8 March 2001: Link to Court of Appeal order dismissing appeal.
3 February 2001: See related Times Law Report on the case:
http://cryptome.org/mi6-times-lr.htm
29 January 2001
Source: Fax from Anonymous.
These witness statements were submitted to the High Court and court of Appeal reviewing a lower court decision to allow publication by The Sunday Times of extracts of Richard Tomlinson's book, The Big Breach. Publication was opposed by HMG and SIS (MI6).
The AH statement was put into the High Court and the Nicholas Fielding statement in response went into the Court of Appeal a few days later.
The Court of Appeal (which is superior to the High Court) reviewed the statements and ultimately ruled in favor of The Sunday Times.
[6 pages.]
Claimant
AH
First Witness Statement
Dated January 2001
Exhibits AH1-13
[Exhibits not provided]
1996-H No. 992
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HM ATTORNEY GENERAL
Claimant
-v-
TIMES NEWSPAPERS LIMITED AND OTHERS
Defendant
___________________________
WITNESS STATEMENT OF
AH
___________________________
I, AH, C/o The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway,
London, SW1H 9JS state as follows:
1. I am a member of the Secret Intelligence Service ("SIS") and since March 1998 have held the post of Head of Security and Counter Intelligence. My duties include protecting the security of SIS operations, agents and staff. During this period, I have been made aware of information received by the Service concerning attempts by Richard Tomlinson, a former member of SIS, to make unauthorised disclosures of information relating to SIS and gained during the course of his employment with SIS. I also have responsibility for the assessment of damage to national security that could be caused by such disclosures.
2. According to information from secret and sensitive sources, Tomlinson has been in contact with a Russian national since at least May 1999 to discuss the publication in Russia of his book about SIS. Tomlinson was reported to have been contacted by e-mail [text obscured] following the publication on the internet of a list of alleged SIS officers in May 1999. In the article accompanying the list, the list was attributed to "an honest man who has since left MI6 because he felt that the behaviour of that organisation was unacceptable in a civilised society" (exhibit "AH1"). In June 1999 an individual calling himself Stepan Ustinov and described as the General Director of a Moscow publisher named Narody Varant sent Tomlinson a "Non-Disclosure Agreement", concerning the proposed publication of his book (exhibit "AH2"). Following receipt of this agreement Tomlinson sent him a copy of the synopsis of his book and a sample chapter.
3. Subsequently, while Tomlinson was in Germany, he was reported by a secret source to be in contact with a Russian national calling himself Serge Korovin concerning the publication of his book. Korovin suggested to Tomlinson means of overcoming any legal obstacles which prevented him from concluding an agreement with Korovin's firm, Narody Varant. I assess Serge Korovin to be acting on behalf of a Russian intelligence agency and the publication project to be under their control. SIS have learned from secret sources that Korovin has travelled to the United States and Switzerland in pursuit of his plans to publish Tomlinson's book using documents in the identity of Kirill Vladislavovich Chashchin (born 31 May 1969 of Parifilova Street, Building 2, Apt 3 Moscow). Korovin is also reported to use professional intelligence methods including anti-surveillance techniques. Korovin knows very little about publishing, despite claiming to represent a publishing house. His Moscow firm, Narody Varant, uses the address "Ulitsa Chasovaya building 19/8, 3rd entrance, (unmanned premises), Moscow 125315", The firm has no public record of publishing or any other trading activity.
4. On 2 November 1999 Richard Tomlinson wrote to the Chairman of the Intelligence and Security Committee, wrongly claiming that SIS were responsible for his arrest and detention by the Swiss Federal Police on 1 November (exhibit "AH3"). He also said that "in retaliation, today I contacted a foreign intelligence service that has been cultivating me for some time, but whose advances I had so far resisted, and gave them some secret information. I will repeat this action if I am inconvenienced in this way again."
5. This was followed by a letter from Tomlinson to the Home Secretary on 16 December 1999, asking for approval to submit a draft manuscript described as being about his dispute with SIS, and threatening that if permission was not given, he would take up the offer made to him by an overseas publishing house who wanted to scandalise the book in order to maximise revenues (exhibit "AH4"). Tomlinson was informed of the procedures for submitting for official approval the manuscript of his book in a letter from the Treasury Solicitor on x January 2000 (exhibit "AHx"). [x indicates obscured text.]
6. Attached to Tomlinson's letter was an e-mail which he described in his letter as being from the overseas publishing house and displaying a robust attitude to any legal attempts to stop publication (exhibit "AH4"). The e-mail disguised the location of the publisher and omitted the publisher's name. In it the writer stated "We don't mind dealing with anything called 'copyright infringements' and 'broken promises to SIS' and 'broken contracts' (if it is not a contract with us, of course). We will be more than happy to break the Crown copyright, should you have 'commitments' like this you believe are hard to break."
7. I consider it most likely that the writer of this e-mail attachment is the individual calling himself Serge Korovin.
8. In March 2000, according to secret sources, Tomlinson discussed with Korovin his wish to retain UK and Commonwealth rights to his book and to use a firm of UK publishers, in addition to the Russian publication. In return Korovin wanted to publish in the US and Russia before the book appeared in the UK. He also wanted Tomlinson to come to Moscow for the launch. Korovin asked for confirmation from Tomlinson that his use of a UK publisher would not mean that it would be an authorised, censored or vetted book. Korovin told Tomlinson that it would be the role of Nick Fielding of The Sunday Times to arrange Sunday Times serialisation and a UK publisher, obtaining maximum UK publicity and the widest possible distribution for the book.
9. From articles published by Mr Fielding it would appear that he had been in touch with Tomlinson since at least May 1999 when, claiming to be in direct contact with Tomlinson, he wrote an article reporting the Government's attempts to prevent Tomlinson from carrying out his threat to disclose on his website the synopsis of his book and a list of names of SIS staff (exhibit "AH6"). In November 1999, Mr Fielding wrote a further article reporting a conversation with Tomlinson in which Tomlinson stated his continuing interest to publish his book and described sending an outline of the book to a named UK publisher (exhibit "AH7").
10. Secret sources had reported that in early February 2000 Tomlinson had contacted Mr Fielding to say that he had found a Russian publisher for his book. Tomlinson had told Mr Fielding that the first print run was to be in the Russian language and asked whether Fielding's paper, The Sunday Times, was interested in buying the English rights, as the authorities could not use injunctions to stop publication once it had been published in Russian.
11. According to further reporting from secret sources, Korovin, Tomlinson and Fielding met in Italy at the end of March 2000. Korovin offered Tomlinson $25,000 for his book.
12. In May 2000 SIS learned from secret sources that a draft contract between Tomlinson and Korovin's firm had been drawn up by a Swiss literary agent, MediaPartner GmbH of Zurich. Korovin had transferred $40,000 into an escrow account held by the literary agent and was prepared to transfer it to Tomlinson in exchange for his signature on the draft contract and the manuscript.
13. On 12 May 2000 Swiss lawyers acting on instructions from the Treasury Solicitor wrote to the Swiss literary agent notifying them of the terms of an injunction against Tomlinson granted by the Swiss Courts in June 1999 and asking them not to participate in or further any agreement with Mr Tomlinson in breach of the injunction (exhibit "AH8"). The literary agent's lawyer replied on xx May 2000 [obscured text] (exhibit "AH9").
14. Following the detention of Tomlinson by the Italian and British police in Rimini on 17 May 2000 and the confiscation of his computer equipment, it was reported in the international media that he had admitted that he had signed a contract the previous Friday in Zurich with a Russian publisher (named as "Narody Varant" in the New Zealand Herald on 31 May) to publish a book about his persecution since leaving MI6 (exhibit "AH10"). In a separate New Zealand newspaper, however, Tomlinson was quoted as describing his book as being about his time as an SIS agent (exhibit "AH11").
15. Also on 18 May Tomlinson was quoted in The Daily Express as saying that he had signed a contract the previous Friday in Zurich to publish a book about his persecution since leaving MI6 (exhibit "AH12").
16. In an interview entitled 'A Day in the Life' in The Sunday Times colour supplement of 20 August 2000, Tomlinson was reported to have said that he had found a Russian publisher who had "told MI6 where they can get off" and that publication was the only way forward (exhibit "AH13").
17. 1 have been asked to give evidence of the likely contents of Tomlinson's book and the damage that would be caused by publication. I have seen a copy of Tomlinson's manuscript received by SIS in November 1996, under the terms of an injunction requiring his then literary agent to deliver up the manuscript he had received from Tomlinson. I have also seen the synopsis of a book by Tomlinson that he gave in 1997 to an Australian publisher and for which he was subsequently convicted under the Official Secrets Act 1989. I have also seen a synopsis of Tomlinson's book which he sent to British MPs in 1999. Both these synopses correspond closely to the 1996 manuscript of the book. According to information from secret sources, Tomlinson was in possession of a book very similar in content to the original manuscript at the time he sent the synopsis to British MPs. I therefore consider it highly likely that the version of the book about to be published in Russia contains chapters on Tomlinson's time in SIS corresponding closely to the chapters I have already seen,
18. Tomlinson's book contains information which, if it comes to the knowledge of foreign governments and foreign intelligence and security services, would cause damage to national security, by revealing SIS methods and operations and endangering the security of members of staff and agents. Information in his book could help identify agents whose well-being and safety would be endangered if they were clearly identified as agents of SIS, Some of the operations described involve assistance from foreign liaison services. Disclosure of such operations would call into question the Service's ability to protect those who co-operate with them and the information they provide. Such disclosures therefore risk causing serious and long term damage to the Service by discouraging co-operation from existing and prospective agents and liaison contacts. The book is also likely to give details about premises and facilities used by the Service. Though the locations of some SIS premises are in the public domain, other details of SIS premises and facilities remain secret. The detailed information in the book would be of value to terrorist organisations wishing to target these premises/facilities and members of the Service using them. The rocket attack on the Service's headquarters in September 2000 confirms the seriousness of this risk.
19. The likelihood that a Russian intelligence agency may be in possession of Tomlinson's book, and of any other information he may have given them, does not necessarily mean that no further damage to national security would be caused by publication. The Russian intelligence agencies are unlikely to share all the information they have with third parties, whose possession of the information would result in damage. Similarly, small scale publication overseas would not necessarily come to the attention of such third parties. Widespread publication of the information, on the other hand, either in book form or via the media or internet, would be likely to do so.
I believe that the facts stated in this statement are true.
SIGNED: ______________________ [No signature.]
AH
DATED: 18 January 2001
[7 pages.]
1. Statement made on behalf of the Defendants
2. Nicholas Fielding
3. First Statement
4. Exhibits:
5. Made on 23 January 2001
1996 H No 992
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BETWEEN:
HER MAJESTY'S ATTORNEY GENERAL
Claimant
- and -
(1) TIMES NEWSPAPERS LIMITED
(2) TIM KELSEY
(3) DAVID LEPPARD
Defendants
___________________________
WITNESS STATEMENT OF
NICHOLAS FIELDING
___________________________
I, NICHOLAS FIELDING, of 1 Pennington Street, London E1 9XW, state
as follows:
1. I am a senior reporter on The Sunday Times, where I have worked since October 1999. For the previous seven years I worked as a journalist for The Mail on Sunday, rising to the position of Chief Investigative Reporter, I have read the witness statement of AH dated 18 January 2001 filed by the Claimant. The matters to which I refer in this statement are within my own knowledge save where otherwise stated.
2. As a journalist, I have specialised in investigative reporting and have covered many subject areas, including intelligence. While at The Mail on Sunday I was highly commended in the annual Newspaper Publishers Association's journalism awards for my work on a series of stories about David Shayler, the former Security Service officer. In October and November 2000 I became involved in a major police operation concerning a German Enigma coding machine stolen from Bletchley Park, home of British codebreaking during the Second World War. My involvement resulted in the arrest of a man. I later received copies of two letters sent to the Editor of The Sunday Times. The first, from the director of the Bletchley Park Trust, Christine Large, stated: "I cannot praise Nick too highly for his commitment, good judgement, integrity and, of course, journalistic skills. His presence of mind in stressful circumstances enabled the police to achieve a massive leap forward in the investigation." The second letter, from Sir Philip Duncombe, chairman of the Bletchley Park Trust, stated that The Sunday Times had "done the nation a great service."
3. 1 have closely followed events connected to Richard Tomlinson, the former Secret Intelligence Service (SIS) officer. For the past two years I have, like many other journalists, both in Britain and abroad, communicated with him on a regular basis. His peregrinations around Europe have been a constant source of news, reported on by almost all national newspapers in Britain including The Sunday Times. As he made no secret of it, I have known, in a general sense, that Tomlinson has intended to publish a book,
4. Early last year I was contacted by Richard Tomlinson from Rimini in Italy, where he was staying at the time. He told me that he had found a publisher in Russia for his book. I have read paragraph 10 of AH's statement concerning Tomlinson's contact with me. I cannot recall Tomlinson going into the detail set out in that paragraph. All I can remember was that it was clear to me that the project was still at a very preliminary stage. My interest at that stage was whether or not there was any genuine prospect of the book being published. I passed on the information and it was decided that I should visit Richard Tomlinson in Italy to find out if his intentions were genuine. The Sunday Times had previously published an article saying that Tomlinson was in Moscow, where he intended to manufacture and market a Vodka drink. The story, which Tomlinson had told himself, subsequently turned out to be false and the paper did not wish to be misled a second time.
5. I flew out to Rimini and had my first meeting with Richard Tomlinson in early March. There was no-one else present. He told me of his intentions and said that it was not a joke. He said his Russian publisher, Sergei Korovin, was coming out to see him and that I could meet him if I wanted to. I returned to London the following day and reported back my conversation to my colleagues, It was decided that I should go back to Rimini to see if Mr Korovin did turn up and to assess his intentions.
6. I returned to Rimini at the end of March and met with Korovin and Tomlinson. Korovin told me that he intended to publish the book, although he also said that no contract existed. We did not have any discussions about terms nor of the logistics of publishing the book. I did not agree to assist in any way with the publication of the book. It was clear to me from the meeting that things were at an early stage and publication of the book was not imminent. I have read paragraph 8 of AH's statement referring to discussions between Tomlinson and Korovin at that time. None of the matters to which he refers were discussed during my meeting with them. In particular there was no discussion of any "role" for me in arranging a serialisation in The Sunday Times and a UK publisher with a view to obtaining maximum UK publicity and the widest possible distribution for the book. If there had been, I would have told them that there was no question of my becoming involved in the way that Korovin apparently suggested, more or less as their "stooge".
7. My impression of Mr Korovin (who spoke very good English) was that he was one of the new breed of entrepreneurs in Russia who saw in the publication of Richard Tomlinson's book the possibility of an interesting business opportunity. This was the only occasion I met him and I did not speak to him again until December, as I mention in paragraph 12 below.
8. I returned to London and reported my findings to my colleagues. As I have stated above, at no point during the meeting with Korovin or Tomlinson, did I agree to assist in any way with the publication of the book. I knew that The Sunday Times would be interested, if the book was published, in exploring the possibilities of printing extracts, but I was also aware of the legal situation in respect of publishing Tomlinson's writings of his time in SIS in the UK. I knew of the existence of several court orders and I took legal advice from The Sunday Times' Legal Department about my own circumstances.
9. In May we heard that the Swiss courts had acted against a Swiss literary agent who had drawn up a literary contract between Tomlinson and Korovin's company, NAO Narodny Variant. Shortly after this Tomlinson informed me of the raid on his flat in Rimini by Italian and British police officers, during which many of his possessions were removed, including his computer, computer discs, mobile phone, Psion computer, television remote control, books and legal papers.
10. Despite several reports that Richard Tomlinson had signed a contract, it was still unclear to me whether or not publication was going to go ahead. While on holiday in Italy in September, I met up with him. I consciously did not raise the subject of the book with him, nor did he volunteer me any further information.
11. During the autumn Tomlinson kept in touch with me, He called me on several occasions to tell me about the level of harassment he was experiencing. He told me he believed a firm of Italian private detectives had been hired to follow him and spread malicious rumours about him. At one point, he said, his landlady and neighbours had been told that he was a paedophile. On two occasions, he told me, he had called the Italian police after being followed while driving his car.
12. In December last year Richard Tomlinson called me to say that his book was now very likely to go ahead. I decided to visit him again to assess the likelihood of the book being published. I flew to Milan and met him on Lake Garda. It was clear that events had progressed since the spring. lie told me that a launch date bad been set for mid-January 2001 in Moscow and that he was considering whether or not to be present himself. I returned to London to impress on my colleagues the imminence of publication. On my return I also spoke to Korovin in Moscow and he confirmed the details that had been given to me by Tomlinson.
13. Shortly after this The Sunday Times saw the manuscript of the book and began to assess it. The paper decided to run a number of extracts based on Tomlinson's experiences since being sacked from SIS, on the basis that the material was not the subject of a court order and would be no threat to national security. The paper had already, many months before, begun moves to vary the order governing the conditions under which Tomlinson's writings could be published in Britain. Whether any further extracts can be published may depend on the outcome of this legal action.
14. 1 have read the Attorney General's skeleton argument for the hearing on 24 January and refer in particular to paragraph 13. As should be clear from the events I describe above, The Sunday Times did not collude with and was not involved in any way with Mr Tomlinson or his publisher to bring about the publication of the book. In paragraph 13.3 the Attorney General refers to a number of matters which he says the Defendants have failed to explain. The Defendants and I, as a matter of principle, will resist any attempts to compel us to disclose our sources. Subject to that proviso, there is some information we are prepared to disclose, I shall deal with the particular points raised in the subparagraph in turn.
14.1 Times Newspapers Limited does have a copy of the book as it reported in The Times on Saturday 20 January 2001.14.2 As to how it came to print extracts from the book before it was published, see paragraph 13 above.
14.3 The article in The Times on 20 January described how a copy of the book was obtained; a reporter travelled to Moscow and bought it,
14.4 As regards the text of the book, we first saw it in December 2000.
14.5 The question of whether the publication of the book in the UK by us would represent a breach of the existing undertakings is a matter of law. The Defendants have no intention of breaching their undertakings.
14.6 As I have already stated, the Defendants have had no involvement in the arrangements made for the publication of the book in Russia.
14.7 I have been informed by Times Newspapers Limited's Legal Department today that the company accepts that, as is usual when it publishes extracts from a book, it is liable to pay for them. We have already agreed to pay for the material (which was not covered by the undertakings) published on 14 January 2001. Because of the uncertainty of the legal position there is no firm commitment to pay for any future extracts from the book. But, naturally, if any further extracts are published, Times Newspapers Limited will pay an appropriate amount. I personally have had no part in any negotiations concerning payment for material from the book.
14.8 There has been no collusion on the part of the Defendants with Richard Tomlinson or anyone else to bring about publication of the book overseas. There has been no intention of procuring a breach of the existing undertakings.
14.9 I was not employed by The Sunday Times in 1996. I was not therefore involved in the matter at that time. However, I believe that paragraph 13.5 of the skeleton argument is incorrect in that I believe that all The Sunday Times was aware of when it gave the undertakings in November 1996 was that there was a proposal by Tomlinson to publish a book, as can be seen from the wording of proviso C.
15. As for paragraph 19.5 of the Attorney General's skeleton argument, I would comment that The Sunday Times is always keen to be first with a story and does not want to be limited to republishing only what other newspapers have chosen to publish. There is nothing unusual about this.
16. I believe the contents of this witness statement are true.
Signed [Signature]
Nicholas Fielding
Dated 23 January 2001