Daniel James - the sacrificial lamb

After several false starts, the Daniel James trial finally started on Monday 13 October, at 10:30 in Court 9 of the Old Bailey.

When I met Daniel James at Wandsworth prison, in June 2007, I explained to him the way that an Official Secrets Act case would be dealt with, and how he would be made to appear a suspicious type of person, so that the jury would have no sympathy with him. These are standard techniques used in the British Courts, and there is nothing particularly special about the way this works, but for Daniel it was important for him to be aware of what he was facing.

Well, the worst nightmares become real, and the past couple of weeks have revealed how true my predications have become. I wonder how much of what has happened is the result of the ambitions of MI5, who will be pulling the strings behind closed doors.

Intimidation from Day One
Right at the beginning of the case, when DJ was being interviewed by the Police, the unfairness was already apparent, it was not so much a presumption of innocence but more a presumption of guilt:

Interviewing Police Officer: “Now, these are extremely serious charges Danny, which carry 20, 30 years sentences. Are you willing to accept that?”

DJ’s Solicitor: “Accept what exactly? I’m a little bit disturbed by that line of questioning. You seem to be looking forward into the future where you are imagining what might be going through a Jury’s mind and putting that to him.”

Interviewing Police Officer: “Danny”

DJ’s Solicitor: “And you are talking about potential sentences. Let me make this point please. You are talking about potential sentences in an interview. Now why are you doing that?”

The character assassination of DJ
We have heard that DJ was a “Walter Mitty” character and a fantasist, an oddball, somebody who behaved in bizarre ways, dressed unconventionally, and who was often late for meetings or had gone missing when needed. These appear to be serious accusations that DJ was an unreliable and difficult character to work with, and it is hard to imagine that the Army would have tolerated such behaviour for more than a few days. Why was DJ not reprimanded or sent home to the UK as unsuitable for the conditions in Afghanistan?

It is surprising therefore, that despite these alleged character defects DJ was arrested while being sent BACK to Afghanistan for a further tour of duty. Why was a person of whom these serious criticisms have been made being sent back for another spell as an interpreter, if he was as bad as is claimed? Well, unfortunately this puts a big question mark over the accuracy of the evidence being brought against DJ, and clearly he would not have had these remarks made about him if he had not been arrested.

Then we heard all the nonsense about Daniel’s interest in salsa dancing. I know he is a very keen salsa dancer and teacher, and what on earth is wrong with that? There must be hundreds of thousands of people in the UK who have tried salsa dancing. If DJ invited General Richards to attend a salsa class, then I am sure this was done in the good-natured way that DJ acts, and he was only trying to be friendly and genuinely thinking that General Richards would enjoy the experience. But no - this is another issue to be used to put down DJ, and to make him appear stupid or misguided.

Then we had the ridiculous story that DJ had taken photographs of Tony Blair when he visited Kabul. What use photos of Tony Blair could be is difficult to understand, and obviously it is being implied that DJ was up to something sinister in taking these photos. But on the other hand, why shouldn’t he have taken some photos. I guess nobody told him not to use a camera, and I am sure other soldiers have taken photos like this when Mr Blair has visited the places where the British Army has been based. Perhaps DJ had never met Mr Blair before, and he thought this was an occasion to remember. However, as far as I am concerned, taking a photograph of Mr Blair does not indicate evidence of espionage behaviour.

What more contempt can the Prosecution pour on DJ to make him look even more sinister and evil? Next we had him being ridiculed for having taken part in some Cuban black magic ritual to protect General Richards from the Taliban. I have no idea what DJ believes, but involvement in black magic - or rather the native Cuban Yoruba religion - is hardly evidence to support espionage, and this story could only have been brought to court to discredit DJ in the eyes of the jury.

Oh yes, and he has been accused of making himself out to be a General, calling himself “General James”. Well, this is obviously a bit of a joke, and no doubt his colleagues would have had a laugh about it, but again it is no evidence to prove that DJ was involved in espionage. Naturally, when he was interpreting for General Richards the audience watched and listened to DJ, who they could understand. Whether this attention caused DJ to act like a “General” is hardly enough reason to tell the jury that he pretending to have a high rank - this is simply damaging nonsense to win cheap points for the Prosecution.

All these attempts to make DJ look like some sort of nut is hardly any credit to the British Justice system. So, what if in Kabul DJ did organise salsa lessons, Spanish classes, volleyball, cricket, football, women's football, and Latin parties? These are examples of DJ’s resourcefulness and energy to try to do something useful to help people. Such activities should be applauded and rewarded, not condemned. DJ deserves an honour like an OBE for his enterprise, rather than being criticised.

The attempts to justify a “motive” for DJ’s alleged spying
Motive is the thing the Prosecution have a problem proving in this trial. Just what is the motive?

After working on a training programme for Afghan officers, in May 2006, DJ went to work as an interpreter to General David Richards in Kabul, who had just taken over as overall commander of the International Security Assistance Force (ISAF), which comprised 35,000 troops from 37 nations.

The claim is that DJ was embittered at not being promoted, and so chose to become an agent for Iran. But that is hardly the reaction of a man who was not that ambitious, rising only to the level of a Corporal after 19 years in the Territorial Army. A man who has been in the Army nearly 20 years, and only attained the rank of Corporal, hardly seems to be so ambitious that he would betray the UK through spite or bitterness. In any case, those who know DJ will agree that this is not his character at all. Likewise, any talk of DJ feeling that he had been discriminated against racially is also very out of character, and not a response his friends would recognise.

DJ said he was promised promotion to Sergeant by General Richards, but did not get it. General Richards indicates that DJ asked him for promotion, but then this does make sense because General Richards said James was doing a job that was normally the task of a Sergeant.

An anomaly in DJ's case is his transfer from working under Colonel Donnelly to General Richards. DJ was not so happy in his new role, and he made several requests to be returned to Colonel Donnelly. As the charges seem to refer to his time serving under General Richards, it makes no sense that he would be asking to move away from that area, which would have reduced Daniel's access to the material now being used to prosecute him.

There can be no motive of religion, because although raised a Muslim, DJ has shown no interest in practising it. It is also accepted that DJ is not interested in politics or ideology, and so the claim that he wanted to help the country of his birth has to be proved more satisfactorily than merely picking this idea out of the air.

Money could not be a motive because DJ had enough money and property not to worry about needing more. After he was arrested it was falsely claimed that DJ owned 3 houses in Iran, when in fact he owned only one flat, which he had inherited when his father died about 5 years ago. False allegations such as this are common ways to confuse and spread disinformation about an accused person, and this is what was happening here.

The issue of money was raised again when it was claimed that DJ had $35,000 dollars stashed away in a bank account in a foreign country. This was yet another false allegation, which could be easily disproved from DJ’s own bank statements. DJ had a Dollar account with the HSBC bank in Brighton, because he was considering travelling to a dollar region like Cuba or Puerto Rico. The source of the money was not from Iran, which clearly the Prosecution were hoping to prove, but came mainly from the sale of the lease on the night club he ran plus £60,000 he received from the PAX insurance company following 2 strokes he suffered in July 2005.

Perhaps one of the main issues, that works against the Prosecution’s idea of motive, is that DJ believed he would be finishing his tour of Afghanistan on 15th October 2006, and it was only later that he learned he had been asked to stay on until 4th February 2007. By November DJ had already decided that he was going to leave the army for good and become a civilian.

Empathy with Afghans
Although it was claimed that DJ had a lot of empathy towards Afghans, was this a bad thing? After all, it is partly for the benefit of the Afghans that the British Army is in Afghanistan. And who could find it wrong the way that DJ was operating in his role in Afghanistan [e.g. see the witness statements taken for the trial, but not used because they support DJ as a good guy]

DJ’s health
The fact that DJ had 2 strokes in July 2005 should have led to him being considered for retirement from the TA as medically unfit, and remember he suffered this medical condition only a few months before his trip to Afghanistan in 2006. Nevertheless, DJ appears to have been pressurised to undertake service in a war zone because of his rare linguistic abilities. Did the Army abandon its duty of care for the health of DJ, or even send a sick man into the stressful situation of a war zone. Perhaps some of DJ’s alleged ‘bizarre’ behaviour could be related to his medical background? He should have been rewarded for devotion to duty to carry on despite these strokes, rather than being accused of dereliction of his duty.

Certainly the stress of being held in custody for nearly 2 years awaiting trial cannot have improved DJ’s mental state. There are many other points that can be made about this case, but I am completely and utterly disgusted at the way DJ has been treated by the British Army and the UK authorities. It is quite obvious that there is more to this case than the superficial allegations being made against a Corporal.

The “sensitive” material DJ is supposed to have had access to
It has to be remembered that we are dealing with a Corporal here, and not some high level officer. So just what sensitive material might DJ have had access to?

From the earliest stages of the case, when DJ was being interviewed at the Police station, he emphasised that he had not had access to secret or sensitive information. This is not surprising, because his job was to translate the speeches General Richards was making in Afghanistan, and that material was unclassified and publicly announced by the General. It is accepted that DJ translated speeches and other documents for General Richards but did not handle sensitive military information.

General David Richards offered to give evidence on DJ's behalf, and has been quoted as saying that he “had no doubts about Daniel's integrity”. So it seemed DJ was much respected by his own commanding officer, as he was by many others who have also made witness statements. However, when General Richards gave evidence at DJ’s trial it appears things had changed, and General Richards was not so supportive of DJ. Could this have something to do with the fact that General Richards was promoted to the rank of Head of the British Army I wonder - does he now feel he has to distance himself from DJ’s case?

Nevertheless, witness statements made by the senior officers in command in Afghanistan, including General Richards, support the fact that DJ did not have access to secret or sensitive information. It was also made clear that he had not been seen acting suspiciously or trying to gain access to any sensitive documents at headquarters. This is an important point, because if DJ had been spying on behalf of the Iranians it would have been noticed if he had been trying to gain access to material that was useful to them, for example by being in areas where he was not expected to be. It was also confirmed in the witness statements that DJ had not said anything that appeared strange or careless with regard to the handling of secret and sensitive information.

The visit to Amsterdam that was seen as “suspicious”
DJ was meant to return to Afghanistan on Sunday 17th December, but when he phoned on Friday the 15th December to confirm his flight (a normal procedure), he was told that the flight had been delayed. DJ then decided to take a weekend break to Amsterdam before returning to Afghanistan. Therefore, due to the circumstances, it had not been possible for DJ to plan this trip to Amsterdam in advance.

The flight was booked through the Internet by DJ’s friend (tenant) Ms Carmen Sola, who lives in his house, and was paid for using DJ’s credit card. The hotel room DJ stayed in was not reserved, but was selected after he arrived in Amsterdam - he found a room after looking around, and he paid for it with his credit card, although the room was only 75 Euros and he had enough cash on him.

DJ explained his trip to the Police following his arrest, and he told them which hotel he had stayed in. The Police have a copy of the flight ticket and a copy of credit card payment details to the hotel. The Police then claimed that an Iranian intelligence agent had stayed in the same room the previous night.

DJ was arrested on December 18 at 11.15 at RAF Brize Norton, as he waited to fly back to Kabul.

Why was DJ denied trial by Court Martial?
Daniel wanted to be tried by Court Martial, as he is allowed to do as a serving soldier in Afghanistan, but the Attorney General denied Daniel that right and has forced him into a civilian trial, where the evidence can be manipulated more favourably in the interests of the Prosecution.

Then, when applications for bail were made, DJ was treated like a top spy and turned down flat. Apparently DJ was supposed to have “secret” information stored in his head, which could make it dangerous to release him (although he could be visited by anyone and could phone who he liked). In contrast DJ was treated more like a mugger or drug dealer, being graded as an ordinary category B prisoner. Bail was also refused because it was claimed he would abscond, or rather be ‘extracted’ by a ‘foreign power’. The counter-argument is that all DJ’s property and social ties are in the UK, and so he would have no reason to leave the UK unless he was prepared to lose everything he had worked for.

The allegation that DJ is guilty of some offence seems very unlikely from what I have learned. Both DJ and his previous solicitor, Richard Jefferies, told me the same story, that there was no evidence to substantiate the charges being made against DJ. But then, this is a similar situation to Milos Stankovic: the suspicions were there, and people were saying he must have done something to justify his arrest, and yet he was not even put on trial.

DJ has been visited by his old TA commanding officer, who told DJ that he and his colleagues were supporting DJ against the charges he faced. DJ told the officer that he wanted to face a Court Martial, and this request was to be passed onto the authorities concerned. It was only the intervention of Lord Goldsmith that has frustrated DJ’s wish to be tried by Court Martial.

What does seem quite worrying is that Daniel has been told that the police (Special Branch?) have been going around telling his old TA friends not to contact him, because of the terrible things he is alleged to have done. This appears to be an attempt to isolate DJ, and to make it less likely that he will be able to use the good character references that were recorded.

DS Andy Pink, of Special Branch, has visited Daniel in Wandsworth prison. You may remember that Andy Pink was the man who arrested ex-MI6 officer Richard Tomlinson in France in 2006, when he confiscated Tomlinson's computer equipment, mobile phones and much more.

The alleged secret and sensitive material found in DJ’s possession
Allegations by the Prosecution are that the e-mails contain material damaging to UK interests. However, when the Police showed these e-mails to the Chief of Staff (Major General Bickmore) and the Chief of Combined Joint Intelligence Security Assistant Force (ISAF), both of whom knew DJ, their comments were as follows:-

“It is extremely difficult to identify specific areas of damage from what has so far been revealed to me by the police. It is meaningless, without knowing more, I cannot comment further: I know of no damage to NATO, ISAF, or UK operations that would be caused solely on account of the content of these emails.”

Despite the fact that the Police had about 60 statements from military personnel in Afghanistan, setting out the relative unimportance of the information in DJ’s possession, the Prosecution continued to insist that he must remain in prison and bail was refused.

The material DJ had in his possession, and which is being claimed could be helpful to enemies is a CD containing a "Forward Air Control Tactics Manual" and photographs of Predator. He also had a USB memory stick containing "Nato Confidential" Situation Reports. Lives could have been put at risk, it is claimed.

Mr Justice Roderick Evans, the judge in this case, is doing the same as my judge did at my trial in 1993. Justice Evans is claiming that the material is so sensitive and damaging that those parts of the trial must be heard “in camera”. This is nothing more than a crude ploy to avoid the public hearing what a load of nonsense will be claimed about this material. In the safety of a secret court, the jury can be told that material already available in the public domain or not actually damaging at all, is actually extremely sensitive. But they dare not say such lies in an open court.

We have already heard that this “sensitive” material would help hostile forces, insurgents and those supporting insurgents, and Iran will be portrayed as an enemy that we are almost at war with.

The police even questioned that DJ had a training course in the Dari language … I thought that was what he was asked to study? But one issue that was seized on was information about the Predator UAV (Unmanned Aerial Vehicle). You don't have to look far on the Internet to find a stack of photographs and technical data about Predator, much more than Daniel seems to have possessed. For example, the Wikipedia entry on Predator offers some official material as well as unofficial:

Air Force Factsheet
How Stuff Works

Or watch how a Predator is actually used for real on YouTube:

Canadian Forces UAV Kandar

This is a case of intellectual dishonesty, with the CPS bending backwards to lie and distort the value of what they claim Daniel had in his possession. The Prosecutors are nothing better than hypocrites in the way they argue a case they surely cannot believe in.

The alleged coded messages
The truth is the Prosecution have to make as much as they can of the e-mail contents, because that is basically all they have to make their case. Army sources were asked for their opinions about the content of the e-mails, but nobody claimed they were a threat to operations in Afghanistan

The allegation is that DJ was in contact with Colonel Mohammad Hossein Heydari, an Iranian military assistant based at Tehran's embassy in Kabul. It is said that DJ sent e-mails and telephoned Colonel Heydari, over a period between September and December 2006, and that this was an attempt by DJ to become an Iranian agent.

I will not go into the details of those e-mails, but it is strange that for well over a year the Crown Prosecution Service has been trying to convince DJ to plead “guilty” to the Misconduct in Public Office offence, and they will then drop the 2 Official Secrets Act charges. This was obviously a cynical attempt to frighten Daniel into accepting “guilt”, so that he might get a shorter sentence if convicted. But it does indicate that the CPS believe they have a weak case.

This case revolves around whether the jury believe DJ’s explanation of what he was thinking and doing. But let us be clear: this is not a case of actual spying, but only a possible intent of DJ to engage in espionage. I do not think the Prosecution have proved their case, and their ducking and diving demonstrates that they are less than convinced about the strength of their own arguments.

This is another of those sham cases of spying, which we have become used to seeing over recent years, where MI5 and MI6 have failed to catch real spies, and they have to resort to presenting cases such as Daniel James as real and important spies. It is actually quite embarrassing to watch this charade.

The political motives behind DJ's prosecution.
It appears that the US authorities were responsible for intercepting the electronic communications between DJ and Heydari, and that it was the US that asked for Daniel to be arrested and prosecuted. The USA has an enormous system of electronic surveillance in place right now, like the Echelon system.

It would have looked bad for the British to have Daniel extradited to face spying charges in the USA, and so the Americans came to an arrangement with the British to mount this prosecution.

Ultimately, what was behind this trial was that the US Top Brass did not want to serve under a British Commander, and finding a spy in the camp was a convenient way to raise concern about the Iranians in Afghanistan, and to get General Richards replaced. Once again British Intelligence plays the role of the poodle to US interests.

Daniel James Official Secrets Act trial

Like some other people who have been associated with Daniel James and his case, I felt very uneasy about the way that the trial has been going the past couple of weeks. Not only do I believe it is an unfair trial, as I had predicted, but Daniel is being subjected to public ridicule for just behaving the way that seems natural to him.

So much of the reports coming out of this trial have nothing whatsoever to do with the charges Daniel is facing - instead the public are being invited to see his behaviour as odd or even sinister. I am sure that those who know Daniel as a friend or relative will be horrified to see him treated in such an unnecessary and even cruel manner.

I felt I needed to state my concerns about a particular issue that I have not heard mentioned so far during the trial. It could be important, or then again perhaps I am wrong and it has nothing to do with Daniel’s case. I feel I must say these things, and history will be the judge of whether there is anything in the points I have made.

This is the e-mail I have sent out today:

To: Colin Nicholls QC
From: Michael John Smith

Dear Mr Nicholls,

As you will be aware, Daniel James suffered two strokes in July 2005, and as a result was awarded the sum of £60,000 by the military insurers PAX Insurance. This £60,000 was a considerable claim, and I am sure that PAX would have required medical proof that Daniel had suffered from a serious condition.

I do not know if the strokes were caused by some unknown previous medical condition, or whether Daniel had sustained any lasting effects as a consequence of suffering these strokes. What I do believe, however, is that the existence of this medical record must be pertinent to Daniel’s Defence case.

The questions that require an answer are:

(1) Was Daniel assessed as fit to continue serving in the Territorial Army following his strokes in July 2005?

(2) Were the Army aware of Daniel’s history of stroke when they considered him for the role of interpreter in Afghanistan at March 2006, and was he declared fit to serve despite this medical history?

(3) Has Daniel been assessed to see if any of the incidents of “bizarre” behaviour, which he has been accused of exhibiting, are connected in any way with his strokes?

Due to Daniel James’s rare linguistic skills, he has been subjected to the pressure of performing as an interpreter in the war zone of Afghanistan. Clearly the Army has a duty of care to safeguard the health of Daniel and other soldiers, but they could also have taken advantage of a less than fit man and put him into a stressful situation.

In February 2008, Daniel’s previous solicitor was working with Daniel’s then Counsel to organise an assessment of Daniel by a psychiatrist. It had been considered necessary to investigate whether there were medical conditions associated with the charges which Daniel faced. This assessment was not done because Daniel changed his legal representatives at about that time.

I am not aware that any medical assessment has been conducted in the period since Daniel changed his legal representatives, but Daniel should have been assessed to check whether he was in full control of his actions, and whether his judgement can be considered “normal”.

As Daniel James has been subjected to a certain amount of ridicule in the media, due to his behaviour, it should be ruled out that no relevant aspects of his personality can be attributed a medical condition. It would be tragic if a man suffering from a medical condition is convicted and faces a long prison sentence. I do not believe it is the role of the British Justice system to punish the sick.

Yours sincerely,
Michael John Smith

P.S. For your information, I take a personal interest in all Official Secrets Act cases, having been convicted under that Act myself, due to procedural irregularities and false evidence at my trial.

Copied to:
Baroness Scotland
Dr Desmond Turner MP
Sir Ken Macdonald QC
Mark Dennis QC
Michel Massih QC
Giovanni di Stefano
David Sleight
Richard Jefferies
Tom Newton Dunn

Will Daniel James receive a fair trial?

I have just come across some new documents that make it appear that Daniel James is up against more than simply the Law. Daniel's friends, and those who care about justice, are doing all they can to ensure that he has the best possible representation in Court and the chance of a fair trial.

Read the documents below and see what you think:

From: STUDIO LEGALE INTERNAZIONALE

To: Tank Jowett Solicitors
Mr. Colin Nicholls QC, 3 Raymond Buildings, London

7 October 2008

Regina -v- DANIEL JAMES

Dear Simon (Jowett), David (James) and Colin (Nicholls):

In March 2008 this firm received an e mail from friends of DANIEL JAMES urgently seeking advice and representation with regard to a matter that he was facing trial at the Central Criminal Court. The matter being sensitive and subject to the Official Secrets Act 1911 and with material that was or could cause embarrassment and/or harm to the United Kingdom the material that we received was placed in safe storage with only certain personnel having access. Before we accepted any mandate we reviewed the material that was available to us both from the public domain and the material supplied to us by those that held the interests of DANIEL JAMES at heart. We have seen and reviewed a number of witness statements which we will not name as it is our intention to publish this letter. We have the personal statement of Daniel James, the indictment, the case summary, the opening note from prosecuting counsel and certain correspondence between the then lawyers acting for Daniel James and the Crown Prosecution Service.

None of this material has or will be ever, from our part, be released or published as we hold certain responsibilities to heart without the need for endless and completely useless undertakings. In our view no undertakings are necessary when duty calls upon those acting for the client to comply with pure common sense and responsible actions.

Neither are we interested in the actual merits of the case. DANIEL JAMES has been held in custody for the disgracefully long period of nearly two years without trial and with only two bail applications having been made. In any civilized country this type of conduct obviously condoned by the defence (at that time) will invariable lead to certain conclusions aided and abetted by the Crown Prosecution Service who frankly should have known better than to permit lengthy delays in what is at heart a simple case, as is described by Leading Counsel for the Prosecution in the draft opening note.

We reviewed the indictment and drew the conclusion that this case merited a challenge to the indictment namely the issue of what constituted an ‘enemy’ contained within the indictment. We undertook legal research and sought advice from a number of Queens Counsel and Law Professors all of whom were of the view that as discreet a point as it was the onus lay upon the Crown Prosecution Service to define and prove by admissible evidence what constituted an ‘enemy’. Without an ‘enemy’ there is no violation of the Official Secrets Act.

In April of 2008 we spoke with Simon Jowett of Tank Jowett Solicitors and advised DANIEL JAMES that any change of representation from his previous solicitors should be made in favour of Tank Jowett Solicitors. We discussed the case at length with Mr. Jowett and further with David James. We stated quite categorically that the condition upon which DANIEL JAMES sought a change was to challenge the indictment and a pre-trial issue. Mr. Jowett agreed to the conditions and an application was made to the Central Criminal Court to change solicitors. That application was refused at first but two weeks later the change was permitted on condition that Leading Counsel and Junior Counsel would be retained.

Mr. Jowett and ourselves spoke about the legal issues of the case and at no time did we ever touch upon the merits or details because for our purposes (a) we already had possession of the material before Tank Jowett Solicitors and in fact supplied them with material when they were on record and (b) our interest was limited to the legal principle in this case. At all material times Mr. Jowett agreed that as the trial solicitors their brief to counsel would include instructions to counsel to raise the legal issue involved.

In discussing the legal issue with Mr. Jowett and with other Leading Counsel it was suggested by a Law Professor that the only way ‘evidence’ could be admitted as to whether or not the country named in the particulars of the offence could constitute the definition of ‘enemy’ was from the Minister of Defence. An ‘enemy’ is defined as either (a) a country that the UK is currently at war with or (b) a country that one day the UK could be at war with. The specific country in this case it was clear that the UK was not at war with and as such that left only one other alternative. Could the UK one day be at war with the certain country subject to the particulars of the indictment? Tank Jowett Solicitors duly wrote to the Minister of Defence as did we. The reply was immediate and without hesitation namely, that this was an issue of the court and a legal issue and not one that the Ministry of Defence wanted to answer.

In September of this year Leading Counsel that was appointed for personal and professional reasons withdrew from the case. We were asked by the client and Tank Jowett Solicitors which Leading Counsel should be appointed. We spoke with Colin Nicholls QC and with Claire Dobbin of 3 Raymond Buildings. Mr. Nicholls is a person whom we hold in the highest esteem and we outlined the legal issue surrounding this case. At no time did we talk with Mr. Nicholls or Miss Dobbin or in fact Mr. Jowett regarding the merits of the case. Our interest was the legal issue surrounding the word ‘enemy’. Miss Dobbin briefly considered the matter and went further to suggest that there may be a violation of Art. 6 of the ECHR- the right to a fair trial. Afterall, it is for the prosecution to prove its case not for ‘presumptions’ to be made.

Miss Dobbin owing to illness had to withdraw from the case and the clerk to Mr Colin Nicholls QC spoke with us regarding the matter. We spoke with Mr. Nicholls QC whilst he was on holiday in Spain about this matter and to all intent and purposes it was agreed that the preliminary issue of law would be argued as a pre-trial matter.

Of late and without any proper explanation Tank Jowett Solicitors- who were recommended by this firm to DANIDEL JAMES and whom we at all times in May 2008 had to convince DANIEL JAMES that they were in our view the best-refused to discuss the matter and developments simply saying that an undertaking was signed not to discuss the matter with anyone outside those advising DANIEL JAMES (which must have included ourselves) and on the 6th October 2008 refused even to tell us what Mr. Justice Roderick Evans had decided at the Central Criminal Court because of a new undertaking given to the court that (a) neither Daniel James or (b) Tank Jowett Solicitors could discuss the matter with anyone.

Mr. Nicholls QC advised, we are told, Tank Jowett Solicitors not to discuss the case with anyone including ourselves which we find discourteous, confusing, contradictory and further refusing to raise the matter contained within the indictment which many other Queens Counsel and Law Professors have stated is an arguable issue which can, if successful stay the indictment.

Leaving quite aside that DANIEL JAMES by being forced into giving an undertaking to the Court and by Tank Jowett Solicitors remaining silent on the matter it is clearer than clear that his rights to ‘effective’ legal advice has been restrained, injuncted, and violates his rights of independent legal advice; both Tank Jowett Solicitors and Mr. Colin Nicholls QC are party to the gravest of injustices against a fragile defendant (DANIEL JAMES) who sought solace from ourselves and sought ‘effective’ legal advice which we have delivered and by our recommendation of Tank Jowett Solicitors and Colin Nicholls QC have, it would appear, betrayed the code of conduct of lawyers who are duty bound at acting in the best interests of the client.

It can never be in the best interests of the client if the said client is restricted from seeking ‘effective’ or legal advice from anyone other than those representing the said client. It is a violation of his rights and by being party to such places Tank Jowett Solicitors and Colin Nicholls QC in grave professional difficulties in the event that a trial proceeds.

It is actually irrelevant whether or not the legal issue surrounding proving an ‘enemy’ succeeds at trial. Once an arguable issue is raised it must be argued. Counsel and trial solicitors cannot ignore arguable issues even if such are discreet and have a remote possibility of success. The position is compounded when to ourselves both Tank Jowett Solicitors confirmed to us that it was a point they would instruct counsel upon and on our three conversations with Mr. Nicholls QC at no stage did he ever state that he disagreed with the legal issue.

It is clear that if there is no enemy there can be no violation of the Official Secrets Act. The existence of an ‘enemy’ has to be proved. By letter the Ministry of Defence have stated the issue must be resolved in Court. We agree absolutely. By allowing DANIEL JAMES and pressurizing him into undertaking that he would not discuss the case or this issue with anyone outside Tank Jowett Solicitors/Mr. Colin Nicholls constitutes a violation of his rights and in our view a serious professional error of judgement at best, misconduct at worst.

We are of the view that prior to any other action being taken DANIEL JAMES be properly advised if necessary by an independent lawyer and that forthwith an application be made to the Court to revoke the undertaking that DANIEL JAMES was forced into providing and that the condition that he not be allowed to discuss the case with anyone outside Tank Jowett Solicitors/Mr. Colin Nicholls QC be vacated as it is unlawful and obtained by undue influence.

We can understand if the court seek an undertaking that lawyers not discuss the facts and merits of case but the legal issue or issues of law are common to many who are and have been indicted under this rather draconian Official Secrets Act. No harm can be caused to the State if DANIEL JAMES seeks advice from a hundred lawyers of his choice if he so desires regarding the legal issues.

We have provided no undertakings to anyone in this matter because it has not been necessary. However, rest assured that we will not, have not, and will not ever discuss the facts surrounding this case with anyone as they are irrelevant to the issues of law that we have raised.

Tank Jowett Solicitors and Mr. Colin Nicholls QC are acting in our view contrary to the interests of the client and certainly wholly contrary to the interests of justice in this matter by a continuation of this attitude (on the legal issues only) and must consider their position accordingly.

It is our intention to publish this open letter since we are party, unwillingly, to a violation of the rights of DANIEL JAMES who came to us for advice and guidance first and we are responsible for the appointment of Tank Jowett Solicitors and Mr. Colin Nicholls QC.

In conclusion there will always be a time when colleagues differ in opinions but when the said difference affects and effects the interests of the client and the interests of justice no matter how amicable the relationship between professional advisors has been, the interests of the client and justice must always prevail. It is for these reasons that this open letter must be published despite requests to the contrary.

Yours sincerely

GIOVANNI DI STEFANO
Studio Legale Internazionale

From: Tank Jowett Solicitors

To: Giovanni di Stefano

8 October 2008

Dear Giovanni

Daniel James

I have made the firm’s and counsel’s position clear on the issues that you raise. I would like to reiterate that we all have Mr James best interests at heart and are working hard in order to ensure he receives a fair trial.

I am not prepared to discuss the case with you.

I request that you remove the extract from the advice of Leading Counsel from the internet.

Yours sincerely

Simon Jowett
Tank Jowett Solicitors

From: Studio Legale Internazionale

To: Tank Jowett Solicitors
Mr. Colin Nicholls QC, 3 Raymond Buildings, London

8 October 2008

Regina -v- DANIEL JAMES

Dear Simon (Jowett), David (James) and Colin (Nicholls):

We are in receipt of your letter dated 8th October 2008. As expected your letter exemplifies the arrogance of office and the misconception in law and general practice that is sadly predominant within our profession. The manner upon which you have permitted DANIEL JAMES to ‘sign away’ what little rights he had to a fair trial and access to justice beggars belief. We shall continue to protect the rights of DANIEL JAMES as best as possible but be in known that if this case results in a conviction, which invariable will attract a heavy prison sentence, be it on your consciences:- if you still have any left.

We are unable to even if we could withdraw our advice from the internet since as you may have noticed such advice was not published on our website or any website under our control.

Our correspondence will be published in as many outlets as possible in order that others are made aware of what irresponsible actions you have taken in this case.

Yours sincerely

GIOVANNI DI STEFANO
STUDIO LEGALE INTERNAZIONAL