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)