ABC Trial

 ABC Trial (trial)

Date	5 September 1978 - 17 November 1978
Defendants	Crispin Aubrey,  John Berry,  Duncan Campbell
Description	An official secrets case of 1977-78 during which the UK Labour government prosecuted 3 people for holding an interview, using the Official Secrets Act 1911, a law they earlier had promised to repeal.

The ABC Trial was an official secrets case of 1977-78, when the United Kingdom Labour government prosecuted two journalists and a former soldier for holding an interview, using the Official Secrets Act 1911, a law they had promised to repeal years before.

The ABC case (named after the three defendants: Crispin Aubrey, John Berry and Duncan Campbell) ended in November 1978, causing grave embarrassment for James Callaghan's Labour government.

Background to the trial

The arrests of the ABC group were related to the arrests of former CIA agent Philip Agee and journalist Mark Hosenball. They were brought into custody and were intended to be deported in connection with the American magazine Counterspy which had made disclosures about the CIA. The Home Office wanted to deport the pair because of what they cited as “…obtaining information which could be harmful to the security of the United Kingdom.” However, Agee said:

“I believe pressure has has been put on the United Kingdom from the highest level to order me out in an attempt to disrupt publication of my second book on CIA activities.”

The connection to the ABC group came from an article called “The Eavesdroppers,” that had appeared in Time Out magazine in May 1976 that Mark Hosenball had co-written with Duncan Campbell, before Hosenball joined the London Evening Standard in July 1976. Duncan Campbell also appeared before the Home Office advisory committee hearing representations from Agee and Hosenball and he said that he had written most of the article that had appeared in Time Out. The article had covered GCHQ in Cheltenham and Campbell stated “there were no official secrets in the article that were not already available to the public.”

Connection to Berry

During the time Hosenball and Agee were earmarked for deportation, Campbell and Aubrey became aware of John Berry, a former officer at GCHQ, who had written to the National Council for Civil Liberties, (which was under General Secretary Patricia Hewitt – future Secretary of State for Health – who also campaigned for Hosenball and Agee to get a fair trial) saying that he shared Hosenball and Agee’s doubts about the legitimacy of GCHQ activities and that it was a smokescreen for anti-democratic activities.

As a result of this Campbell and Aubrey decided to interview him for Time Out.

The three were arrested at John Berry’s flat on 18 February 1977 and were then held without bail for 7 days. Berry was accused of passing on information to Campbell and Aubrey who were then arrested for receiving "highly classified" information. On August 9th, Campbell was also charged with “…for a purpose prejudicial to the safety or interests of the state, collecting information concerning defence communications that might, directly or indirectly, be useful to an enemy.” The case was the adjourned until November 7th for the hearing to begin.

Committal proceedings

The first day of committal proceedings was at Tottenham Magistrates’ Court in London where a tape was played (the court was cleared the tape played in secret) in which the prosecution alleged that it was John Berry, former soldier, giving details of Britain’s monitoring telecommunications to Campbell and Aubrey. The recording lasted more than 3 hours after which police officers, who had been keeping watch, arrested the three men.

The defence for Berry, Mr. Michael Mansfield, said there was nothing in the tape which was detrimental to national security and that playing the tape in secret amounted to prejudging the case. Campbell’s defence, Mr. Geoffrey Robertson said that his client would say the prosecution had mistook investigative journalism for subversion and the other side of the coin should be heard. He also pointed out the inconsistency in the application of secrecy in that Berry needed written permission to visit any country in the Soviet bloc for just two years after his Army discharge yet he could never go to Time Out.

Old Bailey trial

The trial at the Old Bailey began on 5th September 1978. Before the trial had opened, the prosecution had gone to considerable lengths to keep secret the identity of Colonel B. His actual name, Colonel HA Johnstone was published in The Leveller magazine. This prompted Samuel Silkin QC, the Attorney General, to apply for jail orders for the magazine’s publishers under the grounds of Contempt of Court. Colonel ‘B’ had already been named three times at a National Union of Journalists conference in April 1978 when Special Branch officers attempted to deliver contempt of court actions to the NUJ’s General Secretary, Kenneth Ashton.

The attempts to protect the identity of Colonel B (which Crispin Aubrey described as “…the security services tried to cloak their witnesses in anonymous letters and make the whole affair appear more sinister.”) began to degenerate further into farce when the Speaker of the House of Commons had to rule whether the Director of Public Prosecutions was in contempt of Parliament over a memorandum to newspapers to protect the identity of Colonel B.

At the heart of the case during the first trial was the accusation against Campbell that he had “tried to discover the layout and function of the United Kingdom’s defence communication system”; Mr. John Leonard QC for the Crown, argued that Campbell had used his skill to fit together pieces of a jigsaw to present a picture that might be valuable to a potential enemy.

At no time was Campbell accused of trespassing on Ministry of Defence property or of deliberate espionage. The Crown’s case rested on the fact that Campbell had been clever enough to put together a picture of a communication infrastructure based on public records, photographs of public structures (such as radar antennas) and even from entries in the public telephone directory.

Trial abandoned

The trial itself was dramatically halted on 22nd September when two new conditions came to light:

Solicitors advising Duncan Campbell had told him the prosecution would not be proceeding with its case, that he breached Section 1 of the Official Secrets Act, the most serious of the charges the ABC were to face.

Mr. Justice Willis ordered a new trial for the ABC defendants because of what he described as a “piece of gratuitous journalistic gossip” on the London Weekend Television programme "Saturday Night People". In this programme it was revealed that the foreman of the jury in the ABC case was an ex-SAS soldier and the defence counsel had argued that as the SAS had close links to intelligence and counter-terrorist units he may not have had an open mind on the case.

Second trial

On October 3rd 1978 the trial reopened at the Old Bailey and each juror now had to declare any involvement with the armed services within the last 15 years leading to one juror being asked to stand down.

On 24th October the first charge that Campbell was in breach of Section 1 of the Official Secrets Act 1911 that he “[was] collecting sketches, notes, documents and information about defence communications for a purpose prejudicial to the safety or interests of the state;” the judge formally entered a verdict of Not Guilty as Mr. John Leonard, QC for the Crown said no evidence would be offered on the charge.

Crucially the abandonment of the Section 1 charges came about as the Judge was unhappy about them being applied in this case as it specified: “a purpose prejudicial to the safety or interests of the state”.

The Judge found the Section 1 charges “oppressive” as the provisions of Section 1 had been reserved for spying and sabotage cases and the Crown had made clear there were no accusations of spying involved in the alleged offences against the ABC defendants. Without any evidence of spying taking place or an intention to spy or to assist a possible enemy, the Section 1 charges were wholly without substance.

Also, the Judge noted that in 1964 the House of Lords made an authoritative decision that Section 1 on the application of the charge to sabotage and that no one seemed to consider that Section 1 was appropriated to cover anything other than spying or sabotage.

Statement by Campbell

On 1st November 1978, Duncan Campbell in his defence made the following statement in relation to receiving information and its context within the Official Secrets Act 1911:

“The second…is a common sense interpretation which you have to make, because if the Act was interpreted literally every newspaper published would be in contravention of it.”

Campbell went on to say that his Not Guilty plea rested on the statement of the then Home Secretary, Merlyn Rees who said in the Government’s view the mere receipt of information should no longer be an offence. Campbell also said that although he was charged with the receipt of information from Berry, he commented that it was “dross rather than gold” and that he gained a few minor details he could have picked up elsewhere. He said that he had actually gone to Berry as me may have been able to cast some light on the deportations of American journalists Philip Agee and Mark Hosenball but it sooner became clear Berry knew very little about them.

The receipt of information became central to the allegations against Campbell; on the 4th November Campbell said that the aerial photographs of army signals intelligence units had been obtained from a United States agency which sold satellite surveillance photographs which were available for $60. He had also gained details of the Signals Intelligence units (“SIGINT”) from a published volume known as the International Frequency List.

Verdict

On Thursday, November 16th 1978 Duncan Campbell was found guilty at the Central Criminal Court of receiving information about British Signals Intelligence from a former soldier. On the previous Tuesday Crispin Aubrey had been found guilty of abetting Campbell and John Berry guilty of communicating information to Campbell. They were sentenced by Mr. Justice Mars-Jones as follows:

• Aubrey: Conditionally discharged for three years and ordered to pay £2,500 towards prosecution costs and a third of his own.
• Berry: Sentenced to six months imprisonment, suspended for two years and ordered to pay £250 defence costs.
• Campbell: Conditionally discharged for three years and ordered to pay £2,500 towards defence costs and £2,500 towards his own.

Conclusion

The ABC trial failed for several basic reasons:

The first was it demonstrated in court how oppressive and unenforceable official obsession with security had become, especially where the military was concerned. The Judge had described the Section 1 charges as “oppressive” and in the opinion of Campbell, “SIGINT [Signals Intelligence] is illegal. It is contrary to a number of international conventions and people doing SIGINT are left in no doubt about it they are engaged in illegal activity.”

The Law Society went on to say that the decision of Attorney General Samuel Silkin, QC, to continue to prosecute the two journalists even after the Section 1 charges had been dropped struck at “the very foundations of journalism” according to a leading article in the Law Society Gazette.

The critical part of the case splits in to two parts; first Campbell and Aubrey were prosecuted for the mere receipt of information which was all the prosecution had ever alleged and secondly as Campbell et al made clear at various points during the trial nearly all of it was public knowledge, including the information which would have made identifying Colonel ‘B’ easy. In the press conference after the trial Campbell reiterated the point that the state had cast an enormous net to “catch a tiny tiddler” and that none of the information they had received from Berry was a secret nor, in his opinion, was it damaging. The Crown had been forced to drop the Section 1 charges of Campbell collecting information which included such names as the Post Office towers in London and and Birmingham “and which could not be mentioned because it would be damaging to the interests of the State.” At this point the trial had started to become farcical.

The National Union of Journalists said “the verdict could only give heart to those who wished to create a more closed society in which journalists were unwilling or unable to expose improper activities by government…All journalists are now placed at risk whenever they interview unofficial sources about government activities.”

Timeline

• 18 February 1977: Aubrey and Campbell (the two journalists) interviewed Berry
• 20 February 1977: All three men were arrested and charged under Section 2 of the Official Secrets Act 1911 (Berry was charged with "communicating classified information to unauthorised persons", and Campbell and Aubrey with "unauthorised receipt of classified information")
• 24 May 1977: Further charges were added under Section 1 of the Official Secrets Act 1911
• 9 August 1977: Additional charge under Section 1 against Duncan Campbell, for collecting information
• November 1977: Committal hearing at Tottenham Magistrates Court. First appearance of Colonel B as a prosecution witness.
• 5 September 1978: Trial opens at the Old Bailey in front of Mr Justice Willis
• 18 September 1978: Trial stopped after jury foreman exposed as a former SAS officer
• 3 October 1978: Second trial opens in front of Mr Justice Mars-Jones
• 24 October 1978: All Section 1 charges dropped
• 17 November 1978: Aubrey, Berry and Campbell receive non-custodial sentences

References

• Campbell, Duncan (1979). Official Secrecy and British Libertarianism
• Aubrey, Crispin (1981). Who's Watching You? Britain's Security Services & the Official Secrets Act (1st ed.). Penguin Books. ISBN 0-14-022283-9.
• Robertson, Geoffrey (1999). The Justice Game, Vintage Books. ISBN 0-09-958191-4

External links

• The ABC Trial via archive.org
• Ferrets or Skunks - Chapter Five from Robertson (1999)

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