In camera injustice

Michael John Smith

Lobster Issue #52 (Winter 2006/7)

In camera injustice

Those who remember my case will be aware that in 1992/93 I was portrayed as a major KGB spy, featuring on the front pages of several national newspapers. My name later appeared in The Mitrokhin Archive, as did Melita Norwood – the ‘Granny Spy’ – but unlike her I have been largely ignored by those commentating on the history of espionage in the UK. In this article, I would like to familiarise Lobster readers with some key elements of my case, and to raise questions about the official Prosecution account. I maintain that I did not receive a fair trial, and this is why I am still engaged in legal action to have my case reopened.

I was arrested on 8 August 1992, and subsequently convicted at the Old Bailey on 18 November 1993 on three of the four counts in the indictment, all related to espionage offences under the Official Secrets Act. The sentence was 25 years imprisonment, which was later reduced to 20 years by the Court of Appeal in 1995, on the basis there was no evidence whatsoever to indicate what material had been involved in two of the counts.

The sensitivity and value of scientific documents was an important part of the trial, taking up three weeks in court and involving twenty expert witnesses. The other subject on which expert witnesses were called concerned the tradecraft used by the KGB when running agents in the UK. These two aspects of the trial were held in camera, which meant about half the eight week trial was hidden from public scrutiny.

The phone call

A useful starting point is the phone call made to my home in Kingston-upon-Thames on the morning of 8 August 1992. An MI5 officer made the call from a house nearby in Ham, and my wife answered the phone.

Pamela Smith: Hello.
Caller: Hello, is it Michael Smith?
Pamela Smith: Er, he lives here, who’s calling?
Caller: This is George.
Pamela Smith: Who?
Caller: George.
Pamela Smith: Just one moment.
Michael Smith: Hello.
Caller: Hello, is it Michael Smith?
Michael Smith: Yes.
Caller: Hello, I am George speaking. I am colleague of your old friend Victor. Do you remember him?
Michael Smith: Yes.
Caller: Ok, that’s good. Now listen. It is very urgent for me to talk to you.
Michael Smith: Yeah.
Caller: You understand?
Michael Smith: Yes.
Caller: Ok, Ok, but I think maybe we do this another way.
Michael Smith: Ok.
Caller: You understand?
Michael Smith: Yeah.
Caller: Ok. I think there is telephone at the corner of Durlston Road and Cardinal Avenue. You know this?
Michael Smith: Yes, yes.
Caller: Ok, you can maybe be there in 15 minutes?
Michael Smith: Ok.
Caller: Yes,
Michael Smith: Yes.
Caller: Ok. This is corner of Durlston Road and Cardinal Avenue.
Michael Smith: Ok.
Caller: 15 minutes, very important.
Michael Smith: Ok.
Caller: Ok. I ring you there. Bye, bye.
Michael Smith: Bye.

The caller imitated a foreign accent, variously described as foreign, East European or Russian; although my wife said she thought he was German (her first husband had been German). I did actually know a Spaniard called Victor, so the reference to that name did not immediately make me suspicious. I was not feeling particularly responsive to the caller as I was in the middle of making love to my wife when the phone rang, and we had been out late the previous night at a Greek restaurant, leaving me slightly hungover from too much wine. So, I was rather confused over what the call was about, which was why I just mirrored what ‘George’ was saying.

Viktor Oshchenko

The significance of the names Victor and George, used in the phone call, was not apparent that morning of my arrest. Not until many months later, in June 1993, did it become clear why those two names were important: when the Prosecution revealed they would be calling a new and anonymous witness to my trial. This witness, a US citizen referred to as Mr. E, had worked as a salesman in a hi-fi shop in Tottenham Court Road in December 1978 when the KGB officer Viktor Alekseevich Oshchenko spotted him as a potential agent and recruited him. After Oshchenko returned to the Soviet Union in 1979, Mr. E was handled by another KGB officer, Yuriy Gennadyevich Pokrovskiy (later expelled from Britain), who called himself ‘George’.

My arrest was linked to the defection of Oshchenko, who was a KGB Colonel at the Russian Embassy in Paris between 1985 and 1992 before he came to Britain. The Prosecution claimed I was recruited to the KGB by Oshchenko in the mid-1970s, when he was based in London, although no evidence has ever been produced to show I met him. Stella Rimington, referred to as Mrs C during the trial (she was then MI5 Section Head in charge of studying hostile intelligence agencies), said under oath there was no evidence I had ever met anyone in the KGB. Rimington said Oshchenko arrived in Britain on 29 August 1972 to work at the Soviet Embassy as a 3rd Secretary, but he was identified as an agent-running KGB officer within 12 to 18 months. He was allowed to remain in Britain for a further five years until his duties ended, on 22 September 1979.

During the police interviews that followed my arrest, there was a strong hint that the chronology of events was different. My interrogator, a senior Special Branch officer, asked me if I was aware of the archive leaks that had taken place in Russia. At that time I did not understand what he referred to, but over seven years later it emerged that Vasili Mitrokhin had decided to defect some months before Oshchenko. So was it Mitrokhin or Oshchenko that had led to my arrest?

Judge John Blofeld agreed that it was admissible for the Prosecution to tell the jury that the ‘Victor’ mentioned in the phone call no surname given could be assumed to refer to Viktor Oshchenko. This allowed the prosecution to present a whole raft of speculative assertions about my past, going back to the 1970s, and to suggest that events associated with Mr. E were very similar to events in my own life. These similarities were very tenuous, but the main point the prosecution wished to make was that I had gone to Oporto (Portugal) on a KGB training mission.

Mr. E and the Portugal connection

Mr. E was born in Yorkshire; his mother was an English nurse and his father a retired US Army Colonel. He had spent some time in the US Navy, leaving as a Petty Officer (electronics technician (radar) III class), and it seems the Russians were interested in Mr. E’s background as well as his relatives: his father-in-law worked with one of the US House of Representatives subcommittees. One reason for targeting Mr. E was the KGB’s plan to groom him as a long-term ‘mole’, so he could work against ‘the main enemy’ when he returned to the United States. Mr. E was put on the KGB’s payroll, and received a regular salary equivalent to the monthly mortgage payments on his home.

While working for the KGB, Mr. E attempted to procure some sensitive integrated circuits, which were proscribed to the Russians under COCOM. He was also trained in KGB tradecraft methods (such as making contact via telephone kiosks) and he sought to improve his professional position with Russian help and money, which might gain him access to information useful to Russian Intelligence. One of Mr. E’s training mission’s was a trip to Lisbon on the weekend of 21/22 July 1979, to deliver a sealed package to a KGB contact.

The Prosecution used Mr. E’s Portuguese trip to claim I did the same in August 1977, when I was on a camp-drive holiday with a friend. I was in the habit of saving old maps and leaflets from my holidays, and unfortunately I retained a marked map given to us by a campsite attendant. This map indicated three bus stops we had used to travel to the campsite, and a tourist restaurant called O Fado, where we enjoyed an evening of Portuguese food and entertainment. Both Oleg Gordievsky and Stella Rimington claimed this map was typical tradecraft used when a KGB officer meets an agent.(1)

In early May 1980, Mr. E reported his activities with the KGB to the US embassy (London), and was then run by MI5 for some months. Mr E last saw Oshchenko in 1979, and he met him about 10 times, yet in June 1993 Mr. E was able to identify Oshchenko from a photograph, although it was stated by American and British Security Service personnel that Mr. E had an ‘atrocious’ memory. Mr. E admitted he enjoyed reading books about espionage and he offered to work as a double-agent.

Oshchenko the missing witness

With so many references to Oshchenko during my trial, the jury recognised his importance in the case. It was a surprise to those following my trial, as well as to the jury, when it became apparent that Oshchenko was not a Prosecution witness. The jury were also clearly disturbed that the Prosecution had not supported their assertions with evidence, and near the end of the trial the jury sent 2 notes to the judge:

(i) After the Prosecution had presented their case and near the end of the Defence case, on 5 November 1993, they asked: ‘What evidence is there that Smith was recruited to KGB by Oshchenko?’

(ii) Two hours into their deliberations on 16 November 1993, they asked: ‘Why is there no explicit statement admissible in court, from Victor accusing Smith of spying for the Russians?’

The jury were right to have their doubts because Stella Rimington accepted, under cross-examination, that no espionage equipment had been found in my possession: there were no cameras, microdots, secret writing materials, code books, radio transmitters, secret containers (such as false bottomed briefcases), etc. Nothing was found that would indicate I was operating as a professional spy.

However, in the judge’s ruling on evidence admissibility, this phantom witness Oshchenko allowed the Prosecution to present a list of prejudicial points and assertions which undermined my credibility and character in the jury’s eyes:

I was a member of the Communist Party in the early 1970s.
Oshchenko was a KGB officer in London in the 1970s and had defected in 1992.
Oshchenko recruited me as a KGB agent in the mid 1970s.
Oshchenko trained me in tradecraft techniques.
Oshchenko told me to break with left-wing activity.
Oshchenko directed me to find work on government projects.
I worked on a secret weapons project at EMI in the 1970s (not part of the charges).
The KGB paid me money in the 1970s.
I had a holiday in Oporto in 1977, allegedly a KGB training mission.
Portugal was used by the KGB for training agents.
I lost my security clearance at EMI in 1978.
I attempted to conceal my previous CP membership to regain security clearance in 1979/80.
The KGB put me ‘on ice’ until 1990.

Dirty tactics

Holding my trial in camera effectively prevented the public from knowing that my case involved no secrets, and that a KGB connection was speculative rather than proven. This was also a hidden message to the jury that the evidence was so potentially damaging to national security that it could not be revealed in public. Although the charges related only to the period 1990-92, the Prosecution used character assassination as a tactic. Two examples illustrate this:

(a) It was claimed I lied on a job application form before joining EMI in 1976. This was completely untrue and no evidence was produced, but the jury were given the impression that I had obtained the job illegitimately.

(b) I had two private meetings at EMI and the MoD to discuss my security clearance. These meetings were recorded without my knowledge and the original tapes destroyed. However, transcripts of these meetings were analysed in court and used to denigrate my character. The meetings were held on 12 November 1979 and 10 June 1980, i.e. over 12 years before my arrest.

All my lawyers’ telephones were bugged, from the time of my arrest until after my trial ended. This meant my lawyers had to communicate clandestinely, to avoid the Prosecution discovering the Defence team’s strategy.

Oleg Kalugin, former Head of Soviet Counter Intelligence, was about to be the key Defence witness when he arrived at Heathrow on 30 October 1993. Kalugin was arrested at the airport and interrogated for hours on suspicion he may have been involved in the 1979 Georgi Markov ‘umbrella murder’ in London. Although released without charge, the resulting bad publicity destroyed Kalugin’s credibility, and my lawyers decided not to call him. Kalugin’s evidence would have been that my case did not have the hallmark of the KGB.

MI5 entrapment?

I had been a member of the Communist Party of Great Britain (CPGB) between 1972-5, but I became disillusioned with their politics and resigned. I was later given security clearance and worked on defence projects at EMI Electronics until May 1978, when I lost my clearance and was moved to another part of the company. I was unaware I had lost my security clearance, but in early November 1979, shortly after starting a mortgage and buying a flat, interest rates had rocketed and I faced redundancy at work. When I learned of my lost security clearance, I tried unsuccessfully to get it reinstated to improve my employment prospects. But after 1980 my work situation stabilised, and I simply got on with life, assuming I had lost security clearance forever. I had no idea when I joined Hirst Research Centre in 1985 that I was granted a low level of security clearance.

Throughout the 1980s I had the distinct feeling I was under some sort of covert surveillance, through my awareness of odd phone calls, and strangers acting suspiciously near my home. Later, following my trial, it was admitted that MI5 had put me under surveillance from 1977 until 1992.

In January 1990 I was lured into an industrial espionage operation by a man calling himself Harry Williams. He was very persuasive and bribed me with £20,000, at a time when I was in financial difficulties. The, money was given to me in brand new, large denomination £50 notes, in sequential serialised batches; this money was traced to several UK and New York banks. Although the money was apparently traceable, the Prosecution at my trial said it was impossible to link it with a KGB source. I believe there is a distinct possibility this money came from MI5 or Special Branch, as other evidence indicated the KGB would only deal in small denomination, used notes.

I was directed to meet Harry Williams at sites known to MI5, and which Oleg Gordievsky had previously used to meet or leave messages for agents. I even kept a letter that Williams posted to my home (which was used in evidence). The suspicious circumstances of my surveillance and arrest make me believe everything had been planned by MI5, and that Harry Williams was a MI5 officer pretending to be involved in industrial espionage.

Stella Rimington said that, as my meetings with Williams were covertly organised, this was sufficient proof that a foreign and hostile intelligence agency was behind it. Rimington also said MI5 was not concerned with industrial espionage, nor with the operations of ‘friendly’ intelligence agencies.

Gordievsky was briefed about my case on 19 August 1992, when he was given a typed summary of MI5’s interpretation of the facts in the case. He agreed to help the Prosecution, and completely accepted MI5’s version of the story. Gordievsky said he recognised rough notes I made, the so-called ‘trade-craft’ notes of my meetings with Harry Williams, as very familiar to him. Although individual details in the notes could be used by anyone, or any intelligence agency, Gordievsky said that, taken as a whole, he recognised the pattern as typical of the KGB.

A puzzling aspect of Gordievsky’s position was his claim he had never heard of me – despite the Prosecution case that I worked for the KGB from the mid-1970s to early 1990s. Gordievsky was the KGB Rezident in London from 1982-5, and he claimed to have exposed all their agents when he defected in 1985. His answer was that he had not known all the KGB’s spies in Britain, as they didn’t keep a list of them. This does not seem credible, as Oshchenko told MI5 the KGB only had about five agents at any one time in London in the 1970s.

In court, Gordievsky’s reliability was questioned by the Defence: he was known to exaggerate and is well-known for seeking publicity. He has also been a public supporter of MI5 and MI6, and he admitted he was paid a pension of £1,500 a month after he defected.

The Defence called an ex-CIA Station Chief, referred to as Mr P, as a witness at my trial. Mr. P was an expert in tradecraft skills, and he disagreed with Gordievsky and Rimington, saying his opinion was my case could not be linked with the KGB it was too amateur an operation and he listed 14 points which indicated it was unlikely I had any involvement with the KGB. Bill Colby (former Director of the CIA) and ex-CIA officer Philip Agee also agreed it would not be possible to say that the tradecraft in my case was exclusive to the KGB. The CIA used the same techniques, as might any other intelligence agency, or anybody involved in clandestine activity other than espionage. There is also the possibility that the tradecraft could have been used as a ‘false flag’, to give the impression that a foreign intelligence agency was involved, and this could have been set up by MI5 or some other British agency.

Following my arrest, the 4 days of police interviews seemed to be leading to charges of spying during 1976-8, when I worked at EMI Electronics on the project to develop a new trigger mechanism for Britain’s free-fall nuclear bomb (WE-177). However, I was never charged with any offence relating to the WE-177 project, and it played no part in my trial in 1993.

The Prosecution realised there was no evidence to charge me with offences at EMI; and so the focus switched to my work at Hirst Research Centre, because a small quantity of old GEC-Marconi documents had been found at my home. With my low level of security clearance, and little access to anything sensitive, it was not surprising that the documentary exhibits used to convict me were largely unclassified and non-sensitive, and not even of military significance.

The Defence expert, Dr Eamonn Francis Maher, proved that most of this material was not sensitive, and much was already in the public domain. However, the Prosecution persisted in presenting a mass of expert evidence, which could only have confused the jury.

The most significant item found in my possession was one 10 year-old document, dated 8 January 1982 and marked ‘restricted’, the only classified material involved in the whole of my case. This document did not identify its exact use, but it bore the name and address of Marconi Space & Defence Systems (Stanmore), who had produced the document. The ‘restricted’ document had been issued to a colleague of mine, F.S. McClemont, but strangely neither Mr. McClemont, nor the other 15 recipients of the document, were asked to give any evidence about it. Surprisingly, no witnesses from Marconi were asked to comment on the use or significance of this document.

No evidence was disclosed to the Defence about the ‘restricted’ document for 14 months after my arrest, and the Prosecution gave the impression that it would not play an important part in their case. Then, in an apparent ‘ambush’ tactic, the Prosecution suddenly revealed undisclosed evidence through MoD scientist, Professor Meirion Francis Lewis. Professor Lewis was the only Prosecution witness to give significant testimony on the ‘restricted’ document; and he claimed he could personally identify its use on Britain’s ALARM missile.

Professor Lewis also claimed the document would enable an enemy to jam ALARM, which would put British lives at risk. He further claimed that Saddam Hussein had switched off his radar systems during the Gulf War (1991) due to ALARM. Professor Lewis said Marconi’s Technical Director had personally confirmed the document’s link to ALARM in a telephone conversation on the morning he gave evidence. No ALARM expert was used by the Prosecution, and, as an electronics engineer myself, I doubted Professor Lewis’s deductions. After conducting my own research I have been able to prove that many of Professor Lewis’s claims are incorrect.

Under cross-examination, Professor Lewis admitted he was not an expert in missile technology, nor in jamming, and when he was in danger of revealing too much information about the ‘restricted’ document, Dr. D. I. Weatherley (a senior MoD observer present throughout the trial) made the Prosecution stop the cross-examination. The reason given was that the questioning was going into secret matters, although the trial was held in camera so that such issues could be discussed. This left some major questions about Professor Lewis’s evidence unresolved.

Defence expert, Dr Maher, identified that the ‘restricted’ document was in fact a specification for a SAW filter component, which he recognised as a commercial product on general sale and listed in a GEC sales catalogue.

It is suspicious that the Security Commission’s report into my case (HMSO, Cmd 2930, July 1995) states of the ‘restricted’ document that: ‘at the time the document was created it was not specifically linked to a particular weapons system’ (Annex A.5). I have tried unsuccessfully, including a parliamentary question from Mr. Andrew Mackinlay M.P., to get the MoD to confirm that the restricted document was used on the ALARM missile. The document is now 24 years old, but I am still waiting for official acknowledgement that the evidence given at my trial was correct.

Conclusion

MI5 was implicated in entrapment operations in the spy cases of Rafael Juan Bravo (2001) and Ian Parr (2002). Within days of the arrest of those two individuals, the military projects involved in their cases were quickly identified and published in the media. Although these cases involved highly classified documents and current projects – compared to low classification and old documents in my case – Bravo’s sentence of 11 years, and Parr’s of 10 years, were half the sentences given to me.

In 1998, the ex-MI6 officer, Richard Tomlinson, said he saw an internal MI5 report, which concluded my case did not involve damaging secrets. Mr Tomlinson’s view was that MI5 had exaggerated the alleged damage in my case in order to secure a long sentence and to cultivate the mystique of the importance of their work.

What Richard Tomlinson had to say is interesting, because he was confirming MI5 had come to the same conclusion as that arrived at in the original MoD damage assessment report into my case (dated 7 March 1994), prepared for the Security Commission’s investigation by the MOD. This said that the level of damage was assessed as ‘not serious damage’. It was surprising therefore, that at my appeal in May 1995 (some 14 months later), the MoD suddenly changed their assessment to one that ‘serious damage’ had been caused, and that it was claimed the ‘restricted’ document should have been classified ‘secret’ not an issue mentioned at my trial.

Stella Rimington said Oshchenko was not a double-agent prior to his defection in July 1992, and neither did he pass information to the Security Services before his defection. This may be true, but her testimony has been contradicted by claims made in several books, which indicate that Oshchenko had been working for British Intelligence long before he defected. Perhaps this was the reason why Oshchenko has disappeared from view, and why he was not a witness at my trial?

Notes

[1] The trip to Portugal was analysed in ‘The strange case of Michael Smith: spy or tourist?’ in Lobster 40.