The Justice Game

by Geoffrey Robertson

  It was a speech delivered with some passion. How could it amount to a serious criminal offence for a journalist to collect information from published sources, or – unless clairvoyant – to question a soldier who had asked to be interviewed and claimed to have something significant to impart? The prosecutor pointed out that under Section 1, they merely had to prove that the information might be of use to a potential enemy. Since it was obviously of use, it remained only for them to prove that it was collected for a purpose prejudicial to the State. An obscure sub-section of Section 1 says that a defendant’s purpose should be deemed prejudicial to the State if he is found in possession of ‘any note, sketch, photograph or document’ which relates to a prohibited place. A place is ‘prohibited’ if the government declares it to be prohibited, and its declarations over the years covered many well-known places mentioned or photographed in Campbell’s files, including the Post Office Tower at Euston, of which Campbell had some postcards. His possession of them meant that he was ‘deemed’ to have a purpose prejudicial to the State, unless he proved the contrary. The prosecutor made this point with relish: unlike any other crime, Section 1 cuts the golden thread of the criminal law: it presumes that the defendant is guilty until proven innocent.

  The lay justices were not lawyers. They sat stony-faced and overawed by the responsibility for protecting national security which had been thrust upon them. They committed A, B and C for trial on all counts. That was the cue for the prosecution to object to bail, especially for Campbell ‘now that you have had a full opportunity to assess the seriousness of these charges’. This was MI5 speaking, with the harsh demand that Duncan be confined to prison for the year which would inevitably elapse before the Old Bailey trial. The magistrates retired for a nail-biting half-hour, but returned to set the defendants at liberty as before. Advocacy had not resulted in the removal of a single charge, but at least it appeared to have convinced the Tottenham justices – or the unflappable Mr Pratt who advised them – that the skies would not fall if Duncan Campbell were allowed just a little more time to follow his journalistic career.

  The trial would not begin until September 1978; by which time we had to crack the prosecution’s Section 1 syllogism:

  Whatever is in the interest of SIGINT is in the interests of the State.

  Absolute secrecy is in the interests of SIGINT.

  Therefore, absolute secrecy on the subject of SIGINT is in the interests of the State.

  Absolutely secrecy had been necessary during the Second World War, when SIGINT was under British control and was used exclusively for the purpose of defeating the Axis powers. UKUSA was originally a partnership agreement, but by 1978 the four parties to it had ceased to be partners. The UK, Australia and Canada had become clients of the US, which bought control by expending US $15 billion and employing 120,000 personnel world-wide, to give America by far the major stake. The interests of SIGINT had become the interests of a US foreign policy which propped up some of the most tyrannical regimes against democratic challenge. Britain had trained and sent SIGINT operators secretly to be part of the US war effort against North Vietnam; had provided intelligence support for the CIA to destabilise the Allende regime in Chile and to shore up the Shah’s rule in Iran; and had taken a soft line on apartheid partly for fear of jeopardising communications facilities in South Africa. SIGINT was also used unlawfully by the Nixon regime to gather information on US residents living abroad (especially in the UK) whom it targeted as ‘enemies’. Did British SIGINT give any assistance? Issues like this were regularly raised in the American press: democratic debate over them in Britain had not begun, and would – if this prosecution succeeded – be stifled indefinitely.

  We were contacted by Jock Kane, a former GCHQ employee who unveiled for us evidence of widespread corruption and inefficiency. Major electronics suppliers were making fortunes out of SIGINT equipment: the secrecy meant that there was no proper accounting over their profits and no control over spin-off sales to dubious foreign dictatorships. Some of his examples were almost amusing (at Little Sai Wan base in Hong Kong, the Chinese cleaners who were for some years employed to remove the waste baskets of intercepts removed them to the Chinese Embassy). But the scale and detail of Kane’s accusations were alarming, and his credibility was unchallengeable (as Mrs Thatcher reluctantly accepted when his allegations were published some years later). What they proved was that beneath a blanket of unaccountable secrecy, insecure and even corrupt practices flourish. The syllogism had been cracked: absolute secrecy was in the interests of SIGINT officials, but not always or necessarily in the interests of the State.

  I spent much of the summer of 1978 discussing tactics, often on the telephone, with Jeremy Hutchinson – the most fearless and formidable advocate of the day – who was to lead Campbell’s defence team. He could not understand why the security services had not been prepared to accept my offer of a plea to Section 2 in return for dropping all the Section 1 charges. Shortly after we discussed whether we might renew it, he found himself invited to a dinner party at which, by the strangest coincidence, there appeared a very senior public servant who took him aside and said that the intelligence services would now be ‘very interested’ in any agreement which would avoid the need for a trial. So we went to see John Leonard – the sensible and fair-minded silk who had been brought in to lead the prosecution – and we found him more than happy to drop all Section 1 charges, in return for a single plea by all three of guilty to a Section 2 offence. For Campbell this was, on the face of it, a real bargain. Nobody had ever been acquitted of a Section 1 charge, and he was facing two of them. His liability to prison would shrink at a stroke from thirty years to two years. Moreover, the judge who had been allotted to the ABC trial was the fearsome Mr Justice Thesiger, quite capable of putting Campbell inside for many years if the trial resulted in his conviction on Section 1. Although he would probably jail them for a year under Section 2, the pressure on all defendants to accept the plea bargain was intense.

  Courageously, they decided to tempt fate. Their bandwagon – the ABC campaign – was rolling towards the Old Bailey and on it by now were several Labour MPs, the NUJ and other trade unions, and some leading writers and academics, as well as Buzby – a large fluffy bird who sat on telephone wires in television ads for the Post Office – and an enormous Chinese dragon which breathed fire and hissed ‘silly secrets’. The defendants called a press conference just before the trial to announce that they were going to fight, that they had been offered a plea bargain, and had turned it down. Sam Silkin had been defending himself for consenting to the Section 1 charges on the grounds that they were absolutely necessary in the national interest: the revelation that he was prepared to drop them in return for a plea to a lesser offence suggested that they were not necessary at all. So, on the first day of the trial, A, B and C arrived with the dragon at the head of a colourful procession of supporters waving their ‘Military Intelligence is a contradiction in terms’ placards and wearing their ‘Tell me an official secret’ badges, pinned to T-shirts reading ‘Buzby says: who’s tapping your phone?’ (Buzby was given the bird by the Post Office shortly after he became the mascot of the ABC campaign.) What was happening inside the Old Bailey was more dramatic, and of some historic importance.

  At our eve-of-trial conference, Duncan had expressed his mistrust of the security services. The publicity given to the plea bargain and its rejection would, he felt, infuriate them and make them want to convict him at all costs. He would not even put it past them to ‘vet’ the jury. Jeremy Hutchinson had taken a very firm line against this paranoia: jury vetting was, in England in 1978, quite unthinkable. He had never heard any suggestion that such a thing could happen. I mentioned that Viscount Dilhorne had once admitted to removing a communist from a jury trying an official secrets case, back in 1956. Dilhorne was Jeremy’s sworn adversary in past courtroom battles, and that night he lay awake, wondering. At 9 a.m. he strolled into the office of the chief clerk at the Old Bailey. ‘Has t
here been any – how shall I put it – interest in the jury panel for today’s trial?’ he enquired innocently. The clerk, honoured to receive a visit from the great advocate, explained that there had been no interest at all over the past six weeks, ever since the prosecution had applied in secret to Mr Justice Thesiger to have the names and addresses of all the jurors on the panel so they could be vetted for the ABC trial.

  ‘They’ve vetted the jury!’ Jeremy was in a fine old state in the robing room, half-enraged at the prosecution’s behaviour, half-excited by the mischief he would cause when he stood up in court to reveal it. We both instinctively felt it was an outrage, although we did not, at that moment, know exactly why. The word ‘unconstitutional’ sprang to my lips, but that is always a tricky notion in the courts of a country which does not have a written constitution. I had a new pupil starting that morning – Andrew Nicol, a lecturer at the London School of Economics – and I sent him urgently back to school to find some authority which might provide a basis for complaining about this unheard-of behaviour. It was a measure of Andy’s brilliance that he returned within the hour clutching the first and last word on the subject, Jeremy Bentham’s Elements of the Art of Jury Packing. This 1821 masterpiece – Bentham’s very first book – provided some historical sound-bites to orchestrate Jeremy’s impromptu condemnation of a prosecution which had taken a liberty not seen since William Pitt, who had introduced specially vetted juries to convict for sedition defendants who sympathised with the French Revolution. Bentham condemned a vetting system ‘which is become regular, quietly established and quietly suffered. Not only is the yoke already about our necks, but our neck is already fashioned for it.’

  Just how apt these words were became clear as soon as Jeremy’s angry denunciation of it detonated in court. John Leonard explained that the Crown had made a secret application to obtain the names of jurors ‘in sufficient time to complete the checks which are normal in cases of this sort’. Ah ha: ‘normal’ – just what had been going on ‘in cases of this sort’? Mr Justice Willis (a last-minute replacement for Thesiger, who had fallen ill) was non-committal – he knew nothing about it, and wanted to know nothing. ‘It is not a matter for me,’ he said, taken by such surprise that he forgot to ban the ensuing press coverage, which was massive. The public are always, and rightly, anxious at any suggestion of tampering with juries, and Silkin, under fire from all sides, was forced to own up. On taking office in 1974 he and Home Secretary Roy Jenkins had been prevailed upon by the security services to authorise a system of vetting jurors in cases of a class which ‘was impossible to define precisely’ but ‘when, broadly speaking, strong political motives were involved’. Between 1974 and 1978 no fewer than twenty-five cases had involved secret vetting of the jury panel, unbeknown to the defence. The whole system had been deliberately kept quiet, in the hope that lawyers and MPs would never find out. Silkin claimed to have drawn up ‘firm safeguards’ to ensure that the system was not abused, but these too were of course secret, so no one could ever know whether they were firm, or even whether they had been followed.

  The jury-vetting episode provided further evidence for the uncomfortable proposition that civil liberties are less secure in the hands of Labour politicians, nervously striving to prove their responsibility by bowing to pressure from the police and the security services, than of dyed-in-the-wool Conservatives who have no need to prove their law and order credentials. The system, the establishment of which had been deliberately withheld from public debate, involved a secret prosecution application to the trial judge, who would order court officials to hand to Special Branch a list of the names and addresses and occupations of jurors on the panel for a particular trial, so that ‘checks’ could be made with police and security records to see whether any juror was listed as having strong political views, or any hostility to the State (e.g. by having lodged a complaint against the police). Prosecuting counsel could then challenge the juror, with no reason given. Any information suggesting the juror would be hostile to the defendant would never be supplied to the defence, because that would give the secret vetting game away. The system authorised by Jenkins and Silkin was unfair in this quite elemental way, and they should have realised it. The historian E P Thompson, who had joined the defence campaign, responded with a memorable defence of the jury:

  Time and again, when judges and law officers, mounted on high horses, have been riding at breakneck speed towards some convenient despotism, those shadowy figures – not particularly good or especially true – have risen from the bushes beside the highway to fling a gate across their path. They are known to historians as the Gang of Twelve.

  Turning to Silkin and his guidelines (hastily made public in an attempt to defuse the criticism), Thompson shredded them both:

  Mr Attorney General, what precision is there in these ‘guidelines’ you served out secretly to the police? What is a guideline? Is it a rule at law or is it a nudge-nudge be-careful-how-you-go? What officers have you appointed to see that these ‘guidelines’ are observed? What sanctions have you imposed against transgressions? How are we to know if a case be of an ‘exceptional type’ or not? What rule of law may hang upon the phrase ‘it is impossible to define precisely’ the cases to which it might refer? If law is now to rest upon such nice terms as ‘broadly speaking’, who is to speak and how broad may that speech be? If a person be deprived of his juror’s rights (which I had once supposed to be a right and duty inherent in a citizen) because of ‘strong political motives’ and ‘extreme political convictions’, who is to determine whether his views be ‘strong’ or ‘extreme’? Yourself? Or Tony the DPP? The prosecution? Or the police? Whichever it may be, you are taking a liberty: the liberty of the people.

  Heady as the jury-vetting controversy was, it did not impact directly on the trial. John Leonard opened it by conceding that Section 1 was normally used in ‘spying’ cases, and that ABC’s offence ‘came at the lowest end of the Section 1 scale’ – a retreat from the more extravagant approach of the prosecutor at Tottenham Magistrates’ Court. But an offence was made out if their purpose was prejudicial to the safety or interests of the State, and ‘here, the prejudicial purpose is Campbell and Aubrey’s purpose of publishing or passing on Berry’s information’. The prosecution case against Campbell on the collection charge was that ‘when you look at the collection, it goes beyond the ordinary inquisitiveness of a journalist . . . the defendant’s conviction is essential to the safety of this country within the NATO alliance . . . if information of this kind is collected, it will affect whether one sleeps well in one’s bed at night or not.’ Campbell was a ‘highly qualified and very able scientist’ who had ‘taken the pieces of our defence jigsaw puzzle, and put them together’. Since much of his information related to ‘prohibited places’, the law deemed him to have collected it for a prejudicial purpose unless he could prove the contrary. His behaviour, when invited as a journalist to attend the launch of new defence products, was ‘to ask questions which he knew perfectly well that the manufacturers were not allowed to answer. He was told these questions could not be asked, yet he went on persistently to ask them!’

  It was an extraordinary theory, which proceeded on the basis that there existed an acceptable threshold of journalistic inquisitiveness which Campbell had exceeded by virtue of his ability and expertise. The prosecution could not define the point at which the bulging Campbell files had passed from legitimate research into evidence of the commission of a serious offence, and its case soon came apart under Jeremy Hutchinson’s relentless cross-examination. The witnesses were all from the bases which Campbell had identified in his research as having a defence communications function, and it transpired that all of these ‘secret’ bases and facilities had been identified in some published source as possessing precisely that function – many of them by large signs (the Regimental Display Board) posted outside their perimeter fences. Their function had often been discussed in local newspapers and in regimental magazines and occasionally in
the national press. Their aerials, which gave away that function to any experienced observer (including KGB analysts who saw them on satellite photographs) were also identified on Ordnance Survey maps. There was regular merriment in court when we produced a ‘Hazards Map’ issued by the Civil Aviation Authority, which showed the location and by inference the function of all the prosecution’s ‘top secret’ sites: it was routinely issued to all commercial airlines, including Aeroflot. Each witness was solemnly required to identify his secret base on ‘The Aeroflot Map’. When told, at the close of a cross-examination which had featured dozens of public references to the role of his unit, that it was being suggested that this role was a State secret, most were driven to agree that the suggestion was, in Jeremy’s words, ‘absolutely idiotic’.

  But still they came, from places as far afield as Bude and Chicksands and Orfordness and Edzell in Scotland, to identify their units in Campbell’s cuttings. Many of these were ‘joint facilities’, ostensibly operated in partnership with the US, although this was a fiction: they were operated entirely by the US. Their lone UK officers, when called to testify, admitted they had no idea what the Americans were doing, and it was no part of their duty to enquire. ‘I am the only British officer on the base. I do not know what it does. I do not know details of its operations. I play no part in them. I am completely isolated. My US colleagues do not speak to me,’ said the RAF officer from ‘RAF’ Edzell. ‘I am not involved in the running of the station. That is done by high-ranking American officers. I don’t know the details – I’m only the landlord’s representative,’ said an RAF group captain whose main job was to raise and lower the British flag outside another ‘joint facility’. The officer who came from the RAF establishment at Orfordness was very frank: he said a recent decision to shut down new equipment at the base at a cost of £40 million was ‘of the greatest possible public interest’. The secrecy surrounding the base ‘can be very annoying. Speaking as a human being, I agree it is absolutely idiotic.’