Order No. 94 / 898 / S1
IN THE CENTRAL CRIMINAL COURT
Tuesday, 16th November 1993 to
Thursday, 18th November 1993
THE HONOURABLE MR. JUSTICE BLOFELD
- v -
MR D. SPENCER Q.C. (Solicitor General)
MR J. NUTTING and MR J. KELSEY-FRY
appeared on behalf of the prosecution.
MR R. TANSEY Q.C. and MR G. SUMMERS
appeared on behalf of the defendant.
Transcript of the palantype notes of D.L. Sellers
(Official Shorthand Writers to the Court)
10 High Street, Leatherhead, Surrey KT22 8AN
DISCUSSIONS re note from jury
Tuesday, 16th November 1993
(In the absence of the jury)
MR TANSEY: Your Lordship will notice Mr Nutting is not here. With you Lordship’s leave, I will also request to leave this court to go to another court.
MR JUSTICE BLOFELD: You and Mr Nutting told me last night that unfortunately something else has been arranged. I do not know if it is the same case for both of you or different case.
MR TANSEY: Same case.
MR JUSTICE BLOFELD: It has been fixed for ten o’clock this morning. By sitting at ten o’clock suddenly, without clearing it with yourselves, it has put you in difficulties, but you are both satisfied that your juniors can ----
MR TANSEY: Certainly.
MR JUSTICE BLOFELD: ---- keep an eye on the situation while you are dealing with it.
MR TANSEY: I shall return soon.
MR JUSTICE BLOFELD: Your client’s interests are fully protected and it is no discourtesy to them; it is really my fault for not checking with you.
MR TANSEY: I shall return as quickly as I can.
MR JUSTICE BLOFELD: Right. I will let you go before I start is the easiest thing. (Mr Tansey leaves court)
(The jury came into court)
MR JUSTICE BLOFELD: Three matters, members of the jury, going back to yesterday, before I carry on, all of them short. The first one is, when I dealt with Viktor Oshchenko, I should have reminded you of course that there is no evidence whatever that Mr Smith ever met Viktor Oshchenko. The Crown do not call any evidence that he did. He says he never met him in his life and there is no evidence of any sighting of him either with Mr Oshchenko or with any member of the KGB, which of course the defence say indicates the Crown theory about his being recruited by Mr Oshchenko is nonsense. But of course it is all a very long time ago and, whether it would be capable of being photographed or, if it did take place, an Intelligence Agency man would ever have seen it, we simply do not know. But it is a factor in the defence’s favour that you should take into account.
Secondly, shortly before we rose yesterday, I said in relation to one matter that of course this case is not about industrial espionage. I think it was clear in the context that I meant by that that the Crown case is that they are not concerned with industrial espionage. It has always been the defence case that in fact Mr Smith was indulging in industrial espionage but that, I think, has been clear throughout. The issue is: was it genuine spying against the interests of this country, putting it briefly, for the purpose of prejudicing the safety and interests of the state, by handing over information to a Russian, or was it industrial espionage by handing over information to Harry?
The final matter to deal with is this. I dealt, early on when I was doing a synopsis of the prosecution case, with the events of 6th August, and I said that the Crown case was that the defendant went on 6th August to Harrow in order to meet up with his KGB controller, whoever he then may have been and failed to find him. Their theory is that, as they did not meet, there would inevitably have been a fall-back arrangement, there normally being fall-back arrangements, they say, in well organised intelligence services, which was likely to have taken place very quickly afterwards, very probably the next day. They point therefore to the questions put by Superintendent McLeod and the defendant’s answers in his interview about him having some form of fall-out or row with his wife, because he was anxious to keep the fall-back arrangements. I simply stress to you that that is theory. There is no direct evidence about it. Whether it makes sense to you or not is a matter entirely for you.
Those are the three matters I said I would raise and I now go straight on to where we left off last night. I turn over to olfactory research and I go on to that: again one of the defendant’s handwritten notes, you will remember.
Dr Weir gave evidence for the Crown. He was in charge of this project at HRC until he left in July 1992 to take up a new post somewhere else. He explained that olfactory research effectively is a mechanical smell device, and he says it has military uses. It can be used to detect minute quantities of gas. This is important because some gases, in particular nerve gases, he said, can kill or disable when they are in very small parts per million or billion parts of air. And, unless the device can detect those minute quantities, anyone who breathes them in would be either disabled or dead before they could take evasive action. And, by being able to detect such small parts in the air and also by the reason that they can detect humidity in the air, they are in that particular way more sensitive than the human nose is.
Now, on page 187 it says that these devices are reproducible. He pointed to that and said there are a number of matters in these pages which are specific and those bits of information are not public knowledge. He particularly referred to the reproducibility for use, in the second line, of 261 MHz which is in that document. We need not go happily into the precise relevance of it, but that bit of information, he said, was not public knowledge.
He also drew attention to spin-coating and kinetics, and he placed emphasis on the last two lines which showed that the devices were being developed now down to hundreds of parts per billion. That means to detect gases within hundreds of parts per billion.
We were told that there had been an audit relating to this olfactory research project in November 1991, which was carried out by Mr Smith and his immediate superior Mr Elson. Dr Weir said that the contents of page 187 had been explained then to those persons as background information, before they undertook the audit. Some of the information however, he said, on page 187 had been developed between the audit and the date May 1992 which is on the top of page 187. I am just going to turn to 187 for a moment.
He then went back to the figure of 261 -- I am not certain if it is KHz or -- it is MHz, and he said that is important because there are a whole variety of frequencies which scientists could use, and it is of interest that at any rate at HRC that is the one that they are using; they find it therefore suits them. And it would be of assistance for others to know that HRC was using this particular frequency. And by using that frequency on the face of this document, it enabled HRC to make reproducible devices.
He agreed that there were seminars held at HRC to inform those who worked at HRC, closed seminars for people working at HRC, and that some aspect of this project could be mentioned at those seminars. Of course the defendant said these are all lecture notes.
He said that this project at the moment did not have a military context or military funding, but it was under discussion. He indicated that the thinking as to why it was under discussion was that, if a reproducible device could be made which could detect very small quantities of gases, then the time could come when one of these was incorporated in the butt of every infantryman’s rifle, so that it would in fact show him if the -- I do not know whether it would turn a colour or emit a sound. He would then be able to put on his gas mask, or whatever it was, probably something far more sophisticated than a gas mask, because it would alert him that there were gases around that would enable him and make him unfit to fight. So it does in future have potential, if it can be fully developed to be of military use.
Dr Lewis -- he was the Lewis who gave evidence about surface acoustic wave devices, not the Professor Lewis who was so strongly criticised by Dr Maher perhaps; that was a different man -- was concerned about the line on page 187 which reads: “Fabrication of these devices is now reproducible”.
Dr Lewis said the principle of olfactory research has been known for many years but the incapability of reproducing these devices has prevented the project from getting under way properly, and that line suggests that HRC have succeeded in reproducing these devices. This, he said, would be useful to the Russians because it would indicate that, if they started on such a programme, they would know that apparently HRC had succeeded, and this might therefore cause them to continue to press on with any research they were doing, rather than for them to give up their programme.
You will remember that Dr Lewis was the one who was referred to the abstract of a paper about SAWs, and I have already dealt with that. That is when he had an abstract -- in case I am precising it too much – he had an abstract and came back saying he had read the paper. I dealt with that when I was dealing with his evidence on surface acoustic devices.
Dr Maher took a very different view. He said that the olfactory research project was a basic research project. He said that the concepts are well documented in the public domain. So far he is agreeing with what has been said. He said that page 187 does not refer to any specific cases, and that he said is a serious criticism of its use. It is no good having olfactory research unless one knows in respect of which gases it would be effective. He said it would however be of some use to a research scientist who wanted to know how far HRC had got.
He did not agree that the spin-coating was of any relevance as Dr Weir said. He said spin-coating is a well-known technique. He said you will not find other people involved in olfactory research necessarily using a 261 MHz SAW resonator; there are many other resonators which can usefully be used. He took the view that these written notes are not very good notes. They are much less valuable than what is already in the public domain. The fact that the devices are reproducible is already in the public domain, he considered.
He said that Dr Lewis had got it wrong; none of this information could be useful to an enemy and certainly is not prejudicial to United Kingdom interests. It could be useful to a competitor in the sense that it would indicate that HRC is not very advanced in this field. So there you have really a complete head-on clash between the two.
May I just pause there. The Crown say that it is unnecessary for their case for them to be concerned with each particular scientific project. They say that effectively, once Dr Maher has agreed, as he did agree in respect of the SAW device documentation or some of it, that it could be both useful to an enemy and prejudicial to our interests, they have then succeeded in showing that some at any rate of the papers in the holdall which was in the back of Mr Smith’s car were in fact capable of prejudicing U.K. interests. Therefore they say it may be extremely interesting to discover that there is a clash of views about matters like olfactory research between their experts and Dr Maher, but in the end it really does not matter because, once he has accepted there are some aspects that are prejudicial, then the rest of the matters are of very much less significance.
It is however relevant, as I say, on the basis that the Crown says that virtually the whole of this information that was in Mr Smith’s possession is in fact of very low grade. It is a curious by-blow of that though to some extent, because on Mr Smith’s evidence it was entirely by chance. For all he knew, the papers he was taking, on his account from his desk, that had been there put there by D.T. Lewis, could have been of high importance to a potential enemy. But of course he said he did not look at them before he took them, so it is not as though he deliberately selected low grade papers, because he says, apart from the two documents (that is the first two pages of 269 and the document 2-49) which he wanted in case he had another quality assurance job because they were useful blue prints, the rest of the documentation that came from the D.T. Lewis’s drawer he just took, and he had not as yet gone through it all.
Turning to Rapier; that is the next pages that start at page 188A. Mr Swallow gave evidence about that. He is divisional manager at HRC. He has been there for 35 years. He works with microwave devices. He says that these pages contain a complete brief on how to manufacture delay lines. This delay line is the one that is now being used in the Rapier missile. It is still current. The delay line has some small refinements from the ones that are disclosed in this documentation but those refinements effectively were virtually complete by the mid-1980s, so these are still ones that are actually in place in Rapier at the moment.
He said that, if this bundle fell into enemy hands, the enemy could use to it manufacture a delay line of the same type as that used in Rapier. He referred to the band frequency which is referred to particularly at pages 193 and 194, and he said that information might enable an enemy to jam the Rapier and to make its use in warfare ineffective, either ineffective or at any rate less effective.
It was pointed out to him by the defence that the information in the HRC annual and biannual reports referred to this frequency band, and Mr Swallow agreed with that -- that is the company confidential documents not a public domain document. He agreed that there is as much in those documents about band frequency as there is in the documents recovered from the holdall in Mr Smith’s car. He agreed that there are references to delay lines in the technical and scientific press, but he said these do not specifically refer to the Rapier frequency band.
He told us that various projects at HRC start with a military application and then it is discovered in the course of research that they also have a civil application, and he says the reverse happens too, as the olfactory project may show. It has at the moment a civil application but it may turn out to have a military application. It is not necessarily possible to say at any time whether a project will at some later stage have a military use or not. It depends how the research goes.
He said that the delay line on the Rapier is only a small part of the Rapier technique of engineering. You will remember that the Rapier missiles work by sending out impulses. If those impulses hit a platform then the pulses bounce back from that platform and the echoes return to be interpreted. It has an inbuilt IFF capability -- that is to identify a friend or foe -- and if it does not receive a friendly response, it fires.
One of the tests on the Rapier missile is something called OCF short for Operator’s Confidence Facility. The delay line which we are dealing with in these pages simulates the distance that the pulses travel from the Rapier to the target and enable the operator to discover whether the radar in the Rapier is working properly. You will remember he said that electrical impulses travel far faster than sound waves and, as the electrical impulses come into this delay line, they are transformed into sound waves; and therefore by travelling a very short distance, that simulates a much longer distance as electrical impulses, because, although they are both going at astronomically fast speeds, sound waves go a very very great deal slower than electrical impulses. Mr Swallow’s view was that it would certainly help a potential enemy to have the Rapier documents, both because they could manufacture the device and because it would enable them more easily to jam or try and jam the device.
Mr Weatherley gave evidence too, that is a different Mr Weatherley, not the military Dr Weatherley. This Mr Weatherley was programme manager for Cossor Electronics. They had placed the order with HRC; they were subcontracting to HRC because they were concerned with another contract with the Ministry of Defence about Rapier. He looked at these documents. He said that it is a set of documents describing the processes necessary to manufacture a delay line as drawn up by HRC. He said that the documents were very complete and included drawings. He said he could not comment in detail on whether they would enable him to make the device because he was not a manufacturer. He said the data contained within the documents of itself does not, in its own right, form any security problem. None of the documents are classified, but he was concerned at the completeness of the dossier and also at the indication of the wavebands. He said however that the wavebands indicated were fairly wide, so it is only of limited use to a potential enemy.
He said that his company Cossor sell to both military and civil aviation installations, and they export too. The defence suggested these documents might have been useful to a civil competitor and he accepted they might have been.
Dr Weatherly, that is the military man, dealt with these delay lines. He said that the information here, if it were available to the Russians, would be useful. He was taken through the various documents, and he was particularly shown the Janes Weapons page by the defence -- that is bundle 2 at page 447 -- which has the Possum on it, and we discovered that the Possum is a lower grade missile which the United Kingdom sell, and he pointed out that, although the Possum wave length is shown in Janes accurately, he said, when you look at Rapier, which is on the same page, the delay line, the wave length there is not included. So he was pointing out that clearly you could not pick it up from Janes.
That was something in due course that, although factually Dr Maher agreed that was the case, he said you could deduce it from Janes because, once you saw the wave length of Possum, you got a very strong clue that Rapier would be much the same. I will come to that in a moment.
We then had ex-Squadron Leader Bagley. He is now working in Oman. He has been a Rapier engineer for the last ten years. He was concerned about the disclosure of the waveband frequency. He said, if the frequency is known, it is possible to jam the operation of the missile. The narrower the band that is known the more the possibility of effective jamming arises.
He said that the overall content of these pages is giving away sensitive information about the Rapier system. He thought it would be useful to the Russians. He said there was a small amount of evidence about the weapon that would also be useful.
As far as he knew, the Rapier delay line used in the Operator’s Confidence Facility is no longer being made. We heard in fact from the first witness, Mr Swallow, that in fact none had been made for some years because there had been enough for Rapier, but in fact he said, as it happened, this very year they have received an order to make a few more; I think he said eight or ten more.
The Operator’s Confidence Facility is fitted to the Rapier systems and, while Rapier systems remain in use, that Operator’s Confidence Facility will be used, and it is still in current use. He said he was not aware of these further eight delay lines which were being manufactured. He said that the point which pointed to the importance of these papers was that this delay line is in current use by H.M. Forces.
He was then shown the Tech Brief which is in the public domain, although a little doubt remains as to whether in fact an Iron Curtain country could get the Tech Brief, but certainly they could get the Tech Brief probably through their trade delegation. It might mean a small element of deceit but it is reasonably in the public domain. I have dealt with that before. He said that does refer to the band being 3.1 to 3.4, and he would have preferred that document to be marked Restricted because it did disclose that information.
He was also referred to the details about Possum from Janes Weapons, and he made the point that Janes is an independent publication; it is in no way accepted by the Ministry of Defence. So it is not published either by the Ministry of Defence or with the Ministry of Defence’s blessing. So he said he made the distinction between information in a book and information that is in a complete dossier which comes from a respected research establishment like HRC. One might put you on the track but the other is much more authoritative in his view.
We heard from a Mr Gordon Smith who works in the Ministry of Defence. He considered they were prejudicial to the United Kingdom. He felt they gave an insight and could lead to counter-systems being set up, but he said he was not a specialist so he did not really take the matter any further.
So the prosecution case is that this is a complete dossier; it contains references to the bandwidth and they are therefore of more help coming from HRC than they would if they got it from Janes or any other source of a scientific journal or symposium. The defence say that the band is too wide to be of great use really; that was the way they were putting it in cross-examination. They say there are clues in the published literature, and so they were arguing it was not capable of being prejudicial to United Kingdom interests.
Dr Cundy said that he did not expect to see these documents outside the HRC. They are a complete specification for an OCF delay line. “I cannot think of a legitimate purpose for the defendant having them in his possession. There is no doubt that this information could enable anyone to whom it is given to reproduce the device”. He pointed out it was part of a weapon, the Rapier. It is a small component only but, he said, if you have a small component and you have an insight into how it works, it may well give a clue to how the whole Rapier works. He said that he certainly did not know how much information the Russians already had about the Rapier system, so he could not say whether this would give them a worthwhile clue or not.
Dr Maher said that HRC is not the only company that makes delay lines. He did not know now if there was any company making delay lines that could be used in the Rapier, but in the past there have been. He said now it is rather old technology. There are alternatives now currently being worked on. He believes that the Russians are very knowledgeable about wave devices. He cited a paper of theirs in 1968 and said that, if they were that advanced in 1968 -- this is how I understood it; he did not say precisely -- they would be bound to have gone on with the research, and consequently he thought they would now have progressed to be very sophisticated in knowing about the wave devices.
He said, if they have a lack of expertise it is on the fabrication of the surface science of these devices. He said most but not all the information contained in these pages is in the public domain. He placed reliance on Janes Weapons at page 447. He said you could deduce the wavelength from that information. He also relied on the HRC report, recognising of course that that was company confidential.
He said he believed the manufacturing information was of some use but there is more information in the public domain. The documents could be useful to a potential enemy because they are internal to HRC. “I would have to say that the information might be prejudicial to United Kingdom interests as part of a jigsaw. It is a very small component of the system but it does give a very good clue to the operating bandwidth of the Rapier.”
So that is the other subject from which it is clear that Dr Maher is saying that they are both potentially useful and potentially prejudicial.
Thermal Imaging: Dr Lamberton. Thermal imaging enables one to see at night. All objects apparently emit radiation, whether they are inanimate objects or alive. The infra-red radiation that they emit can be picked up by thermal imaging. This is done by a complicated and expensive procedure, but a clear picture can be formed. It is largely a military technology; thermal imaging machines are now mounted on tanks, aircraft and ships in the United Kingdom forces.
Professor Elliott invented the detector called the Sprite or TED in 1974, described by Dr Lamberton as a “brilliant discovery”. This allows the signal to be integrated. The current generation of thermal imagers in the United Kingdom are the most advanced in the world. America has some competition but it is not as good. Russia has few and rather poor ones. None are fitted on their tanks.
There was a recent conference at Birmingham, Dr Lamberton told us, which the Russians attended, where it was clear that their technology was not as good as ours by any means. Much of the general information about TI’s, that is thermal imagers, has been published, but details of performance and manufacture are classified.
The Sprite, TED, is only manufactured in the United Kingdom and under licence in the U.S. and in Japan. In both cases as part of the licence there are constraints on the sale of any TI’s they make. The Japanese for example can only sell to their own Ministry of Defence.
Detailed fabrication techniques are not available; they are sensitive and not released. He says the flow chart at 269/1 and 269/2 encapsulates GEC -- he really means HRC -- know-how, how to put these together. He has never seen such material published before. He was once, on a confidential basis, shown equivalent material in America. He was very surprised to see that particular chart 269/1 and /2 published. It gives an overview. It would not be in the interests of the United Kingdom if this document gets into the Russian hands.
He was referred in cross-examination to documents about the Sprite. He said that the documentation he was shown by the defence contained different information to the flow chart at 269/1 and /2. He agreed that there were many holes in that flow chart; for instance, it did not indicate how to grow CMT. Somebody will tell me what that stands for.
MR KELSEY-FRY: Cadmium-mercury-telluride.
MR JUSTICE BLOFELD: Thank you. I shall call it CMT! It is a flow chart however of all the steps in the manufacturing process. He says the fact that it shows the overall process is something that concerns him.
He was specifically asked about the casing of the device. For some reason the casing, the packaging, is called passivation. I do not know why. He pointed out that there were various ways in which the passivation can be carried out. This flow chart identifies a particular process, although it does not give you every bit of information of how to deal with it. By giving you a particular process it excludes a great many other possibilities. This would be extremely useful information, and it would save another person or country making different scientific tests to decide which is the correct process.
He said that the information in this flow chart would be useful to an enemy. He pointed out that the fact that it is a working document coming from HRC shows that this is how HRC makes these devices, and consequently it has to be distinguished from a theoretical document.
Professor Elliott, who was the one scientist effectively everybody from every side agreed was at the top of his tree, said that the most important information about 269/1 and /2 in his view was in the parts dealing with fabrication and polishing. He said this information would shorten the development time of anyone who was minded to make this device and who had not got that information already.
It would be useful to the Russians, he said; it is a clear pointer to the process. He gave you this analogy. He said that it not only tells you which chapters you need to read, it tells you which chapters you do not need to read in the public domain. So it saves a great deal of time potentially. This information means you do not have to waste time taking potentially wrong turnings.
In other words it gives you the route say from London to Birmingham, so you do not go off by way of Gloucester or Norwich or something. That is the sort of analogy he is giving; it does not tell you every single road you pass and it does not tell you precisely how to make the device, but he says it is useful. He says it is a clear pointer to a viable process.
Dr Weatherley, the military Dr Weatherley, said that these documents would have been useful to the Russians and prejudicial to United Kingdom interests. He was asked about TED or Sprite devices and he said that the TED devices describe a whole family of detectors. Restrictions on information depend upon whether one is referring to high or low performance detectors. It is common knowledge that thermal imaging is used for military purposes. These pages provide much detail on a specific part of cadmium-mercury-telluride technology which is not published elsewhere.
He was taken through the literature. He pointed out that the literature that he was shown does not show how to make these devices. The United Kingdom has an advanced TI capacity and Russia lacks this. If the Russians got hold of it they might be able to counteract our TI capacity and capability.
You will remember that Mr Tansey went through page 269 in detail pointing out that, when you came to every square or round or triangle, you could not make it without further information. Mr Weatherley broadly agreed that is absolutely right. He said they were pointers; it did not tell you the manufacturing process. He still maintained that despite the gaps it was a useful document. He agreed that without collateral information this document would not enable anyone to fabricate the device.
He pointed out that the document not only contained the steps to be taken in the correct order, which he said of itself was a matter of importance, it also referred by numbers and letters to the scientific papers which describe the techniques. These could give the Russians an indication, if they could get hold of those papers from a different source, they would then be further down the line. This of course might tie up with some of the evidence you heard about tradecraft. This came from Mr P, who said that sometimes KGB are highly specific about what they want their agents to obtain; and of course, if they knew the numbers of a paper, I suppose it is not impossible that they could say to an agent, if he was correctly placed, “could you try and get hold of AB/123”, or whatever the number was.
He said that the document shows both the thought process and the fabricating process going on at HRC.
Dr Cundy looked at the document about thermal imaging and said he was horrified, particularly about the two pages 269/1 and /2. These give the central view about it. He boosted the United Kingdom thermal imagers, which he said are some of the best in the world, and said, “HRC has been able to produce some of the most spectacular devices the MoD at Malvern have ever seen”. These pages provide very important information. The steps are not explained specifically but nevertheless this is a very good broad-brush appraisal.
He said our method of making thermal imagers is way ahead of the Americans; the Americans are going down another route. In other words they are not following the way we do it; they are doing something scientifically different. He said they are much more interested in their processes and there is a reluctance for them to take up a process which emanates from an invention from another country. I dare say the same applies that he may be reluctant to take up an invention that also emanates from a foreign country for all I know. He then lumped together thermal imaging, silicon-on-sapphire and gallium arsenide papers, and he said the defendant was not entitled to have these documents outside HRC.
Dr Maher dealt with thermal imaging. He specifically referred to the flow chart 269, which is at the crux of these documents. He said one could not reproduce a device from this alone. He pointed out that polishing is a very complicated process and there was no information about that. Somewhere there would be a document about polishing which would be required to be found before this device could be made. This document is of some use to someone who is producing very similar detectors. There was only one other company in the United Kingdom producing such detectors. That used to be Mullards, but Mullards was taken over by GEC so effectively there is no other company outside the GEC umbrella.
He accepted the United Kingdom did have a world lead in thermal imaging. He said there are companies outside the United Kingdom which are pushing the sales of infra-red detectors. He said the flow chart might be useful to a commercial competitor if they were prepared to infringe the patents. He pointed out that, at defence bundle 2, page 567, Agema -- they also produce kitchen stoves and sell detectors called Sprites. He did not know if the Sprites are the same as in this flow chart.
You will remember we did hear, as I have just reminded you, that there are high and low grade Sprites in fact, so there are different types of Sprites. Dr Weatherley said that TED devices describe a whole family of devices. He did not consider that if a Sprite was different it made any real difference, in other words if you could make one Sprite then theoretically you could make other types of Sprite.
He said the fact that the substrate was sapphire in a Sprite detector was published in 1988, bundle 2, page 557, and he said that the defence bundle at 575, which showed a patent application, also showed this. He said there were thousands of papers on thermal imaging. He said that these two pages 269 might possibly help a potential enemy to steer through the maze of papers on the subject already in the public domain; it might be part of the jigsaw. He did not agree with Dr Lamberton’s views or Dr Cundy’s views. He expressed a high regard for Professor Elliott. He said that the information could be of some use to an enemy but qualified it and said only of minor use.
Then in re-examination he qualified his view of Professor Elliott’s opinion. Despite not going back on his opinion that Professor Elliott was a brilliant man, he said nevertheless he did not wholly agree with Professor Elliott when he said the document read like an index. I think what he meant by that was that Professor Elliott said it read like a book with chapter headings. He said it was an internal working document. “It is not very useful to an enemy. It is not even necessary. I cannot see that this flow chart prejudices the interests of this country. It could be useful to a competitor.”
Silicon-on-sapphire: this was the woman scientist, Dr Hodge. She has worked for the Ministry of Defence at Malvern for many years. Silicon-on-sapphire is largely for military use; it is expensive. Apparently, if you put your silicon chip on a substrate of sapphire, it helps to prevent the silicon chip from being affected by radiation. It makes them what is called “radiation hard”, and consequently it is used where it might be exposed to radiation; that means in either missile systems or in space satellites.
She considered the pages on silicon-on-sapphire, 260/10-69, to be of no great consequence. She said pages 36-42 did not relate to silicon-on-sapphire at all but to epitaxial silicon chips. She said that pages 12-31 show the approximate state of the art in this field in April 1986. She said that the project was at least partly funded by the Ministry of Defence. She said the documents here can be related to open literature and potentially show what sort of capability the United Kingdom had at that date. She considered there was additional detail in these pages that was probably not disclosed in open literature. She made the point that HRC has an excellent reputation and therefore the nature of its own technology would be of interest.
She specifically referred to pages 32-36 which is a procurement specification for silicon-on-sapphire. She said this should not be released to a potential enemy. HRC put in a great deal of work to prepare this document. She pointed to such matters as the name of the supplier, a Japanese name, that is page 36, and she also pointed to the precise selection of the different dimensions of the silicon-on-sapphire. She said this takes years of work.
She was taken through the dimensions of the silicon-on-sapphire. She said that, although there were some similarities with the published literature, the specification gave more detail, what HRC has drawn together in its specification. You will not find their choices from other documents. Particularly critical factors, the factors of dislocation and the edge chips, it is significant that HRC have put in their specification in both cases.
Dr Cundy said the defendant was not entitled to have these documents outside the HRC. HRC had been spending up to five to six million pounds per annum on this technology. The information contained in these documents together with the actual devices -- he put weight on the fact that there are some devices, also shown on your photograph 1 -- would cut years out of the time required to make silicon-on-sapphire of the same type. He said, if they were handed over to a potential enemy or a commercial competitor, they would be of great financial benefit. He talked about reverse engineering of actual devices. That is all he said on that.
Dr Maher said that pages 10-69 are not just silicon-on-sapphire documents. Well, we have heard that already. He said, “In my view, any other manufacturer would have similar if not identical information. Nothing in these pages would be useful to an enemy nor prejudicial to United Kingdom interests.”
He referred specifically to pages 32-36 -- those are the pages Dr Hodge dealt with -- and criticised Dr Hodge. I have reminded you of his criticism of her when I was dealing with the general matters.
He said, “I can think of a scenario when this would be of use to a competitor.” He gave the example that it shows the source from which HRC buys its sapphire -- that is the Japanese company Kyocera. He said a competitor for example might buy up all the sapphire from Kyocera, so that either HRC would be put out of business because they could not get the sapphire to make their silicon-on-sapphire chips, or they would be required to buy all their sapphire through the person who bought it up from Kyocera. He said in that sense it could be useful to a competitor.
He said that nothing in this document is useful to an enemy. The specifications in these pages 32-36 are almost identical to the specifications for silicon wafers. “They are, as far as I can see, if not quite the same, so nearly the same that there is no significant difference. I was a bit alarmed that Dr Hodge said the specification was unique. I find it a standard specification.”
He then referred to bundle 3, 225E, F and G and said there are some additional details in our pages 2-36, but he said they are really of no consequence. He said he could go through them in detail but his invitation was not taken up. But you must take it that, if he said he could go through them in detail, he could have demonstrated that in his view they were almost exactly the same. He said in his view the specification at 32-36 is nothing out of the ordinary at all. All this information can be gleaned from public domain literature.
He dealt with the bow of the substrate, which is a specific matter that Dr Hodge had dealt with, and he said that the wafer is flat and not bowed. He did not agree either with Dr Hodge’s comments about chips on the edge of the sapphire. He said this problem is well-known; there is nothing significant in relation to edge chips. “I do not believe any of this information would be useful to an enemy.”
He disagreed with Dr Cundy. He said he did not believe that the information contained in these pages would shorten the development time if it came into the hands of an enemy. Much of the information, he said, was preliminary information, and he said that the final pages were in the public domain -- that is not in dispute -- from pages 43 onwards it is accepted by all sides, and those pages do not add anything.
Gallium Arsenide: Mr Allenson from the Ministry of Defence, Malvern gave evidence about this. These chips are for use in monolithic microwave integrated circuits, shortened to MMICs. All of the information here is information put out by the company in order to attract orders. It is not commercially sensitive; the information is freely available. So he said all that information is in the public domain.
Dr Cundy differed from his view. Dr Cundy very much doubted if other companies are selling radar gallium arsenide MMICs; they are too expensive for use for civilian applications. Each chip costs ?50 to ?100. I asked him -- I was not certain -- so that we could discover what their value was. He said, if you have a dish on the side of your house, the silicon chips there that enable you to receive Sky television, Sky B, cost about ?3.50. If you had gallium arsenide chips, it might do a marginally better job, but each chip would cost ?50 to ?100, so it is out of the question. It simply theoretically has commercial use but, unless and until the price comes down enormously, no-one is going to pay for them.
He agreed that none of the documentation relating to gallium arsenide was restricted or classified, and he said that these particular MMICs for which these chips were made were for use in radar. He said that the gallium arsenide programme ran at the cost of about six to seven million pounds a year.
He was particularly concerned at these pages, together with the devices photographed on page 1. He says they in fact amount to a very intimate look at the gallium arsenide activity and what might appear in a few years in radar devices for military use. It is a defence development. For a potential enemy to know how radar is being structured is useful. It saves expense and helps him to counteract the devices used. If it reached the hand of an enemy, potentially it could knock out tens to hundreds of millions of pounds of work. So he was strongly critical of the gallium arsenide pages.
Dr Weatherley says that all the documents are preliminary information -- they are so headed -- but they would not be disclosed by GEC to Russia. Nor would COCOM allow this information to go to a potential enemy. So he pointed out that, although they are preliminary information that might go to a western competitor, they are not totally in the public domain. He said these documents are available to all who have reasonable reason for wanting them in the West. He said a large amount of this information is already published in the GEC journal which is a public document.
Dr Maher said all this is public domain documentation. It is all information that would be given to a competitor. Whether it would be given to an Eastern European competitor is a matter you will have to consider. In other words he did not know. He said his views were precisely the same as Dr Allenson’s, so this was a rare example where Dr Maher fully agreed with one of the experts called by the prosecution. It is not of use to an enemy, he said; it is not prejudicial.
He did not consider the papers combined with the devices could assist an enemy. He said such value as there is in them is much less than that which is already in the public domain. He said handing over these devices could not possibly prejudice the interests of this country. If he were a potential enemy, he would like to see later devices than these earlier devices, because these are some years old.
So much for the scientific evidence. The other document, page 270, that is the list of Mr Parker, that is John Parker – “Check John’s contracts list” is on the tradecraft documents. He had checked the handwritten list made by Mr Smith found in the well of his car. It sets out a selected number of contracts received from HRC from about April to about mid-September 1990. The dates kept changing and those dates are not quite hard; it could be a little later but it is about April; it might go through rather nearer November.
Every contract that comes in is on a register and those registers are freely available to quality assurance staff, and they do need to look at them from time to time, so it would be easy and perfectly permissible for Mr Smith to have gone to that register.
Dr Cundy had some difficulty in working out what the numbers were. The numbers down the left-hand side are apparently provisional contract numbers. He could think of no legitimate reason why this list was compiled. He said that many of the contracts in this list are leading edge technology; quite a lot of it is military technology. He pinpointed -- I can give you some numbers -- 9088/96, 9072/74, 9088, 89, 90 and 91. He said there were some that were non-military, and 9045 is one that is non-military.
It was said by Mr Tatham and others and Mr Barlow that they were thinking of expanding what they did with QA, their quality assurance, but the Crown evidence was that none of these contracts were in fact the subject of a quality assurance audit. Mr Smith said there was a great deal of talk about quality assurance audits and widening them, and he relies heavily on the document at the end of the new black bundle, and he says that Mr Tatham’s memory simply is not as complete as it might be. That is not a criticism as I understand it of Mr Tatham; simply that, out of the 101 things he has had to do, he has forgotten this one. He said that in fact this was a document -- he merely drew up some contracts because he thought it might be that they would come in handy for auditing. It was a time of change; there was this new algorithm turning up; and he did it for his own benefit.
He said -- I will deal with it as I am dealing with it now -- he really cannot for the life of him think how this document came to be in his car. He thinks that it came there because he took it by chance from his work. He threw it away -- he put it in a plastic bag with some sweet papers and other rubbish from his car. He then went to a rubbish bin, tipped out the plastic bag and this paper must have just not tipped out but clung to the side of the plastic bag. Then there was a storm, and there was some rust at the bottom of his door and water was getting in, and he put what he thought was an empty plastic bag in the well in order to stop the carpet from getting wet.
He was as surprised as anybody else would be to discover this document was in the plastic bag. He certainly had not put it there deliberately. He certainly had not hidden it. It was entire chance that it was there, and it was of no importance in any event.
Well, that is all I propose to say to you, although I have just dealt a little bit with the defence case in the last few moments, about the prosecution case.
The defendant. Now, before dealing with the defendant, let me just remind you of the eight defence contentions Mr Tansey put forward in his final speech, so that you can remember them as I go through the defendant’s evidence. He said that there was no real evidence that Oshchenko ever recruited or ever had any dealings with the defendant. You will obviously, as I read them out, think to yourselves that to some extent I have covered some of these.
There is no real evidence that the money in notes in the defendant’s house came from the KGB. There is no evidence at all they came from the KGB direct. No-one can say, “Ah yes, Barclays handed over that series of notes to Mr Vasilov”, or whatever his name might be, “who came from the Russian Embassy.” There is nothing of that sort at all.
There is no evidence that the Williams letter came from the KGB was his third point. The defendant was never seen in the company of any Russians was his fourth point. The defendant had no spying paraphernalia, the fifth point.
The activity of the defendant was of such low quality that it suggests he was not working for the KGB. As I understand it, both his methods of work and the type of documents he was extracting is what he is meaning.
Finally, Mr P’s evidence on tradecraft, that it was in his view unlikely that Smith was dealing with the KGB, is compelling evidence. Then he dealt with Dr Maher. I hope in Mr Tansey’s absence Mr Summers will forgive me if I say that, although he took those as his chapter headings, perfectly understandably when you got into the small print of the chapters he expanded them, and he dealt with a whole quantity of other things.
It is not my duty to remind you of everything that both counsel said in their final speeches. You can remember their speeches and I do not propose to say more about it. But, as he gave you those chapter headings at the beginning, I give them to you again so that you can remember them.
I turn to Mr Smith’s evidence. Now I have reminded you about Mr Smith’s character and how you can consider that it may assist in his credibility. Pay no attention to the fact that he has been sitting in the dock with a couple of officers, or three as it is now, around him. That happens to everybody. It does not mean he starts, when he goes into the witness box as it were, to use a tennis analogy, 15-love down; he does not. He starts exactly the same way as everybody else came in. Whether at the end of his evidence he remains the same or better or worse is for you to decide.
He told you that he is 45 years old. He says he has never spied with the KGB; he has never had any dealings with them. “Everything I have done has been to support the interests of the state. I would not be prepared to prejudice the interests of the state. I have never communicated any document to the Russians or drawn up any documents intending to communicate them to the Russians. I am not prepared to betray my country. I do not know Oshchenko. I have never had any dealings with him”.
He went through his history. He told us how he had been to university. Then he had a job in Birmingham for about six months. He did not like living in Birmingham. Then he worked for Rediffusion, from 1976-78 with EMI doing secret work, then he transferred to EMI Medical. He was on an MSc course. He was given a pay rise to move. From 1980-85 he was with EMI Datatech. He moved there because EMI Medical were moving to Radlett in North London/Hertfordshire way, which was too far away from his home. He was made redundant from EMI Datatech in 1985. He got a two-month temporary job, and then there was a job at Hirst Research Centre, where he remained until he was made redundant and left on 31st July. He was then arrested on 8th August.
He was not involved in politics at his university but, during one of the years when he was at university -- he had had a four-year course, including a year’s work experience, a common form of university degree -- he shared a flat with a Yugoslav, who was definitely Socialist, and most evenings they talked politics.
In his first job at Birmingham -- that is the short job -- he joined the trade union TASS. He used to go to Communist Party bookshops; there was one quite close to him, and he was intrigued and went in, and from that he went to meetings.
MR KELSEY-FRY: Sorry to interrupt, but I am just wondering whether your Lordship intends to remain in camera for this part of the summing-up?
MR JUSTICE BLOFELD: Thank you very much. No, I do not; quite right. We will be in open court, if the anybody wants to come in.
(In open court)
I am not going to repeat it for the benefit of the press, if the press have now turned up. I simply say that I have described his early days and his early career. He used to go to Communist Party bookshops and then meetings.
He said, “I think I probably did join the Communist Party when I was in Birmingham or shortly afterwards.” Then he moved back and lived in Surrey. He got involved with the Young Communist League in 1973/74. He was quite active. He was chairman of the local branch of TASS. In 1975 he went to Russia. When he went to Russia, he was disillusioned by what he saw. From then onwards this process of disillusionment continued and, by the end of 1975, he virtually severed his links with the party, although he never appears formally to have resigned; he just faded away.
He does not remember if he signed a form when he joined EMI, asking if he had ever been a member of a political party, particularly a communist one, but he said that, if there had been one asking him whether he had ever been a member of the Communist Party, he would have said no. He said he would have lied because otherwise he thought he would not have got the job. He says from the day he drifted away from the Communist Party, some time late 1975/early 1976, until the present day he has been totally uninterested in communism or left-wing politics. He has been straightforward, middle of the road, fairly uninterested in politics.
He then dealt specifically with Oporto. He had been to Oporto in 1977 for two nights with John Watson, who was a friend of his. John Watson had left-wing leanings but was not a communist. They stayed for two nights in a camp outside Oporto. The defendant was driving his own open car. He drove it down to Portugal. Although this holiday is now some 16 years ago, he says he now, having thought about it, remembers distinctly that, on the two days they were there, they both caught a bus into the middle of the Oporto and in the evening they caught a bus to go to the El Fado dance in the evening.
He agrees that he told the police in his interviews that they went to Oporto by car and used the car in Oporto; that is 362. And he agreed that he later said that the map which was found in his flat had been marked to show places of tourist interest. As I understand it, he says he was not lying when he said that; that is what he was trying to recollect and he was doing his best to recollect, but he then realised he had got it wrong. He said he thought about it since and now realised that this was inaccurate, and he said that the person at the camp had been marking bus routes.
The Crown say that this is his last desperate attempt to make sense of an incriminating document, but he says that it is very difficult indeed to think and remember exactly about something that has happened 15 years ago but, if you actually concentrate and sit down and think about it, particularly if you know that you are going to stand your trial -- is what he is by implication saying -- so it is of importance that you should really think about it, then things do come back to you and you can come up and get it right.
While working at HRC -- he said he liked it; the work was interesting and there was more money there than his previous jobs. He had his own desk, a bookcase and a filing cabinet. When he arrived at his desk, that is in 1985 -- he was there seven years -- his desk was full of papers left by the last occupant, that is Mr Dewie Lewis. In the course of his seven years at HRC he never succeeded actually in clearing out the desk completely. He cleared out some papers but there was still a nearly full bottom drawer by the time he came to leave on 31st July.
In January/February 1990, he received a telephone call out of the blue from Harry. He cannot remember if he gave the name Williams then or later. Harry asked him to meet in a local pub. He was curious and he did, and they went to the Preston, which is a pub round the corner. Well now, that is significant when you are considering all the fall-back arrangements and tradecraft because, on two occasions early on, Harry at any rate had no objection to showing himself close to HRC, in the local pub where other people of HRC went to on the defendant’s account.
“Harry was trying to persuade me to sell information from HRC. It was clear to me that he wanted me to behave dishonestly. I said, ‘I am sorry, I cannot get involved.’ Harry mentioned a sum of ?10,000, which was very attractive, but nothing happened that was conclusive at that meeting.”
They met again at the same place a few days later. “Harry said he had a client who was interested in the work of the HRC. He said he had a client in the same business. I expected that client to be another commercial company. I was not then earning as much money as I would like and I accepted his propositions to supply him with information. I questioned with him whether ?10,000 was enough. He said, ‘We will have to discuss this later.’
“He said that his client was especially interested in micro-electronics particularly processing information, and also interested in gallium arsenide and silicon-on-sapphire as well.
“Harry arranged to meet me at the Roxeth Recreation Ground in two to three weeks. I went to the Roxeth Recreation Ground and we had our first meeting in March 1992. I drove there in my car and I met Harry. He got into my car in the car park, and there we talked. He said he did not want me to get into any trouble with my company. He explained some methods in case our plans went wrong. He gave me a fall-back arrangement. I did not bring any documents to the meeting. He gave me ?500 at this meeting. “I made some notes, that is 274.” I think we ought to look at that; we have not looked at it yet. “We arranged to meet again in April.” So it is in this first meeting that apparently that this “suggest” comes up. That is all he says to do with Harry, and Roxeth Rec is to do with Harry. He cannot help you much about South Harrow 2nd/3rd April, and he said that “When finished state of contract what is happening on them” is not to do with Harry at all. He said that the Harry notes were written, as he says, in March 1990. “We arranged to meet again in April. We had a second meeting. I made notes of this.” That is the next page 275. The first four lines down to “answer Michael” he says are nothing to do with Harry. Those notes were made either in December 1989 or January 1990. He cannot explain what “green the go” or “green line go” means or “answer Michael”.
He says that the “latest” bit -- those were made March/April 1990. Those were probably in March for the arrangement in April, but it was not quite clear because he referred to April, but it is the spring of 1990. “Latest” was the code word. Then he said “first Sat every month” was arrangements for regular meeting; that is what they could be. He read it as “standard” and then it has got “unintelligible” -- he read that as “data sheet” and he did not know why he had written “IQA journal” down. Then the next bit, “7-14 T next 1st” down to “19/26 November” crossed out is nothing to do with Harry; that is social; and the remaining bit is Harry and the same date.
He said he jotted down things Harry told him on bits of paper on which he also used to jot down social matters and also matters relating to his work. Well, again the Crown say you have to consider that with great care because it is curious, if he had in fact such a haphazard way of using bits of information and jotted them down, that they are the only tradecraft notes that have been produced. It is not suggested any more were found in his flat; the only ones were in the envelope with the Williams letter. So the Crown say that he is in fact not being truthful when he says that he was jotting them down at different times, and that becomes particularly important, they say, when we come to 276 which we will come onto a little later.
He said he got ?500 at each of those two meetings, and I have dealt with money and do not propose to go back to that. He said he gave no information to Harry at that April meeting.
One matter you will have to consider: according to him, 275 was made at the second meeting, including “first Saturday every month”, but in fact he said the next contact he had with Harry Williams from April 1990 was when he received the Williams letter. “From that I deduced that our next meeting would be on 4th October at Roxeth Recreation Ground” because you will see there is reference to 4/15, so that is the 4th, so he went on 4th October.
“I took there with me some documents relating to gallium arsenide. These were processing documents which I took from my filing cabinet. They were documents of approximately 1986-87. I did not think they were of much use to Harry. I gave him 30 or 40 documents. He gave me ?5,000. We agreed to meet again, and we met at Horsenden Hill in December. I gave him a further batch of documents on gallium arsenide. I think it very doubtful that any of them would be useful to an enemy. They were early drafts. Many had been found to be inaccurate.
“Harry was not very happy with the documents I had given him in October, but he gave me a further ?4,000. I met him again in March, again at Horsenden Hill. I gave him some very old documents I had copied. They were about gallium arsenide and silicon. He was then rather unhappy with the documents I had given him in December but he gave me ?3,000. He asked me for more interesting documents. He was looking for commercial secrets.
“We met again in June 1991 at Horsenden Hill. I gave him more documents and he gave me ?2,000. Then we met in September 1991 at Harrow-on-the-Hill. I gave him silicon documents and he gave me ?2,000. In December 1991 we again met at Harrow-on-the-Hill. I gave him further silicon documents and he paid me ?1,000. Our final meeting was in April 1992 also at Harrow. I gave him a small quantity of silicon documents he gave me ?2,000.
“He said that was the end of the relationship. There were no concrete plans to meet again. That was the last time I ever saw Harry. It never crossed my mind that Harry might be a member of the KGB. I would be very surprised if he was.”
He said he had lied constantly in his interviews with the police when describing his dealings with Harry. “I lied all the way through. I think this was because they were accusing me of something I had not done. I could not take it seriously at first. I did not like Mr McLeod’s manner. He seemed to judge me guilty and I felt I could not play along with this. I had been extremely dishonest with my company. I had something to hide. I thought I could get out of all this by telling a few lies and then I could go home.
“I did not tell them that Harry’s surname was Williams. I did not tell them that the Williams letter, that is 270, came from Harry. I did not tell them Harry had arranged fall-back plans. I did not tell them any of the tradecraft documents related to Harry. I told them the places I had met Harry were quite different from the actual places where I did meet him.”
You have to ask yourselves: why did he tell these lies? Was it for the reasons he has given or was he lying because in fact he knew, and knew all along, that he had in fact been dealing with the Russians?
He then described of course how he got his redundancy notice. He described about the contracts, and I have dealt with page 270. He described how there was talk of another job and it never came to anything. He described his redundancy. He described taking the lecture notes. I will come to that in due course because I will be taking you quickly through the scientific evidence that he dealt with. “I left HRC on 31st July. People came in constantly to say goodbye, so I was in a rush at the end of the day. When I left I took a number of documents. I was inclined to throw them away but I felt there might be something useful in them. I took my sports bag into work to pick up things in my office that belonged to me. In fact I filled it with the papers that were found by the police on arrest. I never took it from the car from the moment I put it in to the moment I was arrested.
“The devices in the photograph, page 1, all came from Mr Crighton’s cabinet. I took them out of sentiment as a record of what I had been involved in. I took the two documents 1-49 and the flow chart 269/1 and /2 because they might come in useful in the future. Mr Tatham definitely had given me the document 1-49”; that is what Mr Tatham firmly denied.
He then dealt with the documents. He said that he wanted 1-49 because it was a good example of a processing document and if he had to draw one up in future about a project this would be useful as a pro forma. He said then that the remaining SAW documents had been left in his desk by Mr Lewis. He said that, in his view, none of the documentation that he took and nothing in it could be useful to an enemy or could be prejudicial to the interests or safety of the state, and he said specifically -- which is what you have to consider, whether or not he said it specifically -- he made it clear that he is not guilty of these offences.
So he was effectively saying that certainly he never in fact communicated anything -- I am looking at count 1 -- for a purpose prejudicial to the safety or interests of the state. He never had that purpose and nothing he took was calculated to be or might have been or was intended by him to be directly or indirectly useful to an enemy. He said in his view it was neither useful to an enemy nor capable of being prejudicial.
He then turned to the individual documents. I took them in the order that he was taken through them, which is not in the order of the bundle. He first of all dealt with Rapier. He said, “These documents were left in my desk by Mr Lewis. I did not think they were of any use to anybody and I took them home.”
Then he dealt with thermal imaging. He said, “These documents arose from an audit I did with Alan Nott. He suggested we each have a copy of this flow chart” -- that is 269/1 and /2. “I then just left the document on my desk. I never intended to hand this document to anybody. The remaining thermal imaging documents were in the drawer in the desk, left there by Mr Lewis.”
Again the Crown say: is it just coincidence that the document 269/1 and /2 ties up nicely with the other thermal imaging document and the document 1-49 ties up nicely with the other documents which happen to be Lewis documents? The defence effectively say that is chance.
Silicon-on-sapphire: “These were some of the documents I considered giving to Harry but did not actually give to him.” So these are not Lewis documents; these are documents that the defendant got hold of while at HRC, thinking he might give them to Harry but decided not to. “They are all original documents. I took them the day I left. I had had them in my possession since early 1992. I had decided against giving them to Harry.
The gallium arsenide documents: “I collected these documents either at audits I had done or from people working in the area of gallium arsenide. As all this information is handed out to prospective customers and has copyright on it, I cannot see how it can be confidential. I did not intend to hand it over to anyone.”
Then he turned to the SAW documents which, as I said, from page 50-175 came from Lewis’s desk, which he took over. “These documents are incomplete. They are preliminary to preparing a capability set of documents. They apply to two different devices, the 120 and 200 MHz. There is no information on the design. Pages 1-50, in my view, have no connection with pages 51-175. They would not be of use to a potential competitor”, and he did say they would be of minor use to a potential enemy, and that was checked and he said he did not think they would be of use to a potential enemy; and you should take that on the basis he was not changing what he was saying but may well have slipped in a “not” by mistake. So you should not take that against him. It is easy to do. He said he did not look through the document 51-59, that is the Restricted document, while he was at HRC.
Then he dealt with the thermal imaging documents, 269, that is the flow chart. “I do not believe one can manufacture a device from this document. Each symbol involves a very complicated operation. It is of use to someone like myself. I would say it would have been of no use to a potential enemy or to a competitor.
The Rugate filters: “These notes were made by me as a result of an audit with Mr Tatham in June 1992. It is vital to have a feel about the background about the relevant area one is auditing. I made them because at that time” -- he put it this way – “I may have been intending to give them to Alan Nott who I thought was going to take over from me after I had been made redundant. Then I talked to him and I learned he was not going to take over from me.” He was mildly irritated by that and so they remained on his desk, and he took them home when he left.
“The micro-machining information came from a lecture note shortly before we did an audit. I was not intending to hand any of the information over. The quasi-optical car radio(sic) information came from Mr Brigginshaw while I was doing an audit. That also might have been handed over to Mr Nott but never was. The micron valve project was exactly the same; it came from an audit and might have gone to Mr Nott but actually did not because he never took over. The olfactory research project were lecture/seminar notes.” A seminar is only after all several lectures so they are really lecture notes, as are the olfactory research notes. Turning to olfactory research: “During the period when I left I had less and less work to do.”
Then he dealt with all the handwritten notes. “I wrote the handwritten notes to take my mind off my impending redundancy. I thought I would hand them over to Alan Nott, who I understood to be taking over from me. On Tuesday or Wednesday of my last week, he told me he was not taking over. I got a bit annoyed and swept them up with other papers when I left.
“Page 270 is a list of contracts. It is in my mind that I made it in late 1990. I talked to John. I thought the algorithm we were using was a bit hit and miss. I wrote these contracts down as areas where we should do audits. I do not know whether any contracts were in fact audited but the areas sometimes were.” He pointed in particular to the areas of biosensors and micro-machining.
Then he dealt with the severe thunderstorm and the plastic bag which I have already dealt with. I kept the money Harry Williams gave me in the filing cabinet at work. On the last day I put that in my briefcase. I brought a holdall with me to take my things home in. I took my personal possessions, desk diaries, papers in my desk and papers left by D.T. Lewis in my drawers with me. I was running out of time when I left and I gathered them up willy nilly.”
Let us just go down to page 176 to remind you of the dates he says he writes these. This you will have to consider again. The top bit, “Karl Gehring redundancies” he says he wrote in May 1991 and is nothing to do with Harry. The “Get old contract notes; biosensors” down to “HTSC high temperature superconductivity” he made for himself and reads, he says, like a list of requirements.
MR SUMMERS: It is 276; I see the jury looking.
MR JUSTICE BLOFELD: I beg your pardon; thank you, Mr Summers. Page 276, the last page of the whole bundle, that he said was just things he was doing, not a requirement list he was being told to get by Harry; still less was it a requirement list, being told what to get by a KGB agent. Then “Get Karl’s address and telephone number” probably does refer to Karl Gehring. That does refer to Harry; that does refer to notes he made about Harry. The date he jotted those down is September 1991.
So it is coincidence that the Karl Gehring at the top of that page is written because that has got nothing to do with Harry and was written in May 1991, some four months beforehand; all that down to “up and round Church Hill into church” is all there, and you can see at (2) “At elm tree” -- you will remember his cross-examination about that which is criticised by the prosecution. I am not going into that.
Then he says that the words “Prepare for next delivery in Sept. Date to be arranged in Aug.” was written in July 1991, after a talk with Mr Barlow. There again the Crown say that frankly, simply cannot be true, and he has to explain it because clearly, once he has agreed that 6th August is there and he went to Harrow on 6th August, it looks damningly as though he was going to continue giving information in September. So he has ingeniously thought out some reason. He says there is nothing ingenious about it at all; he wrote it on a different occasion.
Then he turns to the Thursday, 6th August and Friday, 7th. “I went to Basingstoke for an induction course for my new temporary job. On the way back I knew my wife would not be in so I decided to make a detour to go to Harrow. I wanted to buy the magazine called Keyboard. I had tried to buy Keyboard on Monday at the local W.H. Smith but had failed. I knew the Harrow W.H. Smith’s had it.
“I parked my car in Harrow at the bottom of Peterborough Road. I walked to W.H. Smith. I could not find Keyboard. I never made any enquiries to the staff to find out if it was in, although I saw they had the last number which was out of date. I then bought some newspapers, went back to my car to read them, looking for jobs. Then I walked up the hill and eventually sat on a seat by the church.
“I went there because the previous year Harry Williams had mentioned that this date, 6th August, was a fall-back date when he would be certain to be there. He said he would be there every year. Then I went to look to see if he would turn up. I was in the church yard for 15-20 minutes, 10 minutes in the garden and 10 minutes on the seat. I was there at about one o’clock.
Then later in cross-examination, being asked what would he do if Harry Williams had turned up, he said, “If Harry had turned up I would have told him that I did not want anything more to do with him”.
Then he said, “On Friday I went down to the coast with my wife. There was no fall-back arrangement. It was not really a row.” I have described what he said about it in the interview: it was simply an argument because she was slow at getting ready; she spent too long getting her clothes and getting properly dressed and tidy and putting make-up on. So it was no more than the most minimal form of matrimonial tiff.
Then he turned to 8th August. “I had been in bed with my wife”, and he described how they had made love, how he got a cup of tea -- all the routine domestic matters that may happen in thousands of households. “About 9 a.m. the telephone rang. My mind was elsewhere. My wife handed me the telephone. I did not recognise the voice. I only actually heard about half the conversation. It struck me as very curious. In the back of my mind I wondered if it was concerned with Harry Williams. I half thought it was a hoax; I half thought it could be serious, something important.
“I stayed in bed for five minutes and then got up and dressed. I told my wife the call was from a George I knew at work. This was a lie but I did not want her to be worried. Then I went out telling my wife I was going to get a newspaper. This was not the whole truth but again I did not want her to be worried. She can be very nervy.
“I went to the phone box on the corner of Cardinal Avenue. I jogged some of the way. This is not because I was late. I just jogged. I went into the phone box. I thought I had been some time away from home. I had 10p with me and I thought I would ring my wife. I put the 10p in the machine but I did not in fact make the telephone call.
“At some stage I sat on the wall by the telephone box for about half a minute. I went up the road” -- and it seems as though he left the telephone box, went further up the road away from home and then came back and sat on the wall, but it does not seem to matter very much. It was not wholly clear. “Then I went back towards my home. I went to the newsagents and bought a newspaper and then, before I got home, I was arrested.
“I was by no means certain that it was the police who had arrested me. They did not make themselves clear. When I got in the car, which was an unmarked police car, they handcuffed me, and it hurt, and I struggled. When they reached Kingston they did not take the right turn to go to Kingston, and I screamed and I struggled. Uniformed police arrived and, when I realised the people who were arresting me were police, I calmed down.
“I was taken to Paddington Green Police Station. I was interviewed for many hours. I lied all the way through. I think this was because they were accusing me of something I had not done. Also I felt the phone call was a trick. I did not take it seriously at first. I did not like Mr McLeod’s manner. He seemed to judge me guilty. I accepted in general terms that I had been paid” -- and the figure of ?20,058, which is the figure that Detective Constable Say came to, he said he accepted in general terms that he had received that from Harry.
“I thought I could sort all this out with the police within a few hours and I could then go home. I thought I might have been sent to prison if I told them I had sold information to Harry. I thought my job prospects would be finished.”
In cross-examination -- I do not propose to repeat by any means all of it -- among other things he said he never intended to hand over any of the documents in the car to Harry. He did not believe any of them would be useful or could be prejudicial; he did not have them there for that purpose. He thought the experts called by the Crown had got it wrong. He agreed he had lied about his communism in the past. He said he lied because it was in his interests at the time to lie; he felt it necessary to lie at the time.
The Crown say it may be a long time ago but the fact remains, they say, that unfortunately Mr Smith is a man who, if it is in his interests to lie, does lie. That is what he did to Mr McLeod, and that is what he is doing to you. He says that he is certainly not lying now. It was very specifically about his communism which was never very serious. He thought otherwise it might ruin his life for no good reason.
He said he had not mentioned buses to the police in his interview when dealing with Oporto because it was a long time ago; he simply had not remembered it. He certainly now remembered that he had used the bus on both days and to the El Fado evening.
“I lied about Harry to the police. I thought if I told the truth, Harry might have been arrested and I would have been in more trouble. I never told the police Harry’s second name was Williams. I was not in my normal state of mind. I was tired, confused and not thinking rationally. I know I told them there were no contingency plans to meet Harry. This was untrue. I do not know if Harry personally actually wrote the Williams letter. I do not know how he knew my address.”
Then he was taken through the tradecraft documents in detail, and I have already gone through them as much as I propose to do. So he said he did not know that the documents for delay lines were for Rapier. “I did not know that HRC had anything to do with Rapier”. Mr Barlow said it was common knowledge at HRC that they were making and had been manufacturing Rapier delay lines. The defendant said he did not know that at all.
Members of the jury, that is in brief the salient points of his evidence. I do not propose to finish this summing-up by trying to rehearse again a synopsis of what I have said. I gave you a synopsis, that is a precis of both cases, at the beginning of the summing-up. I do not intend to do it again. I do not therefore see any useful point would be added in repeating anything I have said. So that completes all I have to say to you about the facts of this case and the law.
There are now some administrative matters that I have to deal with. The first is this. Please remember your verdicts have to be separate verdicts. I simply stress that they have to be separate verdicts because there are different evidential considerations for each of them.
They have to be verdicts on which all 11 of you are agreed. You may have heard that sometimes Courts can accept majority verdicts. That sometimes applies. It does not apply to the present case at the present time.
Would you please choose one of your number to say what your verdicts are when you have reached them. Whether you wish to choose somebody to act as a chairman in your discussions is a matter for you. A number of juries find it useful to have somebody because it means your discussions can be more structured, which is the “in” word for it, but it is entirely for you. You can decide what to do for yourselves.
It is going to be pretty difficult, I suspect, for you to listen to any of the tapes of interviews in your own room. If you want to listen to any parts of the interviews, it can be set up in here. But you may for all I know feel that, as you have a complete transcript of it, there really is not much point listening again.
The tone of voice is said to be relevant by both sides. By the defence it is said Mr McLeod had a bullying manner and was clearly not accepting that the defendant was telling the truth. Curiously of course he was right, because the defendant was lying, he says, throughout. But all the same he was aggressive; he compounded the defendant’s embarrassment and caused him to tell lies.
To some extent it is said by the Crown that, when he was lying, it was not as though he was under stress. He laughed from time to time. He was demonstrating and acting remarkably well, as though he was entirely relaxed. You can remember all that. There are brackets for laughter from time to time -- agreed, all of it, that that did take place -- in the transcript.
You have now heard the 8th August telephone call on a number of occasions. Of course we can set that up for you if you want it. If you want to hear any of that, would you drop me a note because it will take a minute or two to set it up. Then we will get you in when it is all set up. If you want to hear the interview, if you tell us the pages you want to hear -- that will take a little longer because the officer concerned has to go through and set it up, so that will probably take ten minutes to quarter hour to set up.
Otherwise you go off once the jury bailiffs who are going to look after you have been sworn. Do not bother to take anything with you. Well, you can take them if you want, but otherwise they will bring your bundles to your room.
You have got the list of exhibits. I think you should have the board with the devices on. If you want any original documents of course you can have them. At the moment I cannot think there is any particular original document that is going to be of great use to you, but have them by all means if you want.
As a slightly facetious postscript, I am slightly hesitant to give you the ?2,000 but if you really want it you can have it! (To counsel) Is there anything that either of you want the jury to have?
MR KELSEY-FRY: My Lord, I cannot think of any other exhibits, no.
MR JUSTICE BLOFELD: Well, Mr Summers, if you can think of anything now, they can have it. Otherwise I am quite certain you will have a chance of thinking about it and talking to your client or Mr Tansey. If at any time you feel something ought to go into the jury room, it will be taken in.
MR SUMMERS: There are just four matters that I would like to raise, two of them on instructions from last evening and two more now. I am in your Lordship’s hands whether you wish me to raise them in the absence of the jury.
MR JUSTICE BLOFELD: Are they fact?
MR SUMMERS: Yes, it would be preferable in the absence of the jury.
MR JUSTICE BLOFELD: Members of the jury, go to your room for a moment in case I want to correct anything I have said.
(The jury retired from court)
MR JUSTICE BLOFELD: Yes?
MR SUMMERS: My Lord, there are two points on instructions from last evening and, as it were, two fresh points on today. Could I raise the two points on instructions first. My Lord mentioned a response of my client in connection with Rapier in the interview and I have a recollection that my Lord ----
MR JUSTICE BLOFELD: What page?
MR SUMMERS: It is 609 of the interviews. My Lord told the jury ----
MR JUSTICE BLOFELD: Hold on, let me get my note. Yes, “I never heard of that before.”
MR SUMMERS: Yes. Just reading the context of it, in the middle of 609, he is asked, “What about the Rapier system?” “I do not believe that was part of the work with Hirst.”
MR JUSTICE BLOFELD: He said in his evidence of which I have just reminded the jury that he had never heard of Rapier. It is what I said at the very end.
MR SUMMERS: Yes.
MR JUSTICE BLOFELD: I thought that was his case.
MR SUMMERS: The concern of the note I have been passed is that my client would not want it thought that he had never heard of Rapier before. It is not hearing of Rapier in the context of work at HRC.
MR JUSTICE BLOFELD: That is exactly what I am saying. I am not going to do anything about that. I am not in the least concerned with whether he has read the papers and heard of Rapier or not. That is not what the case is about.
MR SUMMERS: The second point is concerning the question of classified documents. Mr Barlow told the jury that Smith would not normally have access to classified documents; he did not have an MoD secure filing cabinet.
MR JUSTICE BLOFELD: I told them he only had clearance up to confidential.
MR SUMMERS: Can I raise the two points that I would like to raise.
MR JUSTICE BLOFELD: I think I have covered that sufficiently. I cannot in the course of a very long summing-up deal with every single minute point.
MR SUMMERS: I have been asked to raise them so I raise them.
MR JUSTICE BLOFELD: I follow that.
MR SUMMERS: My Lord there are two other points. The first point is this. This morning you directed the jury that the Crown said it was unnecessary for them to be concerned with each of the scientific projects, and that really they had to focus on whether they found some of it was useful.
MR JUSTICE BLOFELD: That is right.
MR SUMMERS: Of course I totally agree with that, my Lord; just perhaps to be safe I would ask the jury to be directed that they still must compartmentalise the information in relation to counts 3 and 4; that for example even if they found there was ----
MR JUSTICE BLOFELD: Yes.
MR SUMMERS: ---- information in count 4 ----
MR JUSTICE BLOFELD: Yes, I will deal with that.
MR SUMMERS: I am grateful.
MR JUSTICE BLOFELD: Count 3 only relates to the handwritten notes.
MR SUMMERS: I am grateful. The other point, my last point, is this. When you summed up the evidence, my client’s evidence in relation to his meetings with Harry, I wonder if my Lord could remind the jury that my client’s evidence was that he said to Harry he would not give Harry classified information, and Harry said he was not interested in classified information.
MR JUSTICE BLOFELD: I certainly did remind them of that when he said it in the interviews. Did he say it also in his evidence?
MR SUMMERS: Yes.
MR JUSTICE BLOFELD: I reminded them of it specifically because I used the word “sensitive”. I do not mind doing that.
MR SUMMERS: Yes, I am grateful.
MR KELSEY-FRY: Could I raise one administrative matter. We have another error in the index to the interviews. It may be the jury will refer to it.
MR JUSTICE BLOFELD: What is the error?
MR KELSEY-FRY: Page 2 dealing with ----
MR JUSTICE BLOFELD: Hand me up your copy -- would you mind. It probably shows it there -- and I will get them to alter it. I do not suppose you have any point on this, Mr Summers?
MR SUMMERS: No, my Lord. (Handed)
MR JUSTICE BLOFELD: Jury back, please.
(The jury returned into court)
MR JUSTICE BLOFELD: Members of the jury, one or two points, three points in all, one about a document. Members of the jury, please may I just make it clear to you, just so that you are under no doubt about it at all: count 4 relates to all the documentation in the blue bundle save for the fact that it may or may not relate to 270. I explained to you that the Crown say it does not matter whether that was going to be handed over or was an aide-memoire that he was going to keep. Count 3 only relates -- and this is the important point -- to the handwritten notes made by Mr Smith. That is from page -- I beg your pardon; I am going to get it absolutely right -- 176-187.
I have been asked to remind you and I do: I told you that Mr Smith in his interview said he would not have handed over any sensitive information or any classified information to Harry. He repeated that in his evidence in front of you. I did not mention that but it is correct that he did, and I mention that so that you can consider it.
Now, would you please turn to the index which I have put in at the first bundle of the interviews because I have been told unfortunately on the second page -- it has been checked and there is a minor inaccuracy. This is the page that has the numeral 2 at the bottom and the words “finances generally” at the top. Go down to “Harrow” which is below 6th August, dates 2nd, 3rd, 4th, 5th August, and then Harrow second line 640-648. Delete 648 and put in 643, and then add 651-661. That is the only alteration, is it not?
MR KELSEY-FRY: My Lord, that is right.
MR JUSTICE BLOFELD: All right. I hope the rest is right. Human fallibility might mean that there is something else that is slightly wrong, but Mr Kelsey-Fry has checked it and says the rest is correct. Maybe the jury bailiffs could be sworn.
(The jury retired to consider their verdict at 11.58)
MR JUSTICE BLOFELD: Mr Summers and Mr Kelsey-Fry, I am going to deal with an application for change of venue.
(Administrative discussion about movement of documents)
(Note received from the jury)
MR JUSTICE BLOFELD: Mr Kelsey-Fry, you are really holding the fort for the Crown at the moment.
MR KELSEY-FRY: Yes.
MR JUSTICE BLOFELD: So that Mr Smith knows what it says: “The indictments refer to section 1(1)(c) of the Official Secrets Act, but the pages in the red binder at 277 and 278 do not appear to cover this section. Can we be provided with some guidance.” They do not cover Section 1; they cover Section 2.
MR KELSEY-FRY: Precisely.
MR JUSTICE BLOFELD: I have no idea why it was drafted in that way; maybe you can help.
MR KELSEY-FRY: Why?
MR JUSTICE BLOFELD: Why the form he signed .....
MR KELSEY-FRY: Because the object of the exercise on the back of the form was to indicate to the person signing the form that he was aware of what a prohibited place was under section 8. The simple answer to the question is that the form does not cover Section 1 with which they are concerned.
MR JUSTICE BLOFELD: Yes, it really deals with a prohibited place; that seems basically the answer. They are assumed to know that it is an offence effectively to spy is what it comes to; that is how I see it.
MR KELSEY-FRY: I was not going to put it that way but in my submission precisely.
MR JUSTICE BLOFELD: That is really what it comes to. (To Mr Tansey) Would you like Mr Summers to deal with it?
MR TANSEY: Indeed.
MR SUMMERS: I did not want to be discourteous to Mr Tansey. I have seen the note and listened to the submissions, I respectfully agree that the signed form deals with Section 2 and we are dealing with Section 1.
MR JUSTICE BLOFELD: Yes, the reason seems to me that it is drawing his attention to ‘prohibited place’, which is a more complicated -- or something people might not be so much aware of as what I call ‘the spying section’, but it does actually not deal with Section 1.
MR SUMMERS: Yes, I am grateful.
MR JUSTICE BLOFELD: Right. By the way, the jury wanted to see the originals of what I call the tradecraft notes and the Williams letter.
MR SUMMERS: Yes, the only other point that occurs to me is whether the jury should just be told, as they have been throughout the summing-up, to focus on the words in the indictment.
MR JUSTICE BLOFELD: Yes.
MR SUMMERS: And not be confused by these words.
MR JUSTICE BLOFELD: Yes, indeed I was going to.
(The jury returned into court at 12.38)
MR JUSTICE BLOFELD: Members of the jury, you have written a note reading: “The indictment refers to Section 1(1)(c) of the Official Secrets Act but the pages in the red binder 277 and 278 do not appear to cover this section. Can we be provided with some guidance.”
First let me make it clear to you that the charges are, as you rightly say, brought under the Official Secrets Act, Section 1(1)(c). It is not a requirement in law that the precise section under which anybody commits an offence under the Official Secrets Act, under the Offences Against the Persons Act, the Theft Act or any other Act should be formally brought to a person’s notice so that he signed it. If you think about that, that must be sense, otherwise nobody would commit an offence. So your question, if you will forgive me for saying so, although well intentioned, is actually irrelevant. You have to concentrate on: has he committed any of the four offences as set out in the indictment.
You are absolutely right in what you say about 277 and 278; it makes no mention of Section 1 of the Official Secrets Act. It is a lengthy act and it only in fact includes section 2 and section 8. Section 8 you will notice on page 278 specifically refers to the definition of ‘prohibited place’ and section 2 at the top specifically refers there that “if any person having in his possession or control any secret official codeword or password or any plan, model, articles, note, document, or information which relates to or is used in a prohibited place”, so the information on this page relates to prohibited place. Why that is there I know not. All I can speculate is that it might be thought that what or what is not a prohibited place is a concept that might not come readily to people working there, so it is drawn specifically to their attention. You are however not considering a charge that he has committed an offence by removing anything from a prohibited place.
It may well be, as it sets out in section 2, that that itself could be an offence. It is not the offence with which he is charged. He is charged in each of these counts with more serious offences, offences that in common parlance are called spying. They contain all the ingredients which I went through with you at the beginning of my summing-up, and so the fact that Section 1 is not in this form is as I say irrelevant to what you are considering. It happens not to be there for the reasons I suspect are the correct ones, but I cannot say because we have heard no evidence as to why that form is as it is. That is all I can tell you to help you about it.
We are going to have lunch now, so if you have any more questions you will not get an answer till five past two.
(The jury retired to continue their deliberations at 1.01)
MR JUSTICE BLOFELD: I am marking it 12.50 am, 16th November 1993 (the note).
(At 5.30 the jury retired to a hotel for the night)
Wednesday, 17th November 1993
(In the absence of the jury)
MR JUSTICE BLOFELD: Mr Nutting and Mr Tansey, the jury have now been deliberating since approximately midday yesterday and, I am minded to have them back in and, after the normal questions to be put to them by the Clerk of the Court, to see if they have reached verdicts on any of the counts, to give them the majority direction. I am conscious that there are only 11 of them and therefore my majority direction would be that at least a majority of ten would have to agree. I came in, in the absence of the jury, because the Clerk of the Court informed me that, although strictly speaking neither of you have the right I think to address me on this, it might be that either or both of you would like to. In those circumstances I am quite prepared for either or both of you to do so.
MR NUTTING: I have nothing to say.
MR TANSEY: I would suggest that it is too early to give a majority direction. I say that only for this reason, that today is the 39th actual day of the trial. There is a lot of material which they have to consider and presumably they are considering, and your Lordship may therefore say that it is too early, bearing in mind all they have to take into consideration. That would be my basic concern, that at this stage it is still too early, bearing in mind that it is almost an 8-week case now, and it is not easy in the sense of there being a lot of detail for them to take into consideration. My suggestion would be to suggest that one would not give a majority direction until tomorrow morning around 12 o’clock, that sort of time.
MR JUSTICE BLOFELD: No arrangements have at present been made for them to go to a hotel this evening.
MR TANSEY: That is what I submit to your Lordship on that matter.
MR JUSTICE BLOFELD: I have not considered that possibility yet. It may be that we will have to consider it, but I have a completely open mind about that.
MR TANSEY: The second matter relates to the taking of verdicts.
MR JUSTICE BLOFELD: How do you mean, the taking of the verdicts?
MR TANSEY: Whether you would be minded to take verdicts, if they reach verdicts on one or two counts now.
MR JUSTICE BLOFELD: The normal practice, if one gives a majority direction, is to ask if they have reached any verdicts on any of the counts on which they are all agreed.
MR TANSEY: I accept that, yes.
MR JUSTICE BLOFELD: I do not see how I can give a majority direction without that formality being gone through. I know not if they have or not -- no message has reached me. I have no information that I have not disclosed to either the Crown or yourself.
MR TANSEY: Of course I accept that; of course I do. It is purely that often, to avoid the problem of having inconsistent verdicts, rather than taking any verdicts at all, they only give their verdicts at the conclusion of their overall deliberations.
MR JUSTICE BLOFELD: I have actually removed my copy of Archbold to my own room. I suspect there is a copy in court. But I do not remember the section.
MR NUTTING: 4-448 appears to be the section.
MR JUSTICE BLOFELD: It may be, Mr Tansey, that both you and your junior have one (Copy handed). Yes, well, I cannot see anything directly upon it.
MR TANSEY: My Lord, I do not think there is any specific point. It is just that there have been cases in this building where in fact, when verdicts have been taken at this stage, there has in due course seemed to be an inconsistency, and frequently, in a number of cases I am sure -- hopefully Mr Nutting will confirm that -- to avoid that risk of inconsistency, one awaits ultimately for all the verdicts to be taken in due course, after a majority verdict(sic) is given.
MR JUSTICE BLOFELD: Thank you very much. Do you want to say anything about whether I should ask them if they have agreed upon their verdict, if I were to give them a majority direction?
MR NUTTING: I am not going to pit my experience against a combination of your Lordship’s and Mr Tansey’s. If you are minded to take the line he ----
MR JUSTICE BLOFELD: You have nothing to say?
MR NUTTING: I have nothing ----
MR JUSTICE BLOFELD: I am grateful. I take the view that enough time has elapsed. I do propose to give them a majority direction and propose to ask the Clerk of the Court to ask them whether they have agreed on any of the counts in the indictment. If the answer to that is yes, I am quite certain the Clerk of the Court will then take them through in the normal way and ask on which ones and deal with it in that way.
MR TANSEY: My Lord, yes.
MR JUSTICE BLOFELD: Mr Nutting, I have just been asking the Clerk of the Court -- he has kept the time log -- the jury have in fact been deliberating over ten hours.
(The jury returned into court at 3.16)
THE CLERK OF THE COURT: Would the foreman please stand. Members of the jury, have you reached verdicts on any count upon which you are all agreed?
THE FOREMAN OF THE JURY: We have.
THE CLERK OF THE COURT: I will go through. Have you reached a verdict on which you are all agreed on count 1?
THE FOREMAN OF THE JURY: No.
THE CLERK OF THE COURT: Have you reached a verdict on which you are all agreed on count 2?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF THE COURT: On count 2, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Have you reached a verdict upon which you are all agreed on count 3?
THE FOREMAN OF THE JURY: No.
THE CLERK OF THE COURT: Have you reached a verdict upon which you are all agreed on count 4?
THE FOREMAN OF THE JURY: Yes.
THE CLERK OF THE COURT: On count 4, obtaining material, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: You find the guilty on count 2 and 4 and are unable to agree at this stage on counts 1 and 3?
THE FOREMAN OF THE JURY: That is correct.
MR JUSTICE BLOFELD: Members of the jury, I asked you to come back for this reason. You have now been deliberating over your verdicts for a period in excess of ten hours. The time has therefore arrived when I can give you a majority direction.
The direction I give you if this, that from now onwards the Court is empowered to accept verdicts at your hands on which at least ten of you are agreed. If ten of you are agreed, either a verdict of guilty or a verdict of not guilty, then the Court is empowered to accept it. Having said that, I do not in any way wish to learn what your processes of thought are or how you are approaching this case; that is entirely a matter for yourselves.
What I simply wish to say to you is this: it is obviously preferable if you can reach verdicts on which all 11 of you are agreed; you and you alone know whether that is possible. If you consider it is still possible then it is the better course. I would therefore urge you to go on considering your verdicts and see if you can reach verdicts on the remaining two counts on which you are all agreed. If that proves impossible -- and again you and you alone will know the situation -- then and only then would it be appropriate for you to consider whether you can reach a verdict on which at least ten of you are agreed on either or both of counts 1 and 3. So that is all I have to say to you.
(The jury retired to continue their deliberations at 3.19)
MR JUSTICE BLOFELD: Mr Tansey, I simply say this: from the verdicts that have been received from the jury, it is perfectly clear that at some stage a sentencing process will have to be gone through. At the moment I am not in a position to say when that will be clearly, because we do not know how long the jury will be before they reach verdicts on the remaining two counts. Looking at the time today I think probably it is unlikely that I will deal with the sentencing process this afternoon. I cannot say because the jury may be out for a long time or a short time. I will therefore welcome through the usual channels -- I do not think it would be appropriate in open court because you would like to reflect on it -- when it would be appropriate to deal with the sentencing process. I say no more about it. Obviously it will be a time convenient to all parties and obviously it must be at a time when you and Mr Summers, are quite satisfied you have received full instructions on what mitigation you wish to put forward.
MR TANSEY: Yes, thank you.
MR JUSTICE BLOFELD: Mr Nutting, I have received a note from the jury which has been handed down, and you and Mr Tansey and Mr Summers have had an opportunity of seeing it.
MR NUTTING: Yes, we have.
MR JUSTICE BLOFELD: It reads: “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. While we have reached decisions on counts 2 and 4, we are concerned these verdicts could possibly be affected by the evidence that relates to counts 1 and 3, some of which is of a ‘general’ nature and therefore also relates indirectly to counts 2 and 4.” That is what it says. I confess that I find it a little difficult to follow precisely what they are saying in the last three lines (“some of which is of a ‘general’ nature”) but at the moment I am inclined to have them back and tell them they should go on and consider count 1 and count 3.
MR NUTTING: I have not, speaking for myself, had an opportunity of considering all the options that may be open to you in view of that note, and I would welcome an opportunity of doing so.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: The matter is dealt with generally from paragraph 4-450. That is headed “Premature verdict” but is not in point in the instant case. The significant paragraph would appear at a quick reading to be 4-455.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: And R. v. Andrews. I have to say for my part that it appears to me to be an entirely logical verdict.
MR JUSTICE BLOFELD: Yes.
MR NUTTING: And the anxiety which the jury are still apparently expressing in regard to the other two counts, bearing in mind the limited period of time of count 1 and the limited material involved in count 3, appears to me, if I may say so with respect, to be unrealistic, to suppose that any material which falls for consideration under the evidence ----
MR JUSTICE BLOFELD: May I, before going into that, tell you that, having referred to R. v. Andrews, one possibility -- it seems to me I can do it -- there it says:
“... the court said that as a matter general principle, where the jury seeks to alter a verdict”
-- I am not saying that that is the case here but it is a possibility --
“pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made.”
I am inclined in the circumstances of this case to have the jury back in and say: would they please go on considering their verdict, in fact, and they will be taken when they are ready on all four verdicts.
MR NUTTING: My Lord, I do not think I can add to the submissions.
MR JUSTICE BLOFELD: It seems to me that would in fact then cope with the possibility that they are returning verdicts they did not intend, and it would be in the defendant's interests for them to consider that. What I was concerned about is as to whether or not it was an incomplete verdict. Would you like to reflect on that while I hear Mr Tansey on that.
MR TANSEY: My Lord, it concerns me for the reason that I put to your Lordship before.
MR JUSTICE BLOFELD: Yes, you did, but I took the decision I did. I am not going back over that. As it has turned out, your arguments are now fortified, although I took the normal course. But there it is, Mr Tansey.
MR TANSEY: My Lord, that is what concerns me. But what concerns me is what has happened, my Lord. May I have a few moments to reflect on the situation before I address you any further. I would prefer to have time before I do so.
MR JUSTICE BLOFELD: Yes, you may certainly have a few minutes. I am rather anxious that the jury get an answer to this before they go further down the road, so I do not want to spend a great deal of time on it. But you can certainly have -- if you feel you would like a few minutes.
MR TANSEY: Indeed yes, thank you.
MR TANSEY: I am grateful for the extra time. My Lord, I submit that your Lordship should ask the jury to consider each verdict outstanding and to reconsider their verdicts on counts 2 and 4.
MR JUSTICE BLOFELD: That is not exactly what I said but that comes to much the same thing as what I was proposing. I was proposing to tell them that we will take the verdicts again on counts 2 and 4 when they are ready.
MR TANSEY: My Lord, yes.
MR JUSTICE BLOFELD: It is not a question of considering counts 1 and 3. They are obviously going to consider that but, just in case there is the slightest chance they did not reach a unanimous verdict, I want to make it clear that, if they did not, then at the moment it remains at large. So I will tell them effectively what you want me to.
MR TANSEY: Yes.
MR JUSTICE BLOFELD: Anything to say, Mr Nutting?
MR NUTTING: No, my Lord. In the circumstances, if your Lordship is going to do that, would you give the majority verdict(sic) again against the background of the new basis.
MR JUSTICE BLOFELD: Yes, very well.
(The jury returned into court at 4.14)
MR JUSTICE BLOFELD: Members of the jury, within a few minutes or moments after you retired I understand that you asked your usher if she could explain something to you, and indicated you wanted to see the Clerk of the Court. The Clerk of the Court then came to see me and explained that something was concerning you and it might be difficult for you to write it down on paper.
You now have written something on paper which has come before me and it reads:
“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. While we have reached unanimous decisions on counts 2 and 4, we are concerned that these verdicts could possibly be affected by the evidence relating to counts 1 and 3 some of which is of a ‘general’ nature and therefore also relates indirectly to counts 2 and 4.”
I do not want to know either who wrote that note or precisely what it means but I want to make this clear to you straight away that, on a reading of that note it might be an interpretation and I know not if it is that one or more of you have some reservations about the verdicts that have been returned on counts 2 and 4 by your foreman.
Consequently 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.
However, I make it clear to you and I therefore repeat what I said to you before that sufficient time has now elapsed that it is possible for me to accept majority verdicts at your hands on any of the four counts, providing at least ten of your number agree, whichever way that verdict is. I repeat that it is better in all the circumstances for unanimous verdicts to be returned on as many or indeed all the counts that it is possible to do.
I do not repeat every word I said to you a minute or two ago -- I am sure you took it in -- but those same remarks apply. Try to reach unanimous verdicts on all counts. If you cannot, I can accept verdicts on which at least ten of you are agreed in respect of any of the counts. I hope that clears up the difficulties you expressed. Would you like to go out and continue your deliberations, please.
(The jury retired to continue their deliberations at 4.17)
MR JUSTICE BLOFELD: Mr Nutting, last night I am informed the jury continued their deliberations of their own accord until 5.20. I propose therefore to allow them to continue considering their verdicts now until 5.15 tonight. If by then they have reached no verdicts, arrangements will be made for them to go to a hotel, and I will give them the same direction as I gave them yesterday evening.
MR NUTTING: Yes. The only observation that I would make on the scenario your Lordship painted is this. It may be that with a little extra time beyond 5.15 they might be able to come to verdicts on the whole of this case and therefore -- if I may be permitted to finish -- and therefore that your Lordship might think it appropriate to enquire before sending them to a hotel at that time whether with a little more time tonight they might be able to resolve the matter, without of course putting them under any sort of pressure at all.
MR JUSTICE BLOFELD: I assumed what you were going to say you did say. I would not be averse to that course of action personally. I will hear Mr Tansey.
MR TANSEY: I am not averse to that course either.
MR JUSTICE BLOFELD: What I think I will do then is, unless they come back between now and quarter past five, no further action will be taken, and I will explain the situation to them then and ask them what they would like to do and, if in fact they would like to continue a little longer, I think I will send them out for a little longer without putting a limit of time on it, and we will then reflect on what the limit will be. But I do not want at any stage for them to go out feeling, “Well I’ll give you say till six o’clock”, because I do not want them to feel they have a deadline to reach. So I shall not say any particular time and we will reconsider that at quarter past five if that eventually arises and both of you can address me then. In the meantime I will hand this note down. Obviously if either of you would like to have another look at it, you are more than welcome to do so.
MR JUSTICE BLOFELD: Mr Nutting, it is now quarter past five. I propose to have the jury in and just ask the Clerk of the Court to ask one question which is: have you reached verdicts on all four counts on which at least ten of you are agreed? Assuming the answer to that is no, I will then deal with the matters we have talked about earlier. If the answer should happen to be yes, of course we will go onto take the verdicts.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: I imagine that meets with your approval.
MR TANSEY: Of course it does, yes.
(The jury returned into court at 5.18)
MR JUSTICE BLOFELD: Mr Foreman, would you listen carefully to the one question you are now going to be asked.
THE CLERK OF THE COURT: Have you reached verdicts on all four counts on which at least ten of you are agreed?
THE FOREMAN OF THE JURY: No.
MR JUSTICE BLOFELD: I have had you brought back into court because it is now nearly 5.20, and you have been deliberating since, I am told, quarter past ten this morning. Really the Court is entirely in your hands. You can go off and spend another night in a hotel should you wish to do so. You can continue to deliberate for a little longer, but clearly it would not be fair on you or indeed anybody in the case if you continued deliberating tonight for much longer because there comes a time when you get just weary and then you are not really thinking straight. So I do not mind at all which you would like to do.
You can turn round to talk among yourselves or, if you find it easier, you can go back to your room and discuss it for a moment or two and write a short note saying either “Come back tomorrow” or “We would like to go on”, whichever the situation is. Would that be easier?
THE FOREMAN OF THE JURY: We will go back to our room.
MR JUSTICE BLOFELD: Let me have a note. I will rise once you have left and we will come back once we have your note.
(The jury retired at 5.20)
MR NUTTING: My Lord, in view of what took place earlier on, I do not know whether your Lordship has applied your mind to the question of what can be reported of this afternoon’s proceedings but clearly some circumspection is required.
MR JUSTICE BLOFELD: Yes, I had not applied my mind to that. As no verdict has been taken that is a final verdict, no verdict can be reported. Once a final verdict has been reported any intermediate stage can be mentioned too by the press, because it took place in open court. The reason for that not being reported is primarily the fact that it would be unfair to the defendant because it is still open to the jury to change their minds. Secondly, although the jury are going to a hotel, it may be they will watch television tonight. If it is reported, because the case has received some publicity, it might be in one programme or another and that might in fact be a problem to the jury. So it is for those two reasons.
MEMBER OF THE PRESS: Could I ask for that to be repeated.
MR JUSTICE BLOFELD: You must not report.
MEMBER OF THE PRESS: Can we report what was said in open court?
MR JUSTICE BLOFELD: No, you cannot report that they returned verdicts on 2 and 4, then I received a note saying they wish to return ----
MEMBER OF THE PRESS: We must pretend ----
MR JUSTICE BLOFELD: No, you simply say the jury are still out considering their verdicts, because it is not a complete verdict and therefore, if it is not a complete verdict, it does not count in law as a verdict, so you cannot report it until such time as a complete verdict has been recorded. Once a complete verdict has been recorded, whichever way those verdicts are, then you are free to report this matter. Is that clear to all of you? I do not really want to get involved with too long a discussion. I will make it clear -- what was the timing of the purported verdict approximately?
THE CLERK OF THE COURT: They returned at 4.14.
MR JUSTICE BLOFELD: When did they go out again?
THE CLERK OF THE COURT: 4.17.
MR JUSTICE BLOFELD: When did they come back in about the question?
THE CLERK OF THE COURT: At 3.15 they came in and received majority direction. They returned at 4.14.
MR JUSTICE BLOFELD: (To the Press): You are not allowed to report anything that has passed between myself and the jury this afternoon save to say that they are still considering their verdicts.
MR NUTTING: May I hand to your Lordship a document which I have been given, which I understand has already gone out. It went out via the Press Association at 15.50 (Handed).
MR JUSTICE BLOFELD: Well, that is understandable because that is before they came back again, is it not? There is nothing I can do about that. It is not to be reported on further. I am grateful to you for telling me this. I will in fact tell the jury when I come -- I think it would be appropriate for me to warn the jury that it may be that something of their earlier remarks may be in the press but they are to pay no attention to it should they see it in the papers.
MR NUTTING: Yes, of course this only applies if the jury in fact go away to a hotel.
MR JUSTICE BLOFELD: Yes, I will not say anything about -- it is an unsatisfactory situation but it is the best we can do. You can certainly wait for the moment because, if the jury continue -- for all I know they may decide to continue and we may yet have verdicts, in which case your problem disappears. If that does not happen your problem remains.
MR JUSTICE BLOFELD: I need only say the jury have indicated they would like to go to a hotel again!
MR NUTTING: My Lord, while your Lordship has been out of court, certain members of the press have indicated to me that the account of what took place this afternoon has already been filed with newspapers like the Evening Standard which go out in the afternoons. Moreover I understand the report of the guilty verdict has already gone out over the news and the press are naturally anxious about the effect of your Lordship’s order as to future events which have already in fact been broadcast and therefore the damage to some extent has been done. My Lord, I have to say what was in my mind was not so much a ban on what had been reported but speculation on the rarity of this sort of thing, or anything which might put the jury under any sort of pressure in relation to the rest of their deliberations. That was why I rose when I did, bearing in mind the possibility of the jury going to a hotel and therefore having -- I know not whether the jury have access to any sort of newspapers, television, radio, or what the position is when they retire to a hotel. I have no idea what the position is but you could in relation to this jury presumably remedy that by assuring they do not watch television, listen to the radio or see papers tomorrow morning.
MR JUSTICE BLOFELD: That seems to me appropriate. I am bound to say when I was addressing my remarks to the press I was not aware this had gone out.
MR NUTTING: Nor I when I rose but what I was concerned about -- though of course I accepted it when your Lordship said it, namely prejudice to the defendant -- I have to say what I was concerned about was any potential pressure on the jury.
MR JUSTICE BLOFELD: Yes, well I think that, as it is already in the public eye, any order that I make now is bolting the stable door after the horses have gone. So I can see little point, now that I am told it is already in the public eye -- because once it is in the public eye there is nothing I can do about it.
MR NUTTING: No, but of course ----
MR JUSTICE BLOFELD: I think what I will do if I may is I would like to reflect just for the next five minutes or so. What I will do is get the jury back tell them to go to a hotel. I will certainly hear Mr Tansey before having them back but I am at the moment proposing to tell them that the purported verdicts they returned have of course been reported and comments may be made upon them. In those circumstances I am most anxious it should not interfere with their deliberations and therefore I am going to make an order they should neither watch television nor listen to the radio tonight, but as they are going to be driven to and from court there are bound to be posters -- for all I know there will be posters. All I can do is give them a warning. Is there anything more you would like me to do, Mr Tansey?
MR TANSEY: My Lord, I would suggest that your Lordship at this stage does not tell the jury about it having been reported. Maybe there may be nothing at all that they will see on any newspaper hoarding. Otherwise it could place them in the awful difficulty, that they may feel that puts great pressure on them to continue with the original verdict, otherwise they may feel they will look absolute idiots. If you were to say nothing -- in fact to do as my learned friend suggested: namely that they should not watch the television, hear the radio, read a newspaper -- it may inconvenience them considerably but in all the circumstances it may remedy the very problem your Lordship is concerned about. That would be my suggestion to your Lordship.
MR JUSTICE BLOFELD: The difficulty about that is I am not certain it meets the realities of the situation, Mr Tansey.
MR TANSEY: The only reality which the jury has at present is that they have been into court, given verdicts and have gone out to reconsider the position. That is a reality of which they are aware. Whether they would be aware that the matter has been reported is a different matter. If they become aware that it has been reported, and your Lordship was to put that to them, that might create a problem in their minds that they do not want. As I have already put to your Lordship, if it is not brought to their attention at this stage, that problem may not arise.
MR JUSTICE BLOFELD: I am quite prepared to put it to them, not as a fact but say it may be that they will hear that something that passed between them will be in the papers, and for that reason I am asking them not to. Otherwise they will wonder why I am asking them not to, because I made no order like that last time.
MR TANSEY: I appreciate the inconsistency.
MR JUSTICE BLOFELD: I will tone it down and say “maybe”, rather than anything else, because I do not know what has been reported; all I know is this has come from the Press Association.
MR TANSEY: Would you direct that the jury should not read any newspapers and/or hear the radio or television?
MR JUSTICE BLOFELD: Yes, I will.
MR NUTTING: Mr Lord, I know it will be understood and I mention this only finally for the avoidance of any doubt that, whether or not partial verdicts were originally returned this afternoon, the fact of the matter is that whole verdicts in the case have not been returned. The fact is that of course the two verdicts that were not returned at the time when the jury came back first time related to a very small period of time at the very beginning between October 1990 and January 1991, count 1, and related to five pages of documentation found in the boot of the car, count 3. But the fact that those limited issues apparently remained at the time when the press published the verdicts of guilty on the two main charges would not of course permit any licence for the printing of any background material of any kind whatsoever, so there can be no misunderstanding about that. I mention it because, whether or not verdicts were originally returned that have now been revoked, the fact of the matter is full verdicts in the case were not returned at that stage and have not, in accordance with your Lordship’s order, been returned now. So no background story ought to appear at all.
MR JUSTICE BLOFELD: Very well, I agree with that. Let us have the jury back.
MR NUTTING: Mr Kelsey-Fry has pointed out that some members of the jury might be very anxious to watch the England football match this evening! Titters in court maybe, but I mention this quite seriously. Your Lordship might think that supervised watching of that football match could take place.
MR JUSTICE BLOFELD: I can see no harm in that whatever.
MR TANSEY: I agree.
(The jury returned into court at 5.36)
MR JUSTICE BLOFELD: Thank you for your note, members of the jury. Of course you can retire to a hotel and we will carry on tomorrow morning with the same timetable, if it could be arranged to get you a little earlier. Let us hope you do not have a hold up tomorrow.
The only matter I would like to mention to you is this. We dealt with the way that the indictment was put to your foreman earlier this afternoon and his answers. Of course those answers were given in open court and, as there was then a necessary delay till you wrote your note and you were reconvened, I have reason to suspect that, as we were in open court, the members of the press may have reported on those verdicts, not being aware -- because they could not possibly be aware -- that there was any problem about that. That being so, it may be for all I know that inaccurate reports will appear either in the press or other portions of the media.
I am consequently, in order to make certain you do not trouble yourself with matters that now are matters of history but may be inaccurate, going to make the following order for you. It will be slightly more inconvenient for you. I will order that you do not in fact read any newspaper between the time you leave this court and coming back tomorrow morning, so that there is no question of your being influenced by any report about this. I am equally going to say you must not listen to any radio; that equally might have a report on it. Equally you must not in fact watch any television.
There is however a silver lining to that; it has been agreed by the parties that, providing your jury bailiffs can switch on and off at the right moment so there is no news content, if any of you want to watch the England football match this evening -- that will have nothing to do with this case -- although I dare say some of you may not for all I know be fans and do not want to watch, but maybe some want to watch, so there is no exception. There is no need for you to feel you have to watch it!!
Please do not pay any attention -- I am making this an order so it is not just a request, an order that you read no newspapers; you do not watch the television or listen to radio -- save for that match. It may be as you are driven to and from the court for all I know there may be a poster which may indicate apparently Mr Smith has been found guilty. I can of course rely on you, I am quite certain, to put that entirely out of your mind, because you only try this case on the evidence in this court. It is an unusual situation and I am sure you will loyally abide by my directions.
MR NUTTING: Would your Lordship remind the jury that they must not discuss the case outside their full number and therefore must not discuss it till they come back.
MR JUSTICE BLOFELD: The same rules apply as last night. You can go back to your room and discuss while you are altogether but, once you leave this court, do not discuss it again. You are off duty then till you come back tomorrow morning. So please do not discuss it then between yourselves. You will need to have no difficulty if messages have to be sent to your respective homes. The jury bailiffs are well able to cope with that, and you can be quite certain messages will be sent. If it is a question of somebody not being on the telephone, arrangements can be made for somebody to go round and tell them. So do not sit there worrying that your family and friends do not know what is happening to you. We will meet again tomorrow morning.
(The jury retired to a hotel at 5.42)
MR JUSTICE BLOFELD: So that it is abundantly clear, I make no order about what is reported save for drawing the Press’s attention to the matter you raised about the background matters.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: And I hand you back this document. (Handed) There is no point in my having it further. Very well; we will not sit again tomorrow before ten o’clock.
(The case was adjourned until the following day)
Thursday, 18th November 1993
(In the absence of the jury)
MR NUTTING: It is I who have asked that your Lordship come into court at this juncture. The jury have but recently returned to this court from their hotel and of course they have now been deliberating for something like 13 hours. It is moreover several days since they heard your Lordship’s directions in law and were reminded of the evidence. My Lord, in my submission, there is something to be said at this juncture for reminding the jury, by having them back into court, that they can be told of any factual matter that they may wish to have their memories refreshed about; that they can have repeated to them or amplified any direction in law, and that your Lordship can review the evidence for the prosecution and for the defence on any specific count in the indictment.
It is clear from the note yesterday that they are approaching this case by way of the three compartments, the compartments in time identified in counts 1, 2 and 4, and separating out the evidence on those three counts. Particularly count 1 is not an easy task for them to perform. We can of course assist your Lordship on the evidence in relation for example to count 1 or indeed count 3 or indeed any other count, if your Lordship wishes. My Lord, it is in the light of that, in my respectful submission to your Lordship, there is something to be said for having the jury back and at least reminding them of their right in the three connections that I have mentioned.
MR JUSTICE BLOFELD: Thank you. Do you want to say anything, Mr Tansey?
MR TANSEY: My Lord, I would not agree with my learned friend. There is no indication from this jury that they need any assistance yet on any matter. I would for that reason submit there is no need for your Lordship to adopt or even consider that approach at this stage.
MR JUSTICE BLOFELD: Thank you, yes. My Nutting, I do not propose to have them back for the moment. There are a number of reasons for this. It was clear to all of us after yesterday that, by the time they were discharged to go to their jury room, some of them at any rate were looking as though they had had a long day and were fairly exhausted. Having urged the jury bailiffs to ensure they were back here by 9.30, I understand that they had the misfortune to be behind not one but two serious accidents, and only arrived here about quarter past ten, after a journey which started shortly after eight, which is not the best start in the world.
I therefore think that it is sensible to leave them to their own devices for a period to see if they can resolve their own difficulties without asking them anything. There is bound to come a time some time today when the Court is going to want to know how they are getting on, and the time is then going to come when at the very least the Court is bound to ask if they are agreed on any of their verdicts. In the view of what has happened in the past, I would like counsel to reflect on whether when that time comes -- which is certainly not straight away and it may never come, but it is worth I think just thinking about it -- whether in fact they should not warned by me and then sent away to get their thoughts in order before that question is put, because none of us want a repetition of what took place yesterday afternoon.
MR NUTTING: No, certainly not.
MR JUSTICE BLOFELD: I am inclined at the moment to think it might be sensible, at some stage getting on towards lunchtime, to say I want to find out what is happening and warn them that they will be asked if they have reached verdicts on any of the counts on which at least ten of them agreed at a convenient time during the afternoon. But of course if by then they have reached verdicts on all four counts -- which I may or may not add -- that will not apply. I do not think I shall put that in because I do not want anyone to think I am trying to put any pressure on the jury. I am not.
I am reluctant always to ask juries the type of questions you are trying to urge me to ask, for a variety of reasons. This is not a simple case. If I say, “Can I help you on any factual issue?” and they confer among themselves and say, “We are not quite certain about the scientific evidence”, I do not at all want to find myself in the position of having to give them something like a two hour dissertation on the scientific evidence, which might in fact be not what they really want and, without a dialogue which I do not like, it might in fact be confusing and just prolong matters.
If this were a short and simple case with one clear issue, I can see the attraction of what you are urging. In this type of case, I am very hesitant about it for the reasons I have given. There is inevitably the temptation to try and precis the evidence. In precising the evidence, there is the risk either that both sides are not fully put or that, in my anxiety to make certain the defence case is properly put, in fact too much weight is given to the defence case at the expense of the prosecution case. Consequently, I do not want to get involved in the facts with them unless they specifically ask about them.
As far as the law is concerned, the law in this case in essence is remarkably straightforward and I do not therefore see, unless they are confused -- and they have given no indication about being confused by the law -- that I am going to help them by mere repetition of the law.
MR NUTTING: Yes.
MR JUSTICE BLOFELD: What I have not ruled out of my mind at the moment is that, if and when the time comes that I say, “I think we are going to need to know how you are getting on”, I might at that stage simply say, “If there is any aspect of the case on which you feel I could help you, I would be more than prepared to do so. But I certainly will not do so unless you request me to do so in writing.” I do not think I would be prepared to go further than that.
MR NUTTING: I quite understand of course the way your Lordship is thinking. I have no means of knowing what is in the jury’s mind at the present time.
MR JUSTICE BLOFELD: None of us have.
MR NUTTING: Whether they have not remembered your Lordship’s directions in law in relation to the possibility of different verdicts on different counts, but what can be said, it seems to me, is that their approach to the case is more compartmentalised than the way in which the case was presented, either by the Solicitor General in his final address or by my learned friend in his final address, or indeed in your Lordship’s summing-up, and it was really because of that anxiety that I felt it appropriate to suggest to your Lordship that it may be refreshing the jury’s memory on the precise evidence -- it is not easy to find for example in relation to count 1 - and reminding them that they can have a rehearsal of that evidence if they like. But I see your Lordship is against me and so I say no more.
MR JUSTICE BLOFELD: I can see the attractions of what you are putting forward but I am against you because I feel, at this stage at any rate, I would prefer to leave things as they are, and I do not think it would help if I expanded on what I have already said. May I, while you are on your feet, say one other matter to get it on the shorthand note. Mrs Edith Ward, who is the senior jury bailiff and the supervisor, went with the jury last night to the hotel. I have seen her in my room since she returned to check all was well; all is well. I have specifically asked her in my room if she was satisfied that the jury did not see the television save to watch a portion of the football match -- but it was not all in fact shown on television. She has confirmed that that is all they saw on the television. She has confirmed that there was no opportunity for them to see television apart from that they have not had access either to radios or to newspapers. She is here to give that evidence on oath but it seems to me it is quite unnecessary for that course to be taken. She is present in court I believe.
MR NUTTING: Yes, she is. I respectfully endorse that.
MR JUSTICE BLOFELD: I asked her to be present in court when I said this so that everybody could know the situation.
MR NUTTING: Yes, thank you very much.
MR JUSTICE BLOFELD: I expect that is all I need say.
MR TANSEY: Indeed, thank you.
MR JUSTICE BLOFELD: I am only saying that because I would rather deal with it now so that everybody knows it. Very well, then we will adjourn for the time being.
(The jury returned into court at 12.31)
THE CLERK OF THE COURT: I will deal with the times on 16th November. The jury retired to consider its verdict at 11.50. At 5.20 the jury stopped deliberating and went to a hotel. On 17th November the jury returned from the hotel at 10.10 and resumed deliberating at 10.15. At 3.15 the jury was given a majority direction on two counts and retired at 3.19. At 4.14 the jury returned and were given a majority direction on all counts, and retired at 4.17. The jury stopped deliberating at 5.36 and went to a hotel for a further night. On Thursday, 18th the jury returned from the hotel at 10.10 and resumed deliberations at 10.15. The jury returned to court at 12.31 to deliver their verdicts. They have therefore been deliberating for 14 hours 59 minutes.
Would the foreman please stand. Members of the jury, have you reached verdicts upon which at least ten of you have agreed?
THE FOREMAN OF THE JURY: We have.
THE CLERK OF THE COURT: To my next question only answer guilty or not guilty: on count 1, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that the verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: On count 2, communicating material to another, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: On count 3, making a sketch or note, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Not guilty.
THE CLERK OF THE COURT: On count 4, obtaining or collecting material, do you find the defendant guilty or not guilty?
THE FOREMAN OF THE JURY: Guilty.
THE CLERK OF THE COURT: Is that the verdict of you all or by a majority?
THE FOREMAN OF THE JURY: Of us all.
THE CLERK OF THE COURT: You find the defendant guilty on counts 1, 2 and 4 unanimous, and not guilty on count 3?
THE FOREMAN OF THE JURY: That is correct.