The most highly classified documents in the Regina versus Michael John Smith case were those marked with a “restricted” classification. The other documents were either unclassified, had markings that indicated they were commercial or company documents, or they simply had no markings on them at all.
There were contradictory messages from the judge and some witnesses as to whether it mattered if documents were classified or not. It was even claimed that unclassified documents could be very sensitive, and this was clearly a manoeuvre to steer the jury away from two important points: that only one classified document was involved, and; I did not have access to sensitive material at GEC.
During MI5 witness Mrs C’s testimony, for example, she stressed that almost any seemingly innocent piece of unclassified information could turn out to be the vital piece in a much larger jig saw puzzle. It is almost impossible to argue against such a sweeping generalisation, and it leads to the ridiculous situation that almost any source of information is liable to be covered by the Official Secrets Act. Therefore, be cautious if you are leaving a library with some technical book, because if you happen to bump into a Russian, then you could be accused of supplying that missing link to enable an enemy to undermine the UK’s defences!
The argument about whether information was classified, unclassified (but sensitive), or in the public domain, was never sufficiently resolved at my trial to enable the jury to know where the line should be drawn. It was obvious that the material in my case could be no more than borderline, rather than one of high sensitivity; otherwise it would have been unnecessary to spend so much time discussing how to decide where to draw the line. The jury could only have been confused by the arguments put before them about document classification and the public domain.
The judge, Justice Blofeld, did not help matters when he showed the way he was interpreting the evidence: ‘Consequently the jury would be entitled to draw the inference that, for a period prior to 8th August, the date of Mr Smith's arrest, Mr Smith had been in contact with Russians for the purpose of giving or intending to give them secret information that he thought was secret.’ This approach was nonsensical, going way over the top, as there could be no assumption I had given “Russians” either “secret information” or “information that [I] thought was secret”, since I knew I had lost my clearance to “secret” level back in 1978. Therefore, it would have been quite obvious to me, and everyone else at HRC, that I had not had access to “secret” material. My managers at Hirst Research Centre - Dennis Barlow and Trevor Elson - confirmed this point in their testimony from the witness box and in their witness statements.
After the presentation of a mass of conflicting technical evidence, and confusing arguments about what may or may not be covered by the Official Secrets Act, it became apparent that the Crown’s key argument revolved around that one Marconi “restricted” document, the document that Mr Andrew Mackinlay MP has asked a question about in the House of Commons. This was the only classified document in the whole of the exhibits that was focused on to indicate why the jury should find me “guilty”. The document was dated 8 January 1982 and marked as RESTRICTED, which is the lowest classification, and not even rated as “damaging” in the classification hierarchy. For those readers who do not know the meaning of the various terms used in classifying documents, then this is the explanation given at my trial:
TOP SECRET: Information and material the unauthorised disclosure of which would cause exceptionally grave damage to the nation.
SECRET: Information and material the unauthorised disclosure of which would cause serious injury to the nation.
CONFIDENTIAL: Information and material the unauthorised disclosure of which would be damaging to the interests of the nation.
RESTRICTED: Information and material the unauthorised disclosure of which would be undesirable in the interests of the nation.
UNCLASSIFIED: Non sensitive information.
Most of the documents were identified with a “privacy marking”, such as “commercial in confidence” or “company confidential”. This marking indicates documents for commercial non-military use, whose loss would not harm the nation. However, in my case the Crown appear not to understand the fact that these documents had previously been considered non-sensitive.
Although it was recognised that only one significant RESTRICTED document had been found, the learned judge said after my conviction, in respect of charge 4: ‘having regard to the whole of the evidence [I sentence] ... on the basis that the documents were in parts of considerable importance and of great sensitivity ... with substantial prejudice to this country’.
This estimation of the documents has grossly overrated their value.
It has often been said that a judge gets a bit of a buzz out of giving a judgement at the end of a trial, and that very likely he may end up with a penile erection when announcing the sentence. Undoubtedly, after a long trial, the judgement must come as a sort of high point - a bit like a sexual climax … and in those last minutes, as the courtroom drama reached its awful conclusion, Blofeld seemed to step up a gear as he ejaculated some quite venomous phrases at me. Such a demonstration of raw judicial power is enough to give anyone the horn.
It is at times like these that I recollect the comic genius of Peter Cook, who certainly had the caricature of a British judge perfected, and he had a way of peeling back the veneer in his portrayal of judges to reveal how ridiculous they really are. I must admit, as I sat in that courtroom of the Old Bailey, I had a different vision of Justice Blofeld, as I couldn’t get out of my mind that scene in Lindsay Anderson’s film “O Lucky Man!” where the judge indulges in a little sadomasochism in his private room, with the help of the court usher. Perhaps there’s a little too much of the public school upbringing in this old school of judges. Nevertheless, with a name like Blofeld, I can’t help thinking it would be more appropriate to imagine him stroking a white pussy, under his red robes, as he mercilessly administered justice.
The classification of documents is there for a reason, and it is up to the people who understand what those documents mean to decide on the appropriate classification. For the MoD, the Ministry of Deceit, to come along and claim that classification was not important, but what the witnesses said about the documents should be what the jury had to consider, is making nonsense of the whole classification system.
For example, a Defence Standard that was contemporaneous with the so-called ALARM “restricted” document can be found here. This also indicates that there are other markings that can appear on documents, but which do not necessarily indicate that they are sensitive in the military sense.
In this blog I am not saying “listen to me, I am right!” What I am saying is: there is a classification system laid down; there are rules to be applied; the people who stamp the official security markings on documents, with whatever classification, must know what they are doing; the people who approve, store, distribute and control classified documents are all responsible for ensuring the system is working. The MoD witnesses, through the judge, told the jury that the classification of the documents was not a criterion they should use when considering their verdicts.