R v Prager

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE EDMUND DAVIES
Judgment Date10 Nov 1971
Judgment citation (vLex)[1971] EWCA Crim J1110-1
Docket NumberNo. 3306/R/71

[1971] EWCA Crim J1110-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Edmund Davies

Lord Justice Stephenson

and

Mr. Justice Thompson

No. 3306/R/71

Regina
and
Nicholas Anthony Prager

MR. J.P. COMYN, Q.C., and MR. E. LYONS appeared on behalf of the Applicant.

MR. R. STROYAN for SIR PETER RAWLINSON, Q.C., and MR. D. HERROD appeared on behalf of the Crown.

LORD JUSTICE EDMUND DAVIES
1

On June 23rd, 1971 Nicholas Anthony Prager was convicted at Leeds Assizes of making between June 1st and July 29th, 1961 a sketch, contrary to Section 1 (1)(b) of the Official Secrets Act, 1911 (that was Count 1), and of communicating documents between July 29th and September 2nd, 1961, contrary to Section 1 (1)(c) of that Act. The convictions were by a 11 to 1 majority. The accused was unanimously acquitted of the third count, which charged him with doing, on July 16th, 1971, an act preparatory to the commission of an offence, contrary to Section 7 of the Act. He was sentenced to concurrent terms of twelve years in respect of each of the two convictions. He applied to this Court for leave to appeal against conviction and sentence. On November 4th we heard the application, the submissions of the Applicant's counsel being made almost entirely in camera (at the request of the Attorney-General and with the complete concurrence of Prager's counsel). We did not deem it necessary to hear the Attorney-General before announcing our refusal of the application in respect of both conviction and sentence, but indicated that we would at a convenient later date give our reasons for arriving at that conclusion. That we now proceed to do.

2

The Applicant was born in 1928 of Czech parents and lived in Czechoslovakia until he came to this country with them in 1948 or 1949 and became a naturalised British subject. In 1949 he married a Czech woman and in May of that year joined the Royal Air Force. By 1959 he had been promoted to Sergeant, and, being a clever engineer, was one of a very small team engaged on highly secret and important work.

3

In 1958 Mrs. Prager acquired an interest in a house in Prague on the death of her aunt. The Pragers wanted to sell it and get the money transferred to England. But, as there were exchange control difficulties, in 1959 the Applicant proposed visiting Czechoslovakia. For this purpose he needed a visa and went to the Czech Embassy in London. There he met one Malek, an officer of the Czech intelligence who occupied the post of consul, and what seems to have been initially a wholly innocent contact was to prove a turning-point in Prager's life.

4

In 1960 the highly secret unit in which he was serving moved to Finningley, near Doncaster. For some reasons, which merit and have doubtless already received attention, the security system obtaining there was imperfect, for it was possible to abstract classified matter at night, photograph it, and return it undetected the following day. Among the projects being carried out was one called 'Blue Diver', and Count 1 relates to the alleged photographing of material relating thereto for the purpose of supplying it to the Czechs.

5

In 1961 four important events occurred. Taken individually. they may well have been capable of an innocent explanation, but, when regarded collectively, were said by the Crown to provide a powerful indication that the Applicant was preparing for espionage. Firstly, in February, 1961, the Pragers - or at least Mrs. Prager - were on terms of social intimacy with Malek. Secondly, in March, 1961, Prager sought a three-months extension of his twelve-year Royal Air Force engagement which was due to expire the following May. The Applicant explained that he sought the extension so as to complete a course of study he was then undoubtedly pursuing, whereas the Crown alleged that the extra months covered June and July, thus enabling him to have access to secret material for the time necessary to enable him to further the course of espionage upon which he was set. Thirdly, during 1961 Prager bought a Polaroid camera and a 'close-up' kit at a total cost in excess of £120. It could undoubtedly be used for photographing documents and would enable its user to know instantly whether he had procured a satisfactory result. Fourthly, the Pragers required a visa for the Czechoslovakian holiday they took in 1961, and for this purpose were in contact with Malek. The Crown alleged that it was during a visit by Prager to the Czech Embassy that he handed over to Malek his photographs of secret material.

6

In August of 1961 Prager left the Royal Air Force and became engaged on computer work with English Electric. This involved his visiting Czechoslovakia from time to time during the next ten years. When it was that the intelligence staff of this country first interested themselves in Prager is not clear. All we know is that it was only after "prolonged inquiries" that Detective Chief Superintendent Craig and Detective Superintendent Sills and other Police Officers arrived at his home near Rotherham at 8 a.m. on Sunday, January 31st, 1971. At the outset he was shown a search warrant issued under the Official Secrets Act, 1911. He was then told that the Police wanted to question him regarding a serious matter and was asked whether he preferred to go to the Police Station for the purpose. He said he did, and in the 25-minute journey to Doncaster Police Headquarters remarked, "This whole thing is a fantasy, but I will help you all I can". They arrived there at 9.15 a.m. and his wife followed soon after. It has not been suggested to this Court that Prager then or at any time before he was charged thought, or had any grounds for thinking, that he was not free to leave the Police Station had he wanted to.

7

On arrival, Prager was given refreshment and Detective Chief Superintendent Craig forthwith began questioning him, and, conforming to a decision previously arrived at, they gave him no caution before doing so. In essence, this application turns upon whether they were right in so refraining. The submission of Mr. James Comyn is that it was a completely wrong decision and should have led to the exclusion from the Jury's consideration of everything said or acknowledged by Prager's thereafter.

8

In his submissions before us, Mr. Comyn conveniently divided the events of the day into Session I, lasting from 9.15 a.m. to 12.30 p.m., Session II from 5.40 p.m. to about 7.40 p.m., and Session III from 7.40 to about 11.30 p.m.

9

During Session I Prager made no admissions, and in particular denied taking illicit photographs or meeting Czechs whom he knew to be intelligence agents working for their country. Questioning broke off at 12.30 p.m., when (accompanied by a Detective Officer) Prager took a walk in the precincts of the Police Headquarters, had lunch and then rested and slept in a room made available to him. When he awoke, he was given tea and freshened himself up.

10

At 5.45 p.m. his interrogation was resumed, thus beginning what Mr. Comyn described as Session II. At about 7.40 p.m. something significant occurred, for on being asked whether he had been regarded as an agent by the Czech intelligence, he replied, "It did not happen like that. Anything I have done was done unwittingly, but you must know my family are out of this". At this point Mr. Craig cautioned Prager in accordance with Rule II of the Judges' Rules, 1964, and it is to be observed that when the Lord Chief Justice came to sum up, he told the Jury, "it is not perhaps without importance to remember that that caution was, according to the prosecution - the police officers - and really not challenged by the defence, given to Prager before he made any kind of admission in this matter at all".

11

Session III began with the caution at 7.40 p.m. Between then and 9 p.m. Prager orally admitted buying a Polaroid camera and a 'close-up' kit in Sheffield, and photographing "stuff" in his kitchen. Asked what "stuff" he was referring to, he replied "Just pictures of general calculations". Asked to which device these calculations related, he said "Blue Diver". He went on to say that he had handed these over to Malek at the Czech Embassy in London, and spoke of later passing notes on 'Blue Diver' to two Czech intelligence officers at Jevaney when on holiday in Czechoslovakia and of being paid by them £200 or £300, which he regarded as "an advance against the sale of my house".

12

At 9.35 he was asked whether he was prepared to furnish a signed statement and he assented, but asked whether he might take another walk before doing so. He then took a short walk, again accompanied by a Detective Officer. At 9.50 p.m. he was cautioned in the terms laid down by Rule III and between then and 11.30 p.m. he dictated a long statement. On its completion, he read and initialled each page and signed the completed statement.

13

It is not contested that the statement, if true, constituted a complete admission of the two offences upon which he was later convicted by the Jury. In relation to one of Mr. Comyn's submissions, it is convenient to observe at this point that the Lord...

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