold information to Harry. I thought my job prospects would be finished.”
In cross-examination -- I do not propose to repeat by any means all of it -- among other things he said he never intended to hand over any of the documents in the car to Harry. He did not believe any of them would be useful or could be prejudicial; he did not have them there for that purpose. He thought the experts called by the Crown had got it wrong. He agreed he had lied about his communism in the past. He said he lied because it was in his interests at the time to lie; he felt it necessary to lie at the time.
The Crown say it may be a long time ago but the fact remains, they say, that unfortunately Mr Smith is a man who, if it is in his interests to lie, does lie. That is what he did to Mr McLeod, and that is what he is doing to you. He says that he is certainly not lying now. It was very specifically about his communism which was never very serious. He thought otherwise it might ruin his life for no good reason.
He said he had not mentioned buses to the police in his interview when dealing with Oporto because it was a long time ago; he simply had not remembered it. He certainly now remembered that he had used the bus on both days and to the El Fado evening.
“I lied about Harry to the police. I thought if I told the truth, Harry might have been arrested and I would have been in more trouble. I never told the police Harry’s second name was Williams. I was not in my normal state of mind. I was tired, confused and not thinking rationally. I know I told them there were no contingency plans to meet Harry. This was untrue. I do not know if Harry personally actually wrote the Williams letter. I do not know how he knew my address.”
Then he was taken through the tradecraft documents in detail, and I have already gone through them as much as I propose to do. So he said he did not know that the documents for delay lines were for Rapier. “I did not know that HRC had anything to do with Rapier”. Mr Barlow said it was common knowledge at HRC that they were making and had been manufacturing Rapier delay lines. The defendant said he did not know that at all.
Members of the jury, that is in brief the salient points of his evidence. I do not propose to finish this summing-up by trying to rehearse again a synopsis of what I have said. I gave you a synopsis, that is a precis of both cases, at the beginning of the summing-up. I do not intend to do it again. I do not therefore see any useful point would be added in repeating anything I have said. So that completes all I have to say to you about the facts of this case and the law.
There are now some administrative matters that I have to deal with. The first is this. Please remember your verdicts have to be separate verdicts. I simply stress that they have to be separate verdicts because there are different evidential considerations for each of them.
They have to be verdicts on which all 11 of you are agreed. You may have heard that sometimes Courts can accept majority verdicts. That sometimes applies. It does not apply to the present case at the present time.
Would you please choose one of your number to say what your verdicts are when you have reached them. Whether you wish to choose somebody to act as a chairman in your discussions is a matter for you. A number of juries find it useful to have somebody because it means your discussions can be more structured, which is the “in” word for it, but it is entirely for you. You can decide what to do for yourselves.
It is going to be pretty difficult, I suspect, for you to listen to any of the tapes of interviews in your own room. If you want to listen to any parts of the interviews, it can be set up in here. But you may for all I know feel that, as you have a complete transcript of it, there really is not much point listening again.
The tone of voice is said to be relevant by both sides. By the defence it is said Mr McLeod had a bullying manner and was clearly not accepting that the defendant was telling the truth. Curiously of course he was right, because the defendant was lying, he says, throughout. But all the same he was aggressive; he compounded the defendant’s embarrassment and caused him to tell lies.
To some extent it is said by the Crown that, when he was lying, it was not as though he was under stress. He laughed from time to time. He was demonstrating and acting remarkably well, as though he was entirely relaxed. You can remember all that. There are brackets for laughter from time to time -- agreed, all of it, that that did take place -- in the transcript.
You have now heard the 8th August telephone call on a number of occasions. Of course we can set that up for you if you want it. If you want to hear any of that, would you drop me a note because it will take a minute or two to set it up. Then we will get you in when it is all set up. If you want to hear the interview, if you tell us the pages you want to hear -- that will take a little longer because the officer concerned has to go through and set it up, so that will probably take ten minutes to quarter hour to set up.
Otherwise you go off once the jury bailiffs who are going to look after you have been sworn. Do not bother to take anything with you. Well, you can take them if you want, but otherwise they will bring your bundles to your room.
You have got the list of exhibits. I think you should have the board with the devices on. If you want any original documents of course you can have them. At the moment I cannot think there is any particular original document that is going to be of great use to you, but have them by all means if you want.
As a slightly facetious postscript, I am slightly hesitant to give you the £2,000 but if you really want it you can have it! (To counsel) Is there anything that either of you want the jury to have?
MR KELSEY-FRY: My Lord, I cannot think of any other exhibits, no.
MR JUSTICE BLOFELD: Well, Mr Summers, if you can think of anything now, they can have it. Otherwise I am quite certain you will have a chance of thinking about it and talking to your client or Mr Tansey. If at any time you feel something ought to go into the jury room, it will be taken in.
MR SUMMERS: There are just four matters that I would like to raise, two of them on instructions from last evening and two more now. I am in your Lordship’s hands whether you wish me to raise them in the absence of the jury.
MR JUSTICE BLOFELD: Are they fact?
MR SUMMERS: Yes, it would be preferable in the absence of the jury.
MR JUSTICE BLOFELD: Members of the jury, go to your room for a moment in case I want to correct anything I have said.
(The jury retired from court)
MR JUSTICE BLOFELD: Yes?
MR SUMMERS: My Lord, there are two points on instructions from last evening and, as it were, two fresh points on today. Could I raise the two points on instructions first. My Lord mentioned a response of my client in connection with Rapier in the interview and I have a recollection that my Lord ----
MR JUSTICE BLOFELD: What page?
MR SUMMERS: It is 609 of the interviews. My Lord told the jury ----
MR JUSTICE BLOFELD: Hold on, let me get my note. Yes, “I never heard of that before.”
MR SUMMERS: Yes. Just reading the context of it, in the middle of 609, he is asked, “What about the Rapier system?” “I do not believe that was part of the work with Hirst.”
MR JUSTICE BLOFELD: He said in his evidence of which I have just reminded the jury that he had never heard of Rapier. It is what I said at the very end.
MR SUMMERS: Yes.
MR JUSTICE BLOFELD: I thought that was his case.
MR SUMMERS: The concern of the note I have been passed is that my client would not want it thought that he had never heard of Rapier before. It is not hearing of Rapier in the context of work at HRC.
MR JUSTICE BLOFELD: That is exactly what I am saying. I am not going to do anything about that. I am not in the least concerned with whether he has read the papers and heard of Rapier or not. That is not what the case is about.
MR SUMMERS: The second point is concerning the question of classified documents. Mr Barlow told the jury that Smith would not normally have access to classified documents; he did not have an MoD secure filing cabinet.
MR JUSTICE BLOFELD: I told them he only had clearance up to confidential.
MR SUMMERS: Can I raise the two points that I would like to raise.
MR JUSTICE BLOFELD: I think I have covered that sufficiently. I cannot in the course of a very long summing-up deal with every single minute point.
MR SUMMERS: I have been asked to raise them so I raise them.
MR JUSTICE BLOFELD: I follow that.
MR SUMMERS: My Lord there are two other points. The first point is this. This morning you directed the jury that the Crown said it was unnecessary for them to be concerned with each of the scientific projects, and that really they had to focus on whether they found some of it was useful.
MR JUSTICE BLOFELD: That is right.
MR SUMMERS: Of course I totally agree with that, my Lord; just perhaps to be safe I would ask the jury to be directed that they still must compartmentalise the information in relation to counts 3 and 4; that for example even if they found there was ----
MR JUSTICE BLOFELD: Yes.
MR SUMMERS: ---- information in count 4 ----
MR JUSTICE BLOFELD: Yes, I will deal with that.
MR SUMMERS: I am grateful.
MR JUSTICE BLOFELD: Count 3 only relates to the handwritten notes.
MR SUMMERS: I am grateful. The other point, my last point, is this. When you summed up the evidence, my client’s evidence in relation to his meetings with Harry, I wonder if my Lord could remind the jury that my client’s evidence was that he said to Harry he would not give Harry classified information, and Harry said he was not interested in classified information.
MR JUSTICE BLOFELD: I certainly did remind them of that when he said it in the interviews. Did he say it also in his evidence?
MR SUMMERS: Yes.
MR JUSTICE BLOFELD: I reminded them of it specifically because I used the word “sensitive”. I do not mind doing that.
MR SUMMERS: Yes, I am grateful.
MR KELSEY-FRY: Could I raise one administrative matter. We have another error in the index to the interviews. It may be the jury will refer to it.
MR JUSTICE BLOFELD: What is the error?
MR KELSEY-FRY: Page 2 dealing with ----
MR JUSTICE BLOFELD: Hand me up your copy -- would you mind. It probably shows it there -- and I will get them to alter it. I do not suppose you have any point on this, Mr Summers?
MR SUMMERS: No, my Lord. (Handed)
MR JUSTICE BLOFELD: Jury back, please.
(The jury returned into court)
MR JUSTICE BLOFELD: Members of the jury, one or two points, three points in all, one about a document. Members of the jury, please may I just make it clear to you, just so that you are under no doubt about it at all: count 4 relates to all the documentation in the blue bundle save for the fact that it may or may not relate to 270. I explained to you that the Crown say it does not matter whether that was going to be handed over or was an aide-memoire that he was going to keep. Count 3 only relates -- and this is the important point -- to the handwritten notes made by Mr Smith. That is from page -- I beg your pardon; I am going to get it absolutely right -- 176-187.
I have been asked to remind you and I do: I told you that Mr Smith in his interview said he would not have handed over any sensitive information or any classified information to Harry. He repeated that in his evidence in front of you. I did not mention that but it is correct that he did, and I mention that so that you can consider it.
Now, would you please turn to the index which I have put in at the first bundle of the interviews because I have been told unfortunately on the second page -- it has been checked and there is a minor inaccuracy. This is the page that has the numeral 2 at the bottom and the words “finances generally” at the top. Go down to “Harrow” which is below 6th August, dates 2nd, 3rd, 4th, 5th August, and then Harrow second line 640-648. Delete 648 and put in 643, and then add 651-661. That is the only alteration, is it not?
MR KELSEY-FRY: My Lord, that is right.
MR JUSTICE BLOFELD: All right. I hope the rest is right. Human fallibility might mean that there is something else that is slightly wrong, but Mr Kelsey-Fry has checked it and says the rest is correct. Maybe the jury bailiffs could be sworn.
(The jury retired to consider their verdict at 11.58)
MR JUSTICE BLOFELD: Mr Summers and Mr Kelsey-Fry, I am going to deal with an application for change of venue.
(Administrative discussion about movement of documents)
(Note received from the jury)
MR JUSTICE BLOFELD: Mr Kelsey-Fry, you are really holding the fort for the Crown at the moment.
MR KELSEY-FRY: Yes.
MR JUSTICE BLOFELD: So that Mr Smith knows what it says: “The indictments refer to section 1(1)(c) of the Official Secrets Act, but the pages in the red binder at 277 and 278 do not appear to cover this section. Can we be provided with some guidance.” They do not cover Section 1; they cover Section 2.
MR KELSEY-FRY: Precisely.
MR JUSTICE BLOFELD: I have no idea why it was drafted in that way; maybe you can help.
MR KELSEY-FRY: Why?
MR JUSTICE BLOFELD: Why the form he signed .....
MR KELSEY-FRY: Because the object of the exercise on the back of the form was to indicate to the person signing the form that he was aware of what a prohibited place was under section 8. The simple answer to the question is that the form does not cover Section 1 with which they are concerned.
MR JUSTICE BLOFELD: Yes, it really deals with a prohibited place; that seems basically the answer. They are assumed to know that it is an offence effectively to spy is what it comes to; that is how I see it.
MR KELSEY-FRY: I was not going to put it that way but in my submission precisely.
MR JUSTICE BLOFELD: That is really what it comes to. (To Mr Tansey) Would you like Mr Summers to deal with it?
MR TANSEY: Indeed.
MR SUMMERS: I did not want to be discourteous to Mr Tansey. I have seen the note and listened to the submissions, I respectfully agree that the signed form deals with Section 2 and we are dealing with Section 1.
MR JUSTICE BLOFELD: Yes, the reason seems to me that it is drawing his attention to ‘prohibited place’, which is a more complicated -- or something people might not be so much aware of as what I call ‘the spying section’, but it does actually not deal with Section 1.
MR SUMMERS: Yes, I am grateful.
MR JUSTICE BLOFELD: Right. By the way, the jury wanted to see the originals of what I call the tradecraft notes and the Williams letter.
MR SUMMERS: Yes, the only other point that occurs to me is whether the jury should just be told, as they have been throughout the summing-up, to focus on the words in the indictment.
MR JUSTICE BLOFELD: Yes.
MR SUMMERS: And not be confused by these words.
MR JUSTICE BLOFELD: Yes, indeed I was going to.
(The jury returned into court at 12.38)
MR JUSTICE BLOFELD: Members of the jury, you have written a note reading: “The indictment refers to Section 1(1)(c) of the Official Secrets Act but the pages in the red binder 277 and 278 do not appear to cover this section. Can we be provided with some guidance.”
First let me make it clear to you that the charges are, as you rightly say, brought under the Official Secrets Act, Section 1(1)(c). It is not a requirement in law that the precise section under which anybody commits an offence under the Official Secrets Act, under the Offences Against the Persons Act, the Theft Act or any other Act should be formally brought to a person’s notice so that he signed it. If you think about that, that must be sense, otherwise nobody would commit an offence. So your question, if you will forgive me for saying so, although well intentioned, is actually irrelevant. You have to concentrate on: has he committed any of the four offences as set out in the indictment.
You are absolutely right in what you say about 277 and 278; it makes no mention of Section 1 of the Official Secrets Act. It is a lengthy act and it only in fact includes section 2 and section 8. Section 8 you will notice on page 278 specifically refers to the definition of ‘prohibited place’ and section 2 at the top specifically refers there that “if any person having in his possession or control any secret official codeword or password or any plan, model, articles, note, document, or information which relates to or is used in a prohibited place”, so the information on this page relates to prohibited place. Why that is there I know not. All I can speculate is that it might be thought that what or what is not a prohibited place is a concept that might not come readily to people working there, so it is drawn specifically to their attention. You are however not considering a charge that he has committed an offence by removing anything from a prohibited place.
It may well be, as it sets out in section 2, that that itself could be an offence. It is not the offence with which he is charged. He is charged in each of these counts with more serious offences, offences that in common parlance are called spying. They contain all the ingredients which I went through with you at the beginning of my summing-up, and so the fact that Section 1 is not in this form is as I say irrelevant to what you are considering. It happens not to be there for the reasons I suspect are the correct ones, but I cannot say because we have heard no evidence as to why that form is as it is. That is all I can tell you to help you about it.
We are going to have lunch now, so if you have any more questions you will not get an answer till five past two.
(The jury retired to continue their deliberations at 1.01)
MR JUSTICE BLOFELD: I am marking it 12.50 am, 16th November 1993 (the note).
************
(At 5.30 the jury retired to a hotel for the night)
Wednesday, 17th November 1993
(In the absence of the jury)
MR JUSTICE BLOFELD: Mr Nutting and Mr Tansey, the jury have now been deliberating since approximately midday yesterday and, I am minded to have them back in and, after the normal questions to be put to them by the Clerk of the Court, to see if they have reached verdicts on any of the counts, to give them the majority direction. I am conscious that there are only 11 of them and therefore my majority direction would be that at least a majority of ten would have to agree. I came in, in the absence of the jury, because the Clerk of the Court informed me that, although strictly speaking neither of you have the right I think to address me on this, it might be that either or both of you would like to. In those circumstances I am quite prepared for either or both of you to do so.
MR NUTTING: I have nothing to say.
MR TANSEY: I would suggest that it is too early to give a majority direction. I say that only for this reason, that today is the 39th actual day of the trial. There is a lot of material which they have to consider and presumably they are considering, and your Lordship may therefore say that it is too early, bearing in mind all they have to take into consideration. That would be my basic concern, that at this stage it is still too early, bearing in mind that it is almost an 8-week case now, and it is not easy in the sense of there being a lot of detail for them to take into consideration. My suggestion would be to suggest that one would not give a majority direction until tomorrow morning around 12 o’clock, that sort of time.
MR JUSTICE BLOFELD: No arrangements have at present been made for them to go to a hotel this evening.
MR TANSEY: That is what I submit to your Lordship on that matter.
MR JUSTICE BLOFELD: I have not considered that possibility yet. It may be that we will have to consider it, but I have a completely open mind about that.
MR TANSEY: The second matter relates to the taking of verdicts.
MR JUSTICE BLOFELD: How do you mean, the taking of the verdicts?
MR TANSEY: Whether you would be minded to take verdicts, if they reach verdicts on one or two counts now.
MR JUSTICE BLOFELD: The normal practice, if one gives a majority direction, is to ask if they have reached any verdicts on any of the counts on which they are all agreed.
MR TANSEY: I accept that, yes.
MR JUSTICE BLOFELD: I do not see how I can give a majority direction without that formality being gone through. I know not if they have or not -- no message has reached me. I have no information that I have not disclosed to either the Crown or yourself.
MR TANSEY: Of course I accept that; of course I do. It is purely that often, to avoid the problem of having inconsistent verdicts, rather than taking any verdicts at all, they only give their verdicts at the conclusion of their overall deliberations.
MR JUSTICE BLOFELD: I have actually removed my copy of Archbold to my own room. I suspect there is a copy in court. But I do not remember the section.
MR NUTTING: 4-448 appears to be the section.
MR JUSTICE BLOFELD: It may be, Mr Tansey, that both you and your junior have one (Copy handed). Yes, well, I cannot see anything directly upon it.
MR TANSEY: My Lord, I do not think there is any specific point. It is just that there have been cases in this building where in fact, when verdicts have been taken at this stage, there has in due course seemed to be an inconsistency, and frequently, in a number of cases I am sure -- hopefully Mr Nutting will confirm that -- to avoid that risk of inconsistency, one awaits ultimately for all the verdicts to be taken in due course, after a majority verdict(sic) is given.
MR JUSTICE BLOFELD: Thank you very much. Do you want to say anything about whether I should ask them if they have agreed upon their verdict, if I were to give them a majority direction?
MR NUTTING: I am not going to pit my experience against a combination of your Lordship’s and Mr Tansey’s. If you are minded to take the line he ----
MR JUSTICE BLOFELD: You have nothing to say?
MR NUTTING: I have nothing ----
MR JUSTICE BLOFELD: I am grateful. I take the view that enough time has elapsed. I do propose to give them a majority direction and propose to ask the Clerk of the Court to ask them whether they have agreed on any of the counts in the indictment. If the answer to that is yes, I am quite certain the Clerk of the Court will then take them through in the normal way and ask on which ones and deal with it in that way.
MR TANSEY: My Lord, yes.
MR JUSTICE BLOFELD: Mr Nutting, I have just been asking the Clerk of the Court -- he has kept the time log -- the jury have in fact been deliberating over ten hours.
(The jury returned into court at 3.16)
THE CLERK OF THE COURT: Would the foreman please stand. Members of the jury, have you reached verdicts on any count upon which you are all agreed?
THE FOREMAN OF THE JURY: We have.
THE CLERK OF THE COURT: I will go through. Have you reached a verdict on which you are all agreed on count 1?
THE FOREMAN OF THE JURY: No.
THE CLERK OF THE COURT: Have you reached a verdict on which you are all agreed on count 2?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF THE COURT: On count 2, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Have you reached a verdict upon which you are all agreed on count 3?
THE FOREMAN OF THE JURY: No.
THE CLERK OF THE COURT: Have you reached a verdict upon which you are all agreed on count 4?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF THE COURT: On count 4, obtaining material, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: You find the guilty on count 2 and 4 and are unable to agree at this stage on counts 1 and 3?
THE FOREMAN OF THE JURY: That is correct.
MR JUSTICE BLOFELD: Members of the jury, I asked you to come back for this reason. You have now been deliberating over your verdicts for a period in excess of ten hours. The time has therefore arrived when I can give you a majority direction.
The direction I give you if this, that from now onwards the Court is empowered to accept verdicts at your hands on which at least ten of you are agreed. If ten of you are agreed, either a verdict of guilty or a verdict of not guilty, then the Court is empowered to accept it. Having said that, I do not in any way wish to learn what your processes of thought are or how you are approaching this case; that is entirely a matter for yourselves.
What I simply wish to say to you is this: it is obviously preferable if you can reach verdicts on which all 11 of you are agreed; you and you alone know whether that is possible. If you consider it is still possible then it is the better course. I would therefore urge you to go on considering your verdicts and see if you can reach verdicts on the remaining two counts on which you are all agreed. If that proves impossible -- and again you and you alone will know the situation -- then and only then would it be appropriate for you to consider whether you can reach a verdict on which at least ten of you are agreed on either or both of counts 1 and 3. So that is all I have to say to you.
(The jury retired to continue their deliberations at 3.19)
MR JUSTICE BLOFELD: Mr Tansey, I simply say this: from the verdicts that have been received from the jury, it is perfectly clear that at some stage a sentencing process will have to be gone through. At the moment I am not in a position to say when that will be clearly, because we do not know how long the jury will be before they reach verdicts on the remaining two counts. Looking at the time today I think probably it is unlikely that I will deal with the sentencing process this afternoon. I cannot say because the jury may be out for a long time or a short time. I will therefore welcome through the usual channels -- I do not think it would be appropriate in open court because you would like to reflect on it -- when it would be appropriate to deal with the sentencing process. I say no more about it. Obviously it will be a time convenient to all parties and obviously it must be at a time when you and Mr Summers, are quite satisfied you have received full instructions on what mitigation you wish to put forward.
MR TANSEY: Yes, thank you.
***********
MR JUSTICE BLOFELD: Mr Nutting, I have received a note from the jury which has been handed down, and you and Mr Tansey and Mr Summers have had an opportunity of seeing it.
MR NUTTING: Yes, we have.
MR JUSTICE BLOFELD: It reads: “We were totally unaware that our foreman would be asked to deliver a verdict on two counts before a verdict had been reached on all four. While we have reached decisions on counts 2 and 4, we are concerned these verdicts could possibly be affected by the evidence that relates to counts 1 and 3, some of which is of a ‘general’ nature and therefore also relates indirectly to counts 2 and 4.” That is what it says. I confess that I find it a little difficult to follow precisely what they are saying in the last three lines (“some of which is of a ‘general’ nature”) but at the moment I am inclined to have them back and tell them they should go on and consider count 1 and count 3.
MR NUTTING: I have not, speaking for myself, had an opportunity of considering all the options that may be open to you in view of that note, and I would welcome an opportunity of doing so.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: The matter is dealt with generally from paragraph 4-450. That is headed “Premature verdict” but is not in point in the instant case. The significant paragraph would appear at a quick reading to be 4-455.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: And R. v. Andrews. I have to say for my part that it appears to me to be an entirely logical verdict.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: And the anxiety which the jury are still apparently expressing in regard to the other two counts, bearing in mind the limited period of time of count 1 and the limited material involved in count 3, appears to me, if I may say so with respect, to be unrealistic, to suppose that any material which falls for consideration under the evidence ----
MR JUSTICE BLOFELD: May I, before going into that, tell you that, having referred to R. v. Andrews, one possibility -- it seems to me I can do it -- there it says:
“... the court said that as a matter general principle, where the jury seeks to alter a verdict”
-- I am not saying that that is the case here but it is a possibility --
“pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made.”
I am inclined in the circumstances of this case to have the jury back in and say: would they please go on considering their verdict, in fact, and they will be taken when they are ready on all four verdicts.
MR NUTTING: My Lord, I do not think I can add to the submissions.
MR JUSTICE BLOFELD: It seems to me that would in fact then cope with the possibility that they are returning verdicts they did not intend, and it would be in the defendant's interests for them to consider that. What I was concerned about is as to whether or not it was an incomplete verdict. Would you like to reflect on that while I hear Mr Tansey on that.
MR TANSEY: My Lord, it concerns me for the reason that I put to your Lordship before.
MR JUSTICE BLOFELD: Yes, you did, but I took the decision I did. I am not going back over that. As it has turned out, your arguments are now fortified, although I took the normal course. But there it is, Mr Tansey.
MR TANSEY: My Lord, that is what concerns me. But what concerns me is what has happened, my Lord. May I have a few moments to reflect on the situation before I address you any further. I would prefer to have time before I do so.
MR JUSTICE BLOFELD: Yes, you may certainly have a few minutes. I am rather anxious that the jury get an answer to this before they go further down the road, so I do not want to spend a great deal of time on it. But you can certainly have -- if you feel you would like a few minutes.
MR TANSEY: Indeed yes, thank you.
(Short Adjournment)
MR TANSEY: I am grateful for the extra time. My Lord, I submit that your Lordship should ask the jury to consider each verdict outstanding and to reconsider their verdicts on counts 2 and 4.
MR JUSTICE BLOFELD: That is not exactly what I said but that comes to much the same thing as what I was proposing. I was proposing to tell them that we will take the verdicts again on counts 2 and 4 when they are ready.
MR TANSEY: My Lord, yes.
MR JUSTICE BLOFELD: It is not a question of considering counts 1 and 3. They are obviously going to consider that but, just in case there is the slightest chance they did not reach a unanimous verdict, I want to make it clear that, if they did not, then at the moment it remains at large. So I will tell them effectively what you want me to.
MR TANSEY: Yes.
MR JUSTICE BLOFELD: Anything to say, Mr Nutting?
MR NUTTING: No, my Lord. In the circumstances, if your Lordship is going to do that, would you give the majority verdict(sic) again against the background of the new basis.
MR JUSTICE BLOFELD: Yes, very well.
(The jury returned into court at 4.14)
MR JUSTICE BLOFELD: Members of the jury, within a few minutes or moments after you retired I understand that you asked your usher if she could explain something to you, and indicated you wanted to see the Clerk of the Court. The Clerk of the Court then came to see me and explained that something was concerning you and it might be difficult for you to write it down on paper.
You now have written something on paper which has come before me and it reads:
“We were totally unaware that our foreman would be asked to deliver a verdict on two counts before a verdict had been reached on all four. While we have reached unanimous decisions on counts 2 and 4, we are concerned that these verdicts could possibly be affected by the evidence relating to counts 1 and 3 some of which is of a ‘general’ nature and therefore also relates indirectly to counts 2 and 4.”
I do not want to know either who wrote that note or precisely what it means but I want to make this clear to you straight away that, on a reading of that note it might be an interpretation and I know not if it is that one or more of you have some reservations about the verdicts that have been returned on counts 2 and 4 by your foreman.
Consequently I have come to this conclusion: those verdicts will be revoked. Consequently you will be free to reconsider your verdicts on counts 2 and 4 as well as continuing your deliberations on counts 1 and 3, and you can return what verdicts you wish therefore on all four counts.
However, I make it clear to you and I therefore repeat what I said to you before that sufficient time has now elapsed that it is possible for me to accept majority verdicts at your hands on any of the four counts, providing at least ten of your number agree, whichever way that verdict is. I repeat that it is better in all the circumstances for unanimous verdicts to be returned on as many or indeed all the counts that it is possible to do.
I do not repeat every word I said to you a minute or two ago -- I am sure you took it in -- but those same remarks apply. Try to reach unanimous verdicts on all counts. If you cannot, I can accept verdicts on which at least ten of you are agreed in respect of any of the counts. I hope that clears up the difficulties you expressed. Would you like to go out and continue your deliberations, please.
(The jury retired to continue their deliberations at 4.17)
MR JUSTICE BLOFELD: Mr Nutting, last night I am informed the jury continued their deliberations of their own accord until 5.20. I propose therefore to allow them to continue considering their verdicts now until 5.15 tonight. If by then they have reached no verdicts, arrangements will be made for them to go to a hotel, and I will give them the same direction as I gave them yesterday evening.
MR NUTTING: Yes. The only observation that I would make on the scenario your Lordship painted is this. It may be that with a little extra time beyond 5.15 they might be able to come to verdicts on the whole of this case and therefore -- if I may be permitted to finish -- and therefore that your Lordship might think it appropriate to enquire before sending them to a hotel at that time whether with a little more time tonight they might be able to resolve the matter, without of course putting them under any sort of pressure at all.
MR JUSTICE BLOFELD: I assumed what you were going to say you did say. I would not be averse to that course of action personally. I will hear Mr Tansey.
MR TANSEY: I am not averse to that course either.
MR JUSTICE BLOFELD: What I think I will do then is, unless they come back between now and quarter past five, no further action will be taken, and I will explain the situation to them then and ask them what they would like to do and, if in fact they would like to continue a little longer, I think I will send them out for a little longer without putting a limit of time on it, and we will then reflect on what the limit will be. But I do not want at any stage for them to go out feeling, “Well I’ll give you say till six o’clock”, because I do not want them to feel they have a deadline to reach. So I shall not say any particular time and we will reconsider that at quarter past five if that eventually arises and both of you can address me then. In the meantime I will hand this note down. Obviously if either of you would like to have another look at it, you are more than welcome to do so.
***********
MR JUSTICE BLOFELD: Mr Nutting, it is now quarter past five. I propose to have the jury in and just ask the Clerk of the Court to ask one question which is: have you reached verdicts on all four counts on which at least ten of you are agreed? Assuming the answer to that is no, I will then deal with the matters we have talked about earlier. If the answer should happen to be yes, of course we will go onto take the verdicts.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: I imagine that meets with your approval.
MR TANSEY: Of course it does, yes.
(The jury returned into court at 5.18)
MR JUSTICE BLOFELD: Mr Foreman, would you listen carefully to the one question you are now going to be asked.
THE CLERK OF THE COURT: Have you reached verdicts on all four counts on which at least ten of you are agreed?
THE FOREMAN OF THE JURY: No.
MR JUSTICE BLOFELD: I have had you brought back into court because it is now nearly 5.20, and you have been deliberating since, I am told, quarter past ten this morning. Really the Court is entirely in your hands. You can go off and spend another night in a hotel should you wish to do so. You can continue to deliberate for a little longer, but clearly it would not be fair on you or indeed anybody in the case if you continued deliberating tonight for much longer because there comes a time when you get just weary and then you are not really thinking straight. So I do not mind at all which you would like to do.
You can turn round to talk among yourselves or, if you find it easier, you can go back to your room and discuss it for a moment or two and write a short note saying either “Come back tomorrow” or “We would like to go on”, whichever the situation is. Would that be easier?
THE FOREMAN OF THE JURY: We will go back to our room.
MR JUSTICE BLOFELD: Let me have a note. I will rise once you have left and we will come back once we have your note.
(The jury retired at 5.20)
MR NUTTING: My Lord, in view of what took place earlier on, I do not know whether your Lordship has applied your mind to the question of what can be reported of this afternoon’s proceedings but clearly some circumspection is required.
MR JUSTICE BLOFELD: Yes, I had not applied my mind to that. As no verdict has been taken that is a final verdict, no verdict can be reported. Once a final verdict has been reported any intermediate stage can be mentioned too by the press, because it took place in open court. The reason for that not being reported is primarily the fact that it would be unfair to the defendant because it is still open to the jury to change their minds. Secondly, although the jury are going to a hotel, it may be they will watch television tonight. If it is reported, because the case has received some publicity, it might be in one programme or another and that might in fact be a problem to the jury. So it is for those two reasons.
MEMBER OF THE PRESS: Could I ask for that to be repeated.
MR JUSTICE BLOFELD: You must not report.
MEMBER OF THE PRESS: Can we report what was said in open court?
MR JUSTICE BLOFELD: No, you cannot report that they returned verdicts on 2 and 4, then I received a note saying they wish to return ----
MEMBER OF THE PRESS: We must pretend ----
MR JUSTICE BLOFELD: No, you simply say the jury are still out considering their verdicts, because it is not a complete verdict and therefore, if it is not a complete verdict, it does not count in law as a verdict, so you cannot report it until such time as a complete verdict has been recorded. Once a complete verdict has been recorded, whichever way those verdicts are, then you are free to report this matter. Is that clear to all of you? I do not really want to get involved with too long a discussion. I will make it clear -- what was the timing of the purported verdict approximately?
THE CLERK OF THE COURT: They returned at 4.14.
MR JUSTICE BLOFELD: When did they go out again?
THE CLERK OF THE COURT: 4.17.
MR JUSTICE BLOFELD: When did they come back in about the question?
THE CLERK OF THE COURT: At 3.15 they came in and received majority direction. They returned at 4.14.
MR JUSTICE BLOFELD: (To the Press): You are not allowed to report anything that has passed between myself and the jury this afternoon save to say that they are still considering their verdicts.
MR NUTTING: May I hand to your Lordship a document which I have been given, which I understand has already gone out. It went out via the Press Association at 15.50 (Handed).
MR JUSTICE BLOFELD: Well, that is understandable because that is before they came back again, is it not? There is nothing I can do about that. It is not to be reported on further. I am grateful to you for telling me this. I will in fact tell the jury when I come -- I think it would be appropriate for me to warn the jury that it may be that something of their earlier remarks may be in the press but they are to pay no attention to it should they see it in the papers.
MR NUTTING: Yes, of course this only applies if the jury in fact go away to a hotel.
MR JUSTICE BLOFELD: Yes, I will not say anything about -- it is an unsatisfactory situation but it is the best we can do. You can certainly wait for the moment because, if the jury continue -- for all I know they may decide to continue and we may yet have verdicts, in which case your problem disappears. If that does not happen your problem remains.
********
MR JUSTICE BLOFELD: I need only say the jury have indicated they would like to go to a hotel again!
MR NUTTING: My Lord, while your Lordship has been out of court, certain members of the press have indicated to me that the account of what took place this afternoon has already been filed with newspapers like the Evening Standard which go out in the afternoons. Moreover I understand the report of the guilty verdict has already gone out over the news and the press are naturally anxious about the effect of your Lordship’s order as to future events which have already in fact been broadcast and therefore the damage to some extent has been done. My Lord, I have to say what was in my mind was not so much a ban on what had been reported but speculation on the rarity of this sort of thing, or anything which might put the jury under any sort of pressure in relation to the rest of their deliberations. That was why I rose when I did, bearing in mind the possibility of the jury going to a hotel and therefore having -- I know not whether the jury have access to any sort of newspapers, television, radio, or what the position is when they retire to a hotel. I have no idea what the position is but you could in relation to this jury presumably remedy that by assuring they do not watch television, listen to the radio or see papers tomorrow morning.
MR JUSTICE BLOFELD: That seems to me appropriate. I am bound to say when I was addressing my remarks to the press I was not aware this had gone out.
MR NUTTING: Nor I when I rose but what I was concerned about -- though of course I accepted it when your Lordship said it, namely prejudice to the defendant -- I have to say what I was concerned about was any potential pressure on the jury.
MR JUSTICE BLOFELD: Yes, well I think that, as it is already in the public eye, any order that I make now is bolting the stable door after the horses have gone. So I can see little point, now that I am told it is already in the public eye -- because once it is in the public eye there is nothing I can do about it.
MR NUTTING: No, but of course ----
MR JUSTICE BLOFELD: I think what I will do if I may is I would like to reflect just for the next five minutes or so. What I will do is get the jury back tell them to go to a hotel. I will certainly hear Mr Tansey before having them back but I am at the moment proposing to tell them that the purported verdicts they returned have of course been reported and comments may be made upon them. In those circumstances I am most anxious it should not interfere with their deliberations and therefore I am going to make an order they should neither watch television nor listen to the radio tonight, but as they are going to be driven to and from court there are bound to be posters -- for all I know there will be posters. All I can do is give them a warning. Is there anything more you would like me to do, Mr Tansey?
MR TANSEY: My Lord, I would suggest that your Lordship at this stage does not tell the jury about it having been reported. Maybe there may be nothing at all that they will see on any newspaper hoarding. Otherwise it could place them in the awful difficulty, that they may feel that puts great pressure on them to continue with the original verdict, otherwise they may feel they will look absolute idiots. If you were to say nothing -- in fact to do as my learned friend suggested: namely that they should not watch the television, hear the radio, read a newspaper -- it may inconvenience them considerably but in all the circumstances it may remedy the very problem your Lordship is concerned about. That would be my suggestion to your Lordship.
MR JUSTICE BLOFELD: The difficulty about that is I am not certain it meets the realities of the situation, Mr Tansey.
MR TANSEY: The only reality which the jury has at present is that they have been into court, given verdicts and have gone out to reconsider the position. That is a reality of which they are aware. Whether they would be aware that the matter has been reported is a different matter. If they become aware that it has been reported, and your Lordship was to put that to them, that might create a problem in their minds that they do not want. As I have already put to your Lordship, if it is not brought to their attention at this stage, that problem may not arise.
MR JUSTICE BLOFELD: I am quite prepared to put it to them, not as a fact but say it may be that they will hear that something that passed between them will be in the papers, and for that reason I am asking them not to. Otherwise they will wonder why I am asking them not to, because I made no order like that last time.
MR TANSEY: I appreciate the inconsistency.
MR JUSTICE BLOFELD: I will tone it down and say “maybe”, rather than anything else, because I do not know what has been reported; all I know is this has come from the Press Association.
MR TANSEY: Would you direct that the jury should not read any newspapers and/or hear the radio or television?
MR JUSTICE BLOFELD: Yes, I will.
MR NUTTING: Mr Lord, I know it will be understood and I mention this only finally for the avoidance of any doubt that, whether or not partial verdicts were originally returned this afternoon, the fact of the matter is that whole verdicts in the case have not been returned. The fact is that of course the two verdicts that were not returned at the time when the jury came back first time related to a very small period of time at the very beginning between October 1990 and January 1991, count 1, and related to five pages of documentation found in the boot of the car, count 3. But the fact that those limited issues apparently remained at the time when the press published the verdicts of guilty on the two main charges would not of course permit any licence for the printing of any background material of any kind whatsoever, so there can be no misunderstanding about that. I mention it because, whether or not verdicts were originally returned that have now been revoked, the fact of the matter is full verdicts in the case were not returned at that stage and have not, in accordance with your Lordship’s order, been returned now. So no background story ought to appear at all.
MR JUSTICE BLOFELD: Very well, I agree with that. Let us have the jury back.
MR NUTTING: Mr Kelsey-Fry has pointed out that some members of the jury might be very anxious to watch the England football match this evening! Titters in court maybe, but I mention this quite seriously. Your Lordship might think that supervised watching of that football match could take place.
MR JUSTICE BLOFELD: I can see no harm in that whatever.
MR TANSEY: I agree.
(The jury returned into court at 5.36)
MR JUSTICE BLOFELD: Thank you for your note, members of the jury. Of course you can retire to a hotel and we will carry on tomorrow morning with the same timetable, if it could be arranged to get you a little earlier. Let us hope you do not have a hold up tomorrow.
The only matter I would like to mention to you is this. We dealt with the way that the indictment was put to your foreman earlier this afternoon and his answers. Of course those answers were given in open court and, as there was then a necessary delay till you wrote your note and you were reconvened, I have reason to suspect that, as we were in open court, the members of the press may have reported on those verdicts, not being aware -- because they could not possibly be aware -- that there was any problem about that. That being so, it may be for all I know that inaccurate reports will appear either in the press or other portions of the media.
I am consequently, in order to make certain you do not trouble yourself with matters that now are matters of history but may be inaccurate, going to make the following order for you. It will be slightly more inconvenient for you. I will order that you do not in fact read any newspaper between the time you leave this court and coming back tomorrow morning, so that there is no question of your being influenced by any report about this. I am equally going to say you must not listen to any radio; that equally might have a report on it. Equally you must not in fact watch any television.
There is however a silver lining to that; it has been agreed by the parties that, providing your jury bailiffs can switch on and off at the right moment so there is no news content, if any of you want to watch the England football match this evening -- that will have nothing to do with this case -- although I dare say some of you may not for all I know be fans and do not want to watch, but maybe some want to watch, so there is no exception. There is no need for you to feel you have to watch it!!
Please do not pay any attention -- I am making this an order so it is not just a request, an order that you read no newspapers; you do not watch the television or listen to radio -- save for that match. It may be as you are driven to and from the court for all I know there may be a poster which may indicate apparently Mr Smith has been found guilty. I can of course rely on you, I am quite certain, to put that entirely out of your mind, because you only try this case on the evidence in this court. It is an unusual situation and I am sure you will loyally abide by my directions.
MR NUTTING: Would your Lordship remind the jury that they must not discuss the case outside their full number and therefore must not discuss it till they come back.
MR JUSTICE BLOFELD: The same rules apply as last night. You can go back to your room and discuss while you are altogether but, once you leave this court, do not discuss it again. You are off duty then till you come back tomorrow morning. So please do not discuss it then between yourselves. You will need to have no difficulty if messages have to be sent to your respective homes. The jury bailiffs are well able to cope with that, and you can be quite certain messages will be sent. If it is a question of somebody not being on the telephone, arrangements can be made for somebody to go round and tell them. So do not sit there worrying that your family and friends do not know what is happening to you. We will meet again tomorrow morning.
(The jury retired to a hotel at 5.42)
MR JUSTICE BLOFELD: So that it is abundantly clear, I make no order about what is reported save for drawing the Press’s attention to the matter you raised about the background matters.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: And I hand you back this document. (Handed) There is no point in my having it further. Very well; we will not sit again tomorrow before ten o’clock.
(The case was adjourned until the following day)
Thursday, 18th November 1993
(In the absence of the jury)
MR NUTTING: It is I who have asked that your Lordship come into court at this juncture. The jury have but recently returned to this court from their hotel and of course they have now been deliberating for something like 13 hours. It is moreover several days since they heard your Lordship’s directions in law and were reminded of the evidence. My Lord, in my submission, there is something to be said at this juncture for reminding the jury, by having them back into court, that they can be told of any factual matter that they may wish to have their memories refreshed about; that they can have repeated to them or amplified any direction in law, and that your Lordship can review the evidence for the prosecution and for the defence on any specific count in the indictment.
It is clear from the note yesterday that they are approaching this case by way of the three compartments, the compartments in time identified in counts 1, 2 and 4, and separating out the evidence on those three counts. Particularly count 1 is not an easy task for them to perform. We can of course assist your Lordship on the evidence in relation for example to count 1 or indeed count 3 or indeed any other count, if your Lordship wishes. My Lord, it is in the light of that, in my respectful submission to your Lordship, there is something to be said for having the jury back and at least reminding them of their right in the three connections that I have mentioned.
MR JUSTICE BLOFELD: Thank you. Do you want to say anything, Mr Tansey?
MR TANSEY: My Lord, I would not agree with my learned friend. There is no indication from this jury that they need any assistance yet on any matter. I would for that reason submit there is no need for your Lordship to adopt or even consider that approach at this stage.
MR JUSTICE BLOFELD: Thank you, yes. My Nutting, I do not propose to have them back for the moment. There are a number of reasons for this. It was clear to all of us after yesterday that, by the time they were discharged to go to their jury room, some of them at any rate were looking as though they had had a long day and were fairly exhausted. Having urged the jury bailiffs to ensure they were back here by 9.30, I understand that they had the misfortune to be behind not one but two serious accidents, and only arrived here about quarter past ten, after a journey which started shortly after eight, which is not the best start in the world.
I therefore think that it is sensible to leave them to their own devices for a period to see if they can resolve their own difficulties without asking them anything. There is bound to come a time some time today when the Court is going to want to know how they are getting on, and the time is then going to come when at the very least the Court is bound to ask if they are agreed on any of their verdicts. In the view of what has happened in the past, I would like counsel to reflect on whether when that time comes -- which is certainly not straight away and it may never come, but it is worth I think just thinking about it -- whether in fact they should not warned by me and then sent away to get their thoughts in order before that question is put, because none of us want a repetition of what took place yesterday afternoon.
MR NUTTING: No, certainly not.
MR JUSTICE BLOFELD: I am inclined at the moment to think it might be sensible, at some stage getting on towards lunchtime, to say I want to find out what is happening and warn them that they will be asked if they have reached verdicts on any of the counts on which at least ten of them agreed at a convenient time during the afternoon. But of course if by then they have reached verdicts on all four counts -- which I may or may not add -- that will not apply. I do not think I shall put that in because I do not want anyone to think I am trying to put any pressure on the jury. I am not.
I am reluctant always to ask juries the type of questions you are trying to urge me to ask, for a variety of reasons. This is not a simple case. If I say, “Can I help you on any factual issue?” and they confer among themselves and say, “We are not quite certain about the scientific evidence”, I do not at all want to find myself in the position of having to give them something like a two hour dissertation on the scientific evidence, which might in fact be not what they really want and, without a dialogue which I do not like, it might in fact be confusing and just prolong matters.
If this were a short and simple case with one clear issue, I can see the attraction of what you are urging. In this type of case, I am very hesitant about it for the reasons I have given. There is inevitably the temptation to try and precis the evidence. In precising the evidence, there is the risk either that both sides are not fully put or that, in my anxiety to make certain the defence case is properly put, in fact too much weight is given to the defence case at the expense of the prosecution case. Consequently, I do not want to get involved in the facts with them unless they specifically ask about them.
As far as the law is concerned, the law in this case in essence is remarkably straightforward and I do not therefore see, unless they are confused -- and they have given no indication about being confused by the law -- that I am going to help them by mere repetition of the law.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: What I have not ruled out of my mind at the moment is that, if and when the time comes that I say, “I think we are going to need to know how you are getting on”, I might at that stage simply say, “If there is any aspect of the case on which you feel I could help you, I would be more than prepared to do so. But I certainly will not do so unless you request me to do so in writing.” I do not think I would be prepared to go further than that.
MR NUTTING: I quite understand of course the way your Lordship is thinking. I have no means of knowing what is in the jury’s mind at the present time.
MR JUSTICE BLOFELD: None of us have.
MR NUTTING: Whether they have not remembered your Lordship’s directions in law in relation to the possibility of different verdicts on different counts, but what can be said, it seems to me, is that their approach to the case is more compartmentalised than the way in which the case was presented, either by the Solicitor General in his final address or by my learned friend in his final address, or indeed in your Lordship’s summing-up, and it was really because of that anxiety that I felt it appropriate to suggest to your Lordship that it may be refreshing the jury’s memory on the precise evidence -- it is not easy to find for example in relation to count 1 - and reminding them that they can have a rehearsal of that evidence if they like. But I see your Lordship is against me and so I say no more.
MR JUSTICE BLOFELD: I can see the attractions of what you are putting forward but I am against you because I feel, at this stage at any rate, I would prefer to leave things as they are, and I do not think it would help if I expanded on what I have already said. May I, while you are on your feet, say one other matter to get it on the shorthand note. Mrs Edith Ward, who is the senior jury bailiff and the supervisor, went with the jury last night to the hotel. I have seen her in my room since she returned to check all was well; all is well. I have specifically asked her in my room if she was satisfied that the jury did not see the television save to watch a portion of the football match -- but it was not all in fact shown on television. She has confirmed that that is all they saw on the television. She has confirmed that there was no opportunity for them to see television apart from that they have not had access either to radios or to newspapers. She is here to give that evidence on oath but it seems to me it is quite unnecessary for that course to be taken. She is present in court I believe.
MR NUTTING: Yes, she is. I respectfully endorse that.
MR JUSTICE BLOFELD: I asked her to be present in court when I said this so that everybody could know the situation.
MR NUTTING: Yes, thank you very much.
MR JUSTICE BLOFELD: I expect that is all I need say.
MR TANSEY: Indeed, thank you.
MR JUSTICE BLOFELD: I am only saying that because I would rather deal with it now so that everybody knows it. Very well, then we will adjourn for the time being.
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(The jury returned into court at 12.31)
THE CLERK OF THE COURT: I will deal with the times on 16th November. The jury retired to consider its verdict at 11.50. At 5.20 the jury stopped deliberating and went to a hotel. On 17th November the jury returned from the hotel at 10.10 and resumed deliberating at 10.15. At 3.15 the jury was given a majority direction on two counts and retired at 3.19. At 4.14 the jury returned and were given a majority direction on all counts, and retired at 4.17. The jury stopped deliberating at 5.36 and went to a hotel for a further night. On Thursday, 18th the jury returned from the hotel at 10.10 and resumed deliberations at 10.15. The jury returned to court at 12.31 to deliver their verdicts. They have therefore been deliberating for 14 hours 59 minutes.
Would the foreman please stand. Members of the jury, have you reached verdicts upon which at least ten of you have agreed?
THE FOREMAN OF THE JURY: We have.
THE CLERK OF THE COURT: To my next question only answer guilty or not guilty: on count 1, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that the verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: On count 2, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: On count 3, making a sketch or note, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Not guilty.
THE CLERK OF THE COURT: On count 4, obtaining or collecting material, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that the verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: You find the defendant guilty on counts 1, 2 and 4 unanimous, and not guilty on count 3?
THE FOREMAN OF THE JURY: That is correct.
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