No. 94/0896/S1 Royal Courts of Justice
The Strand, London WC2
In The Court of Appeal Thursday 8 June 1995
- V -
Michael John Smith
The Lord Chief Justice of England
(Lord Taylor of Gosforth)
Mr Justice Tucker
Mr Justice Forbes
(As Approved by the Court)
Mr Michael Mansfield QC and Mr Gary Summers appeared on behalf of the Applicant
Sir Derek Spencer QC, Mr J Nutting QC and Mr John Kelsey-Fry appeared on behalf of the Crown
THE LORD CHIEF JUSTICE: On 18 November 1993, at the Central Criminal Court, on an indictment containing four counts the applicant was convicted of three offences of espionage and was sentenced to a total of 25 years imprisonment. On each of counts 1 and 2, for the offence of communicating material to another for a purpose prejudicial to the safety or interests of the State, contrary to Section 1 (1)(c) of the Official Secrets Act 1911, the applicant was sentenced to consecutive terms of eight years imprisonment. On count 4, for the offence of obtaining or collecting material for a purpose prejudicial to the safety or interests of the State, contrary to Section 1 (1)(c) of the Act, he was sentenced to nine years imprisonment, consecutive to the sentences passed on counts 1 and 2. On count 3 of the indictment, which charged the applicant with making a sketch or note for a purpose prejudicial to the safety or interests of the State, contrary to Section 1 (1)(b) of the Act, the applicant was acquitted.
The applicant now applies directly to the full court for an appropriate extension of time and, if that extension is granted, for leave to appeal against both conviction and sentence. We have considered the relevant circumstances and are satisfied that we should grant the necessary extension of time and accordingly we do so. We therefore now turn to consider, first, the merits of the application for leave to appeal against conviction.
The essence of the Crown's case was that whilst he was employed by GEC as an Audit Manager in the Quality Assurance Department at Hirst Research Centre ("HRC"), an establishment involved in Government defence contracts, the applicant was an agent of the Russian Intelligence Services. It was alleged that between September 1990 and his departure from HRC in July 1992, the applicant communicated to his KGB controllers and their successors technical material and information from HRC which was relevant to this country's actual and potential defence capability.
Counts 1 and 2 of the indictment were specimen counts and were concerned with the period 1 January 1990 to April 1992. There was no specific documentary evidence available in relation to either count. Count 4 concerned the period 30 April 1992 to 8 August 1992 and related to specific bundles of documents which were found in the boot of the applicant's motor car on the day of his arrest.
The applicant denied that he was involved in any form of spying for the Russians. It was his case that he was engaged in industrial espionage and had been handing over information to one "Harry" who he believed was acting on behalf of a commercial competitor of GEC. A key issue in the case was therefore whether the applicant knew that he was dealing with the Soviet and/or Russian intelligence services when, as he admitted, he handed over the information in question.
It was the Crown's case that the applicant had been recruited as a Soviet spy in the early 1970's at a time when he was an acting member of the Young Communist League. It was alleged that he had been recruited by a KGB officer in London called Viktor Oshchenko who recruited agents with access to scientific and technological information; that after recruitment the applicant was "put on ice" until he was "reactivated" by a letter which he received in September 1990. At trial this letter was referred to as the "Williams" letter. The Crown claimed that, having been reactivated in September 1990, the applicant thereafter engaged in the espionage which gave rise to the specific counts in the indictment and for which he was paid substantial sums of money.
On 25 July 1992 Viktor Oshchenko defected and came to England on 31 July 1992. It was said that such a defection would inevitably cause any appointment with a contact known to Oshchenko to be aborted because of the threat the defection posed to KGB agents in the field.
On 6 August 1992 the applicant went by car to Harrow on the Hill. The documents which were the subject matter of count 4 were in the boot of his car. It appeared that the applicant was expecting to meet somebody but no-one appeared. On Saturday 8 August 1992 an officer in the British security services, identified as Mr B, telephoned the applicant at home. The whole of the resulting conversation was tape-recorded. Mr B adopted an eastern European accent and introduced himself as George. He then went on to say "I am a colleague of your old friend Viktor. Do you remember him?" To that question the applicant answered "yes". Mr B then said it was very urgent for him to talk to the applicant. He suggested that the applicant go to a nearby public telephone box where he would ring the applicant. About 18 minutes later the applicant was seen to leave his house and go to the specified phone box. He was kept under observation and photographed by Special Branch officers. A call was made to the kiosk in question but the applicant arrived too late to receive it. For a time the applicant stayed in the area of, and close to, the telephone kiosk before setting off to return home. On his return journey he was intercepted and arrested by Special Branch officers.
The applicant's car and home were later searched. In the boot of his car a sports bag containing a large number of documents and some components was found. Under the carpet in the well of his car a handwritten list was found. In the drawer of his bedroom the police found documents which were said to be KGB "tradecraft" documents and the "Williams letter", together with an envelope postmarked 24 September 1990. The "Williams letter" read as follows:
A lot of water has passed under the bridge since our last 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.
With best wishes,
Amongst other items found by the police were some maps of Portugal and a map of central Oporto which had four crosses marked on it.
Given the recent timing of Viktor Oshchenko's defection, and the aborted meeting of 6th August 1992, it was the Crown's case that the applicant's reaction to the telephone call of 8 August was fully in keeping with the behaviour to be expected of a spy who had originally been recruited by Oshchenko and who thus knew perfectly well that he had been supplying information to the Russian intelligence services.
The grounds of appeal make it necessary to refer to a number of other factual matters about which the prosecution called evidence and which were said to support the Crown's case that the applicant had indeed been recruited as a Soviet spy by Viktor Oshchenko. In 1976 the applicant left the Young Communist League and severed all links with the Communist Party. It was said that this was done at the request of the KGB after he had been recruited. Very shortly after leaving the Young Communist League, in July 1976 the applicant joined EMI (Feltham) as a test engineer. He concealed his former membership of the Communist Party and obtained security clearance up to and including the level of "Secret". Whilst at EMI he worked on a secret weapons project until 1978.
In August 1977 the applicant travelled to Oporto in Portugal. It was said that the purpose of his visit was to engage in a KGB training exercise making use of the map of Oporto with four crosses on it. Evidence was given on behalf of the Crown by a Mrs C and one Oleg Gordievsky (another KGB defector), who both said that the map was capable of being evidence of KGB instructions to an agent to follow a particular route. Another witness, who was referred to as Mr E, gave evidence that he was recruited as a spy by Viktor Oshchenko in 1977. In July 1979 he had been sent to Lisbon either by Oshchenko or by George, his KGB successor, with instructions to deliver an envelope which he duly did.
In 1978 the applicant's communist past came to the attention of the authorities. He was therefore moved to a non-military branch of EMI and lost his security clearance. In November 1979, after a discussion with the head of security at EMI, the applicant sought an interview with the Ministry of Defence to discuss why he had lost his security clearance and in February 1980 he signed a security questionnaire denying his communist past. In June 1980 he was interviewed by a Mr D of the British security services posing as a Ministry of Defence official. Initially the applicant denied his communist past but later admitted it. In September 1985 the applicant was made redundant at EMI and in November 1985 he began working for GEC at HRC. In July 1986 he was given clearance to the "Confidential" level on a need to know basis, and signed a further Official Secrets Act declaration. In May 1992 the applicant was notified that he was to be made redundant with three months notice.
31 July 1992 was the applicant's last day at work. He collected together and took with him the bundles of documents which were later found in the boot of his car. It was the Crown's case that when the applicant drove to Harrow on 6 August 1992 it was with the intention of handing over those documents to a Russian handler. However, as we have already stated, that meeting was aborted because, it was said, the handler had been frightened off as the result of Oshchenko's defection a few days before. It was in those circumstances that the applicant returned home with the bag of documents to await further instructions.
Grounds of Appeal Against Conviction
The first ground of appeal is that the verdicts on counts 1, 2 and 4 should be quashed as unsafe and unsatisfactory. The factual circumstances upon which that ground is based are as follows.
The jury retired to consider their verdicts shortly before midday on 16 November 1992. Their deliberations on that day finished around 4.45pm when they were sent to an hotel. At about 3.15pm on the following day the jury were brought back into court so that a majority verdict direction could be given if required. In response to the usual sequence of questions by the clerk of the court, the foreman of the jury stated that they were not agreed upon a verdict in respect of either counts 1 or 3 but returned verdicts of guilty on counts 2 and 4. The judge then gave an appropriate majority verdict direction in respect of counts 1 and 3 and the jury retired again to continue their deliberations. After about 20 minutes had elapsed the jury sent a note to the judge which read as follows:
"We were totally unaware that our foreman would be asked to deliver a verdict on two counts before a verdict had been reached on all four. Whilst we have reached unanimous decisions on counts 2 and 4 we are concerned that these verdicts could possibly be affected by the evidence related to counts 1 and 3 some of which is of a general nature and therefore also relates indirectly to counts 2 and 4."
The implications of the note were considered by all parties in the absence of the jury. The judge decided that the note could mean that one or more of the jurors had reservations about the verdicts on counts 2 and 4. After considering the decision in R v Andrews 82 Cr App R 148, the judge brought the jury back into court and said (inter alia):
"I have come to this conclusion: those verdicts will be revoked. Consequently you will be free to reconsider your verdicts on counts 2 and 4 as well as continuing your deliberations on counts 1 and 3 and you can return what verdicts you wish therefore on all four counts."
After being given the majority verdict direction again, this time in respect of all four counts, the jury retired once more to continue their deliberations. No verdicts were forthcoming that day.
At 12.35 on the following day, after deliberating for almost 15 hours, the jury returned to court with the verdicts to which we have referred at the outset of this judgement.
On behalf of the applicant, Mr Mansfield QC, who did not appear at the trial, submitted that although the judge quashed the "provisional" verdicts on counts 2 and 4 and directed the jury to reconsider all verdicts afresh, any further deliberations by the jury may have been inhibited or influenced by a fear (whether conscious or unconscious) that any change in those provisional verdicts might be followed by nationwide condemnation and ridicule. He pointed out that the two provisional verdicts had been delivered in public in a case of national interest and importance. He argued that such factors might have the effect of exerting improper pressure on the jury to adhere to their provisional verdicts. It was the possibility of that being the case that rendered the verdicts unsafe and unsatisfactory.
We do not agree. In our judgement, the very fact of the note, its contents and its prompt despatch by the jury clearly indicate that the jury's paramount concern was to render true verdicts according to the evidence. In the circumstances of this case we are satisfied that the judge acted correctly in quashing the two provisional verdicts. There is nothing to suggest that the jury's further deliberations may have been improperly influenced in the manner suggested. In our view there is nothing in the first ground of appeal.
The second ground is that the judge erred in law in admitting evidence of the telephone conversation between the applicant and Mr B on 8 August 1992 and that this error constituted a material irregularity in the course of the trial. It was submitted by Mr Mansfield QC that the question and answer at the outset of the conversation in which Mr B said I am a colleague of your old friend Victor. Do you remember him? to which he received the answer "Yes" constituted a crucial admission by the applicant which it was said went to "the heart of the case".
It was submitted that, without that admission by the applicant, the Crown was unable to link the applicant to Viktor Oshchenko because there was no other evidence to connect them. It was further submitted that once the Crown was able to link the applicant to Oshchenko this had a "domino effect" to use Mr Mansfield's words. In particular it enabled the Crown to submit successfully that evidence should be admitted about Oshchenko's activities both as a KGB officer in London from 1972 to 1979 and in respect of his defection to the United Kingdom at the end of July 1992, even though Oshchenko was not called to give evidence personally.
Mr Mansfield contended that it was the apparent link to Oshchenko which then enabled the Crown to call evidence about such matters as the applicant's communist past in the 1970's, his employment with EMI, his concealment of his communist past, his trip to Portugal in 1977, the fact that Portugal was then used by the KGB for training agents and the applicant's efforts to obtain restoration of his security clearance. Furthermore, it was said, the link with Oshchenko enabled the Crown to suggest that the events of, and applicant's behaviour on, 6 and 8 August 1992 were directly influenced by the defection of Oshchenko at the end of July. Mr Mansfield submitted therefore that, on any view, the telephone call was very important because it achieved its purpose namely to provide the Crown with the vital and missing evidence of a link between Oshchenko and the applicant, a link which was an essential aspect of the Crown's case in connecting the applicant to the Russian intelligence services.
Mr Mansfield contended that the judge should have excluded the telephone conversation in the proper exercise of his discretion under Section 78(1) of the Police and Criminal Evidence Act 1984. He accepted very properly when pressed that, although Mr B was acting as an agent of the police, it could not be said that the conversation amounted to questioning by a police officer acting as a police officer. Strictly speaking, therefore, the PACE Codes of Practice (in particular C.10) did not apply: see R v Christou and Wright (1992) 95 Cr App R 264 at page 271.
However, Mr Mansfield submitted that where, as was the case here, the police are in a position to arrest a suspect for a particular offence, it will be wrong for them to adopt or use a ruse or undercover disguise so that they can then ask questions about the offence, uninhibited by the requirements of the code. He argued that such conduct by the police would entirely circumvent the protection afforded to a suspect by PACE and the Code of Practice and would clearly indicate a blatant intention to do so. Mr Mansfield sought to support this submission by analysing what he considered to be the underlying principles of four different categories of situation which had been considered in cases previously decided by this court.
In our judgement it is neither necessary, nor particularly helpful, to try to categorise previous decisions of this court for the purposes of cases such as the present. The general principle to be applied can be simply stated. Where a suspect is questioned by or on behalf of the police in circumstances where, for the reasons expressed in Christou and Wright (Supra) the PACE Code of Practice does not apply, the police should not be allowed to use that fact so as to act unfairly. If they do act unfairly, then the trial judge will be entitled to exclude any evidence obtained as a result in the exercise of his discretion under Section 78 of the Act. It will be for the judge to consider all the circumstances of the case in arriving at his decision under Section 78. The circumstances in which he can properly conclude that it would be fair to admit the evidence will be infinitely varied, as will be the circumstances in which it will be right to exclude the evidence as having been obtained unfairly.
In this case we are satisfied that the judge was right to admit the evidence of the telephone conversation. Although the applicant's admission that he knew Victor became an important piece of evidence in the Crown's case, we are not persuaded that it resulted from a question directed at establishing an essential ingredient of the offences with which the applicant was later charged, nor did it form part of an interrogation about the offence. The contents of the conversation were not disputed and there was a full and accurate record. In our judgement the circumstances were very different from those considered in R v Bryce (1992) 95 Cr App R 321 to which Mr Mansfield referred us and upon which he placed much reliance.
In the present case a very important reason for the telephone call was to test and record the applicant's reaction to an apparent contact from his Russian handler. In the circumstances of this case we are satisfied that it was appropriate for the police to take steps to secure such evidence. In order to do so it was necessary for the undercover officer to maintain his cover and adopt a disguised identity and he did so accordingly. It was inevitable that the telephone conversation was initiated by the police but no pressure was placed upon the applicant to react as he did. He was not intimidated, he was in the security of his own home and was on equal terms with the person to whom he was speaking. In a sense, the admission by the applicant that he knew Victor came as a bonus to the investigating officer. Accordingly we have come to the firm conclusion that it was not unfair to admit evidence of the telephone conversation and that the judge's decision to do so cannot be faulted.
In each of grounds 3, 4 and 5 it is also said that the judge was wrong to admit certain evidence. In ground 3 the evidence concerned Viktor Oshchenko, his activities in the 1970's and his defection in 1972. In ground 4 objection is taken to evidence concerning the applicant's employment with EMI and his efforts to recover his security clearance. Ground 5 is concerned with the evidence of Mr E and the applicant's trip to Portugal. These grounds can be taken together very briefly.
It is said that even if it was right to admit the evidence of the telephone conversation, the judge should have excluded the evidence relating to each of the foregoing matters. It was submitted that both individually and collectively, the prejudicial effect of such evidence far outweighed its probative value.
We do not agree. In each case the evidence was both relevant and admissible. Each of the various matters established by that evidence had a contribution to make to an overall picture from which the Crown invited the jury to infer that the applicant was not an industrial spy as he claimed but a reactivated Russian spy who had been recruited in the early 1970's. In each case therefore we are satisfied that the judge's decision to admit the evidence cannot be faulted.
A further ground of appeal was advanced by Mr Mansfield arising out of the publication in March 1995 of a book by Oleg Gordievsky entitled "Next Stop Execution". As we have already stated, Gordievsky was a former high ranking KGB officer. We were told that he defected to the West in 1985, having been a double agent since 1974. Based on his knowledge and experience as a former KGB officer, Gordievsky gave evidence at the trial about the extent to which the tradecraft documents, the Williams letter and the Oporto map indicated that the applicant was involved with the KGB. Mr Mansfield drew our attention to the following passage at page 395 of Gordievsky's recently published book:
"The information which I gave about the illegals - their training, the development of their identities, their methods of operation - led to a number of arrests in the 1980's and 1990's. I also gave many details about areas with which I was not directly concerned: I spirited out an annual report of the KR Line (penetration of the British intelligence community), and provided so many new facts about Line X (acquisition of technological and scientific secrets) that MI5 were later able to arrest Michael Smith, who is now serving a 25 year sentence."
Mr Mansfield pointed out that during the course of his evidence Gordievsky had emphasised his loyalty to the United Kingdom and that, whatever may have been the extent of his deceit in the past, he would never lie to the British now.
It was submitted that Gordievsky was a key witness in the Crown's case. As a former KGB officer he had inside knowledge and if anybody could convince the jury that the applicant was linked to the Russians it was him. Thus it was said that, if Gordievsky's credibility or reliability had been undermined at trial, the Crown's case would have been seriously weakened.
At trial Gordievsky's credit was comprehensively challenged. Amongst other matters he was questioned about the proliferation of lies and deceit in which he had been involved in the past, both as a spy and double agent. He was cross-examined about his defection and the pension which he now receives from the authorities in this country. He was accused of exaggeration and of an over-whelming sense of his own self-importance.
We have seen and read a transcript of his cross-examination. We are satisfied that the jury had ample opportunity to observe and assess the truthfulness and reliability of Gordievsky as a witness. By way of comment, we do not consider that Gordievsky can be accused of over-emphasising in his evidence the significance of the tradecraft documents which he had to consider. He readily acknowledged that, considered individually, the various documents, in particular the Oporto map, did not necessarily indicate involvement with the KGB. He made it clear that it was his opinion that it was the collective effect of those documents which pointed to a KGB connection.
We were told that Line X was the KGB department concerned with gathering intelligence about technological and scientific secrets. On behalf of the Crown, Sir Derek Spencer QC confirmed that Gordievsky had indeed provided to British intelligence many new facts about Line X as claimed on page 395 of his book. Sir Derek also confirmed that Gordievsky had managed to obtain and hand over to British intelligence the annual report of the KR Line referred to on the same page and that he gave evidence about it in the course of cross examination (see page 22D of the transcript). However, the Solicitor General did state that in the opinion of British intelligence, the foregoing information supplied by Gordievsky had not in fact enabled MI5 to arrest the applicant.
In the light of that latter observation by the Crown, and confirmed and elaborated in the written document produced by Sir Derek on the second day of the hearing, Mr Mansfield submitted that it was now possible to prove, by reference to the passage on page 395 of his book, that Gordievsky is prepared to tell lies to the British public or at the very least indulge in significant exaggeration of his own importance. He submitted that if such ammunition had been available to the defence during cross-examination of Gordievsky at trial, it would have had a devastating effect on his credit as a witness.
Again, we do not agree. In the passage on page 395 of his book Gordievsky does not claim to have been directly involved with the arrest of the applicant. It was accepted by Sir Derek that Gordievsky may well believe that the information he undoubtedly supplied to British intelligence did help to lead to the arrest of the applicant. We reject the suggestion that this passage proves that Gordievsky is prepared to lie to the British public. We are not persuaded that, had it been possible to ventilate these matters at trial, this would have provided any further significant ammunition for the cross-examination of Gordievsky as to his credit. We are therefore satisfied that there is no substance in this further ground of appeal.
Towards the end of the first day of the hearing of this appeal Mr Mansfield sought an adjournment. The reason was that two documents were disclosed by the Crown at a very late stage during the appeal upon which Mr Mansfield required to make further investigations and possibly to rely. Those documents were statements made by a man named MacCulloch, who was the Deputy Director of Security at the Ministry of Defence. Mr MacCulloch had produced a document on 7 March 1994 in which he expressed views as to the importance of the material which it was alleged the applicant had divulged, or was about to divulge, to the Russian authorities. The final observation and assessment by Mr MacCulloch in that document was shortly in these words:
"I would assess that in terms of national security Smith's activities have caused some damage to the United Kingdom, but not serious damage."
A further document was disclosed with that. The second document came into existence on 16 May 1995. It appears from it that Mr MacCulloch had made further investigations and had consultations with other experts at the Ministry of Defence and that as a result of that further work he had changed his view as to the scale of significance of what he described as Smith's activity. The document dated 16 May 1995 ended in these words:
"For these reasons, my overall assessment now is that, in terms of national security, Smith's activities have caused some considerable damage to the UK's interests, but serious damage in the case of [one project]. Some of this damage is potential, in that countermeasures to these systems could be developed, but we have no way of knowing if the Russians have or not."
Clearly - and this is conceded by the Solicitor General - the original document of 7 March 1994 ought to have been disclosed at an earlier stage. It was not available for the trial, since it only came into existence some months afterwards.
We granted an adjournment to allow Mr Mansfield to investigate this issue further. In the result, at the resumed hearing today, Mr Mansfield has sought leave to add further grounds of appeal based upon further assessment of the documents to which we have referred. Also, in the interim, Mr MacCulloch has been interviewed on behalf of the applicant. A further document has been brought into existence by him and is annexed to a statement which he has made in a solemn form. The further document is dated 5 June 1995 and, having had even more time to consider the matter, Mr MacCulloch's summary contains the observations that the documents which might have been handed over or were intended to be handed over by Smith (those which were found in his car when he was arrested) "might have caused some considerable damage to the United Kingdom's interests." The information "could be used with collateral data to enable a potential enemy to develop a capability which would erode the current United Kingdom technological advantage." Relating to two particular projects more serious damage may have been caused. Information in regard to those matters might enable an enemy "to optimise countermeasures" and could "allow an intelligent enemy to deduce key systems parameters" for a particular piece of equipment which, in turn, would "allow the development of technical countermeasures."
At the trial, as Mr Mansfield has reminded us, there was a great deal of expert evidence called: 17 experts on behalf of the Crown and an expert, Dr Maher, on behalf of the defence. The evidence on behalf of the Crown was to the effect that the material contained in the boot of the applicant's car on his arrest was material capable of damaging the security interests of the United Kingdom. Dr Maher conceded that some part of the information was capable of having that effect. Once he had made that concession, whether the material in question might have been useful to an enemy ceased to be an issue in the case. Mr Mansfield has accepted it cannot be resurrected now on the basis of anything which has been disclosed since this appeal began.
However, he submits that the documents of which Mr MacCulloch was the author are relevant to a second issue which was before the jury. The learned judge made it clear that the essential key issue was the question: was this material intended for the Russians? That was divided into two sub-issues: was the material such as might have been useful to the enemy? As already indicated, that issue no longer remains. The second sub-issue: was Smith's purpose to act prejudicially to the interests of the State? In other words, what was the subjective state of the applicant's mind when he had these documents which he had taken from his office on his departure therefrom and, said the prosecution, was about to hand them over to the Russians?
The issue in the case was essentially whether the applicant was minded to hand over to the Russians these or any documents, or whether he was simply doing a bit of commercial espionage on behalf of the elusive "Harry".
Mr Mansfield puts the matter thus: that Mr MacCulloch, highly expert and in a very senior position in the Ministry of Defence so far as security is concerned, formed the view originally that the effect of the documentation in the possession of the applicant was limited to being capable of causing some damage to the United Kingdom, but not serious damage. The fact that he has changed his mind as a result of further investigations is, says Mr Mansfield, neither here nor there. It would have been helpful to the defence, he suggests, to have known at the time that that was the view of a leading expert in the Ministry of Defence because it would have borne upon the question of whether the material was, to the knowledge of the applicant, material useful to a potential enemy or, more particularly, to the Russian authorities.
He puts the matter in this way. If all the documents which the applicant had retained had only been documents reflecting seriously on the security of this country, then it would have been much easier to infer a guilty intention on the part of the applicant. If the position is that only some of the material might have been useful to an enemy and would not have caused serious damage to the United Kingdom, although it might have caused some damage, then there was a greater scope for the jury to conclude that perhaps the applicant did not have a criminal intent and did not intend to pass the information to the Russians, but may have been intending to pass the information, for commercial reasons, to a competitor of GEC.
We appreciate the way the argument is put in isolation, but the fact of the matter is that the jury had to look at all the evidence. In addition to the undisputed evidence that this material would have been capable of being of some assistance to an enemy and of damaging, to some extent, the interests of the United Kingdom, there was the evidence about the connection between the applicant and those working for the Russians in the United Kingdom. There was the evidence of his communist background; the history of his losing and seeking to regain his classification; the history involving the visit to Lisbon, the abortive trip to Harrow-on-the Hill coinciding with the defection of Oshchenko; and the evidence of the telephone call and his reaction to it. All of that was for the jury to consider on the question of whether the applicant was intending to hand over material (however useful or non-useful it may have been) to the Russians or to a commercial competitor.
Having considered the submissions made by Mr Mansfield, we have come to the conclusion that the matters deriving from the statements of Mr MacCulloch would have made not the slightest difference to this case. There was overwhelming evidence before the jury of the connection in respect of the matters just adumbrated. Putting that together with the fact that the material was capable of being useful to the Russians and damaging to this country, we consider that the verdict of the jury is perfectly safe and not affected by the material which has emerged at this late stage. Accordingly, that matter which was sought to be raised by an additional ground of appeal is not successful. We allowed the ground to be added and we have received the written material, as requested by the defence, but we rule that it makes no difference. Accordingly, this application for leave to appeal against conviction must be refused.
Mr Mansfield then addressed to us arguments concerning the overall sentence passed on the applicant by the trial judge. We recapitulate that he was sentenced on counts 1 and 2 to eight years imprisonment on each consecutively, and on count 4 (which related to the material in the boot of the car) to nine years imprisonment consecutively, making a total sentence of 25 years.
Mr Mansfield submits that a sentence of that order puts this applicant in an altogether higher league in terms of espionage than is appropriate. Out attention was drawn to a number of other cases involving espionage. We were invited to consider the sentences passed in those cases as compared with that passed in the present case.
In the whole list which has been produced, going back to 1950, there are only two sentences which were greater in length than that passed in the present case. Those were both in cases which could be described as at the top of the scale of gravity and treachery involving the loss or possible loss of life of agents acting on behalf of the United Kingdom.
Here, Mr Mansfield submits that in regard to counts 1 and 2 there was no direct evidence as to the nature of the material which was passed. The evidence established - and it is not now contested - that the applicant received at least £20,000 for communicating material. Therefore it must, in our judgement, have been material of considerable value. Whether it was material which went to any enemy purpose that could have endangered lives of British subjects is something which would be a matter of pure surmise. Accordingly, it would be improper to consider the sentence on the basis that any such danger was created.
It is also pointed out by Mr Mansfield that the applicant's rating, so far as his being entrusted with information was concerned, was at a fairly low level. He was above the level of 'Restricted', but he was only at the level of 'Confidential'; he was not entitled to be shown material which was 'Secret' or 'Top Secret'.
Bearing all those matters in mind, we consider that the sentences passed in respect of counts 1 and 2 were longer than was necessary or was justified by the information before the court.
As to count 4, we have already rehearsed the opinion evidence about the gravity with which the authorities viewed the disclosure of the information contained in the boot of the applicant's car. We do not consider that the sentence of nine years imprisonment could in any way be described as excessive.
What we propose to do is to reduce the sentences on counts 1 and 2 in each case from eight years to five-and-a-half years imprisonment, making them, as did the learned trial judge, consecutive. The sentence of nine years imprisonment will also be consecutive. The effect is to reduce the overall sentence from 25 years to 20 years imprisonment. To that extent only the application for leave is granted and the appeal against sentence is allowed.
We add as a postscript to the judgement that it has to be clearly understood, as has been stated in a number of the cases to which we were referred by Mr Mansfield, that in sentencing for espionage the court needs to place an important emphasis upon the deterrent factor of the sentence as well as the punitive factor. Anyone who is prepared to betray his country must expect that he will receive a long sentence. It makes no difference that there may be variations in the political situation worldwide, or in the existence or non-existence of the Cold-War, or any other possible source of war or threat to the United Kingdom in the future. Treachery is treachery. It must be deterred and it must be punished.