REPORT FOR TUCKERS SOLICITORS
REGINA v SMITH
Comments on papers relating to the Michael Smith case
Professor Paul Rogers
University of Bradford
3rd April 1993
The following papers were viewed:
David Weatherley 7 November 1992
John Weatherley 24 August 1992
Dennis Barlow 20 August 1992
Gerald Swallow 10 August 1992
Gerald Swallow 11 August 1992
Steven Cundy 10 August 1992
Steven Cundy 11 August 1992
Steven Cundy 14 August 1992
Steven Cundy 24 August 1992
Steven Cundy 6 November 1992
Number 1 and Numbers 3 to 25, comprising pages 1 to 269.
2. I have not met or talked to Mr Jeffries of Tuckers, nor have I met or talked to any other member of staff of Tuckers. I have been given some indication of the nature of the case by Lee Chadwick of Dfax Associates, and have previously prepared a report for Tuckers indicating the extent of the public domain availability of material on the Rapier surface-to-air missile system. I have discussed the case with Dr Malcolm Dando.
3. The present exercise has involved an examination of the documents listed, especially the witness statements. The statements will be discussed in turn, a brief assessment of aspects of the exhibits will be made, and some general conclusions will be drawn. All underlining within quotations from the statements is added. The statement by Dr David Weatherley appears to be the most significant and is discussed in more detail than the other witness statements.
Statement of Dr David Weatherley
4. This statement was made about three months after most statements from staff at Hirst Research Centre (HRC) and refers to statements by MoD and service personnel which I have not seen. At a first reading, the statement seems to suggest that there is a considerable security risk element in the papers examined. Closer study of the text shows frequent use of qualifying words and phrases.
5. Thus, while the material on olfactory research is said to have applications to chemical and biological defence and in the detection of substances for internal security purposes, the main comment is “the statement of achievable sensitivity is of concern, since it provides an indication of the likely performance of future UK detection systems”. Note use of “an indication” and “likely”, rather than stronger terms.
6. This is still more marked in the section on Rugate Filters. It is agreed that the filter process is well known but it is claimed that the description of some aspects is significant “because they enable some performance characteristics of possible future UK defence systems to be deduced”. Thus incomplete characteristics of systems which do not even appear to be under development may be obtainable from this data.
7. The material on the quasi-optical car radar is accepted as not being of a sensitive nature yet the technique described is said to have potential military applications. It is not clear how it can have such applications yet not be sensitive.
8. The Micron Valve Project is said to be of defence relevance, but the phrase “defence relevance” is not defined as such. In commenting on this relevance, a whole range of limiting words or phrases is used such as “it offers a prospect”, “a means”, “might be”, “an indication” and “might be” once again.
9. The Micromachining Project material includes performance details which “are sufficient to indicate the UK state-of-the- art”, but this material, and that on the previous four projects, is later subject to the general caveat “In general the level of technical detail is relatively low...”. It is not clear how relatively low level technical detail can indicate the UK state-of-the-art, which, one would suggest, would require sophisticated and detailed analysis.
10. Dr Weatherley’s description of the Rapier missile material indicates that the benefits to a recipient of the material would be purely military and cites, as an example, that it would “allow a deduction of some Rapier operating parameters in order to aid the development of technical and operational countermeasures for use against a system which is operationally deployed”.
11. This seems a strong argument for suggesting a sensitivity for the relevant exhibits, though the Rapier system has been sold to a number of countries and one might have thought that there could be leakages of data outside Britain’s control. More relevant, though, is an earlier statement that the exhibit describes techniques “based on a technology which has now been rendered obsolete by technological advances.” There appears to be some contradiction here - the data is sensitive yet obsolete.
12. Concerning silicon on sapphire technology and gallium arsenide technology, both of these technologies are dual-use military and civil technologies. Dr Weatherley argues for a military relevance but again uses soft phrases and words such as “could”, “likely” and “an indication”.
13. Although surface acoustic wave (SAW) technology provides a large part of the exhibits, Dr Weatherley only devotes four lines to this, saying that SAW devices “are widely used in a variety of military systems”, and suggesting that details in the exhibits could be of potential use to an aggressor. This is a little misleading as the exhibits appear generally to be up to 10 years old. Furthermore, Dr Weatherley fails to mention that SAW has many non-military uses, including supermarket check-out scanners, cell phones and security-coded car ignition keys.
14. The strongest case offered by Dr Weatherley appears to concern the material on thermal imager technology. Only here does he appear to make a clear-cut case that the material is specifically sensitive in an area where the UK is at the forefront.
15. The specific comments made above (except for para. 14) all suggest a weak series of assessments of security risk and a general “treading carefully” approach. Furthermore, there is a tendency to use the term “internal security” in relation to some of the exhibits. But internal security includes many civilian activities (such as airport security where private companies undertake scanning, searching etc.). An exhibit relevant to internal security does not necessarily mean one with any military significance.
Statement of John Weatherley
16. Mr Weatherley refers to exhibits apparently 10 years old. They refer to civil as well as military applications. The use of the relevant technology “could only be useful to a competitor or foreign power as a minor element of a much larger data base” and he also states that “none of the documents ... are classified ...”. This would appear in line with Dr David Weatherley’s belief that the technology is obsolete, but not with Dr Weatherley’s seemingly contradictory belief that it is sensitive.
Statements of Dennis Barlow
17. Mr Barlow’s first statement makes clear Mr Smith’s lack of security clearance, his clearance to the confidential level meaning that he would not handle militarily secret material. Mr Barlow’s description of documents concentrates heavily on perceived commercial significance. He does point out potential military significance but pays more attention to commercial aspects.
18. Mr Barlow’s second statement again pays attention to commercial interests, especially issues of commercial confidentially. He refers, interestingly, to one exhibit where Mr Smith “could have seen these drawings at work” but “he should not have had them in his possession”. Since he separately informs us that Mr Smith did not have a military security classification, it is a little difficult to understand why these documents, which he could have had access to, could be considered sensitive. Mr Barlow’s statements generally refer to exhibits dating from the period 1982 to 1987, not later.
Statements of Gerald Swallow
19. Mr Swallow’s first statement refers to exhibits providing “quite extensive” data on delay line technology relevant to the Rapier surface-to-air missile system. His statement would certainly appear to indicate military sensitivity, though, as we have seen, Dr Weatherley’s statement implies obsolescence. Mr Swallow’s statement does provide some indirect support for this latter view. He describes some (but not all) of the documents as carrying a military classification of RESTRICTED, but this is a relatively low level of classification (below levels such as SECRET and TOP SECRET). Furthermore, he believes that the documents were removed from HRC “at some time within the last few years” - hardly a matter of the greatest immediacy.
20. Mr Swallow’s second statement describes the exhibit on Rugate filters as “rudimentary”, and he states that the notes on micromachining refer to commercially-orientated HRC projects. The exhibit on the micronvalve project “is sketchy but accurate as far as it goes”. Other exhibits refer to old and out-of-date documentation. Finally, the statement is far more concerned about issues of commercial confidentiality than military implications.
Statements of Steven Cundy
21. Mr Cundy’s first statement is short and is primarily concerned with the fact that exhibits contain company confidential information.
22. His second, much longer, statement relates to documents described by other witnesses. As Director of HRC his statement is of particular interest as it tends to question aspects of the technical competence of Mr Smith and to concentrate heavily on issues of commercial confidentiality.
23. The Rugate filter exhibit is described as “a good but not very technically detailed description”. The micromachining project “is largely a commercially confidential programme there being no immediate direct military significance”. The quasi-optical car radar is described as a commercial project.
24. While the micronvalve project is acknowledged to be a military project, Mr Cundy states that most of the information generated at HRC is not classified. He also describes this exhibit as being a “poor” and “rough” summary of the project.
25. He confirms the olfactory project as largely commercial, specifying that HRC has a commercial customer involved who seeks strict confidentiality. There are military implications “if and when this technology proves to be viable”, but it is currently a commercial matter.
26. Mr Cundy discusses the extensive documentation on the Rapier missile. Two aspects of interest emerge. One is confirmation that the exhibits arc fairly old - up to 8 years old. The second is that they are primarily “Company Confidential” documents with, in only some cases, a military classification, and then a low level classification.
27. Mr Cundy’s final document is dated 6 November 1992, two and one half months after the other documents. It refers primarily to document collection SR4, concerned with thermal imager technology. This is the area where Dr Weatherley of the Ministry of Defence is strongest in his belief of a security risk.
28. On a first reading, the 6 November statement of Mr Cundy, made one day before Dr Weatherley’s statement, does suggests a high level of risk in distribution of the thermal imager technology. A more detailed reading puts matters in a rather different perspective.
29. Many of the documents are referred to as having no military significance. A procurement specification for silicon-on-sapphire wafers concerns a number of suppliers, one of them Japanese, and appears to be a commercial matter. One device referred to is a Reed-Solomon encoder for satellite communications based on a silicon-on-sapphire process, but “In this instance, the customer was ESA”. “ESA” is the European Space Agency, a multinational civil agency.
30. Mr Cundy separately points to substantial amounts of public domain material among the exhibits, including company newsletters and publicity material.
31. In the specific area of thermal imaging technology, Mr Cundy makes the case that the specifications involved are very high, making the processes too expensive for civil use, though he does contradict himself a little in pointing out highly specialised civil applications such as the use of thermal sensors such as helicopter borne surveillance of electricity supply lines.
32. In one key part of the statement, Mr Cundy makes observations on a process flow chart for a form of thermal imaging technology - namely assemblies for IR (infra-red) detectors based on CMT (Cadmium Mercury Telluride) material. The chart originated in the Infra-red Development Laboratory, and Mr Cundy mentions that Mr Smith “was involved in Systems Audits and contract reviews in IRDL as part of his assigned tasks” even though he did not have a military security clearance (see para 17 above, concerning Mr Barlow’s statement).
33. Mr Cundy concludes his comment on CMT-based IR detectors: “Information shown to me is not classified but unquestionably of military significance and if that information was communicated to foreign powers it would be considered as damaging the U.K. military interest”. If this is the case, then it is rather difficult to see why the information is not classified.
34. Reference has been made to the exhibits already, but two points are worth some emphasis. The first concerns the lack of high military security classifications on any of those exhibits seen, and the second is the very dated nature of most of the documents, most dating from 1982-83. In a rapidly moving high-tech military environment, it is not easy to see how important such data is some 7 to 8 years after it was produced.
35. It is also worth noting that a number of the witnesses are somewhat uncomplimentary about the technical standards of some of the handwritten exhibits. While there are occasional surprises, there is a tendency to label them mainly of commercial interest and even then more in the nature of “tasters” than really sensitive commercial, let alone military, significance.
36. Throughout the witness statements there are frequent occasions when military sensitivity is ascribed to exhibits. At first sight, this appears to be a convincing stance, but closer examination suggests otherwise. The strongest suggestions of military sensitivity come in the statement of Dr Weatherley of the MoD, but many of these suggestions tend to be downgraded by the witness statements coming from HRC personnel, where there is a greater concern with issues of commercial sensitivity.
37. The most persistent claim for military significance lies with thermal imaging technology, but even here the statement from Mr Cundy suggests that the exhibits are not hugely secret, indeed they may not, for the most part, even be classified.
38. It is clear, on the other hand, that large numbers of documents are, or have been, commercially sensitive for HRC. This does lead one to the conclusion that they have been purloined as part of a process of commercial espionage. The original documents tend to be old, and the hand-written notes are more in the nature of indications of the nature of HRC work rather than detailed specifications. One witness uses the term “taster” and there appears to be a process of gathering information to sound out potential customers.
39. The information gathered appears to be a mixture of that which is genuinely commercially sensitive with some that is clearly past its “sell-by” date. This would suggest that the person concerned has attempted a “trawl” of possible subjects, casting the net wide in the process. This, in turn, suggests that he is not supplying a single customer, in the form of a highly-knowledgeable agency of a foreign power, which would be expected to be able to provide a precise “shopping list” of requirements. Instead, it would seem more likely that he is hoping to make sales to some kind of free-lance agent or go-between, perhaps capable of acting for other commercial interests, but without a clearly defined remit.
40. One note on a somewhat different point. If Dr Weatherley’s statement is correct, and many of the exhibits are of genuine military significance, then their loss would appear to be a serious breach of national security. This would imply considerable negligence in the form of a very bad lapse in security at the Hirst Research Centre. It would be interesting to know what kind of enquiry has been held into this lapse, whether it was within the company or involved the police, MoD or security services, and whether any disciplinary action has been taken against those held responsible for the security lapse. If there is no evidence of any kind of enquiry or disciplinary action, this would raise some interesting questions in relation to the current prosecution.
41. In conclusion, the material seen here appears at first sight to involve a breach of military security, but this depends very much on the views expressed by Dr Weatherley, and these are by no means fully supported by statements from HRC personnel. In their statements, a much clearer implication of commercial sensitivity comes over. Much of the material is a rag-bag of old documents and hand-written “tasters”. This hardly suggests the involvement of a high-level espionage operation, more a case of opportunistic commercially-orientated activities.