I believed that there were plenty of points on which I could work with the IPCC and Guido Liguori on the satisfactory resolution of my complaint against the police. I therefore replied to Mr Liguori’s letter with the following response:
From: Michael John Smith
30 June 2008
To: Mr Guido Liguori
Senior Lawyer
Directorate of Legal Services
IPCC
90 High Holborn
London, WC1V 6BH
Your reference: 2008/007545
Dear Mr Liguori,
Thank you for your letter of 27 June
I believe that you are mistaken when you state that only 2 issues (Delay and Abuse of the complaints process) were developed in the correspondence between the MPS, the IPCC and myself, as itemised on page one of your letter. There are 3 issues that have been identified by the MPS and the IPCC:
a) Delay,
b) Abuse of the complaints process,
c) ‘That it is not reasonably practicable to investigate your complaint as no electronic records of the case exist.’
I was amazed to read that it is being seriously suggested that records from my case may not exist, or have been destroyed. I find it hard to believe that this really could be the situation, and in any case I myself can supply most documents used in the case.
Turning now to pages 2 and 3 of your response:
I think we should both agree that you have correctly identified paragraph 7 schedule 3 of the Police Reform Act 2002 and used section 3 (2) of the Police (complaints and misconduct) Regulations 2004 as guidelines to my claims.
The essence of my claim, as you know, is that the clock should start ticking from that point in time when I could first prove Police misconduct with the false evidence Dr Lewis had given both in his sworn police statement and on his oath in Court, and not from a time when I had only suspected that he had given false evidence. You will agree, no doubt, that suspecting something is wrong is not the same as being able to prove beyond a reasonable doubt that it was wrong - these are two very different concepts?
As you say, I suspected a long while ago that there was something wrong with Lewis’s evidence, but I had been misled by official replies (e.g. from the Ministry of Defence to Members of Parliament) that Lewis had not given false evidence. In any case, my suspicions about Lewis’s evidence were that it was technically flawed, not the shocking revelation that Exhibit pp.51-59 had been obsolete for more than 8 years at the time of my arrest.
You will be aware that my case was brought under the Official Secrets Act, and as a consequence of that Act no person(s) who could prove Lewis was lying about his claim that the ALARM missile was involved were available in the normal way, for example via a court summons. Indeed, my Defence lawyers were prevented from talking with potential witnesses and experts due to national security restrictions, because these people had either signed the OSA, or were in some way obligated to the Ministry of Defence for their employment.
It was not until August 2007 that my team were able to locate one of the original recipients of the supposedly secret document, and not until 11 October 2007 that we could confirm pp.51-59 had nothing whatsoever to do with the ALARM missile used by our Armed Forces.
My work colleague’s statement revealed for the first time that pp.51-59 became obsolete on or before 27 March 1984, and that components used in pre-production test models for missiles were manufactured to another specification, which was unclassified and identified as document ref. 1011-00435 Issue 1. There is no mention of this important evidence anywhere in the Police investigation, and that fact is surprising because my colleague states that he was called to a meeting with the Director of Hirst Research Centre, Dr Steven Cundy, probably on Monday 10 August 1992. Although the matter of pp.51-59 was discussed, and Dr Cundy gave numerous statements to the Police about my case, there was no record anywhere within those statements that the document was obsolete.
You have referred to my telephone conversation in January 2007 with an ex-Marconi Technical Director, Dr Reginald Humphryes, but you have incorrectly assumed that this conversation was linked to my complaint. At that time I already knew that Dr Humphryes had never been responsible for the ALARM missile or pp.51-59, because the CCRC had identified in 2005 that Humphryes (called “an expert” in the judge’s summing up) was not an expert in this field [CCRC Provisional Statement of Reasons, July 2006]. I did not ask Dr Humphryes about the document’s status, but I did ask him why Lewis had contacted him to confirm the document’s use on the ALARM missile. Dr Humphryes told me that he and Lewis had known each other since university days, and it was simply a personal friendship that Lewis was exploiting.
Therefore, clearly it was only in October 2007 that my suspicions about Lewis’s dishonesty were finally converted into proof, and I was able to show that the Police had not even tried to test Lewis’s claims that pp.51-59 was used in the ALARM missile. If I may draw your attention to the ratio in Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231, and British Oxygen v Minister of Technology [1971] AC 610:
• An authority will be acting unreasonably where it refuses to hear applications or takes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority was given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.
There are of course other authorities I can cite, but I feel you will agree with me that I did not delay in contacting the MPS or the IPCC when I finally knew the truth, and could prove that Lewis had lied in his Police statements and on his oath, and that the date on which I could prove that truth was 11 October 2007.
Turning now to page 4:
With respect to your first paragraph beginning: ‘I now need to consider the second ground upon which the dispensation was granted. …’ You imply that dispensation was granted by Mr Stacey, I think you may mean it was NOT granted, and from the comments in your letter I understand you to be critical of the grounds on which Mr Stacey was attempting to dispense with my complaint.
I think it is right that we ignore any suggestion that I am being vexatious, or that I am trying to impose my views upon the IPCC. I am after all only seeking the truth, and that truth has to be supported by the facts, and be capable of standing up to independent examination.
Let us agree therefore that 3 (2) (d) should be applied to the issues in your ground b), and limited to whether I am trying to abuse the Police complaints process.
My complaint, as you know, is that Police officers supplied false evidence to gain improper convictions, regarding Russians, spy training and secrets. However, in your letter you seem to be suggesting that I should not use the Police complaints system to investigate Police misconduct. Rather, you suggest, that I am abusing the Police complaints system because I made a complaint about the Police.
Your suggestion that the CCRC are the correct investigating body to investigate my claim, that Police supplied false evidence regarding secrets, Russians and spy training, and/or that my Defence Team erred, is I think inappropriate when I am complaining that it was the Police who have done something wrong. I think we must agree that a complaint against Police is just that, a complaint against Police.
This is not a complaint against my Defence Team, or the CCRC, or anyone else and under those circumstances it cannot be considered an abuse of process. The ratio in Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231; and British Oxygen v Minister of Technology [1971] AC 610 can once again be taken as your guide to avoid further attempts to fetter my complaint against Police:
• An authority will be acting unreasonably where it refuses to hear applications or takes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority was given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.
Turning to those general points made in your letter, concerning other bodies, I merely state the point again that I am making a complaint about the Police and NOT about anyone else. I have referred to the Prosecution, and to what happened during my trial, because this demonstrates quite plainly how flaws in the Police investigation led to false evidence being presented at my trial, and this has profound repercussions on my prosecution. What any other body did or did not do should be quite irrelevant to your considerations, as it is only the actions of the Police that we should be concerned with.
However, I do welcome your conclusion that Mr Stacey may have misapplied the law with regard to his reading of the IPCC guidance 5.8.2, which when contrasted against the ratio in Lavender v Ministry of Housing and local government does make it clear that 3 (2) (a) was not properly applied. Consequently, I hope that we can continue to develop further issues of Police perversion involving the creation of a spurious Russian (unknown to me) and spy training that never happened, without the need for me to press on with a judicial determination.
At least we do now have one point of common understanding to move forward on. However, rather than for me to formulate another complaint, I think it only fair that you let Mr Stacey know the outcome of your review to date, and under which ground you have found his rejection should be revisited. Of course, I realise you may now wish to make suitable adjustments to expand your recommendations that Mr Stacey include all 5 ratios listed in the case law references in my submission to you, and apply them to my other concerns that Police fabricated my supposed spy training and my supposed collaboration with a Russian:
I list for your guidance the considerations I would expect you to apply to my concerns that:
1. Police fabricated evidence of my supposed spy training (e.g. in Oporto).
2. Police fabricated evidence of my involvement with the Russian Viktor Oshchenko.
3. Police fabricated evidence that I had possession of a document used on ALARM.
(i) Error of fact - that my complaint is not outside the time limits. Compare with the ratio in R v Secretary of State Ex Parte Khawaja [1984] AC 74, and R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484.
(ii) Ignored relevant considerations - that the matters in this complaint could not have been dealt with at trial, but they are the proper responsibility of the IPCC. Compare with the ratio in R v ILEA Ex parte Westminster City Council [1948] 1 KB 223, and Padfield -v- Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] UKHL 1.
(iii) Irrationality - that the matters in this complaint could not have been dealt with at trial, but they are the proper responsibility of the IPCC. Compare with the ratio in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.
(iv) Fetter - that the IPCC has not properly applied its discretion when considering the application for dispensation. Compare with the ratio in Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231, and British Oxygen v Minister of Technology [1971] AC 610.
(v) Natural justice - that the matters in this complaint could not have been dealt with at trial, but they are the proper responsibility of the IPCC. Compare with the ration in McInnes v Onslow-Fane [1978] 1 WLR 1520.
Perhaps, by stating the ratios to Mr Stacey in all the cases I have listed in my pre-action letter, you may formulate a view that the Police have performed acts which are immoral and contrary to Natural Justice, and have also wilfully caused statements to be tendered in judicial proceedings which they knew or ought reasonably to have known were untrue.
I trust we can work together, and you will now send my complaint back to Mr Stacey with your recommendation that he revisit the material, under your guidance. The issues are that the Police have perverted the course of justice with respect to Mr Lewis’s evidence and any Russian involvement, and I hope you and I will explore the issues I have listed using the ratios I have given, without the need for me to ask a Judge to mandate you to review. I have covered the most urgent points from your letter, but I shall deal with the few remaining issues as and when it becomes necessary for us to discuss particular details.
Yours sincerely,
Michael John Smith
I sent this letter by e-mail to Mr Liguori, but I was surprised when only 67 minutes later he replied in a very unhelpful manner. His reply indicates that he wishes a judge to settle these matters, although he has already admitted that the IPCC are wrong on several of the issues involved with my complaint. It seems that dialogue fails when one party is unwilling to talk to the other, while a little talking may well resolve issues more efficiently as this is a perfectly straightforward complaint. This is Mr Liguori’s response:
Date: Mon, 30 Jun 2008 17:20:51 +0100
From: Guido Liguori, guido.liguori@ipcc.gsi.gov.uk
To: Michael John Smith
Subject: RE: Complaint, your reference 2008-007545
Dear Mr. Smith, the letter that I have sent to you is our response to your pre-action letter. I have nothing further to add.
Regards
Guido Liguori
Senior Lawyer
Legal Services Directorate
Independent Police Complaints Commission
Tel : 0207 166 3949
Fax : 0207 166 3649
guido.liguori@ipcc.gsi.gov.uk
-----Original Message-----
From: Michael John Smith
Sent: 30 June 2008 16:14
To: Guido Liguori; enquiries
Subject: Complaint, your reference 2008-007545
Dear Mr Liguori,
Please find attached my response to your letter dated 27 June 2008.
Kind regards,
Michael John Smith
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