Operation Billiards - Mitrokhin or Oshchenko ?: 12/18/07

Having had my letters to the press stopped by the Prison Service, I considered this a basic denial of my human right to free speech, and I naturally appealed against the decision as far as I could take it, which eventually led to a report by the Prison Ombudsman Sir Peter Woodhead.

The interesting thing is that it was again the Ministry of Defence that came into this affair, and they compounded the injustice by claiming that the “restricted” document exhibit at my trial should have been marked “SECRET”. This is so unfair, when it is now known that the document concerned became obsolete in 1984, and that the later iterations of the specification used on the ALARM missile were only marked “unclassified”.

This is yet another example of how the MoD is quite prepared to lie and distort the truth. The MoD seems not to care that they have persuaded members of their staff to commit perjury in order to justify my conviction for espionage. I believe this is a blatant example of perverting the course of justice, but being the MoD I expect they will get away with their crime.

I print below the full text of the Prison Ombudsman’s report of my complaint.

Prisons Ombudsman

A REPORT BY THE PRISONS OMBUDSMAN SIR PETER WOODHEAD KCB
CASE NO: 10658/98 - MR M SMITH

1. Complaint

1.1 Mr Smith complained that he had been prevented from sending an article to the media concerning his crime and trial.

2. Background

2.1 Mr Smith submitted a request/complaint form to the Governor of Full Sutton, dated 12 January 1998, saying that a letter he had written to the New Scientist had been stopped by the censor because it infringed a Standing Order. He said he wished to challenge this ruling. The response from a governor, dated 22 January, said that the letter referred to Mr Smith's crime and trial and therefore, because it could be published, it was appropriate to withhold the letter under the Standing Order.

2.2 Not happy with this response Mr Smith appealed to Prison Service Headquarters on 1 February. He said that his letter was concerning his crime and was a serious comment on the process of justice. He stated that the prison had mis-interpreted the Standing Order. He said it was plain that the Standing Order allowed him to write such letters. The response Mr Smith received from the Directorate of Dispersals Unit, dated 19 May, said that Standing Order 5B imposed restrictions on the sending of correspondence of a certain nature, one of which was correspondence that would jeopardise national security. Another was where correspondence concerned an inmate's crime, although there was an exception where serious representations were being made against conviction. It concluded that the action taken by the Governor was appropriate given the nature of the letters.

2.3 On 26 January, following receipt of the Governor's answer to his complaint, Mr Smith had written to Mr Mullin MP about the matter. Mr Mullin responded saying that he would write to the Governor of Full Sutton. In response to a letter from Mr Mullin the Governor forwarded a copy of Standing Order 5B and said that he was satisfied the correct procedures had been followed in stopping Mr Smith's letters. Mr Mullin wrote to me on 24 April asking me to investigate Mr Smith's complaint.

3. Investigation

3.1 During the course of this investigation the relevant papers from Mr Smith's Prison Service Headquarters file were obtained. My investigating office also spoke to the member of staff at the Directorate of Dispersals Support Unit who dealt with Mr Smith's appeal and wrote to the Ministry of Defence. A copy of the Report of the Security Commission dated July 1995, mentioned in one of Mr Smith's letters, was also obtained.

3.2 Mr Smith submitted a request/complaint form to the Governor of Full Sutton, dated 12 January 1998, in which he said that his letter to the New Scientist had been stopped by the censor because it infringed Standing Order 5B. He said he challenged this decision because the relevant words in the order, contained in paragraph 34(9)(C) , said that general correspondence may not contain material which is intended for publication except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the process of justice or the penal system. Mr Smith added that his letter was not actually about his offence but his trial and that he wrote the letter in response to an on-going discussion in the magazine about the way lawyers misuse expert scientist testimony.

3.3 The governor's response to the complaint, dated 22 January, said:-

"The letter in question makes reference to your crime and your trial. The letter was also addressed to the editor of the New Scientist and could have been published. It is therefore appropriate that the letter was withheld under SO 5B."

3.4 Mr Smith appealed against this on 1 February saying that the reply he received from the governor was "a perverse interpretation of the Standing Order and therefore incorrect and unacceptable". He said that his letter complied with the order. The letter to the New Scientist was for publication, mentioned his crime and trial and was a serious comment about the process of justice. He said the letter clearly contributed to a serious debate about the abuse of expert testimony. He said it was plain that SO 5B para 34(9)(C) allowed him to write such letters.

3.5 Prison Service Headquarters wrote to the prison to ask why the Governor had taken the decision to stop the letter being sent and asked for a copy of it together with other letters that had been stopped. The response from the prison said that the contents of the letter looked at the issues of scientific evidence and clearly looked at the validity of this in Mr Smith's case. It was prevented from leaving the establishment because it was addressed to the editor of the New Scientist and had every possibility of being published. The headquarters caseworker said that Mr Smith could no doubt argue that he was raising genuine concerns about the justice system but it was clear that the letter was highlighting concerns about his own case. He said the identification of the witness by name i.e. Dr X is Dr.... may be a breach of national security. The response from the Directorate of Dispersals Support Unit, dated 19 May, said:-

"Thank you for your request/complaint. I am sorry for the delay in replying. This answer is on behalf of the Director of Dispersal prisons. Standing Order 5B imposes restrictions on the nature of correspondence which may be sent out by prisoners. One restriction is where that correspondence would jeopardise national security. Another is where correspondence is intended for publication (or likely to be published) and deals with the inmate's own crime. I appreciate there is an exception where the matter raised consists of serious representations about conviction, but in all the circumstances it is considered the actions taken by the governor in this instance was appropriate given the nature of the letters."

3.6 Prior to receiving this reply and following receipt of the response to his complaint from the prison Mr Smith wrote to Mr Mullin MP on 26 January. He said that he had been asked by a friend for a short article on his case for publication in the Tribune. He said that he had prepared brief details of his case, which included some important new information that clearly pointed to his case being a miscarriage of justice, but that the prison had stopped his letters because they infringed a Standing Order. Mr Smith included the article in his letter to Mr Mullin and asked that the MP help him to "expose the corrupt operation that led to my arrest and conviction". He also asked whether there had been any changes to the Standing Order that meant he could not write to the media protesting that there had been a miscarriage of justice in his case.

3.7 Mr Mullin replied to Mr Smith on 6 February to say that he was not in a position to investigate his case and suggested that he wrote to the Criminal Cases Review Commission. He said that he was surprised to hear that Mr Smith had been prevented from writing to journalists and said he would look into this. Mr Mullin wrote to the Governor of Full Sutton asking whether there had been any recent change to the Standing Orders. He said he was surprised that Mr Smith's letters had been stopped because he understood that prisoners, who alleged their innocence, were allowed to communicate in writing with the press and that because of this a number of celebrated miscarriages of justice had been resolved. The Governor responded on 13 February. He said that Mr Smith's letter had been addressed to 'Letters to the Editor' at the New Scientist and that it was reasonable to presume that he wanted the letter to be published. He said that Mr Smith had also written letters to two friends both of which contained references to his crime and in particular to the evidence given by one witness. The letter went on to say that the contents of Mr Smith's letter contravened Standing Order 5B paragraph 34.9(c) (which he quoted) and commented on the sensitive nature of Mr Smith's offence and the potential disquiet that might arise in the public domain if his correspondence should be published in national publications. Mr Mullin responded to this letter on 3 March saying that, without knowing the precise nature of the correspondence, it was difficult to make a judgement except to say that if Mr Smith was making "serious representations" about the safety of his conviction he should be allowed, according to the Standing Order, to send his letters whether or not they were intended for publication. He concluded by saying that he would be asking Mr Smith for a copy of the censored material in order that he could make an informed judgement.

3.8 Mr Mullin wrote to me on 24 April enclosing his exchange of correspondence with the Governor of Full Sutton, as well as a letter from another prisoner who had had his mail stopped, asking me to look into their complaints. I made some initial enquiries and responded to Mr Mullin on 14 May. I advised him that although Mr Smith had not received a reply to his appeal, because it had been with Prison Service Headquarters for over six weeks,I could accept his complaint for investigation. I was unable, however, to accept the complaint from the other prisoner because he had not appealed against the Governor's reply to his complaint and it was now out of time.

3.9 Mr Smith wrote to my investigating officer on 6 June. By this date he had received a reply to his appeal with which he was not satisfied. He said the Prison Service had not given him a proper explanation as to why his letters had been stopped. He said he strongly objected to the comment that his correspondence might "jeopardise national security". Mr Smith, who was charged with espionage, had said that part of his eight week trial was held 'in camera’. He said that his defence had objected to this because he had not dealt with sensitive material. The only classified documents Mr Smith said he had dealt with were at the lowest level of restricted. He said the two areas in which his trial was held ‘in camera' were concerning spy 'tradecraft' and scientific evidence. The first spy 'tradecraft' matter concerned the prosecution's evidence and the opinions of Oleg Gordievsky who claimed that the notes made by Mr Smith, of his meetings with the man who bribed him, were typical of KGB practice. However, the defence expert (a senior CIA officer) found no evidence to show that the notes were unique to the KGB. Also it was claimed that Mr Smith had met Victor Oschenko in the 1970s but the prosecution offered no evidence to support this. Mr Smith claimed that the Crown Prosecution Service was involved in a conspiracy to hide the fact that Victor Oschenko had been involved with MI6 long before his defection and they had lied about his relationship with Mr Smith. The second area where Mr Smith's trial was held 'in camera' concerned the scientific evidence. He said that a small amount of documents were found in his possession at the time of his arrest, most of which were dated 5 to 12 years before his arrest. He added that, of these, only one was found to be classified and this was at the lowest level. He added that the prosecution called a number of technical experts who said that most of the documentation was sensitive but that the defence expert was able to prove that the material was either available in the public domain or the material in the public domain was similar or more comprehensive. Mr Smith said in conclusion that the prosecution had failed to show that he had dealt with the Russian KGB or had in his possession, or passed on to a third party, any sensitive technical information.

3.10 My investigating officer spoke to the member of staff in the Directorate of Dispersal Support Unit to ask the basis on which they had decided that Mr Smith's letters "may be a breach of national security". The response was that this conclusion had been reached because Mr Smith had named names which may breach the Official Secrets Act. To obtain further information my investigating officer wrote to the Assistant Under Secretary at the Ministry of Defence, enclosing Mr Smith's letters, and asked whether the contents of the letters, if published, would breach the Official Secrets Act and/or jeopardise national security. The response said:-

"You enclosed copies of a number of letters which the Governor of Full Sutton Prison refused Mr Smith permission to send to his intended addressees. These letters have been examined by this Department and by the Security Service.

"The Ministry of Defence has examined Mr Smith's letters to see whether the disclosure of any of the information that he wishes to give about Defence equipments and weapons systems would be damaging to national security. Our consideration is that some of this information should be marked SECRET; and that the letters should therefore not be sent.

"The Security Service has examined Mr Smith's letters to see whether the disclosure of any information that he wishes to give about counter-intelligence operations or capabilities would be damaging to national security. Their conclusion is that they would not object to the disclosure of what he says about matters of this kind.

"I very much hope that the Ombudsman would feel able to uphold the decision of the Governor of Full Sutton Prison not to allow these letters to be sent. In that case I should be grateful if all the copies of them could be marked SECRET. I would also ask that Mr Smith should not be allowed to keep copies of them or to write any further letter containing the same material.

"In the postscript to the letter which he wished to send to the Editor of the New Scientist on 10 December 1997 Mr Smith says that he has been allowed to keep copies of all the sensitive exhibits. He should not have any protectively marked material in his possession. I am taking this point up separately.

"I should make it clear that I am not making any comments in this letter on whether the information contained in Mr Smith's letters is true or false. My comments are concerned only with whether its disclosure would be damaging to national security.

"I have one further point. You comment in your letter that Mr Smith's trial took place in camera. That implies that any disclosure now of information about what took place in the criminal proceedings would be likely to be in breach of orders which were made by the trial judge. Since Mr Smith's letters purport to describe allegations made and evidence given during the course of the trial, this is an aspect which you may wish to pursue separately.

"This letter is UNCLASSIFIED. If it would be helpful to the Ombudsman to have some further information requiring a protective marking, please let me know. Please also let me know if there is any further assistance that I can give you."

4. Consideration

4.1 Mr Smith has complained that the Prison Service refused to allow him to send an article to the media and letters to friends about his crime and trial because they contravene Standing Order 5B paragraph 34(9)(c).

4.2 Prison Service Standing Order 5B concerns correspondence and the particular paragraph quoted states general correspondence may not contain the following:-

34(9) "Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it:......................

(c) is about an inmate's own crime or past offence or those of others, except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the process of justice or the penal system."

4.3 Mr Smith has said that his article and letters were a serious comment about 'the corrupt practices of the British Judicial System' and the miscarriage of justice in his case. Such a letter, according to the Standing Order is permissible. However, in Mr Smith's case, because he was convicted under the Official Secrets Acts, there is the question of the contents of his letters and whether they may breach the Official Secrets Act and/or endanger national security. Section (4) of paragraph 34 of Standing Order 5B prohibits the sending of:-

(4) Material which may jeopardise national security."

4.4 The Governor of Full Sutton stopped Mr Smith's letter because he said that the contents contravened Standing Order 5B paragraph 34(9)(c) and the response from the Directorate of Dispersals Support Unit said that 'one restriction was where that correspondence would jeopardise national security'. It is apparent that the official in the Directorate of Dispersals Support Unit reached the conclusion that the correspondence should be stopped because Mr Smith had referred to certain individuals by name.

4.5 Having studied Mr Smith's letters and read the Report of the Security Commission I note that some details appear in both and, as the report is in the public domain, there could be no objection to those parts of his letters. This is in accord with the advice from the Ministry of Defence which said the Security Service had no objection to the disclosure of what Mr Smith had said about counter-intelligence operations or capabilities. However, the Ministry of Defence is concerned about information about defence equipment and weapons systems being disclosed which it considers would be damaging to national security. The MOD has advised that these aspects of Mr Smith's letters should be regarded as classified information and therefore should not be used in his representations to the press and friends about his conviction and sentence. On this matter of whether disclosure of the material would endanger national security I must accept the guidance of the MOD and I cannot uphold Mr Smith's complaint that it was wrong of the Prison Service to prevent him sending this material. It does however appear that the Prison Service may have prevented Mr Smith from sending the letters for the wrong reasons. Decisions to prevent a prisoner making such serious representations as Mr Smith appears to wish to make should not be taken lightly and ought to be able to be fully justified. I am therefore surprised that the Prison Service did not obtain advice from the relevant authorities to support its decision.

5. Recommendation

5.1 I do not uphold Mr Smith's complaint and make no recommendation.

PETER WOODHEAD
PRISONS OMBUDSMAN

18 August 1998