Spying and Covert Politics.

Everybody should think about spying and the secret services; it is one of the world’s great problems. Since WW2 it has been linked with internal repression, dirty tricks, international sabotage and the generation of war. The big spy agencies want work and they get it by promoting distrust. Their business comes from spreading fear, plots, arms threats and antagonistic international relationships. As a result, they have created a distrust industry which is taking over the world.

Distrust is self-validating. Once you create it, it can expand. Spying causes perhaps a quarter of the world’s international problems and wars. We distrust the new “enemies”, but never distrust the spy system. It remains invisible and beyond question.  World-wide, spying and so-called intelligence is damaging us. The spy people have learned to be well-paid and nearly invisible. Like James Bond, they defend us, so how could we even question their necessity.

In fact, the problem is ramping up. This massive distrust system is now invading all our lives in mass surveillance, because we have now been persuaded that none of us can be trusted. It has always been both spying and propaganda and covert politics.

The Scale of the Issue.

First, you would want some examples of the damage it does. Here are a dozen from different periods.

1. In 1924 it produced the forged Zinoviev letter just before the October election to help bring down the first Labour Government.
2. The Gestapo, the Nazi secret service run by Goring and Himmler, absorbed, controlled and ran the police and the armed forces. Secret power was the CENTRAL INSTITUTION in the Nazi state repressing opposition, doing international deals, working towards the World War and planning the Holocaust.
3. At the end of WW2 the US recruited about a thousand Nazi spies against the USSR under Reinhard Gehlen in 1945-6 to report on the USSR’s Communist menace and start the Cold War.
4. The US Secret service formed a plot with Belgium to assassinate Patrice Lamumba, the first independent democratically elected Prime Minister of the Congo to initiate 50 years of political chaos.
5. The CIA ran a three year destabilisation programme in Chile before the coup against the democratically elected Salvador Allende and colluded in the coup. His successor General Pinochet was a thug.
6. In the 1970s the CIA ran the Secret Service of the Shah of Persia which kept him in power and vast arms sales flowing in from the US, but provoked increasing resentment leading to the downfall of the Shah, the imprisonment of hostages and long-term hostility between Iran and the US.
7. The CIA attempted dozens of assassination attempts on Castro in Cuba, then arranged the failed Bay of Pigs invasion and helped set up the “Cuba Crisis”.
8. Most commentators are agreed that the Vietnam war was a mistake and unnecessary, can caused by the Gulf of Tonkin non-incident. The Wikipedia version is, “On 2 August 1964, USS Maddox, on an intelligence mission along North Vietnam’s coast, allegedly fired upon and damaged several torpedo boats that had been stalking it in the Gulf of Tonkin. A second attack was reported two days later on USS Turner Joy and Maddox in the same area. The circumstances of the attacks were murky. Lyndon Johnson commented to Undersecretary of State George Ball that “those sailors out there may have been shooting at flying fish.” An undated National Security Agency publication declassified in 2005 revealed that there was no attack on 4 August.”  Perhaps four million died in the War.
9. In the 1980s the CIA spent several billion dollars training and equipping the Afghan Muhajideen to fight against the USSR in Afghanistan. One of the training groups funded and supplied by them was Al Qaida and 9/11 followed and much Middle East terrorist activity.
10. The CIA and MI6 both conclude that Iraq had weapons of mass destruction, despite US inspectors, and helped start the second Iraq War. The conclusion was untrue and the War was illegal, based on a lie, and has destabilized much of the Middle East.
11. Putin’s background is spying and the SVR in Russia has begun widespread spying and disruption techniques. Nevertheless, for example, the Skripal murder was carried out because Skripal was acting as a double spy, a fact not reported in the western media.
12. The recent incident in the US/Iranian tension turns out to be shaped by US intelligence following the Iranian tanker Grace 1 and suggesting it was seized in the straits of Gibraltar, provoking later Iranian responses in the Strait of Hormuz.

This list is far from complete. Indeed, the spy communities would laugh, because of what it leaves out. Nevertheless, these are major destructive events across the world causing wars, promoting lies not truth, teaching destructive behaviour and undermining democracy.

The World-Wide System.

The United States has dominated this system since 1945. But other states have followed. Britain, France, the USSR had strong systems. Israel developed a vast system linked to the US, and now China runs a political and technological spy system. They were not just spying, but usually providing money and weapons to ferment the governments they wanted to be in charge.

The outcome of this process was anti-democratic. All over the globe militaristic and totalitarian or absolutist regimes are supported against democracy. We, the US and UK, said we were democratic, but a case could be made that  we were against democracy. In Egypt, before and after the Arab Spring, we armed the military governments. We supported the Shah in Iran and Saddam in Iraq. We killed the democrat, Lumumba in the Congo. Blair armed Gaddafi to attack his own people. The US supported Marcos and dozens of other military leaders who bought their weapons, and all the time the secret services were there, doing the needful, spreading weapons, lies, disinformation, propping up corrupt regimes, smoothing the way for US multinational to extract oil, minerals, metals and food from compliant nations. The words, “Banana Republic”, entered the language for a US food company and a CIA government in central America.

Now, of course, spying, propaganda, surveillance, covert operations and even war have entered the electronic phase. They promise to mushroom into a vast system of distrust and misinformation, swaying voters, obscuring the truth and always backed by big money, the money of the states and the super-rich who want to order everything their way. How can we stand against this?

The Bad and the Good – Jesus.

To see how bad the bad is, we need to see the good. So, finding out about countries is a good thing. You learn their language, meet them, understand the country and see their point of view. If nation shall speak peace unto nation, we must meet and learn about one another. Of course, most of this kind of understanding comes from learning their language, meeting them, reading their papers and literature. We watch their media, study their government and culture, observe their faith, economies, social relationships and cities. In Christian terms, we welcome the stranger and often we are the stranger on holiday or travelling abroad. Within this framework, there is no secrecy, or spying, because there is no need for secrecy. Evildoers act in secret, and where evil is not, things are out in the open.

Spies do secrecy and good societies do openness. Jesus did openness. Indeed, he had a principle of openness. Things will out and should be brought out. “What is done in the secret places will be shouted from the housetops.” But more than this, practicing openness is a principle. Jesus has been brought secretly before the High Priest, Annas, in a mock trial. It should have been public, and Jesus’ defence is the public nature of his teaching. “’I have spoken openly to the world,’ Jesus replied. ‘I always taught in synagogue or at the temple where all the Jews come together. I said nothing in secret. Why question me? Ask those who heard me. Surely, they know what I said.” (John 18 20-21) So none of his words were conspiracy, or plots or aimed against others in secret. Public evidence matters in opposing prejudice, malice, political intrigue, covert killing and imprisonment, secret evil and violence. Jesus’ trial is our legal system. But it is much wider than that.

The light has come into the world, but the powerful move in the dark, because their deeds are evil. Live in the light, says Jesus. Openness, transparency, doing what you say, freedom of information, not doing things behind people’s backs, no hidden democracy are right and good. The Christian principled opposition to spying, covert operations, manipulation behind the scenes and supporting dictators has hardly been heard; it is time to do Jesus’ principles. Unless, following Christ, we live in the light, we are but ants in an anthill. We are pawns of this principality and power.

Christianity is the Light set on a Hill.

So the challenge for two billion plus Christians worldwide is to be the light set of a hill, to live in the light, to be fearless against secrecy, to combat national spy and surveillance systems, to be uninfluenced by covert and illicit communication, not to be tossed about by waves of engineered public opinion, to both follow and witness to what is true and to defeat the world of spying, covert operations, political subversion and propaganda but demanding the different way of our politicians and standing truths in the public square. So, we’ve got work to do.

^{Jesus was arrested in the garden of Gethsemane. Although Judas came to identify him in the dark and facilitate the arrest, Jesus stepped forward, identified himself and insisted that only he be arrested. There were Roman guards and the High Priests soldiers to take him; so there was already collusion between the two authorities. It would be argued to the Romans, based in the Antonia fortress at the north end of the Temple building, and close to Gethsemane, that Jesus would cause disruption at the enormous Passover Festival. That he came quietly would slightly confuse them. Jesus hands were bound, as was normal in an arrest, but normally great Rabbis would not be treated like this. Only the dark made it acceptable. Jesus would be taken down into the Kidron Valley and round the South east corner of the city wall into the lower city. The Roman guards after the arrest probably went back to the barracks, because they would not be allowed in the house of the High Priest, Annas. It was deep into the night and there would be few people about. Jesus head might be covered to prevent him being identified, for this was a massively contentious arrest of the most awesome Teacher of the era.}

^{So, at this stage, the arrest was mainly under the direction of Annas, the High Priest, or more accurately Annas the father-in-law of the High Priest, Caiaphas. Annas was High Priest from 15-20AD and was followed by five of his sons in the job before Caiaphas. So, this was an elite family show and really Annas was in charge, and Annas wanted to establish control of the whole process. When arrested Jesus should have been publicly tried when a charge was brought against him. If it involved the death penalty, the case had also to be referred to the Roman authority Pilate. Trials were conducted by local small Sanhedrin, with 23 judges, or by the Great Sanhedrin in Jerusalem of 71 members meeting in the Hall of Hewn Stones on the edge of the Temple Complex. But this was not a proper trial. Jesus’ arrest at night, so as not to attract the attention of the vast crowds in Jerusalem was deliberately clandestine, and he was taken to the House of Annas.}

^{This was like all political moves to take out political opponents who are a threat. This week in Russia Putin had imprisoned his main political opponent, and, it seems, tried to poison him. Politicians have long eradicated their threats, and Jesus was a threat. Twice he had overturned the tables of the moneychangers in the Temple, exposing the veniality of the system. Annas was piling up money in the Temple Treasury, using God for money. Jesus was bringing the issue out, had just exposed him this week. “It is written, ‘My house will be a house of prayer’, but you have made it a den of robbers.” The crowds were repeating it. Of course similar things were going on in religious shrines around the world. At Delphi the oracle was used as a money spinning system. Priests relied on cashing in on religion. Superstition made money. Later on, it would be indulgences. But Jesus stood against all this. You do not make money from God because God is the Father of all and it does not matter where you worship as long as you worship in spirit and truth.}

^{We need a short detour on to Peter and John. Once the focus was on the arrested Christ, it would have been relatively easy for some of the disciples to follow at a distance to see what would happen to Jesus, and Peter we know would do that. Did John go with him, and is John the disciple who gained access to Annas’ House? There is something we do not know about John. The weight of the Synoptic Gospels is set in Galilee and the weight of John’s Gospel is set in Jerusalem. What is it with John and Jerusalem? I suspect the answer is Nichodemus. John 3 does not appear there by mistake, but because John knew this private conversation directly from Nichodemus, and Nichodemus was on the Great Sanhedrin. We are not told, but he could have been one of the shadowy figures in this gathering, letting John in and later helping Peter to gain access. The appearance in front of Annas was not the “trial”. That would occur with Caiaphas. It was Annas sizing up how Jesus could be handled and softening him up for the later appearance before Caiaphas. The interchange is interesting.}

^{We hear that Annas questions Jesus about his disciples and his teaching. Why? Perhaps he was worried that the disciples would spread the word among the crowds and there would be a riot and trouble. Annas would be managing everything. His focus in discussing the teaching of Jesus would be to see if Jesus could be seen as claiming to be God and thus guilty in their eyes of blasphemy. How could that accusation be made to stick? We know where Annas was fishing, because that is where the “trial” later went. Jesus response to Annas is in terms of the public integrity of the trial process. “I have spoken openly to the world” Jesus replied. “I always taught in synagogue or at the Temple, where all the Jews come together. I said nothing in secret. Why question me? Ask those who heard me. Surely they know what I said.” Jesus is not subversive. The charges will be false. Let’s be open about this. Yet, the statement is three things. It is an insistence on the process of public trial with witnesses and not extracting from bound or tortured prisoners – confessions which are not true or fabricated. It is an insistence on public trial, witnesses who can be questioned, evidence and specific charges. Actually, this event lies behind what happens normally in courtrooms around the world. Innocent until proven guilty is obviously right because Christ was innocent. But second, it is also a principle of public openness. Jesus had taught that what is done in the secret places will be shouted from the housetops.}

^{This is a world-wide principle. I’m convinced Nichodemus was there, allowing John into the big posh house of Annas, and then Peter with a nod to the gatekeeper. He had the Sanhedrin status. Nichodemus knew Jesus’ words to him inside out. “This is the verdict: Light has come into the world, but men loved darkness rather than light because their deeds were evil. everyone who does evil hates the light, and will not come into the light for fear that his deeds will be exposed. But whoever lives by the truth comes into the light, so that it may be seen plainly that what he has done has been done through God.” (John 3:19-21) When Jesus makes this statement about being judged in public, Nichodemus can see this principle in action before his eyes. On the one hand the arrest at night, the pseudo trial before Annas to set up the murder of Jesus because of the evil money-making system of Annas and the Temple Party. The truth in the light and evil in darkness. Nichodemus can see Christ’s walk in the light – open teaching, cleansing the Temple, facing down the evil. So it has ever been. The Nazi Secret service, Stalin, Nixon and Watergate – everywhere evil tries to hide, stay underground, avoid the light. All of us seek sometimes to have the dark place in our lives where evil can hide, and here Jesus insists it must be in the open, in the light, and that remains the truth under which we live throughout human history.}

^{But, immediately, Jesus is defeated. He is rude to Annas. Annas is asking him questions and as Chief Priest of the Chief Priests should be answered. Jesus does not give a fig for power or status and responds, if you want answers to these questions, then ask the witnesses. There were plenty about. I’m ending the conversation here. Similarly, later, he would refuse to talk with Herod Antipas, though his life depended on it. Herod had murdered John the Baptist and you do not dress up a charade as a valid trial. They mocked him. He said nothing. But Annas was furious. The answer insulted him. “Why question me?” It is one of his officials who strikes Jesus across the face, but Annas’s fury is in the hand.}

^{Christians are sometimes too nice. The curate’s bad egg is “good in parts”. Jesus does not bend. “Is this the way you answer the High Priest?” the official rasps out. “If I said something wrong,” Jesus replied, testify as to what is wrong. But if I spoke the truth, why do you strike me?” Of course, Jesus had not “said” anything. He has refused to say anything and has stayed with the principles of trial and openness. He has also already faced death from these people and knows it is coming. Here the trial is wrong. The powers that be are corrupt. Addressing the whole business of human politics and its corruption is underway, and Annas sent Jesus, still bound, to Caiaphas, the high Priest and his Son-in-Law for the proper pseudo trial. The houses were probably quite close in the Upper City. And so, our politics must be in the light, following Jesus. Come on. Let’s bring it all out.}

Could I just say how honoured I am to be your new Prime Minister. I would just like to say what a fine Prime Minister Theresa May has been, and if she had had better support, she might be standing where I am now. And the Queen is doing a fine job too.
As you know, I have studied, and skimmed, the work of Winston Churchill, another Prime Minister who faced such a time of crisis as this. He promised to fight them on the beaches, but this time they are not fighting, they are just saying, “If you want to go away, then go away.” But we are staying where we are. We will not be moved. Dover will not move over, and we will get our Nation back. We won the Referendum, fair and square, though I admit the figures on the side of the bus were slightly out, and we must leave Europe, staying in the same place, as we promised. I, your chosen leader, will do Brexit.
If I may add, the Conservative Party, whose members have just chosen me, is a great Party. The members are old and wise. They read the Daily Telegraph, to whom I give my thanks for their support. They have time to sit around and drink, I mean think, and decide what is good for the country, and I am that what. We must be positive. We can do this together if we all scrum down and push. There is a lesson there. When you are pushing you do not see where you are going, but if you push, you either get over the line or the scrum collapses, and we will get over the line, and I am putting the ball in.
Of course, some cynics will say, “What about the Backstop?” and I answer – Do you not understand that you only need a backstop if you have got a poor wicketkeeper, as they taught me at school, and I will be the Good Wicketkeeper. Brexit solved, and it must be soft, or I will personally lose £5million on a bet. So, my policy is to go into the future, and all it needs is for the little people to be grateful and recognize the need for leisured rich people to run their lives, have tax havens and tell them what to deliver to their homes when they buy it.
I must now choose a cabinet. There are some people with principles not fit to run the country and some who have failed and can try again. Chris Grayling could be Chancellor. There are those who have been sacked, like me, and can hang together, except Michael Gove, who ratted on me. Fox can do trade and the complicated stuff. Trump will do our Foreign policy. I could do a deal with Nige before the election and we can leave the rest to the Civil Servants who are paid to run the ship.
Being Prime Minister is a matter of steering the ship. It may bob up and down, but the only real choice is right or left. If you go left, then you will sink, and so right is right. If you go right constantly, you go round in circles, and you don’t have to do anything. That is good government, and it is fun as well. And that is where we are. Going round in circles in the English Channel, because it is the English Channel which has brexitted from Europe and does not need to go anywhere and is staying where it is. That is my policy and my legacy to future generations. So, where is the ruddy rudder?

The United States kills far more of its own people than have ever been killed by other states. We knew the number killed in the US Civil War is roughly equal to the Americans killed in all external wars. But the crucial figures are now. The number of American who have died in domestic US gun-caused deaths this century is greater than the number of Americans killed in World War Two AND the Vietnam War AND the Afghan and Iraq wars. Americans are wiping themselves out. You could say we knew America was stupid, but we didn’t know it was that stupid. To put it another way, the US spends something like $1 trillion on defence protecting itself against the big wide world when far more of the killing is done by its own people. It is like driving around on the motorway in a tank to protect yourself, when you are going to be shot by your mate in the back seat. The US has had something like 470,000 gun-deaths since 2000 AD.

We know Trump and the US gun lobbies have come up with an answer. To protect yourself against guns you need more guns. Everyone knows this is stupid; it is embarrassing to bring it up. The extra-stupid bit is the economics of the thing. It is like flushing exploding money down the toilet. There are about 300 million guns in the US, and each year they buy more – presumably guns in bikinis or ones that fire round corners or with an “I will not shoot myself in the foot safety device”. Lots of Americans have more guns than they can put on each finger. (Don’t y’all try it because it is a bit dangerous.) So US citizens spend about $15-20 bn a year on 10-12 million new guns, ammo and “Do not aim it here” hats, and then fork out another $230 billion on hospital/police/it has gone wrong costs. That works out at about 1.5% of GDP to be added to the 3.5% it spends on Defence, or Attack, whatever you like to call the military thing. So, America flushes a trillion and a half exploding dollars down the loo and finishes up with more dead people than ‘most anywhere on earth, and Trump thinks it’s great.

Of course, Cheney was stupid because he shot his mate in the face, but Trump is more stupid, because he is not even being paid by Haliburton to keep a war going. Trump is worse because his voters are killing themselves or each other. He’s killing his own voters. He didn’t have much of a margin at the last election and they are dying off fast. Of course, they could come to their senses and say, “Why is Trump encouraging us to buy guns and kill ourselves and flush exploding dollars down the loo?” and decide they like Obama, but they are probably too stupid for that.

There has never been a case like this in UK Courts. BAe were guilty of corruption in relation to Tanzania. I say this in defiance of the sentence, because as Mr Justice Bean makes clear, because the serious Fraud Office had been forbidden from prosecuting the case, he could not try it properly. If the case had been as claimed in the BAe/SFO deal, he would not have fined them more than £5,000. As it was he fines them £500,000. Within the trial agreement with SFO BAe systems is given immunity from SFO investigation and prosecutions in any other case in their murky history. The pay-off is £30 million to Tanzania, which was actually paid late. So this is the UK Courts of Justice cooking a bribery trial with the Justice powerless to do anything about it. Such is the power of the arms establishment in Government and the Justice System. This is Justice Bean’s summing up, full of irony and not a little anger at the way he has been stitched up.

REGINA V BAE SYSTEMS PLC
Mr. Justice Bean:

1. On 23rd November 2010 at the City of Westminster Magistrates Court. BAE Systems PLC (“the Company”) pleaded guilty to one offence of failing to keep accounting records “sufficient to show and explain the transactions of the company” contrary to Section 221 of the Companies Act 1985. District Judge Tubbs committed the case to the Crown Court for sentence.

2. The laying of the information on 5th November 2010 came after a Settlement Agreement between the Company and the Serious Fraud Office. This provided, so far as material, as follows:
2) The Company shall plead guilty to a charge in the form attached of one count under section 221 Companies Act 1985.
3) The basis of plea in relation to that charge shall be in the form attached. The Company shall admit the facts set out therein and enter a plea in mitigation. The SFO will provide a copy of its opening note by 19 February 2010.
4) The fine for the offence admitted shall be imposed by the Court.
5) The Company shall make an ex gratia payment for the benefit of the people of Tanzania in a manner to be agreed between the SFO and the Company. The amount of the payment shall be £30 million less any financial orders imposed by the Court.
6) The SFO shall not prosecute any person in relation to conduct other than conduct connected with the Czech Republic or Hungary.
7) The SFO shall forthwith terminate all its investigations into the BAE Systems Group.
8) There shall be no further investigation or prosecutions of any member of the BAE Systems Group for any conduct preceding 5 February 2010.
9) There shall be no civil proceedings against any member of the BAE Systems Group in relation to any matters investigated by the SFO.
10) No member of the BAE Systems Group shall be named as, or alleged to be, an unindicted co-conspirator or in any other capacity in any prosecution the SFO may bring against any other party.

3. The basis of plea attached to the Settlement Agreement included the following:-
“2.1 The SFO commences its investigation into BAE Plc in July 2004. The SFO has investigated a number of issues as part of that investigation.”
2.2 One of the transactions that the SFO has investigated is the sale of a radar system to the government of Tanzania, (the radar contract)…
3.4 On 10 September 1999 a new contract for the sale was signed between the government of Tanzania and British Aerospace Defence Systems Limited with a price of $39.97m.
4.1 From the outset of the negotiations, Siemens Plessey Electronic Systems Ltd had retained a third party marketing advisor, Shailesh Vithlani (“Vithlani”) in Tanzania to assist with the negotiation and sale process. The agreement was between Vithlani personally and a Siemens Plessey subsidiary, Plessey Systems Export SA.
4.2 Following the acquisition of Siemens Plessey Electronic Systems Ltd by the BAE Systems group, in spring 1998, the BAE Systems group also engaged Vithlani as a marketing advisor. From October 1999, the written agreement was between two companies controlled by BAE plc and two companies controlled by Vithlani called Merlin International Ltd (Merlin) and Envers Trading Corporation (Envers). Merlin was a Tanzanian company and Envers was incorporated offshore. Under these arrangements, Merlin was to receive 1% of the Radar Contract price and Envers was to receive 30% of the Radar Contract price. The appointment of Merlin and Envers was approved by senior BAE employees.
4.3 After signature of the Radar Contract, payments of approximately $12.4 million were made to Merlin and Envers. [I interpose that in the case of Envers, payments were made by Red Diamond Trading Ltd, a company registered in the British Virgin Islands and controlled by the Defendants.]
4.4 These payments were recorded in accounting records of British Aerospace Defence Systems Ltd as payments for the provision of technical services by Vithlani.
4.5 Although it is not alleged that BAE plc was party to an agreement to corrupt, there was a high probability that part of the $12.4 million would be used in the negotiation process to favour British Aerospace Defence Systems Ltd. The payments were not subjected to proper or adequate scrutiny or review. Further, British Aerospace Defence Systems Ltd maintained inadequate information to determine the value for money offered by Vithlani and entities controlled by him.
4.6 The case is that the financial position of British Aerospace Defence Systems Ltd was not stated with reasonable accuracy, since it was not possible for any person considering the accounts to investigate and determine whether the payments were properly accounted for and were lawful. The failure to record the services accurately was the result of a deliberate decision by one or more officers of British Aerospace Defence Systems Ltd. In the circumstances in which the British Aerospace Defence Systems Ltd was carried out, this default was inexcusable.
4.7 It is not known who at British Aerospace Defence Systems Ltd was responsible for creating the relevant inaccurate accounting records or for the commission of the offence. However, it was known by BAE plc that such inaccurate accounting records were in existence and BAE plc failed to scrutinise them adequately to ensure that they were reasonably accurate and permitted them to remain uncorrected. BAE plc is therefore also guilty of a section 221(1)(a) offence.”

4. The form of words in paragraph 4.5 of the basis of plea echoes paragraph 29 of the information laid against BAE by the United States Department of Justice. This alleged that “BAES paid payments to certain advisors through offshore shell companies, even though in certain situations there was a high probability that part of the payments would be used in order to ensure that BAES was favored in the foreign government decisions regarding the sales of defense articles”.

The Settlement Agreement
5. The Settlement Agreement is, with respect, loosely and perhaps hastily drafted. In paragraph 6 “any person” is not defined, and paragraph 10 is not, at least expressly, confined to conduct preceding the agreement. But the heart of the matter is paragraph 8, whereby the SFO agreed that there would be “no further investigation or prosecutions of any member of the BAE Systems Group for any conduct preceding 5 February 2010.” It is relatively common for a prosecuting authority to agree not to prosecute a defendant in respect of specified crimes which are admitted and listed in the agreement: this is done, for example, where the defendant is an informer who will give important evidence against co-defendants. But I am surprised to find a prosecutor granting a blanket indemnity for all offences committed in the past, whether disclosed or otherwise. The US Department of Justice did not do so in this case: it agreed not to prosecute further for past offences which had been disclosed to it.

6. I have no power to vary or set aside the Settlement Agreement. Indeed, an attempt by the pressure group Campaign Against the Arms Trade to challenge it by way of judicial review, arguing that the SFO should have brought corruption charges, was rejected by Mr Justice Collins on 24 March 2010. The judge held that it was not arguable that the decision to limit the charge to one under s 221 was unlawful.

7. I also cannot sentence for an offence which the prosecution has chosen not to charge. There is no charge of conspiracy to corrupt, nor of false accounting contrary to section 17 of the Theft Act 1968. More obviously still, the Court does not decide who should be prosecuted. Although in opening the case for the SFO Mr Victor Temple QC submitted that the default by BAEDS, authorised by its parent company BAE Systems plc, “was the result of a deliberate decision by one or more officers” of BAEDS, and the reappointment of Mr Vithlani in November 1998 was approved personally by the chairman of BAE, no individual has been charged.

8. The basis of plea records in paragraph 4.5 that “although it is not alleged that BAE plc was party to an agreement to corrupt, there was a high probability that part of the $12.4m would be used in the negotiation process to favour BAEDS”. Indeed there was. Otherwise, it is inexplicable, on the material before me, why the payments to Mr Vithlani’s companies exceeded $12m; and even more inexplicable why 97% of that money should have been channelled via Red Diamond, an offshore company controlled by BAE, and paid to Envers, another offshore company controlled by Mr Vithlani.

9. That being so, I was astonished to find that the prosecution opening, after citing paragraph 4.5 of the basis of plea, went on:
“Accordingly, BAE has accepted that there was a high probability that the payments to Vithlani were intended to compensate him for work done in seeking to persuade relevant persons to favour BAEDS in respect of the radar project. It is not now possible to establish precisely what Vithlani did with the money that was paid to him. However, it is no part of the Crown’s case that any part of those payments were in fact improperly used in the negotiation process to favour BAEDS nor is it any part of the Crown’s case that BAE was party to any agreement to corrupt. To lobby is one thing, to corrupt another.”

10. I accept the second of these four sentences, namely that it is not now possible to establish precisely what Mr Vithlani did with the money that was paid to him. But on the basis of the documents shown to me it seems naïve in the extreme to think that Mr Vithlani was simply a well-paid lobbyist.

11. I also accept that there is no evidence that BAE was party to an agreement to corrupt. They did not wish to be, and did not need to be. The fact that money was paid by them to Red Diamond, by Red Diamond to Envers and by Envers to Mr Vithlani placed them at two or three removes from any shady activity by Mr. Vithlani.

12. In any event, the suggestion that Mr. Vithlani was merely a well paid lobbyist using his valuable time to hold legitimate meetings with decision-makers in Tanzania with no money changing hands is inconsistent, in my view, with the wording of the basis of plea that “there was a high probability that part of the $12.4m would be used in the negotiation process to favour BAEDS”.

13. The Consolidated Criminal Practice Direction section IV.45 and the decision of the Court of Appeal in R v Underwood [2004] EWCA Crim 2256 establish that whether or not pleas have been agreed the judge is not bound by any such agreement, and that any view formed by the prosecution on a proposed basis of plea is deemed to be conditional of the Judge’s acceptance of the basis of plea. Once the criminal courts are involved, sentence cannot be passed on an artificial basis. I accept the basis of plea itself. I remind myself that were I to hold a Newton hearing the criminal burden and standard of proof would apply. However, I indicated that I could not, without hearing evidence, accept any interpretation of the basis of plea which suggested that what BAE were concealing by the Section 221 offence was merely a series of payments to an expensive lobbyist. Such evidence might, for example, have involved witnesses who could testify, if it really is the case, that legitimate lobbyists could be paid 30% of the value of a $40 million contract simply as recompense for their time and trouble. Neither side sought to call evidence, although I indicated that I was prepared to grant an adjournment for them to do so.

14. I asked Mr. Temple what should have been in the accounting records instead of the phrase “provision of technical services”. He replied that something along the lines of “public relations and marketing services” would have been a more accurate description. If that had been a true and accurate description of the services which Mr. Vithlani was going to provide then I question whether it would have been appropriate to prosecute at all. Certainly the s 221 offence would have been suitable for being sentenced in the magistrates’ court. I would myself have imposed a fine of at most £5,000.

15. I therefore propose to sentence on the basis that by describing the payments in their accounting records as being for the provision of “technical services” the Defendants were concealing from the auditors and ultimately the public the fact that they were making payments to Mr Vithlani, 97% of them via two offshore companies, with the intention that he should have free rein to make such payments to such people as he thought fit in order to secure the Radar Contract for the defendants, but that the defendants did not want to know the details.

16. For the defendants Mr. David Perry QC made some important points in mitigation:
1) The company is charged with a single offence, not stated to be a specimen charge (though it continued for a 7 year period).
2) The Defendant cannot be sentenced for an offence, such as conspiracy to corrupt, which it has not admitted.
3) The company was prosecuted and fined the sum of $400m in the United States for offences in countries other than Tanzania.
4) The period over which the offence took place ended in December 2005. In 2007, by which time the SFO had been investigating the BAE Group’s affairs for some time, the company appointed a distinguished committee chaired by Lord Woolf, the former Lord Chief Justice, to identify the high ethical standards to which a global company should adhere, identify the extent to which BAE may currently meet these standards and recommend the action that BAE should take to achieve them. The committee reported in May 2008. The BAE Code of Conduct, which has been in effect since January 2009, now states that “we will not make facilitation payments and will seek to eliminate the practice in countries in which we do business”.
5) Both Mr. Temple and Mr. Perry emphasised the significance of the voluntary reparation which the company agreed to make “for the benefit of the people of Tanzania” as part of the settlement agreement. This payment will be £30 million, less any financial orders imposed by the Court”. The victims of this way of obtaining business, if I have correctly analysed it, are not the people of the UK, but the people of Tanzania. The airport at Dar-es-Salaam could no doubt have had a new radar system for a good deal less than $40million if $12million had not been paid to Mr. Vithlani. The structure of this Settlement Agreement places moral pressure on the Court to keep the fine to a minimum so that the reparation is kept at a maximum.

17. I have no power in this case to order confiscation or compensation.

18. Both Mr Temple and Mr Perry have decades of experience at the Criminal Bar. Neither of them was able to point me to any previous decision on the proper sentence for a case of this kind under s 221. Perhaps this is because there has never been one.

19. Taking the mitigating factors identified by Mr Perry into account I consider that the appropriate fine is £ 500,000. In addition, by consent, I order the Defendants to pay £225,000 towards the prosecution’s costs.