Operation Shadower — illegal MI5 bugging of left-wing UK journalist

Back­ground

At the same time that MI5 had to deploy valu­able resources to mon­itor Khal­ifa Bazelya, they were also devot­ing con­sid­er­able funds to invest­ig­at­ing Vic­toria Brit­tain, a Guard­ian journ­al­ist. Code­worded Oper­a­tion Shad­ower, MI5 tapped Brittain’s home phone for over a year, begin­ning in early 1995. Although she was sus­pec­ted of money laun­der­ing and fin­an­cing ter­ror­ism, the ser­vice estab­lished that the funds were being used to fin­ance a libel action on the part of Kojo Tsikata, a former offi­cial of Ghana. Not even MI5 would now argue that Brit­tain had ever posed a recog­nis­able threat to national security.

At one point in the invest­ig­a­tion, Dir­ector G, Inter­na­tional Ter­ror­ism Branch, told officers that this was the most import­ant invest­ig­a­tion on the Libyan desk in ten years. David poin­ted out the incon­gru­ity of this state­ment. The bomb­ing of flight PA103 over Lock­er­bie had taken place only six years pre­vi­ously. At the time, an extens­ive police and MI5 oper­a­tion had led to the indict­ment of two Libyan intel­li­gence officers for the attack. How­ever, to a senior man­ager who had cut his teeth invest­ig­at­ing left-wing “sub­vers­ives”, tar­get­ing a Guard­ian journ­al­ist must have felt like a return to the good old days.

Early prob­lems with the investigation

Vic­toria Brit­tain first came to the atten­tion of G9 in late 1994 when the Ser­vice learned that she had received two pay­ments into her bank account from two sep­ar­ate Libyan accounts based in Lon­don. A junior desk officer, Sue Thomas, G9A/15, had car­ried out the ini­tial invest­ig­a­tion. She had little exper­i­ence of intel­li­gence work as she had entered the GD1 as a GI6, after trans­fer­ring from the sec­ret­arial pool. At the time, Jerry Mahoney, G9A/1 and group leader for G9A, was also an inex­per­i­enced officer, who had been in the ser­vice less than two years. When David took the case over in April 1995, Thomas had warned him that she had tried to raise her reser­va­tions about the invest­ig­a­tion with G9 man­age­ment but had been ignored. I men­tion this because it demon­strates how man­age­ment could push around junior desk officers, par­tic­u­larly if they had not been recruited as part of the ‘officer class’.

In this case, Home Sec­ret­ary Michael Howard had already gran­ted the Home Office War­rant (HOW), which gov­erns tele­phone inter­cept or tap­ping, before David took the case over. I men­tion this as off-the-record brief­ings have claimed that David began the invest­ig­a­tion. It then became his respons­ib­il­ity to renew the HOW every six months2. Again, renewal requires rig­or­ous jus­ti­fic­a­tion in strictly defined circumstances.

When David came to exam­ine the war­rant, he found it was inac­cur­ate. Some of the trans­fers of funds had gone through sev­eral of Brittain’s accounts, although the ori­ginal flow dia­gram did not reflect this. David explains:

As a res­ult, some move­ments of the funds had been coun­ted twice or even three times as fur­ther pay­ments into her account when in fact, they were the same funds mov­ing between Brittain’s dif­fer­ent accounts. One of the first tasks I per­formed was to trace and cla­rify the move­ment of funds through all her accounts. This estab­lished that the amount in ques­tion was rather nearer £200,000 than the fig­ure used to jus­tify the war­rant, around £500,000.”

Reas­ons for invest­ig­at­ing Vic­toria Brittain

MI5 uses ‘record­ing cat­egor­ies’ or defin­i­tions that a tar­get must fall within before MI5 can act­ively invest­ig­ate them. Brit­tain already had a PF or per­sonal file because she had pre­vi­ously come to the atten­tion of the Ser­vice as a ‘con­tact of a hos­tile intel­li­gence agency’ in 1991 after she met a Cuban at an Embassy func­tion as part of her work on the for­eign news sec­tion of The Guard­ian. Although the Cuban was an intel­li­gence officer work­ing under dip­lo­matic cover, there was cer­tainly no indic­a­tion that she knew of the Cuban associate’s intel­li­gence role.

For the pur­poses of the Shad­ower invest­ig­a­tion, Brit­tain was recor­ded as ‘the sus­pec­ted con­tact of a sus­pec­ted con­tact of the Libyan intel­li­gence ser­vice’, although there was no intel­li­gence on her file to indic­ate that she had any con­nec­tions with Libya at all – other than the pay­ments to her bank accounts. Although Tsikata was also recor­ded as a sus­pec­ted con­tact of the Libyan intel­li­gence ser­vices, there was little or no hard intel­li­gence to indic­ate that he was actu­ally work­ing for the Liby­ans. MI5 cer­tainly had no record of him being involved in hos­tile intel­li­gence or ter­ror­ism against UK interests.

In fact, when Kojo Tsikata had stayed in Lon­don in sum­mer 1994, itemised billing inform­a­tion on the tele­phone in his hotel room estab­lished that it had been used to con­tact Brittain’s home phone. Although her sub­scriber details — V Brit­tain, 57 Gib­son Square, Lon­don NW3 — had been checked against ser­vice records, Sue Thomas had failed to match them with Vic­toria Brit­tain, 57 Gib­son Square, Lon­don, NW3, the sub­ject of an MI5 file. It was only when MI5 act­ively began to invest­ig­ate Brit­tain and Tsikata some six months later that this missed con­tact was found on his file. David comments:

When officers came to apply for the Home Office War­rant in late 1994, they jus­ti­fied the invest­ig­a­tion on the grounds that Brit­tain was either:

  • Laun­der­ing money on behalf of the Libyans.

  • Help­ing the fund­ing of ter­ror­ism in the UK.

How­ever, I stress there was no spe­cific intel­li­gence to sup­port either proposition.

Defects in the case and delays in tak­ing action

Some will think that pay­ments from Libyan accounts to Brit­tain would be enough to jus­tify at least begin­ning an invest­ig­a­tion into Brit­tain, even in the absence of spe­cific intel­li­gence stat­ing that she was money laun­der­ing. How­ever, there were a num­ber of fun­da­mental defects in the case, which were not addressed in the War­rant and there­fore not com­mu­nic­ated to the Home Sec­ret­ary who author­ises the tap. The pay­ments into her account clearly came from two offi­cial Libyan accounts, one in the name of Khal­ifa Bazelya, the chargé d’affaires at the Libyan Interests Sec­tion, and the other in the name of the Libyan Interests Sec­tion in Lon­don. Given that the Liby­ans believe that the Brit­ish intel­li­gence ser­vices are as per­vas­ive in Bri­tain as the Libyan intel­li­gence ser­vices are in Libya, it was ris­ible to sug­gest that the overt pas­sage of money from offi­cial accounts was suf­fi­cient reason to sus­pect money laun­der­ing or ter­ror­ist funding.

If I had been the case officer when MPSB had provided the ori­ginal intel­li­gence about the move­ment of funds in sum­mer 1994” David explains, “I would have recom­men­ded that they inter­viewed her. There would have been noth­ing unusual about this.”

Brit­tain had first come to the atten­tion of MPSB after it had received a routine fin­an­cial noti­fic­a­tion under the Pre­ven­tion of Ter­ror­ism Act. This legis­la­tion requires banks to notify the police of any deposit of more than £10,000. Under the PTA, Spe­cial Branch officers could have asked Brit­tain dir­ectly or served her with an Explan­a­tion Order requir­ing her to jus­tify the funds. This overt method of enquiry was never under­taken although senior MI5 officers did con­tem­plate it some months into the invest­ig­a­tion but dis­missed it. It would have saved a lengthy invest­ig­a­tion and unne­ces­sary, expens­ive tele­phone tap­ping and mobile sur­veil­lance on the part of MI5, which drained the service’s resources to the tune of around £750,000.

Where laundered money has to be moved through accounts, at least some of it moves on quickly so that it can get to its des­tin­a­tion before being inter­cep­ted by the law enforce­ment agen­cies. G9A first reacted to the exist­ence of the funds only towards the end of 1994, well over a year after the first pay­ment from Bazelya’s account in Septem­ber 1993 and around five months after the second pay­ment in July 1994. Iron­ic­ally, if the money had been inten­ded for the fund­ing of ter­ror­ism, it would have been long gone before MI5 had even star­ted to invest­ig­ate the matter.

Some will argue that I am bene­fit­ing from hind­sight. I dis­pute this. When David took over the invest­ig­a­tion, he tried to per­suade those involved, includ­ing the City of Lon­don Spe­cial Branch, that the pay­ments were inno­cent. By this time, the tele­phone tap on Brittain’s phone had repor­ted that she was dis­cuss­ing ‘the case’ and ‘the money’ with Kojo Tsikata and the law­yer Geof­frey Bind­man. It was there­fore very clear from very early on that the money in ques­tion was being used to fund a legal action. Although MI5 should never have begun to tap her phone, it was even more inex­cus­able that it con­tin­ued the oper­a­tion, even when all the intel­li­gence indic­ated that the funds in ques­tion were pay­ment for some kind of legal action on Tsikata’s part. It wasn’t as if Brit­tain and Tsikata didn’t have good enough reas­ons for their rela­tion­ship. As she was the deputy for­eign editor of The Guard­ian with a his­tory of writ­ing on Africa, and Tsikata’s nat­ive Ghana in par­tic­u­lar, and he was a former offi­cial of the state, the two had obvi­ous legit­im­ate reas­ons to know each other.

The fail­ure to fol­low procedure

In this case there can be no dis­pute about MI5’s fail­ure to fol­low leg­ally enshrined pro­ced­ure designed to ensure that the ser­vices do not abuse human rights. Intel­li­gence organ­isa­tions must use overt, non-intrusive meth­ods to resolve an enquiry before invad­ing anyone’s pri­vacy as a last resort. It can­not be ‘neces­sary in a demo­cratic soci­ety’3. to invade an individual’s pri­vacy to obtain inform­a­tion that could be obtained openly. The fail­ure on the part of the ser­vices to first check open sources led dir­ectly to a human rights abuse, unne­ces­sary inva­sion of pri­vacy, and an unlaw­ful operation.

In order to main­tain the leg­al­ity of its war­rants, MI5 officers use a ‘tick box’ pro forma to ensure they have com­plied with all pro­ced­ure. One box reminds officers to insert a line to the effect that they have exhausted overt meth­ods of enquiry before apply­ing for a war­rant. There is though no box to tick off the actual enquir­ies car­ried out. In effect, the officer ticks the check­list to indic­ate that he has included in any war­rant the line regard­ing the exhaus­tion of overt enquir­ies – without actu­ally doing any enquir­ies. Although MI5 man­age­ment assert that they play a valid role in the pro­cessing of war­rants, they never ask whether — or which — enquir­ies have been car­ried out to make the war­rants legal.

Fail­ure to access pub­lic databases

Given that Brit­tain was a Guard­ian journ­al­ist, MI5 could have checked pub­lic records such as news­pa­per archives, now held on the Lexis-Nexis data­base, or in the com­pu­ter­ised archives at the Brit­ish museum. This would have shown Brittain’s and Tsikata’s activ­it­ies and interests. David takes up the story:

When I took over the case around Spring 1995, I remarked to my bosses that I was sur­prised that no overt enquiry had taken place, par­tic­u­larly in this sens­it­ive oper­a­tion. I even sug­ges­ted inter­rog­at­ing a news­pa­per data­base to Jerry Mahoney4 and to Peter Mitchell5.

I had also men­tioned this very early on to Sue Thomas, who was respons­ible for the invest­ig­a­tion before I took it over. Given that Ms Brit­tain was a journ­al­ist, any inter­rog­a­tion of a com­mer­cially avail­able news­pa­per data­base might shed light on her actions. I stress, up to this point, the only intel­li­gence against Brit­tain was that she had received money from the Libyan régime through trace­able and routine trans­fer between bank accounts, hardly a secure method of laun­der­ing money.

As the Ser­vice had no access in-house to com­mer­cial data­bases, I spe­cific­ally offered to go to a lib­rary to ‘bot­tom’ – or resolve – the case. Remem­ber at this time, G9 was devot­ing con­sid­er­able resources to fol­low­ing Khal­ifa Bazelya, the Libyan charge. As MI5 only has finite resources, it was clear even at the time that the Shad­ower invest­ig­a­tion was detract­ing from the proper invest­ig­a­tion of an indi­vidual with an estab­lished his­tory of aid­ing terrorism.

But Jerry Mahoney refused to author­ise this. David did think about car­ry­ing out the pub­lic enquir­ies in his own time but he knew that any ini­ti­at­ive would count against him with MI5 bosses, even if he were proved right.

In fact, the ser­vice did even­tu­ally research pub­licly avail­able mater­ial. Jonathan Beaver, a cler­ical officer, spent many days in the MI5 lib­rary look­ing through cop­ies of The Guard­ian to try to find art­icles by Vic­toria Brit­tain. But by this point, the Home Sec­ret­ary had already signed the war­rant, believ­ing that overt enquir­ies had already been exhausted. Details of the true pur­pose of the funds were more likely to have emerged from cov­er­age in The Inde­pend­ent news­pa­per, which was the tar­get of the libel action for which Ms Brit­tain was receiv­ing funds. Either way, por­ing over page after page of The Guard­ian hardly con­sti­tuted an effi­cient use of a cler­ical officer’s time, when Brittain’s name could be checked in seconds using a news­pa­per database.

As a res­ult, David was also pre­ven­ted from using a com­mer­cial data­base to check the names of journ­al­ists which came up once the tele­phone was tapped. David explains:

I can clearly recall that dur­ing one inter­cep­ted con­ver­sa­tion, the name of Richard Dowden was men­tioned. He was no trace in the service’s records but we have since learnt that he worked for The Inde­pend­ent news­pa­per and was involved in oppos­ing Tsikata’s libel action. It is also a prin­ciple of phone tap­ping that it should con­tinue no longer than is neces­sary6. Again, I main­tain that if I had been allowed to research openly avail­able mater­ial, we would have more quickly estab­lished that the money was of no con­cern to MI5. G9 would have there­fore have been obliged to can­cel the war­rant sooner, restor­ing Brittain’s right to privacy.”

Illeg­al­ity upon illegality

How­ever, instead of can­cel­ling the already illegal tele­phone inter­cept, MI5’s internal appet­ite grew. It obtained a Prop­erty War­rant from the Home Sec­ret­ary to leg­ally ‘effect a cov­ert entry’ into Brittain’s home to search and copy her papers or to install an eaves­drop­ping device – or bug. As cov­ert entry is oth­er­wise known as break­ing and enter­ing or burg­lary, it rep­res­en­ted an even greater inva­sion of Brittain’s pri­vacy than tap­ping her phone.

But the Prop­erty War­rant was based on the same flawed case as the Home Office War­rant, so it rep­res­en­ted illeg­al­ity moun­ted on illeg­al­ity7. Under the 1989 Secur­ity Ser­vice Act, MI5 is only sup­posed to break into private homes to pro­tect national secur­ity or pre­vent ser­i­ous crime and then only where there is a strong intel­li­gence case. Secret searches of an individual’s home – ‘sneak and peak’, as it is known in the US legis­la­tion pro­pos­ing this kind of inva­sion of pri­vacy — are banned in the vast major­ity of democracies.

At one point in a formal dis­cus­sion with the Assist­ant Dir­ector, Peter Mitchell, the pos­sib­il­ity of tap­ping the law­yer Geof­frey Bindman’s home phone was raised. The senior MI5 legal adviser, Richard Woods8, rejec­ted the idea on the grounds that there had to be ‘a more dir­ect threat to national secur­ity’ before the phone of a law­yer could be tapped. This was of course a tacit admis­sion from a legal expert that the case against Brit­tain was ill-founded. In a later dis­cus­sion when the Shad­ower invest­ig­a­tion was over, the legal adviser denied that he had made any such claim, even though it had been included in the minutes of the meet­ing and he had not com­plained when he had received a copy of the minutes. Instead, he claimed that he had given advice as to the undesirab­il­ity of tap­ping the phone of a law­yer, given that con­ver­sa­tions between law­yers and cli­ents are privileged.

Yet MI5 showed no eth­ical con­cerns when it recor­ded and tran­scribed con­ver­sa­tions between Bind­man and Brit­tain, even where they spe­cific­ally men­tioned ‘the case’ and might have covered priv­ileged client-counsel dis­cus­sions9. And, if MI5 really believed that the money was destined for ter­ror­ists, why should Bind­man be given some sort of immunity just because he was a law­yer? The legal advisor’s pos­i­tion was illo­gical. But it went from bad to worse.

The unlaw­ful plan to arrest Brit­tains daugh­ter

Once a prop­erty war­rant has been signed, the case officer sends his require­ments to MI5’s A1 sec­tion, which then ‘recces’10 the tar­get address and comes up with an oper­a­tional plan to plant the bug and carry out the search. 11. In this case, A1 hatched a plot to have Thea Shar­rock — Brittain’s daugh­ter and a key holder of the Gib­son Square flat — arres­ted on trumped-up charges, while she was hol­i­day­ing in the US. The fact she was in the US should have coun­ted as secur­ity enough. Even if she had sud­denly decided to return home, her flight would have taken at the very least seven hours, more than enough time for A1 oper­at­ives to with­draw from the tar­get premises.12

David takes up the story:

I com­plained in the most voci­fer­ous terms pos­sible but Jerry asked me to cre­ate a file on Brittain’s daugh­ter. In the file, I recor­ded that I was doing it effect­ively under duress and that the file should be ‘des­troyed’ — removed from the MI5 indices rather than actu­ally phys­ic­ally burnt — as soon as the rel­ev­ant action had been taken to stop the col­lec­tion of even more intrus­ive per­sonal mater­ial in the MI5 archives.”

Evid­ence of the true pur­pose of the money

By spring 1995, MI5 had estab­lished that Brit­tain had received three fur­ther pay­ments made in Decem­ber 1994, Janu­ary 1995 and Feb­ru­ary 1995 of around £35,000 each. As Brit­tain, Bind­man and Tsikata dis­cussed the mat­ter quite openly on her home tele­phone, it became even more ris­ible to sug­gest that the funds were destined for the sup­port of ter­ror­ism. No trained ter­ror­ist in this day and age uses the phone, par­tic­u­larly not their own, to dis­cuss any crim­inal activ­ity. When David took over the invest­ig­a­tion shortly after, he found no ref­er­ences that could in any way be con­strued as relat­ing to money laun­der­ing or sup­port for ter­ror­ism. The tran­scribers of the tap had not noted, for example, that any of the con­ver­sa­tions were guarded or sus­pi­cious or that word ‘case’ could be code for more under­hand activity.

Before David had even taken over Oper­a­tion Shad­ower, fin­an­cial enquir­ies had estab­lished that the funds were being placed in a cli­ent account at the law firm of Bind­man and Part­ners. This appeared to be con­clus­ive proof – if any were still needed — that the funds in ques­tion were being passed through Brittain’s accounts to Geof­frey Bind­man, the senior part­ner of the firm, to pay him for the uniden­ti­fied legal ‘case’ in which he rep­res­en­ted Tsikata. Yet, the invest­ig­a­tion went on for nearly a year more.

It also seemed to be lost on MI5 man­age­ment that no soli­citor with the pro­file and repu­ta­tion of Geof­frey Bind­man would will­ingly allow laundered or ter­ror­ist funds to pass through his cli­ent accounts. Although Bind­man had a per­sonal file, he was recor­ded as a ‘?com­mun­ist sym­path­iser’ – a cat­egory given to almost any­one who had com­mun­ist friends, cli­ents or col­leagues — in the 1960s and had not come to atten­tion in a secur­ity con­text since then. There was cer­tainly no indic­a­tion on his file that he had any dir­ect con­nec­tion with ter­ror­ism, money laun­der­ing or Libya.

The fail­ure of the Commissioner

When one of the Com­mis­sion­ers13 came to the ser­vice in late 1995 or early 1996 to dis­cuss the War­rant against Brit­tain, G9/0 Mitchell refused to allow David to attend the meet­ing. Instead, David had to provide an ano­dyne brief on the invest­ig­a­tion for Mitchell’s meet­ing with the Com­mis­sioner. David was for­bid­den from telling the Com­mis­sioner that:

  • Con­trary to inform­a­tion Mitchell included in the war­rant, MI5 had not researched pub­licly avail­able mater­ial on Brit­tain before tap­ping her phone.

  • Even after David had raised the above with Mitchell, G9/0 still included the line about overt enquir­ies in the six monthly applic­a­tions to renew the war­rant, know­ing them to be untrue.

  • The intel­li­gence was based on inac­cur­ate and illeg­ally obtained fin­an­cial information.

As Mitchell had signed off the war­rant applic­a­tion14, he was hardly likely to raise issues, which might land him in trouble.

David couldn’t leg­ally take his con­cerns dir­ectly to min­is­ters or the Com­mis­sioner about the Brit­tain war­rants15. Even if he had been able to go to min­is­ters, it is highly likely they would have con­sul­ted the Com­mis­sioner who would have told the Home Sec­ret­ary that he had been to MI5 to dis­cuss the war­rant and had been assured that it was legal. Neither the Com­mis­sioner nor the Home Sec­ret­ary could have known that Mitchell’s claims in the war­rant that pro­ced­ures had been fol­lowed were not just false but were made by Mitchell in the full know­ledge they were false.

Unlaw­ful fin­an­cial enquiries

Another mat­ter also troubled David. The police and MI5’s H1 sec­tion, which deals with external liais­ons and “del­ic­ate” enquir­ies, had acquired detailed fin­an­cial inform­a­tion from Brittain’s bank account without a court order16. David takes up the story:

Although I raised the unlaw­ful col­lec­tion of fin­an­cial mater­ial when I took over the case, MI5 did not make an applic­a­tion to a judge to invade Brittain’s pri­vacy in this regard, although a few of the police enquir­ies – car­ried out by City of Lon­don Spe­cial Branch — may have been covered in this way. In fact, the con­duct of the invest­ig­a­tion was hindered because H1 and the police had dif­fi­culties obtain­ing the inform­a­tion from the banks con­cerned without the proper paperwork.

H1 was well aware that his actions were unlaw­ful. He insisted that Brittain’s fin­an­cial details were kept hid­den on a sep­ar­ate file from Brittain’s main PF. Iron­ic­ally, if the money had been destined for the sup­port of ter­ror­ism, illegal and slow pro­ced­ures could have pre­ven­ted us from either inter­cept­ing the money before it got to its inten­ded tar­gets or from bring­ing the cul­prits to justice, as the inform­a­tion was not obtained under evid­en­tial pro­ced­ures17. This is fur­ther proof that the ser­vice itself did not really believe the cent­ral claim of the War­rant; that the funds were destined for the sup­port of terrorism

As far as I am aware, neither the IOCA Com­mis­sioner, who notion­ally over­saw the tele­phone inter­cept and spe­cific­ally came to the ser­vice to dis­cuss the case, nor the Home Sec­ret­ary, ever asked whether the fin­an­cial inform­a­tion was leg­ally col­lec­ted, even though they knew private fin­an­cial inform­a­tion had been gathered to sup­port the warrants.

The indi­vidual in the bank who gave out Brittain’s private fin­an­cial inform­a­tion should be invest­ig­ated by the police for viol­at­ing bank­ing law. Their name will be on one of H1’s files with evid­ence of the inform­a­tion passed.”

The rest of the operation

Hav­ing made his protest where and when he could, like any other MI5 officer, David had to then ‘fol­low orders’ or resign. Although he per­son­ally dis­agreed with the situ­ation, pro­fes­sion­al­ism dic­tated — for the time being at least — that he did the job to the best of his abil­ity by reval­id­at­ing the war­rant and con­tinu­ing to co-ordinate the invest­ig­a­tion. I shud­der to ima­gine what would have happened to him, had he told his bosses that he was refus­ing on eth­ical grounds. At this point — autumn 1995 — des­pite many reser­va­tions, David still saw him­self pur­su­ing a career in MI5. David explains:

If I wanted to con­tinue work­ing in MI5 and effect change from within, I was not able to ques­tion the judg­ment of my bosses without being labelled as someone who ‘rocked the boat’. Yet I des­per­ately wanted to change MI5 so that it per­formed a use­ful job well and law­fully, but I did not then feel that I would have been able to do that either from out­side the organ­isa­tion or from a lower level job. In every poten­tial situ­ation, I there­fore came up against a dead end. To com­plain would mark you out as a trouble­maker18. To leave took you out­side any poten­tial abil­ity to alter things.”

The former DG, Stella Rim­ing­ton, has con­firmed just how little room was given to protest within the ser­vice: “But I soon real­ised that people regarded you with sus­pi­cion if you asked too many ques­tions, so I learned to keep quiet […]”I knew that open protest was not likely to be suc­cess­ful. If one got a repu­ta­tion as a revolu­tion­ary, one would be regarded as sus­pect and writ­ten off.”19 How­ever, unlike Stella Rim­ing­ton, who ‘whiled away the time read­ing Dorn­ford Yates nov­els under the desk’, David did not let ser­i­ous illeg­al­ity on the part of the ser­vice pass unchal­lenged. He did what he could while still in the service.

When it became clear by the end of that year that no one in MI5 man­age­ment was pre­pared to end an invest­ig­a­tion based on flouted pro­ced­ures and inac­cur­ate inform­a­tion, he began to think that he had no option but to resign. As we left Thames House to begin Christ­mas leave, David con­fided to me that he had had enough, not only because of the Brit­tain invest­ig­a­tion but also because, shock­ingly, he had just learnt that MI6 had paid money to Al Qaeda asso­ci­ates to assas­sin­ate Col­onel Gad­dafi of Libya.

MI5 did not remove the tap on Brittain’s home phone until early 1996 when it repor­ted her and Bind­man dis­cuss­ing ‘the money [for the] legal case’.

Con­clu­sions

Given that David’s dis­clos­ure of the Brit­tain case was used to pro­sec­ute him under the Offi­cial Secrets Act, the fol­low­ing are the argu­ments – based on the above evid­ence — he would have put before the jury had he been allowed to argue in his defence that his dis­clos­ures were in the pub­lic interest. Given the strength of the argu­ments, it is hard to see how a jury would have been able to con­vict him, had he been allowed a defence:

  • The tele­phone tap and the fin­an­cial invest­ig­a­tion were illegal: the War­rant was illegal because pro­ced­ure designed to pre­vent illegal or crim­inal inva­sion of pri­vacy had not been fol­lowed. The fin­an­cial invest­ig­a­tion was illegal because MI5 did not obtain a court order under the PTA.

  • Delib­er­ate flout­ing of the law: in the Brit­tain oper­a­tion MI5 man­age­ment know­ingly con­tin­ued to viol­ate the law, even when officers brought this to their attention.

  • Polit­ical expedi­ency over leg­al­ity: the ser­vice simply did not dare inform the Home Sec­ret­ary that it had obtained a War­rant and star­ted an intrus­ive invest­ig­a­tion on the back of a war­rant applic­a­tion based on untruths.

  • MI5 para­noia: senior MI5 officers who had cut their intel­li­gence teeth in an era obsessed with ‘reds under the bed’, were still pre-occupied with Guard­ian journ­al­ists and liber­tarian law­yers. If Vic­toria Brit­tain had been a house­wife liv­ing in East Cheam, I do not believe MI5 would have launched such an extens­ive and intrus­ive invest­ig­a­tion into her and her fam­ily. Her real crime was to be a Guard­ian journ­al­ist with unusual friends.

  • Sexed up and flawed intel­li­gence case: Even if pro­ced­ure had been fol­lowed, there was still no real basis for invest­ig­at­ing Brit­tain. She and the Libyan intel­li­gence ser­vices would hardly have been likely to use offi­cial Libyan accounts in Lon­don to laun­der or move money to fund ter­ror­ist activ­ity in the UK. Even then MI5 got its sums wrong.

  • Oper­a­tional inef­fect­ive­ness: Iron­ic­ally, MI5 was so slow to start the invest­ig­a­tion that, if the funds had been destined for ter­ror­ists, they would have been long gone before the ser­vice began its investigation.

  • Bad judge­ment: Oper­a­tion Shad­ower was a waste of MI5’s time and effort, as resources needed to pre­vent actual ter­ror­ist plan­ning and attacks were taken away from those areas, put­ting the pub­lic at greater but unne­ces­sary risk. MI5’s budget would have been bet­ter spent on other tar­gets which posed a clearer and more dir­ect threat to national security.

  • Lack of on-going jus­ti­fic­a­tion: noth­ing emerged from the year-long tele­phone tap to show that Vic­toria Brit­tain was involved in money laun­der­ing or any other illegal activ­ity. In fact, Brit­tain was exon­er­ated by the tele­phone inter­cept very early in the invest­ig­a­tion when it provided intel­li­gence about ‘the case’ and ‘the money’.

  • Jus­ti­fic­a­tion for whis­tleblow­ing: even MI5 now accepts that her actions were entirely legit­im­ate. If David had not gone on the record, she would never have known that her pri­vacy had been unlaw­fully invaded and her daugh­ter nearly been arres­ted on trumped-up charges so that MI5 could plant a bug in her house.

  • Delib­er­ate mis­rep­res­ent­a­tion of the truth: the invest­ig­a­tion clearly demon­strates that MI5 man­age­ment can quite eas­ily mis­lead min­is­ters and Com­mis­sion­ers. As there is no need for MI5 to swear its case to the Home Sec­ret­ary under oath, it can mis­rep­res­ent or use facts select­ively or simply lie to gov­ern­ment, without sanction.

1 Gen­eral Duties group. The Gen­eral Intel­li­gence Duties group, or the officer class”, and the admin group were merged at around this time. Grade GI6 became GD6 etc

2 In accord­ance with the 1985 Inter­cep­tion of Com­mu­nic­a­tions Act

3 Art­icle 8(2) of the European Con­ven­tion states There shall be no inter­fer­ence by a pub­lic author­ity with the exer­cise of this right except such as in accord­ance with the law and is neces­sary in a demo­cratic soci­ety.

4 G9A/1, his group leader and dir­ect boss

5 G9/0, the head of G9, Counter-Middle East­ern Ter­ror­ism. He also took the stand as wit­ness C in Davids court case but Judge Moses refused to let David cross-examine Mitchell about the leg­al­ity of the intercept.

6 The neces­sary in a demo­cracy test under HRA, Art­icle 8, ECHR

7 The 1989 Secur­ity Ser­vice Act con­tains the same caveat as the 1985 Inter­cep­tion of Com­mu­nic­a­tions Act. Other meth­ods of enquiry must be exhausted before the Ser­vice inter­feres with a tar­gets prop­erty.

8 Name changed on orders of MI5

9 Now pro­tec­ted by the HRA, Art­icle 6, ECtHR, the right to a fair trial

10 Reconnaissance.

11 Inform­a­tion removed on the orders of MI5, although it con­cerns offi­cial policy which hampers the oper­a­tional effect­ive­ness of MI5, not secret intelligence

12 If MI5 had gone ahead with the plan, Ms Shar­rock would have had excel­lent grounds for rem­edy under the HRA, Art­icle 5, the right to liberty and secur­ity: Every­one has the right to liberty and secur­ity of per­son. No one shall be deprived of his liberty save in the fol­low­ing cases and in accord­ance with a pro­ced­ure pre­scribed by law. None of the exhaust­ive list of excep­tions from Art­icle 5(1)(a) to (f) apply in this case

13 Under the Inter­cep­tions of Com­mu­nic­a­tions Act and the Secur­ity Ser­vice Act, Com­mis­sion­ers have a respons­ib­il­ity for ensur­ing that War­rants are leg­ally obtained

14 As War­rant applic­a­tions are not sworn under oath, MI5 officers like Mitchell can lie or mis­rep­res­ent the truth in them without fear of per­jur­ing themselves.

15 A crim­inal offence under sec­tion 1 (and sec­tion 7(1)) of the 1989 Offi­cial Secrets Act (OSA) -

16 The Pre­ven­tion of Ter­ror­ism Act (PTA) allows invest­ig­at­ors to gather private fin­an­cial inform­a­tion to pre­vent ter­ror­ism but a judge must grant a formal court order for the author­it­ies to gather this mater­ial under the Act. Again, this pro­ced­ure is designed to pro­tect the right to a private life, in this case, with regard to the pri­vacy of an hon­est indi­viduals fin­an­cial affairs.

17 In this day and age, MI5 does use evid­en­tial pro­ced­ures in its invest­ig­a­tions into genu­ine terrorism

18 True to form, MI5 did brief against David say­ing just that

19 Open Secret, pp 98 and 121