EXCLUSIVE: Man prosecuted over memory stick with MoD files on it should appeal conviction says top l
APPEAL: Nick Freeman said the prosecution could possibly be overturned (BBC/Twitter)
A MAN who was prosecuted after coming into possession of a memory stick that contained sensitive Ministry of Defence files should be able to overturn the conviction, one of the country's top lawyers has claimed.
Last month Essex News and Investigations exclusively revealed the extraordinary case of Melvyn Dawson, 53, who was prosecuted for blackmail after he asked about a possible reward when he tried to return the device to MoD defence contractor Thales UK.
The CPS eventually withdrew the blackmail charge when a judge slammed the costly investigation and said it "smacked of entrapment" on day one of the trial. Yet, he pleaded guilty to a lesser charge of theft by finding, which he now hopes to appeal against, amid claims he was badly advised by his defence barrister. Mel, who had no previous convictions, believes Thales went to police following a bizarre conversation he had with its head of security who would not say if a reward was applicable or not and repeatedly asked Mel "how much" he wanted to be paid.
WRONGED: Mel Dawson with paperwork concerning the case (Jon Austin)
Mel eventually said flippantly "well what about £500,000" after getting exasperated with the conversation.
After Thales went to police, officers covertly taped the firm's head of security Tony Aston when he called Mel back and kept asking him what he would do if he wasn't paid.
His home in Durham was simultaneously raided by police who recovered the memory stick and arrested Mel and his partner, who was later released without charge.
We gave details of the case to top criminal lawyer Nick Freeman, known has "Mr Loophole" for his ability to get wealthy clients off speeding and traffic offences.
He said: "I do not think there was a blackmail attempt. All he did was ask if there was a reward and 'can I have it?'
"He was also entitled to ask if the defence contractor had complied with its legal obligations in terms of reporting the data loss.
"As a lawyer there are things I have to comply with, and if I didn't, I would have to report that and you would be entitled to ask if I had done that, and I should confirm it or not.
"The judge has taken the view that there was an entrapment, and the prosecution has scraped around for another offence and come up with theft by finding.
GUIDED: Postage notes obtained by Mel show how police aided Tony aston during phone calls
"But there was no theft in my view. He never intended to keep the memory stick, and there was no dishonesty.
"In my view he should not have pleaded guilty and the court should not have accepted a guilty plea to that offence."
He added: "In my view, if he took this to the High Court, he would have a good chance of overturning this conviction."
In terms of the search warrant, Mr Freeman said it would not have been necessary to have one if they just wanted to retrieve the memory stick from Mr Dawson, but they could not seize anything else.
However, he said: "If they wanted to search the property for anything else they would need a search warrant, and if any items that were not listed on that warrant were seized, that would be unlawful."
Mr Dawson believes the warrant to search his home could have been obtained by Durham Police, on behalf of Surrey Police, unlawfully - in the same way claims have been made about the legality of search warrants in the Met Police botched VIP child sex abuse investigation - if the magistrate who granted it was not informed the covert operation was underway. Paperwork shows the warrant only allowed the memory stick to be seized, but officers also took Mel's computer, phone and passport, which he believes is also unlawful. However, requests for a copy of the search warrant application have proved fruitless with both the court and Durham Police saying their copies have been "destroyed".
LOST: Mel came into possession of a Thales marked memory stick like this (Thales UK)
The officer who made the application's notebook has also "been lost."
Christopher John, a retired police officer helping with the case, said: "The search warrant was likely unlawful due to the fact that it was either granted without the unlawful covert entrapment operation being disclosed to the magistrate, or he was deliberately misled by Durham Police who failed to mention the covert entrapment operation was not authorised." Mel said: "I was like a rabbit in the headlights and pleaded guilty on advice of my lawyer. "With what I know now, I would never have gone guilty. I didn't even find it and never stole anything because I was going to return it." Mel was given the small device by his partner who was running their stall at Durham Indoor Market after an elderly shopper found it nearby. Within a few weeks, he was placed under surveillance and taken into custody. The storage device belonged to Surrey-based Thales UK, one of the country's biggest defence contractors. The unencrypted device held classified MoD and Thales files that could be "commercially damaging, have effects on British military operations and relations with other Governments," including details of aircraft and Afghanistan War strategies. After the covert sting carried out by Surrey Police with Thales, Mel was charged with blackmailing the firm for return of the stick. His mistake was seemingly to enquire about a reward before grilling Thales about its data security.
REVIEW: Lynne Owens, National Crime Agency chief, headed Surrey Police at the time (Surrey Police)
On the first day of the trial at Guildford Crown Court in June 2012 Judge Christopher Critchlow expressed concerns saying it had "an impression of entrapment."
The CPS withdrew the blackmail charge the same morning. Mel took advice of his barrister and agreed to plead guilty to the lesser theft by finding charge. A Surrey Police spokesman said: "We received a number of complaints in relation to the investigation which have been fully investigated. "Mr Dawson subsequently made a number of further submissions to the Independent Office for Police Conduct that were not upheld." A Durham Police spokeswoman would not address the missing warrant application. She said: "We were granted a warrant and executed a search of a property at the request of Surrey Police. Any potential evidence found was passed over to Surrey Police, which carried out its own investigation.” A CPS spokesman said: “Mr Dawson’s file has been destroyed in line with retention policies so we are unable to comment on the decision-making. Charging decisions are made according to available evidence in line with CPS guidance.” A Thales UK spokesman said: “Thales UK takes the protection of data very seriously. We do not comment on individual incidents.”