ccRcCriminal . Cases . Review. Commission

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Private and GonfidentialMrRichardJCTomlinson324 Allee Des Bergeronnettes Your ref:

06210 Mandelieu - Our ref: 0021912009

France8 September 2011

Dear Mr Tomlinson

Provisional Statement of Reasons

The Commission has considered your application for a review of your convictionand sentence and has reached a provisional view that they should not be

referred for a fresh appeal. We have enclosed a document called theProvisional Statement of Reasons to explain how we reached this view.

Please read the Provisional Statement of Reasons carefully.

What can you do now?We realise that you will be disappointed and may disagree with our conclusions.lf you would like to make further submissions please send them to us by 3

November 2011. You do not need to repeat the submissions you have alreadymade to us, but you should contact us if any of the following apply.

. lf you feel there are any serious factual inaccuracies or errors in ourlegal analysis in the Provisional Statement of Reasons, please put thedetails in writing.

o lf you have new information, which the Commission has not yet seen,and it may be crucial to your case, please put the details in writing.

. lf you need more time to make further submissions to the Commission,please write and tell us why you need extra time.

5 St Philip's Place, Birmingham Bg zPW, DX7t5466 Blrmingham 4te:info@ccrc.gov.uk t. 0121 23g 1473 | 0121 Z3z o899 w: www.ccrc.gov.uk

The independent public body which investigates possible miscarriages of justice in England, Wales and Northern lreland

You must contact us by 3 November 2011 or your case will be closed.

Closing your caself we do not hear from you, or your representatives, we will assume that there isnothing further you wish us to consider and we will make a final decision onyour application. However, you may re-apply at any time in the future shouldnew information come to light.

Yours sincerely,

Philip J Pledger.Case Review Manager.

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CRIMINAL APPEAL ACT 1995

PROVISIONAL STATEMENT OF REASONS

CCRC Reference: 00219/2009

Applicant: Richard Tomlinson324 Allee Des Bergeronnettes06210 MandelieuFrance

Applicant's Representatives : Not represented

ln the exercise of its powers under the Criminal Appeal Act 1995 ("theAct") the Criminal Cases Review Commission ("the Commission") hasconsidered the application of Richard Tomlinson for review of hisconviction and sentence.

The Commission has reached a provisional view that there are no groundson which to refer Mr Tomlinson's conviction or sentence to the Court ofAppeal.

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Details of Conviction and Sentence

Date: 24 November 1997

(Sentenced 18 December 1997)Court: Central Criminal Court

Offence SentenceUnauthorised disclosure ofinformation (sl Official SecretsAct 1989)

1 2 months' imprisonment.

Summarv

i. The Commission may refer a conviction to the Court of Appeal onlyif there is a real possibility that the conviction will be overturned.The reference must be based on some new evidence or argumentthat was not raised at trial or appeal, unless there are exceptionalcircumstances.

ii. The Commission may refer a sentence to the [Court of Appeal onlyif there is a real possibility that the sentence will be reduced. Thereference must be based on some new information or an argumenton a point of law that was not raised at trial or appeal.

iii. The Commission may refer a conviction or sentence only if theapplicant has already appealed or applied for leave to appealagainst that conviction or sentence, unless there are exceptionalcircumstances.

iv. Further details of the Commission's powers are outlined in Annex A.

v. On the information available, the Commission has reached aprovisional view that there is no real possibility that Mr Tomlinson'sconviction or sentence will be overturned. The Commission's view isexplained in the "Analysis and Reasons" section of this Statement ofReasons. Mr Tomlinson is entitled to make further submissions in

response to this provisional view. Any further information orsubmissions in response must reach the Commission by 3November 2011.

vi. The position in relation to disclosure of material is set out in AnnexB.

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The Trial

This section summ"r',

ilf"i::I:lp fi]:T:l*I_!!g o,"orgcution ino o"r"nce at triar rt doesnot necessariry refrect the commission's ui"* ;i th;t ";;:,#J';1'JH:::arguments or indeed lh" applicant's asses#ent of the evidence orarguments as presented to the Commission.

The commission has been informed that the crown court file relating tolH";::""ifl*::i i::T"^y:lfa

-"L*,i"nc"e with the court,s usua,retention poricies and that no tapes.h?u9. 0""" pr";"lr_*: ir",:tlJ#:ilis accordingry based upon do.rm"ntr [_!!e rerevant cps fire.

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1' on 24 November 1gg7 Mr Tomrinson preaded guirty to an offenceunder s1(1) of the official secrets A.t-tgsg in that without lawfulauthority he disclosed information which was-within his possession asa result of his former.employment with the secret lntelligence service(sls). A sentencing heaiing took ptace on ia o"""rber 19g7.

The prosecution case

At the sentencing hearing the court was tord that Mr Tomrinson hadbeen an officer with the -sts.

on nis appoiniment he had signed anofficiat secrets. Agts (osA) oecriiaiion "in

which rre hadacknowredged -his obrigaiions under the Acts and that unrawfurdisclosure of information- might resurt in nis prosecution. He had arsosigned an undertaking that rie wgurd n91

"i Jnvli,'" pubrish anythingin relation to security or inteiligence matters without prior approvar.

Mr Tomrinson's appointment had b"gl for a probationary period andin 1995 it was decided that his appointment snould not be confirmed.on 22 May 1995 Mr Tomrinson was given formar notice t"irinrtinghis emptoyment with effect from 3t nuiusi f ggJ.'ln June 1gg5 Mr Tomrinson made a craim for unfair dismissar to anlndustriar Tribunar. The secretary of state for Foreign andcommonwearth Affairs issued a certiricate to the effect that, becauseof the nature of Mr Tomrinson's

"rprovrl,it and to safesuard::pl:lsecurity, Mr Tomtinson shoutd i,"iil;in*"i ," orrrlrt n,,grevance by way of a hearing before ,r.h-" tribunar. A raterapplication by him to the riteiligence services Tribunar wasunsuccessfur as was a renewed jpprication bv him to have hisdismissal considered by an lndustrial Tribunal.It was crear that Mr Tomrinson felt aggrieved by his treatment by thesls and by his inabirity to pri.r"- r,i, grievances by way of anlndustrial rribunal hearing. 'ln

March ;J'M;y of 1996 articlesappeared in the nationar press which *"ri oaseo on information

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which he had provided and in September of 1996 (and as a result ofthreats made by Mr Tomlinson to publish further information about hiswork with the SIS if the objections to an Industrial Tribunal hearingwere not withdrawn) injunctions were obtained against him. lnFebruary of 1997 Mr Tomlinson entered into a settlement agreementwith the SIS whereby, among other things, he again acknowledgedhis obligations under the OSAs.

ln May of 1997 Mr Tomlinson provided a publisher in Australia withthe synopsis of a book concerning his former employment with theSlS. lt was that disclosure which was the subject matter of the chargeagainst him. ln the view of the SIS disclosure of the material in thatsynopsis was in various ways damaging to national security.

ln June 1997 Mr Tomlinson wrote to the SIS requesting permission towrite a book drawing on his former employment with the SIS; heindicated that he was unwilling to accept 'no' for an answer. He wasinformed that the SIS would not grant such permission and wasreminded of the terms of the settlement agreement and of theinjunctions which had been granted against him.

On 31 October 1997 Mr Tomlinson was arrested by the MetropolitanPolice and on 1 November 1997 he was charged with an offenceunder section 1(1) of the OSA 1989. He pleaded guilty to that offenceon 24 November 1997 .

Mitiqation

Mr Tomlinson admitted passing the synopsis of his book to theAustralian publisher. He admitted keeping details of the book on anumber of computer files.

It was said on Mr Tomlinson's behalf that by the time of his arrest hehad had no intention of giving the synopsis of his book any widercirculation. lt was also contended

(i) that information similar to some of that in the synopsis wasreadily available in material which had already beenpublished;

(ii) that the synopsis was littered with misleading or inaccurateinformation and that it was only with the benefit of furtherinformation that any proper connection with the truth could bemade; and

(iii) that for these and other reasons the scope for damage tonational security was at most limited.

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11. lt was put to the court that the case had arisen out of Mr Tomlinson'sgenuine sense of injustice with the SIS concerning his dismissal andthat, although he had at times been in the depths of despair, he hadnot made the much more damaging disclosures which he hadthreatened to make. lt was also pointed out that he was of goodcharacter, that he had given a full police interview, and that he hadpleaded guilty at the earliest opportunity

Judqe's Observations

12. Although no detailed record of the judge's sentencing remarks isavailable, it appears from media reports that when passing sentencethe Judge made observations to the effect:

(i) that Mr Tomlinson had shown a determination to publishinformation which he knew was actually and potentially harmfulto the public interest; and

(ii) that it was the duty of the Court to pass a sentence which mightdeter others from pursuing the course which Mr Tomlinson hadchosen to pursue (albeit he was conscious that it might notdeter Mr Tomlinson).

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The Appeal

This section summarlses the arguments raised on appeal and theoutcome of the apoeal.

13. Mr Tomlinson has not applied for leave to appeal against either hisconviction or his sentence

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The Applicant's Submissions14. Mr Tomlinson's application was received at the Commission on 23

March 2009. He seeks a review of his conviction and sentence on thefollowing grounds:

(i) He was denied access to evidence against him at hissentencing hearing and was unable to call defence witnesses,(e'9. an intelligence officer from a hostile state) to argue thatthe information which Mr Tomlinson had disclosed washarmless and irrelevant;

(ii) He pleaded guilty because he did not wish to be remanded incustody as a Category A prisoner for an extended period whenthe maximum sentence for the offence was itself only twoyears' imprisonment and the probable sentence 12 months.The fact that he was a Category A prisoner was a contrivanceby the authorities to coerce him into preading guirty.

15. In later correspondence with the Commission Mr Tomlinson has also:(i) sent to the commission a copy of an article by Andrew

Roberts in the sunday Telegraph of 16 May i ggg anocontended:

. that it is unfair that the sls pressed for Mr Tomlinson tobe prosecuted but did not press for others to beprosecuted (including Mr Roberts and Lord patten)even though they had disclosed information of a similarnature to that disclosed by Mr Tomlinson; and

o that Mr Roberts had defamed him in his article;(ii) sent to the commission a printout of an article on the BBC

website o! z.o January 2010 about a book published byStephen De Mowbray and contended:

. that it is likewise unfair that the sls has failed to pressfor/procure the prosecution of Mr de Mowbray;

"nO. that the sls behaved badly towards Mr Tomlinson bysacking him without warning and then refusing to allowhim to go lg an emproyment tribunar because they knewthey would lose;

(iii) sent to the commission a copy of a 'letter of dismissal' tohim dated 2s April 1gg5 and in that regard repeated hiscontention that the sls had behaved badly towards him.

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The Commission's Review

16. The commission has during the course of the review examined:

' Mr Tomlinson's application and associated correspondenceand documentation; and

. The Crown Prosecution Service file.

17. The commission has also made enquiries of the sls and of thePrison Service.

18. The Commission has attempted to obtain relevant Crown Court andPrison Service files but has been informed that those files have beendestroyed in accordance with normal retention policies and that notapes of the sentencing hearing have been preserved.

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Analvsis and Reasons

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Generally

The Commission may refer a conviction or sentence to the Court ofAppeal only if there is a real possibility that that conviction orsentence will be overturned or reduced. That real possibility mustusually be based on some new evidence or argument that was notraised at trial or appeal.

Unless there are 'exceptional circumstances' - and even if there issuch a real possibility - the Commission may refer a conviction orsentence only if the applicant has already appealed or applied forleave to appeal against that conviction or sentence.

Under the Criminal Appeal Act 1995 the Commission "may" - not"must" - refer a conviction or sentence to the Court of Appeal if theconditions for a referral are met. This means that the Commissionhas a discretion not to refer a conviction or sentence in thosecircumstances. When deciding whether or not to exercise thatdiscretion the Commission will consider, among other things, whethera reference is likely to be of benefit to the applicant, to the publicinterest or to the criminaljustice system as a whole.

Access to evidence and the defence witness

Mr Tomlinson submits that evidence was withheld from him at thetime he was sentenced and that he was prevented from callingwitnesses (such as an intelligence officer from a hostile power) toargue that the information which Mr Tomlinson had disclosed was infact irrelevant and harmless.

The allegation that evidence was withheld from Mr Tomlinson

Mr Tomlinson has provided no information as to the nature of theevidence which he contends was withheld from him at his sentencinghearing. Nor has Mr Tomlinson indicated how, in his contention, hewas prejudiced as a result of that evidence being withheld.

The Commission has seen nothing to suggest that evidence whichshould have been made available to Mr Tomlinson was not in factmade available to him. The Commission further notes that no suchsuggestion appears to have been made by Mr Tomlinson's counsel.

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The allegation that Mr Tomlinson was prevented from callingwifnesses

s1(1) Official Secrets Act 1989 states:

"A person who is or has been -(a) a member of the security and intelligence services, or

(b) a person notified that he is subject to the provisions of this subsection,

is guilty of an offence if without lawful authority he discloses anyinformation, document or other article relating to security or intelligencewhich is or has been in his possession by virtue of his position as amember of any of those services or in the course of his work while thenotification is or was in force."

An offence under that section is committed by a person who hasbeen a member of the security and intelligence services even if thedisclosure made by that person causes no 'damage' (i.e. even if it isirrelevant and harmless). lt follows that evidence from witnesses tothe effect suggested by Mr Tomlinson could not have afforded him adefence to the charge against him; its only possible relevance wouldhave been to sentence.

The Commission has seen nothing to suggest that Mr Tomlinson wasprevented from calling evidence as regards the significance orotherwise of the information which he had disclosed. TheCommission further notes that no such suggestion appears to havebeen made by Mr Tomlinson's counsel. On the contrary, it appearsthat in the course of mitigation Mr Tomlinson's counsel expresslyindicated that the defence team had considered obtainingindependent advice and/or evidence in relation to the 'damage' (ifany) resulting from Mr Tomlinson's disclosure but had - with MrTomlinson's agreement - decided not to because such a step wasunnecessary and would broaden the 'circle' of disclosure.

The Court of Appeal will rarely allow appellants to depart from tacticaldecisions (such as decisions as to whether or not to call evidence)which were taken at an earlier stage. Nor will the Court of Appealgenerally receive new evidence on appeal unless there is areasonable explanation for the failure to adduce that evidence earlierin the proceedings. The Commission has seen nothing to suggestthat the Court of Appeal could be persuaded to take either step in thispresent case.

It is clear that in the course of mitigation it was argued on MrTomlinson's behalf that only limited, if any, 'damage' had beencaused by his disclosure of information. The Commission has seennothing to suggest that substantial weight could have been added tothat contention by the calling of evidence or that compelling new

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evidence (whether from 'an intelligence officer of a hostile state' orotherwise) could now be produced to the effect that that disclosurewas irrelevant and harmless.

Generally

ln all the circumstances the Commission is satisfied that there is noreal possibility that the Court of Appeal could be persuaded that, forthe reasons summarised at paragraph 14(i) above, Mr Tomlinson'sconviction should be overturned or his sentence reduced. TheCommission notes, moreover, that in the absence of a successfulappeal against Mr Tomlinson's conviction, a reduction in his sentenceat this stage would seem unlikely to be of any real benefit to MrTomlinson, to the public interest or to the criminal justice system as awhole.

Category A status

Mr Tomlinson contends that his Category A prisoner status whilst onremand was a contrivance between the SIS and the Prison Service,the purpose and effect of which was to coerce him into pleading guiltyto the offence. The Commission assumes that it is, by implication, MrTomlinson's further contention that he should now be allowed towithdraw his plea of guilty and pursue an appeal against hisconviction.

The relevant Prison Service files are no longer available and theCommission has therefore been unable to establish precisely whyand in what circumstances Mr Tomlinson was accorded Category Astatus pending trial. The Commission has, however, consulted withthe Prison Service and has obtained a copy of the Prison Serviceguidance on'Categorisation, Recategorisation and Allocation' whichwas in force in May 1998 and which was, the Commission believes,in broadly similar terms to the guidance which was in force inNovember 1997.

It appears from that guidance that it was for the Prison Service (inconsultation with the police officer in charge of the case) to decidewhether or not a prisoner should be accorded Category A status. ltfurther appears from that guidance that any person charged with anoffence under the Official Secrets Acts was automatically to beconsidered for that status.

The Commission has found nothing which suggests that there wasany impropriety in, or associated with, the fact that Mr Tomlinson wasaccorded Category A status. In particular, the Commission hasfound nothing to suggest that the SIS had any dealings with the

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Prison Service in connection with Mr Tomlinson's categorisation, stillless that it played any improper part in that categorisation.

Further and in any event, it is only in very unusual circumstances thatthe Court of Appeal will allow an appellant who has pleaded guilty topursue an appeal against his conviction. The Commission has seennothing to suggest that the Court of Appeal could be persuaded thatsuch circumstances arise in this case or that there is any realpossibility that, whether for reasons associated with Mr Tomlinson'sCategory A status or othenryise, the Court of Appeal could bepersuaded:

o that Mr Tomlinson's guilty plea was not truly voluntary; and/or

o that Mr Tomlinson should now be allowed to withdraw thatguilty plea; and/or

o that it should set aside Mr Tomlinson's conviction.

The Commission notes, moreover, that Mr Tomlinson's guilty pleawas clearly relied on in mitigation and that it is to be assumed thatappropriate credit was given for it when Mr Tomlinson was sentenced.

ln all the circumstances the Commission is satisfied that there is noreal possibility that the Court of Appeal could be persuaded that, forthe reasons summarised at paragraph 14(ii) above, Mr Tomlinson'sconviction should be overturned or his sentence reduced.

Other issues raised by Mr Tomlinson

Mr Tomlinson submits that he has been treated unfairly by the SIS:

o as regards the termination of his employment; and

. in that the SIS pressed for his prosecution but have failed topress for the prosecution of others who have, in his contention,made comparable disclosures.

38. Mr Tomlinson also contends that he has been defamed by AndrewRoberts.

39. Those alleged matters are of no obvious relevance to the safety of MrTomlinson's conviction or to the propriety of his sentence. TheCommission is satisfied that none of them gives rise to a realpossibility that the Court of Appeal could be persuaded to quash thatconviction or to reduce that sentence.

Exceptional Gircumstances

40. Further, as Mr Tomlinson has not previously appealed against hisconviction or sentence, the Commission could not properly refer that

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convlction or sentence to the Court of Appeal in the absence ofexceptional circumstances that would justify such a referralnotwithstanding the absence of a prior appeal. The Commission hasidentified no such exceptional circumstances.

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The Gommission's Provisional View

41. On the information available, the Commission has reached aprovisional view that there is no real possibility that this conviction orsentence would be overturned or reduced if it were referred to theCourt of Appeal. Further, the Commission has reached a provisionalview that there are in this case no exceptional circumstances thatwould justify a referral of that conviction or sentence to the Court ofAppeal notwithstanding the absence of a prior appeal. Mr Tomlinsonhas been offered the opportunity to make further submissions inresponse to these provisional views. Any further information orsubmissions must reach the Commission by 3 November 2011.

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Annex A

Summary of the Referral Powers of the Commission

Under sections 9 to 12 of the Criminal Appeal Act 1995, where aperson has been convicted on indictment or by a magistrates' court inEngland and Wales or Northern lreland, the Commission may at anytime refer the resulting conviction, verdict, finding or sentence to theCourt of Appeal, Crown Court or County Court as appropriate.

By section 13 of the Act, a reference shall not be made unless theCommission consider that there is a real possibility that the conviction,verdict, finding or sentence would not be upheld were the reference tobe made.

By the same section, this consideration must be reached because ofargument, evidence or, in the case of a sentence, argument on a pointof law or information, not raised in the proceedings which led to theconviction or any appeal or application for leave to appeal.

A reference shall not be made unless an appeal has been determinedor an application for leave to appeal has been refused.

ln exceptional circumstances, the Commission may refer a case wherethere has been no previous appeal or application for leave to appeal.

ln exceptional circumstances, the Commission can also refer aconviction, verdict or finding (but not a sentence) even if the evidenceor argument upon which the reference is based, has been raisedpreviously before the trial court or on appeal.

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Annex B

Disclosure by the Commission

The Commission has a legal duty to disclose any material that it hasobtained during its review which would help the applicant to make hisor her best case for a reference to the Court of Appeal. The materialmay be sent to the applicant in its original form, or as an extract or itmay be summarised in the Statement of Reasons.

The Commission may, in its discretion, provide other material where itconsiders it appropriate.

ln this case, the Commission has not sent Mr Tomlinson any materialother than the Statement of Reasons. The information relied on by theCommission in its consideration of the case is, in its view, adequatelysummarised in the Statement of Reasons or in material alreadyavailable to Mr Tomlinson.

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