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 regime 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