The Justice Game

by Geoffrey Robertson

  The first Section 1 charges hit all three defendants soon after, and related entirely to the conversation they had taped themselves having with each other. The transcript was made up of long questions by Duncan Campbell – Aubrey said barely a word – and unsensational answers by Berry, who clearly knew much less than his interlocutor. He did describe the boredom of sitting for hours twiddling wireless dials at Ayios Nikolaos, as a member of 9th Signals Regiment, but most of what he said might have been written unexceptionally on postcards home. He did mention how he had tuned into tank traffic on the Iran/Iraq border, and how he had once heard a cry to Allah by an Egyptian soldier as his tank was hit by an Israeli shell during the seven-day war. He described his indoctrinations into secrecy, which could hardly themselves be secret. ‘What you see here, what you do here, what you hear here, when you leave here, let it stay here’ was not a mantra that would excite readers of Time Out. The only piece of information that was rationally classifiable as secret, and then only because it might cause diplomatic embarrassment if published, was Berry’s confirmation that his base intercepted communications emanating from NATO partners.

  This would not have come as any surprise to the States concerned, but Berry had without doubt breached his service undertakings and had committed the Section 2 offence of communicating official information without authorisation. But his information was seven years out of date and his sentence for imparting it should have been short or suspended. Section 1 of the Official Secrets Act, however, is the most draconian law on the British statute book. It provides up to fourteen years’ imprisonment for persons who collect or communicate ‘information directly or indirectly useful to a potential enemy’ if they did so for ‘any purpose prejudicial to the State’. Section 1, uniquely in English law, has oppressive provisions which reverse the burden of proof, and allow guilt by association. It was used against traitors like the atom spies and Gordon Lonsdale and George Blake, agents of a foreign power whose activities put countries, as well as lives, at risk. Section 1 had never been intended for use against journalists – as previous Attorney Generals had assured Parliament in 1921 and 1949. Why was a Labour government breaching those assurances in 1977?

  The mystery deepened with the addition, a few months later, of a new Section 1 charge against Campbell alone, relating to the files found in his flat in Brighton. Like any journalist who specialised in military communications and civil defence, Campbell had collected vast quantities of information, all from published sources. Over nine hundred pages had been culled by MI5 from his files, and were alleged to be of ‘direct or indirect’ use to a potential enemy. So they were – in the sense that an A–Z of London would be of use. None of it related to debriefing of people in sensitive employment, and there were no documents stolen or obtained without authorisation from official sources.

  The real problem, it turned out, was that Duncan Campbell was a prodigy: give him a few published sources (a telephone book, an Ordnance Survey map and a regimental magazine) and he could tell you secrets which not even the cabinet was supposed to know. There was no stopping him, short of either recruiting him into the intelligence services or putting him in jail. MI5 had chosen to do the later, by charging him with collecting information (from published sources) of direct and indirect use (like most information) to a potential enemy, for a purpose (he might publish it in Time Out) prejudicial to the State. Effectively, Campbell was put on trial for being a dangerous maverick, a defence journalist with analytical ability who worked without fear of ‘D’ notices. What the security services wanted to put in solitary confinement was Duncan Campbell’s brain.

  It took some time to understand the policy behind this prosecution. I could well see that Campbell was an irritant, one of a new breed of post-Watergate journalists who did not accept the unilateral right of the State to define national security. What made him especially irritating was that, unlike others of this ilk, he had the technical expertise (first-class honours in physics, a Master of Science) to see through official press releases. Defence journalists in this period rarely looked beyond the boundary wire of their ‘D’ notices and obediently summarised press releases from the Ministry of Defence. There was virtually no informed mainstream coverage of the security services other than by Chapman Pincher, who scavenged leaks from Peter Wright and other irresponsible reactionaries within the service. Campbell, on the other hand, was young and left-wing. He was an altogether more suitable candidate than Pincher for an exercise designed to prove that such critical journalism was as inimical to the safety of the State as the treason of those who collaborated with the enemy. The theory behind the Section 1 charges was that journalists could do as much damage as spies. That is, at least theoretically, true – but the difference, of course, lay in the intention with which they did it. Section 1 did not require the prosecution to prove any intention to help the enemy, or any hostile intention at all.

  Since none of the three had any apparent defence to the Section 2 charges – Berry had volunteered official information and Aubrey and Campbell had received it on tape – it should have been possible to negotiate a ‘plea bargain’ with the prosecution. If the defendants pleaded guilty to Section 2 at the magistrates’ court, this would limit their sentence to three months’ imprisonment or a measly £50 fine. The benefit to the government of such a course was that it would save large amounts of public money, and more importantly (if its case had any logic) it would save any secret beans being spilled in the course of a lengthy and probably intemperate trial. When I canvassed this possibility with the prosecution, however, I received this chilling response: ‘That course might be acceptable for Berry and Aubrey. But the security services want Campbell in prison for a very long time.’

  Sam Silkin, the Attorney General, had given his personal consent to the laying of Section 1 charges against these journalists. He was not the only liberal to be spooked by MI5. The government’s action went uncondemned and virtually unreported in the national press, which appeared entirely unconcerned by this unprecedented attack on its own freedom. This was thanks to a ‘whispering campaign’ by MI5 through its editorial contacts on Fleet Street and in the BBC. Duncan Campbell was slandered as a communist, or as a fellow traveller happy to ‘put lives at risk’. Editors who should have known better fell for this, and when the Sunday Times gave Duncan some freelance employment to tide him over after his arrest, its executives were informed by a cabinet minister that he was a ‘dangerous subversive’. Come the committal, however, the State would have to lay its cards on the table: the defendants waived reporting restrictions, so that the media could appreciate how threadbare the case against them really was.

  The committal took place in November 1977 at Tottenham Magistrates’ Court. The prosecution opened by caricaturing Campbell as a ‘thoroughly subversive man who was quite prepared to publish information which was secret’. It went on to claim that his activities could ‘even put at risk lives in Northern Ireland’ – a wild accusation for which no evidence was ever produced and which was never repeated at the subsequent trials. He was alleged to have collected information of use to a foreign power, although the only foreigners with whom he had corresponded were liberal think-tanks in Washington and a Peace Research Institute in Oslo. At my insistence it was eventually conceded that there was ‘no suggestion that he was in the employ of a foreign power’. Duncan’s mother, who had worked throughout the war code-breaking at Bletchley, was deeply distressed by the outline of the case against her son. As I comforted her, I realised for the first time just how easily governments and their lawyers can cry ‘lives at risk’, the formula used eighteen years later on the Public Interest Immunity Certificates in the Matrix Churchill trial.

  On the second day of the committal a gigantic horse-box was drawn up at the back entrance to the court, alleged to contain a personage of such secrecy that no mortal could gaze upon him, or learn his name. He was to be known only as ‘Lieutenant Colonel A’, and his expert evidence would prove that ABC had bee
n engaged on an enterprise severely damaging to national security. The notion that a witness is so significant that the very revelation of his name would imperil the realm is calculated to impress the court. It did not, however, impress the court clerk, a tall, immaculate gentleman of weary manners and surprisingly stern attention to legal detail. Mr Pratt was a Dickensian figure, but a good Dickensian figure, I felt, as he narrowed his eyes at the prosecutor and drawled: ‘What’s your authority for keeping your expert’s identity a secret?’ The prosecution was taken aback: its ‘authority’ was the interests of national security, which would always justify secrecy. But how could I cross-examine Lieut. Colonel A if I did not know his background, his publications, his postings – indeed if I could not even see the man, since it was proposed that he give evidence from behind a screen? The Bench retired, with Mr Pratt to ‘advise them on the law’, and came back looking as though they had just lost their OBEs. ‘Solely on the advice of Mr Pratt and with great regret’ they ruled that a court had no power to receive expert evidence from a voice behind a curtain.

  After a few days’ adjournment, another letter in the army alphabet was produced, Colonel ‘not quite so secret’ B. His real name might just be disclosable to the defendants and their lawyers, although certainly not to anyone else. The horse-box returned, with its horse of a different colour. There was a portentous silence in court as the clerk was solemnly handed a slip of paper with the witness’s real name. It read simply ‘H A Johnstone’. I approached the dock and handed the slip to Duncan. ‘Hugh Johnstone,’ he whispered with a grin. ‘I’ve got masses of information on him.’ And so he had, produced in the next few minutes from a bundle of magazines at his feet. It very quickly transpired that the ultra-secret Colonel B was until recently the well-known and popular commander of the 9th Signals Regiment at Ayios Nikolaos. His doings featured constantly in The Wire, the regimental magazine available at many public libraries and on subscription to anyone, including the KGB. There were detailed records of his postings to and from Cyprus, cartoons of him playing squash, uncryptic comments like ‘Hugh Johnstone, Don of our communications underworld’.

  Colonel Johnstone was called as the prosecution expert on secrecy, to prove that the information revealed by Berry was of a kind which fell under Section 1 of the Act. It seemed reasonable, therefore, to test his opinion by reference to his belief in the secrecy of himself. He was a Colonel with the Ministry of Defence – was his Defence Intelligence Department number a secret? No it was not: he actually volunteered it. I asked him whether his own name and rank and number had been widely published whenever he received a fresh posting, and when he hesitated I showed him some material I did not identify – Duncan’s copies of The Wire. ‘Yes, I see my name and rank and number have been published in various publications,’ he congenially volunteered. Mr Pratt, who had gone from confounding the State with his legal advice to the unexalted task of taking down the witness’s words in longhand to form his ‘deposition’ or sworn statement, decided at this point to intervene. He could have had no consciousness of the constitutional crisis he was about to ignite, as he leant over towards the witness and asked him in a voice of tired sufferance, ‘What are you looking at?’ ‘It’s The Wire,’ said Colonel B proudly. ‘Our regimental magazine.’ Mr Pratt wrote – and spoke what he was writing aloud for the Colonel’s benefit – ‘I am now aware my posting was published in The Wire . . .’ Mr Pratt looked up again, with the irritable tone of one who is dotting i’s and crossing t’s: ‘And what edition of Wire are you looking at?’ Happy to comply, Johnstone looked at the cover and read aloud, ‘December 1974–January 1975’. At the end of his deposition, the punctilious Mr Pratt read back this evidence, slowly and in a loud voice.

  It is probably a measure of the inward-turning nature of court proceedings that nobody involved – the prosecutor, the clerk, the magistrates, the Colonel or myself – realised that Colonel B, the expert in secrecy, was comprehensively blowing his own cover. Behind our backs, a bearded reporter from Peace News was the first to the door, hot-foot to the British Library to look up The Wire for December 74–January 75. In no time the Colonel’s real name was discovered, as was the fact that he was listed under it, with his actual home address, in the London telephone directory. Soon articles appeared in Peace News and The Leveller with headlines like ‘Who are you trying to kid, Colonel H A Johnstone?’ Sam Silkin sent Special Branch officers to interrogate the editors and summons them for contempt of court. A police team even raided the annual conference of the NUJ at the seaside resort of Whitley Bay when they heard that delegates were writing the forbidden name in the sand. The tide washed away the evidence before they arrived.

  Then early one afternoon at Parliamentary question-time, when the Speaker was dozing, an obscure backbencher named Robert Kilroy-Silk, followed in turn by three other MPs, rose and asked questions about official secrets and Colonel H A Johnstone. This meant that the press was constitutionally privileged to print the name as part of any report of that afternoon’s parliamentary proceedings: it had, after all, gone out live in radio coverage of the House. I am not sure that many newspapers would have bothered, but Silkin and his flummoxed DPP, Tony Hetherington, threatened to prosecute any that did for contempt of court. Foolishly, the DPP sent them an empty but threatening letter which at last provoked the media to show its mettle. In a rare moment of unanimity, the BBC and ITV networks joined with every newspaper to condemn the DPP’s unconstitutional threat, and to defy him by revealing Colonel B’s real name. For the first time in the ‘ABC’ affair, the Law Officers backed down: there was at last a limit to the number of liberties they could take at the request of the intelligence services.

  I quite warmed to Colonel B at the committal – a serious but pleasant fellow in a grey suit who should not have been testifying in the first place. He was not an ‘expert’ on secrecy (as he proved by letting himself slip), he was an army commander. What was known about SIGINT, from public sources both in Britain and overseas, was beyond his brief and his belief. His stock answer was that ‘any revelation of or about SIGINT must inevitably affect adversely our ability to defend ourselves’. His ‘expert’ evidence was that no mention should be made of SIGINT – in the press, in Parliament or over private dinner-tables – ever, by anyone who had not been positively vetted. ‘Until this case the public has been quite unaware of SIGINT.’ So has the national security been damaged by mentioning SIGINT in court? ‘Yes, I think it has. I think any reference to SIGINT in the media is damaging.’ He flinched when shown detailed articles on SIGINT, published in the New York Review of Books and the New York Times. He had never seen them before, but at least they weren’t British media. Local newspapers in Cyprus had published details of his SIGINT installations, and sometimes, political demands for their removal. Colonel B was unfazed. The work of the 9th Signals Regiment might be known in Cyprus, but it must never be disclosed in Britain.

  Harry Nicholls, the Special Branch officer in charge of the arrests of A, B and C, said they had only been instructed two hours before they left Scotland Yard. By whom? I politely enquired, but the prosecutor objected to any mention of MI5, the very existence of which was then an official secret. Indeed, these proceedings were the first time that the existence of GCHQ had been admitted, and the prosecution felt it had let enough history slip out for 1977. Major Philp of the Royal Signals Corps was one witness who refused to disguise his admiration for Duncan’s technical and journalistic ability. He told of hosting MOD press launches for new pieces of equipment, at which the regular defence correspondents would swill champagne and take away a press hand-out. Duncan, the abstemious journalist then working for New Scientist, was the only one capable of discussing the technical – and frequently, surveillance – role of the equipment. ‘Get him out of here,’ a superior had once told Philp when Campbell was seen at a press launch. ‘He asks too many questions.’

  The Section 1 ‘collection’ charge Duncan Campbell faced was based on the nine hundred pages c
ulled from his files, all from public or published sources. Major-General Sturge asserted that ‘Campbell set about a concerted effort to find out about the communications system of Britain and its relevance to defence. In my opinion this would be of use to an enemy.’ So, of course, would a collection of Ordnance Survey maps, or a book like Peter Laurie’s Beneath the City Streets – a popular paperback about the country’s civil defence network for which Campbell had been doing further research, and to which most of his files related. The ‘prejudicial purpose’ on which the prosecution relied was not helping a foreign power, but research for publication – in books like Laurie’s, or in articles for New Scientist or Time Out. This was not, of course, prejudicial to a democratic State with a rule of law protecting the freedom to publish inferences from available information, although it might well seem so to an authoritarian State which punished journalists who pried into subjects its military did not wish to see discussed in print. The prosecution theory, in a nutshell, was that they could put Campbell behind bars under Section 1 not because of the information he had collected, but because, unlike other journalists who obeyed ‘D’ notices, he could not be trusted to do what he was told with it.

  This was the point I tried to get across to the Tottenham justices:

  The prosecution has mistaken investigative journalism for subversion. Because Campbell is a journalist, he’s a ferret not a skunk. Section 1 is aimed at skunks – traitors and spies. In the nine hundred pages of evidence extracted from his library, there’s no suggestion that his mind ever entertained a disloyal fantasy or that this information was ever collected other than for his own research. The prosecution describes him as a ‘thoroughly subversive man’, but the legal definition of a subversive is ‘someone who contemplates the overthrow of the government by unlawful means’. There’s no evidence that Campbell comes within a mile of that definition. The best synonym the prosecution has been able to come up with is ‘anti-establishment’. I thought it was only in Russia that people were put in prison for being anti-establishment . . .