25 October 2006

Application to the European Commission of Human Rights

Following the failure of my appeal on 8 June 1995, I had a period of 6 months in which to prepare an application for a complaint against the United Kingdom, that the way they had dealt with my case breached my human rights. I not only felt this instinctively, by the way evidence had been manipulated, and how I was denied the chance to have a proper hearing of my points, but also my barrister Gary Summers believed we had a good case to take before the European Commission of Human Rights.

Usually it is the applicant’s solicitor who takes such a case, and acts as the representative in any dealings with the ECHR. However, in this case my solicitor Gareth Peirce seemed to ignore all communications about the application, after initially agreeing to act for me, and I was warned by Gary Summers that if we did not dump Gareth Peirce then my case could fail by default. So, it became necessary for Gary Summers to act as my representative, and to this day I cannot understand why Gareth Peirce acted in such an odd fashion by abandoning her client, just as the case was starting.

I note that Gareth Peirce has prominently portrayed herself as a champion of human rights, and supported the cases of individuals who have been unfairly treated by the system. I just offer what she did in my case as an example of what she may do to others, and ask anyone thinking of hiring her to think about the consequences if she suddenly abandons the case, without even telling the client that that is what she has done.

I set out below the complete text of my application to the European Commission of Human Rights. The judgement of the ECHR can be viewed on the JAR2 website here or on the Cryptome website here.

Council of Europe, Strasbourg, France

Under Article 25 of the European Convention on Human Rights and Rules 43 and 44 of the Rules of Procedure of the Commission

IMPORTANT - This application is a formal legal document and may affect your rights and obligations.

A. THE APPLICANT. (Fill in the following details of the applicant and any representative)
1. Name of applicant Smith
2. First name(s) Michael John
3. Nationality British
4. Occupation Quality Assurance Engineer
5. Date and place of birth 22nd. September, 1948 - London, United Kingdom
6. Permanent address 48A Burton Rd., Kingston-upon-Thames, Surrey KT2 5TF, England
7. Tel. N°
8. At present at H.M.P. Full Sutton, Moor Lane, York, Y04 IPS
9. Name of representative Ms. Gareth Peirce
10. Occupation of representative Solicitor
11. Address of representative B. M. Birnberg & Co., 14 Inverness Street London NW1 7HJ
12. Tel. N° 0171 911 0166

B. THE HIGH CONTRACTING PARTY (Fill in the name of the country against which the application is directed)
13. The United Kingdom

(See Part 11 of the Explanatory Note)

On 18 November 1993, at the Central Criminal Court, London, England, before Mr. Justice Blofeld and a jury, the applicant was convicted of 3 counts of espionage under Section 1 of the Official Secrets Act 1911 (OSA) and was sentenced to a total of 25 years’ imprisonment.

The counts, verdicts and sentences on the indictment were as follows:
Count 1: Communicating material to another for a purpose prejudicial to the interests of the State, contrary to s.1 (1) (c) of the OSA 1911, between 1 January 1990 and 1 January 1991.
Verdict: Guilty.
Sentence: 8 years’ imprisonment.

Count 2: Communicating material to another for a purpose prejudicial to the interests of the State, contrary to s.1 (1) (c) of the OSA 1911, between 1 January 1991 and 1 May 1992.
Verdict: Guilty.
Sentence: 8 years’ imprisonment to run consecutively.

Count 3: Making a sketch or note for a purpose prejudicial to the interests of the State, contrary to s.1 (1) (b) of the OSA 1911, between 30 April 1992 and 8 August 1992.
Verdict: Not guilty.

Count 4: Obtaining or collecting material for a purpose prejudicial to the interests of the State, contrary to s.1 (1) (c) of the OSA 1911, between 30 April 1992 and 8 August 1992.
Verdict: Guilty.
Sentence: 9 years’ imprisonment to run consecutively.

Sections 1(1) (b) and (c) of the Official Secrets Act 1911 state as follows:

s.1 (1) “If any person for any purpose prejudicial to the safety or interests of the State-
(a) .....
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or
(c) obtains, collects, records, or publishes or communicates to any other person any secret official code word or pass word or any sketch, plan, model, article, or note, or other document or information which is calculated to be or is intended to be directly or indirectly useful to an enemy.
commits an offence”

1. In outline, the Crown’s case was that, while employed in the Quality Assurance Department (QA Dept.) at Hirst Research Centre (HRC) as Audit Manager, the Applicant was an agent of the Russian Intelligence Service (RIS), and that between September 1990 and his departure from HRC in July 1992 he communicated to his KGB controllers and their successors technical material and information from HRC relevant to the United Kingdom’s actual and potential defence capability, intending it to be useful to the Russians and acting for a purpose prejudicial to the interests of the State.

2. In addition to events occurring between 1990 and 1992, the Crown were permitted at the trial to call evidence of events that took place in the 1970s. This evidence, which was crucial to the case, was allowed in as evidence against him as a direct consequence of a telephone call made to the applicant by a member of the security services on 8 August 1992. In that call the member of the security services, Mr. B, pretended to be a Russian contact and elicited a self-incriminatory remark from the applicant. That telephone call forms the basis of this application. Mr. B telephoned the applicant’s home and the call was tape recorded. He spoke in an eastern European accent, introduced himself as George, and said, inter alia, “... I am a colleague of your old friend Victor, do you remember him?” The applicant replied, “Yes”. Mr. B then said that it was very urgent that he talked to the applicant and suggested that the applicant went to a telephone kiosk at the corner of Durlston Road and Cardinal Avenue, Kingston, where he would ring the applicant.

3. As a consequence of the evidence obtained from the telephone call, the Crown were allowed to put their case on the following basis, namely that:
(i) From 1972-1976 the applicant was a communist activist. At some stage in the early 1970s he was recruited in London as a Soviet agent by a KGB officer called Victor Oshchenko. Oshchenko was posted to the Russian Embassy in London and recruited agents with access to scientific and technological information.
(ii) After being recruited, and at the request of the KGB, he severed his links with the Communist Party.
(iii) In July 1976 he joined EMI (Feltham), England, as a test engineer and obtained security clearance to secret. He worked on a secret weapons project from then until 1978.
(iv) In August 1977 he travelled to Oporto in Portugal on a KGB training mission, utilising a map of Oporto with 4 crosses on it. The Crown called two witnesses (one from the British Security Services (BSS) and Oleg Gordievsky, a KGB defector), who both said that the map could be evidence of KGB instructions to an agent to follow a particular route. The Crown also called evidence of a Mr. E, who stated that he had met Victor Oschenko in London in 1977 and had started to receive payments from him, having expressed interest in Oschenko’s proposal of supplying information in return for money. In July 1979 he was sent to Lisbon in Portugal by either Oschenko or George, his successor, with instructions to deliver an envelope, which he duly did.
(v) In 1978 the applicant’s communist past came to the attention of the authorities and he was moved to a non-military branch of EMI (EMI Medical), and lost his security clearance.
(vi) In November 1979, after a discussion with the head of security at EMI, the applicant sought an interview with the Ministry of Defence (MOD) to discuss why he had lost his security clearance. In February 1980 he signed a security questionnaire denying his communist past. In June 1980 he was interviewed by a BSS person posing as an MOD official, and although he initially denied his communist past he went on to make full admissions concerning his background.

4. It is submitted that none of this information would have been permitted at the trial had the telephone call not taken place and the self-incriminatory remark been made. The remarking to knowing Victor became the hub of the wheel of the Prosecution case.

5. In September 1985 he was made redundant from EMI. In December 1985 he began to work for GEC at HRC. In July 1986 he was given clearance to confidential on a need-to-know basis and signed an Official Secrets Act 1911 declaration.

6. In respect of events in the 1990s, the Crown’s case was that the applicant received a letter from a KGB source which re-activated his relationship with the KGB, which had commenced in the 1970s. The letter mentioned that “A lot of water has passed under the bridge after our latest appointment. I am sure we should have a chat in the nearest future. I would be happy to meet you as previously at the recreation in October.” The letter was signed “Williams”. Mr. Gordievsky told the jury that this letter was of a type very familiar to him, and was a usual way of re-establishing communication with a contact who had been put on ice for some time. Mr. Avery, a Russian language specialist, told the jury that in his opinion the use of the words “nearest” and “recreation”, and the use of capital “R” and “N” mixed with lower case script, and the unadorned surname “Williams” were examples of linguistic interference, that is to say, the writer’s mother tongue was breaking through and influencing the writing of the “foreign” language. He felt that the writer’s first language was written in Cyrillic script and that the examples of linguistic interference were not inconsistent with the letter being written by a writer whose mother tongue was Russian.

7. From that date until July 1992, it was suggested by the Crown, the applicant had clandestine meetings with a Russian handler who gave him instructions about places to meet; the way meetings should take place; fall-back arrangements; and signs and signals to be used in case of danger or meeting cancellations. The applicant made notes of those meetings, it was said, including shopping lists of requirements. During these meetings the applicant handed over scientific and technical information and in return received sums totalling £20,000. A member of the BSS, Mrs. C, told the jury that the applicant’s notes contained Soviet tradecraft and bore all the hallmarks of KGB tradecraft. She said that only Soviet Russia and other hostile intelligence agencies would use this elaborate tradecraft, which was designed to avoid their detection by the BSS. Mr. Gordievsky said that although the individual elements of tradecraft in the notes were common to all intelligence services, the way in which they were combined had the KGB stamp on it. He had no doubt that the notes were dictated to a well disciplined agent working for the KGB.

8. In May 1992 the applicant was notified that he was to be made redundant with three months’ notice. His last day at work was 31 July 1992. He collected two files of documentation, each relating to a 1984 British Standard BS9450 Capability Approval Exercise conducted by his predecessor D. T. Lewis. The first file contained processing plans, specifications and other documentation concerning two surface acoustic wave filters (SAWs). One of the documents was restricted and referred to the use of a SAW “as part of an IF Receiver incorporated in an airborne guided weapon”. During the trial Dr. Meirion Lewis, after giving his evidence, was recalled to give evidence and he identified the weapon as a specific anti-radar missile. The second file contained detailed plans, specifications and blueprints for a Delay-Line made for incorporation into the Operators’ Confidence Facility of the Rapier missile system.

9. The significance of this processing information from a military point of view was that first, an enemy could learn the detail and rigour of quality control processes and checks used by a leading British electronics company; and second, knowing the frequency of the SAW device or the frequency of the Delay-Line would enable an enemy to devise counter-measures such as jamming.

10. On the day he left the applicant also took with him a bundle of documents concerning Silicon on Sapphire (SOS) wafers, documentation concerning Gallium Arsenide Monolithic Microwave Integrated Circuits (MMICS), a production flow chart for infra-red detectors to be used in thermal imaging equipment and a process identification document for SAW filters.

11. The documents concerning the SAWs, Delay-Lines, SOS and MMICS, together with the flow chart were placed in a blue holdall along with assorted components. Also in the holdall were some notes concerning leading-edge technologies which formed the subject of count three, the count on which the applicant was acquitted.

12. It was the Crown’s case that on Thursday 6 August 1992 the applicant drove to a place near Harrow with the intention of handing over the contents of the holdall to a Russian handler. The handler, however, had been frightened off due to the defection of a KGB officer to this country a few days earlier. That officer was Victor Oshchenko, the same Victor Oshchenko who, the Crown said, had recruited the applicant some 20 years earlier. The applicant therefore returned home with the bag to await further instructions.

13. On Saturday 8 August 1992 a member of the BSS, Mr. B, telephoned the applicant’s home. The call was tape recorded. The caller spoke in an eastern European accent, introduced himself as George, and said, inter alia, “... I am a colleague of your old friend Victor, do you remember him?” He received the answer, “Yes”. Mr. B then said that it was very urgent that he talked to the applicant and suggested that the applicant went to a telephone kiosk at the corner of Durlston Road and Cardinal Avenue, Kingston, where Mr. B would ring the applicant.

14. The applicant went to the telephone kiosk but was late arriving and missed the call that was made. He waited near the kiosk and eventually walked back home. During his walk to and from the telephone kiosk he had been under observation by Special Branch officers (the police department that deals with political security) and, as he walked towards his house, was arrested.

15. Over the next three days his home was searched by Special Branch officers and the following items were seized: £2,000 in £50 notes, most of which were serialised; the letter signed by “Williams”; the so-called “tradecraft documentation”; and the map of Oporto with crosses on it.

16. The applicant’s car was searched and in the boot was found the holdall containing the technical documentation and components.

17. The applicant was interviewed over 4 days and told many lies. His final position was:
(i) between spring 1990 and April 1992 he had been engaging in industrial espionage with an Englishman called Harry whom he believed was acting on behalf of a commercial competitor of GEC in this country. He was, therefore, not acting for a purpose prejudicial to the interests of the State.
(ii) the information supplied was low grade concerning SOS and MMICS and would not be useful to a potential enemy: it was just “money for old rope”;
(iii) the documents found in his holdall were there because he had cleared his desk in great haste. It was not intended that they be passed on to anyone. He had looked at the material and realised that it included a restricted document which he should not have had. He was going to dump or destroy the material. The components were essentially “junk”.

18. The Crown’s case presented to the jury concerning the applicant’s finances was summarised in an agreed document headed Unexplained Cash Income, and amounted to £20,588.70 from 17.10.90 to the date of his arrest.

19. The applicant gave evidence at his trial. He specifically denied:
(i) spying for the KGB;
(ii) knowing or having met Victor Oshchenko;
(iii) having been recruited as a KGB spy by Oshchenko in the early 1970s;
(iv) having any dealings with Russians whilst a member of the Communist Party;
(v) severing his links with the Communist Party at the behest of anyone (he asserted that he became disillusioned with the party’s dogmatism and that a trip to the USSR brought home to him that economically the system was a disaster);
(vi) that his trip to Oporto was pursuant to a KGB training mission (he asserted that it was an ordinary holiday with a friend and that the crosses on the map exhibited at trial were innocent markings, being bus-stops in the centre of the town for taking buses to and from the campsite at which he was staying).

20. He admitted:
(i) lying about his communist past on his positive vetting form (he explained he was concerned about being blacklisted if he told the truth);
(ii) lying extensively in interview.

21. He explained the Williams letter, the tradecraft notes and the £20,000 of unexplained cash income by saying:
(i) He had received a telephone call in February 1990 from an Englishman called Harry Williams who wanted to put a business proposition to him. They met to discuss it in the Preston Public House. A proposal of cash in return for information concerning the work at HRC was put to him. He declined the offer. A few days later Harry telephoned again and asked him whether he had reconsidered the offer he had made. The applicant said that he had. They met again and the proposition was fleshed out. Harry indicated that he had a client interested in the work of HRC whom he (the applicant) assumed was a commercial competitor of GEC. Harry was interested in processing documentation especially in relation to Gallium Arsenide and Silicon on Sapphire. The applicant indicated that he would not give Harry classified information. Harry replied that he was interested not in classified information but technical information. Harry offered a total of £10,000 which was rejected as insufficient.
(ii) They met again at the Roxeth recreation ground in March 1990. Whilst sitting in the applicant’s car, Harry taught him some signs, symbols and fall-back arrangements which were recorded on a piece of paper. “Latest” was to be a specific code-word. He told Harry that he wanted £20,000, and Harry said that he would contact him to let him know when the next meeting would be.
(iii) The next contact was the Williams letter, which he was shocked to receive. The letter contained the word “latest” which was the trigger. He went to the recreation ground on 4 October as the letter mentioned, and as it also contained the word “nearest” he knew he had to go on the nearest date in October, being the 4th. He took with him 30 - 40 documents dated 1986/87 concerning Gallium Arsenide processing, which were all obsolete. Harry gave him £5,000 for them.
(iv) From that time until April 1992 he met Harry on six further occasions at Horsenden Hill and Harrow-on-the-Hill. The relationship then came to an end because Harry became dissatisfied with the quality of the documentation being passed to him. The meeting in April 1992 was the last time that the applicant saw Harry. During the relationship the applicant had received a total of £20,000 in return for documents on Silicon and Gallium Arsenide. None of the documents which he gave to Harry was classified, and he did not think that the quality of the documents handed over would have been useful to an enemy,
(v) The so-called tradecraft notes contained a mixture of notes relating to his meetings with Harry and work-related notes.

22. He explained why he had taken away the various technical documents found by the police in his car by saying:
(i) He had left sorting out the documentation until the last moment and his last day was a busy one.
(ii) He had taken the process identification document and the infra-red flow-chart as useful examples for writing procedures and laying out flow-charts in future.
(iii) The SOS documentation was original and had been removed from the Quality Assurance Department’s reference library with a view to being passed on to Harry. He removed them from HRC on his last day so that his employers would not find out that he had taken them from the library.
(iv) The Gallium Arsenide documents were published documents and were taken away because they were of interest to him.
(v) The two capability exercise files containing SAW documents and Delay-Line documents were 10 years old and belonged to his predecessor D. T. Lewis. They were in his desk when he started work at HRC. He was going to throw them away but decided to take them home to see if there was anything which could be of use to him in the future.
(vi) The components were mostly rejects collected by the Quality Assurance Department, and were taken as a souvenir of HRC’s work.
(vii) He did not believe that any of the documentation found in his car would be useful to an enemy. He did not know that the Delay-Line was a component part of the Rapier missile system, nor could he know that one of the SAW filters was a component part of a specific missile.

23. The applicant denied that he drove to Harrow-on-the-Hill on 6 August 1992 with the intention of handing over documents to a Russian handler. He said that 6 August was a long-term annual fall-back arrangement with Harry. He had driven to Harrow-on-the-Hill on that day for three reasons: first, to purchase an American magazine called Keyboard from W.H. Smith in Harrow because it was not available at his local shop in Kingston; second, out of nostalgia because he had worked in the area and often spent his lunch hours at Harrow; and third, to see if Harry was at the Harrow-on-the-Hill meeting place, because he wanted to tell him about his plans to emigrate to New Zealand and that he therefore did not want Harry to try to contact him again.

24. With regard to the telephone call on 8 August 1992, the applicant said that he had not been listening too closely and heard only half of the conversation. The line at his end of the telephone was not as clear as the tape recording which was played back in court. He was making answers such as “Yes, yes”, and was not making a conscious admission to knowing an old friend called Victor. His wife could hear what he was saying. He followed the instructions given because he was suspicious and in the back of his mind he thought that the call had something to do with Harry.Later on the day of his arrest, the applicant told the police that he did in fact know a Victor, but this Victor was Spanish.

25. The defence called a former high-ranking CIA officer, Mr. P, with 31 years’ service and who had received the Distinguished Service Medal from the Head of the CIA. in 1986 for, inter alia, his “extraordinary trade-craft skills”. He told the jury that: the Williams letter was poorly done; the tradecraft in the tradecraft documents was not exclusive to the KGB and that any other intelligence service or indeed anyone engaging in clandestine arrangements could use it.

26. Mr. P went on to say that he had read all the exhibited documentation and seen the prosecution summary, and had seen nothing that showed the operation as specifically KGB. He gave the following 14 reasons:
(i) after problems in the 1950s and early 1960s with agents with communist backgrounds, the Russians would not use a former Communist Party member other than for “talent spotting”;
(ii) in a hostile climate such as London, sophisticated tradecraft is used, whereas the tradecraft revealed in this case was both basic and unsophisticated;
(iii) no spy cameras such as a Minox or roll-over camera were found in the applicant’s possession;
(iv) no hiding places or concealment devices were found;
(v) Russian agents are taught to destroy notes yet the applicant retained his;
(vi) the Williams letter was poorly done, was handwritten and lacked a “cover” in the script to make the letter look normal;
(vii) the leaving of a Coke can at the bollard of the junction between Abbotbury Road and Melbury road was too obvious (if Gordievsky had used this method the KGB would not have used it after his defection);
(viii) the use of a set time, in this case 12:45, set a pattern which should be avoided;
(ix) the controller would not suggest something to an agent as was done here, but would give the agent clear instructions;
(x) KGB technical requirements pre-1985 would be unlikely to be the same as 1992 requirements (Gordievsky had told the jury that when he was a KGB officer in London pre-1985 he had seen technical requirements similar to those used in this case during 1992);
(xi) the applicant was given no warning of his imminent arrest;
(xii) if the telephone call made on 8 August 1992 had been made by a Russian agent it would “scare the hell out of him”, making him destroy everything and flee;
(xiii) there were no escape plans;
(xiv) no intelligence service would pay over new money in serial batches because it could be traced.

In conclusion, Mr. P thought this was an amateur operation and in his opinion it was very unlikely that it was a KGB operation.

27. With reference to the Williams letter, the defence called Professor Johnson and Mrs. Marsh. Professor Johnson was Director of Language Studies at the London School of Economics. He thought that the writer of the letter most probably did not have the English language as his mother tongue. The only indicator of Russian usage he would agree with was the use of “nearest”. Unlike the prosecution expert Mr. Avery, he had no experience of Russians using capital “R”s and “N”s mixed with lower case script nor the use of the unadorned surname (see paragraph 6 above). Furthermore, he pointed out that “October” had been spelt with a capital “O”, whereas Russians spell it with a small “o”; also there was no evidence of a small Russian “d” being used, which is a common mistake made by Russians when writing in English.

Professor Johnson said it was extremely difficult to determine the nationality of the writer but, in his opinion, he did not think that the letter could be attributed to a Russian speaker.

28. Mrs. Marsh, a handwriting expert with many years of experience in handwriting, said that she had seen the use of the capital “R” and “N” mixed in with lower case script in many British writings, and said that anyone could have written the envelope and letter but she could not say who. There was nothing in the letter forms that she had not seen before in British writing.

29. Evidence on the various scientific subjects and concepts revealed in the material found in the boot of the car was provided by many witnesses. Dr. Weatherley was the Manager of Missile Techniques and Countermeasures at the Defence Research Agency (DRA) and on a subject by subject basis testified about the significance of the scientific evidence, its use to an enemy and whether disclosure to the enemy of that information would be prejudicial to national security. Groups of witnesses were then called for each scientific area. The last prosecution witness in this area was Dr. Cundy, the Director of HRC, who gave evidence on all the scientific categories. The defence called Dr. Maher to give evidence on all the scientific subjects.

30. The issues explored during the scientific evidence included:

(i) the conceptual framework of each area under discussion;
(ii) the extent, meaning and significance of the information given in the documentation found in the applicant’s car-boot;
(iii) whether the information given in the documentation had been published or otherwise released into the public domain (it was accepted that a line had to be drawn somewhere and that such information could not be said to be useful to an enemy);
(iv) whether the information in the documentation was useful to an enemy;
(v) whether the release of the information would prejudice national security.

31. It emerged during the trial that much of the material in the scientific exhibits - on which the prosecution relied in their case against the applicant - was already available from public sources. Nevertheless Dr. Maher, the only witness who gave scientific evidence for the defence, eventually conceded, under the prosecutor’s pressure, that the possibility of prejudice to national interests could have occurred in only 2 cases:
(a) through the information contained in one UNCLASSIFIED document describing a bulk acoustic wave delay line, a small electronic component used in the Rapier missile system. However, the prosecution, in their case, could not make an important issue of this document because - having been shown in the trial that the information contained in it was virtually identical to that published in a public domain document, namely “Janes Land Based Air Defence Review” - it was unsustainable; and,
(b) through the information provided in one RESTRICTED classified document describing a surface acoustic wave filter, a small electronic component used in another British weapons system. This was the only “classified” piece of evidence in the whole case the prosecution brought against the applicant, and it was introduced on trial on allegations that it contained information so sensitive that its unauthorised use constituted a transgression of the Official Secrets Act.

32. For what it is worth, it has to be pointed out that the RESTRICTED document was found at the home of the applicant the day after his arrest, that is to say on 9 August 1992. However, between that date and the opening of the trial, no indication whatsoever was given to the defence about its specific relevance or its implications for issues relating to national security.

33. One prosecution witness. Dr. Meirion Lewis, was the first person who raised the sensitive nature of the RESTRICTED document during his evidence from the witness box, given on 7th and 11th October 1993. Although he admitted expressly not to be an expert on missile technology, nor on jamming techniques, he was allowed to be examined by the prosecution on technical information of those specific areas.

34. As a result of Dr. Lewis’s evidence in the trial, on 7th October 1993 - during his examination by Crown counsel - he mentioned for the first time the link between the RESTRICTED document and the British weapons system in which it was allegedly used. The defence was taken completely by surprise and were forced to request time to consult with an available expert. Three days were granted.

35. In spite of the time granted, which in fact comprised virtually only a working day (7th October was a Thursday), it was not possible to obtain the service of an expert in this weapons system, due to the fact that any expert in the field was not willing to jeopardise links with the Ministry of Defence by providing information to the applicant’s defence on an open attributable basis. The defence had to rely on the input of a man who was prepared to assist the defence in commenting on the prosecution’s assertion but was not prepared to go formally onto paper nor was he prepared to sit in court to listen to the evidence. This was the only person who was able to assist in any material way on these assertions and it is submitted that the secrecy shrouds that surrounded the weapons system severely disabled the defence in dealing with the evidence of Dr. Lewis at the trial.

36. Dr. Lewis went back to the witness box on the morning of 11th October 1993 for his cross-examination by the defence in relation to his evidence of 7th October. Then, unexpectedly, Dr. Meirion Lewis produced a written statement, the first one ever submitted by a witness, which established for the first time a connection between the RESTRICTED document and a specific British weapons system. The defence had been surprised on the 7th October by the unexpected revelation of Dr. Lewis’s disclosure and, in spite of having been ready to cross-examine that prosecution witness about it, was not actually prepared to conduct a thorough questioning upon a specific topic that required precise and researched questions.

37. It is pertinent to point out that Dr. Lewis stated from the witness-box on 11th October 1993 that his evidence linking the classified document with a British weapons system relied on information he obtained in a telephone conversation with the Technical Director of Marconi Company that same morning. It is also relevant to bear in mind that the copy of the RESTRICTED document showed clearly the name and address of the Company to which it belonged, namely Marconi Company, in Stanmore; in spite of this relevant fact, no witnesses of that company were interviewed or called to support and explain its true nature and its actual implications for national security.

38. Hence the defence was left with no possibility to prepare adequately the applicant’s defence, even less to formulate the correct questions on a specific weapons system which required consultation with a specialist in that field. The defence’s lack of knowledge of the issues raised by Dr. Lewis was further aggravated by the permanent interference of a Ministry of Defence official present in the courtroom, who effectively stopped the full development of the defence case by claims that the most relevant questions to Dr. Lewis were encroaching “secret” information that could not be disclosed. This was an undoubted curtailment to the cross-examination as, apart from the defence having been given no time to prepare its case, it had been agreed to hold that part of the trial “in camera” to allow sensitive scientific evidence to be explored.

39. In such circumstances the applicant’s defence could not challenge Dr. Lewis’s evidence, as was confirmed in the trial judge’s summing-up, where it was stated: “we did not get right to the bottom of it” (see Judge’s Summing-Up, Volume I, page 114).

40. Following the conviction and sentence of the applicant, defence counsel prepared grounds of appeal in the hope that an effective challenge could be mounted against the technical inaccuracy of Dr. Lewis’s assertions that the RESTRICTED document contained information that could lead to the jamming of the British weapon. It was not possible to properly research this point as once more the defence were disabled by an inability to secure the services of any expert prepared to speak openly on this subject.

41. It must further be pointed out that in a report published after the applicant’s appeal was refused, the British Security Commission (on behalf of Mr. John Major, the British Prime Minister) affirms - in flagrant contravention of the European Convention on Human Rights and Fundamental Freedoms - that the applicant was guilty of other crimes in the 1970s, although he was never even charged or brought before a court of law for those alleged offences.


(1) The telephone call.
It is submitted that the applicant was tricked into incriminating himself, and that the incriminating material obtained thereby furnished a significant part of the evidence against him at his trial. Such incrimination was a breach of Article 6, paragraph 1 of the Convention of Human Rights 1950.

Use made of telephone call confession to knowing Victor

The admission formed the hub of the wheel without which the Crown would have had no evidence linking the applicant to Victor Oshchenko and all that flowed from that link. Without the admission all evidence and assertions about:
(a) the applicant’s communist activities in the 1970s;
(b) the applicant being recruited by Oshchenko in the early 1970s;
(c) working on a secret weapons project at EMI;
(d) his trip to Portugal and the evidence of Mr. E;
(e) his efforts to retrieve his security clearance;
would, on the Crown’s case, have been rendered irrelevant and inadmissible.

The Court of Appeal stated that they were not persuaded that the admission by the applicant that he knew Victor resulted from a question directed at establishing an essential ingredient of the offences with which the applicant was later charged (page 11 at C). Yet the essential ingredient was that the applicant was spying for the Russians rather than an industrial competitor. Thus, the question about remembering Victor was clearly directed at establishing an essential element of the offences later charged, namely that the applicant was communicating material to another for a purpose prejudicial to the safety or interests of the State. Without the question and admission there was no link to the Russians and no evidence that the purpose was prejudicial to the safety or interests of the State.

In the case of Funke 16 E.H.R.R. 297, the European Court on Human Rights appeared to find that the right to silence and the privilege against self-incrimination are an inherent part of the protection given to the accused under Article 6, paragraph 1. In the Court’s opinion, the privilege against self-incrimination is an important element in safe-guarding an accused from oppression and coercion during criminal proceedings.

The privilege against self-incrimination is also closely allied to the principle of presumption of innocence protected in Article 6, paragraph 2, of the Convention in that it reflects the expectation that the State bears the general burden of establishing the guilt of an accused in a process in which the accused is entitled not to be required to furnish any involuntary assistance by way of confession.

It is submitted that, after a crime was completed, and during an investigatory phase, when the police had sufficient evidence to arrest the applicant and intended to arrest the applicant, the police embarked upon a questioning-for-proof phase using an undercover pose and disguise, thereby circumventing the protection afforded to the applicant under the Police and Criminal Evidence Act 1984 Codes of Practice. Code C:10.1 states when a caution has to be given:

“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is answers to his previous questions that provide grounds for suspicion) are put to him for the purposes of obtaining evidence which may be given to the court in a prosecution.”

In this case the police had ample grounds to suspect that the applicant had been involved in an offence prior to the telephone call which elicited the admission about knowing Victor. The facts showed that on 25 July 1992 Viktor Oshchenko had defected to the United Kingdom. By 7 August 1992 Oshchenko had given the police significant and detailed information about the applicant during his debriefing by Special Branch, and on that day Special Branch had obtained 3 search warrants for the applicant’s home and two cars. Clearly on 7 August 1992 the police had grounds to suspect that the applicant had committed an offence under the Official Secrets Act 1911 and were going to arrest him and search his property. They therefore should have cautioned him before questioning him for the purpose of obtaining evidence which may, and indeed was, given to the court in the subsequent prosecution. The sole purpose of the telephone call was to obtain an admission from the applicant that he knew victor, so allowing the Crown to adduce all the evidence referred to above.

This undercover pose and disguise was used to trick the applicant into becoming his own betrayer, thereby breaching his right against self-incrimination. The admission in the telephone call to knowing Victor was the only piece of evidence in the case that the applicant knew somebody called Victor. For the Crown that admission formed the cornerstone of their case. As stated, it allowed them to adduce evidence relating to recruitment by Victor Oshchenko, the EMI connection, the trip to Portugal, and the allegation of recruitment in the seventies followed by re-activation in the nineties of the applicant as a KGB spy.

The obtaining of the applicant’s self-incriminatory statement by way of a trick and not in accordance with the provisions of the Police and Criminal Evidence Act 1984 and the Codes of Practice issued therewith was oppressive and substantially impaired the applicant’s ability to defend himself against the criminal charges he faced. He was, therefore, deprived of a fair hearing within the meaning of Article 6, paragraph 1, of the Convention.

(2) Scientific evidence.
1. Article 6(1) of the Convention has been contravened because:
(a) the information about the implications and relevance of the only RESTRICTED document on trial was not disclosed to the defence before the trial, leaving the applicant’s counsel at a manifest disadvantage in comparison with the prosecution, who - in addition to having the necessary time to prepare their case - were enabled to select thoroughly the questionnaire for the adequate examination of the witnesses, in particular of those experts giving evidence on sensitive scientific issues; and,
(b) the presence and interference in trial of a Ministry of Defence official, Dr. D. I. Weatherley, alleging that very relevant questions encroached on issues related to national security, curtailed the defence’s cross-examination of prosecution witness Dr. Meirion Lewis, preventing him from uncovering decisive information to prove the applicant’s case.

2. Article 6(2) of the Convention has been transgressed because the United Kingdom, through a report of its Security Commission, has used the applicant’s conviction (in the case brought before the European Commission on Human Rights) to affirm that he is guilty of other crimes that took place in the 1970s, in spite of there having been no legal or judicial proceedings against him (the applicant) for such offences.

3. Article 6(3)(b) of the Convention has been violated because the prosecution witness Dr. Meirion Lewis was permitted to present undisclosed evidence to the court during both of his appearances in the trial. This irregular procedure, wrongly permitted by the trial judge, overlooked the rules governing the submission of evidence by the prosecution, and did not allow the defence to refute adequately the sensitive scientific arguments adduced against the applicant, as it was essential to consult with experts in the area(s) concerned.

4. Article 6(3)(d) of the Convention has been infringed because:-
(a) the prosecution was allowed to use the evidence of Dr. Meirion Lewis - an expert on design and manufacture of surface acoustic wave filters - on technical issues related to missile technology and jamming, notwithstanding the fact that Dr. Lewis had admitted in court that he was not an expert to give the information the prosecution asked him for; and,
(b) the prosecution, through Dr. Lewis’s evidence at trial, established the link between the RESTRICTED document and a specific British weapons system without prior notice and relying on the testimony of that one person, who had no connection whatsoever with the company or project concerned and who - by his own admission - acknowledged he was not an expert in the relevant matters, rather than proving it with direct evidence submitted from the company concerned which was responsible for the handling of the classified document. It is submitted that this was classically hearsay evidence in its most objectionable form. Moreover, when the applicant’s Queen's Counsel tried to prove the defence contention and neutralise the evidence given, Dr. D. I. Weatherley (the Ministry of Defence observer present throughout the trial) intervened through prosecution counsel and objected to Dr. Lewis replying to relevant questions on the vital issues that the prosecution had examined the witness on.

(See Part IV of the Explanatory Note. If necessary, give the details mentioned below under points 16 to I8 on a separate sheet for each separate complaint)

16. Final decision (date, court or authority and nature of decision)

On 8 June 1995, the Court of Appeal rejected the applicant’s appeal against conviction (leave to appeal to the House of Lords was not capable of being granted); the appeal against sentence was allowed, the sentence of imprisonment being reduced from 25 to 20 years.

17. Other decisions (list in order, giving date, court or authority and nature of the decision for each one)

There have been no other decisions.

18. Is any other appeal or remedy available which you have not used? If so, explain why you have not used it.

There is no other appeal or remedy available.

(See Part V of the Explanatory Note)

(i) A decision by the European Court on Human Rights that the United Kingdom, through its judicial system, has acted contrary to the European Convention on Human Rights by depriving the applicant of a fair hearing within the meaning of Article 6 of the Convention.
(ii) Compensation under Article 50 of the European Convention on Human Rights.

(See Part VI of the Explanatory Note)

20. Have you submitted the above complaints to any other procedure of international investigation or settlement? If so, give full details.


(See Part VII of the Explanatory Note. Include copies of all decisions referred to in Parts IV and VI above. If you do not have copies, you should obtain them. If you cannot obtain them, explain why not)

1. The judgment of the Court of Appeal.
2. The grounds of appeal against conviction.
3. The trial judge’s summing-up.
4. The bundles used at trial.
5. Admissibility of evidence: arguments and rulings.
6. Evidence of Dr. Meirion Lewis.

(See Part VIII of the Explanatory Note)

22. I prefer to receive the Commission’s decision in:


(See Part IX of the Explanatory Note)

23. I hereby declare that, to the best of my knowledge and belief, the information I have given in my application is correct and that I will respect the confidentiality of the Commission’s proceedings.

24. It will be assumed that there is no objection to the identity of the applicant being disclosed unless it is stated here in unambiguous terms that the applicant does object.

Place: York, England
Date: 4th December, 1995

Michael John Smith
(Signature of the applicant or his representative)

In November 1996, I was informed by my barrister Gary Summers that he had found me a junior barrister who specialised in human rights cases. The barrister’s name was Eleanor Sharpston, and she had agreed to represent me pro bono before the European Commission of Human Rights. Below is the text of an additional submission she made on my behalf.

Application No. 30539/96

Michael John SMITH

Supplementary Memorandum in Support of the Application

1. The Applicant, Mr Michael John Smith, was convicted of three counts of espionage under s.1(1)(c) of the Official Secrets Act 1911 at the Central Criminal Court, London on 18 November 1993 and was sentenced to a total of 25 years’ imprisonment.

2. On 8 June 1995, the Court of Appeal rejected the Applicant’s appeal against conviction. Leave to appeal to the House of Lords was not capable of being granted. The Applicant’s appeal against sentence was allowed and his sentence was reduced from 25 years’ to 20 years’ imprisonment.

3. On 4 December 1995, the Applicant himself lodged with the Commission an application against the United Kingdom alleging that the manner in which his trial had been conducted violated his rights under the Convention. That Application sets out in detail the essence of the case for the Crown and for the defence; and also explains the essence of why the Applicant contends that:

(a) the manner in which the Applicant was tricked into his admission, during the telephone call of 8 August 1992, that he Knew “Victor” (which provided the essential element, hitherto missing from the prosecution case, enabling the prosecution to introduce evidence relating to the Applicant’s earlier activities [see para. 15(1) of the Application.]; and
(b) the presentation of the scientific evidence and the way in which that evidence was led at trial [see para. 15(2) of the Application.];

violated the Applicant's rights under Articles 6(1), 6(2) and 6(3) of the Convention.

4. This Supplementary memorandum accordingly concentrate exclusively upon the admissibly of the Application. Should the Commission, after examination, notify the Application to the United Kingdom Government for its observations, the Applicant will respectfully request the opportunity of submitting more detailed observations in reply.

Formal admissibility

(i) Time limit

5. The application to the Commission was made on 4 December 1995, that is within 6 months of the decision of the Court of Appeal rejecting the Applicant’s appeal against conviction (8 June 1995), as required by Article 26 of the Convention.

(ii) Exhaustion of domestic remedies

6. Following the rejection of the Applicant’s appeal against conviction by the Court of Appeal, all domestic remedies had been exhausted, as also required by Article 26 of the Convention.

7. Although express reference was not made to the Convention during the course of the domestic proceedings, the points now raised before the Commission are exactly those that were raised, unsuccessfully, before the trial judge and before the court of Appeal.

The application is not “manifestly ill founded”
8. The Convention provisions upon which the Applicant primarily relies are the following:

Article 6(1)
“1. In the determination of (…) any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (…)”.

Article 6(2)
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 6(3)
“3. Everyone charged with a criminal offence has the following minimum rights:
b. to have adequate time and facilities for the preparation of his defence;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his own behalf under the same conditions as witnesses against him.”

9. The Applicant was clearly “charged with a criminal offence” and was entitled, during the consideration of those charges, to the protection afforded by Article 6(1) and Article 6(3) of the Convention. The Commission has observed that the requirement of a “fair hearing” in Article 6(1) fully applies, a fortiori, to criminal proceedings as well [Appl. 1169/61 X. v. Federal Republic of Germany (Yearbook VI (1963), p.520 at 572; Appl. 7413/76 X. v. United Kingdom (D&R) 9 (1978), p.100 at 101.]; and that the content of the term “fair hearing” is therefore not confined, for criminal cases, to the provisions of Article 6(2) and Article 6(3) [See Report of 15 March 1961 in Nielsen (Yearbook IV) (1961), p.494 at 548-550); see also Appl. 8289/78 X. v. Austria (D&R 18 (1980), p.160 at 166-167).].

10. The Applicant recalls that the Court has held in the Delcourt judgment that:
“In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and the purpose of that provision.” [Series A, no. 11 at p.15, para. 25].

11. The Court has demonstrated that, of the underlying principles of “fairness” in Article 6(1), the, most important is that of “equality of arms”; and has not hesitated to find e violation of Article 6(1) of the Convention when that principle has been infringed [See, e.g. Dombo Beheer (Series A, No. 274, p.19 at para. 35), Borgers (Series A, No. 214-B, p.32 at para. 26).]. The Commission has set forth the broad definition of “equality of arms”,

“that is the procedural equality of the accused with the public prosecutor, [as] an inherent element of a ‘fair trial’.” [Ofner and Hopfinger (Appls. 524/59 and 617/59 (joined): Yearbook VI (1960), p.680 at 696.]

12. The Applicant invites the Commission to consider the general circumstances of the proceedings surrounding the introduction and testing of the scientific evidence [As set out in detail in para. 15(2) of the Application.]; and submits that a serious issue arises as to whether the general principle of fairness and/or the principle of equality of arms was respected.

13. In that connection, the Applicant also recalls that in the Jespers case (Jespers v- Belgium, D&R 27 (1982), p.61 at 87-88) the Commission defined “facilities” for the purposes of Article 6(3)(b) as including the opportunity for an accused to acquaint himself with the results of investigations carried out throughout the proceedings, whenever they occur and however they are defined. The Applicant submits that that right was violated by the way in which Dr Meirion Lewis was permitted to present undisclosed evidence at trial.

14. The Applicant likewise contends that the interventions (through prosecution counsel) of Dr. D.I. Weatherley, the Ministry of Defence observer at the trial, violated the right guaranteed to him by Article 6(3)(d) of the Convention: namely, that “as a rule, (...) an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the tine the witness makes his statement or at some later stage of the proceedings.” [Delta (Series A, No.191-A, p.16, para.36). Cf. also Bricmont (Series A, No. 15B), where the failure to afford the applicant the opportunity for a comprehensive confrontation with the witness upon whose accusations the criminal charges were based led the Court to find a violation of Article 6.]

15. In relation to the introduction in evidence of the telephone call of 8 August 1992, the Applicant recalls that, in Funke the Court held that,

“(…) the custom secured Mr Funke’s conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law (...) cannot justify such an infringement of the right of anyone ‘charged with a criminal offence’, within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute towards incriminating himself.” [Series A, No. 256-A, para. 43.]

16. In the present case, the Applicant contends that the defection of Victor Oshchenko and his subsequent debriefing had given the police sufficient grounds to suspect the Applicant. They had, indeed, obtained three search warrants on 7 August 1992 to enable them to search the Applicant’s home and two cars. In the circumstances, the use by the police of “questioning-for-proof” (i.e., the telephone call of 8 August 1992 designed to entrap the Applicant into an admission that he knew a person called Victor) was intended to, and did, circumvent the protection which he would otherwise have enjoyed under Code C:10.1 of the Police and Criminal Evidence Act 1984 Codes of Practice [Set out in full at para. 15(1), p.12, of the Application.]. If the Code had been respected, the Applicant would have been arrested and cautioned and could not, therefore, have been placed in a position where he could be entrapped into the admission made. The Applicant contends that such deliberate disregard for the procedural protection afforded by the English criminal law violated his right to a fair trial under Article 6(1), and/or his right to be presumed innocent until proved guilty according to law under Article 6(2) of the Convention.

17. Finally, the Applicant submits that the allegations made by the British Security Commission [See para. 14(41), p.10 and para. 15(2)(2), p.13, of the Application.] to the effect that the Applicant is guilty of other crimes against national security in the 1970s is a clear violation of the Applicant’s rights under Article 6(2) of the Convention. The Applicant has never even been charged, still less brought before a court of law and convicted, in respect of such alleged offences. [Cf. Allenet de Ribemont: (Series A, No. 308), in which the court found a violation of Article 6(2) where the Minister of the Interior and the police superintendent in charge of conducting the criminal inquiry into the applicant’s case declared him to be guilty at a press conference held shortly after his arrest and prior to the filing of charges against him.]

18. The Applicant recalls that the Commission has given the following guidance as to the proper interpretation of the right to innocence under Article 6(2):
“Article 6(2) of the Convention, laying down the principle of innocence, is certainly first of all a procedural guarantee applying in any kind of criminal procedure (...) However, the commission is of the opinion that its application is wider than this. It is a fundamental principle embodied in this Article which protects everyone against being treated by public officials as being guilty of an offence before this is established by a competent court. Article 6(2), therefore, may be violated by public officials if they declare that someone is responsible for criminal acts without a court having found so. This does not mean, of course, that the authorities may not inform the public about criminal investigations. They do not violate Article 6(2) if they state that a suspicion exists, that people have been arrested, that they have confessed etc. what is excluded, however, is a formal declaration that someone is guilty.” [Appl. 7986/77 (D&R 13 (1978) p.73 at 75-76).]

19. Quite apart from the possibility of an adverse effect upon the Applicant’s chances of being released on parole once he has served part of his sentence, the Applicant submits that the allegations made by the British Security Commission represent a formal declaration by public officials that the Applicant is guilty of a criminal act or acts, without the matter ever having been brought before a competent court. The Applicant respectfully invites the Commission to conclude that this breach of his Article 6(2) rights is clear and manifest.

Article 14
20. To the extent that it may be argued that the particular nature of the Applicant’s trial precluded application of the principles enshrined in Article 6 of the Convention to the extent claimed by the Applicant, the Applicant will also rely upon Article 14 of the Convention:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as (...) political or other opinion (...).”

21. In the “Belgian Linguistics case” (Series A, No. 6), the Court indicated that,
“While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 it relates solely to ‘rights and freedoms set forth in the Convention’, a measure which is itself in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature.
(...) It is as though [Article 14] formed an integral part of each of the Articles laying down rights and freedoms. No distinctions should be made in this respect according to the nature of these rights and freedoms and of their correlative obligations, and for instance as to whether the respect due to the right concerned implies positive action or mere abstention.” [Series A, No.6, pp.33-34, para.9.]

22. In that case, the Court also laid down a three-part analytical test for determining whether or not a violation of Article 14 has occurred, indicating that it is necessary to examine in turn whether:
(i) the facts found disclose a differential treatment;
(ii) the distinction does not have an aim, that is, it has no objective and reasonable justification having regard to the aims and effects of the measure under consideration; and
(iii) there is no reasonable proportionality between the means employed and the aim sought to be realised.

23. To the extent that, on the facts, evidence obtained by deception was admitted (the telephone call of 8 August 1992), thus leading to the introduction of much other evidence severely prejudicial to the Applicant, and/or scientific evidence based on a restricted document was led in a manner that hampered the Applicant’s defence, the Applicant submits that the facts do disclose differential treatment of his trial as compared with an ordinary criminal trial. If (which is not conceded) there was some objective or reasonable justification for such differential treatment, the Applicant submits that - having regard to the fundamental importance, in a democratic society, of the right to a fair trial guaranteed by Article 6 of the Convention - the differential treatment to which he was subjected was disproportionate to the aim sought to be realised.

24. Accordingly the Applicant respectfully invites the Commission to conclude that his application discloses a serious case to answer under the Convention. He accordingly requests the Commission to declare his application admissible and to retain it for an examination of the merits.

Submitted by:
Gary Summers Esq.
3 Gray’s Inn Square
Gray’s Inn
London WC1R 5AH

Eleanor Sharpston
4 Paper Buildings
London EC4Y 7EX

23 November 1996

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