Like many others, I heard about the arrest of Daniel James through a BBC news broadcast. There are several reports on the BBC website about his case, and this appears to be the last one.
I was immediately concerned at the way the story was being presented, and the apparent distortions that were being put out in various newspapers. For example, one common detail that was sent around the world is the claim that Daniel James is the first person to face charges under Section one of the Official Secrets Act for more than 20 years, since the trial of Michael Bettany. This is simply not true, as my case was under Section 1 of the OSA, and that took place in 1993.
I could see obvious warning signs, that the same lies and bias would be thrown at Daniel James as had been used against me - both before, during, and after my trial. I hope to be able to use the experience of my own case to help Daniel James, and so I wrote to him in prison in January 2007.
From: Michael John Smith
17 January 2007
To: Mr Daniel James XA6933
PO Box 757
London SW18 3HS
Dear Mr James,
I was sorry to hear about your arrest and the decision that you are to stand trial under the Official Secrets Act. If you wish I would like to offer my experience to help your legal team to prepare your Defence, as I have been through the complete cycle that you are just starting out on.
The reason for my interest in your case is that I was convicted in 1993 of 3 counts under Section 1 of the OSA, and I was sentenced to 20 years imprisonment. Special Branch, the MoD, MI5 and the CPS all had an input into my case, and they all used underhanded tactics to ensure my conviction. As OSA trials are quite rare, it is possible your Defence team have never been called on to prepare for a trial under this Act, and so I believe it would be useful for them to see how it worked in practice in the build-up to my trial. Unfortunately, it turned out that my own lawyers were deficient, and they made some fundamental mistakes. I would hope you can learn lessons from my case, as you could encounter the same issues as I did, and you must give yourself the best possible chance to avoid being found guilty.
You should be aware that charges under the OSA are very difficult to defend against, as even the suggestion that you might have had some hidden thoughts to act against the interests of the UK would be enough grounds to convict you. This is why it is hard to convince the jury you are innocent, because the prosecution could dig up one little piece of evidence to put a doubt in the jury’s mind. There were several such issues at my trial, including a 15 year-old tourist map of Oporto with crosses marked on it - I was astonished that in the hands of the prosecution this map was presented as part of the instructions given to me for a KGB training mission. There was no truth whatsoever in the prosecution’s claim, but put alongside other equally unproven allegations the prosecution pieced together a fictitious story based on circumstantial evidence.
From what I have heard about your case so far, I would expect that the same type of weak evidence will be turned into quite definite arguments that you had some motive to break the OSA, and that there is evidence to show you have lied or acted in a suspicious manner, or that you have unexplained income, and then the jury will be invited to see that your character is flawed. I tell you, I was amazed when I listened to the prosecution talking about me, as it sounded like they were referring to somebody else completely.
You should examine very carefully all the evidence that will be used in your case, and prepare for surprises in the way this could be presented at a trial. But even before you get to a trial there will probably be damaging leaks to the press. Only 4 weeks after my arrest I was surprised to read in the Sunday Times a harmful article about my case, including details of crimes they alleged I had committed, which I was never even charged with !
But one of the tactics used by the prosecution is the old trick of claiming that your case will involve damaging material that cannot be heard in public, and the judge will rule that your trial must be held “in camera”. This was used in my trial to hide the fact that no secrets were involved in my case, and that there was no actual evidence I had been in contact with the Russian intelligence service, but this didn’t stop the prosecution continually telling the jury that this evidence did exist. From my experience an “in camera” trial is designed to allow the prosecution to lie and present illogical arguments, which they would not get away with in a public trial.
So, if there was one thing I would advise you to do - if you know there is nothing “secret” or “damaging” in your case to UK national interests - it is to strongly challenge every application for holding hearings “in camera”. I cannot emphasise this point enough, because if your trial goes ahead behind closed doors you are in serious danger of losing.
You can give yourself a better chance to beat the prosecution by publicising your defence case as widely as you can. You may not get your points printed, but it will create a groundswell of opinion that there is something wrong with the prosecution case, and that will hopefully convince the prosecution to drop the case before trial. Make sure you contact as many influential people as you can do, such as your Member of Parliament and anybody you know in the media. Your campaign should be under way now, because against the OSA you cannot rely on the legal process alone.
When I was arrested I believed the Law would produce the right result, and I was shocked to learn that trickery by the prosecution won the day. Don’t fall into that trap.
I attach a copy of a 4-page article I wrote that was published in Lobster magazine in December; it only outlines the main issues, but it gives an idea of what happened to me. More importantly, get your lawyers, family, relatives and friends to read about how the OSA worked in my case. I have written a lot about it and given links to the actual documents from my trial on my blog here:
Your lawyers may be particularly interested in the evidence admissibility hearings here:
I wish you the very best of luck that you are found “not guilty”, but do not leave this to chance or think that the jury will automatically believe you. You will have to use all the methods you can to beat the system. The OSA is not a fair Act, and it puts the duty on you to prove that you are innocent rather than the other way round. If I can help in any way then let me know, but you will have to decide how you want to handle your case, and I respect that.
Michael John Smith
c.c. Mr Paul Raudnitz